EXHIBIT 2.1
SHARE PURCHASE AND TRANSFER AGREEMENT
between
1. ▇▇▇▇▇▇▇ 34 Vermogensverwaltungs GmbH (to be renamed NHL Acquisition Sub
GmbH), a German limited liability company (Gesellschaft mit beschrankter
Haftung) with its registered seat at ▇▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇(▇▇▇▇)▇ ▇-▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany (to be relocated to Busumer ▇▇▇▇(▇▇▇▇)▇
▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany),
- hereinafter also referred to as "PURCHASER" -
and
2. Novellus Systems, Inc., a California corporation with its principal place
of business at ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇,
- hereinafter also referred to as "NOVELLUS" -
on the one side
and
3. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung, a German trust (Stiftung) with its registered seat
at Mettmann and its business address at Busumer ▇▇▇▇(▇▇▇▇)▇ ▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany,
- hereinafter also referred to as "SELLER 1" -
4. Eider Vermogensverwaltungsgesellschaft mbH, a German limited liability
company (Gesellschaft mit beschrankter Haftung) with its registered seat
at ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany,
- hereinafter also referred to as "SELLER 2" -
5. Bovensiepen Vermogensverwaltungsgesellschaft mbH, a German limited
liability company (Gesellschaft mit beschrankter Haftung) with its
registered seat at ▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇, Federal Republic of
Germany,
- hereinafter also referred to as "SELLER 3" -
6. ROMERHOF Vermogensverwaltungsgesellschaft mbH, a German limited liability
company (Gesellschaft mit beschrankter Haftung) with its registered seat
at Am ▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany,
- hereinafter also referred to as "SELLER 4" -
and
7. ▇▇▇▇▇▇ Vermogensverwaltungsgesellschaft mbH, a German limited liability
company (Gesellschaft mit beschrankter Haftung) with its registered seat
at ▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany,
- hereinafter also referred to as "SELLER 5" -
- Seller 1, Seller 2, Seller 3, Seller 4, and Seller 5 hereinafter
collectively also referred to as
"SELLERS" -
on the other side.
RECITALS
(1) The Sellers are the sole shareholders of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG, the holding
company of a group of companies which is engaged in the business of
developing, manufacturing and selling precision machining equipment for
metal, glass and ceramics as well as for the electronic industry, in
particular for the semi-conductor industry.
2
(2) Novellus develops, manufactures, sells, and supports equipment for the
fabrication of integrated circuits.
(3) Novellus is interested in causing the Purchaser, a wholly-owned subsidiary
of Novellus, to acquire 100 % of the outstanding shares in ▇▇▇▇▇ ▇▇▇▇▇▇▇
AG, and the Sellers are interested in selling their shares in ▇▇▇▇▇
▇▇▇▇▇▇▇ AG, which in the aggregate are 100 % of the outstanding shares in
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG, to the Purchaser.
SECTION 1
LEGAL STATUS, SUBJECT MATTER AND DEFINITIONS
(1) ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG (hereinafter also referred to as "▇▇▇▇▇ ▇▇▇▇▇▇▇ AG" or
the "COMPANY") is a stock corporation (Aktiengesellschaft) under German
law with its registered seat in Rendsburg, Federal Republic of Germany.
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG is registered with the commercial register of the local
court of Rendsburg, Federal Republic of Germany, under no. HRB 796. Its
stated capital (Grundkapital) amounts to Euro 8,000,000.00 and is divided
into 320,000 bearer shares (Inhaberaktien; each such share is herein
referred to as a "▇▇▇▇▇ ▇▇▇▇▇▇▇ SHARE"). Such shares are non par value
shares (Stuckaktien) with a fractional share in the stated capital
(anteiliger Betrag des Grundkapitals) of Euro 25.00 each. The ▇▇▇▇▇
▇▇▇▇▇▇▇ Shares are evidenced by global share certificates attached as
EXHIBIT 1.1 to this Agreement. The entire stated capital of ▇▇▇▇▇ ▇▇▇▇▇▇▇
AG has been fully paid-in in cash or by means of contributions in kind, in
each case in full compliance with German law. There have been no (direct
or concealed) repayments of contributions, in particular no repayments of
contributions within the meaning of Section 57 of the German Stock
Corporation Act (Aktiengesetz - AktG; hereinafter also referred to as
"AKTG"). There have been no hidden contributions in kind (verdeckte
Sacheinlagen). The Company is validly existing under German law.
(2) The number of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares held by each of the Sellers is set
forth in more detail in the sellers list attached as EXHIBIT 1.2 to this
Agreement (hereinafter referred to as "SELLERS LIST").
(3) ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG is the holding company of the following subsidiaries
(each of them hereinafter also referred to as a "SUBSIDIARY", and
collectively the "SUBSIDIARIES", and
3
the companies set out in lit. a), b), c) and i) below collectively the
"GERMAN SUBSIDIARIES"):
a) ▇▇▇▇▇ ▇▇▇▇▇▇▇ SURFACE TECHNOLOGIES GMBH & CO. KG
▇▇▇▇▇ ▇▇▇▇▇▇▇ Surface Technologies GmbH & Co. KG (hereinafter also
referred to as "SURFACE TECHNOLOGIES" or "▇▇▇▇▇ ▇▇▇▇▇▇▇ KG") is a
limited partnership (Kommanditgesellschaft) under German law with
its registered seat in Rendsburg, Federal Republic of Germany. ▇▇▇▇▇
▇▇▇▇▇▇▇ KG is registered with the commercial register of the local
court of Rendsburg, Federal Republic of Germany, under no. HRA 1427.
Its registered capital of the limited partner (Kommanditkapital)
amounts to Euro 2,500,000.00. All contributions due to ▇▇▇▇▇ ▇▇▇▇▇▇▇
KG by its general and limited partners have been fully made and have
not been repaid. In particular, there have been no (direct or
concealed) repayments within the meaning of Section 172 para. 4 of
the German Commercial Code (Handelsgesetzbuch - HGB; hereinafter
also referred to as "HGB"). The sole limited partner (Kommanditist)
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. The sole general partner
(personlich haftender Gesellschafter/Komplementar) of ▇▇▇▇▇ ▇▇▇▇▇▇▇
KG is ▇▇▇▇▇ ▇▇▇▇▇▇▇ Verwaltungs GmbH (see lit. b) below). Until
December 31, 2002 ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG traded under the company name
▇▇▇▇▇ ▇▇▇▇▇▇▇ CMP-Systeme GmbH & Co. KG. With effect as from January
1, 2003 another subsidiary of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG, ▇▇▇▇▇ ▇▇▇▇▇▇▇
Werkzeugmaschinen GmbH, has been merged (Verschmelzung) within the
meaning of Sections 2 et seq. of the German Reorganization Act
(Umwandlungsgesetz - UmwG; hereinafter also referred to as "UMWG")
with and into ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG, and ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG has been
renamed ▇▇▇▇▇ ▇▇▇▇▇▇▇ Surface Technologies GmbH & Co. KG (the change
of the name and the merger are hereinafter collectively referred to
as the "CORPORATE REORGANIZATIONS"). ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG is validly
existing under German law.
b) ▇▇▇▇▇ ▇▇▇▇▇▇▇ VERWALTUNGS GMBH
▇▇▇▇▇ ▇▇▇▇▇▇▇ Verwaltungs GmbH (hereinafter also referred to as
"▇▇▇▇▇ ▇▇▇▇▇▇▇ GMBH") is a limited liability company (Gesellschaft
mit beschrankter Haftung - GmbH) under German law with its
registered seat in Rendsburg, Federal Republic
4
of Germany. ▇▇▇▇▇ ▇▇▇▇▇▇▇ GmbH is registered with the commercial
register of the local court of Rendsburg, Federal Republic of
Germany, under no. HRB 1919. Its stated capital (Stammkapital)
amounts to Euro 52,000.00. The stated capital has been fully
paid-in. There have been no (direct or concealed) repayments of
contributions, in particular no repayments violating Section 30 of
the German Limited Liability Company Act (Gesetz betreffend die
Gesellschaft mit beschrankter Haftung - GmbHG; hereinafter also
referred to as "GMBHG"). The sole shareholder of ▇▇▇▇▇ ▇▇▇▇▇▇▇ GmbH
is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG, holding one share in the nominal amount of Euro
52,000.00. ▇▇▇▇▇ ▇▇▇▇▇▇▇ GmbH is validly existing under German law.
c) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇- UND POLIERTECHNIK GMBH
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇- und Poliertechnik GmbH (hereinafter also
referred to as "▇▇▇▇▇ ▇▇▇▇▇▇▇ POLIERTECHNIK") is a limited liability
company (Gesellschaft mit beschrankter Haftung - GmbH) under German
law with its registered seat in Leinfelden-Echterdingen, Federal
Republic of Germany. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Poliertechnik is registered with
the commercial register of the local court of Nurtingen, Federal
Republic of Germany, under no. HRB 3907. Its stated capital
(Stammkapital) amounts to Euro 307,000.00. The stated capital has
been partially paid-in in cash and partially contributed by way of a
capital increase from the capital reserve (Kapitalerhohung aus
Gesellschaftsmitteln). There have been no (direct or concealed)
repayments of contributions, in particular no repayments violating
Section 30 GmbHG. The sole shareholder of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Poliertechnik is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG holding a share in the nominal
amount of Euro 307,000.00. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Poliertechnik is validly
existing under German law.
5
d) ▇▇▇▇▇ ▇▇▇▇▇▇▇ OF AMERICA, INC.
▇▇▇▇▇ ▇▇▇▇▇▇▇ of America, Inc. (hereinafter also referred to as
"▇▇▇▇▇ ▇▇▇▇▇▇▇ AMERICA") is a corporation under the laws of the
state of Massachusetts, USA, with its seat in Plainville,
Massachusetts, USA. ▇▇▇▇▇ ▇▇▇▇▇▇▇ America is registered under the
Federal Identification No. ▇▇-▇▇▇▇▇▇▇. Its issued and outstanding
share capital amounts to US $ 400,000.00 and is divided into 4,000
shares of common stock with no par value. The sole shareholder of
▇▇▇▇▇ ▇▇▇▇▇▇▇ America is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. ▇▇▇▇▇ ▇▇▇▇▇▇▇ America is
validly existing and in good standing under applicable US federal
and state laws.
e) RIWO-WIRE, INC.
RIWO-WIRE, INC. (hereinafter also referred to as "RIWO-WIRE") is a
corporation under the laws of the state of Massachusetts, USA, with
its seat in Plainville, Massachusetts, USA. RIWO-WIRE is registered
under the Federal Identification No. ▇▇-▇▇▇▇▇▇▇. Its share capital
amounts to US $ 0.00 and is divided into 2,000 shares of common
stock with no par value, all of which are issued and outstanding.
The shareholders of RIWO-WIRE are ▇▇▇▇▇ ▇▇▇▇▇▇▇ America holding
1,600 non par value shares equalling 80 % of the issued shares and
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG holding 400 shares equalling 20 % of the issued
shares. RIWO-WIRE is validly existing and in good standing under
applicable US federal and state laws but has currently no business
activities.
f) ▇▇▇▇▇ ▇▇▇▇▇▇▇ U.K. LIMITED
▇▇▇▇▇ ▇▇▇▇▇▇▇ U. K. Limited (hereinafter also referred to as "▇▇▇▇▇
▇▇▇▇▇▇▇ UK") is a private limited company under the laws of England
with its seat in London, England. ▇▇▇▇▇ ▇▇▇▇▇▇▇ UK was registered
with the companies house in Cardiff under Company No. 2919793 on
April 18, 1994. Its share capital amounts to GBP 50,000.00, which is
divided into 50,000 shares in the nominal amount of GBP 1.00 each.
The sole shareholder of ▇▇▇▇▇ ▇▇▇▇▇▇▇ UK is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. ▇▇▇▇▇
▇▇▇▇▇▇▇ UK is validly existing under English law.
6
g) ▇▇▇▇▇ ▇▇▇▇▇▇▇ JAPAN KABUSHIKI KAISHA (IN ENGLISH: ▇▇▇▇▇ ▇▇▇▇▇▇▇
JAPAN CO., LTD.)
▇▇▇▇▇ ▇▇▇▇▇▇▇ Japan Kabushiki Kaisha (in English: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Japan Co., Ltd.) (hereinafter also referred to as "▇▇▇▇▇ ▇▇▇▇▇▇▇
JAPAN") is a limited liability company under the laws of Japan with
its seat in Osaka, Japan. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Japan was registered with
the Tokyo Legal Affairs Bureau on April 8, 1998 under the
Registration No. 0023/98. Its share capital amounts to JPY
100,000,000.00 and is divided into 2,000 ordinary shares with a par
value of JPY 50,000.00 each. The sole shareholder of ▇▇▇▇▇ ▇▇▇▇▇▇▇
Japan is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Japan is validly existing
under Japanese law.
h) ▇▇▇▇▇ ▇▇▇▇▇▇▇ ASIA PTE LTD.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Asia Pte Ltd (hereinafter also referred to as "▇▇▇▇▇
▇▇▇▇▇▇▇ ASIA") is a private company limited by shares under the laws
of the Republic of Singapore with its seat in Singapore, Republic of
Singapore. ▇▇▇▇▇ ▇▇▇▇▇▇▇ Asia was registered with the Registrar of
Companies and Businesses Singapore under Company no. 199201918W on
April 14, 1992. Its share capital amounts to SG $ 100,000.00 and is
divided into 100,000 shares in the nominal amount of SG $ 1.00 each.
The sole shareholder of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Asia is ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Asia is validly existing under Singapore law but has
currently no business activities.
i) RIWO-DRAHTWERK GMBH
RIWO-Drahtwerk GmbH (hereinafter also referred to as
"RIWO-DRAHTWERK") is a limited liability company (Gesellschaft mit
beschrankter Haftung - GmbH) under German law with its seat in
Rendsburg, Federal Republic of Germany. RIWO-Drahtwerk is registered
with the commercial register of the local court of Rendsburg,
Federal Republic of Germany, under no. HRB 158. Its stated capital
(Stammkapital) amounts to DEM 1,500,000.00. The stated capital has
been fully paid-in. There have been no (direct or concealed)
repayments of contributions, in particular no repayments violating
Section 30 GmbHG. The sole shareholder of RIWO-Drahtwerk is ▇▇▇▇▇
▇▇▇▇▇▇▇ AG. RIWO-Drahtwerk is validly existing under
7
German law. RIWO-Drahtwerk has ceased to do business as of September
30, 2001 and, since then, has had and has currently no business
activities. On December 9, 2003 the shareholder has passed a
shareholders' resolution converting the denomination of the stated
capital into Euro and reducing the stated capital to Euro 25,000.00.
According to Section 58 para. 1 GmbHG the registration of a capital
reduction with the commercial register requires a one year notice
period after three different public announcements of the capital
decrease have been published by the respective company in the German
Federal Gazette (Bundesanzeiger). RIWO-Drahtwerk has published the
third of such public announcements on January 9, 2004.
(4) The subject matter of this Agreement is the sale and the transfer of all
of the outstanding ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares by the Sellers to the Purchaser
subject to the terms and conditions of this Agreement.
(5) If used in this Agreement the following terms shall have the meanings
ascribed to them in this para. 5:
"ADJUSTED AGGREGATE PURCHASE PRICE" shall have the meaning ascribed to it
in Section 4 para. 3 lit. b) below.
"AGGREGATE PURCHASE PRICE" shall have the meaning ascribed to it in
Section 4 para. 1 below.
"AKTG" shall have the meaning ascribed to it in Section 1 para. 1 above.
"BANKING DAYS" means such days on which banks in Rendsburg, Germany, and
San Jose, California, USA, are open to the general public.
"BGB" shall have the meaning ascribed to it in Section 5 below.
"CLOSING" shall have the meaning ascribed to it in Section 10 para. 1
below.
"CLOSING DATE" shall have the meaning ascribed to it in Section 10 para. 1
below.
"COMPANY" shall have the meaning ascribed to it in Section 1 para. 1
above.
8
"COMPANIES" shall have the meaning ascribed to it in Section 5 para. 1
below.
"CORPORATE REORGANIZATIONS" shall have the meaning ascribed to it in
Section 1 para. 3 lit. a) above.
"ESCROW AGREEMENT" shall have the meaning ascribed to it in Section 4
para. 4 below.
"ESCROW AMOUNT" shall have the meaning ascribed to it in Section 4 para. 4
below.
"ESCROW PERIOD" shall have the meaning ascribed to it in Section 4 para. 4
below.
"FOREIGN SUBSIDIARIES" shall mean the Subsidiaries which have their
registered company seat outside the Federal Republic of Germany.
"GERMAN SUBSIDIARIES" shall have the meaning ascribed to it in Section 1
para. 3 above.
"GMBHG" shall have the meaning ascribed to it in Section 1 para. 3 lit. b)
above.
"GOB" shall have the meaning ascribed to it in Section 4 para. 3 lit. a)
below.
"GWB" shall have the meaning ascribed to it in Section 10 para. 4 below.
"HGB" shall have the meaning ascribed to it in Section 1 para. 3 lit. a)
above.
"INTELLECTUAL PROPERTY RIGHTS" shall have the meaning ascribed to it in
Section 5 para. 15 below.
"KPMG" shall have the meaning ascribed to it in Section 4 para. 3 lit. a)
below.
"MATERIAL AGREEMENTS" shall have the meaning ascribed to it in Section 5
para. 16 below.
"NOVELLUS" shall mean Novellus Systems, Inc., a California corporation.
"OBJECTIONS" shall have the meaning ascribed to it in Section 4 para. 3
lit. a) below.
9
"▇▇▇▇▇ ▇▇▇▇▇▇▇ AG" shall have the meaning ascribed to it in Section 1
para. 1 above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ AMERICA" shall have the meaning ascribed to it in Section 1
para. 3 lit. d) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ ASIA" shall have the meaning ascribed to it in Section 1
para. 3 lit. h) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ GMBH" shall have the meaning ascribed to it in Section 1
para. 3 lit. b) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ JAPAN" shall have the meaning ascribed to it in Section 1
para. 3 lit. g) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ KG" shall have the meaning ascribed to it in Section 1
para. 3 lit. a) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ POLIERTECHNIK" shall have the meaning ascribed to it in
Section 1 para. 3 lit. c) above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ SHARE" shall have the meaning ascribed to it in Section 1
para. 1 above.
"▇▇▇▇▇ ▇▇▇▇▇▇▇ UK" shall have the meaning ascribed to it in Section 1
para. 3 lit. f) above.
"PURCHASE PRICE ADJUSTMENT" shall have the meaning ascribed to it in
Section 4 para. 3 lit. b) below.
"PURCHASER" shall mean ▇▇▇▇▇▇▇ 34 Vermogensverwaltungs GmbH (to be renamed
NHL Acquisition Sub GmbH), a German limited liability company.
"PURCHASERS' AUDITOR" shall mean the company of auditors appointed by the
Purchaser pursuant to Section 4 para. 3 lit. a) below.
"RIWO-DRAHTWERK" shall have the meaning ascribed to it in Section 1 para.
3 lit. i) above.
"RIWO-WIRE" shall have the meaning ascribed to it in Section 1 para. 3
lit. e) above.
10
"SELLER 1", "SELLER 2", "SELLER 3", "SELLER 4", "SELLER 5", and "SELLERS"
shall mean those persons specified in more detail above and in the Sellers
List attached as EXHIBIT 1.2 to this Agreement.
"SELLERS LIST" shall have the meaning ascribed to it in Section 1 para. 2
above.
"SELLERS REPRESENTATIVE" shall have the meaning ascribed to it in Section
12 para. 1 below.
"SELLERS SHARES" shall have the meaning ascribed to it in Section 2 para.
1 below.
"SUBSIDIARY" and "SUBSIDIARIES" shall have the meaning ascribed to it in
Section 1 para. 3 above.
"TAX DISPUTE" shall have the meaning ascribed to it in Section 7 para. 7
lit. b) below.
"TRANSFER AUDIT REQUEST" shall have the meaning ascribed to it in Section
4 para. 3 lit. a) below.
"TRANSFER DATE" shall have the meaning ascribed to it in Section 4 para. 3
lit. a) below.
"TRANSFER FINANCIAL STATEMENTS" shall have the meaning ascribed to it in
Section 4 para. 3 lit. a) below.
"TAXES AND OTHER CHARGES" shall have the meaning ascribed to it in Section
7 para. 1 below.
"UMWG" shall have the meaning ascribed to it in Section 1 para. 3 lit. a)
above.
"ZPO" shall have the meaning ascribed to it in Section 12 para. 2 below.
SECTION 2
SALE AND PURCHASE OF SHARES
(1) The Sellers hereby sell and the Purchaser hereby purchases 320,000 ▇▇▇▇▇
▇▇▇▇▇▇▇ Shares held by the Sellers (hereinafter also referred to as the
"SELLERS SHARES") as specified in more detail in the Sellers List.
11
(2) The sale and purchase of the Sellers Shares shall encompass any and all
rights and ancillary rights attached to the Sellers Shares, in particular
any and all dividend rights attached to the Sellers Shares, also with
respect to the past, except for such dividends which have already been
distributed to the shareholders of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG.
SECTION 3
TRANSFER OF SHARES
The actual transfer of the Sellers Shares shall be carried out at the Closing.
At the Closing the Sellers shall transfer to the Purchaser all Sellers Shares by
delivery of the global share certificates and by a separate transfer agreement
in accordance with EXHIBIT 3.1 to this Agreement. The actual transfer of the
Sellers Shares shall be subject to the payment of the Aggregate Purchase Price
pursuant to Section 4 below.
SECTION 4
PURCHASE PRICE, PURCHASE PRICE ADJUSTMENT AND ESCROW
(1) The aggregate purchase price (hereinafter also referred to as the
"AGGREGATE PURCHASE PRICE") to be paid by the Purchaser for all 320,000
▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares, i.e. all Sellers Shares, shall be Euro
124,500,000.00 (in words: Euro one hundred twenty-four million five
hundred thousand). Unless otherwise agreed among the Sellers, the
Aggregate Purchase Price shall be equally allocated to the Sellers Shares
resulting in a purchase price of Euro 389.0625 for each ▇▇▇▇▇ ▇▇▇▇▇▇▇
Share.
(2) Subject to the provisions in para. 3 and 4 below, the Aggregate Purchase
Price shall be payable to the Sellers at the Closing, in cash via wire
transfer free of bank charges to the separate bank account
(Rechtsanwaltsanderkonto) of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Hamburg, acting as Sellers'
trustee (Treuhander), as shown in EXHIBIT 4.2 to this Agreement.
(3) The Aggregate Purchase Price (and consequently the purchase price for each
▇▇▇▇▇ ▇▇▇▇▇▇▇ Share) shall be subject to a possible downward purchase
price adjustment in favor of the Purchaser as set forth in this para. 3:
a) Within six weeks following the signing of this Agreement the
Purchaser may request by written notification to the Sellers that
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG shall prepare
12
consolidated financial statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG including all
of its Subsidiaries as of the Transfer Date (hereinafter referred to
as "TRANSFER AUDIT REQUEST"). Such consolidated financial statements
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG shall be prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG within one
month following the Transfer Audit Request in accordance with
generally accepted German accounting principles (Grundsatze
ordnungsma(beta)iger Buchfuhrung - GOB; hereinafter also referred to
as "GOB") as consistently applied, and in accordance with Sections
264 et seq., Sections 290 et seq. HGB and taking into account the
agreements set forth in Section 9 below. Thereafter, the
consolidated financial statements prepared by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG shall
be submitted to the Sellers Representative and the Purchaser and
shall be audited and certified by the Company's current auditor KPMG
Deutsche Treuhand-Gesellschaft AG Wirtschaftsprufungsgesellschaft
("KPMG"). An independent auditing firm
(Wirtschaftsprufungsgesellschaft) appointed by the Purchaser (the
"PURCHASER'S AUDITOR") may review and challenge the consolidated
financial statements audited and certified by KPMG and consult with
the Purchaser. KPMG and the Purchaser's Auditor, upon request and to
the extent legally permissible, shall make available to each other,
to the Sellers Representative and to the Purchaser copies of their
working papers as well as of the audited and certified consolidated
financial statements. For clarification purposes it is expressly
agreed and understood that the audit to be performed by KMPG shall
be a voluntary audit and not an audit required by law. In addition,
it is expressly agreed and understood that KPMG and the Purchaser's
Auditor are independent and not subject to any instructions of any
of the parties or ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. They are neither obligated nor
entitled to make any management decisions of any of the parties or
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or any of the other Companies, in particular no
decisions regarding the preparation of the consolidated financial
statements.
The costs of the aforementioned audit by KPMG shall be borne by the
Sellers and the costs of the audit of Purchaser's Auditor shall be
borne by the Purchaser. With respect to these costs neither a
reserve shall be made nor a liability shown in the consolidated
transfer statements of the Company as of the Transfer Date.
If the Purchaser or the Sellers have objections to the contents of
the consolidated financial statements (hereinafter referred to as
"OBJECTIONS"), they shall notify the
13
Sellers Representative or the Purchaser, respectively, in writing of
such Objections during the audit, in no event, however, later than
one month after the delivery of the consolidated financial
statements to the Purchaser or to the Sellers Representative, as the
case may be, by the Company. In this case the Sellers Representative
and the Purchaser shall endeavor to amicably settle any dispute in
good faith to reach agreement on the Objections within one month
after the Sellers Representative or the Purchaser, respectively, has
received the notification of such Objections. Objections, however,
shall be taken into account only if, on assumption of their
correctness, they would, in the aggregate, lead to a change in the
Company's consolidated equity within the meaning of Sections 298
para. 1, 266 para. 3 lit. A. HGB at the Transfer Date (as defined
below) of at least Euro 25,000.00. If no Objections have been
notified within the one-month-period following the delivery of the
consolidated financial statements by the Company, or if agreement on
any such Objections has been reached between the Sellers
Representative and the Purchaser, or if the Objections do not exceed
the aforementioned threshold, the consolidated financial statements
shall be final and binding on the parties hereto.
If the Purchaser and the Sellers Representative cannot agree in
whole or in part on the consolidated financial statements within the
one-month-period after the Sellers Representative or the Purchaser
has received the notification of any Objections, the Purchaser and
the Sellers Representative shall jointly appoint a third independent
auditing firm to finally settle any dispute and to determine the
consolidated financial statements as of the Transfer Date as expert
arbitrator (Schiedsgutachter) with binding effect for all parties.
If the Purchaser and the Sellers Representative fail to agree on the
expert arbitrator within two weeks after the expiration of the
one-month-period, during which the Purchaser and the Sellers
Representative shall attempt to settle the dispute, then, upon
request by the Sellers Representative or the Purchaser, the
Institute of Chartered Accountants in Germany (Institut der
Wirtschaftsprufer in Deutschland e.V.), Dusseldorf, Federal Republic
of Germany, shall appoint such independent expert arbitrator. The
expert arbitrator shall state the reasons for his decision in
writing. In his decision, the expert arbitrator may not make any
findings other than with respect to those Objections that remain in
dispute between the parties as within the framework of the relevant
consolidated financial statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. The fees and
14
costs of the expert arbitrator shall be shared by the Sellers on the
one side and the Purchaser on the other side equally unless
otherwise directed by the expert arbitrator (which shall have the
authority to make such direction if it deems it equitable and taking
into account the extent to which either party was justified in its
complaint or assessment).
The consolidated financial statements prepared, audited and
certified in accordance with this lit. a) shall be final and binding
on all parties for purposes of this Agreement and shall be deemed to
have been accepted and approved by each of them and are hereinafter
referred to as the "TRANSFER FINANCIAL STATEMENTS". The term
"TRANSFER DATE" as used in this Agreement shall mean April 30, 2004.
b) If the Transfer Financial Statements show a consolidated equity
within the meaning of Sections 298 para. 1, 266 para. 3 lit. A. HGB
which is less than Euro 23,354,813.99, the Aggregate Purchase Price
shall be decreased by the difference between the consolidated equity
as of the Transfer Date and Euro 23,354,813.99. The resulting
Aggregate Purchase Price shall be the "ADJUSTED AGGREGATE PURCHASE
PRICE" and the difference between the Aggregate Purchase Price and
the Adjusted Aggregate Purchase Price shall be the "PURCHASE PRICE
ADJUSTMENT". The Sellers shall repay to the Purchaser the Purchase
Price Adjustment, if any, in cash via wire transfer to an account as
will be designated in writing by the Purchaser within ten Banking
Days after such written instruction has been received by Sellers
Representative and the Transfer Financial Statements have become
final and binding pursuant to lit. a) above.
c) If the Sellers have not received a Transfer Audit Request of the
Purchaser within the time period pursuant to lit. a) above, this
shall be deemed a waiver by the Purchaser of the procedure as set
forth in this para. 3 and the Purchaser shall have no further right
to a Purchase Price Adjustment.
d) Any claims by the Purchaser against the Sellers pursuant to this
para. 3 shall be barred after six months after the Transfer
Financial Statements have become final and binding on the parties
hereto.
15
e) For the avoidance of doubt, it is expressly agreed that there will
be no purchase price adjustment in favor of the Sellers, even if the
consolidated equity shown in the Transfer Financial Statements
exceeds Euro 23,354,813.99.
(4) 10 % of the Aggregate Purchase Price, i.e. Euro 12,450,000 (in words: Euro
twelve million four hundred fifty thousand), shall not be paid directly to
the Sellers at the Closing, but be paid into escrow. The payment into
escrow shall be made into an interest bearing joint bank account
(Gemeinschaftliches Anderkonto als Und-Konto) of Rechtsanwalte ▇▇▇▇▇▇
▇▇▇▇▇▇▇, Hamburg, with Rechtsanwalt ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and Rechtsanwalt ▇▇▇▇▇▇
▇▇▇▇▇▇▇ as account signatories, and FGS Treuhandgesellschaft fur
Stiftungsvermogen mbH, Bonn, with Rechtsanwalt ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
Rechtsanwalt/Steuerberater Dr. Jens ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ as account signatories.
Such amount (hereinafter also referred to as the "ESCROW AMOUNT") shall
serve as the sole security for any and all of Purchaser's claims and
rights under or in connection with this Agreement, in particular as
security for any claims for breach of any independent guarantee and any
claims for indemnification pursuant to Sections 5, 6 and/or 7 below. The
details are set forth in the escrow agreement attached to this Agreement
as EXHIBIT 4.4 (hereinafter also referred to as the "ESCROW AGREEMENT")
which shall be executed immediately after the execution of this Agreement.
Any payments to the Sellers from the escrow made in accordance with the
Escrow Agreement shall not limit the liability of the Sellers under this
Agreement.
(5) Novellus hereby guarantees to the Sellers the obligations of the Purchaser
pursuant to this Section 4 to pay to the Sellers the Aggregate Purchase
Price and the obligations of the Purchaser and the Company, respectively,
to make the bonus payments after Closing pursuant to Section 9 below.
SECTION 5
INDEPENDENT GUARANTEE
The Sellers hereby guarantee to the Purchaser by means of an independent
guarantee (selbststandiges Garantieversprechen) within the meaning of Section
311 para. 1 of the German Civil Code (Burgerliches Gesetzbuch - BGB; hereinafter
also referred to as "BGB") that the following statements are correct as of the
date of the signing of this Agreement and as of the
16
Closing Date, unless a different relevant date is expressly stated in one of the
following statements:
(1) The statements relating to ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its Subsidiaries
(hereinafter also collectively referred to as the "COMPANIES") set forth
in Section 1 para. 1, 2 and 3 are correct. The Companies are fully
authorized and fully qualified or licensed to do business in the
jurisdictions in which they have their respective (registered) office.
(2) EXHIBIT 5.2 a) to this Agreement contains complete and correct copies of
all relevant statutes and other corporate documents of the Companies, as
they are in full force and effect. EXHIBIT 5.2 b) to this Agreement
contains complete and correct copies of all registration excerpts
(Handelsregisterauszuge) or equivalent documentation under applicable law.
There are no resolutions or other facts that need to be registered but
which have not yet been registered, except for the capital reduction of
RIWO-Drahtwerk described in Section 1 para. 3 lit. i) above; there are no
pending applications for registration.
(3) None of the Companies has any shares, options to acquire shares or other
securities outstanding other than the aggregate 320,000 ▇▇▇▇▇ ▇▇▇▇▇▇▇
Shares and those shares set forth in Section 1 para. 3 above and issued to
the Sellers, ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or a Subsidiary, respectively. There are no
outstanding options, conversion or exchange rights to purchase or obtain
any shares, interests or other securities in one of the Companies. There
are no contracts, commitments or other arrangements relating to the
issuance, sale, transfer or purchase of any shares, interests or other
securities in one of the Companies.
(4) All ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares are held by the Sellers. Except as disclosed in
EXHIBIT 5.4 to this Agreement all ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares are validly
existing and free and clear of all mortgages, pledges, liens, security
interests, encumbrances, restrictions or charges of any kind or any other
third-party rights. All contributions for the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares are
fully made (samtliche Einlagen auf Aktien sind vollstandig geleistet). All
Sellers are entitled to freely dispose of their ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares; in
particular, they do not require the consent of any third party or violate
any third party rights by disposing of their ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares. Any
pledges of ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares shall be released on or before the
Closing.
17
(5) ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its Subsidiaries do not have any subsidiaries and
affiliates other than those set forth in Section 1 para. 3 above.
(6) Except as disclosed in EXHIBIT 5.6 to this Agreement neither ▇▇▇▇▇ ▇▇▇▇▇▇▇
AG nor any of its Subsidiaries is a party to any enterprise agreement
(Unternehmensvertrag) within the meaning of Sections 291, 292 AktG,
including any silent partnerships (stille Gesellschaften) and neither
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG nor any of its Subsidiaries is a party to any profit or
turnover sharing agreement. The enterprise agreements disclosed in Exhibit
5.6 to this Agreement have been and are valid for corporate and tax
purposes for the periods stated therein.
(7) All Companies are entitled to use their corporate names.
(8) The financial statements and consolidated financial statements of ▇▇▇▇▇
▇▇▇▇▇▇▇ AG and its Subsidiaries for the years 2002 and 2003, as attached
as EXHIBIT 5.8 to this Agreement, have been prepared in accordance with
applicable generally accepted accounting principles, as consistently
applied, which in case of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its German Subsidiaries are
GOB. All such financial statements are correct and give a true and fair
view of the financial status and the results of each of the Companies and
the group as per the respective balance sheet date (in the case of ▇▇▇▇▇
▇▇▇▇▇▇▇ AG and its German Subsidiaries: Vermogens-, Finanz- und
Ertragslage within the meaning of Section 264 para. 2 HGB). To the extent
required, all such financial statements have been audited by independent
auditing firms and have been certified by such independent auditing firms
without any qualification. As of the relevant dates, the Companies had no
liabilities or obligations that are required by applicable generally
accepted accounting principles to be provided for in such financial
statements that were not so provided for.
(9) The inventories set forth in the consolidated financial statements of
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG for the year 2003, as adjusted for items sold or replaced
in the ordinary course of business from the date of such consolidated
financial statements until the date hereof or as of the Closing, as
applicable, are properly valued in accordance with GOB and are of a
quality and quantity currently useable and saleable in the ordinary course
of business. The accounts receivable reflected in the consolidated
financial statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇ for the year 2003, as adjusted for
accounts receivable paid in the ordinary course of business from the date
of such consolidated financial statements until the date
18
hereof or as of the Closing, as applicable, (i) have been recorded in
accordance with revenue recognition policies in compliance with GOB and
the historic revenue recognition policies of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its
Subsidiaries and, to the best of Sellers' knowledge, (ii) are valid and
fully enforceable as to the face amount thereof and (iii) are not subject
to any right of offset in favor of the relevant obligor. The adjustments
for doubtful accounts receivable reflected in the consolidated financial
statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG for the year 2003 were established in
compliance with GOB.
(10) Between December 31, 2003 and the date of this Agreement, there has been
no material adverse change in the business of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its
Subsidiaries, in particular in its condition, financial or otherwise,
assets, liabilities, reserves, or operations. Between December 31, 2003
and the Closing: (i) the Companies have been operated in the ordinary
course of business, and (ii) the Companies have not incurred any
liabilities other than those incurred in connection with the transactions
contemplated herein or in the ordinary course of their business
operations, consistent with past practices, and (iii) there have been no
dividend payments and no dividend resolutions on the level of ▇▇▇▇▇
▇▇▇▇▇▇▇ AG with the exception of dividend payments in the aggregate gross
amount of Euro 1,120,000.00 made by the Company to the Sellers prior to
the date of this Agreement pursuant to a shareholders' resolution dated
May 26, 2004. To the best of Sellers' knowledge, the forecast prepared by
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and attached as EXHIBIT 5.10 to this Agreement has been
prepared with the care of a careful and diligent business man (Sorgfalt
eines ordentlichen und gewissenhaften Geschaftsleiters) within the meaning
of Section 93 para. 1 sentence 1 AktG.
(11) The Companies have not issued or entered into any guarantee, letter of
comfort, or any other agreement of a similar nature, and the Companies are
not liable for, and they are not securing, any third-party obligations, in
particular any of the Sellers' obligations, other than those disclosed in
EXHIBIT 5.11 to this Agreement.
(12) EXHIBIT 5.12 to this Agreement contains a complete and correct list of all
real estate (i) owned or (ii) leased or otherwise occupied by one of the
Companies or its predecessors as of the Closing Date or within the last
five years.
The real estate and buildings presently used by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or any of
the Subsidiaries, are, however, with respect to the real estate and
buildings presently used
19
by the Foreign Subsidiaries only to the best of Sellers' knowledge, free
of any material pollution of soil, groundwater or any other environmental
pollution of material effect for the curing and cleaning up of which any
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or its German Subsidiaries could be held liable. Each of
the Companies has, however, with respect to the real estate and buildings
presently used by the Foreign Subsidiaries only to the best of Sellers'
knowledge, complied at all times and in all material respects with all
applicable environmental laws and regulations. No environmental claims
have been made or threatened to be made in connection with the business of
any of the Companies which could give rise to losses, damages, expenses or
liabilities. To the best of Sellers' knowledge all waste arising in the
course of the business of each of the Companies has been properly treated
and disposed of in accordance with applicable legislation and regulations.
(13) With the exception of the customary reservation of title of suppliers as
well as customary security rights of banks granted in the ordinary course
of business, each of the Companies has full and unrestricted title, or is
otherwise legally entitled to use, all assets, whether tangible or
intangible, which are material for their business as presently conducted.
With this reservation all assets owned by the Companies are free and clear
of any third party rights except as set forth in EXHIBIT 5.13 to this
Agreement. All of the fixed assets owned or used by the Companies are in
good operating condition, however, subject to normal wear and tear.
(14) To the best of Sellers' knowledge, none of the Companies has sold or
provided any product or service which does not in all material respects
comply with all applicable laws, regulations or contractual standards at
the time of delivery or performance (as the case may be), or which at the
time of delivery or performance (as the case may be) is or was not capable
of being efficiently and properly used for the purposes for which it was
produced and/or sold, or which is or was not in accordance with any
representation, guarantee or warranty, express or implied, given in
respect of it by the relevant Company which would expose the relevant
Company to any criminal or other sanction under law or contract or to any
liability. The amounts reserved for warranty obligations of ▇▇▇▇▇ ▇▇▇▇▇▇▇
AG and its Subsidiaries in the consolidated financial statements
referenced in para. 8 above are adequate according to GOB.
20
(15) ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and the German Subsidiaries own or are otherwise entitled
to use any and all Intellectual Property Rights which are material and
required to operate their business as presently conducted and to
manufacture, sell or otherwise provide any products or services for which
revenue is included in the forecast attached as Exhibit 5.10 to this
Agreement. "INTELLECTUAL PROPERTY RIGHTS" shall mean patents, patent
applications, trade marks, service marks, applications of the foregoing to
register, know-how and trade secrets. None of the Intellectual Property
Rights which is material and reasonable required to operate the business
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or the German Subsidiaries has lapsed, has been
abandoned or is subject to any pending opposition or cancellation
proceeding before any registration authority in any of the jurisdictions
listed in EXHIBIT 5.15 a) to this Agreement. To the best of Sellers'
knowledge, no third party is infringing on any of the Intellectual
Property Rights material and reasonable required to operate the business
of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or the German Subsidiaries, except as disclosed in
EXHIBIT 5.15 b) to this Agreement. None of the Intellectual Property
Rights used by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and the German Subsidiaries and none of
their products infringes on, and, except as disclosed in EXHIBIT 5.15 c)
to this Agreement, no third party has asserted that any such products or
activities infringe on, any material Intellectual Property Rights of any
third party. No claims have been made or threatened, and there is no basis
for any claims by employees or former employees of any of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG
and the German Subsidiaries under any statutory or contractual inventor
compensation provision, except for potential statutory claims of (actual
or former) employees listed in EXHIBIT 5.15 d) to this Agreement. Except
as disclosed in item 9 of Exhibit 5.16 a) to this Agreement, no licenses
have been granted to or by any of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and the German
Subsidiaries with respect to its Intellectual Property Rights. Each of the
employees listed in EXHIBIT 5.15 e) to this Agreement is bound to
confidentiality obligations and to assign any and all inventions to the
respective Company made in the course of his employment.
(16) The execution and consummation of this Agreement and the transactions
contemplated hereby do not violate any undertakings or obligations of any
of the Companies under a Material Agreement (as defined below) and does
not require the consent of any third party as a result of any undertaking
or obligation of any of the Companies under a Material Agreement. EXHIBIT
5.16 a) to this Agreement contains a complete and correct list of all
Material Agreements to which any of the Companies is a party to. None of
the Companies is in violation of or in default with any material
obligations under any of the
21
Material Agreements. None of the Material Agreements could be terminated
or could become terminable or create additional material obligations or
encumbrances of any of the Companies as a result of the transactions
contemplated by this Agreement. "MATERIAL AGREEMENTS" shall be those kind
of agreements described in EXHIBIT 5.16 b) to this Agreement. To the best
of Sellers' knowledge, none of the Companies' customers, suppliers or
employees will terminate or is likely to terminate or otherwise disrupt
the relationship with any of the Companies.
(17) All material public or private permits and licenses (including, without
limitation, all environmental licenses) required for the conduct and
continuance of the business of any of the Companies in the jurisdiction in
which they have their respective (registered) office and in the manner in
which such business has been carried out in the respective jurisdiction so
far have been properly obtained and are in full force and effect, and, to
the best of Sellers' knowledge, have been fully complied with in all
material respects, subject only to the general statutory right of any
governmental authority to revoke or restrict any such permits or licenses.
No revocation or restriction is pending or threatened nor, to the best of
Sellers' knowledge, are there any circumstances which indicate that any
such revocation or restriction will in whole or in part occur after the
date of this Agreement.
(18) To the best of Sellers' knowledge, all business equipment, installations
and buildings used by any of the Companies meet public safety and license
regulations. No judgments, orders or decisions have been served or
threatened which could result in further financial expenditures or
limitations and restrictions of the operations of any of the Companies.
(19) EXHIBIT 5.19 a) (i) to this Agreement contains a complete and correct list
of all bonuses and other payments payable by the Company or any of its
Subsidiaries to the management, employees, members of the supervisory
board or any other advisory body and/or advisors. EXHIBIT 5.19 a) (ii)
contains a complete and correct list of any bonuses or other payments with
respect to the 200-year anniversary of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG, which shall be
resolved and shall become payable by the respective Companies after the
implementation of the bonus schemes set forth therein pursuant to Section
9 below, and any costs and expenses with respect to the celebration of the
200-year anniversary of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG. EXHIBIT 5.19 b) to this
Agreement contains a complete and correct list of
22
all employees of the Companies as of the date of this Agreement, setting
forth their respective name, age, starting date of employment, annual
salary, any increase of any salary within the last twelve months,
additional benefits, and pension entitlements/obligations. Except as
disclosed in EXHIBIT 5.19 c) to this Agreement, the Companies are not
subject to any collective bargaining agreement (Tarifvertrag), be it
directly or by means of continuing effect (Nachwirkung), or any workers'
council agreement (Betriebsvereinbarung). The workers' council agreement
relative to RIWO-Drahtwerk is fully consummated and no further costs will
be incurred in connection therewith. Except as disclosed in EXHIBIT 5.19
d) to this Agreement there are no pension plans, old-age plans, health
insurance plans, arrangements for redundancy payments or similar
arrangements with employees or former employees in excess of any statutory
rights, except for tax advantageous direct insurances (steuerbegunstigte
Direktversicherung mit oder ohne Gehaltsumwandlung). The amounts reserved
in the consolidated financial statements of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG for the year
2003 are in full compliance with GOB. Except as stated below or in Exhibit
5.19 c) to this Agreement, none of the Companies is a member to an
employer's association (Arbeitgeberverband). ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG has
terminated its membership in the employer's association Nordmetall
effective as of September 8, 2003. Since October 1, 2003 ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG
is a member of the employer's association AGV Nord, Allgemeiner Verband
der Wirtschaft Norddeutschlands e.V. Such membership does not and will not
result in any of the Companies being subject to any collective bargaining
agreement (Tarifvertrag).
(20) EXHIBIT 5.20 to this Agreement contains a complete and correct list of all
insurance arrangements entered into with respect to any of the Companies
or their business.
(21) EXHIBIT 5.21 to this Agreement contains a complete and correct list of all
public grants and other public subsidies paid or agreed to be paid to, or
applied for by, any of the Companies. Neither of the Companies has done or
agreed to do anything which could result in a repayment of any public
subsidies. Except as disclosed in EXHIBIT 5.21 to this Agreement, none of
the transactions contemplated hereunder will or can result in such
repayment obligations.
(22) There is no labor strike or other work stoppage of employees of any of the
Companies currently in effect, and to the best knowledge of the Seller,
none is threatened.
23
(23) Except as disclosed in EXHIBIT 5.23 to this Agreement, there is no claim,
action, suit, or proceeding pending and, to the best knowledge of Sellers,
threatened, involving any of the Companies (including any governmental or
arbitration proceedings).
(24) EXHIBIT 5.24 to this Agreement contains a complete and correct list of all
bank accounts of all of the Companies including the persons authorized to
sign for them with respect to these bank accounts.
(25) EXHIBIT 5.25 to this Agreement contains a complete and correct list of all
powers of attorneys issued by any of the Companies which are currently in
force.
(26) All accounting records and systems and any other information technology
systems and related software used by any of the Companies are recorded,
stored, maintained or operated or otherwise held by the Companies and are
not, with the exception of communications systems, wholly or partly
dependent on any facilities or systems which are not under the exclusive
ownership or control of any of the Companies. All Companies are licensed
to use all software necessary to enable them to continue to use their
computerized records for the foreseeable future in the same manner in
which they had been used prior to the date of this Agreement.
(27) The Corporate Reorganizations have been prepared and consummated in
accordance with all applicable laws and do not result in any liabilities
(including tax liabilities not provided for in the financial statements as
of December 31, 2003) except for any tax liabilities, which are a result
of corporate reorganizations pursuant to UmwG or other measures made or
undertaken by the Purchaser after the Closing and which have a retroactive
effect (steuerliche Ruckwirkung).
(28) To the best of Sellers' knowledge, all material information relating to
the Companies and their businesses submitted to the Purchaser by the
Sellers or the Companies is true and correct and not misleading. To the
best of Seller's knowledge, the Sellers and the Companies have not
withheld any material information that a reasonable purchaser would need
to know. The Sellers are not aware of material facts or circumstances
which in the future could have a material adverse effect on any of the
Companies and their respective business operations with the exception of
general developments of the
24
economy, the markets, the volatility in the capital equipment sector and
unforeseen world events.
SECTION 6
LEGAL REMEDIES
(1) If one of the Sellers' guarantees in this Agreement is partially or wholly
incorrect or is not fulfilled, the Purchaser may demand that it be put in
the position in which it would be had the guarantee been correct or
fulfilled. The Purchaser may, however, only assert claims for damages if
it has previously requested on the Sellers in writing to establish the
guaranteed status within a reasonable period - one month at least - and if
such period has expired without the guaranteed status having been
established, unless the Sellers have rejected to establish the guaranteed
status or it is impossible to establish such status. If the Purchaser's
damage is that third parties assert or make a claim against one of the
Companies contrary to a guarantee, the Sellers may also comply with such
claim by undertaking to indemnify the affected Company.
(2) With regard to the guarantee pursuant to Section 5 para. 4 above, each
Seller shall be liable only for the respective ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares sold
by him or it. Any liability of the other Sellers shall be excluded to such
extent. With the exception of any liability of the Sellers under Section 7
below, for which Section 7 para. 6 below shall apply, the Sellers shall be
jointly and severally liable ("gesamtschuldnerische Haftung") only within
the amounts set forth in para. 5 below with regard to any other guarantees
provided for in this Agreement.
(3) The Purchaser may only claim damages from the Sellers on the basis of
violations of guarantees under this Agreement if the amount of such claims
exceeds Euro 500,000.00 in the aggregate, provided, however, that, the
foregoing threshold shall not apply for any violation of the guarantees
contained in Section 5 para. 4 and Section 5 para. 19 sentences 1 and 2
above. If the claims (individually or in the aggregate) exceed the minimum
amount of Euro 500,000.00, the Purchaser may claim for the full amount of
the loss (Freigrenze). In the event that any of the employees listed in
Exhibit 5.15 d) to this Agreement makes a claim under statutuory inventor
compensation provisions, the Sellers shall indemnify the Purchaser and/or
any of the Companies against such claim provided, however, that the
liability of the Sellers shall be limited to an amount of Euro 50,000.00
per
25
employee. For the avoidance of doubt it is clarified that
"double-recovery" is excluded. In particular the Purchaser shall have no
claim for damages if and to the extent that
a) ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG has made adequate provisions in the consolidated
financial statements for the year 2003 or the Transfer Financial
Statements (in the latter case, however, only to the extent that
such provisions had to be made in accordance with GOB and past
practice and (i) were also made in the consolidated financial
statements for the year 2003 or (ii) could not be made in the
consolidated financial statements for the year 2003 and the basis
for them has occurred in the ordinary course of business after
December 31, 2003 and - to the extent Sellers had actual knowledge
thereof - has been disclosed to the Purchaser prior to the execution
of this Agreement), or
b) insurance coverage repays Purchaser or the respective Company for
the loss incurred, in either case, for the guaranteed circumstances,
or
c) a breach of guarantee given or undertaken by the Sellers in this
Agreement at the same time results in a reduction of the
consolidated equity as per the Transfer Date under the amount as
guaranteed in Section 4 para. 3 above and has lead to a Purchase
Price Adjustment.
(4) Sections 442 BGB and 377 HGB shall not apply. In particular, any
Purchaser's claim can be made even if the Purchaser was aware, or could
have been aware, of the fact that a Sellers' guarantee was not correct.
However, the Purchaser and Novellus acknowledge to the Sellers that
neither of them nor their advisers have actual knowledge (free of any
doubt) that a Sellers' guarantee under this Agreement is incorrect or
misleading.
(5) The aggregate liability of the Sellers in respect of claims arising from a
violation of guarantees pursuant to Section 5 para. 1 to 7 above is
limited to the Aggregate Purchase Price or the Adjusted Aggregate Purchase
Price, as the case may be, however, subject to the proviso that the
individual maximum liability of each Seller shall be limited to that
portion of the Aggregate Purchase Price, or Adjusted Aggregate Purchase
Price, if applicable, which corresponds with the interest of such Seller
in ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG in accordance with the Sellers List. The aggregate
liability of the Sellers in respect of claims arising from a violation of
any other guarantee contained in Section 5 above is limited
26
to an amount equal to the Escrow Amount pursuant to Section 4 para. 4
above, however, subject to the proviso that the maximum aggregate
liability of the Sellers in respect of claims arising from a violation of
any other guarantee contained in Section 5 above and all other guarantees
or indemnities under this Agreement (except for guarantees pursuant to
Section 5 para. 1 to 7 above to which sentence 1 above applies) shall in
no event exceed an amount equal to 150 % of the Escrow Amount, i.e. Euro
18,675,000.00 (in words: eighteen million six hundred seventy five
thousand).
(6) To the extent legally permissible, any claims by the Purchaser against the
Sellers under this Section 6 in connection with Section 5 above shall be
barred as follows:
a) any claims resulting from an incorrect statement under Section 5
para. 11, 12, 13, 15, 19, 21, 23, or 27 above shall be barred after
three years after the Closing Date;
b) any claims resulting from an incorrect statement under Section 5
para. 1, 2, 3, 4, 5, 6, or 7 above shall be barred after ten years
after the Closing Date;
c) all other claims of the Purchaser against the Sellers under this
Agreement for breach of a guarantee in Section 5 above that are not
described in lit. a) and b) above shall become barred one year after
the Closing Date.
(7) The aforementioned limitation periods shall be suspended (gehemmt) if the
Purchaser informs the Sellers in writing within the limitation period that
it will assert a claim and thereby, to the extent possible, states the
amount of the claim (or an estimate thereof) and briefly sets out the
reasons for the claim, provided that the Purchaser, within a further
period of six months after the sending of such written notification,
brings an action or takes other measures pursuant to Sections 203 and/or
204 BGB that suspends the running of the limitation period.
(8) Unless expressly stated otherwise, any liability under this Section 6 in
connection with any incorrect statement under Section 5 above shall not
require any knowledge and/or any fault on the side of any of the Sellers.
(9) If any of the statements under Section 5 above are subject to the "best
knowledge of Sellers", the actual knowledge of any of the Sellers or any
of the management (Vorstand) of
27
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG or the ignorance due to gross negligence ("▇▇▇▇▇▇
▇▇▇▇▇▇") of any of such persons shall be, within the limits of para. 5
above, relevant. In any event, best knowledge of the management of ▇▇▇▇▇
▇▇▇▇▇▇▇ AG includes such knowledge which the management could have
obtained by applying the standard of care of a careful and diligent
business man (Sorgfalt eines ordentlichen und gewissenhaften
Geschaftsleiters) within the meaning of Section 93 para. 1 sentence 1
AktG.
(10) Any claims of the Purchaser against the Sellers under this Agreement or by
law - whatever their legal grounds may be - which go beyond the
obligations and guarantees of the Sellers contained in this Agreement are
excluded unless liability is mandatory by law or the Sellers acted with
intent or gross negligence. Save for the provision set out in Section 4
above, claims on the part of the Purchaser for a reduction of the purchase
price or rescission as a result of avoidance due to error or withdrawal
from the Agreement are expressly excluded. The aforementioned guarantees
of the Sellers are the final and exclusive representations and warranties
under this Agreement and no further representations or warranties have
been provided by the Sellers. The Sellers shall assume no further
guarantees beyond those in this Agreement. In particular the Sellers shall
assume no liability for a given value or profitability of the Sellers
Shares. No guarantee is made as to the future performance of the Companies
or to any financial projection provided to the Purchaser, except as
contained in the last sentence of Section 5 para. 10 above.
(11) According to the mutual understanding and joint intent of the Purchaser
and the Sellers the guarantees of the Sellers under this Agreement shall
not be regarded as a guarantee of a certain condition or quality
("Beschaffenheitsgarantie") within the meaning of Section 444 BGB but are
exclusively granted and limited upon an agreement between the parties
according to Section 311 para. 1 BGB.
28
SECTION 7
TAXES
(1) In addition to the guarantees contained in Section 5 above, the Sellers
hereby guarantee to the Purchaser by means of an independent guarantee
(selbststandiges Garantieversprechen) within the meaning of Section 311
para. 1 BGB that the following statements are correct:
a) All returns relating to taxes including any employee withholding
taxes (einzubehaltene Lohnsteuer), social security contributions,
duties, public charges and levies of all kinds (hereinafter referred
to as "TAXES AND OTHER CHARGES") relating to periods ending on or
before the Closing Date which are required to have been filed by or
with respect to any of the Companies have been duly and timely filed
on or prior to the due date and all Taxes and Other Charges shown to
be due on such returns for which any of the Companies is liable have
been timely paid.
b) To the best of Sellers' knowledge, EXHIBIT 7.1 b) to this Agreement
contains a correct description of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG's corporation tax
credit (Korperschaftsteuerguthaben) and the tax losses (steuerliche
Verlustvortrage) of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG as of
December 31, 2003, respectively.
c) Except as disclosed in EXHIBIT 7.1 c) (i) to this Agreement, there
is no action, suit or investigation, claim or assessment pending or,
to the best knowledge of the Sellers, threatened with respect to
Taxes and Other Charges relating to any of the Companies. EXHIBIT
7.1 c) (ii) to this Agreement contains a complete and correct list
of the last tax audits performed with respect to ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG
and its German Subsidiaries. Except as disclosed in EXHIBIT 7.1 c)
(iii) to this Agreement, none of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its German
Subsidiaries has received any written ruling (verbindliche Auskunft)
regarding Taxes and Other Charges or entered into any written and
legally binding agreement or is currently under negotiations to
enter into any such agreement with any authority which would affect
its situation with respect to Taxes and Other Charges. Section 6
para. 1 above applies mutatis mutandis.
29
(2) Notwithstanding Sections 5 and 6 and para. 1 above, and in addition
thereto, the Sellers shall indemnify (freistellen) the Purchaser and/or
any of the Companies from any and all outstanding Taxes and Other Charges
(including delinquency payments, interests, surcharges on delay and
administrative fines and similar additions as well as any taxes, costs and
expenses associated therewith) relating to any periods ending on or before
December 31, 2003 for which any of the Companies is made liable, if, to
the extent and at the time any of the Companies is obliged to pay such
Taxes and Other Charges, irrespective whether such Taxes and Other Charges
are known or unknown as of the Closing. The same shall apply with respect
to constructive dividend distributions (verdeckte Gewinnausschuttungen)
occuring in or resulting from the period between December 31, 2003 and the
Closing Date. The Sellers, however, grant neither a guarantee nor an
indemnity to the Purchaser and/or the Companies with regard to the tax
treatment of the post Closing bonus payments and payment of other amounts
pursuant to Section 9 below.
Accruals made for Taxes and Other Charges in the financial statements for
the year 2003 referenced in Section 5 para. 8 above as well as any tax
relief or other advantage in the same or the subsequent fiscal years
realized as a consequence of such Taxes and Other Charges to be
indemnified against shall be credited against such liabilities by the net
present value of such tax relief or advantage, provided however that the
net present value shall be computed at a discount rate of 5 % p.a. The
same shall apply to any refunds or reduction of taxes with respect to
assessment periods up to the Closing which are not included in the
financial statements for the year 2003 referenced in Section 5 para. 8
above.
(3) Any claims under para. 1 and/or 2 above shall become barred after the
expiration of six months after the relevant assessment for the relevant
Taxes and Other Charges and the relevant period or such other assessment
or order or decision has become final and non-appealable. Section 6 para.
7 above applies mutatis mutandis to these claims.
(4) For the avoidance of doubt, it is expressly agreed that Section 6 para. 3
sentences 1 and 2 and para. 5 above do not apply, whereas Section 6 para.
3 sentences 3 and 4 and para. 4, para. 8, 9, 10 and 11 above do apply
mutatis mutandis to any claims under para. 1 and/or 2 above.
30
(5) The aggregate liability of the Sellers in respect of any claims pursuant
to this Section 7 is limited to an amount equal to the Escrow Amount
pursuant to Section 4 para. 4 above, however, subject to the proviso that,
with the exception of the maximum liability of the Sellers in respect of
claims arising from a violation of any guarantees contained in Section 5
para. 1 to 7 above, for which Section 6 para. 5 sentence 1 above shall
apply, the maximum aggregate liability of the Sellers in respect of claims
arising from a violation of this Section 7 and all other guarantees and
indemnities under this Agreement shall in no event exceed an amount equal
to 150 % of the Escrow Amount, i.e. Euro 18,675,000.00 (in words: eighteen
million six hundred seventy-five thousand).
(6) With regard to the guarantees pursuant to para. 1 above and the indemnity
obligations pursuant to para. 2 above the Sellers shall be jointly and
severally liable ("gesamtschuldnerische Haftung") only within the amounts
as set forth in para. 5 above.
(7) The parties will cooperate and use their respective best efforts to ensure
that, as soon as possible after the date of this Agreement, separate tax
audits of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its German Subsidiaries shall take place
covering the period up to December 31, 2003. The Purchaser shall inform
the Sellers in writing immediately about any tax audits, any
correspondence or other contacts with the tax authorities relating to the
period until and including the Closing Date. Any tax audits,
correspondence or other contacts with the tax authorities shall be
prepared and conducted by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and each of its German
Subsidiaries, as the case may be, giving full access to the Sellers and/or
their advisors (including, but not limited to legal and tax advisors) to
participate in such tax audits and to challenge (following consultation
with the Purchaser as to the form and content of such challenge and taking
into account the Purchaser's reasonable interests) any findings and/or
assessments of the tax authorities, which relate to the time up to
December 31, 2004 and which could result in any Sellers' liability. The
Purchaser shall also procure that, to the extent legally permissible, the
tax returns of the Companies for the fiscal year 2004 are made consistent
with prior tax returns. All items of the tax balance sheet shall be agreed
upon between the Purchaser and the Sellers to the extent they might affect
Sellers' position under this Agreement.
Until any of the Companies has received an assessment notice or after it
has received an assessment notice pursuant to which, would it become
non-appealable (bestandskraftig), the Purchaser would have a claim against
the Sellers under this Agreement,
31
a) any agreements and understandings with the tax authorities shall be
agreed upon between the Purchaser and the Sellers. Should the
Purchaser and the Sellers not be able to reach such agreement within
a reasonable time period, the respective Company and/or the
Purchaser shall take such action (Einspruch und/oder Klage), which
is reasonably requested by the Sellers to challenge the tax
assessments. The Purchaser shall provide and shall procure that the
respective Company provides such information as is reasonably
requested by the Sellers for this purpose;
b) the Purchaser shall procure that the respective Company shall take
such action as the Sellers may reasonably request by notice in
writing to the Purchaser to avoid, dispute, defend, resist, appeal
or compromise any Tax or Other Charges claim (hereinafter referred
to as "TAX DISPUTE") and in case the Sellers give such notice
(i) the Purchaser shall procure that the Tax Dispute is not
settled or otherwise compromised without the Sellers' prior
written consent, and
(ii) the Purchaser shall provide and procure that the respective
Company provides such information as is reasonably requested
by the Sellers for this purpose.
The costs of any such legal proceedings and actions shall be borne
and advanced by the Sellers provided that such tax assessment gave
cause for such a request by the Sellers.
c) Any breach of the obligations of the Purchaser set forth in this
para. 7 shall exclude any claims of the Purchaser against the
Sellers pursuant to this Section 7 with respect to the issue in
relation to which the breach was committed to the extent the breach
has adversely affected Sellers' position under this Agreement.
(8) If tax assessments, in particular as a consequence of tax audits, lead to
a change in tax valuations in the balance sheet of any of the Companies
for assessment periods up to December 31, 2003, this shall have no
influence on the Aggregate Purchase Price pursuant to Section 4 above.
32
SECTION 8
CONDUCT OF BUSINESS PENDING THE CLOSING DATE
The Sellers hereby agree to procure that, pending the Closing Date and except as
otherwise agreed by the Purchaser in writing, the following will take place:
(1) The Companies will carry on their business diligently and substantially in
the same manner as presently conducted. They shall not institute any new
methods of management, accounting or operation or engage in any
transaction or activity, enter into any agreement or make any commitment
except in the ordinary course of business and consistent with past
practice.
(2) The Companies will conduct their business in a way that the statements
contained in Section 5 above are correct as of the Closing Date, save for
any changes or deviations which are the result of the continuing business
operations in the ordinary course of business.
(3) Neither will the Sellers cast their vote to pass a dividend resolution of
▇▇▇▇▇ ▇▇▇▇▇▇▇ AG nor will ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG pay any dividends to its
shareholders other than dividends set forth in Section 5 para. 10 above.
(4) KPMG as advisors will continue to assist ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG to reconcile its
results for future US reporting purposes as consolidated statements under
US generally accepted accounting principles (US-GAAP) for the calendar
year 2003, for each of the calendar quarters of the year 2003 and for the
first calendar quarter of 2004.
SECTION 9
POST-CLOSING BONUS PAYMENTS, DIVIDENDS AND OTHER AMOUNTS
(1) Following the Closing, Novellus and the Purchaser shall procure that the
Companies timely and fully pay those bonuses, payments and other expenses
set forth in Exhibit 5.19 a) (i) to this Agreement (relating to bonus
payments to be made by the Company or ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG, as the case may
be, to the management) and Exhibit 5.19 a) (ii) to this Agreement
(relating to the bonus schemes for employees of the Companies with respect
to the 200-year anniversary of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG) in amounts set forth
therein. Novellus and the Purchaser shall procure that the Companies adopt
the resolutions and
33
take all measures which are necessary to make the bonus payments to the
management as set forth in Exhibit 5.19 a) (i) to this Agreement and to
implement the bonus schemes to employees of the Companies as set forth in
Exhibit 5.19 a) (ii) to this Agreement. The parties agree that - with the
exception of the bonus payments to the management set forth in Exhibit
5.19 a) (i) to this Agreement, for which a corresponding reserve
(Ruckstellung) in the same amount shall be made - with respect to the
bonuses, payments and other expenses as set forth in Exhibit 5.19 a) (ii)
to this Agreement neither a corresponding reserve shall be made nor any
liability shall be shown in the Transfer Financial Statements.
(2) For the avoidance of doubt, it is expressly agreed that the dividend
payments in the aggregate amount of Euro 1,120,000.00 made by the Company
to the Sellers prior to the date of this Agreement pursuant to a
shareholders resolution dated May 26, 2004 shall be taken into account as
liability in the Transfer Financial Statements.
SECTION 10
CLOSING
(1) On June 28, 2004, or on such other date as may be mutually agreed upon in
writing by the Sellers and the Purchaser (herein also referred to as the
"CLOSING DATE"), the consummation of the transactions contemplated hereby
(herein also referred to as the "CLOSING") shall occur at the offices of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ located at ▇▇▇▇▇ ▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
of Germany, or at such other place as may be mutually agreed upon in
writing by the Sellers and the Purchaser.
(2) At the Closing, the following acts shall take place concurrently:
a) Execution of a transfer agreement on the Sellers Shares as per
Exhibit 3.1 to this Agreement and delivery of the global share
certificates for all ▇▇▇▇▇ ▇▇▇▇▇▇ Shares from the Sellers to the
Purchaser;
b) Payment by the Purchaser of the Aggregate Purchase Price in cash to
the Sellers pursuant to Section 4 above and subject to lit. c)
below;
34
c) Payment by the Purchaser of the Escrow Amount to the escrow agents
specified in the Escrow Agreement.
d) Hand-over by the Sellers of letters of Messrs. ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇, ▇.
▇▇▇▇▇▇▇▇, ▇. ▇▇▇▇▇▇, ▇. ▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇ containing their
resignation from office as members of the supervisory board of ▇▇▇▇▇
▇▇▇▇▇▇▇ AG to the Purchaser;
e) Delivery of a written statement of release by the creditor regarding
the share pledges as listed in Exhibit 5.4 to this Agreement to the
Purchaser.
f) Delivery of a written statement of release by Deutsche Bank AG
regarding securities granted by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG in favor of Seller
1 and delivery of evidence that the accounting by ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG
for Seller 1 shall be terminated as per December 31, 2004 and that
▇▇. ▇.▇. ▇▇▇▇▇▇▇▇▇▇▇'▇ right to a company car has terminated at the
Closing at the latest without any further obligations of any of the
Companies.
(3) At the end of the Closing session the parties shall mutually confirm to
each other in writing if and when the acts to be carried out during the
Closing have been performed.
(4) Immediately after the Closing, the Purchaser shall hold an extraordinary
shareholder meeting of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG in which the election of the new
members of the supervisory board of ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG (to be nominated by
the Purchaser) shall be resolved.
(5) For purposes of this Agreement, the Sellers represent and guarantee to the
Purchaser and Novellus that ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG and its Subsidiaries did not
have consolidated sales in Germany within the meaning of Section 35 para.
1 no. 2 of the German Act against Competition Restraints (Gesetz gegen
Wettbewerbsbeschrankungen - GWB; hereinafter also referred to as "GWB") in
the year 2003 in excess of Euro 25,000,000.00. For purposes of this
Agreement, the Purchaser and Novellus represent and guarantee to the
Sellers that Novellus and its subsidiaries did not have consolidated sales
in Germany within the meaning of Section 35 para.1 no. 2 GWB in the year
2003 in excess of Euro 25,000,000.00. On this basis, the parties agree
that the transactions contemplated hereby do not require notification of
the German Federal Cartel Office (Bundeskartellamt) and
35
that their consummation at the Closing does not violate Section 41 para. 1
sentence 1 GWB. For purposes of this Agreement, the Sellers furthermore
represent and guarantee to the Purchaser and Novellus that ▇▇▇▇▇ ▇▇▇▇▇▇▇
AG and its subsidiaries did not have consolidated sales in or into the
United States of America in the year 2003 in excess of US-$ 50,000,000.00
and do not have assets in the United States of America in excess of US-$
50,000,000.00. On this basis, the parties agree that the transactions
contemplated hereby do not require any filings under the Hard-▇▇▇▇▇-▇▇▇▇▇▇
Act of the United States of America and that their consummation at the
Closing does not violate any applicable US federal or state antitrust
laws.
SECTION 11
NON-COMPETITION AND OTHER COVENANTS OF SELLERS AND PURCHASER
(1) For a period of two years following the Closing Date, neither of the
Sellers shall compete with any of the Companies in their present business
and their present regional markets, neither directly nor indirectly nor by
acting as a consultant or holding an interest, directly or indirectly, in
any company which competes with any of the Companies. In case of violation
of this non-compete obligation, any Seller which is in breach of such
obligation shall pay, upon request, a contractual penalty (Vertragsstrafe)
in the amount of Euro 200,000.00 to the Purchaser for each and every
violation. Any violation for a period of more than four weeks shall be
deemed for purposes of this provision to be a separate violation. The
right to claim damages, to file a petition for a preliminary injunction
and any other rights of the Purchaser shall remain unaffected. Any purely
financial investment of the Sellers in publicly listed companies which
does not exceed a participation of 2 % of the registered (issued) share
capital of such company shall be exempt from this non-competition
covenant.
(2) Except as required by law or by any governmental or other regulatory or
supervisory body or authority of competent jurisdiction to whose rules the
party making the announcement or disclosure is subject, whether or not
having the force of law, no announcement or circular or disclosure in
connection with the existence or subject matter of this Agreement shall be
made or issued by or on behalf of any of the Sellers or the Purchaser
without the prior written approval of the Purchaser and the Sellers
Representative, such approval not to be unreasonably withheld or delayed.
36
(3) Novellus and the Purchaser intend to, but are in no way bound to, make an
election under Section 338 of the Internal Revenue Code of the United
States of America with respect to the purchase of the ▇▇▇▇▇ ▇▇▇▇▇▇▇ Shares
as well as for its non-U.S. subsidiaries.
SECTION 12
SELLERS REPRESENTATIVE, PURCHASER'S AND NOVELLUS' PROCESS AGENT
(1) The Sellers hereby irrevocably appoint Seller 1 as their representative
(herein also referred to as "SELLERS REPRESENTATIVE") for all matters in
connection with this Agreement.
(2) The Sellers Representative is hereby irrevocably authorized by any and all
Sellers to act as their representative for all matters under or in
connection with this Agreement (including the Escrow Agreement). As such
representative, Sellers Representative is entitled to make and receive any
and all binding statements and commitments and to enter into any and all
agreements which it deems to be reasonable. In case of a legal dispute in
connection with this Agreement (including the Escrow Agreement) the
Sellers Representative shall act as process agent (rechtsgeschaftlich
bestellter Vertreter) of the Sellers within the meaning of Sections 171,
174 of the German Code of Civil Procedure (Zivilprozessordnung - ZPO;
hereinafter also referred to as "ZPO"). Any conflicting acts or statements
by any of the Sellers shall be of no effect in the relationship to the
Purchaser.
(3) The Purchaser and Novellus each hereby irrevocably appoint their German
counsel in this transaction, the Partnerschaft Flick ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇ - 4, 53175 Bonn, to act as their respective
process agent (rechtsgeschaftlich bestellter Vertreter) within the meaning
of Sections 171, 174 ZPO in case of a legal dispute in connection with
this Agreement (including the Escrow Agreement).
37
SECTION 13
NOTICES
(1) Unless agreed to otherwise in this Agreement, any notices under or in
connection with this Agreement, in order to be valid, shall be in writing
in the English language and addressed to:
a) If to Purchaser and/or Novellus:
▇▇▇▇▇▇▇ 34 Vermogensverwaltungs GmbH
(to be renamed NHL Acquisition Sub GmbH)
if before Closing:
▇▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇(▇▇▇▇)▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇-▇▇▇
if after Closing:
Busumer ▇▇▇▇(▇▇▇▇)▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
and
Chief Financial Officer
Novellus Systems, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇ 3448
with a copy (for information purposes only) to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇
38
and
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
FLICK ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇-Stra(beta)e 2-4
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇-▇▇▇▇-▇▇▇
b) If to Sellers:
Sellers Representative
▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung,
if before Closing:
Busumer ▇▇▇▇(▇▇▇▇)▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
if after Closing:
▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇▇▇
with a copy (for information purposes only) to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇-▇▇▇▇▇-▇▇▇
and
▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Vermogensverwaltungsgesellschaft mbH
▇▇▇▇▇▇▇▇▇(▇▇▇▇)▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ of Germany
Fax: ▇▇▇▇-▇▇▇▇-▇▇▇-▇▇▇
39
(2) The Purchaser and the Sellers may designate other addressees by sending a
notice in accordance with this Agreement to the other parties'
representative, provided, however, that the Sellers can only designate one
representative for all Sellers and, provided further, for the avoidance of
doubt, that the Sellers and the Purchaser may not exchange their Sellers
Representative, respectively, their process agent as specified in Section
12 para. 1, 2 and 3 without prior written consent of the Purchaser or the
Sellers Representative, as the case may be, which consent shall not be
unreasonably withheld.
(3) If this Agreement requires a notice or agreement in writing, the sending
or exchange of documents by telefacsimile copy shall suffice. Any other
means of transmission, in particular any electronic mail, do not suffice.
SECTION 14
MISCELLANEOUS PROVISIONS
(1) This Agreement (including the attached Exhibits) constitutes the entire
Agreement and supersedes all other prior agreements and undertakings both
written and oral among the parties with respect to the subject matter
hereof. Any changes and amendments to this Agreement (including this
sentence 2 of this para. 1) shall be in writing in order to be legally
effective. Notwithstanding the foregoing, the provisions of the
Non-Disclosure Agreement between the parties hereto dated January 13, 2004
shall apply as if set forth herein in full length.
(2) Each party shall bear its own costs and expenses including, without
limitation, its attorneys' fees. None of the costs allocable to the
Sellers shall be borne by any of the Companies. The Sellers shall bear any
and all cost resulting from their or any of the Company's engagement of
any finder, investment bank or similar agent relative to the purchase of
any or all of the Sellers Shares or to the business of any or all of the
Companies. If any such cost or fees have been borne by any of the
Companies, the Sellers shall promptly reimburse the respective Companies.
Any amounts that have not been reimbursed on or prior to the Closing shall
entitle the Purchaser to withhold such amounts out of the respective
Sellers Share in the Aggregate Purchase Price. Any transfer taxes shall be
borne by the Purchaser.
40
(3) Unless expressly stated otherwise in this Agreement, the Sellers shall not
be jointly and severally liable (Gesamtschuldner) for any and all
obligations of the Sellers under or in connection with this Agreement.
(4) This Agreement shall be governed by the substantive laws of the Federal
Republic of Germany.
(5) To the extent legally permissible, the exclusive place of jurisdiction
(ausschlie(beta)licher Gerichtsstand) for any and all claims arising out
of or in connection with this Agreement shall be Hamburg, Federal Republic
of Germany.
(6) If any provision of this Agreement shall be or become invalid or
unenforceable, the validity and enforceability of the remaining provisions
of this Agreement shall remain unaffected. The invalid or unenforceable
provision shall be deemed to be replaced by a valid and enforceable
provision which, to the extent legally permissible, comes as close as
possible to what the parties intended or would have intended if they had
been aware of the invalidity or unenforceability. The same shall apply in
the event that this Agreement contains a gap.
(7) This Agreement has been executed in an official English language version
and an official German language version, each in 7 counterparts, all of
which shall be one and the same instrument, and each of such counterparts
shall have full force and effect. In case of a dispute on the accuracy of
the translation the English language version shall prevail.
Rendsburg, June 2, 2004
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ 34 Vermogensverwaltungs GmbH,
represented by ▇▇▇▇▇ ▇. ▇▇▇▇▇
41
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Novellus Systems Inc.,
represented by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen
▇▇▇▇▇ ▇▇▇▇▇▇▇ Stiftung,
represented by ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Eider Vermogensverwaltungsgesellschaft mbH,
represented by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, born Bovensiepen
/s/ ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen
Bovensiepen Vermogensverwaltungsgesellschaft mbH,
represented by ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen,
pursuant to certified power of attorney dated May 26, 2004,
copy of which is attached to this Agreement
/s/ ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen
ROMERHOF Vermogensverwaltungsgesellschaft mbH,
represented by ▇▇▇▇-▇▇▇▇▇▇▇ Bovensiepen,
pursuant to power of attorney dated May 26, 2004,
copy of which is attached to this Agreement
/s/ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ Vermogensverwaltungsgesellschaft mbH,
represented by ▇▇▇ ▇▇▇▇▇▇
42
LIST OF EXHIBITS
EXHIBIT 1.1: GLOBAL SHARE CERTIFICATES
EXHIBIT 1.2: SELLERS LIST
EXHIBIT 3.1: TRANSFER AGREEMENT
EXHIBIT 4.2: ACCOUNT OF ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AS TRUSTEE FOR SELLERS
EXHIBIT 4.4: ESCROW AGREEMENT
EXHIBIT 5.2 a): STATUTES AND OTHER CORPORATE DOCUMENTS
EXHIBIT 5.2 b): EXCERPTS FROM THE REGISTERS OR EQUIVALENT DOCUMENTATION
EXHIBIT 5.4 SHARE PLEDGES
EXHIBIT 5.6: ENTERPRISE AGREEMENTS
EXHIBIT 5.8: FINANCIAL STATEMENTS AND CONSOLIDATED FINANCIAL
STATEMENTS 2002 AND 2003
EXHIBIT 5.10: FORECAST
EXHIBIT 5.11: LIST OF ALL GUARANTEES ETC.
EXHIBIT 5.12: LIST OF REAL ESTATE OWNED OR USED BY THE COMPANIES
EXHIBIT 5.13: LIST OF THIRD-PARTY RIGHTS IN ANY ASSETS OF THE COMPANIES
43
EXHIBIT 5.15 a): LIST OF JURISDICTIONS FOR PURPOSES OF INTELLECTUAL
PROPERTY RIGHTS
EXHIBIT 5.15 b): INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS BY THIRD
PARTIES
EXHIBIT 5.15 c): INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS ASSERTED BY
THIRD PARTIES
EXHIBIT 5.15 d): BASIS FOR CLAIMS BY EMPLOYEES OR FORMER EMPLOYEES
REGARDING INVENTOR COMPENSATION
EXHIBIT 5.15 e): LIST OF EMPLOYEES FOR PURPOSES OF INTELLECTUAL PROPERTY
RIGHTS
EXHIBIT 5.16 a): MATERIAL AGREEMENTS
EXHIBIT 5.16 b): DEFINITIONS OF MATERIAL AGREEMENTS
EXHIBIT 5.19 a) (i): BONUSES TO THE MANAGEMENT.
EXHIBIT 5.19 a) (ii): BONUSES AND OTHER PAYMENTS WITH RESPECT TO THE 200-YEAR
ANNIVERSARY
EXHIBIT 5.19 b): LIST OF ALL EMPLOYEES AND RELEVANT DATA
EXHIBIT 5.19 c): COLLECTIVE BARGAINING AGREEMENTS/WORKERS' COUNCIL
AGREEMENTS/MEMBERSHIPS IN EMPLOYER'S ASSOCIATIONS
EXHIBIT 5.19 d): PENSION PLANS ETC.
EXHIBIT 5.20: LIST OF ALL INSURANCES
EXHIBIT 5.21: LIST OF ALL PUBLIC GRANTS AND OTHER SUBSIDIES
44
EXHIBIT 5.23: LIST OF ALL PROCEEDINGS
EXHIBIT 5.24: LIST OF ALL BANK ACCOUNTS WITH SIGNATORIES
EXHIBIT 5.25: LIST OF ALL POWERS OF ATTORNEY
EXHIBIT 7.1 b): LIST OF ▇▇▇▇▇ ▇▇▇▇▇▇▇ AG'S AND ▇▇▇▇▇ ▇▇▇▇▇▇▇ KG'S TAX
CREDITS AND TAX LOSSES
EXHIBIT 7.1 c (i)): LIST OF PROCEEDINGS REGARDING TAXES AND OTHER CHARGES
EXHIBIT 7.1 c (ii): LIST OF TAX AUDITS
EXHIBIT 7.1 c) (iii): LIST OF RULINGS, AGREEMENTS AND NEGOTIATIONS REGARDING
TAXES AND OTHER CHARGES
*****
NOVELLUS SYSTEMS, INC. AGREES TO FURNISH SUPPLEMENTALLY A COPY OF THE ABOVE
EXHIBITS, WHICH HAVE BEEN OMITTED PURSUANT TO ITEM 601(b)(2) OF REGULATION S-K
UNDER THE SECURITIES EXCHANGE ACT OF 1934, TO THE SECURITIES AND EXCHANGE
COMMISSION (THE "COMMISSION") UPON REQUEST OF THE COMMISSION.
45