SALE AND PURCHASE AND TRANSFER AGREEMENT –B
|
Exhibit 10.1
|
|
SALE AND PURCHASE AND TRANSFER AGREEMENT - B
|
|
REGARDING THE SALE AND PURCHASE AND TRANSFER OF A PARTNERSHIP INTEREST IN ▇▇▇▇▇▇▇▇▇▇ GMBH + CO. KG
|
|
MARCH 29, 2011
|
|
0088098-0000002 FR:7615098.1
|
||
by and among
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
(hereinafter referred to as the "Seller"),
▇▇▇▇▇▇▇▇ International Holding GmbH,
▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
(hereinafter referred to as the "Purchaser "),
▇▇▇▇▇▇▇▇ International Corporation,
▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇,
(hereinafter referred to as the "Guarantor"),
The Seller, the Purchaser and the Guarantor hereinafter collectively referred to as the "Parties" and each of them as a "Party",
▇▇▇▇▇▇▇▇▇▇ GmbH + Co. KG,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
(hereinafter referred to as the "Company"),
and
▇▇▇▇▇▇▇▇▇▇ Geschäftsführungsgesellschaft mbH,
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
(hereinafter referred to as the "General Partner").
|
0088098-0000002 FR:7615098.1
|
|
|
2
CONTENTS
Clause Page
|
1.
|
CORPORATE OWNERSHIP / STRUCTURE OF THE ACQUISITION
|
6
|
|
|
1.1
|
Particulars of the Company
|
6
|
|
|
1.2
|
Partnership Capital of the Company
|
6
|
|
|
1.3
|
Seller’s Accounts
|
6
|
|
|
1.4
|
Signing Date; Effective Date
|
7
|
|
2.
|
SALE AND PURCHASE AND TRANSFER OF THE PARTNERSHIP INTEREST AND OF THE SELLER'S LOAN AND PRIVATE ACCOUNTS
|
7
|
|
|
2.1
|
Sale and Purchase of the Partnership Interest
|
7
|
|
|
2.2
|
Sale and Purchase of the Seller's Loan and Private Accounts
|
7
|
|
|
2.3
|
Transfer of Partnership Interest and of Seller's Loan and Private Accounts
|
7
|
|
|
2.4
|
Approval of Shareholders
|
8
|
|
3.
|
PURCHASE PRICE; SELLER'S LOAN AND PRIVATE ACCOUNTS PURCHASE PRICE; CONDITIONS OF PAYMENT; BANK GUARANTEE
|
9
|
|
|
3.1
|
Purchase Price; Seller's Loan and Private Accounts Purchase Price
|
9
|
|
|
3.2
|
Due Date; Seller's Account; Company's Account
|
9
|
|
|
3.3
|
Default
|
10
|
|
|
3.4
|
No Right to Set-Off or to Withhold
|
10
|
|
|
3.5
|
Bank Guarantee and Assignment by way of Security
|
10
|
|
4.
|
CANCELLED
|
11
|
|
5.
|
SELLER’S GUARANTEES
|
11
|
|
6.
|
COVENANTS
|
12
|
|
|
6.1
|
Signing Covenants
|
12
|
|
|
6.2
|
After-Signing Covenants
|
12
|
|
|
6.3
|
Covenant not to Compete
|
13
|
|
7.
|
GUARANTOR'S GUARANTEE
|
14
|
|
8.
|
TAXES AND COSTS
|
14
|
|
|
8.1
|
Taxes on Earnings
|
14
|
|
|
8.2
|
Transfer Taxes
|
14
|
|
|
8.3
|
Value Added Tax
|
14
|
|
|
8.4
|
Costs and Fees
|
14
|
|
9.
|
NOTICES
|
14
|
|
|
9.1
|
Form of Notice
|
14
|
|
|
9.2
|
Notices to Seller
|
15
|
|
|
9.3
|
Notices to Purchaser
|
15
|
|
|
9.4
|
Notices to Guarantor
|
15
|
|
|
9.5
|
Change of Address
|
16
|
|
|
9.6
|
Copies to Advisors
|
16
|
|
10.
|
MISCELLANEOUS
|
16
|
|
|
10.1
|
Governing Law
|
16
|
|
|
10.2
|
Arbitration
|
16
|
|
|
10.3
|
Business Day
|
17
|
|
|
10.4
|
Amendments, Supplementations
|
17
|
|
|
10.5
|
Language
|
17
|
|
|
10.6
|
Headings
|
17
|
|
|
10.7
|
Annexes
|
17
|
|
|
10.8
|
Entire Agreement; Termination of Option Agreement; Replacement of SPA-A; Settlement
|
17
|
|
|
10.9
|
Severability
|
18
|
|
0088098-0000002 FR:7615098.1
|
|
|
3
INDEX OF ANNEXES
|
Annex 2.3(a)
|
Copy of the already signed filing of the assignment of the Partnership Interest with the Commercial Register
|
|
Annex 2.4
|
Copy of the already signed Shareholders’ approval resolution
|
|
Annex 3.5 (a)
|
Declaration of confirmation by Citizens Bank with regard to the Bank Guarantee
|
|
Annex 3.5 (b)
|
Bank Guarantee
|
|
Annex 6.1(a)
|
Amendment Agreement to the Sale and Purchase and Transfer Agreement between the Company (as seller) and the Seller (as purchaser) regarding the sale and purchase and transfer of a partnership interest in ▇▇▇▇▇▇ GmbH & Co. KG
|
|
Annex 6.1(b)
|
Termination Agreement to the service agreement of the Seller as managing director of the General Partner between the General Partner, the Seller and the Company
|
|
Annex 6.1(c)
|
Termination Agreement to the Commission Agreement between the Seller and the Company relating to McAirlaids' potential purchase orders
|
|
Annex 6.1(d)
|
Resolution of the Company
|
|
Annex 6.1(e)
|
Resolution of the General Partner
|
|
0088098-0000002 FR:7615098.1
|
|
|
4
PREAMBLE
WHEREAS, the Seller and the Purchaser are registered with the Commercial Register of the Lower Court (Amtsgericht) at Coesfeld as sole limited partners (Kommanditisten) of ▇▇▇▇▇▇▇▇▇▇ GmbH + Co. KG (hereinafter referred to as the "Company"), with the Seller holding 22 per cent and with the Purchaser holding 78 per cent of the fixed partnership interests (Kommanditanteile) in the registered partnership capital of the Company, and the Company is the sole shareholder of its sole general partner (Komplementär) ▇▇▇▇▇▇▇▇▇▇ Geschäftsführungsgesellschaft mbH (hereinafter referred to as the "General Partner") which has no fixed partnership interest in the registered partnership capital of the Company;
WHEREAS, the Seller is also engaged as managing director of the General Partner and therefore of the Company;
WHEREAS, the Purchaser, a limited liability company duly organized under the laws of Germany, is an indirectly wholly-owned subsidiary of the Guarantor, a company duly organized under the laws of Pennsylvania;
WHEREAS, on February 25, 2008, the Seller and the Guarantor agreed upon an option agreement as amended on May 7, 2008 (hereinafter referred to as the "Option Agreement") concerning the sale and purchase and transfer of all of the partnership interests of the Seller in the Company to the Guarantor or to one of its subsidiaries (like the Purchaser) under certain conditions;
WHEREAS, in accordance with the Option Agreement, the Guarantor has provided to the Seller an irrevocable standby letter of credit issued by Citizens Bank of Pennsylvania in the amount of EUR 8,500,000.00 (hereinafter - together with all amendments thereto - referred to as "Bank Guarantee") and the Guarantor (respectively the Purchaser) has transferred and assigned the Purchaser's Partnership Interest (as defined in Clause 1.2(b)) to the Seller by way of security (Sicherungsabtretung), both as security for the payment of the purchase price due to the exercise of the option rights by the Seller under the Option Agreement;
WHEREAS, on June 2, 2010 the Parties agreed to execute the Option Agreement in amended form waiving any rights and obligations that could have been constituted so far under the terms of the Option Agreement; thus the Parties agreed upon a sale and purchase and transfer agreement dated June 2, 2010 concerning the sale and transfer of all of the Seller's partnership interests in the Company and of all of the Seller's Loan and Private Accounts (as defined in Clause 1.3(a)) to the Purchaser with commercial effect (mit wirtschaftlicher Wirkung) as of October 1, 2011 (hereinafter referred to as "SPA-A");
WHEREAS, the Parties now wish to replace the SPA-A with this Agreement with effect as of Signing Date and to sell and to transfer all of the Seller's partnership interests in the Company and all of the Seller's Loan and Private Accounts (as defined in Clause 1.3(a)) to the Purchaser with commercial effect (mit wirtschaftlicher Wirkung) as of April 1, 2011 (hereinafter also referred to as "SPA-B"); the validity of the Annexes referred to in the SPA-A shall not be affected by this SPA-B unless otherwise stipulated in this SPA-B;
NOW, THEREFORE, the Parties hereto agree as follows:
|
0088098-0000002 FR:7615098.1
|
|
|
5
|
1.
|
CORPORATE OWNERSHIP / STRUCTURE OF THE ACQUISITION
|
|
1.1
|
Particulars of the Company
|
▇▇▇▇▇▇▇▇▇▇ GmbH + Co. KG (hereinafter referred to as the "Company") is a limited partnership (Kommanditgesellschaft) duly organized under the laws of Germany with registered office at Vreden/Germany and registered with the Commercial Register of the Lower Court (Amtsgericht) at Coesfeld under HRA 2299. The sole general partner (Komplementär) of the Company is ▇▇▇▇▇▇▇▇▇▇ Geschäftsführungsgesellschaft mbH (hereinafter referred to as the "General Partner"), a limited liability company (Gesellschaft mit beschränkter Haftung) duly organized under the laws of Germany with registered office at Vreden/Germany and registered with the Commercial Register of the Lower Court at Coesfeld under HRB 3919.
|
1.2
|
Partnership Capital of the Company
|
The registered partnership capital (Kommanditkapital) of the Company amounts to EUR 3,000,000.00 (in words: three million Euros) (hereinafter referred to as the "Partnership Capital"). The Partnership Capital is divided into the following fixed partnership interests (Kommanditanteile), registered in the Commercial Register, held by the Seller and the Purchaser as sole limited partners (Kommanditisten) of the Company as follows:
|
|
(a)
|
one fixed partnership interest in the amount of EUR 660,000.00 (in words: six hundred sixty thousand Euros), corresponding to 22 per cent of the fixed partnership interests in the Partnership Capital, held by the Seller and
|
|
|
(b)
|
one fixed partnership interest in the amount of EUR 2,340,000.00 (in words: two million three hundred forty thousand Euros), corresponding to 78 per cent of the fixed partnership interests in the Partnership Capital, held by the Purchaser (hereinafter referred to as the "Purchaser's Partnership Interest").
|
The fixed partnership interest held by the Seller as set forth in Clause 1.2(a) above, together with any and all rights pertaining thereto pursuant to Clause 2.1 (hereinafter referred to as the "Partnership Interest"), shall be sold and transferred to the Purchaser as set forth in Clause 2.1 and Clause 2.3(a). The General Partner has no fixed partnership interest in the Partnership Capital.
|
1.3
|
Seller’s Accounts
|
|
|
(a)
|
The Company keeps for the Seller the following accounts: a fixed capital account (Festkapitalkonto) and a reserve account (Rücklagenkonto) (hereinafter collectively referred to as the "Seller's Capital and Reserve Accounts") as well as a loan account (Darlehenskonto) for loans granted by the Seller to the Company and a private account (Privatkonto) as well as a separate loss carry forward account (Verlustvortragskonto) (hereinafter collectively referred to as the "Seller's Loan and Private Accounts"). The Seller's Loan and Private Accounts shall include the profits of the Company in the amount of EUR 770,000.00 pertaining to the Seller for the period October 1, 2010 until and including March 31, 2011.
|
|
|
(b)
|
The Seller's Capital and Reserve Accounts as of the Effective Date (as defined in Clause 1.4) shall be sold and transferred to the Purchaser together with the Partnership Interest as set forth in Clause 2.1 and Clause 2.3(a). The Seller's Loan and Private Accounts as of the Effective Date shall be sold and transferred to the Purchaser in accordance with Clause 2.2 and Clause 2.3(b).
|
6
|
1.4
|
Signing Date; Effective Date
|
For the purposes of this agreement (hereinafter referred to as the "Agreement") the "Signing Date" shall mean the date this Agreement is signed (hereinafter referred to as the "Signing Date"), and the "Effective Date" shall mean April 1, 2011, 00:00 hours (German time) (herein referred to as the "Effective Date").
|
2.
|
SALE AND PURCHASE AND TRANSFER OF THE PARTNERSHIP INTEREST AND OF THE SELLER'S LOAN AND PRIVATE ACCOUNTS
|
|
2.1
|
Sale and Purchase of the Partnership Interest
|
The Seller hereby sells, and the Purchaser hereby purchases from the Seller, upon the terms and conditions of this Agreement, the Partnership Interest in the Company with commercial effect (mit wirtschaftlicher Wirkung) as of the Effective Date. The sale and purchase of the Partnership Interest hereunder shall include any and all rights pertaining to the Partnership Interest, including, without limitation, the rights to receive profits and the obligations to bear losses generated from the Effective Date, and the accounts balances in the Seller’s Capital and Reserve Accounts as of the Effective Date, including any and all rights in the relation of the Company and the Seller reflected in and pertaining to the Seller’s Capital and Reserve Accounts. The Seller is entitled to a proportional share in the profits of the Company in the amount of EUR 770,000.00 for the period starting from October 1, 2010 until and including March 31, 2011.
|
2.2
|
Sale and Purchase of the Seller's Loan and Private Accounts
|
The Seller hereby sells, and the Purchaser hereby purchases from the Seller, upon the terms and conditions of this Agreement, any and all rights in the relation of the Company and the Seller reflected in and pertaining to the Seller's Loan and Private Accounts as of the Effective Date with commercial effect (mit wirtschaftlicher Wirkung) as of the Effective Date.
|
2.3
|
Transfer of Partnership Interest and of Seller's Loan and Private Accounts
|
|
|
(a)
|
Subject to the Transfer Conditions set forth in Clause 2.3(c), the Seller hereby transfers and assigns (abtreten), and the Purchaser hereby accepts the transfer and assignment, upon the terms and conditions of this Agreement, of the Partnership Interest in the Company with commercial effect (mit wirtschaftlicher Wirkung) as of the Effective Date.
|
|
|
Such assignment of the Partnership Interest to the Purchaser by way of singular succession (Sonderrechtsnachfolge) shall be, (i) as regards the internal relations between the Seller and the Purchaser, effective as of the Effective Date and (ii) with effect vis-à-vis any third party, effective with the registration of the Purchaser as sole limited partner of the Company in the Commercial Register. In view of the period between the date of payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price by the Purchaser and the date of registration of the Purchaser as sole limited partner of the Company in the Commercial Register (hereinafter referred to as the "Interim Period"), the Seller shall hold the Partnership Interest for the Purchaser in trust (treuhänderisch) without any additional consideration. The Seller furthermore empowers (bevollmächtigt) the Purchaser to execute any and all rights pertaining to the Partnership Interest during the Interim Period. Apart from that, the Parties expressly agree that the Seller shall solely be entitled to execute his respective rights as limited partner of the Company as far as instructed by the Purchaser.
|
7
The Parties shall make sure that the Seller, the Purchaser and the managing directors (Geschäftsführer) of the General Partner of the Company shall instruct the notary to forward the already signed filing to the Commercial Register, attached hereto as Annex 2.3(a), without undue delay (unverzüglich) after the receipt of a joint confirmation of payment to be issued jointly by the Seller and the Purchaser as set forth in Clause 2.3(d). In the event that the Commercial Register rejects the registration of the assignment of the Partnership Interest in the Company to the Purchaser with the Commercial Register on the basis of the filing signed and notarized on the signing date of the SPA-A, the Parties shall make sure that the Seller, the Purchaser and the managing directors (Geschäftsführer) of the General Partner of the Company shall update and/or amend the filing accordingly without undue delay (unverzüglich) and to forward this filing to the Commercial Register without undue delay (unverzüglich) afterwards.
|
|
(b)
|
Subject to the Transfer Conditions set forth in Clause 2.3(c), the Seller hereby transfers and assigns (abtreten), and the Purchaser hereby accepts the transfer and assignment, upon the terms and conditions of this Agreement, any and all rights in the relation of the Company and the Seller reflected in and pertaining to the Seller's Loan and Private Accounts as of the Effective Date.
|
|
|
(c)
|
The transfer of the Partnership Interest and the transfer of the Seller's Loan and Private Accounts to the Purchaser shall be subject to the satisfaction of the following conditions precedent (hereinafter collectively referred to as the "Transfer Conditions"):
|
|
|
(i)
|
|
|
(ii)
|
The assignment of the Partnership Interest in the Company to the Purchaser as set forth in Clause 2.3(a) has been recorded in the Commercial Register.
|
|
|
(d)
|
After the effectuation of the payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price by the Purchaser in accordance with Clauses 3.1 and 3.2, the Seller is obliged to issue, together with the Purchaser, a joint confirmation of payment to the notary in order to enable the notary to forward the filing to the Commercial Register as set forth in Clause 2.3(a).
|
|
2.4
|
Approval of Shareholders
|
The Seller, the Purchaser and the General Partner have approved the sale and transfer of the Partnership Interest and of the Seller's Loan and Private Accounts to the Purchaser according to Art. 12 para. 2 and Art. 10 para. 3 second sentence of the Company's partnership agreement. A copy of the resolution is attached to this Agreement as Annex 2.4.
|
3.
|
PURCHASE PRICE; SELLER'S LOAN AND PRIVATE ACCOUNTS PURCHASE PRICE; CONDITIONS OF PAYMENT; BANK GUARANTEE
|
|
3.1
|
Purchase Price; Seller's Loan and Private Accounts Purchase Price
|
|
|
(a)
|
The purchase price to be paid by the Purchaser for the Partnership Interest as sold and purchased in accordance with Clause 2.1 shall be equal to
|
EUR 19,324,401.00
8
(in words: nineteen million three hundred twenty four thousand four hundred one Euros)
(hereinafter referred to as the "Purchase Price").
|
|
(b)
|
The purchase price to be paid by the Purchaser for the Seller's Loan and Private Accounts as sold and purchased in accordance with Clause 2.2 shall be equal to
|
EUR 1,233,345.00
(in words: one million two hundred thirty three thousand three hundred forty five Euros).
This amount is hereinafter referred to as the "Seller's Loan and Private Accounts Purchase Price" and shall not be part of the Purchase Price pursuant to Clause 3.1(a).
|
3.2
|
Due Date; Seller's Account; Company's Account
|
|
|
(a)
|
On April 22, 2011, 00:00 German Time (hereinafter referred to as the "Due Date"), the Purchase Price and the Seller's Loans and Private Accounts Purchase Price shall become due and payable and the Purchaser shall pay the Purchase Price as follows:
|
|
|
(i)
|
EUR 19,141,511.00 (in words: nineteen million one hundred forty one thousand five hundred eleven Euros) to the following bank account of the Seller (hereinafter referred to as "Seller's Account"):
|
bank: Sparkasse Hamburg
account number: 1265422848
sort code (Bankleitzahl): 20050550
IBAN: IBAN ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
SWIFT: HASP DE HH XXX
|
|
(ii)
|
EUR 1,416,235.20 (in words: one million four hundred sixteen thousand two hundred thirty five point twenty Euros) - to fulfil Seller's payment obligations vis-à-vis the Company under Clause 3 of the Sale and Purchase and Transfer Agreement between the Company (as seller) and the Seller (as purchaser) regarding the sale and purchase and transfer of a partnership interest in ▇▇▇▇▇▇ GmbH & Co. KG attached to SPA-A as Annex 6.1 (a) in the amended version attached hereto as Annex 6.1 (a) - to the following bank account of the Company (hereinafter referred to as "Company's Account"):
|
bank: Sparkasse Westmünsterland
account number: 51010247
sort code (Bankleitzahl): 40154530
IBAN: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇
SWIFT: ▇▇▇▇▇▇▇▇▇▇▇.
9
|
|
(b)
|
On Due Date the Seller's Loan and Private Accounts Purchase Price shall become due and payable and the Purchaser shall pay the Seller's Loan and Private Accounts Purchase Price to the Seller’s Account named in Clause 3.2 (a) (i).
|
|
|
(c)
|
The Seller shall notify the Purchaser without undue delay ("unverzüglich") of the receipt of the full payment pursuant to Clause 3.2 (a) (i). The Company shall notify the Seller and the Purchaser without undue delay ("unverzüglich") of the receipt of full payment pursuant to Clause 3.2 (a) (ii).
|
|
|
(d)
|
All payments owed by one of the Parties under this Agreement shall be paid by way of irrevocable wire transfer – to be credited on the same day – free of any costs and fees.
|
|
3.3
|
Default
|
If the Purchaser is in default of a payment in the amount of at least EUR 1,000.00 owed under this Agreement for more than 5 days, the Purchaser shall owe - for the time the Purchaser is in default - a contractual fine in the amount of EUR 2,500.00 per day starting from the sixth day of default earliest however starting and including the day the Seller has informed the Purchaser by written notice of the default. An amount of default less than EUR 1,000.00 shall be interests-bearing at a fixed rate of 12 per cent p. a. for the time the Purchaser is in default. Interest shall be calculated on the basis of actual days elapsed and a calendar year with 360 days.
|
3.4
|
No Right to Set-Off or to Withhold
|
Any right of the Purchaser to set-off and/or to withhold any payments due under this Agreement is hereby expressly waived and excluded except for claims which are undisputed or res iudicatae.
|
3.5
|
Bank Guarantee and Assignment by way of Security
|
|
|
(a)
|
The Parties agree that the Bank Guarantee provided by the Guarantor to the Seller under the Option Agreement and under the SPA-A in amended form shall also serve for the benefit of the Seller as security for the timely and duly fulfilment of the payment of the Purchase Price and the Seller’s Loan and Private Accounts Purchase Price in accordance with Clauses 3.1 and 3.2 of this SPA-B. The issuing bank, Citizens Bank of Pennsylvania, has declared its confirmation in this respect and the Guarantor has delivered the original of the declaration of confirmation to the Seller on the Signing Date; a copy is attached hereto as Annex 3.5(a).
|
|
|
(b)
|
The Guarantor shall ensure that the Bank Guarantee remains effective until the payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price is effected in accordance with Clauses 3.1 and 3.2 above. After the Bank Guarantee having become ineffective or after the Seller has received full payment of the Purchase Price and the Sellers' Loan and Private Accounts Purchase Price in accordance with Clauses 3.1 and 3.2 of this Agreement, the Seller shall return the original of the Bank Guarantee attached hereto as a copy as Annex 3.5 (b) and the original of the declaration of confirmation attached hereto as a copy as Annex 3.5 (a) without undue delay (unverzüglich) – upon consultation - to ▇▇. ▇▇▇▇▇ STERKENBURGH, ▇▇▇▇-▇▇▇▇▇ ROLVERING or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or - if these persons are not available - to the legal advisors of the Purchaser in their office in Cologne (address as set forth under Clause 9.3 of this Agreement). If the Seller neglects to return the original of the Bank Guarantee and the original of the declaration of confirmation attached hereto as copy as Annexes 3.5 (b) and 3.5 (a) within three Business Days after having received full payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price in accordance with this Clause 3.5 (b), the Seller shall be obliged to pay a contractual fine to the Purchaser in the amount of EUR 1,000.00 per day starting from the fourth Business Day of having received full payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price until the day of the return of the original of the Bank Guarantee and the original of the declaration of confirmation to ▇▇. ▇▇▇▇▇ STERKENBURGH, ▇▇▇▇-▇▇▇▇▇ ROLVERING or ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or - if these persons are not available - to the legal advisors of the Purchaser in their office in Cologne.
|
10
|
|
(c)
|
The Parties agree that the Purchaser's Partnership Interest assigned by way of security (Sicherungsabtretung) to the Seller in accordance with the Option Agreement (hereinafter - together with the confirmation relating thereto - referred to as "Assignment by way of Security") shall now serve for the benefit of the Seller as additional security for the timely and duly fulfilment of the payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price in accordance with Clauses 3.1 and 3.2 of this Agreement. For reasons of precaution, the Purchaser hereby confirms this Assignment by way of Security. Thus, the Purchaser hereby transfers and assigns and the Seller hereby accepts the transfer and assignment of the Purchaser's Partnership Interest by way of security with immediate effect.
|
|
|
(d)
|
If the Purchase Price and the Seller's Loan and Private Accounts Purchase Price are not timely and fully paid by the Purchaser in accordance with Clauses 3.1 and 3.2, the Seller shall be entitled firstly to draw on the Bank Guarantee after prior written notification, and in case the Bank Guarantee is insufficient for the satisfaction of Seller's claims pursuant to Clause 3, the Seller shall be entitled to sell the Purchaser's Partnership Interest assigned to the Seller by way of security pursuant to Clause 3.5 (c) without holding on (freihändig) or to utilize it otherwise, whereas the Purchaser shall be entitled to any excess proceeds resulting out of this utilization. Up to this date the Purchaser shall be entitled to exercise any and all rights and obligations pertaining to the Purchaser's Partnership Interest. In particular, without limitation, the Purchaser shall be entitled to participate in all profits and losses pertaining to the Purchaser's Partnership Interest.
|
|
|
(e)
|
The Parties agree that the Assignment by way of Security shall be terminated on the date on which the payment of the Purchase Price and the Seller's Loan and Private Accounts Purchase Price is effected in accordance with Clauses 3.1 and 3.2 above. The Seller hereby reassigns to the Purchaser, and the Purchaser hereby accepts the reassignment of the Purchaser's Partnership Interest together with any and all rights pertaining thereto to the Purchaser under the precondition that the Purchase Price and the Seller's Loan and Private Accounts Purchase Price have been fully paid in accordance with Clauses 3.1 and 3.2 above.
|
|
4.
|
CANCELLED
|
|
5.
|
SELLER’S GUARANTEES
|
|
|
(a)
|
The Seller hereby guarantees to the Purchaser by way of an independent promise of guarantee pursuant to Clause 311 para. 1 BGB (selbständiges Garantieversprechen im Sinne des § 311 Abs. 1 BGB) that the statements in Clause 1 hereof regarding the Partnership Interest and the Seller’s accounts are complete and correct. The Partnership Interest has been validly issued, is fully paid-up, has not been reduced by losses or withdrawals and is not encumbered by any obligatory or in rem third-party rights, in particular there are no rights of pre-emption, rights of use, trust relationships, typical or atypical subparticipations, other options, voting agreements or other third-party rights effecting the assignment of the Partnership Interest.
|
11
|
|
(b)
|
Furthermore the Seller hereby guarantees to the Purchaser by way of an independent promise of guarantee pursuant to Clause 311 para. 1 BGB (selbständiges Garantieversprechen im Sinne des § 311 Abs. 1 BGB) that on the Effective Date the Seller's Loan and Private Accounts total at least an amount of EUR 1,233,345.00 provided however that the profit share in the amount of EUR 770,000.00 pertaining to the Seller for the period October 1, 2010 until and including March 31, 2011 has been added to and the amount of EUR 170,000.00 pursuant to 6.2 (b) of this Agreement has been deducted from the Seller's Loan and Private Accounts in accordance with the shareholder resolution attached hereto as Annex 6.1 (d). Starting from Signing Date the Seller is not entitled to any further withdrawals from the Seller's Loan and Private Accounts.
|
|
|
(c)
|
The Purchaser shall not be entitled to further warranty rights.
|
|
6.
|
COVENANTS
|
|
6.1
|
Signing Covenants
|
The Purchaser and the Seller shall ensure that the following agreements will be concluded and the following resolutions will be passed on the Signing Date:
|
|
(a)
|
The amendment agreement concerning the sale and purchase and transfer agreement between the Company (as seller) and the Seller (as purchaser) regarding the sale and purchase and transfer of a partnership interest in ▇▇▇▇▇▇ GmbH & Co. KG, attached hereto as Annex 6.1(a),
|
|
|
(b)
|
the termination agreement to the managing director agreement of the Seller as managing director of the General Partner between the General Partner, the Seller and the Company, attached hereto as Annex 6.1(b), and
|
|
|
(c)
|
the termination agreement to the commission agreement between the Seller and the Company relating to McAirlaids' potential purchase orders, attached hereto as Annex 6.1(c).
|
|
|
(d)
|
the resolution of the Company, attached hereto as Annex 6.1(d).
|
|
|
(e)
|
the resolution of the General Partner, attached hereto as Annex 6.1(e).
|
|
6.2
|
After-Signing Covenants
|
|
|
(a)
|
Between the Signing Date and the Effective Date, the Purchaser and the Guarantor shall refrain from and they have to ensure that the Company refrains from any measures in order to manipulate the profits of the Company and/or the distribution of the profits amongst the shareholders of the Company to Seller's disadvantage.
|
|
|
(b)
|
As to be agreed on in the Company's resolution attached hereto as Annex 6.1 (d), the Seller shall be entitled,in his function as shareholder of the Company, to reward certain employees of the Company with bonus payments in the total gross amount of EUR 170,000.00 (in words: one hundred seventy thousand Euros) (hereinafter referred to as "Bonus Payment Amount") prior to the Effective Date. For this purpose, the Seller and the Purchaser shall agree in the Company's resolution attached hereto as Annex 6.1 (d) that the Seller and the Purchaser instruct the Company prior to March 31, 2011 to pay on the Seller's behalf and on his account bonus payments to certain employees already nominated by the Seller in Annex A to the Company's resolution attached hereto as Annex 6.1 (d) by withdrawing the Bonus Payment Amount from his Seller's Loan and Private Accounts with effect to March 31, 2011. The Purchaser herewith explicitly and irrevocably grants his consent to this employee reward procedure.
|
12
|
|
(c)
|
The Purchaser, the Company and the General Partner shall use their best efforts that the Seller will be withdrawn as managing director in all subsidiaries and participations of the Company.
|
|
6.3
|
Covenant not to Compete
|
|
|
(a)
|
For the Seller, the statutory prohibition of competition pursuant to Section 112 subsection 1 of the German Commercial Code (Handelsgesetzbuch (HGB)) shall apply correspondingly, with the addition that the Seller may not act either independently or dependently or in an advisory capacity, not even occasionally or indirectly, outside of the Company and/or its subsidiaries (Tochtergesellschaften) in their fields of activity as of the Signing Date, no matter whether or not these activities will be continued thereafter. Likewise, holding an equity interest in competitive businesses - except for participations in form of stock and convertibles - also as silent partner or subpartner shall be inadmissible. The territorial scope of application of this prohibition of competition comprises the European Union and EFTA.
|
|
|
(b)
|
The Seller is obligated to observe the non-competition clause pursuant to Clause 6.3(a) until September 30, 2013.
|
|
|
(c)
|
The Seller hereby irrevocably declares that he waives any compensation payments which may arise for his benefit due to his retirement as a limited partner from the Company or due to his retirement from the management of the Company or of a Company's affiliate. The Parties agree that the postcontractual prohibition of competition set forth in this Clause 6.3 shall be compensated by the Purchase Price to be paid under this Agreement.
|
|
|
(d)
|
Notwithstanding the generality of Clause 6.3(a), the Seller shall be entitled to be engaged in the business of ▇▇▇▇▇▇ GmbH & Co. KG as limited partner or its legal successor, as managing director of ▇▇▇▇▇▇ Verwaltungs-GmbH (its general partner) or its legal successor and representative of ▇▇▇▇▇▇ GmbH & Co. KG or its legal successor, provided however, neither the Seller nor ▇▇▇▇▇▇ Verwaltungs-GmbH nor ▇▇▇▇▇▇ GmbH & Co. KG nor their respective legal successors nor an affiliate of these companies compete with the Company and/or its subsidiaries in their fields of activity as of the Signing Date in terms of Clauses 6.3(a) and 6.3(b). For the avoidance of doubt, the Parties agree that the engagement of the Seller in the following businesses shall not be deemed a competitive business of the Company and/or its subsidiaries in terms of Clauses 6.3(a) and 6.3(b): the production and processing of tools or components with free-form surfaces, their distribution and marketing, separately or together with shaped or grained foils as well as all other steps required for their manufacture or sale.
|
|
7.
|
GUARANTOR'S GUARANTEE
|
The Guarantor hereby guarantees by way of an independent promise of guarantee pursuant to Clause 311 para. 1 BGB the proper fulfilment of all of the obligations of the Purchaser pursuant to this Agreement, in particular, but not limited to, the payment of the Purchase Price and the Seller’s Loan and Private Accounts Purchase Price to the Seller.
13
|
8.
|
TAXES AND COSTS
|
|
8.1
|
Taxes on Earnings
|
|
|
(a)
|
All taxes on earnings (Ertragsteuern) which result from this Agreement and its execution shall be borne by those persons at which these taxes statutorily arise.
|
|
|
(b)
|
As far as taxes on earnings, in particular, but not limited to, trade income tax (Gewerbeertragsteuer) resulting from any and all sales and/or transfers of partnership interests in the Company by the Seller to the Purchaser on the level of the Company, the Seller shall reimburse the amount corresponding to these taxes on earnings to the Company. The profit share in the amount of EUR 770,000.00 pertaining to the Seller for the period October 1, 2010 until March 31, 2011 pursuant to Clause 1.3 of this Agreement has already been reduced by trade income tax; the Seller is not obliged under this Clause 8.1 to reimburse the trade income tax pertaining to this amount to the Company.
|
|
|
(c)
|
Claims of the Purchaser under this Clause 8.1 shall be time-barred six months after the final and binding assessment of the relevant taxes.
|
|
8.2
|
Transfer Taxes
|
All transfer taxes (including real estate transfer taxes) and any other charges and costs which result from this Agreement and its execution shall be borne by the Purchaser.
|
8.3
|
Value Added Tax
|
In case that supplies under this Agreement are subject to value added tax, the respective amounts shall be increased by the amount corresponding to the value added tax.
|
8.4
|
Costs and Fees
|
Each Party shall bear the costs and fees of its own advisors.
|
9.
|
NOTICES
|
|
9.1
|
Form of Notice
|
All declarations, notices or other communications hereunder (hereinafter referred to as the "Notices") shall be done in writing - as far as no notarization or other specific form is required under statutory law - in the English or German language and delivered by hand or by courier or by facsimile to the person at the addresses set forth below, or such other addresses as may be designated by the respective Party to the other Parties in the same manner.
|
9.2
|
Notices to Seller
|
Any Notice to be given to the Seller hereunder shall be addressed as follows:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
with a copy to:
14
▇▇▇▇▇ & Overy LLP
Attn.: ▇▇▇▇▇▇ Austmann
Rheinisches Palais
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇▇.
|
9.3
|
Notices to Purchaser
|
Any Notice to be given to the Purchaser hereunder shall be addressed as follows:
▇▇▇▇▇▇▇▇ International Corporation
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. (Legal Counsel)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (USA)
Fax: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ International Holding GmbH
Attn.: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇▇▇-▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇
Fax: ▇▇▇ ▇▇▇▇ ▇▇ ▇▇ ▇▇
and a copy to:
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇-▇▇
▇▇▇▇▇ ▇▇▇▇ (Junkersdorf)
Germany
Fax: ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇
|
9.4
|
Notices to Guarantor
|
Any Notice to be given to the Guarantor hereunder shall be addressed as follows:
▇▇▇▇▇▇▇▇ International Corporation
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. (Legal Counsel)
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (USA)
Fax: ▇▇ ▇▇▇ ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Attn.: ▇▇. ▇▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇-▇▇▇▇▇ ▇-▇▇
▇▇
▇▇▇▇▇ ▇▇▇▇ (Junkersdorf)
Germany
Fax: ▇▇▇ ▇▇▇ ▇▇ ▇▇ ▇▇▇
|
9.5
|
Change of Address
|
The Parties are to, without being legally obliged to, communicate any change of their respective addresses set forth in Clauses 9.2 through 9.4 as soon as possible in writing to the respective other Parties. Until such communication, the address as hitherto shall be relevant.
|
9.6
|
Copies to Advisors
|
|
|
(a)
|
The receipt of copies of Notices by the Parties’ advisors shall not constitute or substitute the receipt of such Notices by the Parties themselves.
|
|
|
(b)
|
Any Notice shall be deemed received by a Party regardless of whether any copy of such Notice has been sent to or received by an advisor of such Party, irrespective of whether the delivery of such copy was mandated by this Agreement.
|
|
10.
|
MISCELLANEOUS
|
|
10.1
|
Governing Law
|
This Agreement shall be governed by, and construed in accordance with, the laws of Germany, excluding the German conflicts of laws rules and further excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
|
10.2
|
Arbitration
|
|
|
(a)
|
Any dispute, disagreement, controversy or claim arising out of or in connection with this Agreement or its Annexes or the transactions contemplated hereby or thereby shall be finally and exclusively settled in accordance with the Rules of Arbitration of the German Institution of Arbitration e.V. (Deutsche Institution für Schiedsgerichtswesen, DIS) without recourse to the ordinary courts of law. The arbitral tribunal shall consist of three (3) arbitrators. The arbitration shall take place in Duesseldorf. The arbitration shall be conducted in English or German and written evidence (Beweismittel) may be submitted in English or German.
|
|
|
(b)
|
In the event that applicable mandatory law requires any matter arising out of or in connection with this Agreement and its implementation to be decided by an ordinary court of law, the competent courts in Duesseldorf shall have the exclusive jurisdiction.
|
|
10.3
|
Business Day
|
In this Agreement, "Business Day" means a day (other than a Saturday or Sunday) on which banks are generally open for business in Frankfurt am Main, Germany.
|
10.4
|
Amendments, Supplementations
|
Any amendment or supplementation of this Agreement, including of this provision, shall be valid only if made in writing, except where a stricter form (e.g. notarization) is required under applicable law. Clause 9.1 shall apply mutatis mutandis.
16
|
10.5
|
Language
|
|
|
(a)
|
This Agreement is written in the English language (except that Annexes may be partly in the German language). Terms to which a German translation has been added shall be interpreted throughout this Agreement in the meaning assigned to them by the German translation.
|
|
|
(b)
|
Any reference made in this Agreement to any types of companies or participations, proceedings, authorities or other bodies, rights, institutions, regulations or legal relationships (hereinafter collectively referred to as the "Legal Terms") under German law shall extend to any corresponding or identical Legal Terms under foreign law to the extent that relevant facts and circumstances must be assessed under such foreign law. Where no corresponding or identical Legal Terms under foreign law exist, such Legal Terms shall be introduced as - functionally - come closest to the Legal Terms under German law.
|
|
10.6
|
Headings
|
The headings and sub-headings of the Clauses contained herein are for convenience and reference purposes only and shall not affect the meaning or construction of any of the provisions hereof.
|
10.7
|
Annexes
|
All Annexes attached hereto form an integral part of this Agreement.
|
10.8
|
Entire Agreement; Termination of Option Agreement; Replacement of SPA-A; Settlement
|
|
|
(a)
|
This Agreement constitutes the full understanding of the Parties and the complete and exclusive statements of the terms and conditions of the Parties’ agreements relating to the subject matter hereof and supersedes any and all prior agreements and understandings, whether written or oral, that may exist between the Parties with respect to the subject matter of this Agreement. Side agreements to this Agreement do not exist.
|
|
|
(b)
|
Clause 10.8 (b) of the SPA-A shall remain unaffected by this Agreement.
|
|
|
(c)
|
The Parties agree that the SPA-A shall completely be replaced by this Agreement with effect as of Signing Date unless explicitely otherwise provided for herein. All and any claims and rights that may have arisen out of SPA-A until Signing Date, shall be determined in future only in accordance with this Agreement.
|
|
|
(d)
|
Clause 10.8 (c) of this Agreement does not apply to the Annexes referred to in the SPA-A unless otherwise stipulated in this Agreement.
|
|
|
(e)
|
By full payment of the Purchase Price and of the Seller’s Loan and Private Accounts Purchase Price to the Seller in accordance with Clauses 3.1 and 3.2 of this Agreement all and any - known or unknown - claims for whatever legal reason of the Seller against the Purchaser, the Guarantor, the Company or the General Partner and any - known or unknown - claims for whatever legal reason of the Purchaser, the Guarantor, the Company or the General Partner against the Seller shall be waived and become void. Sentence 1 does not apply to
|
|
|
(i)
|
any claims pursuant to this Agreement and any claims pursuant to the agreements and resolutions referred to in Clause 6.1;
|
|
|
(ii)
|
any claims that are caused by intentionally committed criminal actions ("vorsätzlich begangene Straftat"). Criminal actions by means of this Agreement are offences pursuant to Art. 12 para 2 of the German Criminal Code (StBG, "Vergehen") and felonies pursuant to Art. 12 para 1 of the German Criminal Code ("Verbrechen").
|
17
|
10.9
|
Severability
|
Should any provision of this Agreement be or become invalid, ineffective or unenforceable as a whole or in part, the validity, effectiveness and enforceability of the remaining provisions shall not be affected thereby. Any such invalid, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and the purpose of such invalid, ineffective or unenforceable provision as regards subject-matter, amount, time, place and extent. The aforesaid shall apply mutatis mutandis to any gap in this Agreement.
Duesseldorf/Germany, March 29, 2011
Seller Purchaser
____________________________ ___________________________________
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ International Holding GmbH
▇▇▇▇▇ ▇▇▇▇
Guarantor
____________________________
▇▇▇▇▇▇▇▇ International Corporation
▇▇▇▇▇ ▇▇▇▇
Company Company
____________________________ ___________________________________
▇▇. ▇▇▇▇▇ Sterkenburgh ▇▇▇▇-▇▇▇▇▇ Rolvering
▇▇▇▇▇▇▇▇▇▇ GmbH + Co. KG ▇▇▇▇▇▇▇▇▇▇ GmbH + Co. KG
18
General Partner General Partner
____________________________ ___________________________________
▇▇. ▇▇▇▇▇ Sterkenburgh ▇▇▇▇-▇▇▇▇▇ Rolvering
▇▇▇▇▇▇▇▇▇▇ Geschäftsführungs GmbH ▇▇▇▇▇▇▇▇▇▇ Geschäftsführungs GmbH
|
0088098-0000002 FR:7615098.1
|
|
|
19