EXHIBIT 2.1
Note: The following is the English
translation set forth along side the German version of the Share Purchase Agreement. The Agreement provides in Section 21.8
that the German version of the Agreement shall be the relevant version and that the English version serves as translation only.
CIRCOR International, Inc. agrees to provide to the Securities and Exchange Commission a complete copy of the Agreement including
both German and English versions, upon request.
Roll of Deeds No.
P 407/2015
Negotiated in this City of Cologne on 15
April 2015
Before the undersigned
DR. PETER SCHMITZ
NOTARY
with place of business in the City
of Cologne
appeared:
| 1. | Mr. Dr. Arne Burmester, born on 12.10.1977, place of business CMS Hasche Sigle Stadthausbrücke
1-3, 20355 Hamburg, according to his own statement not acting for himself, but as authorized representative |
| a) | for CIRCOR German Holdings GmbH & Co. KG with place of business in Kornwestheim, Max-Planck-Straße
3, 70806 Kornwestheim, (hereinafter the "PURCHASER") by virtue of the certified power of attorney dated 03 April 2015,
which was presented as original during this notarization and a certified copy of which is attached to this Deed; |
| b) | for CIRCOR International, Inc., a Delaware company, 30 Corporate Drive, Suite 200, Burlington, MA
010803, USA (hereinafter "Circor US") by virtue of the certified power
of attorney dated 03 April 2015, which was presented as original during this notarization and a certified copy of which is attached
to this Deed; |
| 2. | Mr. Erdinc Unükür, born on 20.05.1986, place of business CMS Hasche Sigle, Im Zollhafen
18, 50678 Köln, according to his own statement not acting for himself, but as authorized representative for Mr. Dr. Malte
Bruhns by virtue of today's certified power of attorney, whereas Mr. Dr. Malte Bruhns himself acting for Regeltechnik Kornwestheim
GmbH, Max-Planck-Straße 3, 70806 Kornwestheim, (hereinafter the "New General
Partner") by virtue of the certified power of attorney dated 10 April 2015; the afore-mentioned power of attorney of
today's date was presented as original during this notarization and was attached as certified copy to this Deed; |
| 3. | Mr. Rolf Schroeder, born on 21 September 1938, Florastraße 5, 51643 Gummersbach, according to
his own statement acting |
a) for himself (hereinafter
the "Seller 1"); and
| b) | as managing director with sole power of representation and being exempted from the restriction of
section 181 BGB (German Civil Code) |
| aa) | of Schroedahl Holding GmbH with place of business in Reichshof, Schönenbacher Str. 4, 51580 Reichshof-Mittelagger
(hereinafter the "General Partner"); and |
| bb) | of ARAPP Spezialarmaturen Gesellschaft mit beschränkter Haftung with place of business in Reichshof,
Schönenbacher Str. 4, 51580 Reichshof-Mittelagger, (hereinafter "ARAPP GmbH"). |
| 4. | Mr. Klaus Michael Schroeder, born on 17 April 1963, Sonnenbergstraße 43 A, 51647 Gummersbach,
according to his own statement acting for himself (hereinafter "Seller 2") |
| 5. | Mr. Marc-Wilhelm Schroeder, born on 2 July 1968, Epelstraße 31, 51645 Gummersbach, according
to his own statement acting |
a) for himself (hereinafter
the "Seller 3"); and
| b) | as managing director with sole power of representation and being exempted from the restriction of
section 181 BGB (German Civil Code) |
| aa) | of the General Partner; as well as |
The person appearing on the 2nd
part is personally known to the notary; all other persons appearing proved their identity by presenting valid photo identification.
The persons appearing stated that they agreed to have copies of the identification papers taken to the notary's files.
The documents referred to as Schedules
in this today's recording (cf. List of Schedules on pates 6 and 7) have been notarized in the name of the parties with Reference
Deed no. L 330/2015 dated 15 April 2015 of the notary Leontin Schulte-Thoma, City of Cologne.
This Reference Deed is herewith approved
by all parties.
According to section 13a BeurkG (German
Authentication Act), the Reference Deed is herewith referred to. The Reference Deed's content, which was presented as original
during this notarization, is known to the parties. The parties waive the right to have the Reference Deed read out to them. Also,
the parties waive their right to have the Reference Deed attached as an annex to this today's Deed. The notary has instructed the
parties that by referring to the Reference Deed its content will become integral part of this today's Agreement.
The persons appearing, acting as mentioned
above, declared the following
share
purchase Agreement
pROJECT
SNAP
between:
| (1) | CIRCOR German Holdings GmbH & Co. KG, seated in Kornwestheim and with
its registered place of business at Max-Planck-Straße 3, 70806 Kornwestheim, Germany, registered with the commercial register
of the local court of Stuttgart under HRA 202877 (the "Purchaser"),
represented by its sole general partner Circor German Holdings Management GmbH, seated in Kornwestheim and its registered place
of business at Max-Planck-Straße 3, 70806 Kornwestheim, Germany, registered with the commercial register of the local court
of Stuttgart under HRB 206465, represented by its managing director authorized to represent the company alone Mr. Peter Michael
Laube; |
| (2) | Mr. Rolf Schroeder, born 21 September 1938, Florastraße 5, 51643
Gummersbach, Germany (the "Seller 1"); |
| (3) | Mr. Klaus Michael Schroeder, born on 17 April 1963, Sonnenbergstraße 43 A, 51647
Gummersbach, Germany (the "Seller 2"); |
| (4) | Mr. Marc-Wilhelm Schroeder, born on 2 July 1968, Epelstraße 31, 51645
Gummersbach, Germany (the "Seller 3"); |
with the participation of
| (5) | CIRCOR International, Inc. a Delaware corporation, with its principal place
of business at 30 Corporate Drive, Suite 200, Burlington, MA 01803, USA ("Circor
US"), represented by [●]; |
| (6) | Schroedahl Holding GmbH, a limited liability company, seated in Reichshof
and with its registered place of business at Schönenbacher Straße 4, 51580 Reichshof-Mittelagger, Germany, registered
with the commercial register of the local court of Siegburg under HRB 12826 (the "General
Partner"), represented by its managing director Mr. Marc-Wilhelm Schroeder,
who is authorized to represent the company alone and relieved from the restrictions on self-dealing pursuant to Sect. 181 German
Civil Code (BGB); |
| (7) | Regeltechnik Kornwestheim GmbH, a limited liability company, seated in
Kornwestheim and with its registered place of business at Max-Planck-Straße 3, 70806, Germany, registered with the commercial
register of the local court of Stuttgart under HRB 206565 (the "New General
Partner"), represented by its managing directors Peter Laube and Wayne F. Robbins,
who hold sole power of representation); and |
| (8) | ARAPP Spezialarmaturen Gesellschaft mit beschränkter Haftung, seated
in Reichshof with its registered place of business at Schönenbacher Straße 4, 51580 Reichshof-Mittelagger, Germany,
registered with the commercial register of the local court of Siegburg under HRB 7457 ("ARAPP
GmbH"), represented by its managing director Mr. Marc-Wilhelm Schroeder,
who is authorized to represent the company alone and relieved |
from the restrictions
on self-dealing pursuant to Sect. 181 German Civil Code (BGB),
(in this Agreement
the Sellers 1 through 3 are collectively referred to as the "Sellers";
Circor US, the General Partner, the
New General Partner and ARAPP GmbH
are collectively referred to as the "Participants"; the Purchaser,
each of the Sellers and each of the Participants
are individually referred to as a
"Party" and collectively as the "Parties").
TABLE OF CONTENT
| PREAMBLE |
6 |
| Section 1 DEFINITIONS |
8 |
| Section 2 SALE AND PURCHASE |
13 |
| Section 3 TRANSFERS OF SHARES |
14 |
| Section 4 EXCHANGE OF THE GENERAL PARTNER |
14 |
| Section 5 PURCHASE PRICE |
15 |
| Section 6 PRE SIGNING ACTIVITIES |
16 |
| Section 7 ACTIONS AT THE DAY OF NOTARIZATION |
18 |
| Section 8 LOCKED BOX PROCEDURE |
19 |
| Section 9 REPRESENTATIONS OF THE SELLERS |
20 |
| Section 10 REMEDIES FOR BREACH OF REPRESENTATIONS |
29 |
| Section 11 REPRESENTATIONS OF PURCHASER |
30 |
| Section 12 TAX INDEMNITIES |
30 |
| Section 13 ENVIRONMENTAL MATTERS |
31 |
| Section 14 GENERAL EXCLUSIONS AND LIMITATIONS OF SELLERS' LIABILITY |
32 |
| Section 15 NON-COMPETE/NON-SOLICITATION |
33 |
| Section 16 FILING WITH THE COMMERCIAL REGISTER |
34 |
| Section 17 CONFIDENTIALITY |
35 |
| Section 18 SELLERS' REPRESENTATIVE |
35 |
| Section 19 NOTICES |
35 |
| Section 20 GUARANTEE OF CIRCOR US |
36 |
| Section 21 MISCELLANEOUS |
37 |
LIST OF SCHEDULES*
| Schedule 4.3 Draft Commercial Register Application |
14 |
| Schedule 5.5 Purchase Price Calculation Chart |
15 |
| Schedule 6.1.1 Agreement regarding Lump Sum Option RS - ARAPP GmbH |
16 |
| Schedule 6.1.2 Pension Assumption Agreement KS |
16 |
| Schedule 6.1.3 Pension Cancellation MS- ARAPP GmbH |
17 |
| Schedule 6.1.4 Pension Assumption Agreement Edith Schoeder |
17 |
| Schedule 6.2 Contribution Resolution ARAPP KG |
17 |
| Schedule 6.3.1 Real Estate Purchase Agreement ARAPP KG |
17 |
| Schedule 6.3.2 Real Estate Purchase Agreement ARAPP GmbH (Parking Lot) |
17 |
| Schedules 6.3.3 a and b Lease Agreements ARAPP KG |
17 |
| Schedules 6.4 a through c Spouses' Consent Declarations |
17 |
| Schedule 6.5 Step Out Agreement |
17 |
| Schedule 6.6 Shareholders’ resolution ARAPP KG |
17 |
| Schedule 6.7 Shareholders’ resolution ARAPP KG |
18 |
| Schedule 7.1.1 Step Down Declaration RS |
18 |
| Schedule 7.1.2 RS Agreement |
18 |
| Schedule 7.1.3 KS Agreement |
18 |
| Schedule 7.1.4 Domain Transfer MS |
18 |
| Schedule 7.1.5 Confirmation and Waiver Declaration |
18 |
| Schedule 7.1.8 MS Agreement |
18 |
| Schedule 8.3.4 CF-DF Permitted Payments Schedule |
20 |
| Schedule 9.2.6 ARAPP KG Partnership Agreement |
22 |
| Schedule 9.2.7 ARAPP GmbH Articles of Assoociation |
22 |
| Schedule 9.2.8 ARAPP US Articles and By-Laws |
22 |
| Schedule 9.4.4 List of Orders |
23 |
| Schedule 9.4.6 List of inter-company Agreements |
23 |
| Schedule 9.4.7 List of Non-Conformity Claims |
24 |
| Schedule 9.5.1 List of Title Issues |
24 |
| Schedule 9.5.4 List of Sureties |
24 |
| Schedule 9.6.1 List of Real Property |
24 |
| Schedule 9.6.2 List of missing Building Permits |
24 |
| Schedule 9.6.3 Lease Agreement ARAPP US |
25 |
| Schedule 9.7.1 List of Employees |
25 |
| Schedule 9.7.2 List of Stock Option Programs |
25 |
| Schedule 9.7.4 List of Shop Agreements |
25 |
| Schedule 9.7.6 List of Pension Schemes |
25 |
| Schedule 9.7.7 List of Employee Terminations |
25 |
| Schedule 9.8.1 List of Material Agreements |
26 |
| Schedule 9.9.1 List of IP Rights |
27 |
| Schedule 9.10 Litigation List |
27 |
| Schedule 9.13.1 List of Insurance Policies |
28 |
| Schedule 9.13.2 List of Insurance Claims |
28 |
| Schedule 15.1.1 List of competitive Territories |
33 |
*The Schedules listed above have been omitted from this filing. The Company hereby agrees
to provide the Commission, upon request, copies of any omitted exhibits or schedules to this exhibit required by Item 601 (b)(2)
of Regulation S-K.
PREAMBLE
WHEREAS
the Purchaser
is a German limited liability partnership (GmbH & Co. KG), registered with the commercial register of the local court
(Amtsgericht) of Stuttgart under HRA 202877. All limited partners’ participations in Purchaser
are indirectly owned by Circor US; Circor
US is engaged in the business of acquiring, managing and operating various manufacturing companies in the energy, industrial, and
aerospace sectors on a world wide basis.
WHEREAS
'Schroedahl-ARAPP Spezialarmaturen
GmbH & Co. KG' ("ARAPP KG"), seated in Reichshof-Mittelagger
and with its registered place of business at Schönenbacher Straße 4, D-51580 Reichshof-Mittelagger, Germany, is a German
limited liability partnership, registered with the commercial register of the local court (Amtsgericht) of Siegburg under
HRA 4045. Sellers 1 through 3 participate in ARAPP KG as follows:
| · | Seller 1 is a limited partner (Kommanditist)
in ARAPP KG with a registered contribution (Hafteinlage) in an amount of EUR 51,129.19 (equalling 10.42 %) (such participation
(Kommanditbeteiligung) the "Seller 1 ARAPP KG Share"); |
| · | Seller 2 is a limited partner (Kommanditist)
in ARAPP KG with a registered contribution (Hafteinlage) in an amount of EUR 44,738.04 (equalling 9.11 %) (such participation
(Kommanditbeteiligung) the "Seller 2 ARAPP KG Share"); and |
| · | Seller 3 is a limited partner (Kommanditist)
in ARAPP KG with a registered contribution (Hafteinlage) in an amount of EUR 57,520.34 (equalling 11.72 %) (such participation
(Kommanditbeteiligung) the "Seller 3 ARAPP KG Share"). |
The
Seller 1 ARAPP KG Share, the Seller 2 ARAPP
KG Share and the Seller 3 ARAPP KG Share are collectively referred to in this
Agreement as the "ARAPP KG Shares".
WHEREAS
ARAPP
GmbH is a further limited partner (Kommanditist) in ARAPP KG with a registered contribution (Hafteinlage)
in an amount of EUR 337,452.64 (equalling 68.75 %) (the "ARAPP GmbH KG Share").
According to the list of shareholders
dated 31 December 2012 the share capital of ARAPP GmbH amounts to EUR 1,200,000
and is divided into four shares which are held as follows:
| · | Seller 2 holds shares nos. 3 and 1.2 with par values
of EUR 420,000 and EUR 120,000 (the "Seller 2 ARAPP GmbH Shares");
and |
| · | Seller 3 holds shares nos. 2 and 1.1 with par values
of EUR 540,000 and EUR 120,000 (the "Seller 3 ARAPP GmbH Shares"). |
The Seller
2 ARAPP GmbH Shares and the Seller 3 ARAPP GmbH Shares are collectively referred
to in this Agreement as the "ARAPP
GmbH Shares".
WHEREAS
the General
Partner is the sole general partner of ARAPP KG, holding no participation in ARAPP KG.
WHEREAS
the
New General Partner is selected by the Purchaser to replace the General
Partner as sole general partner of ARAPP KG in the course of the Transaction.
WHEREAS
ARAPP
GmbH is the sole shareholder of 'Schroedahl International Corporation', a Delaware Corporation, with its principal place
of business at 2400 Augusta Drive, Suite 285, Houston, TX 77057, USA ("ARAPP US").
WHEREAS
the Purchaser
is interested in
| (i) | acquiring all ARAPP KG Shares from the Sellers; |
| (ii) | acquiring all ARAPP GmbH Shares from the Sellers
2 and 3; and |
(iii)
replacing the General Partner of the ARAPP KG by the New
General Partner,
(the
"Transaction").
NOW THEREFORE
the Sellers,
the Purchaser and the Participants
enter into this Agreement.
Section
1
DEFINITIONS
| 1.1 | Capitalized Terms. All terms in small capitals used herein shall have the following meanings: |
| Schedules |
|
Means all attachments to this Agreement |
| ARAPP Company |
|
Shall mean either ARAPP KG, ARAPP GmbH or ARAPP US |
| ARAPP Companies |
|
Shall mean collectively ARAPP KG, ARAPP GmbH and ARAPP US |
| ARAPP GmbH |
|
ARAPP Spezialarmaturen Gesellschaft mit beschränkter Haftung, seated in Reichshof with its principal place of business at Schönenbacher Straße 4, 51580 Reichshof-Mittelagger, Germany, registered with the commercial register of the local court of Siegburg under HRB 7457 |
| ARAPP GmbH Shares |
|
as defined in the preamble |
| ARAPP GmbH 2013 Financials |
|
The unaudited financial statements of ARAPP GmbH as of December 31, 2013 |
| ARAPP GmbH 2014 Financials |
|
The unaudited financial statements of ARAPP GmbH as of December 31, 2014 |
| ARAPP GmbH Financials |
|
The ARAPP GmbH 2013 Financials and the ARAPP GmbH 2014 Financials |
| ARAPP GmbH KG Shares |
|
as defined in the preamble |
| ARAPP 2014 Financials |
|
Shall mean collectively the ARAPP GmbH 2014 Financials, the ARAPP KG 2014 Financials, and the ARAPP US 2014 Financials |
| ARAPP KG |
|
Schroedahl-ARAPP Spezialarmaturen GmbH & Co. KG, seated in Reichshof-Mittelagger and with its registered place of business at Schönenbacher Straße 4, 51580 Reichshof-Mittelagger, Germany, registered with the commercial register of the local court (Amtsgericht) of Siegburg under HRA 4045 |
| ARAPP KG Shares |
|
as defined in the preamble |
| ARAPP KG 2013 Financials |
|
The audited financial statements of ARAPP KG as of December 31, 2013 |
| ARAPP KG 2014 Financials |
|
The audited financial statements of ARAPP KG as of December 31, 2014 |
| ARAPP KG Financials |
|
The ARAPP KG 2013 Financials and the ARAPP KG 2014 Financials |
| ARAPP Products |
|
Shall have the meaning as defined in Section 9.4.7 of this Agreement |
| ARAPP US |
|
Schroedahl International Corporation, a Delaware Corporation, with its principal place of business at 2400 Augusta Drive, Suite 285, Houston, TX 77057, USA |
| ARAPP US 2013 Financials |
|
The unaudited financial statements of ARAPP US as of December 31, 2013 |
| ARAPP US 2014 Financials |
|
The draft financial statements of ARAPP US as of December 31, 2014 |
| ARAPP US Financials |
|
The ARAPP US 2013 Financials and the ARAPP US 2014 Financials |
| Banking Day |
|
Shall mean any day (except Saturdays and Sundays) on which commercial banks in Frankfurt/Main, Germany, are allowed to be open for business |
| Participants |
|
Collectively, Circor US, the General Partner, the New General Partner and ARAPP GmbH |
| BGB |
|
German Civil Code (Bürgerliches Gesetzbuch) |
| Cap |
|
Shall have the meaning as defined in Section 14.5 of this Agreement |
| Circor US |
|
CIRCOR International, Inc. a Delaware corporation, with its principal place of business at 30 Corporate Drive, suite 200, Burlington, MA 01803, USA |
| Closing Actions |
|
Shall have the meaning as defined in Section 7.1 of this Agreement |
| Closing Date |
|
Shall have the meaning as defined in Section 7.1 of this Agreement |
| De Minimis Amount |
|
Shall have the meaning as defined in Section 14.4.1 of this Agreement |
| Threshold Amount |
|
Shall have the meaning as defined in Section 14.4.2 of this Agreement |
| Proprietary Information |
|
Shall have the meaning as defined in Section 17.2 of this Agreement |
| Real Property |
|
Shall have the meaning as defined in Section 9.6.1 of this Agreement |
| Information Technology |
|
Shall have the meaning as defined in Section 9.9.3 of this Agreement |
| Restricted Period |
|
Shall have the meaning as defined in Section 15.1 of this Agreement |
| Purchaser |
|
CIRCOR German Holdings GmbH & Co. KG, seated in Kornwestheim and with its registered place of business at Max-Planck-Straße 3, 70806 Kornwestheim, Germany, registered with the commercial register of the local court of Stuttgart under HRA 202877 |
| Purchase Price |
|
Shall have the meaning as defined in Section 5.4 of this Agreement |
| Purchase Price Calculation Chart |
|
Shall have the meaning as defined in Section 5.6 of this Agreement |
| Knowledge |
|
Means as to any person, the actual awareness (positive Kenntnis) or non-awareness due to gross negligence (grob fahrlässige Nichtkenntnis) of the fact, event or circumstance at issue |
| Sellers' Knowledge |
|
Means any Knowledge of any Seller and of any relative (Angehöriger) as defined in Section 15 of the German Tax Code (Abgabenordnung) of a Seller; it is deemd to be non-awareness due to gross negligence if awareness of the fact, event or circumstance could have been obtained after due inquiry of Messrs. Klaus Fellenberg (QM), Rolf-Dieter Mühlberg (Controller) or Reinhard Gösselkeheld (Head of sales). |
| General Partner |
|
Schroedahl Holding GmbH, a limited liability company, seated in Reichshof and with its registered place of business at Schönenbacher Straße 4, 51580 Reichshof-Mittelagger, Germany, registered with the commercial register of the local court of Siegburg under HRB 12826 |
| KS Agreement |
|
Shall have the meaning as defined in Section 7.1.3 of this Agreement |
| Leakage |
|
Shall have the meaning as defined in Section 8.2 of this Agreement |
| Locked Box Date |
|
December 31, 2014, 24:00hrs (Central European Time) |
| Locked Box Interest |
|
Shall have the meaning as defined in Section 5.3 of this Agreement |
| MK Immobilien GbR |
|
Shall have the meaning as defined in Section 6.3.1 of this Agreement |
| MS Agreement |
|
Shall have the meaning as defined in Section 7.1.8 of this Agreement |
| New General Partner |
|
Regeltechnik Kornwestheim GmbH, a limited liability company, seated in Kornwestheim and with its registered place of business at Max-Planck-Straße 3, 70806 Kornwestheim, Germany, registered with the commercial register of the local court of Stuttgart under HRB 206565 |
| Party |
|
Individually, each of the Sellers, the Purchaser or the Participants |
| Parties |
|
Collectively, the Sellers, the Purchaser and the Participants |
| RS Agreement |
|
Shall have the meaning as defined in Section 7.1.2 of this Agreement |
| Damages |
|
Shall have the meaning as defined in Section 10.1 of this Agreement |
| Tax Returns |
|
Shall have the meaning as defined in Section 9.14.1 of this Agreement |
| Taxes |
|
Shall have the meaning as defined in Section 9.14.3 of this Agreement |
| Transaction |
|
as defined in the preamble |
| Environmental Damage |
|
Shall have the meaning as defined in Section 13.3 of this Agreement |
| Affiliate(s) |
|
Shall have the meaning as set forth in Sections 15 et seq. of the German Stock Corporation Act (Aktiengesetz) |
| Sellers |
|
Shall mean collectively Seller 1, Seller 2 and Seller 3 |
| Seller 1 |
|
Mr. Rolf Schroeder Florastraße 5, 51643 Gummersbach, Germany |
| Seller 1 ARAPP KG Share |
|
as defined in the preamble |
| Seller 2 |
|
Mr. Klaus Michael Schroeder Sonnenbergstraße 43 A, 51647 Gummersbach, Germany |
| Seller 2 ARAPP GmbH Shares |
|
as defined in the preamble |
| Seller 2 ARAPP KG Share |
|
as defined in the preamble |
| Seller 3 |
|
Mr. Marc-Wilhelm Schroeder Epelstraße 31, 51645 Gummersbach, Germany |
| Seller 3 ARAPP GmbH Shares |
|
as defined in the preamble |
| Seller 3 ARAPP KG Share |
|
as defined in the preamble |
| Sellers' Bank Accounts |
|
Shall have the meaning as defined in Section 5.6 of this Agreement |
| Seller's Bank Account |
|
Shall have the meaning as defined in Section 5.6 of this Agreement |
| Sellers' Representative |
|
Shall have the meaning as defined in Section 18.1 of this Agreement |
| Breach |
|
Shall have the meaning as defined in Section 10.1 of this Agreement |
| Agreement |
|
This share purchase agreement including its Schedules |
| Material Agreements |
|
Shall have the meaning as defined in Section 9.8.1 of this Agreement |
| Competing Activities |
|
Shall have the meaning as defined in Section 15.1.1 of this Agreement |
| Payment Confirmations |
|
Shall have the meaning as defined in Section 5.7 of this Agreement |
| Permitted Payments |
|
Shall have the meaning as defined in Section 8.3 of this Agreement |
| 1.2 | Rules of Interpretation. The following rules of interpretation shall apply to this Agreement: |
| 1.2.1 | the singular includes the plural and the plural includes the singular; |
| 1.2.2 | "include" and "including" are not limiting; |
| 1.2.3 | a reference to any agreement or other contract includes such agreement or contract as the same
may be amended, supplemented or otherwise modified in accordance with its terms; |
| 1.2.4 | except as otherwise expressly stated, a reference to a law includes any past or future amendment
or modification to such law and any rules or regulations issued thereunder or any law enacted in substitution or replacement therefore; |
| 1.2.5 | words such as "hereunder", "hereto", "hereof" and "herein"
and other words of like import shall, unless the context clearly indicates to the contrary, refer to the whole of the Agreement
and not to any particular section or subsection thereof. |
Section
2
SALE AND PURCHASE
| 2.1 | Sale and purchase of ARAPP GmbH Shares.
Upon the terms and conditions of this Agreement |
| 2.1.1 | Seller 2 hereby sells (verkauft) to the Purchaser
who hereby buys (kauft) from Seller 2 the Seller
2 ARAPP GmbH Shares, as defined and specified in the preamble; and |
| 2.1.2 | Seller 3 hereby sells (verkauft) to the Purchaser
who hereby buys (kauft) from Seller 3 the Seller
3 ARAPP GmbH Shares, as defined and specified in the preamble. |
| 2.2 | Sale and purchase of ARAPP KG Shares.
Upon the terms and conditions of this Agreement |
| 2.2.1 | Seller 1 hereby sells (verkaufen) to the Purchaser
who hereby buys (kauft) from Seller 1 the Seller
1 ARAPP KG Share, as defined and specified in the preamble; |
| 2.2.2 | Seller 2 hereby sells (verkaufen) to the Purchaser
who hereby buys (kauft) from Seller 2 the Seller
2 ARAPP KG Share, as defined and specified in the preamble; and |
2.2.3
Seller 3 hereby sells (verkaufen) to the Purchaser who hereby
buys (kauft) from Seller 3 the Seller
3 ARAPP KG Share, as defined and specified in the preamble.
| 2.3 | Ancillary Rights. The sale and transfer of the ARAPP
GmbH Shares and the ARAPP KG Shares
shall include all ancillary rights appertaining thereto (Nebenrechte), including the rights to any undistributed but distributable
profits and the balances on the capital accounts of ARAPP KG (unless otherwise stated herein). |
Section
3
TRANSFERS OF SHARES
| 3.1 | Transfer of ARAPP GmbH Shares. The Sellers
2 and 3 herewith assign the ARAPP GmbH Shares to the
Purchaser who herewith accepts such assignment; the assignment shall be subject
to (aufschiebend bedingt) the payment of the Purchase Price. |
| 3.2 | Transfer of ARAPP KG Shares. The Sellers
herewith assign the ARAPP KG Shares to the
Purchaser who herewith accepts such assignment; the assignment shall be subject
to (aufschiebend bedingt) the payment of the Purchase Price and the registration
of the Purchaser as legal successor by way of special legal succession (Sonderrechtsnachfolge)
of the Sellers in respect of all ARAPP KG Shares
with the commercial register. |
Section
4
EXCHANGE OF THE GENERAL PARTNER
| 4.1 | Joining of the new general partner.
The Parties agree and the new general partner
hereby irrevocably declares that the new general partner joins ARAPP KG as general
partner subject to (aufschiebend bedingt) the payment of the purchase price
in full. The new general partner shall not make a contribution to ARAPP KG and shall
not hold an interest in ARAPP KG´s capital. The new general partner is hereby
released from the restrictions to compete pursuant to Section 112 HGB. |
| 4.2 | Leaving of the general partner.
The parties further agree and the general
partner hereby irrevocably declares that the general partner leaves ARAPP
KG as general partner subject only to the new general partner joining ARAPP KG as
general partner. The general partner shall not be granted any compensation by ARAPP
KG, the new general partner or the purchaser
from ARAPP KG´s assets and the general partner hereby entirely waives its entitlement
to compensation pursuant to Section 738 (1) sentence 2 BGB. |
| 4.3 | Commercial Register Application. The parties
agree that the entry of the new general partner and the withdrawal of the general
partner as general partner of ARAPP KG shall be registered in the required form with the commercial register without undue
delay after the payment of the purchase price in full. The parties
shall deliver the respective application for registration with the commercial register, a draft of which is attached hereto as
Schedule 4.3, signed by the competent declarants and notarially certified to the custody of the
acting notary without undue delay after the notarization of this agreement. The parties
hereby irrevocably instruct and commission the acting notary to submit the application for registration with the commercial register
to the commercial register without undue delay after the acting notary has received the Payment
Confirmations. |
Section
5
PURCHASE PRICE
| 5.1 | Purchase Price for ARAPP GmbH Shares. The
purchase price for the ARAPP GmbH Shares shall be EUR 87.198.117,96 (in words:
EURO eightyseven million one hundred ninety eight thousand one hundred seventeen and ninety six Cents). |
| 5.2 | Purchase Price for ARAPP KG Shares. The purchase
price for the ARAPP KG Shares shall be EUR 20.785.144,27 (in words: EURO twenty
million seven hundred eighty five thousand one hundred forty four and twenty seven Cents). |
| 5.3 | Locked Box Interest. In addition to the purchase
prices set forth above, the Purchaser shall pay interest on uch purchase prices
for the time between the Locked Box Date and today's date at a rate of 5% p.a. (the
"Locked Box Interest"). |
| 5.4 | Aggregate Purchase Price. The aggregate purchase
price for both the ARAPP GmbH Shares and the ARAPP
KG Shares as well as the Locked Box Interest, thus, amounts to EUR 109,536,446.14
(in words: EURO one hundred nine million five hundred six thousand four hundred forty six and fourteen Cents) (the "Purchase
Price"). |
| 5.5 | Calculation of Purchase Price. The details
of the Purchase Price calculation and its allocation among the Sellers are set forth
in the purchase price calculation chart (the "Purchase Price Calculation Chart")
attached hereto as Schedule 5.5, which is herewith accepted by the Parties
as binding among them. For the avoidance of doubt it is agreed: |
| 5.5.1 | For purposes of the cash-free / debt-free calculation the intra group claim of ARAPP
GmbH vis-á-vis ARAPP KG is treated as "cash" (line item 36). |
| 5.5.2 | As the received prepayments (line item 32) were predominantly used to purchase order-related inventory,
these payments are not treated as "debt" for purposes of the cash-free / debt-free calculation. |
| 5.5.3 | For purposes of the cash-free / debt-free calculation tax receivables are treated as "cash"
(line item 35). |
| 5.5.4 | Amounts of EUR 200,000 (ARAPP KG) and EUR 800,000 (ARAPP US) are treated as "cash"
(line items 39 and 41.) |
| 5.5.5 | The Other Accruals are not treated as "debt" (line item 55). |
| 5.6 | Payment of the Purchase Price. The Purchase
Price is due today and payable by the Purchaser to the Sellers
by remittance to the following bank accounts in accordance with the Purchase Price Calculation
Chart as follows: |
| 5.6.1 | Seller 1 shall receive an amount of EUR 6,807,960.70
(in words: EURO six million eight hundred thousand seven thousand nine hundred sixty and seventy Cents) |
Account Holder: Rolf
Schroeder;
IBAN:
| 5.6.2 | Seller 2 shall receive an amount of EUR 45,881,120.43
(in words: EURO forty five million eight hundred eighty one thousand one hundred twenty and forty three Cents) |
Account Holder: Klaus Michael
Schroeder;
IBAN:
| 5.6.3 | Seller 3 shall receive an amount of EUR 56,847,365.02
(in words: EURO fifty six million eight hundred forty seven thousand three hundred sixty five and two Cents) |
Account Holder: Marc-Wilhelm
Schroeder;
IBAN:
(the bank accounts described
in Sections 5.6.1 through Section 5.6.3 collectively the "Sellers' Bank
Accounts" and each a "Seller's Bank Account").
| 5.7 | Payment Confirmations. Each of the Sellers
shall instruct the bank maintaining the respective Seller's Bank Account to confirm
immediately upon receipt of payment of sums equal to the sums indicated in Section 5.6 such receipt by telefax (the "Payment
Confirmations"). |
Section
6
PRE SIGNING ACTIVITIES
| 6.1 | Pension Claims. The Sellers and ARAPP GmbH
have dealt with respect to the various pension commitments given by ARAPP GmbH as
follows: |
| 6.1.1 | The Seller 1 and ARAPP
GmbH have entered on April 13, 2015 into an agreement according to which Seller 1
has exercised his lump sum payment option resulting from the pension commitment
in favor of Seller 1 in consideration for the payment of an amount equaling the provision
for such commitment in the ARAPP GmbH 2014 Financials. A copy of such agreement is
attached hereto as Schedule 6.1.1. The amount payable to Seller
1 in accordance thereto has already been paid withholding;the wage withholding tax applying thereto. |
| 6.1.2 | Seller 2, ARAPP
GmbH and MK Immobilien GbR have on April 13, 2015 entered into an agreement
according to which MK Immobilien GbR has assumed (i) all liabilities of ARAPP
GmbH vis-à-vis Seller 2 resulting from the pension commitment
given in his favor and (ii) all claims vested in ARAPP GmbH resulting from the insurance
coverage purchased therefor. A copy of such agreement is attached hereto as Schedule 6.1.2. |
| 6.1.3 | Seller 3 and ARAPP
GmbH have on April 13, 2015 entered into an agreement according to which Seller 3
"as shareholder" has waived all of his claims against ARAPP GmbH resulting
from the pension commitment given in his favor against assignment of all claims vested in ARAPP
GmbH resulting from the insurance coverage purchased therefor. A copy of such agreement is attached hereto as Schedule
6.1.3. |
| 6.1.4 | MK Immobilien GbR and ARAPP
GmbH have on April 13, 2015 entered into an agreement according to which MK Immobilien
GbR has assumed all liabilities of ARAPP GmbH resulting from its pension commitment
given in favor of Mr. Ingo Schroeder on July 1, 1978 which entitles his widow Mrs. Edith Schroeder, and have undertaken to hold
ARAPP GmbH harmless against any claims raised by Mrs. Edith Schroeder in consideration
for the payment of an amount equaling the provision for such commitment in the ARAPP GmbH
2014 Financials. A copy of such agreement is attached hereto as Schedule 6.1.4. |
| 6.2 | Shareholders Claims. By way of a shareholders resolution dated as of April 13, 2015), the
Sellers have contributed all their respective claims against ARAPP
KG as of April 14, 2015, 24:00hrs including interest thereupon to the debtor company by way of a shareholders contribution
(i.e. other payment into the company's equity pursuant to Section 272 (2)(4) German Commercial Code). A copy of such shareholders
resolution is attached hereto as Schedule 6.2. |
| 6.3 | Real Estate. By way of notarial deeds dated April 14, 2015 |
| 6.3.1 | ARAPP KG has sold its entire real estate to MK Immobilien GbR ("MK
Immobilien GbR") at a purchase price of EUR 1,750,000.00; a copy of such deed is attached hereto as Schedule
6.3.1; and |
| 6.3.2 | ARAPP GmbH has sold its parking lot to MK
Immobilien GbR at a purchase price of EUR 50,000.00; a copy of such deed is attached hereto as Schedule
6.3.2. |
6.3.3
MK Immobilien GbR and ARAPP KG have concluded two notarially recorded
lease agreements in relation to the real property acquired from both ARAPP KG and ARAPP
GmbH on 14 April 2015; copies are attached hereto as Schedules 6.3.3 a and b.
| 6.4 | Written Confirmations. Sellers 1 through 3
have obtained written confirmations by their respective spouses according to which the spouses grant their irrevocable and
unconditional consent to the sale and transfer of the ARAPP KG
Shares and the ARAPP GmbH Shares; copies are attached hereto as Schedules
6.4 a through c. |
| 6.5 | MRK Immobilien GmbH & Co. KG. Based on the agreement dated April 13, 2015,a copy
of which is attached as Schedule 6.5 ARAPP
GmbH has
ceased to be a limited partner of MRK Immobilien GmbH & Co.
KG (registered with the commercial register of the local
court of Siegburg under HRA 5832. |
| 6.6 | Approvals. The shareholders of ARAPP GmbH
have approved of the assignment of the ARAPP GmbH Shares by way of a shareholders’
resolution dated April 13, 2015; a copy of the shareholders’ resolution is attached hereto as Schedule
6.6. |
| 6.7 | Approvals. The shareholders of ARAPP KG have
approved of the assignment of the ARAPP KG Shares by way of a shareholders’
resolution dated April 13, 2015; a copy of the shareholders’ resolution is attached hereto as Schedule
6.7. |
Section
7
ACTIONS AT THE DAY OF NOTARIZATION
| 7.1 | Closing Actions. At the date of today's notarization
(the "Closing Date") the Parties
shall perform, or ensure to be performed, the following actions (collectively the "Closing
Actions") in the following order. |
| 7.1.1 | Seller 1 resigns as managing director of ARAPP GmbH
and signs the resigning-from-office declaration, attached hereto as Schedule 7.1.1; Seller
3, as managing director of ARAPP GmbH signs notarially certified the according application to the commercial register. |
7.1.2
ARAPP GmbH, represented by Sellers 2 and 3,
and Seller 1 sign the agreement as attached hereto as Schedule
7.1.2 terminating the employment relationship of Seller 1 with ARAPP
GmbH (the "RS Agreement").
| 7.1.3 | ARAPP KG, Seller
2 and MK Immobilien GbR sign the agreement as attached hereto as Schedule
7.1.3 transferring the employment relationship of Seller 2 with ARAPP
KG to MK Immobilien GbR (the "KS Agreement"). |
| 7.1.4 | Seller 3 signs the written declaration attached hereto
as Schedule 7.1.4 according to which he undertakes to take all necessary measures to transfer
all domains registered in his name (cf. Schedule 9.9.1) to ARAPP KG against reimbursement of
all cost in relation thereto. |
| 7.1.5 | The Sellers sign the confirmation and waiver declaration
attached hereto as Schedule 7.1.5. |
| 7.1.6 | The Purchaser shall pay to the Sellers
the Purchase Price as set forth in Section 5 of this Agreement. |
| 7.1.7 | The Parties shall
obtain the Payment Confirmations. |
| 7.1.8 | The ARAPP KG and Seller
3 sign the managing director's agreement (the "MS Agreement"), as
attached hereto as Schedule 7.1.8. The Seller 3
shall be appointed as managing director of the New General Partner with relief from
the restrictions pursuant to § 181 Alt. 2 BGB. |
| 7.1.9 | The Purchaser, the Sellers,
the General Partner, the New General
Partner and ARAPP GmbH respectively sign (unterzeichnen) notarially
certified the application to the commercial register regarding the transfer of the ARAPP KG Shares
pursuant to Section 2.2 (cf. Schedule 4.3) and hereby irrevocably instruct and commission
the acting notary to submit the application as provided in Section 4.3). |
| 7.2 | Withdrawal from Agreement. If the Closing
Actions, including in particular the full payment of the Purchase Price, are
not performed until the expiration of the second Banking Day after the date hereof
or until the expiration of such other date as mutually agreed in writing between the Purchaser
and the Sellers, each of the Purchaser
and the Sellers shall be entitled to withdraw from this Agreement
(Rücktritt) with effect for all other Parties without prior notice (ohne
Einhaltung einer Frist). Neither the Sellers nor the Purchaser
may withdraw from this Agreement if (i) they have/it has in bad faith (wider Treu
und Glauben) prevented the performance of a Closing Action or (ii) the non-performance
of a Closing Action is within their/its control. In case of a withdrawal the effectiveness
of this Section 7.2, Section 17 (Confidentiality) and Section 21 (Miscellaneous) shall remain unaffected. |
Section
8
LOCKED BOX PROCEDURE
| 8.1 | General. Each Seller warrants and covenants
to Purchaser that, between the Locked Box
Date and the Closing Date, neither he nor any Affiliate
of such Seller has benefited from any Leakage. |
| 8.2 | Leakage. "Leakage" shall
mean |
| 8.2.1 | any dividend distribution whether actual or deemed by any ARAPP Company
to the Sellers or any of their Affiliates
(except resulting from sale of the Real Property as set forth in Sections 6.3.1
and 6.3.2); |
| 8.2.2 | any payments made by any ARAPP Company to the Sellers
or any of their Affiliates in respect of any loan notes or other debt instruments
issued by any ARAPP Company; |
| 8.2.3 | the waiver by any ARAPP Company of the benefit of
any amount contractually or statutorily owed to that ARAPP Company by the Sellers
or any of their Affiliates; |
| 8.2.4 | any other payment in cash or in kind made by any ARAPP Company
to the Sellers or any of their Affiliates; |
but, in each case, excluding
any Permitted Payments.
| 8.3 | Permitted Payments. "Permitted
Payments" shall mean the payment or distribution (whether in cash or in kind) by any ARAPP Company
to the Sellers or any of their Affiliates
of the following: |
| 8.3.1 | all monies owed to the Sellers 1, 2 and 3 on the
basis of the managing director or employment agreements in existence until today; |
| 8.3.2 | the payments to the Seller 1 and MK
Immobilien GbR pursuant to the agreements referred to in Sections 6.1.1 and 6.1.4; |
| 8.3.3 | the real estate sales agreements set forth in Sections 6.3.1 and 6.3.2; and |
| 8.3.4 | all other monies payed to the Sellers 1, 2 and 3
as listed on the CF-DF Permitted Payments Schedule attached hereto as Schedule
8.3.4. |
| 8.4 | Obligation to repay. Each Seller undertakes
to pay to Purchaser an amount equal to any Leakage
he received in breach of Section 8.1. |
| 8.5 | Notice Requirement. Any Seller shall not be
liable for any claim under Section 8.4 unless written notice has been given to such Seller
(as appropriate) on or before the date which is 24 months following the Closing Date. |
Section
9
REPRESENTATIONS OF THE SELLERS
General. Each of the Sellers
hereby represents to Purchaser that the following statements are correct in each
case as of the date of this Agreement (the
Closing Date), unless it is specifically provided for that a representation shall be made as of a different date in which
case the representation shall be made as of such different date; whereby it is understood by the Parties
that (i) Sellers shall be liable for any breaches of the representations in this
Section 9 irrespective of any fault of any Seller (verschuldensunabhängig)
within the meaning of Section 311 BGB; (ii) Sellers' liability and its preclusion
shall be subject to the modalities and limitations set forth in Section 10 and Section 14; and (iii) in view of these modalities
and limitations the representations shall not constitute warranties of condition (Beschaffenheitsgarantien) within the meaning
of Section 444 BGB but a contractual liability regime of its own kind (vertragliches Haftungsregime sui generis).
| 9.1.1 | The Sellers 2 and 3 are the sole legal and beneficial
owners of the ARAPP GmbH Shares, in respect of which they are unrestrictedly entitled
to dispose of. The ARAPP GmbH Shares are not pledged (verpfändet), attached
(gepfändet), or otherwise encumbered (belastet) with any third party rights and are not subject to any (i) trust
arrangement (Treuhandverhältnis), silent partnership (stille Beteiligung), sub-participation (Unterbeteiligung)
or similar arrangement; or (ii) pending transfer or other disposition (Verfügung). The ARAPP
GmbH Shares represent all outstanding shares in ARAPP GmbH. |
| 9.1.2 | The Sellers 2 and 3 may freely dispose of the ARAPP
GmbH Shares and do not require any consent of a third party and a disposal does not result in any infringement of any third
party right. |
| 9.1.3 | The Sellers are the sole legal and beneficial owners
of the ARAPP KG Shares, in respect of which they are unrestrictedly entitled to dispose
of. The ARAPP KG Shares are not pledged (verpfändet), attached (gepfändet),
or otherwise encumbered (belastet) with any third party rights and are not subject to any (i) trust arrangement (Treuhandverhältnis),
silent partnership (stille Beteiligung), sub-participation (Unterbeteiligung) or similar arrangement; or (ii) pending
transfer or other disposition (Verfügung). |
| 9.1.4 | The ARAPP KG Shares are all the shares in ARAPP KG
owned by the Sellers and represent 31.25 % of all participations in ARAPP
KG, with the balance owned by ARAPP GmbH. |
| 9.1.5 | The Sellers may freely dispose of the ARAPP KG Shares and do not require any consent of a third
party and a disposal does not result in any infringement of any third party right. |
| 9.1.6 | Each Seller has the requisite power and authority
to execute this Agreement and perform its obligations under and the transactions
contemplated in this Agreement. The execution and consummation of this Agreement
do not conflict with any other contractual or statutory obligations by which the Sellers
are bound. |
The representations in
this Section 9.1 are given by the Sellers 1 through 3 only with respect to their
respective parts of the ARAPP GmbH Shares and ARAPP
KG Shares as described in the preamble.
| 9.2.1 | The statements made in the second through fourth and sixth recitals of the preamble are true and
accurate in all respects. |
| 9.2.2 | ARAPP GmbH is a further limited partner (Kommanditist)
in ARAPP KG with the ARAPP GmbH KG Share and is the sole owner of all shares or interest
in ARAPP US and – after having ceased to be a limited partner in MRK Immobilien GmbH & Co. KG – does neither directly
nor indirectly hold any shares or other ownership interests in any other company and is under no obligation to acquire any shareholdings
or interests in other incorporated or unincorporated enterprises, parts of such shareholdings or interests or otherwise parts of
business assets or business premises. The shares in ARAPP US have been validly issued in compliance with applicable law. ARAPP
GmbH holds full and unrestricted legal and beneficial title (uneingeschränkte rechtliche und wirtschaftliche Inhaberschaft)
to the shares in ARAPP US. |
| 9.2.3 | ARAPP KG does neither directly nor indirectly hold
any shares or other ownership interests in any company and is under no obligation to acquire any shareholdings or interests in
other incorporated or unincorporated enterprises, parts of such shareholdings or interests or otherwise parts of business assets
or business premises. |
| 9.2.4 | ARAPP US does neither directly nor indirectly hold
any shares or other ownership interests in any company and is under no obligation to acquire any shareholdings or interests in
other incorporated or unincorporated enterprises, parts of such shareholdings or interests or otherwise parts of business assets
or business premises. |
| 9.2.5 | The ARAPP GmbH Shares, the ARAPP
KG Shares and the shares in ARAPP US are fully paid up. All contributions have been made in compliance with applicable law
and have not been repaid or returned, in whole or in part, whether open or hidden, directly or indirectly. The provisions of the
German Commercial Code (HGB) and the German Limited Liability Company Act (GmbHG) in relation to capital increase
or similar procedure affecting the limited liability capital (Stammkapital und Kommanditkapital), limited liability
capital maintenance and profit distribution have been complied with. There are no obligations to make further contributions (keine
Nachschusspflichten). |
| 9.2.6 | Attached as Schedule 9.2.6 is the latest version of ARAPP KG's partnership
agreement dated October 20, 2009; it has not been further amended or supplemented. |
| 9.2.7 | Attached hereto as Schedule 9.2.7 is the latest version of ARAPP GmbH's
articles of association dated October 20, 2009; they have not been further amended or supplemented. |
| 9.2.8 | Attached hereto as Schedule 9.2.8 is the latest version of ARAPP US's
articles of association and by-laws; they have not been further amended or supplemented. |
| 9.2.9 | There are no partners' resolutions, shareholders' resolutions or other facts which require any
registration in any public register or any public corporate records, in particular in the commercial register of ARAPP KG, ARAPP
GmbH or ARAPP US that are not registered yet. |
| 9.2.10 | None of the ARAPP Companies is party to any enterprise
agreement (Unternehmensvertrag) with any third party in the meaning of §§ 291, 292 of the German Stock Corporation
Act (Aktiengesetz / AktG), such as domination and/or profit and loss transfer agreements, or to other agreements which grant
a share in the ARAPP Companies' profit or a right with respect to the corporate governance
to third parties, including typical or atypical silent participations (stille Gesellschaften), single-entity agreements
(Organschaftsverträge), voting trust agreement (Stimmbindungsverträge), sub-participation agreements (Unterbeteiligungsverträge)
or loans with profit participation (partiarische Darlehen). No participation rights (Genussrechte) have been granted. |
| 9.3 | Financial Statements and Accounting. |
| 9.3.1 | The financial statements of ARAPP GmbH as of December
31, 2013 (unaudited) (the "ARAPP GmbH 2013 Financials") and as of
December 31, 2014 (unaudited) (the "ARAPP GmbH 2014 Financials")
(collectively the "ARAPP GmbH Financials") comply in all material
respects with applicable accounting principles and all applicable laws. |
| 9.3.2 | The audited financial statements of ARAPP KG as of
December 31, 2013 (the "ARAPP KG 2013
Financials") and as of December 31, 2014 (the "ARAPP
KG 2014 Financials") (collectively the "ARAPP KG Financials")
comply in all material respects with applicable accounting principles and all applicable laws. |
| 9.3.3 | The unaudited financial statements of ARAPP US as
of December 31, 2013 (the "ARAPP US 2013 Financials") and the draft
financial statements of ARAPP US as of December 31, 2014 (the "ARAPP US 2014 Financials")
(collectively the "ARAPP US Financials") comply in all material
respects with applicable accounting principles and all applicable laws. |
| 9.3.4 | The ARAPP GmbH Financials and the ARAPP
KG Financials were prepared using generally accepted German accounting principles, and the ARAPP
US Financials were prepared using U.S. generally accepted accounting principles (U.S. GAAP); each including capitalization
rights (Aktivierungswahlrechte) and valuation principles (Bewertungsgrundsätze) consistent with past accounting
practices of the relevant ARAPP Company. They present a true and fair view of the
assets and liabilities (Vermögenslage), financial position (Finanzlage) and earnings position (Ertragslage)
of the relevant ARAPP Company as of their respective dates. |
| 9.4.1 | Since January 1, 2015 the ARAPP Companies have carried
out their respective businesses in the ordinary course in accordance with past practice including with respect to the collection
of accounts receivable, the purchase and disposal of inventory, the conclusion of agreements and the settlement of accounts payable.
The Purchaser is aware of the acquisition of a production machinery at a price of
approximately EUR 525,000. |
| 9.4.2 | Since January 1, 2015 there has not been any material change in the assets and liabilities, financial
position or profits and losses (Vermögens-, Finanz- oder Ertragslage) of the ARAPP
Companies. |
| 9.4.3 | Since January 1, 2015 there has not been any reorganization, increase or decrease of capital, restructuring
of any ARAPP Company. |
| 9.4.4 | Schedule 9.4.4 sets forth a complete list of all orders stated in
ARAPP KG's order backlog as per February 18, 2015. Except as set forth in Schedule
9.4.4, the Sellers do not have Knowledge
of any facts or circumstances that any such order may be cancelled. |
| 9.4.5 | The ARAPP Companies have not been awarded any subsidies,
allowances, aids and other public grants within the past 10 (ten) years. |
9.4.6
Except as specified in Schedule 9.4.6 there are no inter-company agreements (e.g. cash
pooling and loan agreements) between any of the ARAPP Companies on the one side and
any of the Sellers or their Affiliates on
the other side. Except as specified in Schedule 9.4.6 the ARAPP Companies
do not provide collaterals for the liabilities of Sellers or their Affiliates.
| 9.4.7 | Except as set forth in Schedule 9.4.7, none of the ARAPP
Companies has paid any amounts in excess of EUR 25,000.00 for any asserted claims with respect to any product sold
or delivered by the ARAPP Companies (collectively, the "ARAPP
Products") in the last three years prior to Closing Date arising
out of the non-conformity of any ARAPP Product with (i) the usual specifications
for such ARAPP Product, (ii) all applicable contractual commitments or (iii) all
applicable expressed and implied warranties. Except as set forth in Schedule 9.4.7, none of the
ARAPP Companies has received any written notice that a customer intends to assert
a claim described above against any ARAPP Company. |
| 9.5 | Assets and Liabilities. |
| 9.5.1 | Except as set forth in Schedule 9.5.1 and except for retentions
of title (Eigentumsvorbehalte), similar customary contractual or statutory security interests incurred in the ordinary course
of business, the ARAPP Companies hold full and unrestricted title of ownership to
all fixed assets (Anlagevermögen) currently used in their respective business, and such fixed assets comprise all and
only fixed assets which are required for the ARAPP Companies to carry on their respective
businesses as currently carried out. |
| 9.5.2 | Subject to normal wear and tear, the plant and machinery (technische Anlagen und Maschinen)
are adequate for the conduct of the current business of the ARAPP Companies. |
| 9.5.3 | All inventory (Vorräte as defined by German GAAP) which is supposed to be sold in the
ordinary course of business of the ARAPP Companies is in good and usable condition
and is likely to be sold at the respective market price. |
| 9.5.4 | Except as disclosed in Schedule 9.5.4 ARAPP Companies
have not granted and are not obliged to grant any surety (Bürgschaft), guarantee (Garantie), comfort letter
(Patronaterklärung) or assumption of debt (Schuldbeitritt) to anyone. |
| 9.6.1 | ARAPP KG and ARAPP GmbH are (still) the legal owners
of the real property listed in Schedule 9.6.1 (the "Real
Property"), which was sold to MK Immobilien GbR
prior to the Closing Date. The ARAPP Companies
do not own any further real property nor rights similar to real property (grundstücksgleiche Rechte), including, hereditary
building rights (Erbbaurechte). No ARAPP Company is under any obligation to
acquire real property or any heritable building right. |
| 9.6.2 | Except as disclosed in Schedule 9.6.2, all necessary building
permits for the current use of the Real Property have been obtained. |
| 9.6.3 | ARAPP US maintains its principle place of business
at 2400 Augusta Drive, Suite 285, Houston, TX 77057, USA under the lease attached hereto as Schedule 9.6.3.
ARAPP US has not been sued by either the lessor or any third party on the basis of
actual or alledged violations of said lease agreement. The lessor has not given written notice that he will assert claims against
ARAPP US arising out of the lease maintained in Houston. |
| 9.6.4 | With respect to the Real Property no public charges
for any development measures are open and no development measures have been undertaken within the last 5 (five) years prior to
the Closing Date which would make such public charges likely. |
| 9.7.1 | Schedule 9.7.1 sets forth a complete and accurate list as of
the date stated of all employees of the ARAPP Companies (including, for the avoidance
of doubt, the members of the management) (indicating age, severe disabilities, employer, date of employment, term-limitations,
full-time or part-time, function, non-compete obligations, and annual remuneration including variable elements and other fringe
benefits) as of the date stated therein. |
| 9.7.2 | Schedule 9.7.2 contains a complete and accurate list of all existing
share incentive or share option schemes or other equity based employee programs, all profit sharing entitlements, bonuses, commissions
and other incentive schemes. |
| 9.7.3 | The ARAPP Companies have fulfilled all payment and
other obligations when due to their respective employees including managing directors or similar executives. |
| 9.7.4 | Schedule 9.7.4 contains a complete and correct list of all written
agreements with works councils and other employee representative bodies, collective bargaining agreements (including firm wide
collective bargaining agreements), works agreements, and general promises made to all employees (Gesamtzusagen) valid and
in force at the ARAPP Companies. |
| 9.7.5 | To Sellers' Knowledge there are no claims by employees
under the Employee Inventions Act (Arbeitnehmererfindungsgesetz). |
| 9.7.6 | Other than statutory pension rights (Gesetzliche Rentenversicherung) and other than disclosed
in Schedule 9.7.6 no pension or retirement schemes or any other similar commitments or arrangements
with any managing directors, similar executives or employees (including former employees) have been made or promised by any ARAPP
Company. |
| 9.7.7 | Except as disclosed in Schedule 9.7.7 , as of the date stated
therein no employee has terminated his or her employment relationship with the respective ARAPP Company
in writing or has given written notice of his or her intention to terminate his or her employment relationship. |
| 9.8.1 | Schedule 9.8.1 contains a correct and complete list of the following
agreements, and correctly states for each such agreement the type of agreement, parties, date and nature as well as the date of
any ancillary agreements, amendments, side letters, waivers and similar documents, if any (the agreements listed or to be listed
in Schedule 9.8.1 the "Material Agreements"): |
| · | credit agreements with any ARAPP Company as a lender
or borrower in excess of EUR 10,000.00; |
| · | license agreements with any ARAPP Company as licensee
or licensor providing for an annual license fee in excess of EUR 50,000.00; |
| · | real estate lease agreements with any ARAPP Company
as landlord or tenant (except the lease agreements with MK Immobilien GbR as set forth in Section 6.3.3); |
| · | agreements with independent dealers and distributors, franchise agreements or other distribution
agreements; and |
| · | consultancy agreements (Beraterverträge) providing for an annual remuneration in excess
of EUR 25,000.00. |
| 9.8.2 | To Sellers' Knowledge the Material
Agreements are in full force and effect and are enforceable against the parties thereto in accordance with their terms and
no party to a Material Agreement has given written notice of termination or indicated
in writing that it will give notice of termination. |
| 9.8.3 | No commission payments or other forms of remuneration or compensation paid to sales agents were
meant to serve for purposes outside the ordinary and lawful course of business. None of the ARAPP
Companies have ever paid any sales agent a special compensation for extraordinary expenses or additional commissions to
address competitive situations. |
| 9.8.4 | ARAPP Companies are not a party to any agreement
or letter of intent directly or indirectly relating to joint ventures, consortiums, co-operations (e.g. for joint research and
development, marketing or joint purchasing or distribution) or associations. |
9.8.5
No ARAPP Company is a party to any agreement according to which any
third party, including ARAPP Companies's employees, may claim any payment or compensation
against any ARAPP Company or the
Purchaser upon the consummation of this Agreement.
| 9.9 | Intellectual Property Rights. |
| 9.9.1 | Except for the intellectual property rights listed in Schedule 9.9.1
no patents, patent applications, utility models, trademarks, design rights, business names or internet domains are registered on
behalf of ARAPP Companies. |
| 9.9.2 | To Sellers' Knowledge no ARAPP
Company has infringed any third party intellectual property rights nor have third parties asserted such an infringement. |
| 9.9.3 | The ARAPP Companies own, or have acquired valid rights
or licenses to use, all computer hardware, software, communication systems, networks and other information technology (collectively
"Information Technology") which they need in order to carry on their
business as presently conducted. |
Except as disclosed in
Schedule 9.10, there is (also with respect to tax and administrative proceedings) no pending
(rechtshängige) litigation, either before court or an arbitration tribunal (gerichtliche Rechtsstreitigkeiten und
Schiedsverfahren) or otherwise, criminal proceedings or investigations or other investigations by any authority, in which an
ARAPP Company is involved, either as plaintiff, defendant or otherwise, and to Sellers'
Knowledge no such proceedings have been threatened.
| 9.11 | Permits and Export Control. |
| 9.11.1 | To Sellers' Knowledge the ARAPP
Companies have been granted all governmental approvals, governmental licenses and governmental permits necessary to operate
their respective businesses as they are conducted as of the Closing Date. To Sellers'
Knowledge all licenses and permits have been lawfully obtained and are valid and none of such licenses and permits has been
revoked, modified or restricted as a whole or in part, and to Sellers' Knowledge
there are no circumstances which would justify such revocation, modification or restriction in the future. |
| 9.11.2 | To Sellers' Knowledge the ARAPP Companies
have not violated any applicable export regulations and foreign trade laws. To Sellers'
Knowledge the products of the ARAPP Companies do not qualify as so called
dual-use-products, i.e. products fit for both civil and military use, in the meaning of any applicable export law regulation, in
particular (but not only) the products are, to Sellers' Knowledge, not and have never
been listed on the dual-use-list as set out in Annex I to EU-Regulation 428/2009 in its currently applicable form. |
| 9.11.3 | The ARAPP Companies have never directly delivered
products to Algeria, India, Iraq, Iran, Israel, Jordan, Libya, Northkorea, Korea, Pakistan, Syria or Cuba which were, to Sellers'
Knowledge, meant to be used for nuclear power stations. |
| 9.12 | Restrictions and Compliance. |
| 9.12.1 | The ARAPP Companies are not subject to any restrictions,
which could affect, limit or interfere with their business, assets or competition or purchase or sale of goods, neither by judgements
rendered in court proceedings or administrative proceedings nor by settlements agreed upon. There is no agreement (including any
proposal capable of acceptance by unilateral act of any person) or judgment, injunction, order or decree binding upon the ARAPP
Companies, that would reasonably be expected to prohibit, impair or otherwise limit,
whether before or after the Closing Date, (i) any business practice of the ARAPP
Companies; (ii) any acquisition of property (tangible or intangible) by the ARAPP
Companies; (iii) the conduct of business by the ARAPP Companies;
or (iv) the freedom of the ARAPP Companies to engage in any line of business or to
compete or do business with any person. |
| 9.12.2 | The ARAPP Companies have not, directly or indirectly,
in connection with the business of the ARAPP Companies (i) used any funds of the
ARAPP Companies for bribes (Schmiergelder) or political contributions in violation
of applicable laws; or (ii) requested or accepted any bribes or other unlawful benefits. |
| 9.13.1 | All insurance policies are listed to in Schedule 9.13.1. |
| 9.13.2 | Except as disclosed in Schedule 9.13.2, within the last three
years the ARAPP Companies have not asserted any insurance claims and no assertion
of any insurance claims has been rejected. |
| 9.13.3 | The ARAPP Companies have at all times timely paid
due premiums and there are no premium payments outstanding. |
| 9.14.1 | Each ARAPP Company has duly and timely filed in accordance
with applicable law all returns, forms and other statements required to be filed by such ARAPP
Company for Taxes (collectively the "Tax
Returns"). No ARAPP Company is currently subject to any audit, examination
or similar proceedings by any tax authority; except the tax audit of ARAPP KG and ARAPP GmbH
which recently commenced. |
| 9.14.2 | All due Taxes to be paid or withheld by any ARAPP
Company have been duly paid or withheld and remitted to the appropriate tax authority. |
| 9.14.3 | The term "Taxes" shall mean all
direct, indirect or ancillary taxes, duties, and social security or other similar contributions imposed by any regional, national
or other authority or body, and all related charges, interest, penalties, fines and expenses including, without limitation, any
taxes, levies or duties within Section 3 German Tax Code (Abgabenordnung). |
| 9.14.4 | ARAPP KG and ARAPP GmbH have not paid or agreed to pay any fees or expenses payable to professional
advisers acting on behalf of the Sellers in connection with the Transaction. |
| 9.14.5 | No binding rulings have been issued by tax authorities to ARAPP KG or to ARAPP
GmbH which are still relevant for the Tax situation of these entities and
no bindings Tax rulings have been applied for by either ARAPP KG or ARAPP
GmbH. |
Section
10
REMEDIES FOR BREACH OF REPRESENTATIONS
| 10.1 | Breach; Damages. Subject to the provisions
of this Section 10 and Section 14, if any representation of Sellers in Section 9
is incorrect (a "Breach"), Sellers
shall put the Purchaser into the same position it would be in if the Breach
had not occurred. Purchaser shall be entitled to request from Sellers
that this position is provided by remediation in kind (Naturalrestitution), unless remediation in kind (i) is not permitted
by the nature of the Breach or (ii) cannot be effected by Sellers
with reasonable efforts. If and to the extent that (a) although Purchaser is entitled
to remediation in kind, (b) remediation in kind is not permitted by the nature of the Breach
or (c) remediation in kind has not been effected by Sellers within a period of one
(1) month after a written request for such remediation has been made by Purchaser,
Purchaser shall be entitled to request from Sellers
compensation in cash (Schadensersatz in Geld) for damages (the "Damages")
which Purchaser or the ARAPP Companies
have suffered or incurred and would not have suffered or incurred if the representation in question were correct. The term Damages
does not include indirect or consequential damages (except any expenses and costs, e.g. transport, dismantling and installation
cost, accruing in the course of rectifying direct damages resulting from defective ARAPP
Products, and except reasonable attorneys' and expert fees), reduction of revenues or profits, damage to good will or otherwise
based on an alleged inadequacy of the Purchase Price. |
| 10.2 | Disclosure; deemed Knowledge. Purchaser shall
not have a claim under Section 10.1, if and to the extent that the circumstances constituting the respective Breach
(i) have been disclosed to Purchaser, its advisors or its Affiliates
during the due diligence prior to the execution of this Agreement;
or (ii) the Purchaser, its advisors or any of its Affiliates
had Knowledge of such circumstances. |
| 10.3 | Time Limitations. Any claims of Purchaser
under Section 10 with regard to the warranties under Sections 9.1 and 9.2 shall be time-barred (verjähren) with the
expiration of 45 months from the Closing Date, any claims under Section 10 with regard
to the warranties under Section 9.3 through 9.14 shall be time-barred (verjähren) with the expiration of 24 months
from the Closing Date. |
Section
11
REPRESENTATIONS OF PURCHASER
| 11.1.1 | Purchaser has been duly established and validly exists
as a German partnership (GmbH & Co. KG) under the laws of Germany. Purchaser
is a wholly owned indirect subsidiary of Circor US. |
| 11.1.2 | All required approvals of any corporate bodies of Purchaser
have been obtained. |
| 11.1.3 | This Agreement constitutes (and all other documents
executed by Purchaser under or in connection with this Agreement
will, when executed, constitute) legal, valid and binding obligations of Purchaser
enforceable in accordance with their terms. |
| 11.2 | Remedies of Sellers. In the event that Purchaser
is in breach of any representation in Section 11.1, the provisions in Section 10 shall apply mutatis mutandis. The
limitation period for any claims of Sellers shall be 24 months as from the Closing
Date. |
Section
12
TAX INDEMNITIES
| 12.1 | General. Subject to the provisions of this Section 12 and Section 14, the Sellers
shall hold harmless (freistellen) and indemnify Purchaser from and against
any Taxes imposed on the ARAPP Companies
in accordance with applicable laws relating to any periods ending on or before December 31, 2014 if and to the extent that such
Taxes have not been fully paid on or prior to December 31, 2014. Sellers'
payment obligation pursuant to this Section 12.1 shall become due on the date on which the ARAPP
Companies have paid the respective Taxes. |
| 12.2 | Limitations of Claims. Without prejudice to Section 14, Purchaser
shall not have a claim under Section 12.1 if and to the extent that: |
| 12.2.1 | the ARAPP Companies are, as the result of a circumstance
giving rise to the Taxes for which indemnification is sought, entitled to any benefits
by refund, set-off or a reduction of Taxes (e.g. in the case of a lengthening of
amortization or depreciation periods or higher depreciation allowances); or |
| 12.2.2 | the Taxes result directly or indirectly from the
transfer of the ARAPP GmbH Shares and/or the ARAPP
KG Shares to the Purchaser; or |
| 12.2.3 | the Taxes result from any change in the accounting
or taxation principles or practices of the ARAPP Companies (including methods of
submitting Tax Returns) introduced after December 31, 2014; or |
| 12.2.4 | the Taxes result from (i) any changed interpretation
of applicable tax laws by any tax authority and/or changed practice of any tax authority after the Closing
Date with retroactive effect; or from (ii) legislation being introduced or amended after the Closing
Date which is to restate or amend any applicable laws with retroactive effect; |
| 12.2.5 | the Taxes result from any reorganization of the ARAPP
Companies after the Closing Date with retroactive effect; or |
| 12.2.6 | the Taxes result from an adjusted valuation and/or
the sale of the Real Property as set forth in Sections 6.3.1 and 6.3.2. |
12.3
Time Limitations. Any claims of Purchaser under this Section 12.1 shall
be time-barred 6 (six) months after the final and binding assessment (formell und materiell bestandskräftige Festsetzung)
of the relevant Tax.
| 12.4 | Pensions. Other than set
forth above, the Purchaser shall be entitled to claims regarding Taxes
which accrue in relation to the steps set forth in Section 6.1 of this Agreement
and, thus, from measures taken after December 31, 2014. |
Section
13
ENVIRONMENTAL MATTERS
| 13.1 | General. The Purchaser has inspected the Real
Property and received documentation from the Sellers concerning known or suspected
adverse environmental conditions. |
| 13.2 | Indemnification of Purchaser. Sellers
shall fully indemnify Purchaser with respect to any obligations or disadvantages
of any kind that may arise under public or private law as a consequence of any binding claims or acts of public authorities or
any other third party in connection with the existence of any Environmental Damage, caused
prior to the Closing Date. |
| 13.3 | Environmental Damage. "Environmental
Damage" within the meaning of this Agreement includes any pollution
or contamination of the built or natural environment at, on or under the Real Property,
including the air therein, any underground structures, technical facilities, or any parts thereof. |
13.4
Time Limitations. Any claims of Purchaser under this Section 13 shall
be time-barred 6 (six) months after the relevant Environmental Damage has become
apparent, but in any event after the expiration of a period of three years from the Closing
Date.
| 13.5 | Indemnification of Sellers. The Purchaser
shall fully indemnify the Sellers and any of their Affiliates
with respect to any obligations or disadvantages of any kind that may arise under public or private law as a consequence of any
binding claims or acts of public authorities or any other third party in connection with the existence of any Environmental
Damage caused after the Closing Date. |
Section
14
GENERAL EXCLUSIONS AND
LIMITATIONS OF SELLERS' LIABILITY
| 14.1 | General Exclusions. Without prejudice to other exclusions or limitations set forth in this
Agreement, Purchaser shall not have
a claim under Section 10.1, Section 12 or Section 13 if and to the extent that: |
| 14.1.1 | the Damages, Taxes
or Environmental Damages are the result of a failure by Purchaser
of its obligation to avoid or mitigate damages (Section 254 BGB); or |
| 14.1.2 | the Damages, Taxes
or Environmental Damages were recorded as a liability, accrual (Rückstellung),
depreciation (Abschreibung) or write-down (Wertberichtigung) in any of the ARAPP
2014 Financials; or |
| 14.1.3 | the Damages, Taxes
or Environmental Damages are recoverable with reasonable efforts by a third party
(including in particular an insurance company). |
| 14.2 | Third Party Claims. In the event that any third party asserts, pursues or notifies any action,
claim or proceeding which may lead to the Purchaser seeking to recover from the Sellers
under this Agreement (including, for the avoidance of doubt, regarding
Taxes), the Purchaser shall promptly notify the Sellers'
Representative thereof. The Purchaser shall give the Sellers
a reasonable opportunity to participate in the defense of any action, claim or proceeding. The Purchaser
shall be obliged to cooperate with the Sellers in such defense, in particular, at
the Sellers' request make available to the Sellers
and its advisors all relevant books, records and other information available to the Purchaser,
to the extent required or appropriate in connection with the defense. The Purchaser
shall not admit, settle, pay, discharge any such assessment or claim against it or any ARAPP
Company without the prior written consent of the Sellers, such consent not
to be unreasonably withheld – particularly if Tax payments are to be made -,
in which case all claims of the Purchaser against the Sellers
shall be deemed forfeited. |
| 14.3 | Joint and several Liability. The Sellers shall
be liable jointly and severally. |
| 14.4 | Minimum Amounts of Liability. Sellers shall
be liable for Damages or Environmental Damages
only if and to the extent that: |
| 14.4.1 | such Damages or Environmental
Damages exceed EUR 25,000.00 (the "De Minimis Amount");
and |
| 14.4.2 | the aggregate amount of all Damages or Environmental
Damages above the De Minimis Amount exceed EUR 1,000,000.00 (the "Threshold
Amount"); in case the Threshold Amount is exceeded, Purchaser
shall be entitled to recovery of the amount of all Damages or Environmental
Damages in excess of the Threshold Amount. |
For the avoidance of doubt
it is agreed that the De Minimis Amount shall not apply to Taxes
and claims which result from a breach of any obligation under Section 8.1 (leakage
under the locked box procedure under Section 8).
| 14.5 | Maximum Amount of Liability. The total liability of each Seller
for Damages, Taxes or Environmental
Damages shall not exceed EUR 10,000,000.00 (the "Cap"),
except that the Cap shall not apply to any acts of fraud or willful misconduct. |
| 14.6 | Exclusion of Other Remedies. The Parties are
in agreement that the remedies provided in this Agreement shall be the exclusive
remedies available to Purchaser against the Sellers
and supersede any statutory warranties (kaufrechtliche Gewährleistungen) which may exist in parallel with regard to
the subject-matter of this Agreement. In connection with this Agreement,
in particular, without limitation, any claims against Sellers based on statutory
warranties and/or other warranty rights including but not limited to (i) any right of Purchaser
to rescind (zurücktreten) from this Agreement or to require the unwinding
of the Transaction contemplated therein (e.g. by way of großer Schadenersatz
or Schadenersatz statt der Leistung); (ii) any claim for reduction of purchase price (Minderung); (iii) any claim
for breach of pre-contractual obligations (culpa in contrahendo, Sections 241 (2), 311 (2) BGB); and (iv)
any claim for frustration of contract pursuant to Section 313 BGB (Störung der Geschäftsgrundlage), (v) violation
of ancillary duty of care (positive Vertragsverletzung) or (vi) tort (Delikt) shall be excluded, save for any remedies
of Purchaser in the event of willful deceit (arglistige Täuschung) or
intentional breach of contract (vorsätzliche Vertragsverletzung). |
Section
15
NON-COMPETE/NON-SOLICITATION
| 15.1 | Non-compete. For a period of two (2) years from the Closing
Date (the "Restricted Period"), Sellers
shall refrain from: |
| 15.1.1 | engaging, directly or indirectly, in any activity which is in competition with the ARAPP
Companies und said ARAPP Companies' businesses (such activities the "Competing
Activities") in the territories as set out in Schedule
15.1.1. The term "Competing Activities" shall mean
(a) the development, production or distribution of products which are (i) identical or comparable to the products developed, produced
or distributed by the ARAPP Companies in the time prior to the Closing
Date, unless the development, production and distribution of such products was ceased at least two years prior to the Closing
Date; or (ii) identical or comparable to the products under development on the Closing
Date; as well as (b) all services of the ARAPP Companies related to such products; |
| 15.1.2 | holding, directly or indirectly, any equity interest in any legal entity engaging, directly or
indirectly, in Competing Activities, except for equity interests that are held as
a financial investment only, i.e. do not give the right, directly or indirectly, to control or exert material influence over the
business of the respective legal entity which is deemed to be the case when Sellers
hold solely or together equity interest of not more than 10% in another entity; or |
| 15.1.3 | serving as a representative for any individual person or legal entity engaging, directly or indirectly,
in any Competing Activities. |
| 15.2 | Non-Solicitation. The Sellers undertake during
the Restricted Period not to solicit, and to procure that no Affiliates
of the Sellers solicit, any employees of the ARAPP Companies
without the prior consent of the Purchaser. Nothing shall, however, prevent the Sellers
or any of their Affiliates from hiring any employee: |
| 15.2.1 | who applies for any position with the Sellers or
any of their Affiliate (without solicitation by the Sellers
or of their Affiliates) that
is advertised publicly; or |
| 15.2.2 | whose employment or position has been terminated by the ARAPP Companies
for any reason after the Closing Date. |
| 15.3 | Damages. In the case of a breach by a Seller
of any of the obligations set forth herein, and notwithstanding all available defenses, such
Seller shall be liable to pay an amount of EUR 50,000.00 for each breach to either the Purchaser
or up to the discrection of the Purchaser to the relevant ARAPP
Company affected by the breach of covenant; any claim for further damages
remains unaffected thereby. |
Section
16
FILING WITH THE COMMERCIAL REGISTER
| 16.1 | Subject to receipt of the Payment Confirmations,
the Sellers hereby instruct the acting notary to submit without undue delay to the
commercial register an updated shareholders' list of ARAPP GmbH with notarial certificates
pursuant to § 40 (2) of the Limited Liability Companies Act and to submit copies of the updated lists to both the Sellers
and the Purchaser. |
| 16.2 | The Sellers undertake vis-à-vis the Purchaser
not to act as shareholder of ARAPP GmbH in the period between the Closing
Date and the inclusion of the shareholders' list submitted to the commercial register
by the notary (§ 16 (1) sentence 1 of the Limited Liability Companies Act). |
Section
17
CONFIDENTIALITY
| 17.1 | Confidentiality Undertaking. Each Party undertakes
to treat, and shall procure that its Affiliates treat, Proprietary
Information strictly confidential and refrain from disclosing it to any third parties, unless such disclosure is explicitly
permitted by this Agreement. |
| 17.2 | Proprietary Information. "Proprietary
Information" shall mean the contents of (a) this Agreement, (b) any
related agreements, and (c) related discussions and negotiations except for information that (i) has come into the public domain
or (ii) has been received from an independent source, save in either case where such information has come into the public domain
or been received from an independent source following a breach by either Party or
its Affiliates of any confidentiality obligation owed by it. |
| 17.3 | Mandatory Disclosures. A Party may disclose
Proprietary Information in particular with respect to the Transaction
if and to the extent that such disclosure is mandatory pursuant to applicable law, governmental or court order, stock exchange
regulations or required by any governmental, supervisory or regulatory body (including any body regulating take-overs). |
Section
18
SELLERS' REPRESENTATIVE
| 18.1 | Appointment of Sellers' Representative. The
Sellers hereby appoint and authorize Seller
3 as their legal representative (the "Sellers' Representative") |
| 18.2 | Functions of Sellers' Representative. The
Sellers' Representative shall have the authority to represent all Sellers
collectively to deliver to, and receive from, the Purchaser any and all declarations,
notices, official services (Zustellungen) and communication applicable or required under this Agreement
or any other instrument or agreement concluded in connection with this Agreement
or the Transaction contemplated herein. |
Section
19
NOTICES
| 19.1 | Notices. Declarations, notices and official services (Zustellungen) under this Agreement
shall be made in writing and be delivered personally to the addressee or, alternatively, be sent to the addressee by mail; in the
latter case, a declaration, notice oder official service (Zustellung) transmitted by facsimile shall be deemed to have been
made in time for purposes of a relevant deadline if received by the addressee's fax machine in time. Any declaration, notices or
official service (Zustellung) shall be addressed to: |
| 19.1.1 | in the case of the Sellers to Sellers'
Representative: |
Mr. Marc-Wilhelm Schroeder
Epelstraße 31,
D-51645 Gummersbach
with a copy to:
Dr. Jürgen Lüders
c/o Redeker Sellner Dahs
Willy-Brandt-Allee 11
D-53113 Bonn
Juergen.lueders@redeker.de
Fax.:+49 (228) 72625 99.
| 19.1.2 | in the case of the Purchaser: |
Arjun (J) Sharma
30 Corporate Drive, Suite 200
Burlington, MA 01803-4238 USA
aj.sharma@circor.com
Fax: +1 781 270 1296
with a copy to:
Dr. Sebastian Orthmann
c/o CMS Hasche Sigle
Stadthausbrücke 1 - 3
D-20355 Hamburg
sebastian.orthmann@cms-hs.com
Fax.:+49 (40) 376 30 40 537.
| 19.2 | Replacement of Sellers' Representative. The
Sellers shall be entitled to replace the Sellers'
Representative by another person or entity by giving joint notice by all Sellers
to this effect to Purchaser at Purchaser's
address stated above, and the newly appointed and authorized person or entity shall be the new Sellers'
Representative as of the tenth (10th) Banking Day from receipt
of such notice by Purchaser. |
| 19.3 | Change of Addresses. The Parties shall be
entitled to amend their addresses pursuant to Section 19.1 at any time, such change to become effective upon the tenth (10th)
Banking Day from receipt of such notice by the respective other Party
in accordance with Section 19.1. |
Section
20
GUARANTEE OF CIRCOR US
| 20.1 | Guarantee. Circor US herewith agrees to guarantee
the payment obligations of the Purchaser under this Agreement. |
| 20.2 | Defenses. Circor US herewith waives the defenses
of the benefit of discussion (Einrede der Vorausklage) and the right to rescind (Einrede der Anfechtbarkeit). |
Section
21
MISCELLANEOUS
| 21.1 | Interest on Default. Without prejudice to any other right or remedy vested in the Parties
pursuant to the provisions of this Agreement or based on applicable laws, during
a default (Schuldnerverzug), any due but unpaid amount hereunder shall bear interest at a rate of 10 % p.a. above the
base interest rate (Basiszinssatz within the meaning of Section 247 BGB). |
| 21.2 | Costs; Fees. All costs, including fees, expenses and charges, incurred in connection with
the preparation, negotiation, execution and consummation of this Agreement or the
Transaction contemplated herein, including, without limitation, the fees and expenses
of professional advisers, shall be borne by the Party having commissioned such costs.
The costs of the notarization and any transfer taxes (particularly Real Estate Transfer Taxes) shall be borne by the Purchaser. |
| 21.3 | Schedules. All Schedules
to this Agreement shall be an integral part of this Agreement.
In the case of a conflict between any Schedule and the provisions of this Agreement,
the provisions of this Agreement shall prevail. |
| 21.4 | Entire Agreement. This Agreement comprises
the entire agreement between the Parties concerning its subject matter and shall
supersede all prior agreements (whether oral or written; whether binding or non-binding) made by the Parties
in respect thereof. |
| 21.5 | Amendments. Any amendments to this Agreement
(including amendments to this clause) shall be valid only if made in writing, unless applicable mandatory law requires otherwise. |
| 21.6 | Interpretation. The headings in this Agreement
are inserted for convenience only and shall not affect the interpretation of this Agreement.
Wherever this Agreement refers to a contract or other agreement, such reference shall
apply to and include all ancillary agreements, arrangements, amendments, side letters, waivers and other legally binding statements,
if any, related thereto. |
| 21.7 | German Terms. Wherever this Agreement includes
English terms after which either in the same provision or elsewhere in this Agreement
German terms have been inserted in brackets and/or italics, the respective German terms alone and not the English terms shall be
authoritative for the interpretation of the respective provisions. |
| 21.8 | Language. This Agreement is made in the German
language. An English translation has been prepared. Nevertheless the German text shall only be authoritative. |
| 21.9 | Assignment. Without the written consent of the other Party,
no Party shall be entitled to assign any rights or claims under this Agreement
to any third party. |
| 21.10 | Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the Federal Republic of Germany excluding the CISG, without regard to principles
of conflicts of laws. |
| 21.11 | Arbitration. Any and all disputes among the Parties
arising under or in connection with this Agreement or its validity shall be finally
settled by arbitration in accordance with the Arbitration Rules of the German Institution of Arbitration e.V. (DIS) without recourse
to the ordinary courts of law. The arbitration court shall consist of three arbitrators. The venue of the arbitration shall be
Cologne. The language of the arbitration proceedings shall be German. |
| 21.12 | Severability. If one or more provisions of this Agreement
shall be invalid or unenforceable, the validity and enforceability of the other provisions of this Agreement
shall not be affected. In such case the invalid or unenforceable provision shall be deemed to have been replaced by such valid
and enforceable provision or provisions that reflect as closely as possible the commercial intention of the Parties
as regards the invalid or unenforceable provision. |
In the presence of the notary,
this Deed was read out, presented, approved and signed by personal signature:
| sgd. Arne Burmester |
|
|
|
sgd. Erdinc Ünükür |
| sgd. R. Schröder |
|
|
|
sgd. K. Schröder |
| [seal of the |
sgd. M. Schröder |
| Notary public] |
sgd. Schmitz, notary |
