Exhibit 10.1
Dated 28 February 2011
Indigo Capital IV LP
as Seller 1
ICWET LP
as Seller 2
Industrie-Beteiligungs-Gesellschaft mbH (IBG)
as Seller 3
Amerigon Europe GmbH
asPurchaser
Amerigon Incorporated
asGuarantor
and
TMF Deutschland AG
asProcess Agent
SHARE SALE AND PURCHASE AGREEMENT
F R A N K F U R T
Index
| | | | | | |
| Clause | | Page | |
| 1. | | APPROVAL | | | 5 | |
| 2. | | SALE AND PURCHASE | | | 5 | |
| 3. | | PURCHASE PRICE, PAYMENT AND INTEREST | | | 5 | |
| 4. | | CLOSING CONDITIONS | | | 6 | |
| 5. | | RESCISSION | | | 8 | |
| 6. | | MERGER CONTROL | | | 9 | |
| 7. | | CLOSING | | | 10 | |
| 8. | | ACCEPTANCE OF TENDER OFFER | | | 12 | |
| 9. | | SELLERS’ GUARANTEES | | | 12 | |
| 10. | | REMEDIES | | | 13 | |
| 11. | | STATUTE OF LIMITATION | | | 13 | |
| 12. | | LIMITATION OF LIABILITY | | | 13 | |
| 13. | | GUARANTEES BY PURCHASER | | | 14 | |
| 14. | | PARTICIPATION, INFORMATION, MITIGATION | | | 15 | |
| 15. | | PARENT GUARANTEE | | | 16 | |
| 16. | | ACKNOWLEDGEMENT OF CHANGE OF CONTROL | | | 16 | |
| 17. | | CONFIDENTIALITY | | | 16 | |
| 18. | | NOTICES | | | 17 | |
| 19. | | SERVICE OF PROCESS | | | 18 | |
| 20. | | CHOICE OF LAW, VENUE | | | 18 | |
| 21. | | INTERPRETATION, FORMALITIES, SEVERABILITY | | | 18 | |
| 22. | | MISCELLANEOUS | | | 19 | |
| ANNEX 4.1(F) – RELEASE OF SHARE PLEDGES | | | 21 | |
| 1. | | RELEASE OF PLEDGE | | | 21 | |
| 2. | | CONDITION PRECEDENT | | | 21 | |
| 3. | | NOTICE OF TERMINATION OF PLEDGE | | | 22 | |
| 4. | | CHOICE OF LAW, VENUE | | | 22 | |
| ANNEX 19.2 – APPOINTMENT OF PROCESS AGENT | | | 23 | |
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SHARE SALE AND PURCHASE AGREEMENT
BETWEEN
| (1) | Indigo Capital IV LP, 30 King Street, London, EC2V 8EH, England (“Seller 1”); |
| (2) | ICWET LP, 30 King Street, London, EC2V 8EH, England (“Seller 2”); |
| (3) | Industrie-Beteiligungs-Gesellschaft mbH (IBG), Bockenheimer Landstrasse 10, 60323 Frankfurt am Main (“Seller 3”); |
| (4) | Amerigon Europe GmbH, Ulmer Straße 160b, 81656 Augsburg, Amtsgericht Augsburg, HRB 25596 (“Purchaser”); |
| (5) | Amerigon Incorporated, 21680 Haggerty Road, Suite 101, Northville, Michigan 48167, USA (“Guarantor”); and |
| (6) | TMF Deutschland AG, Eschenheimer Anlage 1, 60316 Frankfurt am Main asGuarantor’s process agent (“Process Agent”) |
The persons named at (1) to (3) above are hereafter also jointly referred to as“Sellers” and each individually a“Seller” and, the persons named at (1) to (4) above are hereafter also jointly referred to as“Parties” and each individually a“Party”. (For the avoidance of doubt, theProcess Agent is not aParty and executes this agreement only for the purpose of acknowledging its appointment in accordance with Clause 19.3.)
PREAMBLE
| (A) | W.E.T. Automotive Systems AG (the“Company”) is a German stock corporation with registered place of business in Odelzhausen, registered in the commercial register of the local court of Munich under number HRB 119793 with a stated capital (Grundkapital) of EUR 9,600,000.00. TheCompany’s stated capital is divided into 3,200,000 bearer shares (the“Shares”) without par value (auf den Inhaber lautende Stückaktien) with the International Securities Identification Number (ISIN) DE0005081608, each representing a calculatory share in theCompany’s stated capital of EUR 3.00. The bearer shares are embodied in one or more global share certificates, held in collective custody (Girosammelverwahrung) with Clearstream Banking AG, Frankfurt am Main (“CBA”) as central depository bank for securities (Wertpapiersammelbank). |
| (B) | Out of allShares, theCompany holds 159,988Shares in itself (which so long as they are held by theCompany do not carry voting rights) equalling 5.00% of its registered share capital and theSellers hold in aggregate 2,297,663Shares (the“Sellers’Shares”) equalling 71.80% of theCompany’s registered share capital and 75.58% of the voting rights in the Company (not including theShares held by the Company itself). TheSeller’s Shares held bySeller 1are booked on three different depository accounts, two of which are subject to pledges in favour of third parties. Details about the number ofSellers’s Shares held by eachSeller, the deposit accounts in which these are held and any encumbrances thereof are set out in more detail in the table below: |
| | | | | | |
Seller | | Number ofSellers’ Shares | | Deposit Account with
BHF-BANK Aktienge- sellschaft no.: | | Encumbrances |
| Seller 1 | | 106,918 (“UniCredit Shares”) | | | | pledged to UniCredit Bank AG by agreement of 15 April 2010 (“UniCredit Pledge”) |
| | 178,165 (“ING Shares”) | | | | pledged to ING Bank N.V. by agreement of 15 April 2010 (“ING Pledge”) |
| | 641,414 (the“Indigo Shares”) | | | | n/a |
Subtotal | | 926,497 | | | | |
| Seller 2 | | 1,075,866 | | | | n/a |
| Seller 3 | | 295,300 | | | | n/a |
| Total | | 2,297,663 | | | | |
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In relation to eachSeller, each portion ofSellers’ Shares held by suchSeller in a particular deposit account according to the above table is hereafter referred to as the“Sale Shares”.
| (C) | By agreement dated 6 April 2010 (the“Note Agreement”), theCompany agreed to issue a loan note in the amount of up to EUR 7,163,000 and by loan note of 16 April 2010 issued toSeller 2 a loan note in the amount of EUR 7,162,728.18 (the“Note”). As at 31 December 2010 the aggregate of principal and interest accrued on theNote (excluding the entitlement to a final payment as set forth in theNote) amounted to approximately EUR 7,925,000. |
| (D) | By a senior facility agreement dated 4 August 2003, as last amended by the “Ninth Amendment Agreement to the up to EUR 284,000,000 Facility Agreement dated 4 August 2003” (the“Senior Facility Agreement”), BHF-BANK Aktiengesellschaft as agent and security agent and the lenders named therein agreed to provide to theCompany and certain of its affiliates as borrowers certain term loan and revolving loan facilities in the aggregate amount of Euro 284,000,000. According to theSenior Facility Agreement, all amounts advanced there under will become due and payable upon the occurrence of a change of control, as would result from consummation of the transaction contemplated by this agreement. |
| (E) | Seller 1 andSeller 2 are subject to the terms of an intercreditor agreement dated 4 August 2003, as last amended by the “Sixth Amendment Agreement to the Intercreditor Agreement dated 4 August 2003” on 1 April 2010 (the“Intercreditor Agreement”). According to the terms of theIntercreditor Agreement,Seller 1 andSeller 2 may not transfer theirShares or theNotes unless the transferee (previously or simultaneously) accedes to theIntercreditor Agreement. |
| (F) | Purchaser wishes to acquire theSellers’Shares by purchasing from eachSeller theSale Shares, and/or making a voluntary tender offer for theShares.Sellers wish to sell or tender toPurchaser theSellers’Shares.Purchaser also intends (without being obliged to do so) to purchase or procure the repayment of theNote within 18 months from acquiring theSale Shares. |
| (G) | Guarantor isPurchaser’s immediate parent, holding all shares inPurchaser. In preparation of the anticipated purchase of theSellers’Shares and theNote by Purchaser (the“Merger”),Sellers andGuarantor entered into a “Letter of Intent ConcerningShares in W.E.T. Automotive AG” dated 14 January 2011 and last executed by the parties thereto 19 January 2011 (the“LOI”).Guarantor has agreed to guarantee performance byPurchaser of the obligations to be assumed byPurchaser under this agreement. |
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| (H) | Purchaser intends to secure debt financing for theMerger, on terms acceptable toPurchaser andGuarantor by executing, and havingGuarantor execute, loan facility agreements with Bank of America or any other bank selected byPurchaser (“Purchaser’s Bank”) and havingGuarantor forward all or a portion of the funds it receives in connection with its loan facility agreement toPurchaser. Further,Guarantor intends to issue new shares inGuarantor after the date hereof on terms acceptable toGuarantor and forward some or all of the funds received through such equity issuance, toPurchaser. |
| (I) | Purchaser expects theCompany to execute a binding loan facility agreement (“New Facility Agreement”) withPurchaser’s Bank no later than 28 March 2011 pursuant to which the facility outstanding under theFacility Agreement is refinanced by or around the datePurchaser acquires theSale Shares in which case the restrictions imposed on theNote and theShares held bySeller 1 andSeller 2 by theFacility Agreement and theIntercreditor Agreement will fall away. |
| (J) | In this agreement theParties andGuarantor wish to set out the terms and conditions under which theSellers’Shares shall be sold to and purchased by thePurchaser. |
NOW THEREFORE IT IS AGREED WHAT FOLLOWS:
| 1.1 | TheParties andGuarantor agree thatSeller 3 shall be bound by, and benefit from, this agreement only subject to the condition that the execution of this agreement is approved by the competent internal bodies (zuständige Gremien) ofSeller 3 (“Approval”) provided that in any event, theApproval shall be deemed granted, the condition shall be deemed satisfied andSeller 3 shall become bound by this agreement, whenSeller 3 confirms that it has obtained theApproval (the“Confirmation”) toSeller 1 (who will receive suchConfirmation also on behalf ofSeller 2) and toPurchaser (who will receive suchConfirmation also on behalf ofGuarantor) in writing (including telefax or pdf). |
| 1.2 | Seller 1,Seller 2,Purchaser andGuarantor agree that they shall be bound by this agreement irrespective of whether theApproval is granted. TheParties’rights to rescind this agreement pursuant to Clause 5 remains unaffected. |
| 2.1 | EachSeller hereby sells toPurchaser at theAgreed Share Price (as defined below) theSale Shares, together with all ancillary rights (Nebenrechte) pertaining thereto, including all dividend rights (Gewinnbezugsrechte) to undistributed profits of the current business year and of prior business years.Purchaser hereby accepts such sales. |
| 2.2 | The transfer of theSale Shares shall take place on theClosing Date and as set forth further in Clause 7 below. |
| 3. | PURCHASE PRICE, PAYMENT AND INTEREST |
| 3.1 | The purchase price for eachSellers’Share shall be EUR 40 resulting in theAgreed Share Prices (as defined below) payable to eachSeller in respect of theSale Shares as set out in the table below: |
| | | | |
Seller | | Sale Shares | | Agreed Share Price (EUR) |
Seller 1 | | UniCredit Shares | | 4,276,720 |
| | ING Shares | | 7,126,600 |
| | Indigo Shares | | 25,656,560 |
Seller 2 | | 1,075,866 | | 43,034,640 |
Seller 3 | | 295,300 | | 11,812,000 |
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In relation to each portion ofSale Shares shown in the above table (for the avoidance of doubt, including in relation to each of theUniCredit Shares, theING Shares and theIndigo Shares), the purchase price payable therefor according to the above table is hereafter referred to as the“Agreed Share Price”.
| 3.2 | TheAgreed Share Price shall be due and payable on theClosing Date (as defined below) in accordance with Clause 7 to eachSeller’s bank account(s) as set out in the table below: |
| | | | | | | | | | | | |
Seller | | Bank Account with BHF-BANK Aktiengesellschaft | |
| | | Number | | | Sort Code | | | BIC Code | |
Seller 1 | | | | | | | | | | | | |
ING Shares | | | | | | | | | | | | |
UniCredit Shares | | | | | | | | | | | | |
Indigo Shares | | | | | | | | | | | | |
Seller 2 | | | | | | | | | | | | |
Seller 3 | | | | | | | | | | | | |
or to such other bank account(s) notified toPurchaser in writing at least three days (other than a Saturday or Sunday) on which banks are open for general business in Frankfurt am Main (Germany), London (UK) and New York City (USA) (each such day a“Business Day”) prior to the instruction for the respective wire transfer being given. Payments shall have debt releasing effect (schuldbefreiende Wirkung) towards aSeller only if they are made to theAgreed Account (as defined below).
In relation to eachSeller and, in the case ofSeller 1 in relation to each of theUniCredit Shares, theING Shares and theIndigo Shares, the bank account to which theAgreed Share Price shall be paid according to the above table (or any subsequent notification in accordance with the previous paragraph) is hereafter referred to as the“Agreed Account”.
| 3.3 | Payments due to aSeller shall bear interest at a rate of 10% p.a. from and including the respective due date (which, for theAgreed Share Price, isthe Closing Date) to, but not including, the date of actual payment into theAgreed Account. The interest method to be used shall be 30/360; i.e., any interest shall be calculated on the basis of a month of 30 days and a year of 360 days. |
| 4.1 | Following satisfaction of the following conditions (each a“Closing Condition”), theParties andGuarantor undertake to consummate this agreement in the manner, at such time and at such place as is set forth in Clause 7 or 8 below: |
| | (a) | the waiting period applicable to theMerger under the Hart-Scott-Rodino Act (U.S.) (the “HSR Act”) has expired or been terminated to the effect that theMerger may be consummated; |
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| | (b) | theMerger may be consummated without violating the anti-trust, cartel or similar laws under any other relevant jurisdiction (each a“Cartel Filing Jurisdiction”) because (i) the applicable waiting period, notice period or other similar period during which theMerger cannot be consummated have expired or been terminated, or (ii) the competent merger control authorities have cleared theMerger; |
| | (c) | Purchaser has submitted toBundesanstalt für Finanzdienstleistungsaufsicht (“BaFin”) an offer document for a public takeover (the“Offer”) of theCompany in compliance with the laws of the Federal Republic of Germany, in particular, but not limited to, the provisions of the German Securities Acquisition and Takeover Act and the respective subordinate legislation, which contains a financing confirmation within the meaning of sec. 13 (1) sentence 2 German Securities Acquisition and Takeover Act and is not subject to any condition, rescission or other withdrawal right other than (i) the conditions set out in Clause 4.1(a) and (b) above, (ii) the condition ofPurchaser having secured the acquisition ofShares (including theSale Shares) which represent 71.80% of theCompany’s registered share capital and (iii) as provided for by mandatory applicable laws (the“Offer Document”); |
| | (d) | Purchaser presents toSeller 1 andSeller 3 original declarations (or certified copies thereof), together with any underlying documentation reasonably requested bySeller 1, fromPurchaser’s Bank confirming that theAgreed Share Price for theSale Shares of allSellers will after satisfaction or waiver of theClosing Conditions be advanced toSellers byPurchaser’s Bank at any time uponGuarantor’s orPurchaser’s request; |
| | (e) | theCompany has executed theNew Facility Agreement; |
| | (f) | Seller 1 has delivered toPurchaser duly executed written statements conforming in all material respects with the form as attached as Annex 4.1(f) from the respective holder of theUniCredit Pledge and theING Pledge pursuant to which theUniCredit Pledge and theING Pledge, respectively, are removed and cease to exist upon receipt of theAgreed Share Price (payable with regard to theING Shares and, respectively, theUniCredit Shares) on theAgreed Account. |
| 4.2 | Purchaser shall immediately informSellerswhen aClosing Condition set out in Clause 4.1(a) or 4.1(b) has been fulfilled and provideSeller 1 without undue delay with an unqualified confirmation from its lawyers addressed toSellers confirming toSellers that the respective Closing Condition has occurred, in each case accompanied by copies of the related documentation.Sellers 1 shall immediately informPurchaser andGuarantor when theClosing Condition set out in Clause 4.1(f) has been fulfilled and providePurchaser without undue delay with copies of the related documentation. |
| 4.3 | Purchasershall take all such activities as are reasonably required to achieve fulfilment of theClosing Conditions set out in Clause 4.1(a) to 4.1(e). |
| 4.4 | Seller 1 shall take all such activities as are reasonably required to achieve fulfilment of theClosing Condition set out in Clause 4.1(f). |
| 4.5 | Seller 1may waive (with effect for all Sellers) the Closing Conditionsset forth in Clause 4.1 (c) and (d),Purchasermay waivethe Closing Conditionsset forth in Clause 4.1(e) and (f); the Closing Conditionsin Clause 4.1(a) and (b) may only be waived bySeller 1 andPurchaser jointly.Unless otherwise agreed by theParties in writing, the effect of a waiver shall, however, be limited to eliminating the need that the respectiveClosing Condition be fulfilled before theClosing and shall neither prejudice the continuing obligation of the responsibleSeller,Purchaseror Guarantor, as the case may be, to fulfil suchClosing Condition nor its liability for non-performance of its obligation to fulfil suchClosing Condition. If Purchaser waives theClosing Condition set out in Clause |
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4.1(f) before 28 March 2011, it shall not be entitled to bring a claim for breach of Clause 9.1(b) to the extent such breach is caused by the continuing existence of theUniCredit Pledge and/or theING Pledge, provided thatSeller 1 remains obliged to remove such pledges.
| 5.1 | Seller 1 may rescind this agreement with immediate effect for and against allPartiesand Guarantor by written statement toPurchaser, if |
| | (a) | Purchaserhas not evidenced the satisfaction or waiver of |
| | (i) | Closing Condition4.1(a) by 28 May 2011; and |
| | (ii) | Closing Condition4.1(b) by 28 May 2011; and |
| | (iii) | Closing Condition4.1(c) by 28 March 2011; and |
| | (iv) | Closing Condition4.1(d) by 28 March 2011; and |
| | (v) | Closing Condition4.1(e) by 28 March 2011; or |
| | (b) | Purchaser withdraws theOffer Document; or |
| | (c) | BaFin prohibitsPurchaser’s takeover offer; or |
| | (d) | Purchaser fails to publish theOffer Document in accordance with Sec. 14 para. 3 sentence 1 of the German Securities Acquisition and Takeover Act immediately after approval of theOffer Document byBaFin, at the latest within three bank working days in Frankfurt a. M., Germany, after expiry of the review period (without theBaFin having prohibitedPurchaser’s takeover offer) according to Sec. 14 para. 2 sentence 1 of the German Securities Acquisition and Takeover Act; or |
| | (e) | Purchaser orGuarantor fail to take within tenBusiness Days from theClosing Date theClosing Actions (as defined below) to be taken by it at the time and in the manner set out in Clause 7.2, unless this is caused by aSeller’s failure to comply with its own obligations as set out in Clause 7.2 or theParties proceeding in accordance with Clause 8. |
| 5.2 | Purchaser may rescind this agreement with immediate effect by written statement toSellers, if |
| | (a) | Seller 3 fails to provide theConfirmationtoSeller 1 (who will receive suchConfirmationalso on behalf ofSeller 2) and toPurchaser (who will receive suchConfirmation also on behalf ofGuarantor) by 28 March 2011; or |
| | (b) | Seller 1 fails to achieve fulfilment of theClosing Condition set out in Clause 4.1(f) by 28 March 2011; or |
| | (c) | Closing Conditions4.1(a) to (e) are not satisfied or waived by 28 May 2011; or |
| | (d) | Sellers fail to take within tenBusiness Days from theClosing Date theClosing Actions (as defined below) to be taken by them at the time and in the manner set out in Clause 7.2, unless this is caused byPurchaser’s orGuarantor’s failure to comply with its own obligations as set out in Clause 7.2 or theParties proceeding in accordance with Clause 8. |
| 5.3 | If rescission is declared in accordance with Clause 5.1 or Clause 5.2, eachParty andGuarantor shall deliver to the otherParty andGuarantor all documents, working papers and other materials furnished to it by the respective otherPartyorGuarantor in connection with the contemplated |
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Merger, irrespective of whether such materials have been furnished before or after the date this agreement has been executed (“Signing Date”).
| 5.4 | Purchaser may only exercise its rescission right hereunder against allSellers jointly. |
| 5.5 | The performances to be rendered upon rescission shall be rendered concurrently (Zug um Zug), provided that mutual payment obligations (if any) shall be offset against each other. |
| 5.6 | If rescission is declared pursuant to Clauses 5.1 or 5.2, all further obligations of theParties and ofGuarantor under this agreement will terminate, except as otherwise set forth in this agreement and except that the obligations set out in Clauses 17 through 22 will survive, and neither Party shall incur any liability as a result of such rescission. |
| 6.1 | Purchaser shall and, to the extent required by applicable law, rule or regulation,Sellers shall, (i) make, as promptly as practicable after theSigning Date, (1) an appropriate filing of a Notification and Report Form pursuant to theHSR Act, and (2) all other necessary filings with eachCartel Filing Jurisdiction with respect to theMerger and (ii) supply, as promptly as practicable, any additional information and documentary material that may be reasonably requested pursuant to such requirements and use its commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under theHSR Act and all similar periods applicable in eachCartel Filing Jurisdictionin the most expeditious manner practicable. |
| 6.2 | EachParty shall, in connection with the efforts referenced in 5.1 above to obtain all requisite approvals, clearances and authorizations for theMerger, use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, (ii) promptly inform the otherParty of any communication received by suchParty from, or given by suchParty to, the Antitrust Division of the U.S. Department of Justice (the“DOJ”), the Federal Trade Commission (the“FTC”) or any other governmental entity, including any governmental entity of aCartel Filing Jurisdiction, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby, (iii) permit the otherParties, or the otherParties’ legal counsel, to review in advance any communication to be given by it to, and consult with each other in advance of any meeting or conference with, theDOJ, theFTC or any other applicable governmental entity or any person in connection with any proceeding by a private party and (iv) unless prohibited by law, rule or regulation, give the otherParties and the otherParties’ legal counsel the opportunity to attend and participate in such meetings and conferences. |
| 6.3 | If any objections are asserted with respect to theMerger under any applicable law or if any suit is instituted by any governmental entity or any private party challenging any of the transactions contemplated hereby as violative of any applicable law, each of theParties shall use its commercially reasonable efforts to resolve any such objections or challenge, including responding to any request for information from any such governmental entity and complying with any requirements or conditions imposed by any such governmental entity so as to permit consummation of the transactions contemplated by this agreement on the terms set forth in this agreement. Notwithstanding the foregoing, in no event shall the obligations of theParties under this Clause 6 (i) require anyParty to pay or commit to pay any material amount of cash or other consideration, make any material commitment or incur any material liability or other material obligation in order to obtain the approvals, clearances and authorizations described in this Clause 6, unless suchParty consents to thereto; provided, however, that if anyParty other thanPurchaser is requested to pay any material amount of cash in order to obtain any such approvals, clearances and authorizations described in this Clause 6, such otherParty shall givePurchaser the opportunity to make such payments on behalf of such otherParty and (ii) require anyParty to consummate theMerger if the essential terms |
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of theMerger applicable to suchParty have been materially modified by any requirements or conditions imposed by a governmental entity (including, but not limited to, requiring aParty to sell, divest or otherwise dispose of any assets or business) so as to permit consummation of the transactions contemplated by this agreement.
| 6.4 | To the extent this is permitted by applicable law and subject toSellers’ approval of any relevant filing or notification,Purchaser shall make any filings and notifications required to be made with any competition authority also on behalf ofSellers. |
| 6.5 | WhereGuarantor is legally required to make any cartel filing, the obligations imposed onPurchaser in this Clause 6 apply equally toGuarantor. |
| 7.1 | Subject to Clause 8, the consummation of this agreement (“Closing”) shall take place at the offices of Milbank, Tweed, Hadley & McCloy LLP in Frankfurt am Main at 9 hours CET on the fifthBusiness Day following satisfaction or waiver of theClosing Conditions or, such earlier or later point in time or at such other place asSellers andPurchaser may agree (that date set or agreed for theClosing to take place hereafter referred to as the“Closing Date”). |
| 7.2 | On theClosing Date, theParties andGuarantor shall take the action (each a“Closing Action”) set out below in the order set out below: |
| | (a) | Purchaser shall hand over toSeller 1 copies of all approvals it has obtained from competition authorities and originals of any statement fromPurchaser’s lawyers to be delivered toSellerspursuant to Clause 4.2. |
| | (b) | Guarantor shall hand over to eachSeller one original of theAppointment Letter (as defined in Clause 19.2 below). |
| | (c) | Purchaser shall evidence toSellers that |
| | (i) | an amount equal to theAgreed Share Price is booked on its bank account with Bank of America or any other bank of international repute selected byPurchaser, by handing over toSeller 1 an account statement dated as of theClosing Date; |
| | (ii) | Purchaser’s bank has unconditionally and irrevocably committed by letter or telefax to advance (without deduction or withholding) uponPurchaser’s oral or telefax instruction amounts equal to eachAgreed Share Price to eachAgreed Account, by handing over toSeller 1 an original of such letter or telefax; |
| | (d) | EachSeller shall evidence toPurchaser that |
| | (i) | theSale Shares are booked on its deposit account(s) as stated in Clause (B) of the Preamble; |
| | (ii) | its bank has unconditionally and irrevocably committed by letter or telefax to transfer theSale Shares upon receipt of theAgreed Share Price on theAgreed Account to such deposit account asPurchaser has notified toSeller 1 no less than fiveBusiness Days prior toClosing, by handing over toPurchaser an original of such letter or telefax. |
| | (e) | If on theClosing Date, theIntercreditor Agreement is still in force,Purchaser shall accede to theIntercreditor Agreement by executing such declarations as are required to effect such accession. |
| | (f) | Purchaser shall pay theAgreed Share Price to eachAgreed Account. |
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| | (g) | EachSeller shall seek confirmation of receipt of theAgreed Share Price from the bank(s) with whom it keeps theAgreed Account(s) and informPurchaser of such confirmation promptly. |
| 7.3 | After allClosing Actions have been fulfilled (or waived),Sellers andPurchaser shall confirm in writing in a closing memorandum in such form as shall be mutually agreed that allClosing Actions have been performed or waived and that theClosing has occurred. For the avoidance of doubt, the legal effect of such closing memorandum shall be limited to serve as evidence that allClosing Actions have been performed or waived and that theClosing has occurred, but shall not limit or prejudice in any manner the rights of theParties orGuarantor arising under this agreement or under applicable law. |
| 7.4 | EachSeller andPurchaser hereby agree that, conditional upon (aufschiebend bedingt) the occurrence of theClosing Date, the consummation or waiver of the actions set out in Clause 7.2(a) to (e) and receipt on theAgreed Account of theAgreed Share Price, |
| | (a) | title to theSale Shares (sold for thatAgreed Share Price), including in relation thereto (i) the co-ownership rights to the underlying global share certificates, (ii) any certificates for interest, dividends or renewal (Zins- und Gewinnanteilsscheine, Erneuerungsscheine) and (iii) any rights to subscribe for newly issued shares in theCompany (Bezugsrechte), and |
| | (b) | suchSeller’s existing membership rights relating to theSale Shares (sold for thatAgreed Share Price), and |
| | (c) | suchSeller’s claims for delivery (Herausgabe- und Auslieferungsansprüche) vis-à-vis BHF-BANK Aktiengesellschaft as deposit bank of theSale Shares (sold for thatAgreed Share Price) and vis-à-visCBA (“Delivery Claims”), and |
| | (d) | in the case ofSeller 1 only, any claims ofSeller 1 against ING Bank N.V. under theING Pledge for reassignment (Rückabtretung) of itsDelivery Claims in respect of theING Shares (sold for thatAgreed Share Price); |
| | (e) | in the case ofSeller 1 only, any claims ofSeller 1 against UniCredit Bank AG under theUniCredit Pledge for reassignment (Rückabtretung) of itsDelivery Claims in respect of theUniCredit Shares (sold for thatAgreed Share Price); |
are hereby transferred toPurchaser in accordance with sections §§ 398, 413 German Civil Code (Bürgerliches Gesetzbuch).
(Purchaseracknowledges, that to the extent theDelivery Claims assigned bySeller 1 under paragraph 7.4(c) relate to theING Shares or theUniCredit Shares, suchDelivery Claims exist only conditional upon their reassignment in accordance with paragraphs 7.4(d) and (e).)
| 7.5 | Sellers may waive aClosing Action for which onlyPurchaser orGuarantor are responsible, and vice versa. Unless otherwise agreed by theParties in writing, the effect of a waiver shall, however, be limited to eliminating the need that the respectiveClosing Action be performed by or at theClosing and shall neither prejudice the continuing obligation of the responsibleSeller,Purchaseror Guarantor, as the case may be, to bring about suchClosing Action nor its liability for non-performance of its obligation to bring about suchClosing Action. |
| 7.6 | Should the transfer of theSellers’ Shares require any further act or declaration, the parties shall uponPurchaser’s request take all reasonable endeavors to take such further action and make such further declaration as and when required. |
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| 8. | ACCEPTANCE OF TENDER OFFER |
| 8.1 | Provided (i) allClosing Conditions have been satisfied or waived or (ii) allClosing Conditions other thanClosing Conditions4.1(a) and 4.1(b) have been satisfied or waived and theOffer remains only subject to satisfaction ofClosing Conditions4.1(a) and 4.1(b) by 28 May 2011,Purchaser may request that consummation of theClosing in accordance with Clause 7 be replaced bySellers accepting theOffer and transferring theirSale Shares toPurchaser in accordance with theOffer Document, provided that |
| | (a) | bySellers tendering theirSale Shares in acceptance of theOffer, theOffer becomes finally binding, without there remaining any further condition, rescission right or other risk of theOffer not being consummated, other than satisfaction or waiver by 28 May 2011 ofClosing Conditions4.1(a) and 4.1(b) or as provided for by mandatory applicable laws, and |
| | (b) | theOffer Document will foresee that the offer price (which shall be no less than EUR 40 perShare) (“Offer Price”) is to be paid, upon fulfilment by no later than 28 May 2011 of its closing conditions (such conditions not to go beyond those stated in Clause 4.1(c) (i) and (ii)), to the shareholders tendering theirShares no later than 5Business Days following the expiration of the additional offer period pursuant to Section 16 para. 2 German Securities Acquisition and Takeover Act or, in case later, the satisfaction or waiver ofClosing Conditions4.1(a) and 4.1(b) by 28 May 2011. |
| 8.2 | IfSellers andPurchaser proceed in accordance with Clause 8.1 (and irrespective of whether the conditions stated in the Offer will eventually be satisfied), their rights and obligations under Clauses 2, 3, 5 and 7 (except for Clause 7.2(e)) shall be replaced by the corresponding terms of theOffer and (ii) Sellers undertake not to exercise any withdrawal or rescission right they may have with respect to their tenderedShares pursuant to Section 22 para. 3 German Securities Acquisition and Takeover Act. |
| 9.1 | EachSeller hereby severally represents and warrants, in each case only in respect of itself and theSale Shares sold by it, toPurchaser (but not toGuarantor) in the form of an independent guarantee (Selbständiges Garantieversprechen) within the meaning of Secs. 311 (1), 241 of the German Civil Code as of theSigning Date and as of theClosing Date the following: |
| | (a) | The execution and performance bySeller of this agreement is within its corporate powers and has been duly authorized by all necessary corporate actions on its part. Except for possible merger control clearance,Seller does not require any consent or governmental authorization in connection with the execution and consummation of this agreement. |
| | (b) | Seller is the sole and unrestricted owner of theSale Shares, which are free and clear of any liens, encumbrances, pledges or otherin rem rights of third parties, except for theING Pledge and theUniCredit Pledge which will only be released upon receipt of theAgreed Share Price for theING Shares and, respectively, theUniCredit Shares on theAgreed Account and except for pledges under general terms and conditions with theSellers’ deposit account bank. No dividends have been paid or resolved to be paid with respect to theSale Shares since 1 January 2010. |
| 9.2 | None of theSellers represents, warrants, guarantees or otherwise accepts any liability for the legal, economic or financial position of theCompany nor shall any of theSellers be responsible or liable for or otherwise be affected for the purposes of this agreement by the future development of theCompany (including its subsidiaries) after the date hereof. |
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| 10.1 | Subject to Clauses 11 and 12 below, in case a guarantee given by aSeller in Clause 9 (“Guarantee”) is incorrect, the respectiveSeller orSellers shall bring about the guaranteed position, provided that only in case this cannot be effected otherwise within a reasonable period of time of no less than two months or is impossible or the respectiveSeller(s) finally refuse(s) (verweigert ernsthaft und endgültig) to do so, respectiveSeller orSellers shall, subject to Clause 10.2, pay toPurchaser the amount of money necessary to putPurchaser in the financial position in which it would have been if theGuarantee had been correct. |
| 10.2 | If, in case of a violation of the titleGuarantee in Clause 9.1(b), aSeller would, but for this Clause 10.2, be obliged to pay damages in an amount exceeding 10% of theAgreed Share Price, then suchSeller shall instead of paying such damages have the right to repay toPurchaser theAgreed Share Price concurrently (Zug um Zug) against re-transfer of theSale Shares to it (or any other person it may designate). (For the avoidance of doubt, theAgreed Share Price and the corresponding 10% threshold shall be determined separately in relation to each of theING Shares, theUniCredit Shares andthe Indigo Shares.) |
All claims against anySeller under this agreement shall become time-barred 12 months after theClosing Date, provided however that the limitation period in case of a violation of theGuarantees in Clause 9.1(b) shall be 24 months from theSigning Date.
| 12. | LIMITATION OF LIABILITY |
| 12.1 | EachSeller shall only be responsible for its own obligations. NoSeller shall be liable or responsible toPurchaser for (i) any breach of anyGuarantee or any other liability or obligation of any otherSeller or (ii) any claim against anotherSeller. If more than oneSeller is liable in relation to the same set of facts and circumstances, there (i) shall be only one claim arising from these facts and circumstances and (ii) theseSellers shall be liable as several debtors (Teilschuldner) therefor; the individual liability of eachSeller for such claim shall correspond to the percentage rate reflecting the relation of the calculatory share (anteiliger Betrag des Grundkapitals) of each suchSeller’sSale Shares to the aggregate calculatory share of theSale Shares of allSellers liable for such claim, but in no case be higher than the respectiveSeller’s maximum liability under Clause 12.4. In no case shall any liability ofSellers for any claim, breach or obligation be a joint and several liability or responsibility ofSellers (Gesamtschuldnerschaft). |
| 12.2 | Sellers shall under no circumstances be liable |
| | (a) | for internal administrative and other overhead costs ofPurchaser,Guarantor or theCompany, consequential damages, loss or reduction of revenues or profits, damage to good will or damages based on an alleged inappropriateness of theAgreed Share Price; |
| | (b) | ifSellers’ participation rights under Clause 14 have not been observed, unless and except to the extentPurchaser’sfailure or delay in doing so, has not increased the affectedSeller’s liability; |
| | (c) | or if after theClosing Date a liability is created or increased as a result of any action or absence of mitigation efforts ofPurchaser,Guarantor or theCompany. |
| 12.3 | Purchaser may only assert claims against anySeller, if and to the extent that the aggregate amount of all such claims exceeds EUR 250,000, it being understood that if this threshold is exceeded, only the exceeding amount may be claimed. |
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| 12.4 | EachSeller’s liability under this agreement shall be limited to 10% of theAgreed Share Price. This limitation shall not apply in case of a violation of theGuarantee in Clause 9.1(b), in which case eachSeller’s liability shall be limited to the amount of theAgreed Share Price paid for theSale Shares affected. (For the avoidance of doubt, theAgreed Share Price and the corresponding 10% threshold shall be determined separately in relation to each of theING Shares, theUniCredit Shares andthe Indigo Shares.) |
| 12.5 | TheParties andGuarantor agree that the limitations stipulated in Clauses 11 and 12 of this agreement shall survive a rescission or other termination of this agreement and shall apply to any and all rights and remedies whichPurchaser orGuarantor may have against one or moreSeller(s)for any breach of anyGuarantee or other (contractual or non-contractual) obligation under or in connection with this agreement, theLOI or in any way whatsoever otherwise arising in connection with theMerger and its preparation. Except for claims for specific performance of express obligations under this agreement (primäre Erfüllungspflichten) and damages claims for violating such claims for specific performance, all rights, claims and remedies of any legal nature that anyParty orGuarantor may otherwise have against each other shall be excluded. This shall in particular apply to any right to rescind (zurücktreten) (other than pursuant to Clause 5) from, or otherwise terminate, this agreement or to require the winding up of theMerger, any claims for breach of pre-contractual obligations (culpa in contrahendo) including claims under Sections 241 para. 2, 311 para. 2 and para. 3 German Civil Code, any claims for breach of contract (Schadensersatz wegen Pflichtverletzung) including claims under Sections 280, 282 German Civil Code (unless stipulated otherwise in the foregoing sentence), any claims based on frustration of contract (Störung der Geschäftsgrundlage) including claims under Section 313 German Civil Code, any claims for defects of theSale Shares or the business of theCompany (including its subsidiaries) under Sections 437 to 441 German Civil Code, and any claims under tort including claims under Sections 823 et seq. BGB, provided that Clauses 12.3 and 12.4 shall not apply to claims for willful deceit (arglistige Täuschung) or other intentional breaches of contract (vorsätzliche Vertragsverletzungen). |
| 13. | GUARANTEES BY PURCHASER |
| 13.1 | Purchaser andGuarantor represent and warrant toSellers in the form of aGuarantee (Selbständiges Garantieversprechen) within the meaning of Secs. 311 (1), 241 of the German Civil Code as of theSigning Date and as of theClosing Date the following: |
| | (a) | The execution and performance by each of them of this agreement is within their corporate powers and has been duly authorized by all necessary corporate actions on the part ofPurchaser andGuarantor. Except as stated in Clause 6,Purchaser andGuarantor do not require any consent or governmental authorization in connection with the execution and consummation of this agreement. |
| | (b) | Purchaser andGuarantor are not aware of any material inaccuracies or omissions in information regarding theCompany which either of them has received from eitherSeller or theCompany itself. |
| 13.2 | In case of a violation of the guarantees contained in Clause 13.1, Clauses 10, 11, 12.2 to 12.5 and 14 shall applymutatis mutandis. |
| 13.3 | Except to the extent required by mandatory law,Purchaser shall not, and shall cause theCompany (including its subsidiaries) not to, raise any claims relating to actions taken prior toClosing against anySeller in its capacity as direct or indirect shareholder of theCompany. |
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| 14. | PARTICIPATION, INFORMATION, MITIGATION |
| 14.1 | Purchaser shall promptly |
| | (a) | informSeller 1 and, if different, the affectedSeller, by courier or registered letter with return receipt (Einschreiben mit Rückschein) of any circumstance whereby it reasonably appears that anySeller is or may be liable to make any payment under this agreement, stating, to the extent possible, the grounds and nature of the potential claim and its estimated amount, within a period of one month from the timePurchaser orGuarantor learns of such circumstance; provided, however, thatPurchaser’sfailure to give, or delay in giving, such toSeller 1 and, if different, the affectedSeller, will relieve the affectedSellerof any liability or obligation under this agreement, unless and except to the extent, and only to the extent, such affectedSelleris not prejudiced as a result of such failure or delay andPurchaser can show the amount by whichSellerwas not so prejudiced; and |
| | (b) | thereafter keepSeller 1 and, if different, the affectedSeller reasonably informed of all developments in relation thereto; and |
| | (c) | provide all such information and documentation (no matter how it is recorded or stored) asSeller 1 or, if different, the affectedSeller shall reasonably request in connection therewith; and |
| | (d) | ensure that the affectedSeller (through or together with its advisers who have to be subject to market standard confidentiality agreements or a professional duty of secrecy) can investigate the basis of and the amount potentially payable with respect to a potential liability claim, provided that the right to investigate includes the right to receive all information and assistance, have access to premises and personnel during ordinary working hours and the right to examine and copy or photograph any assets, accounts, documents or records, in each case to the extent actually or potentially relating to the claim, as the affectedSeller may reasonably request; and |
| | (e) | take, and shall cause theCompany to take, all reasonable steps and action as are necessary or as the affectedSeller may require in order to mitigate any claim against anySeller and act and cause theCompany to act, in accordance with such request, subject toPurchaser and theCompany being indemnified by the affectedSeller against all reasonable costs and expenses incurred in connection therewith. |
| 14.2 | In circumstances where (i) a claim is made againstPurchaser orCompany which should reasonably be expected to give rise to a claim against aSeller or (ii) Purchaser or theCompany should reasonably be expected to be able to recover from a third party any sum in respect of any facts or circumstances by reference to whichPurchaser has or should be reasonably expected to have a claim against aSeller,Purchaser shall and shall procure that theCompany, in each case prior to taking any action under this agreement, promptly and diligently take all such action as the affectedSeller may reasonably request, including the institution of proceedings and the instruction of professional advisers approved by the affectedSeller to act on behalf ofPurchaser or theCompany to avoid, dispute, resist, compromise, defend or appeal against any claim pursuant to (i) or make such recovery pursuant to (ii), as the case may be, in accordance with the instructions of the affectedSeller to the intent that such action shall be delegated entirely to affectedSeller. |
| 14.3 | In circumstances where aParty has paid to the otherParty an amount in respect of a claim under this agreement and subsequent to the making of such payment the receivingParty recovers from some other person a sum which is referable to that payment, the receivingParty shall promptly repay to the payingParty an amount equal to the amount so recovered (net of costs of recovery) or, if lower, the amount paid by that payingParty to receivingParty. |
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| 14.4 | If and to the extent a claim with respect to a breach of aGuarantee exists, all reasonable costs and expenses incurred byPurchaser and all costs incurred for meeting any requests of an affectedSeller shall be borne by thatSeller liable for such breach; if and to the extent a claim with respect to a breach of aGuarantee does not exist, all reasonable costs and expenses incurred by anySeller shall be borne byPurchaser. |
| 15.1 | Guarantor hereby irrevocably and unconditionally guarantees to eachSeller the due and punctual performance and satisfaction byPurchaser of all obligations and liabilitiesPurchaser incurs under, as a result of or otherwise in connection with this agreement. |
| 15.2 | If any obligation ofPurchaser under this agreement is not satisfied when due,Guarantor shall upon first written demand of the affectedSeller by courier or registered letter with return receipt and in any event within threeBusiness Days of receipt byGuarantor of such request from any affectedSeller pay to thatSeller whatever amount owed byPurchaser to thatSeller pursuant to this agreement. |
| 15.3 | This guarantee is a continuing guarantee and will extend to the ultimate balance of all sums payable byPurchaser under this agreement, regardless of any intermediate payment or discharge in whole or in part. |
| 15.4 | If any discharge or arrangement is made in whole or in part on the faith of any payment, security or other disposition which is avoided or must be restored on insolvency, liquidation or otherwise without limitation, the liability ofGuarantor under this Clause 15 will continue as if the discharge or arrangement had not occurred. |
| 15.5 | Guarantor andPurchaser hereby waive any right they may have of first requiring aSeller to proceed against or enforce any other right or security or claim payment from any person, including, without limitation,Purchaser, before claiming fromGuarantor under this agreement. |
| 15.6 | Guarantor acknowledges that except for Clauses 18 and 20 of this agreement, this agreement does not create any rights of or for the benefit ofGuarantor and thatGuarantor shall not be entitled to claim performance of or assert any other rights under or arising out of this agreement. |
| 16. | ACKNOWLEDGEMENT OF CHANGE OF CONTROL |
Purchaser acknowledges that theMerger will constitute a change of control under theSenior Facility Agreement which, among other things, will entitle the financing bank(s) to declare all or part of the outstanding amounts under such debt arrangement immediately due and payable.Purchaser further acknowledges thatSellers and/or theCompany have notified or will notify the financing banks of theMerger contemplated by this agreement.Sellers have agreed to supportPurchaser and theCompany in any refinancing efforts, provided that noSeller shall be under any obligation or incur any liability risk or liability in relation to such agreement to support.
| 17.1 | TheParties andGuarantor mutually undertake to keepConfidential Information (as defined below) secret and confidential vis-à-vis any third party and keep any part of this agreement confidential among themselves, except thatConfidential Information may be disclosed: |
| | (a) | to persons affiliated with aParty and its officers, directors, employees and to professional advisers who have a need to know such information; or |
| | (b) | where requested or required by any court of competent jurisdiction or any competent judicial, governmental, supervisory or regulatory body or where required by the rules of any |
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| | stock exchange, regulation or law (thePartiesexpressly acknowledge thatGuarantor is required under applicable law to disclose this entire agreement in a filing with the U.S. Securities and Exchange Commission within fourBusiness Days of theSigning Date); or |
| | (c) | where disclosure is required in order for aParty orGuarantor to honor or enforce any provision of this agreement (or to defend against any otherParty’s orGuarantor’s alleged enforcement of any provision of this agreement); or |
| | (d) | with the prior written consent ofSellers orPurchaser, respectively; or |
| | (e) | by thePurchaser afterClosing. |
| 17.2 | For the purposes of Clause 17.1,“Confidential Information” shall mean any information relating to this agreement or to theCompany (including its subsidiaries), in whatever form, and includes information given orally and any document, electronic file or any other way of representing or recording information which contains or is derived or copied from such information, except to the extent that the relevant facts (i) are or become public knowledge other than as a direct or indirect result of any breach of Clause 17.1, (ii) are or were known by the relevant person before the date the information is or was disclosed to it or (iii) are lawfully obtained after that date. |
| 17.3 | No press releases or other public announcement concerning the transactions contemplated by this agreement shall be made by anyParty orGuarantor unless the form and text of such announcement shall first have been approved by all other Parties except that – if thatParty orGuarantor are required by law or by applicable stock exchange regulations to make an announcement – the aforementioned approval requirement shall not apply. |
| 18.1 | All declarations, notices or other communications hereunder (“Notice”) shall be done in writing in the English language and delivered by hand, by courier, by facsimile or scanned letter transmitted by email to the person at the addresses set forth in Clause 18.2, or such other addresses as may be designated by the respectiveParty orGuarantor to the otherParty or theGuarantor in the same manner. |
| 18.2 | AnyNotice to be given under or in connection with this agreement or theLOI shall be addressed as follows: |
| | (a) | if directed toSeller 1 orSeller 2: |
| | (i) | Indigo Capital IV LLP, 30 King Street, London EC2V 8EH, England, Fax: +44 (0) 20 7397 1531. |
| | (ii) | with a copy to: Markus Strelow, Mayer Brown LLP, Bockenheimer Landstrasse 98-100, 60323 Frankfurt am Main, Fax +49 (0) 69 7941 100. |
| | (b) | if directed toSeller 3: |
| | (i) | Industrie-Beteiligungs-Gesellschaft mbH, Thomas Graf, Bockenheimer Landstrasse 10, 60323 Frankfurt am Main, Fax +49 (0) 69 718 3206. |
| | (ii) | with a copy to: Sandra Gransberger, BHF-BANK Aktiengesellschaft, Bockenheimer Landstraße 10, 60323 Frankfurt am Main, Fax +49 (0) 69 718 123545. |
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| | (c) | If directed toPurchaser orGuarantor: |
| | (i) | Amerigon Europe GmbH and Amerigon Incorporated, Attn: Daniel R. Coker, 21680 Haggerty Road, Suite 101, Northville, Michigan 48167, United States of America, Fax +1 248 504 0500. |
| | (ii) | with a copy to: Peter Memminger, Milbank Tweed, Hadley & McCloy LLP, Taunusanlage 15, 60325 Frankfurt am Main, Fax +49 (0) 69 71914 3500. |
| 18.3 | EachParty andGuarantor shall communicate any change of its respective address as soon as possible in writing to the respective other parties. Until such communication, the address as hitherto shall be relevant. |
| 18.4 | The receipt of copies ofNotices by aParty’s orGuarantor’s advisor shall not constitute or substitute the receipt of suchNotices by theParty itself. |
| 19.1 | Without prejudice to any other means or mode of service allowed under any relevant law,Guarantor |
| | (a) | hereby irrevocably appointsProcess Agent (Zustellungsbevollmächtigter) for service of process (Entgegennahme von Schriftstücken) in relation to any proceedings before any court of the Federal Republic of Germany in connection with this agreement, and |
| | (b) | agrees that failure byProcess Agent to notify it of the service of process (Zustellung) will not invalidate the service of process or proceedings concerned. |
| 19.2 | Guarantor undertakes to deliver toProcess Agent without undue delay following theSigning Date an appointment letter in the form of Annex 19.2 (“Appointment Letter”) and if a person appointed asProcess Agent ceases to hold that capacity, to appoint promptly another person domiciled in Germany asProcess Agent in accordance with this Clause 19. |
| 19.3 | Process Agent hereby acknowledges its appointment.Process Agent shall ensure that documents to be served toGuarantor can validly be served by delivery toProcess Agent. In particular,Process Agent shall notify eachSeller without undue delay of any change of address, accept any documents delivered to it on behalf of anySeller, and fulfill any requirements of § 171 German Code of Civil Procedure (Zivilprozessordnung - ZPO), in particular present an original of the Appointment Letter to the person effecting the service of process in compliance with § 171 sentence 2 ZPO.Process Agent hereby undertakes to notify toSellers any revocation or other termination of its appointment asProcess Agent. |
| 19.4 | Unless another German address is notified toSellers, documents shall be served toProcess Agent at the following address: TMF Deutschland AG, Eschenheimer Anlage 1, 60316 Frankfurt am Main. |
| 20.1 | This agreement and any non-contractual rights and obligations arising out of or in connection with this agreement are subject to the laws of Germany. |
| 20.2 | The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this agreement. |
| 21. | INTERPRETATION, FORMALITIES, SEVERABILITY |
| 21.1 | Capitalised and italicised terms are defined within this agreement and such definitions shall apply to each and every use of such terms within the agreement. |
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| 21.2 | In case of doubt, the meaning of the German expressions used in this document shall prevail over the meaning of the English expressions to which they relate. |
| 21.3 | A reference to the or this agreement implies reference to all annexes included in this agreement. |
| 21.4 | This agreement comprises the entire agreement between theParties andGuarantor with respect to theMerger. Unless otherwise stated herein, any prior oral or written agreements or letters of intent, including in particular theLOI, that relate to theMerger shall be cancelled and superseded by this agreement. |
| 21.5 | AParty’s failure or delay to insist on strict performance of any provision of this agreement or exercise any power, right or remedy hereunder shall not operate as or be deemed to be a waiver thereof or of any right or remedy for breach of a like or different nature nor shall any single or any partial exercise of any power, right or remedy preclude its further exercise or the exercise of any other power, right or remedy. |
| 21.6 | Changes, amendments to this agreement and waivers shall be valid only if made in writing. This shall also apply to amendments of this provision. |
| 21.7 | In the event that any provision of this agreement shall be or become invalid or unenforceable or if this agreement should show a gap, this shall not affect the validity of the remaining provisions of this agreement. In any such case, such valid and enforceable provision shall apply which the parties would have agreed upon in the light of the economic purpose pursued with this agreement, had they considered the matter when executing this agreement. |
| 22.1 | Except as otherwise stated in this agreement, all payments under or in connection with this agreement shall be made free of all taxes, bank charges and other deductions by wire transfer of immediately available funds, value as of the relevant due date. |
| 22.2 | Except as otherwise stated in this agreement, theParties andGuarantor shall not be entitled to exercise any right of set-off or retention right with respect to any payment to be made by them under this agreement unless their claim is finally decided by a final court judgement or arbitration award. |
| 22.3 | All (i) transfer taxes, stamp duties, registration duties, costs of share transfer (for the avoidance of doubt, such costs shall not include any costs related with the removal of the share pledge on the Seller’s Shares, the refinancing of the Company’s existing financing or any other similar or extraordinary items, but merely the costs for the booking of the ownership transfer for the Seller’s Shares in the respective deposit accounts) and other charges and similar costs payable in connection with the execution of this agreement and the implementation of theMerger, and (ii) costs and fees in connection with any applicable merger control clearances (except for anySeller’s costs of professional advisors retained by anySeller in connection with any filing under theHSR Act), shall be borne byPurchaser. All other costs and expenses incurred by a person in connection with this agreement (including the costs of aSeller’s professional advisers in connection with any filing under theHSR Act) shall be borne by the person incurring such costs. |
| 22.4 | Except as otherwise provided herein, noParty norGuarantor shall be entitled to assign any rights or claims under this agreement without the prior written approval of the otherParties, except that eachParty andGuarantor may assign its rights or claims hereunder to its affiliates andPurchaser andGuarantor may assign its rights or claims hereunder to any banks financing theMerger. |
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| | | | |
| 28 February 2011 | | | | 28 February 2011 |
| | |
/s/ Martin Stringfellow | | | | /s/ Daniel R. Coker |
| | |
Indigo Capital LLP in its capacity as Manager of Indigo Capital IV LP | | | | Amerigon Incorporated |
| | |
/s/ Martin Stringfellow | | | | /s/ Daniel R. Coker |
| | |
Indigo Capital LLP in its capacity as Manager of ICWET LP | | | | Amerigon Europe GmbH |
| | |
/s/ Sandra Gransberger /s/ Thomas Graf | | | | /s/ Ursula Rutovitz |
| | |
| Industrie-Beteiligungs-Gesellschaft mbH | | | | TMF Deutschland AG |
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Annex 4.1(f) – Release of Share Pledges
AGREEMENT OF RELEASE
This agreement of release of security over shares in W.E.T. Automotive Systems AG is made onl between
| (1) | [Pledgee],l, Germany, as pledgee (“Pledgee”), and |
| (2) | Indigo Capital IV LP, 30 King Street, London, EC2V 8EH, England, as pledgor (“Pledgor”). |
PREAMBLE
| (A) | By “Kauf- und Übertragungsvertrag” ofl (“Mezzanine Purchase Agreement”)Pledgor and ICWET LP purchased fromPledgee the full share ofPledgee’s participation in the Mezzanine Darlehensvertrag (as defined in suchMezzanine Purchase Agreement). Pursuant to Clause 1.3 of theMezzanine Purchase Agreement Pledgeeis entitled to an “Erhöhungsbetrag” as set out in more detail therein (“Top-Up”). |
| (B) | On 15 April 2010Pledgee andPledgor executed a “Second Ranking Securities Account Pledge Agreement” (the“Agreement”) to securePledgee’s right to receive theTop-Up. |
| (C) | Pledgor intends to sell and transfer thePurchased Shares (as defined in theAgreement) to a third party who is interested to acquire, inter alia, thePurchased Shares.Pledgee is prepared to release the pledge over the Pledged Items (as defined in theAgreement) to the extent required to permitPledgor to effect the sale and transfer of thePurchased Shares to the envisaged purchaser. |
NOW THEREFORE IT IS AGREED WHAT FOLLOWS:
| 1.1 | Subject to the condition precedent stated in Clause 2 below,Pledgee |
| | (a) | hereby releases and terminates the pledge granted to it byPledgor over thePledged Items pursuant to theAgreement; |
| | (b) | hereby reassigns toPledgor the claims assigned to it byPledgor under Clause 1.3 of theAgreement. |
| 1.2 | Pledgor hereby accepts the above release and assignment. |
| 1.3 | Pledgor confirms its obligation not to withdraw thePurchase Price from thePurchase Price Income Account (as defined in Clause 2 below) until and except to the extent it has satisfiedPledgee’s right to receive theTop-Up. |
| 2.1 | The release and reassignment agreed in Clause 1.1 are subject to receipt of Eurol (“Purchase Price”) on the following account: |
Account numberl
Bankleitzahl 500 202 00
BHF-BANK Aktiengesellschaft, Frankfurt
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IBAN:l
BIC: BHFBDEFF500
(“Purchase Price Income Account”),
provided that the payment instruction was not made subject to any condition, revocation or reservation.
| 3. | NOTICE OF TERMINATION OF PLEDGE |
Pledgee hereby authorisesPledgor to notify the Depository Bank (as defined in theAgreement) of the release and termination of the pledge, subject to the condition stated in Clause 2, stipulated herein and to perform all other acts and things required or conducive in relation thereto.
| 4.1 | This agreement is governed by the laws of the Federal Republic of Germany. Any non-contractual rights and obligations arising out of or in connection with thisAgreement shall also be governed by the laws of the Federal Republic of Germany. |
| 4.2 | The courts of Frankfurt am Main, Germany have exclusive jurisdiction to settle any dispute arising out of or in connection with this agreement. This Clause 4.2 is for the benefit ofPledgee only.Pledgee may start proceedings in any other court with jurisdiction. |
Pledgor:
Indigo Capital IV LP
| | | | | | |
| Date: | | | | | | |
| | | |
| By: | | | | | | |
| | (signature(s)) | | | | (name of signatory/ies) |
Pledgee:
[Pledgee]
| | | | | | |
| Date: | | | | | | |
| | | |
| By: | | | | | | |
| | (signature(s)) | | | | (name of signatory/ies) |
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Annex 19.2 –
Appointment of Process Agent
(Bestellung eines Zustellungsbevollmächtigten)
Amerigon Incorporated,
21680 Haggerty Road, Suite 101, Northville, Michigan 48167, USA
TMF Deutschland AG,
Eschenheimer Anlage 1, 60316 Frankfurt am Main
[date]
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| Reference: | | Betreff: |
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| Share Sale and Purchase Agreement dated 28 February 2011 | | Aktienkaufvertrag vom 28. Februar 2011 |
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| Dear Sirs, | | Sehr geehrte Damen und Herren, |
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we hereby irrevocably appoint you as our agent for service of process in relation to any proceeding before any German court in connection with the above mentioned agreements. | | hiermit bevollmächtigen wir Sie unwiderruflich, sämtliche Schriftstücke, die uns im Zusammenhang mit Verfahren vor deutschen Gerichten in Verbindung mit dem oben genannten Verträgen zugestellt werden sollen, entgegenzunehmen. |
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| Yours sincerely | | Mit freundlichen Grüßen |
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| Place, date | | Ort, Datum |
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Amerigon Incorporated (Principal) | | Amerigon Incorporated (Vollmachtgeber) |
Seite 23
(Signature(s) of Guarantor)
Seite 24
