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 "ARAPPGmbH"). |
| 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 theGeneral 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 thisAgreementtheSellers 1 through 3 are collectively referred to as the "Sellers";Circor US, theGeneral Partner, theNew General Partner andARAPP GmbH are collectively referred to as the "Participants"; thePurchaser,each of theSellers and each of theParticipantsare individuallyreferred to as a "Party"andcollectively 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
thePurchaseris 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 inPurchaserare indirectly owned byCircor 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"). |
TheSeller 1 ARAPP KG Share, theSeller 2 ARAPP KG Shareand the Seller 3 ARAPP KG Shareare collectively referred to in thisAgreement 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 ARAPPGmbH 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"). |
TheSeller 2 ARAPP GmbH Sharesand the Seller 3 ARAPP GmbH Sharesare collectively referred to in thisAgreement as the "ARAPP GmbH Shares".
WHEREAS
theGeneral Partner is the sole general partner of ARAPP KG, holding no participation in ARAPP KG.
WHEREAS
the New General Partner is selected by thePurchaser to replace theGeneral Partner as sole general partner of ARAPP KG in the course of theTransaction.
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
thePurchaseris interested in
| (i) | acquiring allARAPP KG Shares from theSellers; |
| (ii) | acquiring allARAPP GmbH Shares from theSellers 2and 3; and |
(iii) replacing theGeneral Partner of the ARAPP KG by theNew General Partner,
(the "Transaction").
NOW THEREFORE
theSellers, thePurchaser and theParticipants enter into thisAgreement.
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 thisAgreement: |
| 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 theAgreement and not to any particular section or subsection thereof. |
Section 2
SALE AND PURCHASE
| 2.1 | Sale and purchase ofARAPP GmbH Shares. Upon the terms and conditions of thisAgreement |
| 2.1.1 | Seller 2 hereby sells (verkauft) to thePurchaser who hereby buys (kauft) fromSeller 2 theSeller 2 ARAPP GmbH Shares, as defined and specified in the preamble; and |
| 2.1.2 | Seller 3 hereby sells (verkauft) to thePurchaser who hereby buys (kauft) fromSeller 3 theSeller 3 ARAPP GmbH Shares, as defined and specified in the preamble. |
| 2.2 | Sale and purchase ofARAPP KG Shares. Upon the terms and conditions of thisAgreement |
| 2.2.1 | Seller 1 hereby sells (verkaufen) to thePurchaserwho hereby buys (kauft) fromSeller 1 theSeller 1 ARAPP KG Share, as defined and specified in the preamble; |
| 2.2.2 | Seller 2 hereby sells (verkaufen) to thePurchaserwho hereby buys (kauft) fromSeller 2 theSeller 2 ARAPP KG Share, as defined and specified in the preamble; and |
2.2.3 Seller 3 hereby sells (verkaufen) to thePurchaserwho hereby buys (kauft) fromSeller 3 theSeller 3 ARAPP KG Share, as defined and specified in the preamble.
| 2.3 | Ancillary Rights. The sale and transfer of theARAPP GmbH SharesandtheARAPP 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 ofARAPP GmbH Shares. TheSellers 2 and 3 herewith assign theARAPP GmbH Sharesto the Purchaserwho herewith accepts such assignment; the assignmentshall be subject to (aufschiebend bedingt) the payment of thePurchase Price. |
| 3.2 | Transfer ofARAPP KG Shares. TheSellers herewith assign theARAPP KG Sharesto the Purchaserwho herewith accepts such assignment; the assignmentshall be subject to (aufschiebend bedingt) the payment of thePurchase Price and the registration of thePurchaser as legal successor by way of special legal succession (Sonderrechtsnachfolge) of theSellers in respect of all ARAPP KGShares with the commercial register. |
Section 4
EXCHANGE OF THE GENERAL PARTNER
| 4.1 | Joining of thenew general partner. TheParties agree and thenew general partner hereby irrevocably declares that thenew general partner joins ARAPP KG as general partner subject to (aufschiebend bedingt) the payment of thepurchase price in full. Thenew general partner shall not make a contribution to ARAPP KG and shall not hold an interest in ARAPP KG´s capital. Thenew general partner is hereby released from the restrictions to compete pursuant to Section 112 HGB. |
| 4.2 | Leaving of thegeneral partner. Theparties further agree and thegeneral partner hereby irrevocably declares that thegeneral partner leaves ARAPP KG as general partner subject only to thenew general partner joining ARAPP KG as general partner. Thegeneral partner shall not be granted any compensation by ARAPP KG, thenew general partner or thepurchaser from ARAPP KG´s assets and thegeneral partner hereby entirely waives its entitlement to compensation pursuant to Section 738 (1) sentence 2 BGB. |
| 4.3 | Commercial Register Application. Theparties agree that the entry of thenew general partner and the withdrawal of thegeneral 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 thepurchase price in full. Theparties shall deliver the respective application for registration with the commercial register, a draft of which is attached hereto asSchedule 4.3, signed by the competent declarants and notarially certified to the custody of the acting notary without undue delay after the notarization of thisagreement. Theparties 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 thePayment Confirmations. |
Section 5
PURCHASE PRICE
| 5.1 | Purchase Price forARAPP GmbH Shares. The purchase price for theARAPP GmbH Sharesshall 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 forARAPP KG Shares. The purchase price for theARAPP 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, thePurchaser shall pay interest on uch purchase prices for the time between theLocked Box Date and today's date at a rate of 5% p.a. (the "Locked Box Interest"). |
| 5.4 | AggregatePurchase Price. The aggregate purchase price for both theARAPP GmbH Shares and theARAPP KG Sharesas 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 ofPurchase Price. The details of thePurchase Price calculation and its allocation among the Sellers are set forth in the purchase price calculation chart (the "Purchase Price Calculation Chart") attached hereto asSchedule 5.5, which is herewith accepted by theParties 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 ofARAPP GmbHvis-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 thePurchase Price. ThePurchase Price is due today and payable by thePurchaser to theSellers by remittance to the following bank accounts in accordance with thePurchase 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 theSellers shall instruct the bank maintaining the respectiveSeller's Bank Accountto 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. TheSellers and ARAPPGmbH have dealt with respect to the various pension commitments given by ARAPPGmbH as follows: |
| 6.1.1 | TheSeller 1 andARAPP GmbH have entered on April 13, 2015 into an agreement according to whichSeller 1hasexercised his lump sum payment option resulting from the pension commitment in favor ofSeller 1in consideration for the payment of an amount equaling the provision for such commitment in theARAPP GmbH 2014 Financials. A copy of such agreement is attached hereto asSchedule 6.1.1. The amount payable toSeller 1 in accordance thereto has already been paid withholding;the wage withholding tax applying thereto. |
| 6.1.2 | Seller 2,ARAPP GmbHandMK Immobilien GbR have on April 13, 2015 entered into an agreement according to whichMK Immobilien GbR has assumed (i) all liabilities ofARAPP GmbHvis-à-visSeller 2 resulting from the pension commitment given in his favor and (ii) all claims vested inARAPP GmbH resulting from the insurance coverage purchased therefor. A copy of such agreement is attached hereto asSchedule 6.1.2. |
| 6.1.3 | Seller 3 andARAPP GmbHhave on April 13, 2015 entered into an agreement according to whichSeller 3 "as shareholder" has waived all of his claims againstARAPP GmbH resulting from the pension commitment given in his favor against assignment of all claims vested inARAPP GmbH resulting from the insurance coverage purchased therefor. A copy of such agreement is attached hereto asSchedule 6.1.3. |
| 6.1.4 | MK Immobilien GbR andARAPP GmbH have on April 13, 2015 entered into an agreement according to whichMK Immobilien GbR has assumed all liabilities of ARAPPGmbH 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 holdARAPP 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 theARAPP GmbH 2014 Financials. A copy of such agreement is attached hereto asSchedule 6.1.4. |
| 6.2 | Shareholders Claims. By way of a shareholders resolution dated as of April 13, 2015), theSellers have contributed all their respective claims againstARAPP 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 asSchedule 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 asSchedule 6.3.1; and |
| 6.3.2 | ARAPP GmbH has sold its parking lot toMK Immobilien GbR at a purchase price of EUR 50,000.00; a copy of such deed is attached hereto asSchedule 6.3.2. |
6.3.3 MK Immobilien GbRandARAPP KG have concluded two notarially recorded lease agreements in relation to the real property acquired from both ARAPP KG andARAPP GmbH on 14 April 2015; copies are attached hereto asSchedules 6.3.3 a and b.
| 6.4 | Written Confirmations. Sellers 1 through 3have obtained written confirmations by their respective spouses according to which the spouses grant their irrevocable and unconditional consent to the sale and transfer of theARAPPKG Sharesand the ARAPP GmbH Shares;copies are attached hereto asSchedules 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 asSchedule 6.5ARAPP 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 ARAPPGmbH have approved of the assignment of theARAPP GmbH Shares by way of a shareholders’ resolution dated April 13, 2015; a copy of the shareholders’ resolution is attached hereto asSchedule 6.6. |
| 6.7 | Approvals. The shareholders of ARAPPKGhave approved of the assignment of the ARAPPKG Shares by way of a shareholders’ resolution dated April 13, 2015; a copy of the shareholders’ resolution is attached hereto asSchedule 6.7. |
Section 7
ACTIONS AT THE DAY OF NOTARIZATION
| 7.1 | Closing Actions. At the date of today's notarization (the "Closing Date") theParties shall perform, or ensure to be performed, the following actions (collectively the "Closing Actions") in the following order. |
| 7.1.1 | Seller 1resigns as managing director of ARAPPGmbH and signs the resigning-from-office declaration, attached hereto asSchedule 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 bySellers 2 and 3,andSeller 1 sign the agreement as attached hereto asSchedule 7.1.2terminating the employment relationship ofSeller 1 with ARAPPGmbH (the "RS Agreement").
| 7.1.3 | ARAPP KG,Seller 2 andMK Immobilien GbR sign the agreement as attached hereto asSchedule 7.1.3transferring the employment relationship ofSeller 2 with ARAPP KG toMK Immobilien GbR (the "KS Agreement"). |
| 7.1.4 | Seller 3 signs the written declaration attached hereto asSchedule 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 | TheSellerssign the confirmation and waiver declaration attached hereto asSchedule 7.1.5. |
| 7.1.6 | ThePurchaser shall pay to theSellers thePurchase Price as set forth in Section 5 of thisAgreement. |
| 7.1.7 | The Partiesshallobtain the Payment Confirmations. |
| 7.1.8 | TheARAPP KGandSeller 3 sign the managing director's agreement (the "MS Agreement"), as attached hereto asSchedule 7.1.8. TheSeller 3 shall be appointed as managing director of theNew General Partner with relief from the restrictions pursuant to § 181 Alt. 2 BGB. |
| 7.1.9 | ThePurchaser, theSellers, theGeneral Partner, theNewGeneral Partner andARAPP GmbH respectively sign (unterzeichnen) notarially certified the application to the commercial register regarding the transfer of the ARAPP KGShares 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 fromAgreement. If theClosing Actions,including in particular the full payment of thePurchase Price, are not performed until the expiration of the secondBanking Day after the date hereof or until the expiration of such other date as mutually agreed in writing between thePurchaserand theSellers, each of thePurchaserand theSellers shall be entitled to withdraw from thisAgreement (Rücktritt) with effect for all otherPartieswithout prior notice (ohne Einhaltung einer Frist). Neither theSellers nor thePurchaser may withdraw from thisAgreement if (i) they have/it has in bad faith (wider Treu und Glauben) prevented the performance of aClosing Action or (ii) the non-performance of aClosing 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. EachSeller warrants and covenants toPurchaser that, between theLocked Box Date and theClosing Date, neither he nor anyAffiliate of suchSeller has benefited from anyLeakage. |
| 8.2 | Leakage. "Leakage" shall mean |
| 8.2.1 | any dividend distribution whether actual or deemed by any ARAPPCompany to theSellers or any of theirAffiliates(except resulting from sale of theReal Property as set forth in Sections 6.3.1 and 6.3.2); |
| 8.2.2 | any payments made by any ARAPPCompany to theSellers or any of theirAffiliates in respect of any loan notes or other debt instruments issued by anyARAPP Company; |
| 8.2.3 | the waiver by any ARAPPCompany of the benefit of any amount contractually or statutorily owed to thatARAPP Company by theSellers or any of theirAffiliates; |
| 8.2.4 | any other payment in cash or in kind made by any ARAPPCompany to theSellers or any of theirAffiliates; |
but, in each case, excluding anyPermitted Payments.
| 8.3 | Permitted Payments. "Permitted Payments" shall mean the payment or distribution (whether in cash or in kind) by any ARAPPCompany to theSellers or any of theirAffiliates of the following: |
| 8.3.1 | all monies owed to theSellers 1, 2 and 3 on the basis of the managing director or employment agreements in existence until today; |
| 8.3.2 | the payments to theSeller 1 andMK 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 theSellers 1, 2 and 3 as listed on the CF-DFPermitted Payments Schedule attached hereto asSchedule 8.3.4. |
| 8.4 | Obligation to repay. EachSeller undertakes to pay toPurchaser an amount equal to anyLeakage he received in breach of Section 8.1. |
| 8.5 | Notice Requirement. AnySeller shall not be liable for any claim under Section 8.4 unless written notice has been given to suchSeller (as appropriate) on or before the date which is 24 months following theClosing Date. |
Section 9
REPRESENTATIONS OF THE SELLERS
General. Each of theSellers hereby represents toPurchaser that the following statements are correct in each case as of the date of thisAgreement(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 theParties that (i)Sellers shall be liable for any breaches of the representations in this Section 9 irrespective of any fault of anySeller (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 | TheSellers 2 and 3 are the sole legal and beneficial owners of theARAPP GmbH Shares, in respect of which they are unrestrictedly entitled to dispose of. TheARAPP 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). TheARAPP GmbH Shares represent all outstanding shares inARAPP GmbH. |
| 9.1.2 | TheSellers 2 and 3 may freely dispose of theARAPP 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 | TheSellers are the sole legal and beneficial owners of theARAPP KG Shares, in respect of which they are unrestrictedly entitled to dispose of. TheARAPP 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 | TheARAPP KG Shares are all the shares in ARAPP KG owned by theSellers and represent 31.25 % of all participations inARAPP KG,with the balance owned byARAPP 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 | EachSeller has the requisite power and authority to execute thisAgreement and perform its obligations under and the transactions contemplated in thisAgreement. The execution and consummation of thisAgreement do not conflict with any other contractual or statutory obligations by which theSellers are bound. |
The representations in this Section 9.1 are given by theSellers 1 through 3 only with respect to their respective parts of theARAPP GmbH Shares andARAPP 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 theARAPP 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 | TheARAPP GmbH Shares, theARAPP 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 undKommanditkapital), 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 asSchedule9.2.6 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 asSchedule9.2.7 is the latest version of ARAPPGmbH's articles of association dated October 20, 2009; they have not been further amended or supplemented. |
| 9.2.8 | Attached hereto asSchedule9.2.8 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, ARAPPGmbH or ARAPP US that are not registered yet. |
| 9.2.10 | None of the ARAPPCompanies 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 ARAPPCompanies' 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 ofARAPP 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 ofARAPP KG as of December 31, 2013 (the "ARAPP KG2013 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 ofARAPP 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 | TheARAPP GmbH Financialsand theARAPP KG Financials were prepared using generally accepted German accounting principles, and theARAPP 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 ARAPPCompany. They present a true and fair view of the assets and liabilities (Vermögenslage), financial position (Finanzlage) and earnings position (Ertragslage) of the relevant ARAPPCompany as of their respective dates. |
| 9.4.1 | Since January 1, 2015 theARAPP 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. ThePurchaser 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 ARAPPCompany. |
| 9.4.4 | Schedule9.4.4 sets forth a complete list of all orders stated in ARAPPKG's order backlog as per February 18, 2015. Except as set forth inSchedule9.4.4, theSellers do not haveKnowledge of any facts or circumstances that any such order may be cancelled. |
| 9.4.5 | The ARAPPCompanies have not been awarded any subsidies, allowances, aids and other public grants within the past 10 (ten) years. |
9.4.6 Except as specified inSchedule9.4.6 there are no inter-company agreements (e.g. cash pooling and loan agreements) between any of the ARAPPCompanies on the one side and any of theSellers or theirAffiliateson the other side. Except as specified inSchedule9.4.6 the ARAPPCompanies do not provide collaterals for the liabilities ofSellers or theirAffiliates.
| 9.4.7 | Except as set forth inSchedule 9.4.7, none of theARAPP 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 theARAPP Companies (collectively, the "ARAPP Products") in the last three years prior toClosing Date arising out of the non-conformity of any ARAPPProduct with (i) the usual specifications for suchARAPP Product, (ii) all applicable contractual commitments or (iii) all applicable expressed and implied warranties. Except as set forth inSchedule 9.4.7, none of the ARAPPCompanies has received any written notice that a customer intends to assert a claim described above against anyARAPP Company. |
| 9.5 | Assets and Liabilities. |
| 9.5.1 | Except as set forth inSchedule 9.5.1 and except for retentions of title (Eigentumsvorbehalte), similar customary contractual or statutory security interests incurred in the ordinary course of business, theARAPP 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 theARAPP 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 theARAPP 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 theARAPP Companies is in good and usable condition and is likely to be sold at the respective market price. |
| 9.5.4 | Except as disclosed inSchedule 9.5.4 ARAPPCompanies 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 ARAPPGmbH are (still) the legal owners of the real property listed inSchedule 9.6.1 (the "Real Property"), which was sold to MKImmobilienGbR prior to theClosing Date. TheARAPP Companies do not own any further real property nor rights similar to real property (grundstücksgleiche Rechte), including, hereditary building rights (Erbbaurechte). NoARAPP Company is under any obligation to acquire real property or any heritable building right. |
| 9.6.2 | Except as disclosed inSchedule 9.6.2, all necessary building permits for the current use of theReal Property have been obtained. |
| 9.6.3 | ARAPPUS maintains its principle place of business at 2400 Augusta Drive, Suite 285, Houston, TX 77057, USA under the lease attached hereto asSchedule9.6.3.ARAPPUS 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 theReal 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 theClosing 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 ARAPPCompanies (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 | Schedule9.7.2 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 ARAPPCompanies have fulfilled all payment and other obligations when due to their respective employees including managing directors or similar executives. |
| 9.7.4 | Schedule9.7.4 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 ARAPPCompanies. |
| 9.7.5 | ToSellers' 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 inSchedule9.7.6 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 ARAPPCompany. |
| 9.7.7 | Except as disclosed inSchedule 9.7.7 , as of the date stated therein no employee has terminated his or her employment relationship with the respective ARAPPCompany 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 inSchedule 9.8.1 the "Material Agreements"): |
| · | credit agreements with anyARAPP 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 | ToSellers' Knowledge theMaterial Agreements are in full force and effect and are enforceable against the parties thereto in accordance with their terms and no party to aMaterial 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 theARAPP Companies have ever paid any sales agent a special compensation for extraordinary expenses or additional commissions to address competitive situations. |
| 9.8.4 | ARAPPCompanies 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 ARAPPCompanyis a party to any agreement according to which any third party, including ARAPPCompanies'semployees, may claim any payment or compensation against anyARAPPCompanyor the Purchaserupon the consummation of this Agreement.
| 9.9 | Intellectual Property Rights. |
| 9.9.1 | Except for the intellectual property rights listed inSchedule 9.9.1 no patents, patent applications, utility models, trademarks, design rights, business names or internet domains are registered on behalf ofARAPP Companies. |
| 9.9.2 | ToSellers' Knowledge noARAPP Company has infringed any third party intellectual property rights nor have third parties asserted such an infringement. |
| 9.9.3 | TheARAPP 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 inSchedule 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 anARAPP Company is involved, either as plaintiff, defendant or otherwise, and toSellers' Knowledge no such proceedings have been threatened.
| 9.11 | Permits and Export Control. |
| 9.11.1 | ToSellers' Knowledge theARAPP Companies have been granted all governmental approvals, governmental licenses and governmental permits necessary to operate their respective businesses as they are conducted as of theClosing Date. ToSellers' 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 toSellers' Knowledge there are no circumstances which would justify such revocation, modification or restriction in the future. |
| 9.11.2 | ToSellers' Knowledge the ARAPPCompanies have not violated any applicable export regulations and foreign trade laws. ToSellers' Knowledge the products of theARAPP 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, toSellers' 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 ARAPPCompanies have never directly delivered products to Algeria, India, Iraq, Iran, Israel, Jordan, Libya, Northkorea, Korea, Pakistan, Syria or Cuba which were, toSellers' Knowledge, meant to be used for nuclear power stations. |
| 9.12 | Restrictions and Compliance. |
| 9.12.1 | The ARAPPCompanies 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 ARAPPCompanies, that would reasonably be expected to prohibit, impair or otherwise limit, whether before or after theClosing Date, (i) any business practice of the ARAPPCompanies; (ii) any acquisition of property (tangible or intangible) by the ARAPPCompanies; (iii) the conduct of business by the ARAPPCompanies; or (iv) the freedom of the ARAPPCompanies to engage in any line of business or to compete or do business with any person. |
| 9.12.2 | TheARAPP Companies have not, directly or indirectly, in connection with the business of theARAPP Companies (i) used any funds of theARAPP 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 inSchedule 9.13.1. |
| 9.13.2 | Except as disclosed inSchedule 9.13.2, within the last three years the ARAPPCompanieshave not asserted any insurance claims and no assertion of any insurance claims has been rejected. |
| 9.13.3 | The ARAPPCompanieshave at all times timely paid due premiums and there are no premium payments outstanding. |
| 9.14.1 | EachARAPP Company has duly and timely filed in accordance with applicable law all returns, forms and other statements required to be filed by suchARAPP Company forTaxes (collectively the "Tax Returns"). NoARAPP Company is currently subject to any audit, examination or similar proceedings by any tax authority; except the tax audit of ARAPP KG and ARAPPGmbH which recently commenced. |
| 9.14.2 | All dueTaxes to be paid or withheld by anyARAPP 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 theSellers in connection with theTransaction. |
| 9.14.5 | No binding rulings have been issued by tax authorities to ARAPP KG or toARAPP GmbH which are still relevant for theTax situation of these entities and no bindingsTax rulings have been applied for by either ARAPP KG orARAPP 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 ofSellers in Section 9 is incorrect (a "Breach"),Sellers shall put thePurchaser into the same position it would be in if theBreach had not occurred.Purchasershall be entitled to request fromSellers that this position is provided by remediation in kind (Naturalrestitution), unless remediation in kind (i) is not permitted by the nature of theBreach or (ii) cannot be effected bySellers with reasonable efforts. If and to the extent that (a) althoughPurchaser is entitled to remediation in kind, (b) remediation in kind is not permitted by the nature of theBreach or (c) remediation in kind has not been effected bySellers within a period of one (1) month after a written request for such remediation has been made byPurchaser,Purchaser shall be entitled to request fromSellers compensation in cash (Schadensersatz in Geld) for damages (the "Damages") whichPurchaseror theARAPP Companies have suffered or incurred and would not have suffered or incurred if the representation in question were correct. The termDamages 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 defectiveARAPP 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 thePurchase 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 respectiveBreach (i) have been disclosed toPurchaser, its advisors or itsAffiliates during the due diligence prior to the execution ofthisAgreement; or (ii) thePurchaser, its advisors or any of itsAffiliates hadKnowledge of such circumstances. |
| 10.3 | Time Limitations. Any claims ofPurchaser 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 theClosing 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 theClosing 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 ofCircor US. |
| 11.1.2 | All required approvals of any corporate bodies ofPurchaser have been obtained. |
| 11.1.3 | ThisAgreement constitutes (and all other documents executed byPurchaser under or in connection with thisAgreement will, when executed, constitute) legal, valid and binding obligations ofPurchaser enforceable in accordance with their terms. |
| 11.2 | Remedies ofSellers. In the event thatPurchaser is in breach of any representation in Section 11.1, the provisions in Section 10 shall applymutatis mutandis. The limitation period for any claims ofSellers shall be 24 months as from theClosing Date. |
Section 12
TAX INDEMNITIES
| 12.1 | General. Subject to the provisions of this Section 12 and Section 14, theSellers shall hold harmless (freistellen) and indemnifyPurchaser from and against anyTaxesimposed on the ARAPPCompanies in accordance with applicable laws relating to any periods ending on or before December 31, 2014 if and to the extent that suchTaxes 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 respectiveTaxes. |
| 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 | theARAPP Companies are, as the result of a circumstance giving rise to theTaxes for which indemnification is sought, entitled to any benefits by refund, set-off or a reduction ofTaxes (e.g. in the case of a lengthening of amortization or depreciation periods or higher depreciation allowances); or |
| 12.2.2 | theTaxes result directly or indirectly from the transfer of theARAPP GmbH Shares and/or theARAPP KG Shares to thePurchaser; or |
| 12.2.3 | theTaxes result from any change in the accounting or taxation principles or practices of the ARAPPCompanies (including methods of submittingTax Returns) introduced after December 31, 2014; or |
| 12.2.4 | theTaxes result from (i) any changed interpretation of applicable tax laws by any tax authority and/or changed practice of any tax authority after theClosing Date with retroactive effect; or from (ii) legislation being introduced or amended after theClosing Date which is to restate or amend any applicable laws with retroactive effect; |
| 12.2.5 | theTaxes result from any reorganization of the ARAPP Companies after theClosing Date with retroactive effect; or |
| 12.2.6 | theTaxes result from an adjusted valuation and/or the sale of theReal Property as set forth in Sections 6.3.1 and 6.3.2. |
12.3 Time Limitations. Any claims ofPurchaser 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 relevantTax.
| 12.4 | Pensions. Other than set forth above, thePurchaser shall be entitled to claims regardingTaxes which accrue in relation to the steps set forth in Section 6.1 of thisAgreementand, thus, from measures taken after December 31, 2014. |
Section 13
ENVIRONMENTAL MATTERS
| 13.1 | General. ThePurchaser has inspected theReal Property and received documentation from theSellers concerning known or suspected adverse environmental conditions. |
| 13.2 | Indemnification ofPurchaser.Sellers shall fully indemnifyPurchaser 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 anyEnvironmental Damage,caused prior to theClosing Date. |
| 13.3 | Environmental Damage. "Environmental Damage" within the meaning of thisAgreement includes any pollution or contamination of the built or natural environment at, on or under theReal Property, including the air therein, any underground structures, technical facilities, or any parts thereof. |
13.4 Time Limitations. Any claims ofPurchaser under this Section 13 shall be time-barred 6 (six) months after the relevantEnvironmental Damage has become apparent, but in any event after the expiration of a period of three years from theClosing Date.
| 13.5 | Indemnification ofSellers. ThePurchaser shall fully indemnify theSellers and any of theirAffiliates 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 anyEnvironmental Damage caused after theClosing Date. |
Section 14
GENERAL EXCLUSIONS AND
LIMITATIONS OF SELLERS' LIABILITY
| 14.1 | General Exclusions. Without prejudice to other exclusions or limitations set forth in thisAgreement,Purchaser shall not have a claim under Section 10.1, Section 12 or Section 13 if and to the extent that: |
| 14.1.1 | theDamages,Taxes orEnvironmental Damages are the result of a failure byPurchaser of its obligation to avoid or mitigate damages (Section 254 BGB); or |
| 14.1.2 | the Damages,Taxes orEnvironmental 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 orEnvironmental 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 thePurchaser seeking to recover from theSellers under thisAgreement (including, for the avoidance of doubt, regarding Taxes), thePurchaser shall promptly notify theSellers' Representative thereof. ThePurchaser shall give theSellers a reasonable opportunity to participate in the defense of any action, claim or proceeding. ThePurchaser shall be obliged to cooperate with theSellers in such defense, in particular, at theSellers' request make available to theSellers and its advisors all relevant books, records and other information available to thePurchaser, to the extent required or appropriate in connection with the defense. ThePurchaser shall not admit, settle, pay, discharge any such assessment or claim against it or anyARAPP Company without the prior written consent of theSellers, such consent not to be unreasonably withheld – particularly ifTax payments are to be made -, in which case all claims of thePurchaser against theSellers shall be deemed forfeited. |
| 14.3 | Joint and several Liability. TheSellers shall be liable jointly and severally. |
| 14.4 | Minimum Amounts of Liability.Sellers shall be liable forDamages orEnvironmental Damages only if and to the extent that: |
| 14.4.1 | suchDamages orEnvironmental Damages exceed EUR 25,000.00 (the "De Minimis Amount"); and |
| 14.4.2 | the aggregate amount of allDamages orEnvironmental Damages above theDe Minimis Amount exceed EUR 1,000,000.00 (the "Threshold Amount"); in case theThreshold Amount is exceeded,Purchaser shall be entitled to recovery of the amount of allDamages orEnvironmental Damages in excess of theThreshold Amount. |
For the avoidance of doubt it is agreed that theDe Minimis Amount shall not apply toTaxesand claims which result from a breach of any obligation under Section 8.1 (leakage under thelocked box procedure under Section 8).
| 14.5 | Maximum Amount of Liability. The total liability of eachSellerforDamages,Taxes orEnvironmental Damages shall not exceed EUR 10,000,000.00 (the "Cap"), except that theCap shall not apply to any acts of fraud or willful misconduct. |
| 14.6 | Exclusion of Other Remedies. TheParties are in agreement that the remedies provided in thisAgreement shall be the exclusive remedies available toPurchaser against theSellers and supersede any statutory warranties (kaufrechtliche Gewährleistungen) which may exist in parallel with regard to the subject-matter of thisAgreement. In connection with thisAgreement, in particular, without limitation, any claims againstSellers based on statutory warranties and/or other warranty rights including but not limited to (i) any right ofPurchaser to rescind (zurücktreten) from thisAgreement or to require the unwinding of theTransaction contemplated therein (e.g. by way ofgroßer SchadenersatzorSchadenersatz 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 ofPurchaser 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 theClosing Date (the "Restricted Period"),Sellers shall refrain from: |
| 15.1.1 | engaging, directly or indirectly, in any activity which is in competition with theARAPP Companies und saidARAPP Companies' businesses (such activities the "Competing Activities")in the territories as set out inSchedule 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 theARAPP Companies in the time prior to theClosing Date, unless the development, production and distribution of such products was ceased at least two years prior to theClosing Date; or (ii) identical or comparable to the products under development on theClosing Date; as well as (b) all services of theARAPP Companies related to such products; |
| 15.1.2 | holding, directly or indirectly, any equity interest in any legal entity engaging, directly or indirectly, inCompeting 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 whenSellers 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 anyCompeting Activities. |
| 15.2 | Non-Solicitation. TheSellers undertake during theRestricted Period not to solicit, and to procure that noAffiliates of theSellers solicit, any employees of the ARAPPCompanies without the prior consent of thePurchaser. Nothing shall, however, prevent theSellersor any of theirAffiliates from hiring any employee: |
| 15.2.1 | who applies for any position with theSellers or any of theirAffiliate (without solicitation by theSellersorof theirAffiliates) that is advertised publicly; or |
| 15.2.2 | whose employment or position has been terminated by the ARAPPCompanies for any reason after theClosing Date. |
| 15.3 | Damages. In the case of a breach by aSeller 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 thePurchaser or up to the discrection of thePurchaser to the relevantARAPP Companyaffected 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 thePayment Confirmations, theSellers hereby instruct the acting notary to submit without undue delay to the commercial register an updated shareholders' list ofARAPP GmbH with notarial certificates pursuant to § 40 (2) of the Limited Liability Companies Act and to submit copies of the updated lists to both theSellers and thePurchaser. |
| 16.2 | TheSellers undertake vis-à-vis thePurchaser not to act as shareholder ofARAPP GmbHin the period between theClosingDate 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. EachParty undertakes to treat, and shall procure that itsAffiliates treat,Proprietary Information strictly confidential and refrain from disclosing it to any third parties, unless such disclosure is explicitly permitted by thisAgreement. |
| 17.2 | Proprietary Information. "Proprietary Information" shall mean the contents of (a) thisAgreement, (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 eitherParty or itsAffiliates of any confidentiality obligation owed by it. |
| 17.3 | Mandatory Disclosures. AParty may discloseProprietary Information in particular with respect to theTransaction 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 ofSellers' Representative. TheSellers hereby appoint and authorizeSeller 3 as their legal representative (the "Sellers' Representative") |
| 18.2 | Functions ofSellers' Representative. TheSellers' Representative shall have the authority to represent allSellers collectively to deliver to, and receive from, thePurchaser any and all declarations, notices, official services (Zustellungen) and communication applicable or required under thisAgreement or any other instrument or agreement concluded in connection with thisAgreement or the Transaction contemplated herein. |
Section 19
NOTICES
| 19.1 | Notices. Declarations, notices and official services (Zustellungen) under thisAgreement 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 theSellers toSellers' 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 thePurchaser: |
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 ofSellers' Representative. TheSellers shall be entitled to replace theSellers' Representative by another person or entity by giving joint notice by allSellers to this effect toPurchaser atPurchaser's address stated above, and the newly appointed and authorized person or entity shall be the newSellers' Representative as of the tenth (10th)Banking Day from receipt of such notice byPurchaser. |
| 19.3 | Change of Addresses. TheParties 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 otherParty 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 thePurchaser under thisAgreement. |
| 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 theParties pursuant to the provisions of thisAgreement 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 thisAgreement or theTransaction contemplated herein, including, without limitation, the fees and expenses of professional advisers, shall be borne by theParty having commissioned such costs. The costs of the notarization and any transfer taxes (particularly Real Estate Transfer Taxes) shall be borne by thePurchaser. |
| 21.3 | Schedules. AllSchedules to thisAgreement shall be an integral part of thisAgreement. In the case of a conflict between anySchedule and the provisions of thisAgreement, the provisions of thisAgreement shall prevail. |
| 21.4 | Entire Agreement. ThisAgreement comprises the entire agreement between theParties concerning its subject matter and shall supersede all prior agreements (whether oral or written; whether binding or non-binding) made by theParties in respect thereof. |
| 21.5 | Amendments. Any amendments to thisAgreement (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 thisAgreement are inserted for convenience only and shall not affect the interpretation of thisAgreement. Wherever thisAgreement 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 thisAgreement includes English terms after which either in the same provision or elsewhere in thisAgreement 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. ThisAgreement 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 otherParty, noParty shall be entitled to assign any rights or claims under thisAgreement to any third party. |
| 21.10 | Governing Law. ThisAgreement 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 theParties arising under or in connection with thisAgreement 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 thisAgreement shall be invalid or unenforceable, the validity and enforceability of the other provisions of thisAgreement 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 theParties 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 |
