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BUYER'S CALL OPTION AGREEMENT
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regarding the
Purchase of
Shares in BERU Aktiengesellschaft
BUYER'S CALL OPTION AGREEMENT
by and between
1. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Klosterfeldstrabe 14, 21614 Buxtehude, represented by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ on the basis of a power of attorney dated October
28, 2004, a copy of which is attached hereto,
- "Seller" -
and
2. BorgWarner Germany GmbH, a company with limited
liability with its registered seat at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, and registered with the commercial register of the
local court of Heidelberg under HRB 5929, represented by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ on the basis of a power of attorney dated
October 21, 2004, issued by its managing director ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, a copy of which is attached hereto,
- "Buyer" -
- Seller and Buyer each a "Party" and collectively the "Parties" -.
The Parties agree as follows:
1. Preamble
1.1 Sale and Purchase Agreement. The Seller and
various other shareholders of BERU Aktiengesellschaft,
Ludwigsburg, registered with the commercial register of the local
court of Ludwigsburg under HRB 5087 (the "Company") have
entered into a Sale and Purchase Agreement (the "Sale and
Purchase Agreement") dated October 30, 2004 pursuant to which
6,221,170 shares in the Company, representing approximately
62.21 % of the Company's share capital (the "Shares") have been
sold to Buyer.
1.2 Call Option Shares. Seller holds additional shares in the
Company of a total amount of 81,500 shares, equivalent to
approximately 0.82 % of the registered capital of the Company
(collectively the "Call Option Shares").
1.3 The Call Option Shares are currently deposited with ▇.▇.
▇▇▇▇▇▇▇ & Co. as follows:
▇.▇. ▇▇▇▇▇▇▇ & Co.
Account No.: Shares:
0800/323 438 81.000
0801/323 438 500
S.W.I.F.T.-Code: WBWC DE HH
Bank Code: ▇▇▇ ▇▇▇ ▇▇.
2. Call Option
2.1 Buyer's Call Option. The Seller hereby grants to the Buyer
the option to acquire upon request the Call Option Shares (the
"Buyer's Call Option") by bindingly and irrevocably offering to the
Buyer to execute the sale and purchase agreement regarding the
Call Option Shares enclosed hereto as Exhibit 2.1 (the "Call
Option SPA") upon exercise of the Buyer's Call Option as
provided in Sec. 2.2.
2.2 Call Option Exercise. Under the condition precedent that
the Closing Events as defined in Sec. 4.2 of the Sale and
Purchase Agreement have occurred, the Buyer is at any time after
January 3, 2005 and prior to March 31, 2005 (the "Option Period")
entitled to exercise the Buyer's Call Option by registered letter
(Einschreiben) to Seller. Upon exercise of the Buyer's Call Option,
the Call Option SPA will be deemed accepted and concluded.
3. Further Undertakings
The Seller undertakes that as from the day of signing of this
Buyer's Call Option Agreement until the end of the Option Period,
Seller shall not tender the Call Option Shares in any public offer
launched by the Buyer or any third party and Seller shall not sell,
transfer or otherwise dispose of, the Call Option Shares to any
party other than the Buyer or pledge the Call Option Shares for
any purposes.
4 Notices and Notifications
4.1 Notices. All notices and other communications
hereunder, in particular the exercise of the Buyer's Call Option,
shall be made in writing and shall be sent by registered mail or
courier to the following addresses:
If to Seller, to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇,
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇
in each case with a copy to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
HAPP ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
If to Buyer, to:
BorgWarner Inc.
Attn.: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇
in each case with a copy to:
HENGELER ▇▇▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
or to such other recipients or addresses which may be
specified by any Party to the other Parties in the future in writing.
4.2 Director's Dealing. The Buyer acknowledges that
Seller will immediately after satisfaction of the condition precedent
pursuant to Art. 2.2 of this Agreement be obligated to file a
director's dealings notification pursuant to Art. 15 a of the German
Securities Trading Act Wertpapierhandelsgesetz (WpHG) -
concerning the grant of the Buyer's Call Option.
5 Miscellaneous
5.1 Entire Agreement. This Agreement and its Exhibits
contain the entire agreement between the Parties concerning the
subject matter hereof and shall supersede and replace all prior
oral and written declarations of intention made by the Parties in
respect thereof.
5.2 Amendments. Any amendments to this Agreement
(including amendments to this Sec. 5.2) shall be valid only if
made in writing, unless a stricter form (including notarial form) is
required by mandatory law.
5.3 Headings. The headings in this Agreement are
inserted for convenience only and shall not affect the
interpretation of this Agreement.
5.4 German Terms. Where a German term has been
inserted in quotation marks and/or italics, such term alone (and
not the English term to which it relates) shall be authoritative for
the interpretation of the respective provision.
5.5 Assignment. No Party shall be entitled to assign any
rights or claims under this Agreement without the written consent
of the other Party, such consent not to be unreasonably withheld.
5.6 No Rights of Third Parties. This Agreement shall not
grant any rights to, and is not intended to operate for, the benefit
of any third parties.
5.7 Governing Law; Place of Venue. This Agreement
shall be governed by, and be construed in accordance with, the
laws of the Federal Republic of Germany, without regard to
principles of conflicts of laws.
5.8 Partial Invalidity. In the event that one or more
provisions of this Agreement shall, or shall be deemed to, be
invalid or unenforceable, the validity and enforceability of the
other provisions of this Agreement shall not be affected thereby.
In such case, the Parties agree to recognize and give effect to
such valid and enforceable provision or provisions that
correspond as closely as possible with the commercial intent of
the Parties. The same shall apply in the event that this Agreement
contains any gaps (Vertragslucken).
______________________
Place, Date
________________________
Seller, represented by
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
______________________
Place, Date
________________________
Buyer, represented by
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
SALE AND PURCHASE AGREEMENT
_______________________________________________
regarding the
Sale and Purchase of
Shares in BERU Aktiengesellschaft
SALE AND PURCHASE AGREEMENT
by and between
1. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Klosterfeldstrabe 14, 21614 Buxtehude,
- "Seller" -
and
2. BorgWarner Germany GmbH, a company with limited
liability with its registered seat at ▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, and registered with the commercial register of the
local court of Heidelberg under HRB 5929,
- "Buyer" -
- Seller and Buyer each a "Party" and collectively the "Parties"-
TABLE OF CONTENTS
Index of Defined Terms 4
Preamble 5
1. Current Status 5
2. Closing Date; Sale and Transfer 6
3. Purchase Price 7
4. Closing Event; Closing Confirmation 7
5. Seller's and Buyer's Liability and Remedies 7
6. Confidentiality; Announcements 7
7. Notices 8
8. Costs 9
9. Miscellaneous 9
Index of Defined Terms
Banking Days as defined in Sec. 9.6
BERU Group as defined in the Preamble A
Buyer as defined in the recitals
Buyer`s Call Option as defined in Sec. 1.3
Closing Confirmation as defined in Sec. 4.2
Closing Date as defined in Sec. 2.1
Closing Event as defined in Sec. 4.1
Company as defined in Sec. 1.1
Global Share Certificate as defined in Sec. 1.2
Party/Parties as defined in the recitals
Sale and Purchase Agreement as defined in the Preamble D
Seller as defined in the recitals
Share Deposit Bank as defined in Sec. 1.4
Shares as defined in Sec. 1.3
Purchase Price as defined in Sec. 3.1
Preamble
A. The Seller is a shareholder in BERU Aktiengesellschaft,
which is the parent company of a group of companies which are
directly or indirectly majority-owned by BERU Aktiengesellschaft
and which are active in the automotive supply industry (the
"BERU Group").
B. The Seller intends to sell all its shares in BERU
Aktiengesellschaft.
C. The Buyer intends to purchase the shares held by Seller.
D. The Seller and various other shareholders of BERU
Aktiengesellschaft have entered into a Sale and Purchase
Agreement dated October 30, 2004, pursuant to which 6,221,170
shares in BERU Aktiengesellschaft have been sold to the Buyer
(the "Sale and Purchase Agreement").
NOW, THEREFORE, the Parties agree as follows:
1. Current Status
1.1 The Company. BERU Aktiengesellschaft is a stock
corporation existing under German law with its corporate office in
Ludwigsburg and registered with the commercial register of the
local court of Ludwigsburg under HRB 5087 (the "Company"). The
registered capital of the Company amounts to E26,000,000 (in
words: Euro twenty-six million) and consists of 10,000,000 (in
words: ten million) non par value bearer shares (nennwertlose,
auf den Inhaber lautende Stockaktien) with a proportionate
participation in the registered capital of E 2,60 each. The shares
of the Company are admitted to the official market of the Frankfurt
Stock Exchange and the Stuttgart Stock Exchange and traded in
the over-the-counter markets (Freiverkehr) of the Dusseldorf
Stock Exchange, the Munich Stock Exchange, the Hamburg Stock
Exchange and the Berlin-Bremen Stock Exchange.
.2 Global Share Certificate. All shares of the Company are
issued in two global share certificates (the "Global Share
Certificate") which are owned in fractional co-ownership by all
shareholders of the Company, deposited with Clearstream
Banking AG.
1.3 The Shares. The shares in the Company held by the Seller
represent a total amount of 81,500 shares (in words: eighty one
thousand five hundred), equivalent to approximately 0.82% of the
registered capital of the Company (the "Shares"). On October 30,
2004, the Seller has granted to the Buyer an option (the "Buyer`s
Call Option") to acquire the Shares from the Seller upon the terms
and conditions of this Agreement, which shall be deemed
concluded upon the exercise of the Buyer`s Call Option.
1.4 The Share Deposit Bank. Seller has deposited the Shares
in the following share deposit accounts with ▇.▇.▇▇▇▇▇▇▇ & Co.
(the "Share Deposit Bank"):
▇.▇. ▇▇▇▇▇▇▇ & Co.
Account No.: Shares:
0800/323 438 81.000
0801/323 438 500
S.W.I.F.T.-Code: WBWC DE HH
Bank Code: 201 201 00.
2. Closing Date; Sale and Transfer
2.1 Closing Date. Closing date shall be the third Banking Day
following the exercise of the Buyer`s Call Option, or any date the
Parties shall mutually agree (the "Closing Date").
2.2 Sale and Transfer of the Shares. The Seller hereby (i) sells
(verkauft) and, subject to the condition precedent of the receipt of
payment of the Purchase Price in accordance with Sec. 3,
transfers (ubereignet) the Shares (including the assignment of his
fractional co-ownership of the Global Share Certificate) to the
Buyer; subject to the same condition precedent, the Seller hereby
also assigns her claims against Clearstream Banking AG and the
Share Deposit Bank as to the delivery (Herausgabe- und
Auslieferungsanspruche) with respect to the Shares. Buyer
hereby accepts such sale, transfer and assignment. The sale and
transfer of the Shares shall include all ancillary rights appertaining
thereto (Nebenrechte), including without limitation the dividend
rights (Gewinnbezugsrecht) to all profits not yet distributed to the
Seller on the Closing Date. For the avoidance of doubt, Seller
shall be entitled to all dividends for the business year 2004/05 of
the Company to the extent that such dividends will have been
distributed by the Company prior to the Closing Date.
3. Purchase Price
3.1 Purchase Price. The purchase price for the Shares
amounts to EUR 59 (in words: Euro fifty-nine) per share, i.e. a
total amount of EUR 4,808,500 (in words: Euro four million eight
hundred eight thousand fivehundred) for all Shares (the
"Purchase Price").
3.2 Payment of the Purchase Price. The Purchase Price shall
be due and payable on the Closing Date and shall be transferred
to the following bank account with the Share Deposit Bank:
Account No. : 101 53 23 438
Bank Code: 201 201 00
S.W.I.F.T.-Code: WBWC DE HH
IBAN DE 912012010001015323438
The Seller has instructed the bank maintaining its bank account to
confirm to Buyer by telefax receipt of payment of the Purchase
Price upon such receipt without undue delay (unverzuglich).
4. Closing Event; Closing Confirmation
4.1 Closing. On the Closing Date, the Buyer shall pay the
Purchase Price in accordance with Sec. 3.2 (the "Closing Event").
4.2 Closing Confirmation. After the Closing Event has been
performed, the Seller and the Buyer shall confirm in a written
document to be jointly executed by the Seller and the Buyer (the
"Closing Confirmation") that the payment of the Purchase Price as
well as the transfer of the Shares has occurred.
5. Seller's and Buyer's Liability and Remedies
In case of an exercise of the Buyer`s Call Option, Sec. 5 to 7
of the Sale and Purchase Agreement shall apply as if the Shares
sold hereunder had been sold under the Sale and Purchase
Agreement.
6. Confidentiality; Announcements
6.1 Confidentiality. Any information or documents
relating to a Party to this Agreement, the Company, a company of
the BERU Group, or their respective businesses and made
available to another Party in the course of the preparation of the
transaction contemplated hereunder shall not be disclosed to third
parties or published unless required by applicable laws, rules or
regulations (including take-over regulation). However, this
obligation shall not apply to information that is proven (i) to have
been (or have become) generally available (public domain)
without breach of any obligation of any of the Parties, (ii) to have
been known to the disclosing Party prior to the disclosure, (iii) to
have been independently developed by the disclosing Party, or
(iv) to have been received by the disclosing Party from a third
party without any violation of any obligation of such third party vis-
a-vis the disclosing Party.
Neither Party shall, without the prior written consent of the
respective other Party, disclose the contents of this Agreement to
third parties or make any information relating thereto available to
third parties. This shall not, however, apply to the extent a Party
or any affiliate of a Party may be obliged to make any
announcement or disclosure (including the disclosure of this
Agreement) under applicable laws or regulations (including the
rules of relevant stock exchanges or relevant Takeover Codes,
including the German Securities Purchase and Takeover Act -
Wertpapiererwerbs- und Ubernahmegesetz - and the Securities
Trading Act - Wertpapierhandelsgesetz). The right of the Parties
to disclose matters to advisers who are bound by a professional
duty of confidentiality shall remain unaffected.
6.2 Announcements. The Parties undertake that without
the written consent of the other Parties neither Party shall make
any public announcement regarding this Agreement, unless, in a
reasonable judgment of a party, required by, or appropriate under,
applicable laws or regulations (including, without limitation, the
rules of the relevant stock exchanges or takeover codes, in
particular the German Securities Purchase and Takeover Act -
Wertpapiererwerbs- und Ubernahmegesetz - and the German
Securities Trading Act - Wertpapierhandelsgesetz. Sufficiently
prior to any permitted announcement the Party wishing to make
the announcement shall, to the extent possible without violation of
legal restrictions, notify the other Party thereof, provide to the
other Party the proposed wording and take any requests of the
other Parties into due consideration.
7. Notices
All notices and other communications hereunder shall be
made in writing and shall be sent by registered mail or courier to
the following addresses:
If to the Seller, to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Klosterfeldstrabe 14,
D-21614 Buxtehude;
in each case with a copy to:
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇
HAPP ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇
If to the Buyer, to:
BorgWarner Inc.
Attn.: General Counsel
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇
in each case with a copy to:
HENGELER ▇▇▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇. ▇▇
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇
or to such other recipients or addresses which may be
specified by any Party to the other Parties in the future in writing.
8. Costs
All costs, including expenses, fees and charges, in connection
with the preparation, negotiation, execution and consummation of
this Agreement or the performance of the transactions
contemplated hereunder, including, without limitation, fees and
expenses of professional advisors, shall be borne by the Party
commissioning such costs. Stamp duties, locally applicable
transfer taxes and similar fees necessary to transfer title to the
Shares to the Buyer in connection with any clearance under
applicable antitrust laws shall be borne by the Buyer.
9. Miscellaneous
9.1 Entire Agreement. This Agreement and its Exhibits contain
the entire agreement between the Parties concerning the subject
matter hereof and shall supersede and replace all prior oral and
written declarations of intention made by the Parties in respect
thereof.
9.2 Amendments. Any amendments to this Agreement
(including amendments to this Sec. 9.2) shall be valid only if
made in writing, unless a stricter form (including notarial form) is
required by mandatory law.
9.3 Headings. The headings in this Agreement are inserted for
convenience only and shall not affect the interpretation of this
Agreement.
9.4 German Terms. Where a German term has been inserted
in quotation marks and/or italics, such term alone (and not the
English term to which it relates) shall be authoritative for the
interpretation of the respective provision.
9.5 Assignment. No Party shall be entitled to assign any rights
or claims under this Agreement without the written consent of the
other Party, such consent not to be unreasonably withheld.
9.6 Banking Days. "Banking Days" referred to in this
Agreement shall be any days other than Saturdays, Sunday or
public holidays in Frankfurt am Main.
9.7 No Rights of Third Parties. This Agreement shall not grant
any rights to, and is not intended to operate for, the benefit of any
third parties.
9.8 Exclusion of Remedies. Except as provided otherwise
herein, no Party shall be entitled (i) to set-off (aufrechnen) any
rights and claims it may have against any rights or claims any
other Party may have under this Agreement, or (ii) to refuse to
perform any obligation it may have under this Agreement on the
grounds of a right of retention (Zuruckbehaltungsrecht), unless
the rights or claims of the relevant Party claiming a right of set-off
(Aufrechnung) or retention (Zuruckbehaltung) have been
acknowledged (anerkannt) in writing by the relevant other Party or
have been confirmed by final decision of a competent court.
9.9 Governing Law; Place of Venue. This Agreement shall be
governed by, and be construed in accordance with, the laws of
the Federal Republic of Germany, without regard to principles of
conflicts of laws.
9.10 Partial Invalidity. In the event that one or more provisions of
this Agreement shall, or shall be deemed to, be invalid or
unenforceable, the validity and enforceability of the other
provisions of this Agreement shall not be affected thereby. In such
case, the Parties agree to recognize and give effect to such valid
and enforceable provision or provisions that correspond as closely
as possible with the commercial intent of the Parties. The same
shall apply in the event that this Agreement contains any gaps
(Vertragslucken).