A.Prot. 2003/22
dated March 17, 2003 of the Notary
Dr. Dieter Granicher, Basel (Switzerland)
NOTARIAL DEED
AGREEMENT REGARDING THE PURCHASE AND TRANSFER
OF
AG SHARES AND GMBH SHARES
AND REGARDING SHAREHOLDERS' RESOLUTIONS
Negotiated in Basel/Switzerland on March 17, 2003
Before me, the undersigned notary public
DR. DIETER GRANICHER
with registered office in Basel, Switzerland:
A. DR. GERHARD WIRTH, born on January 13, 1944, attorney, German citizen,
with business address at Maybachstra(beta)e 6, D-70469 Stuttgart,
identified by means of German identity card,
according to his declaration not acting in his own name, but on behalf of
1. THE PROCTER & GAMBLE COMPANY, Stock Corporation under the laws of the
U.S. state of Ohio, One Procter & Gamble Plaza, Cincinnati, Ohio
45202, U.S.A., according to the power of attorney with certification
of signature, presented in the original and attached to this deed as a
signed, certified copy dated March 17, 2003 (without certification of
representation) together with the incumbency certificate of the
assistant secretary of said company, dated February 28, 2003 (Annex
A.1),
- hereinafter "P&G" -
B. HORST CHRISTIAN DENGLER, born October 6, 1944, attorney, German
citizen, with business address at Temselaan 100, B-1853
Strombeek-Bever, personally known to the notary,
according to his declaration not acting in his own name, but on behalf of
2. PROCTER & GAMBLE GERMANY MANAGEMENT GMBH, with registered office in
Schwalbach, Sulzbacher Str. 40, D-65818 Schwalbach, entered in the
commercial register of the local court Konigstein im Taunus under HRB
5939, according to the uncertified power of attorney personally signed
by Mr. Dieter B. Judith, dated March 17, 2003, which was also
presented as a faxed copy, which is attached to this deed, together
with the commercial register excerpt of the Local Court of
Konigstein/Taunus (Annex B.2), promising to subsequently submit the
power of attorney with his own signature on the left-hand side,
- hereinafter: "RELEVANT P&G PARTY" or "PARTY NO. 2" -
C. DR. CHRISTOPH SCHULTE, born on October 20, 1960, attorney, German
citizen, with business address at Bockenheimer Landstra(beta)e
23, D-60325 Frankfurt am Main, identified by means of German passport,
according to his declaration not acting in his own name, but on behalf of
3. STROHER VERWALTUNGS- UND BETEILIGUNGS GMBH & CO. KG, with registered
office in Munster, Auf der Beune 85, D-64839 Munster, entered in the
commercial register of the Local Court of Darmstadt under HRA 6511,
represented by Stroher GmbH with previously registered office in
Darmstadt, which was, according to a shareholder resolution relocated
to Munster, presently still entered in the commercial register of the
Local Court of Darmstadt under HRB 7240, represented by Sylvia
Stroher, who at the same time is the only limited partner of the
Stroher Verwaltungs- und Beteiligungs GmbH & Co. KG and the managing
director with sole power of representation of the only general
partner, Stroher GmbH, according to the uncertified power of attorney
presented in original form and dated March 7, 2003, and as a herewith
certified copy attached to this deed as Annex C.3.
- hereinafter also: "PARTY NO 3" -
D. DR. STEPHAN SCHERER, born on February 23, 1962, attorney, German
citizen, with business address at Otto-Beck-Stra(beta)e 42,
D-68165 Mannheim, identified by means of German identity card,
according to his declaration not acting in his own name, but on behalf of
4. DR. ERIKA POHL, resident at Maison Trautheim, Ferpicloz, CH-1724
Praroman-Le Mouret, Switzerland, according to the uncertified power of
attorney dated February 21, 2003, presented in original form and in
the form of a herewith certified copy attached to this deed as Annex
D.4,
- hereinafter also: "PARTY NO. 4" -
5. RAINALD POHL, resident at Hobrechtstra(beta)e 52, D-64285 Darmstadt,
according to the uncertified power of attorney dated February 25,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex D.5,
- hereinafter also: "PARTY NO. 5" -
6. TILMAN POHL, resident at Am Elfengrund 48, D-64297 Darmstadt,
according to the uncertified power of attorney dated February 20,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex D.6,
- hereinafter also: "PARTY NO. 6" -
7. BERTRAM POHL, resident at Maison Trautheim, Ferpicloz, CH-1724
Praroman-Le Mouret, Switzerland, according to the uncertified power of
attorney dated February 19, 2003, presented in original form and in
the form of a herewith certified copy attached to this deed as Annex
D.7,
- hereinafter also: "PARTY NO. 7" -
8. DR. BURKHARD POHL, resident at Maison Trautheim, Ferpicloz, CH-1724
Praroman-Le Mouret, Switzerland, according to the uncertified power of
attorney dated February 20, 2003, presented in original form and in
the form of a herewith certified copy attached to this deed as Annex
D.8,
- hereinafter also: "PARTY NO. 8" -
9. HAIDRUN HONIG, resident at Maison Trautheim, Ferpicloz, CH-1724
Praroman-Le Mouret, Switzerland, according to the uncertified power of
attorney dated February 18, 2003, presented in original form and in
the form of a herewith certified copy attached to this deed as Annex
D.9,
- hereinafter also: "PARTY NO. 9" -
E. RALF E. HESS, born March 27, 1944, attorney, German citizen, with
business address at Hochstra(beta)e 29, D-60313 Frankfurt am Main,
identified by means of German identity card,
according to his declaration not acting in his own name, but on behalf of
10. IMLADRIS GMBH, with registered office in Darmstadt, Haubachweg 6,
D-64285 Darmstadt, entered in the commercial register of the Local
Court of Darmstadt under HRB 8373, represented by its managing
director Immo Stroher with sole power of representation, who at the
same time is sole shareholder, according to the uncertified power of
attorney dated October 22, 2002, presented in original form and in the
form of a herewith certified copy attached to this deed as Annex E.10,
- hereinafter also: "PARTY NO. 10" -
11. CORINNA STROHER, resident at Bleichweg 18, D-64342 Seeheim-Jugenheim,
according to the uncertified power of attorney dated February 26,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex E.11,
- hereinafter also: "PARTY NO. 11" -
12. CORDULA STROHER, resident at Hunrodtstra(beta)e 9, D-34131 Kassel,
according to the uncertified power of attorney dated February 26,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex E.11,
- hereinafter also: "PARTY NO. 12" -
13. ANNIKA STROHER, resident at Steinbergweg 39, D-64285 Darmstadt,
according to the uncertified power of attorney dated February 26,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex E.11,
- hereinafter also: "PARTY NO. 13" -
14. SVEN-MARTIN STROHER, resident Haubachweg 6, D-64285 Darmstadt,
according to the uncertified power of attorney dated February 26,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex E.11,
- hereinafter also: "PARTY NO. 14" -
15. JAN-HENDRIK STROHER, resident at Haubachweg 6, 64285 Darmstadt,
according to the uncertified power of attorney dated February 26,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex E.11,
- hereinafter also: "PARTY NO. 15" -
- the Parties Nos.10 to 15 hereinafter
individually or jointly: "IMMO STROHER FAMILY SHAREHOLDER(S)" -
- the Parties Nos. 3 to 15 hereinafter
individually or jointly: "FAMILY SHAREHOLDER(S)" -
C. DR. CHRISTOPH SCHULTE, aforementioned,
according to his declaration not acting in his own name, but on behalf of
16. CLAUDIA EBERT, resident at Seitersweg 45, D-64287 Darmstadt, according
to the uncertified power of attorney dated February 27, 2003,
presented in original form and in the form of a herewith certified
copy attached to this deed as Annex C.16,
- hereinafter also: "PARTY NO. 16" -
17. JANA EBERT, resident at Seitersweg 45, D-64287 Darmstadt, according to
the uncertified power of attorney dated February 27, 2003, presented
in original form and in the form of a herewith certified copy attached
to this deed as Annex C.17,
- hereinafter also: "PARTY NO. 17" -
18. SIMON EBERT, resident at Seitersweg 45, D-64287 Darmstadt, according
to the uncertified power of attorney dated February 27, 2003,
presented in original form and in the form of a herewith certified
copy attached to this deed as Annex C.18,
- hereinafter also: "PARTY NO. 18" -
D. DR. STEPHAN SCHERER, aforementioned,
according to his declaration not acting in his own name, but on behalf of
19. GISELA SANDER, resident at In der Wildnis 8, D-64367
Muhltal-Trautheim, according to the uncertified power of attorney
dated February 18, 2003, presented in original form and in the form of
a herewith certified copy attached to this deed as Annex D.19,
- hereinafter also: "PARTY NO. 19" -
20. ULRIKE CRESPO, resident at Feyerleinstr. 9, D-60323 Frankfurt am Main,
according to the uncertified power of attorney dated February 18,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex D.20,
- hereinafter also: "PARTY NO. 20" -
F. DR. ANDREAS URBAN, born on February 28, 1956, attorney, German
citizen, with business address at Cecilienallee 5, D-40474
Dusseldorf, identified by means of German identity card,
according to his declaration not acting in his own name, but on behalf of
21. PROF. DR. DR. THOMAS OLBRICHT, business address at Meisenburgstr. 153,
D-45133 Essen and resident at Brucker Holt 20, D-45133 Essen,
according to the uncertified power of attorney dated February 21,
2003, presented in original form and in the form of a herewith
certified copy attached to this deed as Annex F.21,
- hereinafter also: "PARTY NO. 21" -
- the Parties Nos. 16 to 21 hereinafter
individually or jointly: "INDIRECT SHAREHOLDER(S)" -
- the Parties (i) No. 3, (ii) Nos. 4 to 9, (iii) Nos. 10 to 15,
(iv) Nos. 16 to 18 and 21, as well as (v) Nos. 19 and 20,
hereinafter each constitute a "FAMILY GROUP" -
C. DR. CHRISTOPH SCHULTE, aforementioned,
according to his declaration not acting in his own name, but on behalf of
22. SYLVIA STROHER, resident at Claudiusweg 18a, D-64285 Darmstadt,
according to the uncertified power of attorney dated March 7, 2003,
presented in original form and in the form of a herewith certified
copy attached to this deed as Annex C.3,
E. RALF E. HESS, aforementioned,
according to his declaration not acting in his own name, but on behalf of
23. IMMO STROHER, resident at Haubachweg 6, D-64285 Darmstadt according to
the uncertified power of attorney dated October 22, 2002, presented in
original form and in the form of a herewith certified copy attached to
this deed as Annex E.10.
The notary public called the attention of the persons appearing to the fact that
some powers of attorney are not certified and that none of the powers of
attorney is provided with confirmation of representation. In spite of the
attendant dangers, the persons appearing insisted on immediate notarization and
waived the subsequent submission of certified powers of attorney and
confirmations of representation.
The notary public discussed the prohibition of collaboration pursuant to the
notarial law of the city of Basel (EG/ZGB ss. 233(1)(4)) and to the German
Notarization Law (ss. 3(1)(7), BEURKUNDUNGSGESETZ). The question of whether a
prior involvement exists on the part of the notary public or the notary public's
partners in the notary's office or other persons who work together with the
notary public or in common business offices within the meaning of these
provisions was denied by both the Parties and the notary public.
The persons appearing, acting as indicated, declared the following and requested
its notarization:
PREAMBLE
Wella Aktiengesellschaft (the "COMPANY"), having its registered office in
Darmstadt, entered in the commercial register of the Local Court of Darmstadt
under HRB 1046, has a registered share capital of EUR 67,517,346.00, divided
into 67,517,346 non-par-value bearer shares of which (i) 44,135,676 shares are
ordinary shares (STAMMAKTIEN) and (ii) 23,381,670 shares are preference shares
(VORZUGSAKTIEN). The preference shares do not grant any voting rights but,
pursuant to ss. 27(1) of the articles of association of the Company, grant a
right to a preference dividend according to which each preference share is
entitled to receive a dividend carrying priority out of the yearly balance sheet
profit (BILANZGEWINN) which is set at EUR 0.02 above the dividend each ordinary
share is entitled to, but with a minimum dividend of EUR 0.05. If the balance
sheet profit of one or more fiscal years does not suffice for the priority
dividend payment of at least EUR 0.05 per preference share, then any deficit
shall be paid later without interest from the balance sheet profit of the
following fiscal years, as provided in ss. 27(2) of the Company's articles of
association.
The shares of the Company are evidenced by a permanent global certificate, which
has been deposited with Clearstream Banking AG for safe custody. The
shareholders' right to receive share certificates is excluded pursuant to ss.
4(1) (c) of the Company's articles of association.
The Family Shareholders, with the exception of the Immo Stroher Family
Shareholders, hold 21,462,866 ordinary shares in the Company (approximately
31.79% of the registered share capital of the Company and approximately 48.63%
of the ordinary shares of the Company). The Immo Stroher Family Shareholders
hold 2,759,344 ordinary shares in the Company (approximately 4.08% of the
registered share capital of the Company and approximately 6.25% of the ordinary
shares in the Company). The Indirect Shareholders hold through their Holding
Companies 10,012,982 ordinary shares in the Company (approximately 14.83% of the
registered share capital of the Company and approximately 22.69% of the ordinary
shares of the Company). Thus, the Family Shareholders and the Indirect
Shareholders hold a total of 34,235,192 ordinary shares in the Company
(approximately 50.71% of the registered share capital of the Company and
approximately 77.57% of the ordinary shares of the Company). Furthermore, the
Family Shareholders and their shareholders (including the shareholders of the
general partners of the Family Shareholders) as well as the Indirect
Shareholders and their Holding Companies hold the following amounts of
additional shares in the Company (ordinary shares and/or preference shares)
("ADDITIONAL SHARES"):
FAMILY SHAREHOLDERS EXCEPT ADDITIONAL ADDITIONAL
IMMO STROHER ORDINARY PREFERENCE
FAMILY SHAREHOLDERS SHARES SHARES
- ------------------------------------------- ------------------ -----------------
Stroher Verwaltungs- und Beteiligungs 0 0
GmbH & Co. KG
- ------------------------------------------- ------------------ -----------------
Dr. Erika Pohl 0 0
- ------------------------------------------- ------------------ -----------------
Mr. Rainald Pohl 0 500
- ------------------------------------------- ------------------ -----------------
Mr. Tilman Pohl 0 0
- ------------------------------------------- ------------------ -----------------
Mr. Bertram Pohl 0 0
- ------------------------------------------- ------------------ -----------------
Dr. Burkhard Pohl 0 0
- ------------------------------------------- ------------------ -----------------
Ms. Haidrun Honig 0 0
- ------------------------------------------- ------------------ -----------------
ADDITIONAL ADDITIONAL
ORDINARY PREFERENCE
IMMO STROHER FAMILY SHAREHOLDERS SHARES SHARES
- ------------------------------------------- ------------------ -----------------
Imladris GmbH 0 0
- ------------------------------------------- ------------------ -----------------
Ms. Corinna Stroher 1,000 0
- ------------------------------------------- ------------------ -----------------
Ms. Cordula Stroher 1,000 0
- ------------------------------------------- ------------------ -----------------
Ms. Annika Stroher 0 0
- ------------------------------------------- ------------------ -----------------
Mr. Sven-Martin Stroher 0 0
- ------------------------------------------- ------------------ -----------------
Mr. Jan-Hendrik Stroher 0 150
- ------------------------------------------- ------------------ -----------------
ADDITIONAL ADDITIONAL
ORDINARY PREFERENCE
INDIRECT SHAREHOLDERS SHARES SHARES
- ------------------------------------------- ------------------ -----------------
Ms. Claudia Ebert 11,000 0
- ------------------------------------------- ------------------ -----------------
Ms. Jana Ebert 0 0
- ------------------------------------------- ------------------ -----------------
Mr. Simon Ebert 520 0
- ------------------------------------------- ------------------ -----------------
Ms. Gisela Sander 6,000 0
- ------------------------------------------- ------------------ -----------------
Ms. Ulrike Crespo 0 0
- ------------------------------------------- ------------------ -----------------
Prof. Dr. Dr. Thomas Olbricht 2,200 0
- ------------------------------------------- ------------------ -----------------
ADDITIONAL ADDITIONAL
ORDINARY PREFERENCE
HOLDING COMPANIES SHARES SHARES
- ------------------------------------------- ------------------ -----------------
Merlin GmbH 0 0
- ------------------------------------------- ------------------ -----------------
Olbricht Vermogensverwaltungs GmbH 0 0
- ------------------------------------------- ------------------ -----------------
SC Verwaltungs- und Beteiligungs GmbH 0 0
- ------------------------------------------- ------------------ -----------------
UC-Beteiligungs-GmbH 0 0
- ------------------------------------------- ------------------ -----------------
ADDITIONAL ADDITIONAL
ORDINARY PREFERENCE
FURTHER PARTIES NOS. 22 AND 23 SHARES SHARES
- ------------------------------------------- ------------------ -----------------
Ms. Sylvia Stroher 2,600 0
- ------------------------------------------- ------------------ -----------------
Mr. Immo Stroher 0 0
Neither the Family Shareholders nor their shareholders (including the
shareholders of the general partners of the Family Shareholders) nor the
Indirect Shareholders nor the Holding Companies hold any shares in the Company
in addition to the shares mentioned in the Preamble.
The Relevant P&G Party intends to acquire the 24,222,210 ordinary shares of the
Family Shareholders (including the 2,759,344 ordinary shares of the Immo-Stroher
Family Shareholder and all shares in the Holding Companies which for their part
hold altogether 10,012,982 ordinary shares. At the same time, the Relevant P&G
Party wishes to acquire additional shares in the Company, in order to reach a
total shareholding of 100% of the Company's registered share capital ("OVERALL
TRANSACTION"). For this purpose, the Relevant P&G Party intends, inter alia, to
make a public tender offer ("TENDER OFFER") to acquire all ordinary and
preference shares of the Company pursuant to the provisions of the German
Securities Acquisition and Takeover Act (WERTPAPIERERWERBS- UND UBERNAHMEGESETZ
- - "WPUG"). Whether the Tender Offer will be accepted to the extent expected by
P&G does not have any impact on the existence of this Agreement and/or the
rights and obligations arising from this Agreement.
This said, P&G, the Relevant P&G Party, the Family Shareholders, the Indirect
Shareholders, Ms. Sylvia Stroher and Mr. Immo Stroher (collectively the
"PARTIES") conclude the following "AGREEMENT":
SECTION A
SALE OF SHARES BY THE FAMILY SHAREHOLDERS
SS. 1
SUBJECT MATTER OF THE AGREEMENT
(1) The Family Shareholders, with the exception of the Immo Stroher Family
Shareholders, have the following shareholdings among others in the
registered share capital of the Company:
a) STROHER VERWALTUNGS- UND BETEILIGUNGS GMBH & CO. KG
11,228,928 ordinary non-par-value bearer shares
b) Dr. ERIKA POHL
8,864,778 ordinary non-par-value bearer shares
c) Mr. RAINALD POHL
273,832 ordinary non-par-value bearer shares
d) Mr. TILMAN POHL
273,832 ordinary non-par-value bearer shares
e) Mr. BERTRAM POHL
273,832 ordinary non-par-value bearer shares
f) Dr. BURKHARD POHL
273,832 ordinary non-par-value bearer shares
g) Ms. HAIDRUN HONIG
273,832 ordinary non-par-value bearer shares
(2) The Immo Stroher Family Shareholders have, among others, the following
shareholdings in the registered share capital of the Company:
(a) IMLADRIS GMBH
2,289,779 ordinary non-par-value bearer shares
(b) Ms. CORINNA STROHER
93,913 ordinary non-par-value bearer shares
(c) Ms. CORDULA STROHER
93,913 ordinary non-par-value bearer shares
(d) Ms. ANNIKA STROHER
93,913 ordinary non-par-value bearer shares
(e) Mr. SVEN-MARTIN STROHER
93,913 ordinary non-par-value bearer shares
(f) Mr. JAN-HENDRIK STROHER
93,913 ordinary non-par-value bearer shares
(3) The Company's registered share capital has been fully paid up.
SS. 2
SALE AND TRANSFER OF THE SHARES
(1) Each Family Shareholder hereby sells his portion of the shares in the
Company specified in ss. 1(1) (a) to (g) and ss. 1(2) (a) to (f)
(hereinafter each or collectively: the "SOLD SHARE(S)") to the Relevant P&G
Party with all rights attached to the Sold Shares, including (but not
limited to) the right to participate in the Company's profits
(GEWINNBEZUGSRECHT) for fiscal years as of January 1, 2003, as well as
subscription rights issued in connection with an increase of the Company's
registered share capital or with convertible bonds
(WANDELSCHULDVERSCHREIBUNGEN and OPTIONSSCHULDVERSCHREIBUNGEN) as of the
signing of this Agreement ("SIGNING DATE"). The right to participate in the
Company's profits for the fiscal year which ended on December 31, 2002 is
not subject of this Agreement. The Relevant P&G Party hereby accepts such
sale.
(2) The book-entry transfer of the Sold Shares and the Held Shares (see ss.
6(1)) shall be entered in a securities deposit account with Deutsche Bank
AG ("BANK") in account No. 100/096.1060 together with sub-accounts for the
Family Shareholders and the Holding Companies (custodian deposit account).
This securities deposit account shall be blocked with respect to each
portion of the Sold Shares and of the Held Shares for the benefit of the
Relevant P&G Party until title in all Sold Shares has been transferred to
the Relevant P&G Party and the transfer of all Sold Holding Company Shares
(see ss. 7(3) and (4)) to the Relevant P&G Party becomes effective. The
Relevant P&G Party and the Family Shareholders irrevocably instruct the
bank to effect such blocking of the securities deposit account. The
Indirect Shareholders guarantee that the Holding Companies will issue the
same instruction. Should the bank not accept the blocking of the securities
deposit account or not accept the blocking in the intended form, the
Parties shall seek an arrangement as close as possible to the intended
blocking of the securities deposit account. For the avoidance of any doubt,
all rights attached to the Sold Shares and the Held Shares (including the
voting rights) remain with the respective Family Shareholder and the
respective Holding Company until the transfer of ownership of the Sold
Shares to the Relevant P&G Party and the transfer of the Sold Holding
Company Shares to the Relevant P&G Party become effective.
(3) Each Family Shareholder shall transfer his portion of the Sold Shares on
the fifth (Frankfurt) banking day after the closing condition pursuant to
ss. 21(2) has been fulfilled (the "CLOSING DATE") by way of collective
custody credit (Girosammelgutschrift) concurrently against payment of the
purchase price from the blocked securities deposit account to a securities
deposit account with the Bank designated by the Relevant P&G Party. Each
Family Shareholder, each Indirect Shareholder with regard to the relevant
Holding Company and each Holding Company undertakes to take any measure and
to cooperate in any measure required for the transfer of the Held Shares on
Closing Date to the securities deposit accounts of the Holding Companies
designated by the Relevant P&G Party. The Relevant P&G Party undertakes
topay to each of the Family Shareholders for each Sold Share transferred by
him to the Relevant P&G Party on the Closing Date the purchase price per
share as stated in ss. 3(1), plus additional payment claims which are due
by the Closing Date pursuant to ss. 3(2) concurrently (ZUG UM ZUG) with the
transfer of all Sold Shares and all Sold Holding Company Shares.
(4) Each Family Shareholder and the Relevant P&G Party agree that ownership of
each Sold Share sold by the respective Family Shareholder shall pass to the
Relevant P&G Party
(a) subject to the following conditions precedent of
(i) fulfillment of the Closing Condition pursuant to ss. 21(2) and
(ii) full and complete payment of the purchase price for this Sold
Share pursuant to ss. 3(1) and all Sold Holding Company Shares
pursuant to ss. 8(1), including possible additional payment
claims due by the Closing Date pursuant to ss. 3(2) or ss. 8(2),
respectively,
(b) but at the earliest at noon Central European Time on the Closing Date.
Each Family Shareholder irrevocably, and subject to the conditions
precedent, directs the Bank to transfer on occurrence of the conditions set
forth in (a) and (b) each Sold Share sold by him to the securities deposit
account at the Bank, which account is to be named by the Relevant P&G
Party. As a matter of precaution each Family Shareholder and the Relevant
P&G Party agree that the respective Family Shareholder shall keep each Sold
Share sold by him in custody for the Relevant P&G Party without
compensation from the occurrence of the conditions set forth in (a) and (b)
onwards. As a matter of utmost precaution, each Family Shareholder hereby
assigns, subject to the condition precedent of fulfillment of the
conditions pursuant to (a) and (b) above, his membership rights embodied in
each Sold Share to the Relevant P&G Party. Parties Nos. 2 to 21 shall agree
on an arrangement with the Bank that ensures that the concurrent
performance is handled by the Bank in such way that the Bank shall
simultaneously deliver to the Parties the account statement relevant to
them regarding the crediting of the purchase price or, as the case may be,
the crediting of the securities deposit account regarding the transfer of
shares.
(5) The Relevant P&G Party cannot refuse the concurrent execution of the
transaction if on the Closing Date at least 24,032,210 Sold Shares and all
Sold Holding Company Shares are transferred to the Relevant P&G Party.
SS. 3
PURCHASE PRICE, PAYMENT CONDITIONS AND CASH CONFIRMATION
(1) The purchase price for the Sold Shares amounts to EUR 92.25 per share.
Thus, the portion of the purchase price for the
(a) 11,228,928 shares of the Sold Shares sold by
STROHER VERWALTUNGS- UND BETEILIGUNGS
GMBH & CO. KG amounts to EUR 1,035,868,608.00
(b) 8,864,778 shares of the Sold Shares sold by
DR. ERIKA POHL amounts to EUR 817,775,770.50
(c) 273,832 shares of the Sold Shares sold by
Mr. RAINALD POHL amounts to EUR 25,261,002.00
(d) 273,832 shares of the Sold Shares sold by
Mr. TILMAN POHL amounts to EUR 25,261,002.00
(e) 273,832 shares of the Sold Shares sold by
Mr. BERTRAM POHL amounts to EUR 25,261,002.00
(f) 273,832 shares of the Sold Shares sold by
Dr. BURKHARD POHL amounts to EUR 25,261,002.00
(g) 273,832 shares of the Sold Shares sold
by Ms. HAIDRUN HONIG amounts to EUR 25,261,002.00
(h) 2,289,779 shares of the Sold Shares sold by
IMLADRIS GMBH amounts to EUR 211,232,112.75
(i) 93,913 shares of the Sold Shares sold by
Ms. CORINNA STROHER amounts to EUR 8,663,474.25
(j) 93,913 shares of the Sold Shares sold by
Ms. CORDULA STROHER amounts to EUR 8,663,474.25
(k) 93,913 shares of the Sold Shares sold by
Ms. ANNIKA STROHER amounts to EUR 8,663,474.25
(l) 93,913 shares of the Sold Shares sold by
Mr. SVEN-MARTIN STROHER amounts to EUR 8,663,474.25
(m) 93,913 shares of the Sold Shares sold by
Mr. JAN-HENDRIK STROHER amounts to EUR 8,663,474.25
In sum, the individual purchase prices
for the Sold Shares amount to EUR 2,234,498,872.50
=======================
If the general meeting of the Company in deciding on the distribution of the
balance sheet profit for the fiscal year ended December 31, 2002 resolves to
distribute to the shareholders an amount in cash or in kind per ordinary share
which exceeds EUR 0.57 per ordinary share, the purchase price per ordinary share
is reduced by this excess amount.
Ten bank working days in Frankfurt am Main after the Closing Date, the Relevant
P&G Party shall go into default without being sent a reminder.
(2) If (i) the Relevant P&G Party is obliged due to the Tender Offer to pay a
purchase price per ordinary share, which exceeds EUR 92.25 per ordinary
share - disregarding any reduction made in accordance with the second to
last sentence of ss. 3(1) - and (ii) the Tender Offer is closed, each
Family Shareholder has the right to receive for each Sold Share sold by him
an additional payment in the amount of the difference between the purchase
price payable due to the Tender Offer and EUR 92.25. This right to an
additional payment also exists if (i) the Relevant P&G Party purchases
ordinary shares in the Company off market, within a year after the
publication of the Tender Offer pursuant to ss. 23(1)(1)(2) WpUG, (ii) the
acquisition was not made with regarD to a statutory obligation to grant
shareholders of the Company any compensation and it is not an acquisition
of the assets, or part of the assets, of the company by means of a merger,
splitting or asset transfer, (iii) the seller or the sellers is/are not
Family Shareholder(s) or shareholder(s) in such Family Shareholder or
shareholder of a general partner of a Family Shareholder or an Indirect
Shareholder or a Holding Company, (iv) the compensation paid or agreed is
higher than the compensation for an ordinary share stipulated in the Tender
Offer, and (v) the number of ordinary shares acquired by third parties
pursuant to (i), i.e. parties, who are not Family Shareholders or
shareholders in such Family Shareholders or shareholders of a general
partner of Family Shareholders or of Indirect Shareholders or of Holding
Companies, together exceed 3% of the registered share capital of the
Company. Agreements under the terms of which the transfer of ownership of
ordinary shares of the Company can be required are deemed equivalent to an
acquisition within the meaning of the preceding sentence. It is agreed that
neither the Family Shareholders nor the Indirect Shareholders nor the
Holding Companies will accept the Tender Offer with respect to the Sold
Shares or the Held Shares (see ss. 13(2)) and that they therefore have no
rights under the TendeR Offer and the Tender Offer proceeding.
(3) The amount payable pursuant to ss. 3(1) and (2) plus potential default
interest shall be transferred free of charges anD expenses to an account at
the Bank, which account is to be named by the Family Shareholders and the
Indirect Shareholders. The payments according to the preceding sentence
accrue to the Family Shareholders in proportion to their respective
purchase price claims.
(4) Concurrently with the blocking of the securities deposit account mentioned
in ss. 2(2) with the Bank pursuant to ss. 2(2) THE Relevant P&G Party will
transmit a written cash confirmation pursuant to ss. 13 WpUG for the
benefit of the Family ShareholderS and the Indirect Shareholders.
SS. 4
AGREEMENT WITH RESPECT TO WARRANTIES
(1) The Parties expressly exclude the applicability of all statutory warranty
rights under ss.ss. 434 et seq. of the German Civil CODE ("BGB"). Instead
of the statutory warranties and liabilities the following contractual
rights and obligations pursuant to ss.ss. 4, 5 shall apply exclusively.
The Parties agree that the warranties of the Family Shareholders pursuant to ss.
4(2) and(3) do not constitute a warranty as tO conditions
(BESCHAFFENHEITSGARANTIE) within the meaning of ss.ss. 443, 444 BGB and that the
legal consequences of a breach OF warranties shall be governed exclusively by
the provisions of this Agreement. Furthermore, the Parties agree that the
limitations of liability pursuant to ss. 5 form an integral material part of the
warranties pursuant to ss. 4(2) and (3) and tHAT the warranties pursuant to ss.
4(2)and (3) are made only subject to such limitations.
(2) Each Family Shareholder represents with respect to the Sold Shares sold by
him:
(a) The respective Family Shareholder is, at Signing Date and at the time
of the transfer of title, the holder of his portion of the Sold
Shares, as listed under ss. 1(1) and (2);
(b) on the date of the transfer of title the Sold Shares sold by the
respective Family Shareholder are free from any liens, charges,
options and other encumbrances, and on the date of the transfer of
title no third parties (including any other Family Shareholders,
Indirect Shareholders and Holding Companies) are entitled to assert
any claims regarding any of his Sold Shares;
(c) the respective Family Shareholder is legally entitled to transfer his
portion of the Sold Shares; this includes (but is not limited to) that
subject to antitrust law requirements, no consent of a third party
(including, but not limited to spouses, for example pursuant to ss.
1365 BGB, and courts) is required for the transfer of ownership of his
portion oF the Sold Shares to become legally effective, or that such
consent has already been granted.
(3) Each Family Shareholder, with the exception of the Immo Stroher Family
Shareholders, represents that neither he personally nor - in the event it
is not a natural person - any member of his representative body, nor his
shareholders (including the shareholders of a general partner of a Family
Shareholder) has/have positive knowledge that:
(a) the audited annual financial statements (including balance sheet,
profit and loss account, notes) the management report and the cash
flow statement (according to p. 32 of the audit report) of the Company
for the fiscal year ended December 31, 2001 in material respects, (i)
have not been prepared in accordance with applicable statutory law and
the applicable generally accepted accounting principles or (ii) do
not, as of the formal approval of the annual financial statements,
present a true and fair view of the net assets, financial position and
earnings position of the Company; or
(b) the audited consolidated annual financial statements (including
balance sheet, profit and loss account, notes), which was prepared
according toss.292a(2) of the Commercial Code (HANDELSGESETZBUCH) as
exempting consolidated annual financial statements in accordance with
International Accounting Standards (IAS), the management report and
the cash flow statement of the Wella Group of Companies (according to
Annex II, p. 3, of the Group audit report) for the fiscal year ended
December 31, 2001 in material respects, (i) have not been prepared in
accordance with applicable statutory law or, if applicable, the
IAS-Rules or (ii) do not, as of the formal approval of the
consolidated annual financial statements, present a true and fair view
of the net assets, financial position and earnings position of the
Company group; or
(c) the quarterly reports of the Company as of April 30, 2002, June 30,
2002, or September 30, 2002, prepared under the stock exchange rules
of the Deutsche Borse AG for companies listed in the M-DAX are, in any
material respect, inaccurate; or
(d) from January 1, 2002 until the Signing Date facts occurred which were
not published according to the provisions of ss. 15 WpHG
(WERTPAPIERHANDELSGESETZ) that will lead or have led to a material
worsening of the net assets, financial position and earnings position
of the Company;
where "material" in the sense of ss. 4(3)(a)-(d) means a deviation which
has as a consequence that the value of the Company iN accordance with the
Overall Transaction is diminished by more than EUR 350,000,000.
SS. 5
LEGAL CONSEQUENCES
(1) In the event that any of the warranties given pursuant toss. 4(2) by a
Family Shareholder should be breached ("EVENT OF WARRANTY A 1"), the
following shall apply:
(a) Each Family Shareholder and/or each Indirect Shareholder is entitled
to reinstate the facts and circumstances with respect to the Sold
Shares affected by the Event of Warranty A 1 which would exist, if the
Event of Warranty A 1 had not occurred with respect to such Sold
Shares. If none of the Family Shareholders and none of the Indirect
Shareholders rectifies the respective facts and circumstances within
two months after receipt by the Family Shareholders of a written
notice of the Relevant P&G Party describing the respective Event of
Warranty A 1, the following ss. 5(1)(b)-(d) shall apply:
(b) The Relevant P&G Party is entitled to claim for damages for breach of
performance without any further requirements, in particular without a
requirement of fault.
(c) As regards the amount, the liability for damages pursuant to ss.
5(1)(b) is limited as follows:
(i) The Family Shareholder who has breached a warranty within the
meaning ofss.4(2) shall be liable for the resulting damages up to
the amount of the purchase price owed to him according toss.3(1)
and (2) ("DAMAGE TIER A 1"). If the claim of the Relevant P&G
Party against the infringing Family Shareholder in respect of
Damage Tier A 1 cannot be satisfied by such Party the remaining
Family Shareholders of the respective Family Group and the
Indirect Shareholders of the respective Family Group to which the
infringing Family Shareholder belongs shall be jointly and
severally liable for the Damage Tier A 1, limited, however, for
each member of the respective Family Group, to an amount of EUR
33.00 per Sold Share sold by him or, in the case of an Indirect
Shareholder, per Held Share, relative to the registered share
capital of the respective Sold Holding Company Share (nominal
value) as a proportion of the total registered share capital of
the respective Holding Company.
(ii) To the extent that the claim of the Relevant P&G Party for
compensation of the Damage Tier A 1 against the members of the
respective Family Group is not satisfied by the members of such
Family Group, there shall be no liability of the remaining Family
Shareholders and Indirect Shareholders for the deficit.
(iii) With respect to damage exceeding the Damage Tier A 1 ("DAMAGE
TIER A 2") all Family Shareholders, with the exception of the
Immo Stroher Family Shareholders, and all Indirect Shareholders
shall be jointly and severally liable up to an amount of EUR
33.00 per Sold Share or, in the case of Indirect Shareholders,
per Held Share, relative to the registered share capital of the
respective Sold Holding Company Share (nominal value) as a
proportion of the total registered share capital of the
respective Holding Company.
The above provisions pursuant to ss. 5(1)(c) are without prejudice to
any internal compensation settlement between the Family Shareholders
and the Indirect Shareholders for the joint and several liability
(d) The Relevant P&G Party may alternatively withdraw from this Agreement,
with effect for P&G as well, if, as a result of an Event of Warranty A
1, so many of the Sold Shares are affected that the Relevant P&G Party
acquires, in accordance with this Agreement, less than 75% of the
ordinary shares of the Company free from defects within the meaning of
ss. 4(2), including the Held Shares indirectly acquired free of legal
defects through acquisition, of all shares of all the Holding
Companies.
(2) In the event that any of the warranties given pursuant to ss. 4(3) should
be breached ("EVENT OF WARRANTY A 2"), (i) each Family Shareholder who
caused the Event of Warranty A 2, with the exception of the Immo Stroher
Family Shareholders, shall be separately liable or (ii) Family Shareholders
who jointly caused the same Event of Warranty A 2 shall be jointly and
severally liable, as follows:
(a) Each Family Shareholder and each Indirect Shareholder is entitled to
reinstate the facts and circumstances such that would exist if the
Event of Warranty A 2 had not occurred. If, within two months after
receipt by the Family Shareholders and Indirect Shareholders of a
written notice of the Relevant P&G Party describing the respective
Event of Warranty A 2, no Family Shareholder and no Indirect
Shareholder entitled to rectify has effected rectification, the
following ss. 5(2)(b)-(d) shall apply:
(b) The Relevant P&G Party is entitled to claim for damages for breach of
performance without any further requirements. Damages in this respect
are limited to the direct impact of the damaging circumstance on the
value of the Company.
(c) Any liability of the Family Shareholders for a breach of one or
several warranties pursuant to ss. 4(3) is excluded to the extent that
the circumstances triggering the Event of Warranty were known on the
Signing Date to P&G or the Relevant P&G Party, members of their
respective corporate bodies, or to their respective employees and
attorneys, investment banks and investment advisors involved in
connection with the conclusion of this Agreement. The above exclusion
of liability does not, however, require knowledge of the extent of
damage. In particular, P&G and the Relevant P&G Party are aware of the
facts regarding Brazil and Gucci.
(d) All claims for damages against an infringing Family Shareholder
pursuant to ss. 5(2)(b) are limited in total to the amount of the part
of the total purchase price of all Sold Shares owed to the respective
Family Shareholder pursuant to ss. 3(1), plus claims, if any, for
additional payments pursuant to ss. 3(2).
(3) The liability of a Family Shareholder or of the Indirect Shareholders for
Events of Warranty A 1 and Events of Warranty A 2 is furthermore limited as
follows:
(a) The Relevant P&G Party cannot base its calculation of damages upon an
alleged miscalculation of the Tender Offer price due to inaccurate
assumptions. To the extent that in case of an Event of Warranty A 1 or
an Event of Warranty A 2 several alternative warranties are triggered
simultaneously due to the same circumstance, the Family Shareholder(s)
or the Indirect Shareholder(s) against whom claims are made incur
liability only once.
(b) Any liability exceeding the liability of a Family Shareholder or an
Indirect Shareholder as set forth in the preceding provisions for an
Event of Warranty A 1 or an Event of Warranty A 2, as the case may be,
is excluded.
(4) Irrespective of ss. 5(3)(b), except as otherwise provided herein and
subject to the obligations arising hereunder and any obligations to pay
damages in the event of their breach, all claims of the Relevant P&G Party
for damages, reduction of the purchase price, adaptation of the Agreement,
rescission, avoidance or any other form of undoing the Agreement, including
claims based on culpa in contrahendo or positive violation of contractual
duty (POSITIVE FORDERUNGSVERLETZUNG), frustration of the contract (WEGFALL
DER GESCHAFTSGRUNDLAGE) or for any other legal reason shall be excluded to
the extent legally permitted.
(5) The statute of limitations period for all claims of the Relevant P&G Party
based on an Event of Warranty A 1 or an Event of Warranty A 2 shall be 18
months from the Closing Date. A suspension of the statute of limitations
due to ongoing negotiations pursuant to ss. 203(1) BGB is subject to the
requirement that the claim be asserted in writing.
SECTION B.
SALE AND TRANSFER OF THE GMBH SHARES BY THE INDIRECT SHAREHOLDERS
By this Agreement, the Indirect Shareholders sell and transfer their Shares in
the registered share capital of the limited liability companies (GESELLSCHAFTEN
MIT BESCHRANKTER HAFTUNG) listed below under ss. 6(1)(a)-(d) (individually or
collectively "HOLDING COMPANY/IES") in accordance with the following provisions:
SS. 6
SUBJECT MATTER OF THE AGREEMENT
(1) The Holding Companies hold the following shares in the registered share
capital of the Company:
(a) MERLIN GMBH
3,686,852 ordinary non-par-value bearer shares
(b) SC VERWALTUNGS- UND BETEILIGUNGS GMBH
2,266,559 ordinary non-par-value bearer shares
(c) UC-BETEILIGUNGS-GMBH
2,266,559 ordinary non-par-value bearer shares
(d) OLBRICHT VERMOGENSVERWALTUNGS GMBH
1,793,012 ordinary non-par-value bearer shares
- these shares referred to hereinafter,
individually or collectively, as "HELD SHARES" -
(2) The shareholdings in the Holding Companies, each of which has registered
share capital of
EUR 25,000.00
are as follows:
(a) Parties 16 to 18 hold shares inMerlin GmbHwith registered office at
Berliner Allee 65, 64724 Darmstadt (future registered office: Auf der
Beune 85, 64839 Munster), currently still entered in the commercial
register of the Local Court of Darmstadt, HRB 8331,
- hereinafter: "MERLIN GMBH" -
as follows:
Ms. Claudia Ebert:
one share in the nominal amount of EUR 22,500.00
Ms. Jana Ebert:
one share in the nominal amount of EUR 1,150.00
and one share in the nominal amount of EUR 100.00
Mr. Simon Ebert:
one share in the nominal amount of EUR 1,150.00
and one share in the nominal amount of EUR 100.00
(b) Ms. Gisela Sander holds shares in SC Verwaltungs- und Beteiligungs
GmbH with registered office in Kornmarkt 6, 60311 Frankfurt am Main
(future registered office: In der Wildnis 8, 64367 Muhltal) currently
still entered in the commercial register of the Local Court of
Frankfurt am Main, HRB 49579,
- hereinafter "SC GMBH" -
as follows:
two shares each in the nominal amount of EUR 12,500.00
(c) Ms. Ulrike Crespo holds a share inUC-Beteiligungs-GmbHwith registered
office in Feyerleinstr. 9, 60322 Frankfurt am Main (future registered
office: Brucknerstrasse 7, 61130 Nidderau), currently still entered in
the commercial register of the Local Court of Frankfurt am Main, HRB
52131,
- hereinafter "UC GMBH" -
as follows:
one share in the nominal amount of EUR 25,000.00
(d) Prof. Dr. Dr. Thomas Olbricht holds shares in Olbricht
Vermogensverwaltungs GmbH with registered office in
Meisenburgstra(beta)e 153, 45133 Essen, commercial register of the
Local Court of Essen, HRB 15851,
- hereinafter "OLBRICHT GMBH" -
as follows:
one share in the nominal amount of EUR 24,000.00
and one share in the nominal amount of EUR 1,000.00
(3) The registered share capital of each Holding Company has been fully paid
up.
SS. 7
SALE AND TRANSFER OF THE SHARES
(1) Each Indirect Shareholder herewith sells all of his shares in the
respective Holding Company, which shares are listed in ss. 6(1) and (2)
(hereinafter, individually or collectively, "SOLD HOLDING COMPANY
SHARE(S)") to the Relevant P&G Party alonG with all ancillary rights,
including (but not limited to) the right to participate in the Holding
Company's profits (GEWINNBEZUGSRECHT) for the fiscal years as of January 1,
2003 and (potential) subscription rights as of the Signing Date. The right
to participate in the Holding Company's profits for the fiscal year ended
December 31, 2002 is not the subject of the sale. The Relevant P&G Party
hereby accepts the sale.
(2) The Relevant P&G Party undertakes to pay to every Indirect Shareholder for
the respective Sold Holding Company Share the relevant portion of the
purchase price pursuant to ss. 8(1), plus claims for additional payment due
up to the Closing DatE pursuant to ss. 8(2) concurrently with the transfer
of all Sold Shares and the transfer of all Sold Holding Company Shares.
(3) The Indirect Shareholders transfer the following Sold Holding Company
Shares to the Relevant P&G Party, for its sole entitlement in rem, as
follows:
(a) Ms. CLAUDIA EBERT, her share in Merlin GmbH in the nominal amount of
EUR 22,500.00;
(b) Ms. JANA EBERT, her share in Merlin GmbH valued at EUR 1,150.00 and
her additional share in Merlin GmbH in the nominal amount of EUR
100.00;
(c) Mr. SIMON EBERT, his share in Merlin GmbH in the nominal amount of EUR
1,150.00 and his additional share in Merlin GmbH in the nominal amount
of EUR 100.00;
(d) Ms. GISELA SANDER, her two shares in SC GmbH in the nominal amount of
EUR 12,500.00 each;
(e) Ms. ULRIKE CRESPO, her share in UC GmbH in the nominal amount of EUR
25,000.00;
(f) Prof. Dr. Dr. THOMAS OLBRICHT, his share in Olbricht GmbH in the
nominal amount of EUR 24,000.00 and his additional share in Olbricht
GmbH in the nominal amount of EUR 1,000.00.
(4) The transfer is
(a) subject to the conditions precedent
(i) of the fulfillment of the Closing Condition pursuant to ss. 21(2)
and
(ii) of the complete payment of the purchase price for each Sold Share
transferred to the Relevant P&G Party on the Closing Date
pursuant to ss. 3(1) and for all the Sold Holding Company Shares
pursuant to ss. 8(1), including AnY possible claims for
additional payment due on the Closing Date pursuant to ss. 3(2)
or ss. 8(2), respectively.
(b) and shall take effect at 12:00 hrs Central European Standard Time on
the Closing Date at the earliest.
(5) The Relevant P&G Party accepts the transfer.
(6) The Relevant P&G Party cannot refuse the concurrent execution of the
transaction if on the Closing Date at least 24,032,210 Sold Shares and all
Sold Holding Company Shares are transferred to the Relevant P&G Party.
(7) The Indirect Shareholders have the right to resolve amendments to the
articles of association of the respective Holding Company until the Closing
Date, insofar as such amendments pertain to the name of the company or a
domestic relocation of its registered office.
SS. 8
PURCHASE PRICE, PAYMENT CONDITIONS
(1) The purchase price for the Sold Holding Company Shares is determined as
follows:
(a) EUR 92.25 multiplied by the number of Held Shares of the respective
Holding Company, relative to the respective Sold Holding Company Share
(nominal value) as a proportion of the overall registered share
capital of the relevant Holding Company,
(b) plus the nominal value of the respective Sold Holding Company Share of
the Indirect Shareholder in the respective Holding Company, and
(c) plus a sum equal to the amount of the dividends of the Company
received by the respective Holding Company for the fiscal year ended
December 31, 2002, in relation to the respective Sold Holding Company
Share (nominal value) as a proportion of the overall registered share
capital of the relevant Holding Company, minus the trade tax to be
paid on the dividends by the relevant Holding Company.
Overall, the purchase price for the Sold Holding Company Shares thus
amounts to (before adjustment according to (c)):
(a) Ms. CLAUDIA EBERT (Merlin GmbH) EUR 306,123,387.30
(b) Ms. JANA EBERT (Merlin GmbH) EUR 17,006,854.85
(c) Mr. SIMON EBERT (Merlin GmbH) EUR 17,006,854.85
(d) Ms. GISELA SANDER (SC GmbH) EUR 209,115,067.75
(e) Ms. ULRIKE CRESPO (UC GmbH) EUR 209,115,067.75
(f) Prof. DR. DR. THOMAS OLBRICHT
(Olbricht GmbH) EUR 165,430,357.00
-----------------
The individual purchase prices of the
Sold Holding Company Shares added
together yield the amount of EUR 923,797,589.50
=================
Ten bank working days in Frankfurt am Main after the Closing Date, the
Relevant P&G Party shall go into default without being sent a reminder.
Should the general meeting of the Company, in the context of determining
the use of the balance sheet profit for the fiscal year ended December 31,
2002, resolve an amount per share in cash or in kind to be distributed to
the shareholders that exceeds the amount of EUR 0.57 per ordinary share,
then the purchase price per Sold Holding Company Share shall be reduced by
the surplus amount, multiplied by the number of the Held Shares of the
respective Holding Company, relative to the respective Sold Holding Company
Share (nominal value) as a proportion of the total registered share capital
of the relevant Holding Company.
(2) If (i) the Relevant P&G Party is obligated, on the basis of the Tender
Offer, to pay a price per ordinary share that exceeds the amount of the
purchase price of EUR 92.25 per ordinary share - disregarding any reduction
made in accordance with the last sentence of ss. 8(1) - and if (ii) the
Tender Offer isclosed, each Indirect Shareholder shall have a claim to
additional paymenT as regards each Sold Holding Company Share. The amount
of the additional payment shall be determined based on the difference
between the purchase price to be paid on the basis of the Tender Offer and
the figure of EUR 92.25 multiplied by the number of the Held Shares of the
Holding Company, relative to the respective Sold Holding Company Share
(nominal value) as a proportion of the total registered share capital of
the relevant Holding Company. This claim to additional payment also exists
if (i) the Relevant P&G Party, within a year publication of the Tender
Offer pursuant to ss. 23(1)(1)(2) WpUG, acquires ordinary shares iN the
Company outside of any stock exchange, (ii) the acquisition does not take
place in connection with a legal obligation to grant compensation to
shareholders of the Company and no acquisition of the assets or parts of
the assets of the Company by means of merger, splitting, or transfer of
assets has taken place, (iii) the seller(s) is/are not a Family Shareholder
or its shareholder or shareholder of a general partner of a Family
Shareholder or Indirect Shareholder or one of the Holding Companies, (iv) a
consideration in value greater than that cited in the Tender Offer for one
ordinary share is granted or agreed for this, and (v) the total number of
ordinary shares acquired according to (i) from third parties, i.e., not
from Indirect Shareholders or from one of the Holding Companies, from
Family Shareholders or from their Shareholders, or from the shareholders of
a general partner of a Family Shareholder, exceeds 3% of the registered
share capital of the Company. Agreements under the terms of which the
transfer of ownership of ordinary shares of the Company can be required are
deemed equivalent to an acquisition within the meaning of the preceding
sentence.
(3) The amount owed pursuant to ss. 8(1) and (2) and any default interest shall
each be paid, free of costs and expenses, to thE account to be named by the
Family Shareholders and the Indirect Shareholders pursuant to ss. 3(3). The
Indirect ShareholderS shall be entitled to the payments according to the
preceding Sentence 1 in proportion to the share owed to them of the
purchase price.
SS. 9
AGREEMENT WITH RESPECT TO WARRANTIES
(1) The Parties expressly exclude the applicability of all statutory warranty
rights under ss.ss. 434 et seq. of the German Civil COdE ("BGB"). Instead
of the statutory warranties and liabilities the following contractual
rights and obligations pursuant to ss.ss. 9, 10 shall apply exclusively.
The Parties agree that the warranties by the Indirect Shareholders pursuant
to ss. 9 (2) to (4) do not constitute warranties aS to conditions
(BESCHAFFENHEITSGARANTIEN) within the meaning of ss.ss. 443, 444 BGB and
that the legal consequences of the breAcH of any such warranty shall be
governed exclusively by the provisions of this Agreement. Furthermore, the
Parties agree that the limitations of liability pursuant to ss. 10 form an
integral material part of the warranties pursuant to ss. 9 (2) to (4) AnD
that the statements pursuant to ss. 9 (2) to (4) are made only subject to
such conditions.
(2) Each Indirect Shareholder makes the following representations with respect
to the Sold Holding Company Share(s) sold by him/her:
(a) the respective Holding Company has been duly established and the
respective Sold Holding Company Shares exist;
(b) the entire registered share capital of the relevant Holding Company is
fully paid up and has not been repaid before the effective date of the
transfer of the Sold Holding Company Shares;
(c) up to the effective date of the transfer of the Sold Holding Company
Shares the respective Holding Company has not carried on any business
with the exception of acquiring and managing the Held Shares;
otherwise the respective businesses are listed in full in SCHEDULE
9.2C;
(d) at the time of the effective date of the transfer of the Sold Holding
Company Shares the Sold Holding Company Shares are free from any
liens, charges, options and other encumbrances, and as of the
effective date of the transfer no third parties (including any other
Family Shareholders, Indirect Shareholders and Holding Companies) are
entitled to assert any claims regarding any of theSold Holding Company
Shares held by him/her;
(e) the audited annual financial statement of the respective Holding
Company for the fiscal year ended December 31, 2002 have been prepared
in accordance with statutory law and the generally accepted accounting
principles, and presents, as of the formal approval of the annual
financial statements, a true and fair view of the net assets,
financial position and earnings position of the respective Holding
Company; up until the effective date of the transfer of the Sold
Holding Company Shares, there has been no change in the number of
shares in the Company in the holdings of the respective Holding
Company;
(f) upon effectiveness of the transfer of the Sold Holding Company Shares,
no liabilities, contingent liabilities or contractual duties exist, in
particular service contract obligations of the Holding Company whose
basis predates January 1, 2003 and are not shown in the closing
balance sheet as of December 31, 2002;
(g) each Indirect Shareholder is legally entitled to transfer his/her Sold
Holding Company Share(s); this includes (but is not limited to) that
except for antitrust approval requirements, the consent of a third
party (including but not limited to spouses, for example pursuant to
ss. 1365 BGB, and courts) is not required (or has already been
obtained) foR the transfer of his/her Sold Holding Company Share(s) to
become legally effective;
(h) at the time the transfer of the Sold Holding Company Shares becomes
effective, none of the Holding Companies are subject to any
contractual obligations with respect to the Held Shares;
(i) immediately after the transfer of the Sold Holding Company Shares has
become effective, the managing directors of the Holding Companies will
(i) accept on behalf of the respective Holding Company the
notification from the Relevant P&G Party pursuant to ss. 16(1) of the
Limited Liability Company Act that the respective Sold Holding Company
Shares werE acquired by the Relevant P&G Party, accept the notarial
deed regarding this contract as proof of the transfer and immediately
thereafter (ii) resign from their offices, without the Holding
Companies incurring any financial or other costs for the time after
the resignation from office;
(j) up to the effective date of the transfer of the Sold Holding Company
Shares, all Holding Companies have, to the best of their knowledge,
fulfilled all disclosure and reporting obligations (ERKLARUNGS- UND
INFORMATIONSPFLICHTEN) in connection with public duties, fees and
taxes, including other tax-related obligations (STEUERLICHE
NEBENLEISTUNGEN) (collectively "PUBLIC DUES"), in particular all tax
returns and tax declarations have been filed to the best of their
knowledge, in complete or true form;
(k) upon effectiveness of the transfer of the Sold Holding Company Shares,
the assets of the respective Holding Company consist exclusively of
(i) the Held Shares as described in ss. 6(1), (ii) a cash balance or
bank balance of EUR 25,000.00 plus an additional amount necessary for
the payment of the trade tax as reflected in the trade tax reserves,
and any further amount equal to the amount of net dividends
distributed by the Company from 1 January 2003 onwards, and (iii) any
tax credits with respect to the dividend received by the Holding
Company from the Company.
(3) Each Indirect Shareholder makes the following representations in connection
with the respective Holding Company, whose shares he/she is selling:
(a) the respective Holding Company is, as of the Signing Date and at the
time the transfer of the Sold Holding Company Shares takes effect, the
sole owner of its portion of the Held Shares as stated in ss. 6 (1);
(b) the Held Shares are on the effective date of the transfer of the Sold
Holding Company Shares free from any liens, charges, options and other
encumbrances, and as of the effective date of the transfer of the Sold
Holding Company Shares no third parties (including any other Family
Shareholders, Indirect Shareholders and Holding Companies) are
entitled to assert any claims regarding any of the Held Shares;
(c) the respective Holding Company is entitled to transfer its Held
Shares; this includes (but is not limited to) that except for
antitrust approval requirements, the consent of a third party
(including but not limited to courts) is not required for the transfer
of title to become legally effective;
(4) Each Indirect Shareholder represents that she/he personally does not have
any affirmative knowledge that:
(a) the audited annual financial statements (including balance sheet,
profit and loss account, notes), the management report and the cash
flow statement (pursuant to p. 32 of the audit report) for the fiscal
year ended December 31, 2001 in material respects, (i) have not been
prepared in accordance with applicable statutory law and the
applicable generally accepted accounting principles or (ii) do not, as
of the formal approval of the annual financial statements, present a
true and fair view of the net assets, financial position and earnings
position of the Company; or
(b) the audited consolidated annual financial statements (including
balance sheet, profit and loss account, notes) prepared pursuant toss.
292a(2) of the Commercial Code as exempting annual financial
statements in accordance with the regulations of the International
Accounting Standards (IAS), the management report and the cash flow
statement of the Wella Group (pursuant to Annex II, p. 3, of the Group
audit report) for the fiscal year ended December 31, 2001 in material
respects, (i) have not been prepared in accordance with applicable
statutory law or, insofar as applicable, the IAS regulations, or (ii)
do not, as of the formal approval of the annual financial statements
of the Company group (KONZERN), present a true and fair view of the
net assets, financial position and earnings position of the Company
group; or
(c) the quarterly reports of the Company as of April 30, 2002, June 30,
2002 and September 30, 2002, prepared pursuant to the stock exchange
rules of the Deutsche Borse AG for companies listed in the M-DAX are,
in any material respects, inaccurate; or
(d) from January 1, 2002 until the Signing Date events occurred that were
not published pursuant to ss. 15 of the SecuritieS Trading Act
(WERTPAPIERHANDELSGESETZ) and lead or have led to a material worsening
of the net assets, financial position and earnings position of the
Company that was not described in the quarterly reports of the Company
as of April 30, 2002, June 30, 2002 and September 30, 2002;
where "material" in the sense of ss. 9(4)(a)-(d) means a deviation which
has as a consequence that the value of the Company iN accordance with the
Overall Transaction is diminished by more than EUR 350,000,000.
SS. 10
LEGAL CONSEQUENCES
(1) In the event that any of the warranties given pursuant toss. 9(2) by an
Indirect Shareholder should be breached ("EVENT OF WARRANTY B 1"), the
following shall apply:
(a) Each Family Shareholder and/or each Indirect Shareholder is entitled
to reinstate the facts and circumstances with respect to the Sold
Holding Company Shares affected by the Event of Warranty B 1 which
would exist, if the Event of Warranty B 1 had not occurred with
respect to such Sold Holding Company Shares. If none of the Family
Shareholders and none of the Indirect Shareholders rectifies the
respective facts and circumstances within two months after receipt by
the Family Shareholders and the Indirect Shareholders of a written
notice of the Relevant P&G Party describing the respective Event of
Warranty B 1, the following ss. 10(1)(b)-(d) apply:
(b) The Relevant P&G Party is entitled to claim damages for breach of
performance without any further requirements, in particular, without
the requirement of fault.
(c) Liability for damages pursuant to ss. 10(1)(b) is limited as follows
as regards the amount:
(i) The Indirect Shareholder who has breached a representation
pursuant toss. 9(2) is liable for the resulting damages up to the
amount of the purchase price owed to him pursuant toss. 8(1)-(2)
("DAMAGE TIER B 1"). If the claim of the Relevant P&G Party
against the infringing Indirect Shareholder in respect to Damage
Tier B 1 cannot be satisfied by such Party, the remaining Family
Shareholders of the respective Family Group and the Indirect
Shareholders of the respective Family Group to which the
infringing Indirect Shareholder belongs shall be jointly and
severally liable for Damage Tier B 1 limited, however, for each
member of the respective Family Group, to an amount of up to EUR
33.00 per Sold Share sold by him or, in case of Indirect
Shareholders, per Held Share, relative to the respective Sold
Holding Company Share (nominal value) as a proportion of the
total registered share capital of the relevant Holding Company.
(ii) Insofar as the claim of the Relevant P&G Party against the
members of the respective Family Group for compensation for
Damage Tier B 1 is not satisfied by the members of this Family
Group, the remaining Family Shareholders and Indirect
Shareholders shall not be liable for the amount of the deficit.
(iii) For damages above the Damage Tier B 1 ("DAMAGE TIER B 2"), all
Family Shareholders, with the exception of the Immo Stroher
Family Shareholders, and all Indirect Shareholders, shall be
jointly and severally liable up to the amount of EUR 33.00 per
Sold Share or, in the case of Indirect Shareholders, per Held
Share, relative to the respective Sold Holding Company Share
(nominal value) as a proportion of the total registered share
capital of the relevant Holding Company.
The foregoing provisions pursuant to ss. 10(1)(c) are without prejudice
to any possible internal compensation settlement between the Family
Shareholders and the Indirect Shareholders regarding the joint and
several liability.
(d) The Relevant P&G Party may alternatively rescind this Agreement, also
with effect in respect of P&G, if an Event of Warranty B 1 directly
affects so many of the Held Shares that the Relevant P&G Party
acquires, pursuant to this Agreement, less than 75% of the ordinary
shares of the Company free from defects within the meaning of ss.
9(3), including the Sold Shares acquired from the Family Shareholders
and any Held Shares acquired free of any legal defects by means of the
acquisition of all Shares of all remaining Holding Companies.
(2) In case any of the warranties given pursuant toss. 9(3) by an Indirect
Shareholder should be breached ("EVENT OF WARRANTY B 2"), the following
shall apply:
(a) Each Family Shareholder and/or each Indirect Shareholder shall have
the opportunity to reinstate the facts and circumstances with respect
to the Held Shares affected by the Event of Warranty B 2 which would
exist if the Event of Warranty B 2 had not occurred with respect to
such Held Shares. If none of the Family Shareholders and none of the
Indirect Shareholders rectifies the respective facts and circumstances
within two months after receipt by the Family Shareholders and the
Indirect Shareholders of a written notice of the Relevant P&G Party
describing the respective Event of Warranty B 2, the following ss.
10(2)(b)-(d) apply:
(b) The Relevant P&G Party is entitled to claim damages for breach of
performance without any further requirements, in particular without
the requirement of fault.
(c) Liability for damages pursuant to ss. 10(2)(b) is limited as follows:
(i) The Indirect Shareholder who has breached a warranty within the
meaning ofss.9(3) is liable for the resulting damage up to the
amount of the purchase price owed to him pursuant toss. 8(1)-(2)
("DAMAGE TIER B 3"). If the claim of the Relevant P&G Party
against the infringing Indirect Shareholder in respect of the
Damage Tier B 3 cannot be satisfied by the latter, then the
remaining Family Shareholders of the respective Family Group and
the Indirect Shareholders of the respective Family Group to which
the infringing Indirect Shareholder belongs shall be jointly and
severally liable for Damage Tier B 3, limited, however, for each
member of the respective Family Group, to an amount of up to EUR
33.00 per Sold Share sold by him or, in the case of Indirect
Shareholders, per Held Share, relative to the respective Sold
Holding Company Share (nominal value) as a proportion of the
total registered share capital of the relevant Holding Company.
(ii) Insofar as the claim of the Relevant P&G Party against the
members of the respective Family to compensation for Damage Tier
B 3 is not satisfied by the members of this Family, the remaining
Family Shareholders and Indirect Shareholders shall not be liable
for the amount of any deficit.
(iii) For damage above the Damage Tier B 3 ("DAMAGE TIER B 4"), all
Family Shareholders, with the exception of the Immo Stroher
Family Shareholders, and all Indirect Shareholders shall be
jointly and severally liable up to the amount of EUR 33.00 per
Sold Share or, in case of Indirect Shareholders, per Held Share,
relative to the respective Sold Holding Company Share (nominal
value) as a proportion of the total registered share capital of
the relevant Holding Company.
The foregoing provisions pursuant to ss. 10(2)(c) are without
prejudice to any possible internal compensation settlement
between the Family Shareholders are the Indirect Shareholders
regarding the joint and several liability.
(d) The Relevant P&G Party may alternatively rescind this Agreement, also
with effect in respect of P&G, if an Event of Warranty B 2 indirectly
affects so many Held Shares that the Relevant P&G Party acquires,
pursuant to this Agreement, less than 75% of the ordinary shares of
the Company free from defects within the meaning of ss. 9(3),
including the Sold Shares acquired from the Family Shareholders and
any Held Shares indirectly acquired free of legal defects by means of
acquisition of all shares of the remaining Holding Companies.
(3) In the event that any of the warranties given pursuant to ss. 9(4) should
be inaccurate ("EVENT OF WARRANTY B 3"), (i) each Indirect Shareholder who
caused the Event of Warranty B 3 shall be separately liable or (ii)
Indirect Shareholders who jointly caused the same Event of Warranty B 3
shall be jointly and severally liable, as follows:
(a) Each Indirect Shareholder and each Family Shareholder shall have the
opportunity to reinstate the facts and circumstances that would exist
if the Event of Warranty B 3 had not occurred. If, within two months
after receipt by the Indirect Shareholders and the Family Shareholders
of a written notice of the Relevant P&G Party describing the
respective Event of Warranty B 3, no Indirect Shareholder or Family
Shareholder who is entitled to do so has rectified the situation, the
following ss. 10(3)(b)-(d) apply:
(b) The Relevant P&G Party is entitled to claim for damages for breach of
performance without any further requirements. Damages are limited to
the direct effects of the damaging circumstance on the value of the
Company.
(c) Any liability of an Indirect Shareholder for a breach of one or
several warranties pursuant to ss. 9(4) is excluded to the extent that
the facts and circumstances triggering the Event of Warranty were
known on the Signing Date to P&G or the Relevant P&G Party, members of
their respective corporate bodies, or to their employees and
attorneys, investment bankers and investment advisors involved in the
conclusion of this Agreement. The above exclusion of liability does
not, however, require knowledge of the extent of damage. In
particular, P&G and the Relevant P&G Party are aware of the facts
regarding Brazil and Gucci.
(d) All claims for damages against an infringing Indirect Shareholder
pursuant to ss. 10(3)(b) shall be limited in total to the amount of
that part of the total purchase price owed to the respective Indirect
Shareholder pursuant to ss. 8(1) for all Sold Shares plus potential
additional payment claims pursuant to ss. 8(2).
(4) The liability of an Indirect Shareholder and the Family Shareholders for
Events of Warranty B 1, B 2, and B 3 is furthermore limited as follows:
(a) The Relevant P&G Party cannot base its calculation of damages upon an
alleged miscalculation of the Tender Offer price due to inaccurate
assumptions. To the extent that in case of an Event of Warranty B 1, B
2 or B 3 several alternative claims are triggered due to the same
circumstance, the Family Shareholder(s) and the Indirect
Shareholder(s) against whom the claims are made shall not be liable
more than once.
(b) Any liability exceeding the liability of an Indirect Shareholder or a
Family Shareholder as set forth in the preceding provisions for an
Event of Warranty B 1, B 2 or B 3 is excluded.
(c) Irrespective of ss. 10(3)(b), except as otherwise provided herein and
subject to the obligations arising hereunder and any possible
obligations to pay damages in the event of their breach, all claims of
the Relevant P&G Party for damages, reduction of the purchase price,
adaptation of the Agreement, withdrawal, avoidance or any other form
of undoing the Agreement, including claims based on of culpa in
contrahendo, positive violation of contractual duty (POSITIVE
VERTRAGSVERLETZUNG), frustration of the contract (WEGFALL DER
GESCHAFTSGRUNDLAGE) or for any other legal reason shall be excluded to
the extent legally permitted.
(d) The statute of limitations period for all claims of the Relevant P&G
Party based on an Event of Warranty B 1, B 2, or B 3 shall be 18
months from the Closing Date. A suspension of the statute of
limitations due to ongoing negotiations pursuant to ss. 203(1) of the
BGB is subject to the requirement of raising the claim in writing.
SS. 11
INDEMNIFICATION, REIMBURSEMENT
(1) Each Indirect Shareholder (the shareholders of Merlin GmbH, amongst each
other as joint and several debtors) undertakes to indemnify his respective
Holding Company whose shares he is selling from the following claims:
(a) from all present and future claims and liabilities, including
contingent liabilities, of the relevant Holding Company that have
their legal basis prior to the taking effect of the transfer of the
Sold Holding Company Shares;
(b) from all Public Dues of the relevant Holding Company
(i) relating to the period prior to (and including) the taking effect
of the transfer of the Sold Holding Company Shares, or
(ii) arising in connection with the dividends of the Company for the
fiscal year ended 31 December 2002,
insofar as the Public Dues, were not already taken into account in the
determination of the purchase price pursuant to ss. 8(1)(c)(1)
(trade tax), or, are not reduced by tax credits for dividend taxes
withheld by the Company (including solidarity tax) (cf. ss. 11(2)).
(2) In the case of dividends of the Company for fiscal years ended by 31
December 2002 that trigger Public Dues within the meaning of ss. 11(1)(b),
the Indirect Shareholders undertake (in the case of Merlin GmbH, the
shareholders among themselves as joint and several debtors), to pay to his
respective Holding Company an additional amount equal to any dividend tax
withheld by the Company (including the solidarity tax), insofar as the
dividend withholding tax (including the solidarity tax) is not reimbursed
but instead credited to the Holding Company.
(3) The Relevant P&G Party undertakes to take all necessary and appropriate
measures so that the rights of the respective Holding Company can be
sufficiently granted for Public Dues and liabilities relating to the period
prior to the time the transfer of the Sold Holding Company Shares taking
effect. For this purpose, the Relevant P&G Party shall inform the
respective Indirect Shareholder in a timely fashion. The Indirect
Shareholders of the respective Holding Company shall bear the costs for any
proceedings that are conducted in the interest or at the instructions of
the respective Indirect Shareholders.
(4) The above claims shall be statute-barred after the expiration of 10 years
after the transfer of the Sold Holding Company Shares takes effect, but in
the case of Public Dues not prior to the expiration of six months after
their final determination.
SS. 12
SECURITY
(1) The Indirect Shareholders shall provide, for a period of two years from the
time the transfer of the Sold Holding Company Shares, collateral for the
benefit of the Relevant P&G Party. This collateral shall, at the discretion
of the Indirect Shareholders, consist of
(a) a guarantee from a major German bank; or
(b) a pledged interest-bearing cash account at a major German bank; or
(c) a pledged securities deposit account at a major German bank, as agreed
with the Relevant P&G Party, on the condition that the account
contains only securities bearing fixed interest with a remaining term
of at most 12 months, or shares in investment funds that invest in
such bonds.
(2) The Relevant P&G Party can satisfy any claim out of this if the damage
occurs as a result of an Event of Warranty B 1, based on a breach of
warranty pursuant to ss. 9(2)(e), (f), (h), (i), (j), (k), or if an
indemnification or a payment obligation pursuant to ss. 11 has not been
fulfilled.
(3) The amount of the security corresponds to 10% of the total purchase price
to be paid to the Indirect Shareholders pursuant to ss. 8(1).
SECTION C
GENERAL PROVISIONS
SS. 13
SUPPORT OF THE OVERALL TRANSACTION AND OF THE COMPLETION OF THE AGREEMENT
(1) Each Family Shareholder, each member of its corporate bodies (including the
shareholders of a Family Shareholder and the shareholders of a general
partner of a Family Shareholder), each Indirect Shareholder, each Holding
Company and each of its managing directors (individually or collectively:
"PERSON(S) TO BE INCLUDED IN THE FAMILY"), and each company controlled by a
Family Shareholder or an Indirect Shareholder will support the completion
of the Overall Transaction including the Tender Offer in accordance with
its respective capacities and refrain from any actions which would or could
reasonably be expected to be prejudicial or have any negative impact on the
completion of the Overall Transaction, including the Tender Offer, to the
extent permitted by law. Each Family Shareholder - also through the company
controlled by him - and each Indirect Shareholder - also through the
company controlled by him - shall exercise his best efforts to support the
Tender Offer, in particular (but not limited to) through his
representatives on the Supervisory Board and the Advisory Board of the
Company to the extent permitted by law. P&G and the Relevant P&G Party will
for their part support the completion of this Agreement and refrain from
any action which could reasonably be expected to be prejudicial or have any
negative impact on the completion of the Overall Transaction, to the extent
permitted by law; the right of P&G or the Relevant P&G Party to acquire
additional enterprises at its discretion shall remain unaffected (ss. 21(5)
remains unaffected).
(2) Each Family Shareholder, each Indirect Shareholder and Parties Nos. 22 and
23 undertake to accept the Tender Offer relating to Additional Shares held
by them. The Family Shareholders, the Indirect Shareholders and the Holding
Companies shall not accept the Tender Offer in relation to other shares.
(3) Save where the Relevant P&G Party gives its prior written consent for them
to vote otherwise, from the Signing Date until the Closing Date, each
Family Shareholder and each Holding Company is obligated, to the extent
permitted by law, to vote against the following: general meetings of the
Company (i) any capital measure (KAPITALMA(BETA)NAHME) of the Company, (ii)
amendments To the articles of association of the Company
(SATZUNGSANDERUNGEN), including (but not limited to) such amendments
referring to a conversion of preference shares into ordinary shares as well
as a conversion of ordinary shares into preference shares, and (iii) all
corporate reorganization measures and fundamental decisions (as for example
mergers, transformations), which require a three-quarters majority by law,
(iv) approval of management measures beyond the ordinary course of
business, for which the general meeting is competent according to ss.
119(2) Stock Corporation Act, and (v) any distribution of the balance sheet
profit of the Company for a fiscal year which would lead to a situation
where the Company would not be able to pay to the preference shareholders
the preference dividend (VORZUGSBETRAG), as provided in ss. 27 of the
articles of association of the Company.
(4) From the Signing Date until the Closing Date, no Family Shareholder and no
Indirect Shareholder may require the Management Board to convene a general
meeting of the Company pursuant to ss. 122(1) Stock Corporation Act.
(5) From the Signing Date until the Closing Date, no Person to Be Included in
the Family and no company controlled by a Family Shareholder or an Indirect
Shareholder may, nor may cause any third party to, acquire any shares or
other securities in the Company or induce third parties to such an
acquisition except as expressly permitted in this Agreement.
(6) From the Signing Date until the Closing Date, no Family Shareholder and no
Indirect Shareholder and no Holding Company may sell, transfer, encumber,
grant any option over or otherwise dispose of the Sold Shares or the Held
Shares, respectively, in favor of third parties (including another Person
to Be Included in the Family).
(7) Each Person to Be Included in the Family will use his best efforts to
exercise his influence upon the members of the Management Board, the
Supervisory Board and the Advisory Board of the Company so that they do not
(a) act so that the Company buys back shares,
(b) act so that the Company sells shares which the Company has bought
back, other than (i) to all shareholders on a pro rata basis, (ii)
within the framework of the authorization resolved by the general
meeting of the Company on May 14, 2002 to the beneficiaries of the
stock option program resolved by the general meeting of the Company on
May 22, 2001 or (iii) exclusively to P&G or a company controlled by
it; or
(c) prepare or formally approve annual financial statements
(JAHRESABSCHLUSS) of the Company nor provide the general meeting of
the Company with a proposal as to the distribution of the balance
sheet profit (GEWINNVERWENDUNGSVORSCHLAG) on the basis of which the
Company would not be able to pay to the preference shareholders the
preference dividend (VORZUGSBETRAG), as provided in ss. 27 of the
articles of association of the Company; or
(d) make any transactions or take any measures on behalf of the Company
which materially change the ordinary course of its business; or
(e) grant or promise advantages to members of the management board of the
Company which exceed the rights resulting from the service contract on
the Signing Date;
unless prevented by law or unless P&G consents beforehand in writing.
(8) Subject to statutory confidentiality obligations each Person to Be Included
in the Family is obligated to inform P&G forthwith if he receives knowledge
about any measures, plans or intentions of the Company or any third party
which might be prejudicial to or have negative impact on the execution of
this Agreement and the Overall Transaction, including (but not limited to)
measures described in ss. 13(7). Conversely, P&G and the Relevant P&G Party
are obliged to immediately inform the Family Shareholders and the Indirect
Shareholders if they receive knowledge about any measures, plans or
intentions with respect to the Company which might have negative impact on
the execution of this Agreement, with the exception of the acquisition of
additional enterprises or shareholdings in enterprises by P&G or the
Relevant P&G Party.
(9) Ms. Claudia Ebert waives all claims against Ms. Jana Ebert and Mr. Simon
Ebert for the retransfer (i) of the two shares in Merlin GmbH each in the
nominal amount of EUR 100.00 that she transferred to Ms. Jana Ebert and Mr.
Simon Ebert, respectively, by means of the Donation and Transfer Agreement
of May 7, 2002 (Notarial Deed No. 275/2002 of the notary Wolfgang Scheer in
Darmstadt), and (ii) of the two further shares in Merlin GmbH each in the
nominal amount of EUR 1,150.00 that she transferred to Ms. Jana Ebert and
Mr. Simon Ebert, respectively, by means of the Donation and Transfer
Agreement of February 11, 2003 (Notarial Deed No. A. Prot. 2003/39 of the
notary Stephan Cueni in Basel, Switzerland).
(10) ss. 13(3) above does not apply to Stroher Verwaltungs- and Beteiligungs
GmbH & Co. KG.
(11) Each Indirect Shareholder shall, by the time the transfer of the Sold
Holding Company Shares takes effect, make a choice regarding a U.S.
earnings tax for the respective Holding Company, according to which the
respective Holding Company shall be treated as an entity for U.S. earnings
tax purposes that is disregarded for tax purposes ("disregarded entity").
This choice shall be made in each case by filling out a Form 8832, "Entity
Classification Election," of the Internal Revenue Service. The choice shall
take effect on the date entered on Line 4 of Form 8832. This date shall be
before the date the transfer of the Sold Holding Company Shares takes
effect. The Indirect Shareholders pledge to support the Relevant P&G Party
in filling out Form 8832 in accordance with its lawful and correct
instructions, to sign these forms, and to give them to the Relevant P&G
Party before the transfer of the Sold Holding Company Shares takes effect.
The Relevant P&G Party shall make sure that the signed 8832 forms are
submitted to the Internal Revenue Service. The Relevant P&G Party pledges
to release the Indirect Shareholders from all tax liabilities and to
compensate them for all other disadvantages resulting from the
collaboration described above. The Indirect Shareholders ensure that they
are not U.S. residents for tax purposes.
SS. 14
FAMILY SHAREHOLDERS' LIABILITY FOR CERTAIN THIRD PARTIES,
LIABILITY OF MR. IMMO STROHER AND MS. SYLVIA STROHER
(1) Each Family Shareholder and each Indirect Shareholder covenants to the
Relevant P&G Party to procure that all members of his representative body
(including his shareholders and the shareholders of his general partners),
every Holding Company whose shares he is selling, every managing director
of such a Holding Company, and all enterprises controlled by him shall make
all necessary declarations and carry out all measures to which they are
obligated pursuant to this Agreement, as well as carry out all legal acts
that are required for the completion of this Agreement.
(2) Each Family Shareholder and each Indirect Shareholder covenants to the
Relevant P&G Party to procure that all members of his representative organ
(including shareholders and shareholders of general partners), every
Holding Company whose shares he is selling, every managing director of such
a Holding Company, all enterprises controlled by him and all members of its
corporate body as well as each person acting for or on behalf of one of the
persons mentioned in this provision (investment bankers, lawyers and other
advisors etc.) will comply with their duties of action and omission
according to this Agreement.
(3) Mr. Immo Stroher undertakes to the Relevant P&G Party that he personally,
and that he shall procure that Imladris GmbH, will comply with their
obligations under this Agreement. No liability going beyond this is created
by this Agreement.
(4) Ms. Sylvia Stroher undertakes to the Relevant P&G Party that she
personally, and that she shall procure that SC Stroher Verwaltungs- und
Beteiligungs GmbH & Co. KG, will comply with their obligations under this
Agreement. No liability going beyond this is created by this Agreement.
SS. 15
P&G'S LIABILITY FOR THE RELEVANT P&G PARTY AND THE TRANSFEREE
(1) P&G guarantees to the Family Shareholders and to the Indirect Shareholders
that the Relevant P&G Party and the Transferee(s) shall, pursuant to ss.
24, fulfill all their obligations under this Agreement (SCHULDBEITRITT).
(2) Any knowledge, actions, omissions, and fault of P&G shall be attributed to
the Relevant P&G Party.
SS. 16
EXCLUSIVITY
From the Signing Date until (i) the completion of the Tender Offer and or (ii)
Closing Date, whichever is later, each Family Shareholder, each Person to Be
Included in the Family as well as each company controlled by a Family
Shareholder or an Indirect Shareholder, as well as any third person acting for
or on behalf of one of the above mentioned persons (investment bankers, lawyers
and other advisors) shall neither (i) solicit, encourage or support any person
(other than P&G) (a) to make any public or private offer or (b) to solicit,
encourage or support a third party to make any public or private offer for the
shares of the Company nor (ii) take any other action which may reasonably be
expected to be prejudicial to or have any negative impact on the successful
completion of the Overall Transaction. This shall apply to the extent permitted
by law.
SS. 17
CONFIDENTIALITY
The Parties, all members of their corporate bodies, the Persons to Be included
in the Family as well as all the companies controlled by the Parties shall
maintain strict confidentiality regarding the terms and conditions of this
Agreement unless disclosure is required by law, regulation or order of a court
or administrative authority. The Confidentiality Agreement remains in effect as
of 13/14 January 2003.
SS. 18
SEVERAL / JOINT AND SEVERAL LIABILITY,
LIMITATION OF LIABILITY, LIMITATION PERIOD
(1) Except as otherwise expressly stipulated in the Agreement, the Family
Shareholders, the Indirect Shareholders and the Party Nos. 22 and 23 are
severally liable (ALS EINZELSCHULDNER) for any representation, warranty,
guarantee or obligation they have given or assumed under the Agreement
which is inaccurate, incomplete or not complied with.
(2) The liability of the Family Shareholders, the Indirect Shareholders and the
Party Nos. 22 and 23 for compensatory damages for the grossly or slightly
negligent breach of secondary obligations, that arise from the Agreement,
is limited to the purchase price owed to the respective Family Shareholder
or Indirect Shareholder, or in the case of Party Nos. 22 and 23, to the
purchase price owed to the Party Nos. 3 and 10, respectively, in addition
to possible claims to additional contribution.
(3) All claims of the Parties based on this Agreement shall become
statute-barred eighteen months after the Closing Date, unless otherwise
provided for in the Agreement. A suspension of the limitation period on
account of pending proceedings pursuant to ss. 203(1) of the BGB requires
that the claim be asserted in writing.
SS. 19
SUPERVISORY BOARD OF THE COMPANY
(1) The Family Shareholders and/or the Holding Companies have the following
trusted persons on the Supervisory Board (Aufsichtsrat) of the Company:
- Prof. Dr. Dr. Thomas Olbricht
- Ms. Ulrike Crespo
- Mr. Tilman Pohl
- Mr. Hans Schmidt, Messel
- Prof. Dr. Dieter Schneidewind, Zwingenberg
- Ms. Sylvia Stroher
(2) Prof. Dr. Dr. Thomas Olbricht, Ms. Ulrike Crespo, Mr. Tilman Pohl and Ms.
Sylvia Stroher will resign from their office as members of the supervisory
board at the request of the Relevant P&G Party on or any time after Closing
Date. The Family Shareholders and/or the Indirect Shareholders through
their Holding Companies will exercise their best efforts to cause Mr.
Schmidt and Prof. Dr. Dieter Schneidewind to also resign from their offices
as members of the Supervisory Board on or any time after the Closing Date
at the request of the Relevant P&G Party.
(3) The Relevant P&G Party undertakes to procure that the general meeting will
grant formal approval of the acts of the aforementioned members of the
Supervisory Board.
SS. 20
ADVISORY BOARD OF THE COMPANY
(1) Currently, the following persons are members of the Advisory Board
(BEIRAT):
- Mr. Norbert Ebert
- Mr. Rainald Pohl
- Mr. Ulrich Stroher.
(2) Mr. Rainald Pohl will resign from his office as member of the Advisory
Board on or any time after the Closing Date at the request of the Relevant
P&G Party, without financial or other expenses of the Company for the time
after the Closing Date. The Family Shareholders and the Indirect
Shareholders represent that Mr. Norbert Ebert and Mr. Ulrich Stroher will
resign from their offices as members of the Advisory Board on or any time
after the Closing Date at the request of the Relevant P&G Party, without
financial or other expenses of the Company for the time after the Closing
Date.
(3) The Relevant P&G Party undertakes to procure, if necessary by voting in the
general meeting, that the general meeting will grant formal approval of the
acts of the aforementioned members of the Advisory Board and the former
member of the Advisory Board, Mr. Hans-Joachim Sander, in the same way as
statutorily provided for the members of the Supervisory Board.
SS. 21
CONDITION FOR CLOSING
(1) Immediately after Signing Date the Relevant P&G Party shall undertake its
best efforts to initiate and accomplish the necessary merger control
proceedings. In this context the Parties agree to cooperate on a basis of
mutual trust and to grant each other all assistance necessary. The Family
Shareholders and the Indirect Shareholders will use their best efforts to
procure the Company to cooperate on a basis of mutual trust, to grant the
Relevant P&G Party the necessary assistance and not to take measures of an
arbitrary or detrimental nature. The Relevant P&G Party will integrate the
Family Shareholders and the Indirect Shareholders into the merger-control
process for the performance of this Agreement in the jurisdictions cited in
(2); in particular, it will consult with the Family Shareholders and the
Indirect Shareholders regarding registrations and petitions, and involve
the Family Shareholders and Indirect Shareholders in the discussions with
the competition authorities.
(2) Transfer in rem of the Sold Shares and of the Sold Holding Company Shares
to the Relevant P&G Party according to ss. 2(4) and ss. 7(3) and (4) as the
case may be ("CLOSING"), is subject to the following condition precedent:
The necessary merger control clearance from the competent authorities of
the U.S., Canada, and the EU, as well as in Mexico and Japan have been
granted finally and with legally binding effect or the periods for
prohibition have expired, without the competent competition authorities
having prohibited the planned merger. The Relevant P&G Party and the Family
Shareholders and/or, the Indirect Shareholders, as the case may be, shall
use their best efforts to obtain the necessary merger control clearance in
the above-mentioned jurisdictions. The Relevant P&G Party is obligated to
fulfill the conditions and take all measures imposed on the Company by the
competition authorities in the aforementioned jurisdictions, unless the
conditions and measures concerned lead to a reduction of more than 8% of
the Company's worldwide sales in the last complete fiscal year.
In the event that the aforementioned antitrust clearances with regard to
the U.S., Canada, and the EU have been issued with finality and binding
legal effect, or the relevant prohibition deadlines with regard to these
jurisdictions have expired without the relevant antitrust authorities
having prohibited the planned merger, the Relevant P&G Party hereby waives,
even now, the fulfillment of the conditions precedent with regard to the
countries Mexico and Japan. This waiver shall become effective in respect
of Mexico upon the expiration of six months after the Signing Date and in
respect of Japan upon expiration of eight months after the Signing Date.
(3) Should the changes in the competitive conditions and/or market structure
through the additional acquisition of one or more companies by the Relevant
P&G Party or any other enterprise controlled by P&G have a direct negative
impact on the substantive assessment of the merger plan in the merger
control proceedings in the jurisdictions cited in ss. 21(2) and thereby on
the fulfillment of the Closing Condition pursuant to ss. 21(2), P&G and the
Relevant P&G Party are obligated to situate, without any restrictions, the
Family Shareholders and the Indirect Shareholders, in respect of the
planned merger as regards the fulfillment of the condition and its point in
time, as they would be if the acquisition of one or more enterprises by the
Relevant P&G Party or another enterprise controlled by P&G were not carried
out, and conditions and other measures of the competent antitrust
authorities did not have a disadvantageous effect on the Family
Shareholders and the Indirect Shareholders.
(4) If the aforesaid closing condition is not fulfilled at the latest within
one year of Signing Date, Parties Nos. 1 and 2 on the one hand and the
Indirect Shareholders on the other hand may withdraw from this Agreement
unless one or more merger control procedures in the jurisdiction referred
to in ss. 21(2) goes on longer than this period and negative clearance is
expected shortly. The Parties will appeal any cease and desist orders in
the event that the merger is prohibited by the competent authority
competition in one or more of the jurisdictions referred to in ss. 21(2).
Should a negative clearance granted by the competent competition authority
in one of the jurisdictions referred to in ss. 21(2) be appealed by a third
party, the Parties will use their best efforts to defend against the
appeal. In such cases the Parties may not exercise their right of
rescission until such time as a final and unappealable decision up holding
the prohibition or cancelling by the negative clearance has been made.
In the event a withdrawal pursuant to the preceding subparagraph, the
Relevant P&G Party shall make a lump-sum reimbursement to the Family
Shareholders and the Indirect Shareholders of a total of EUR 10,000,000.00
for compensation of costs incurred. No proof of costs is necessary.
(5) The Relevant P&G Party shall be responsible for conducting of merger
control proceedings outside the jurisdictions mentioned in ss. 21(2). The
Relevant P&G Party shall bear the risk of possible prohibitions or
obligatory conditions issued in the course of such proceedings. In respect
of these merger control procedures too, the Family Shareholders and the
Indirect Shareholders shall use their best efforts to procure that the
company to cooperate in a spirit of mutual trust, to give the Relevant P&G
Party the necessary assistance and not to take any arbitrary or prejudicial
measures.
SS. 22
COSTS
Each Party shall bear its own costs and taxes on income in connection with the
execution and completion of this Agreement, in particular the costs of its
advisors. The Relevant P&G Party bears the costs of the notarization of this
Agreement as well as the costs of the filing of the notification of the merger
with the competition authorities, to the extent that these are not costs of the
advisors to the Family Shareholders or the Indirect Shareholders, and, if
applicable, real estate transfer tax with respect to the Company triggered by
the completion of this Agreement. The Relevant P&G Party shall bear the bank
fees for the transfer of the Sold Shares, for any transfers of deposits with
respect to the Held Shares, for the transfer of the purchase price and for any
trustee services performed.
SS. 23 NOTICES
All declarations of intent, legal actions, notices and other communications
provided for hereunder shall be in writing and shall be deemed to be given when
delivered in person, or sent via registered mail with return receipt requested
or delivered by a bailiff of the court, or transmitted by facsimile (provided a
number is indicated below); parties shall be deemed served upon transmission of
the copy to their respective attorneys as listed below:
if to P&G: The Procter & Gamble Company
One Procter & Gamble Plaza
Cincinnati, Ohio 45202, U.S.A.
Fax: +1-513-983-2261
Attn: Clayton C. Daley, Jr.
Senior Vice President & Chief Financial
Officer
with a copy to: GLEISS LUTZ Rechtsanwalte
Dr. Gerhard Wirth or
Dr. Michael Arnold
Maybachstr. 6
D-70469 Stuttgart, Germany
Fax: +49-711-8997-395
if to PROCTER & GAMBLE GERMANY MANAGEMENT GMBH:
Attn: Procter & Gamble Germany Management GmbH
Sulzbacher Str. 40
D-65818 Schwalbach, Germany
Fax: +49-6196/895901
with a copy to: GLEISS LUTZ Rechtsanwalte
Dr. Gerhard Wirth or
Dr. Michael Arnold
Maybachstr. 6
D-70469 Stuttgart, Germany
Fax: +49-711-8997-395
if to STROHER VERWALTUNGS- UND BETEILIGUNGS GMBH & CO. KG:
Attn: Stroher Verwaltungs- und Beteiligungs
GmbH & Co. KG
Auf der Beune 85
64839 Munster
with a copy to: Flick Gocke Schaumburg
Dr. Cristoph Schulte
Bockenheimer Landstra(beta)e 23
D-60325 Frankfurt am Main
Fax: +49-69/71703100
if to DR. ERIKA POHL:
Attn: Dr. Erika Pohl
Maison Trautheim, Ferpicloz
CH-1724 Praroman Le Mouret
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to Mr. RAINALD POHL:
Attn.: Mr. Rainald Pohl
Hobrechtstra(beta)e 52
D-64285 Darmstadt
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to Mr. TILMAN POHL:
Attn: Mr. Tilman Pohl
Am Elfengrund 48
D-64297 Darmstadt
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to Mr. BERTRAM POHL:
Attn: Mr. Bertram Pohl
Maison Trautheim, Ferpicloz
CH-1724 Praroman Le Mouret
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to DR. BURKHARD POHL:
Attn: Dr. Burkhard Pohl
Maison Trautheim, Ferpicloz
CH-1724 Praroman Le Mouret
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to Ms. HAIDRUN HONIG:
Attn: Mrs. Haidrun Honig
Maison Trautheim, Ferpicloz
CH-1724 Praroman Le Mouret
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to IMLADRIS GMBH:
Attn: Mr. Immo Stroher
Haubachweg 6
64285 Darmstadt
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Ms. CORINNA STROHER:
Attn: Ms. Corinna Stroher
Bleichweg 18
D-64342 Seeheim-Jungenheim
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Ms. CORDULA STROHER:
Attn: Ms. Cordula Stroher
Hunrodtstra(beta)e 9
D-34131 Kassel
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Ms. ANNIKA STROHER:
Attn: Ms. Annika Stroher
Steinbergweg 39
D-64285 Darmstadt
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Mr. SVEN-MARTIN STROHER:
Attn: Mr. Sven-Martin Stroher
Haubachweg 6
D-64285 Darmstadt
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Mr. JAN-HENDRIK STROHER:
Attn: Mr. Jan-Hendrik Stroher
Haubachweg 6
D-64285 Darmstadt
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
if to Ms. CLAUDIA EBERT:
Attn: Mrs. Claudia Ebert
Seitersweg 45
D-64287 Darmstadt
with a copy to: Flick, Gocke, Schaumburg
Dr. Christoph Schulte
Bockenheimer Landstra(beta)e 23
D-60352 Frankfurt am Main, Germany
Fax: +49-69/71703100
if to Ms. JANA EBERT:
Attn: Ms. Jana Ebert
Seitersweg 45
D-64287 Darmstadt
with a copy to: Flick, Gocke, Schaumburg
Dr. Christoph Schulte
Bockenheimer Landstra(beta)e 23
D-60352 Frankfurt am Main, Germany
Fax: +49-69/71703100
if to Mr. SIMON EBERT:
Attn: Mr. Simon Ebert
Seitersweg 45
D-64287 Darmstadt
with a copy to: Flick, Gocke, Schaumburg
Dr. Christoph Schulte
Bockenheimer Landstra(beta)e 23
D-60352 Frankfurt am Main, Germany
Fax: +49-69/71703100
if to Ms. GISELA SANDER:
Attn: Ms. Gisela Sander
In der Wildnis 8
D-64367 Muhltal-Trautheim
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to Ms. ULRIKE CRESPO:
Attn: Ms. Ulrike Crespo
Feyerleinstra(beta)e 9
D-60322 Frankfurt/Main
with a copy to: Shearman & Sterling
Dr. Stephan Scherer
Otto-Beck-Stra(beta)e 42
D-68165 Mannheim, Germany
Fax: +49-621/4257-295
if to PROF. DR. DR. THOMAS OLBRICHT:
Attn: Prof. Dr. Dr. Thomas Olbricht
Meisenburgstra(beta)e 153
D-45133 Essen
with a copy to: Heuking, Kuhn, Luer & Wojtek
Dr. Andreas Urban
Cecilienallee 5
D-40474 Dusseldorf
Fax: +49-211-60055290
if to Ms. SYLVIA STROHER:
Attn: Claudiusweg 18a
D-64285 Darmstadt
with a copy to: Flick, Gocke, Schaumburg
Dr. Christoph Schulte
Bockenheimer Landstra(beta)e 23
D-60325 Frankfurt am Main
Fax: +49-69/71703100
if to Mr. IMMO STROHER:
Attn: Mr. Immo Stroher
Haubachweg 6
D-64285 Darmstadt
with a copy to: Notaries Hess and Zatsch
Mr. Ralf E. Hess
Hochstra(beta)e 29
D-60313 Frankfurt am Main
Fax: +49-69/71378699
or at such other places or to such other persons as shall be designated by prior
written notice to the other Parties. The Parties shall inform each other
promptly about any changes with respect to the information as to notices, in
particular a change of the fax number.
SS. 24
POSSIBILITY OF ASSUMPTION
The Relevant P&G Party has the right, at any time before Closing, to transfer
its rights and obligations under the Agreement (with the exception of duty to
assume liability pursuant to ss. 15) to one or more enterprises controlled by
P&G (hereinafter these enterprises individually or collectively:
"TRANSFEREE(S)") by way of assignment and assumption of the contract
(VERTRAGSUBERNAHME) (the "TRANSFER OF CONTRACT"). Upon the Transfer of Contract
coming into effect, the Transferee (or the Transferees as joint creditors) fully
assumes the contractual position of the Relevant P&G Party under the Agreement.
The Family Shareholders, the Indirect Shareholders and Parties nos. 22 and 23
hereby consent in advance to the Transfer of Contract. The Transfer of Contract
becomes effective as of the receipt (ZUGANG) by all Family Shareholders, all
Indirect Shareholders and Parties nos. 22 and 23 of a declaration made by the
Relevant P&G Party; the declaration shall be made in writing in the form of
SCHEDULE 24. The Family Shareholders can issue notifications to P&G or the
Relevant P&G Party, regardless of the Transfer of Contract. Such notifications
also have effect vis-a-vis the Transferee.
SS. 25
CONSENT OF SPOUSES
(i) Mr. Ulrich Stroher as the husband of Ms. Sylvia Stroher, (ii) Ms. Ulrike
Pohl nee Liebler as the wife of Mr. Rainald Pohl, (iii) Ms. Sonja Pohl nee
Gruschwitz as the wife of Mr. Tilman Pohl, (iv) Ms. Martina Pohl nee Clemen as
the wife of Dr. Burkhard Pohl, (v) Mr. Norbert Ebert as the husband of Ms.
Claudia Ebert, (vi) Mr. Hans-Joachim Sander as the husband of Ms. Gisela Sander,
(vii) Ms. Claudia Olbricht nee Urch, as the wife of Prof. Dr. Dr. Thomas
Olbricht, (vii) Ms. Hannelore Stroher nee Kappel, as the wife of Mr. Immo
Stroher, (ix) Mr. Hans-Werner Melchior as the husband of Ms. Annika Stroher and
(x) Mr. Stefan Rodenhauser as the husband of Ms. Corinna Stroher have explicitly
consented to entering into this Agreement and to its completion. The
declarations of consent are attached as SCHEDULE 25.
SS. 26
EXERCISE OF RIGHTS OF RESCISSION
Insofar as the Family Shareholders and Indirect Shareholders are entitled to a
statutory or contractual right of rescission, they can exercise this right only
jointly.
SS. 27
FINAL PROVISIONS
(1) This Agreement is governed exclusively by the Laws of the Federal Republic
of Germany, to the exclusion of its conflict-of-law rules and the
Convention on the International Sale of Goods.
(2) Any amendments and supplements to this Agreement must be in writing to be
effective, except if notarial form is required by law. This shall include
any changes to this provision.
(3) The Preamble and Schedules are an integral part of this Agreement and are
incorporated herein by reference.
(4) Should any provision of this Agreement be or become partly or wholly
invalid or should there be a gap in this Agreement, this shall not affect
the validity of the remaining provisions. Instead of the invalid or missing
provision, that provision shall be deemed agreed which comes closest to
what the Parties had intended or would have agreed on the basis of the
purpose of this Agreement, had they considered the matter from the outset.
(5) All disputes arising from this Agreement will be settled exclusively by an
arbitration tribunal, without recourse to the courts of law. This also
applies to disputes regarding the validity, interpretation and execution of
this Agreement as well as potential supplements hereto, in particular,
disputes regarding the validity and/or interpretation of certain provisions
of this Agreement as well as the determination of an amendment or
supplement or filling of a gap with respect to the Agreement, in each case
including potential supplements. The arbitration tribunal will decide on
disputes regarding the validity and the interpretation of the arbitration
agreement as well as potential supplements thereto. The arbitration
agreement is attached to this deed as SCHEDULE 27.5; it will be notarized
by the Parties in a separate deed. All Parties hereby agree to be governed
by the provisions laid down in this arbitration agreement.
SECTION D.
EXTRAORDINARY SHAREHOLDERS' RESOLUTIONS
The transfer of GmbH shares of Merlin GmbH and of SC GmbH requires, according to
their shareholders' agreements, the consent of the shareholders' meeting. As an
extreme precaution, the shareholders' meetings of UC GmbH and Olbricht GmbH
would also like to declare the consent of the respective company to the above
transfer of shares.
Ms. Claudia Ebert, Ms. Jana Ebert and Mr. Simon Ebert declare: We represent the
whole registered share capital of Merlin GmbH. Waiving all contractual and
statutory requirements for convening a shareholders' meeting we hereby hold an
extraordinary shareholders' meeting of Merlin GmbH and unanimously resolve as
follows: We consent to the GmbH shares transfers provided for in this Agreement
pursuant to ss. 10 of the shareholders' agreement. Ms. Claudia Ebert, as
managing director of Merlin GmbH with authority to represent it by herself,
conveys the consent of Merlin GmbH to the Parties.
Ms. Gisela Sander declares: I am the sole shareholder of SC GmbH. Waiving all
contractual and statutory requirements for convening a shareholders' meeting I
hereby hold an extraordinary shareholders' meeting of SC GmbH and unanimously
resolve as follows: I consent to the GmbH shares transfers provided for in this
Agreement pursuant to ss. 14 of the shareholders' agreement. Ms. Gisela Sander,
as managing director of SC GmbH with authority to represent it by herself,
conveys the consent of SC GmbH to the Parties.
Ms. Ulrike Crespo declares: I am the sole shareholder of UC GmbH. Waiving all
contractual and statutory requirements for convening a shareholders' meeting I
hereby hold an extraordinary shareholders' meeting of UC GmbH and unanimously
resolve as follows: I consent to the GmbH shares transfers provided for in this
Agreement. Ms. Ulrike Crespo, as managing director of UC GmbH with authority to
represent it by herself, conveys the consent of UC GmbH to the Parties.
Prof. Dr. Dr. Olbricht declares: I am the sole shareholder of Olbricht GmbH.
Waiving all contractual and statutory requirements for convening a shareholders'
meeting I hereby hold an extraordinary shareholders' meeting of Olbricht GmbH
and unanimously resolve as follows: I consent to the GmbH shares transfers
provided for in this Agreement. Prof. Dr. Dr. Olbricht, as managing director of
Olbricht GmbH with authority to represent it by himself, conveys the consent of
Olbricht GmbH to the Parties.
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(to be continued on the next page)
IN CERTIFICATION WHEREOF, this deed and the schedules thereto were read aloud by
me, the notary public, to the persons appearing, and acknowledged as correct and
approved by them, and this deed was signed by them and me, the notary public,
affixing my official seal.
Basel, March 17 (seventeen), 2003 (two thousand three)
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Dr. Dieter Granicher, Notary
A.Prot. 2003/22