EXHIBIT 10.19
No. - 562 of the Roll of Deeds for 1994
---------------------------------------
Recorded September 7th -seventh-, 1994
at Munich, Brienner StraBe 25.
Before me, the undersigned Notary
Dr. Hans Wolfsteiner
with offices in Munich
appeared today:
1. Attorney-at-law (Rechtsanwaltin) Dr. Petra Wibbe, having her business
address at Ludwig-Ganghofer-StraBe 6, 82031 Grunwald, personally known to
the notary.
2. Attorney-at-law (Rechtsanwalt) Dr. Markus Fisseler, having his business
address at Taunusanlage 11, 60329 Frankfurt am Main, personally known to
the notary;
The deponents requested to have this deed partly notarized in the English
language. The notary who speaks English fluently ascertained that the
deponents were in command of the English language so as to understand the
transaction contemplated by this deed. Having been advised of their rights by
the notary, the deponents waived their rights to the presence of a sworn
interpreter and a certified translation of this deed.
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The deponent at 1. declared in the following not only to act in his own name
but also as attorney-in-fact without representative authority in the name of
each of the natural and juristic persons set out in Enclosure A to this deed
-----------
(hereinafter collectively being referred to as the "German Shareholders" ) .
The deponent at 2. declared in the following not to act in his own name but as
attorney-in-fact without representative authority in the name of each of the
companies set out in Enclosure B to this deed (hereinafter collectively being
--------- -
referred to as the "Alco Companies").
The deponents declared that they excluded any personal liability as
representatives.
The deponents declared, on behalf of the parties represented by them, that
they wished to finally resolve all arrangements among the parties with respect
to a joint-venture (the "Joint Venture") entered into on October 5, 1992 in
connection with the acquisition of, effectively, approximately 49.9% of the
share capital of IMM Burotechnik Handel GmbH, Grunwald (formerly: IMM
Industrie Beteiligungs GmbH) and its wholly-owned subsidiary, IMM Office
Systems Holding GmbH, Munich, by indirect subsidiaries of Alco Standard
Corporation.
I.
OPOG
Acting as heretofore mentioned, the deponents then entered into the
SHARE PURCHASE AGREEMENT/OPOG
-----------------------------
attached hereto as Exhibit I.
---------
After the conclusion of the aforementioned Share Purchase Agreement/OPOG the
deponent at 1. declared upon the respective
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question of the notary that the assets of the company do not include domestic
real estate. The notary advised the deponents that the acquisition of all shares
in a company whose assets include domestic real estate is subject to German real
estate acquisition tax.
II.
ESKOFOT
Acting as heretofore mentioned, the deponents then entered into the
SHARE PURCHASE AGREEMENT/ESKOFOT
--------------------------------
attached hereto as Exhibit II.
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The notary advised the deponents that he was not familiar with the provisions
of Danish law, and that he was unable to accept any liability with regard to
the validity and the enforceability of the Share Purchase Agreement/ESKOFOT.
The deponents accepted this disclaimer.
III.
STR
Acting as heretofore mentioned, the deponents then entered into the
SHARE PURCHASE AGREEMENT/STR
----------------------------
attached hereto as Exhibit III.
-----------
The notary advised the deponents that he was unfamiliar with French law, and
that he could accept no liability with regard to the validity and the
enforceability of the Share Purchase Agreement/STR. The deponents accepted
this disclaimer.
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The persons set out in Enclosure C are the sole shareholders of IMM
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Burotechnik Handel GmbH, Grunwald, registered with the Commercial Register of
the Lower Court of Munich under HRB 86090. The shareholders hereby authorize
the management of IMM Office Systems Holding GmbH Munich ("IMMOS"), a wholly-
owned subsidiary of IMM Burotechnik Handel GmbH, to arrange for the withdrawal
of IMMOS from the Conseil d'Administration of IMM Office Systems France S.A.
IV.
PRESS RELEASE
Acting as hertofore mentioned the deponents then declared:
The parties shall mutually agree on a press release/press releases.
V.
NON-COMPETE; INFORMATION RIGHTS
Acting as hertofore mentioned the deponents then declared:
The parties represented by us will not compete with each other in the
distribution, trading, leasing or servicing of copiers and fax machines, from
the date hereof through December 31, 1995 through a fixed local establishment,
(i) on the part of Alco Standard Corporation: in European countries in
which IMM Burotechnik Handel GmbH, Grunwald, and/or IMM Office
Systems Holding GmbH, Munich, and/or subsidiaries operate
(excluding, however, Denmark and France) except that the Erskine
House operations of Alco Standard Corporation in Germany may
continue and grow provided that they are not increased by
acquisitions;
(ii) on the part of the German Shareholders, acting personally or through
the Company, IMM Burotechnik Handel GmbH or IMM Office Systems
Holding GmbH: in European countries in which Alco Standard
Corporation and/or subsidiaries operate (namely the UK, Denmark and
France).
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Further, the parties will, for the time period set forth above, refrain from
soliciting, and accepting employment, of persons presently employed by the
relevant other parties (unless the prior consent of the other parties is
granted), unless such persons have already been hired on the date hereof.
The parties represented by us will cause their subsidiaries and affiliates to
observe the restrictions and undertakings set forth herein as if such
restrictions were agreed to by them, and hereby guarantee their performance by
way of independent contractual promise.
The parties represented by us will inform each other, and give full account,
on any tax relevant matters relating to their participations sold pursuant
this deed, and the subsidiaries of the companies in which participations are
being sold, in particular, they shall be obliged to each other to provide all
information required by the fiscal authorities on participations and
subsidiaries in any Foreign Corporation Questionnaire (Form 5471) or similar
reporting package.
VI.
RELEASE
Acting as heretofore mentioned the deponents then declared:
The parties represented by us hereby waive, and release each other from, all
rights and obligations pursuant to or in connection with the joint-venture
concluded on October 5, 1992, in particular all Transaction Documents (as
defined in the following deed) set out in notarial deed no. 1-1226/1992 of
notary Dr. Hans Wolfsteiner, Munich (including but not limited to the Share
Purchase and Transfer Agreement, the Agreement among Shareholders, the Funding
Facility and the Put-and-Call Option Agreement) and/or from their conduct as
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shareholders of IMM Burotechnik Handel GmbH, Grunwald or IMM Office Systems
Holding GmbH, Munich or other arrangements in connection therewith including
the services provided by IMM Industrie-Management Munchen GmbH, for whatever
factual or legal reasons or whether or not known or to be known, such waiver
and release to be as broad as possible in order to resolve and prevent any
present and future disputes between the parties, except for disputes, if any,
arising from this Agreement.
Prior to the execution of this deed the former partners to the Joint Venture,
Bankers Trust GmbH of Frankfurt am Main, and Gesellschaft fur
Direktbeteiligungen mbH of Hameln have transferred their shares in IMM
Burotechnik Handel GmbH, Grunwald, and all other rights and obligations in
connection with the Joint Venture, to BUKOR, Hameln; the latter hereby agrees
to indemnify the other partners to the Joint Venture against all claims (and
reasonable costs in connection with claims) Bankers Trust GmbH, and
Gesellschaft fur Direktbeteiligungen mbH may raise against other Joint Venture
partners. Further, prior to the execution of this deed, the former partners to
the Joint Venture, Mr. Arthur Haug of Munich and Deutsche Beteiligungs
Gesellschaft mbH of Frankfurt am Main have transferred their shares in IMM
Burotechnik Handel GmbH, and all other rights and obligations in connection
with the Joint Venture, to TA Triumph-Adler Aktiengesellschaft of Nurnberg and
agreed to waive and release the Alco Companies in accordance with the first
paragraph of this Art. VI.; TA hereby agrees to indemnify the Alco Companies
against all claims (and reasonable costs in connection with claims) Mr. Haug
or Deutsche Beteiligungs Gesellschaft mbH may raise against the Alco
Companies.
Equally, the Alco Companies hereby waive and release the former partners to
the Joint Venture pursuant to the first paragraph of this Art. VI and hereby
declare that they have no claims whatsoever against the former partners to the
Joint Venture, Mr. Haug, Deutsche Beteiligungs Gesellschaft mbH, Gesellschaft
fur Direktbeteiligungen mbH and Bankers Trust
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GmbH, in connection with the Joint Venture (Contract for the benefit of a
third party, Sec. 328 German Civil Code).
-----
VII.
CHANGE OF ARTICLES
Acting on behalf of the natural and the juristic persons set out in
Enclosure C the deponents then declared:
-----------
The persons set out in Enclosure C, acting as the sole shareholders of IMM
-----------
Burotechnik Handel GmbH, Grunwald, registered with the Commercial Register of
the Lower Court of Munich under HRB 86090 hereby resolve the Shareholders'
Resolution in German language set out in Enclosure D .
-----------
Further, the persons set out in Enclosure C have declared or hereby declare
-----------
their general consent to all future share transfers to TA and OPOG pursuant to
Art. 10 (1) and waive their rights pursuant to 10 (2) with respect to such
transfers of the Articles of Association of IMM Burotechnik Handel GmbH,
Grunwald.
The deponents instructed the notary to hand out the first certified copy (1.
Ausfertigung) of the notarial deed relating to the above resolutions for the
change of articles only upon his verification that this Deed has become
effective in accordance with its terms.
VIII.
CLOSING
Acting as hertofore mentioned the deponents then declared:
The closing (hereinafter being referred to as the "Closing") shall take place
on Sept. 19th, 1994 or on any other day mutually agreed in the City of New
York at the offices of the
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law firm Bruckhaus Westrick Stegemann, 767 Fifth Avenue, 43rd Floor, GM
Building, New York, NY 10153, USA. At the Closing,
(i) the deponents, persons designated in notarized declarations by the
deponents, or the persons represented by the deponents shall issue
approval letters substantially in the form set out in Enclosure E
-----------
(German Shareholders) and Enclosure F (Alco Companies) (hereinafter
-----------
being referred to as the "Approval Letters");
(ii) the deponents, persons designated in notarized declarations by the
deponents, or the persons represented by the deponents shall hand
over certified cheques (including also bank cheques) for the
relevant amounts of the purchase prices payable hereunder by TA and
AOP, Inc. respectively;
(iii) the deponents, persons designated in notarized declarations by the
deponents or the persons represented by the deponents shall hand
over to the relevant other side the resignation letters provided
for by Article V 3 of the Share Purchase Agreement/OPOG, Article
V.2 of the Share Purchase Agreement/ESKOFOT and Article V.3 of the
Share Purchase Agreement/STR;
(iv) the deponent at 2, persons designated in notarized declarations by
the deponent at 2, or Office Products, Inc., Office Group, Inc.
shall hand over to the deponent at 1, persons designated in
notarized declarations by the deponent at 1 or TA Triumph Adler
Aktiengesellschaft declarations by Messrs. Fisseler and Rohrer
pursuant to Article 5.4 of the Share Purchase Agreement/ OPOG;
(v) the deponent at 2, persons designated in notarized declarations by
the deponent at 2, or IMM
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Office Systems Holding GmbH shall hand over to the deponent at 1,
persons designated in notarized declarations by the deponent at 1,
or AOP Inc. an ordre de mouvement as well as a declaration by the
board of directors of IMM Office Systems France S.A., all in
accordance with Article 5.2 of the Share Purchase Agreement/STR;
(vi) Office Products, Inc. and Office Group, Inc. shall pass a
resolution by which Mr. Scheiter is being appointed as managing
director with sole signing power of Office Products Office Group
Industrie Beteiligungs GmbH substantially in the form set out in
Enclosure G;
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(vii) the deponents, persons designated in notarized declarations by the
deponents, or the shareholders of IMM Burotechnik Handel GmbH shall
provide resolutions approving the sale of IMM Office Systems
Denmark A/S, and IMM Office Systems France S.A., substantially in
the form set out in Enclosure H;
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(viii) the deponent at 1., persons designated in notarized declarations by
the deponent at 1. or IMM Office Systems Holding GmbH shall hand
over to the deponent at 2, persons designated by the deponent at 2
or AOP, Inc. the share certificate(s) of IMM Office Systems Denmark
A/S.
This Deed shall become valid only upon the notary receiving (first by fax, to
be followed by courier mail) the Approval Letters, properly issued by the
deponents, the persons designated in notarized declarations by the deponents,
or the persons represented by the deponents. The receipt by the notary of the
faxed Approval Letters, duly signed and notarized but not necessarily
legalized shall be decisive. The signatures under the originals of the
Approval Letters shall be notarized. Ms. Petra Wibbe shall be responsible for
the
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mailing of the originals of the Approval Letters to the notary. The authority
of the persons who sign the Approval Letters shall be evidenced,
(i) in the case of principals who are juristic persons resident in Europe,
by certified excerpts from the relevant commercial registers or
certificates of representation or notarized applications to the
relevant commercial registers, and a chain of notarized
powers/declarations of designation and, where necessary, the documents
legalizing the notarisations,
(ii) in the case of principals who are natural persons, by a chain of
notarized powers of attorney/declarations of designation and, where
necessary, the documents legalizing the notarisations, and
(iii) in the case of principals who are juristic persons resident in the US,
by Certificates of Incorporation, Secretary's Certificates of the
relevant company secretaries, and a chain of notarized powers of
attorney/declarations of designations and, where necessary, the
documents legalizing the notarisations.
The deponent at 1. presented or will present for deposit to the notary written
and notarized powers of attorney of the German Shareholders, and excerpts from
the Commercial Registers or certificates of representation or notarized
applications to the relevant commercial registers regarding the juristic
persons represented by him. He asked the notary to verify and certify, upon
receipt, the authority of the person who executed the Approval Letter on
behalf of the German Shareholders by an inspection of the relevant
documentation.
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He asked the notary to attach certified copies of such documentation to this
deed.
The deponent at 2. presented for deposit to the notary written and notarized
powers of attorney of the Alco Companies, which were accompanied, in the case
of the US resident companies represented by him, by Secretary's Certificates
of the relevant company secretaries and an excerpt from the Commercial
Register regarding Office Products-Office Group Industrie Beteiligungs GmbH.
He asked the notary to verify and certify, upon receipt, the authority of the
person who executed the Approval Letter on behalf of the Alco Companies by an
inspection of the relevant documentation. He asked the notary to attach
certified copies of such documentation to this deed.
The deponents asked the notary to attach to this deed certified copies of the
Approval Letters together with his certificate, that the persons who signed
the Approval Letters were duly authorized in accordance with the terms of this
agreement.
The notary advised the deponents that he was unfamiliar with the rules of
representation regarding foreign companies, and that to this extent he could
accept no liability in connection with a possible lack of authority. The
deponents accepted this disclaimer.
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IX.
COSTS
The german notarial fees up to an amount of DM 30,000.-- dreiBigtausend + VAT
shall be borne by Alco Standard Corporation. The other transaction costs and
taxes in connection with the Share Purchase Agreement/ESCFOT and /STR shall be
borne by AOP, Inc.
The banking fees in connection with payments pursuant to this deed shall be
born by Alco Standard Corporation. The travelling expenses for one
representative of the persons set out in Enclosure A to attend the Closing in
New York shall be born by Alco Standard Corporation.
The costs of the Federal Cartel Office, if any, shall be borne by TA Triumph
Adler Aktiengesellschaft.
In all other respects, the costs of the advisers to the parties shall be born
by the relevant parties.
X.
LAW; VENUE; MISCELLANEOUS
This Agreement shall exclusively be governed by the laws of the Federal
Republic of Germany.
In the event of any dispute between the parties arising out of this agreement,
the parties agree, to the extent permitted by law, on Frankfurt am Main as
non-exclusive venue. In any event, the parties hereby exclude, waive and
renounce the jurisdiction of any and all other courts outside of Germany in
respect of any matters deriving from, or relating to, this agreement or its
subject-matter (except that any award of a competent court may be executed or
enforced also with the assistance of a court whose jurisdiction is excluded,
waived or renounced pursuant to this sentence), unless the courts in Germany
should have no jurisdiction over the defendant, in
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which case the relevant defendant may be sued before any court having
jurisdiction.
If any provision of the agreements and other arrangements contained in this
deed should prove void or unenforceable, the remaining provisions shall remain
unaffected. The void or unenforceable provision shall be replaced by a valid
and enforceable provision which best meets the intentions of the parties. The
same principle shall apply to the filling of gaps.
The notary advised the deponents,
- that in case of a divestiture of shares in a GmbH a party is being
considered, as regards its relationship to the company, as the acquiror
only if the acquisition has been notified to the company together with
the submission of evidence of the transfer;
- that the acquiror is bound with respect to the shareholder relationship by
acts taken before such notification by the GmbH vis-a-vis the vendor or
by the vendor vis-a-vis the GmbH;
- that the acquiror is together with the vendor liable for contributions
on the shares in a GmbH which are still outstanding at the time of such
notification;
- that changes to the Articles of Association of a GmbH become valid only
upon the registration of such changes with the appropriate Commercial
Register.
The deponents asked the notary to notify the company of the acquisition of the
shares in Office Products-Office Group Industrie Beteiligungs GmbH by the
Purchaser by submitting a certified copy of this Deed to the company.
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The above protocol including the Enclosures A, B, C, D, E, F, G, H, and
Exhibits I, II and III including the relevant Attachment thereto was read by
the notary to the deponents, approved by them and then signed by them and the
notary in their own hands:
[SIGNATURES APPEAR HERE]
[SIGNATURES APPEAR HERE]
[SIGNATURES APPEAR HERE]
Enclosure A
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(b) Alcyon S.A. Porrentruy of Porrentruy, Switzerland
(c) Andra von Fuchs of Grunwald
(d) Verena von Fuchs of Leoni/Starnberg
(e) Gerda Klonne of Furth
(f) Alexander von Fuchs of Leoni/Starnberg
(g) Dr. Raimund Konig of Grunwald
(h) IBG Beteiligungsgesellschaft burgerlichen Rechts of Grunwald (Dr. Petra
Wibbe; Dr. Markus Trauttmansdorff-Weinsberg; Dr. Dietmar Scheiter; Dr.
Hans Albrecht; Dr. Thomas Buhler)
(i) Dr. Wolfgang Buhler of Furth
(j) BUKOR Beteiligungs- und Beratungsgesellschaft mbH & Co. KG of Hameln
("BUKOR")
(k) TA Triumph Adler Aktiengesellschaft of Nurnberg
(1) IMM Burotechnik Handel GmbH of Grunwald
(m) IMM Office Systems Holding GmbH of Munich
(n) Deutsche Beteiligungsgesellschaft mbH of Frankfurt am Main (only with
respect to the amendments to the Articles of Association of IMM
Burotechnik Handel) ("DBG")
(o) Arthur Haug of Munich (only with respect to the amendments to the
Articles of Association of IMM Burotechnik Handel)
Enclosure B
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(a) Alco Standard Corporation, Valley Forge
(b) AOP, Inc., Wilmington
(c) Office Products, Inc., Wilmington
(d) Office Group, Inc., Wilmington
(e) Office Products-Office Group Industrie Beteiligungs GmbH,
Munich
Enclosure C
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(a) BUKOR GmbH & Co. KG, Hameln,
shares of DM 3.244.700,--
(b) Alcyon S.A. Porrentruy, Porrentruy
shares of DM 1.125.100,--
(c) Dr. Petra Wibbe, Dr. Markus Trauttmans-
dorff-Weinsberg, Dr. Dietmar Scheiter,
Dr. Hans Albrecht und Dr. Thomas Buhler,
unter der Bezeichnung IBG Beteiligungsge-
sellschaft burgerlichen Rechts, Grunwald
shares of DM 1.102.600,--
(d) Dr. Raimund Konig, Grunwald
shares of DM 562.600,--
(e) Dr. Wolfgang Buhler, Furth
shares of DM 490.600,--
(f) Verena von Fuchs, Leoni
shares of DM 434.800,--
(g) Andra von Fuchs, Grunwald
shares of DM 434.800,--
(h) Gerda Klonne, Furth
shares of DM 343.200,--
(i) Alexander von Fuchs, Leoni
shares of DM 227.400,--
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(j) Dr. Petra Wibbe, Munich
shares of DM 22.600,--
(k) Office Products-Office Group Industrie
Beteiligungs GmbH, Munchen
shares of DM 12.498.900,--
(1) Deutsche Beteiligungsgesellschaft mbH
Frankfurt am Main
shares of DM 3.950.100,--
(m) Arthur Haug
Munich
shares of DM 562.600,--
Enclosure D
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Kapitalerhohunq
---------------
Die Gesellschafter verzichteten auf die Einhaltung aller Formen und Fristen
der Einberufung zu dieser Gesellschafterversammlung und beschlieBen einstimmig
mit allen Stimmen:
a) Das Stammkapital der Gesellschaft wird von DM 25.000.000,-- um
DM 2.500.000,-- - zwei Millionen funfhunderttausend Deutsche Mark - auf
DM 27.500.000,--
- siebenundzwanzig Millionen funfhunderttausend Deutsche Mark - erhoht.
(S) 5 der Satzung der Gesellschaft wird demgemaBgeandert und wie folgt neu
gefaBt:
(S) 5 Stammkapital
Das Stammkapital betragt
DM 27.500.000,--
- siebenundzwanzig Millionen funfhunderttausend Deutsche Mark -."
b) Die Erhohung erfolgt in der Weise, daB ein neuer Geschaftsanteil mit einer
Stammeinlage von DM 2.500.000,-- gebildet wird, die in Geld zu erbringen
ist. Des weiteren ist ein Aufgeld von DM 3.500.000,- zu leisten.
Zur Ubernahme der neuen Stammeinlage wird zugelassen:
Office Products-Office Group
Industrie Beteiligungs GmbH
mit dem Sitz in Munchen.
Enclosure E
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The undersigned Dr. Petra Wibbe, attorney-at-law in Munich, herewith takes
notice of notarial deed no. __________ , 1994 of notary public Dr. Hans
Wolfsteiner, Munich, and acting on behalf of German Shareholders (as defined
in the notarial deed) pursuant to the powers of attorney which have already
been submitted to the notary, hereby approves all acts made on behalf of the
German Shareholders.
New York, the ________________________, 1994
__________________________________________
Dr. Petra Wibbe
Enclosure F
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The undersigned Dr. Markus Fisseler, attorney-at-law in Frankfurt am Main,
herewith takes notice of notarial deed no. ________, 1994 of notary public Dr.
Hans Wolfsteiner, Munich, and acting on behalf of Alco Companies (as defined in
the notarial deed) pursuant to the powers of attorney which have already been
submitted to the notary, hereby approves all acts made on behalf of the Alco
Companies.
New York, the __________, 1994
- ----------------------------------
Dr. Markus Fisseler
Enclosure G
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GESELLSCHAFTERBESCHLUSS
Der unterzeichnete Rechtsanwalt Dr. Markus Fisseler, handelnd aufgrund der ihm
erteilten Vollmachten vom 11.07.1994 fur die Office Products, Inc. und Office
Group, Inc., Wilmington, erklart:
Die von mir vertretenen Gesellschaften sind alleinige Gesellschafter der Office
Products-Office Group Industrie Beteiligungs GmbH, Munchen, welche in Abteilung
B des Handelsregisters des Amtsgerichts Munchen unter Nr. 102712 eingetragen ist
und ihre Geschaftsadresse c/o Arthur Andersen & Co. GmbH, NymphenburgerstraBe 1,
80335 Munchen hat (im folgenden die "Gesellschaft").
Die von mir vertretenen Gesellschaften halten hiermit unter Verzicht auf alle
Formen und Fristen der Einberufung einer Gesellschafterversammlung eine
Gesellschafterversammlung der Gesellschaft ab und beschlieBen was folgt:
Der Unternehmensberater Dr. Dietmar Scheiter, Munchen, wird zum
Geschaftsfuhrer der Gesellschaft bestellt.
Er vertritt stets einzeln.
Frankfurt den,
-----------------
Dr. Markus Fisseler
Rechtsanwalt
Enclosure H
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SHAREHOLDERS' RESOLUTION
The undersigned shareholders of IMM Burotechnik Handel GmbH, Grunwald, hereby
approve the sale of IMM Office Systems Denmark A/S, and IMM Office Systems
France S.A., at approximately a purchase price of in total DM 18,000,000, to any
affiliate of Alco Standard Corporation, namely AOP Inc. and hereby instruct the
management to do all acts deemed necessary or desirable in connection therewith.
New York, the ___________, 1994
- -----------------------------------
Class-A-Shareholders
- -----------------------------------
Class-B-Shareholders
Exhibit I to
---------
Deed - 562/ 1994 of
Notary Dr. Hans
Wolfsteiner in Munich
SHARE PURCHASE AGREEMENT/OPOG
-----------------------------
between
1. Office Products, Inc.
501 Silverside Road
Suite 28
Wilmington, DE 19809,
USA
(hereinafter being referred to as the "Seller 1")
2. Office Group, Inc.
501 Silverside Road
Suite 28
Wilmington, DE 19809,
USA
(hereinafter being referred to as the "Seller 2")
(hereinafter collectively being referred to as the Sellers)
and
TA TRIUMPH-ADLER Aktiengesellschaft,
Further StraBe
Nurnberg
(hereinafter being referred to as "TA" or the "Purchaser")
and
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the Persons set out in Attachment 1
------------
(hereinafter collectively being referred to as the "Obligors")
and
Alco Standard Corporation
P.O.Box 834, Valley Forge
PA 19482,
U S A
(hereinafter referred to as "Alco")
WHEREAS
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The Seller 1 is a shareholder of Office Products-Office Group Industrie
Beteiligungs GmbH, Munich, which is registered in sec. B of the Commercial
Register of the Lower Court of Munich, folio HRB no. 102 712, and has its main
business establishment at c/o Arthur Andersen & Co. GmbH, Nymphenburger StraBe
1, 80335 Munich (hereinafter being referred to as the "Company" or "OPOG").
The stated capital of the Company (hereinafter being referred to as the "Stated
Capital") is DM 50,000 and is fully paid up. The Stated Capital consists of the
following shares (hereinafter being referred to as the "Shares"):
two shares in the nominal amount of DM 24,500 and two shares in the
nominal amount of DM 500 each.
The Seller 1 is holding two shares of DM 24,500 and DM 500 (hereinafter
collectively being referred to as the "Shares 1"). The Seller 1 is interested in
divesting itself of the Shares 1. The Purchaser is interested in purchasing the
Shares 1 as follows.
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The Seller 2 is holding two shares of DM 24,500 and DM 500 (hereinafter being
referred to as the "Shares 2"). The Seller 2 is interested in divesting itself
of the Shares 2. The Purchaser is interested in purchasing the Shares 2 as
follows.
The Sellers have granted shareholder loans to the Company of DM 80,000,000 and
of DM 80,000,000 resulting from a loan agreement between the Company and Office
Products, Inc. dated October 15, 1992 (the "Loan 1") and a loan agreement
between the Company and Office Group, Inc. dated October 15, 1992 (the "Loan 2")
further each of the Sellers had claims from an intercompany account balance to
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the Company in the amount of DM 1,422,796_as of October 1, 1993 plus any
additional charges made in the meantime; in an agreement dated May 18, 1994, the
Sellers have waived the Loan 1 and the Loan 2, respectively at an amount of DM
79,000,000 each, subject to an improvement of the performance of the Company
(cf. Art. IV of the agreement of May 18, 1994) further, in an agreement dated
August, 1 1994, the Sellers have waived all their respective rights to the loans
and intercompany account claims, save for a non-interest bearing portion of the
intercompany account balance (liability) to each Seller of DM 406,214 each (such
loans, and intercompany liability plus all other rights connected therewith all
as reduced to two times DM 406,214, hereinafter collectively being referred to
as the "Loans"). The Loans shall not be affected by the transaction contemplated
hereby other than in accordance with Art. 5.1 below. The parties hereto
expressly confirm (bestatigen) the above mentioned waivers.
The Company is an approximately 49.9 % shareholder of IMM Burotechnik Handel
GmbH, Grunwald, which has a book value of approximately DM 180 million in the
books of the Company, while the remaining shares will be held immediately
following this transaction by the Obligors (excluding the Company); the Obligors
have declared their desire, in view of very substantial disagreements among the
shareholders of IMM Burotechnik
- 4 -
Handel GmbH regarding the business policy of IMM Burotechnik Handel GmbH, to
see the Sellers disassociating themselves from their indirect participation in
IMM Burotechnik Handel GmbH.
The parties therefore agree as follows:
ARTICLE 1
Sale and Assignment of Shares, Right to Profits, Effective Date
---------------------------------------------------------------
1. Upon the terms and conditions of this Agreement the Seller 1 herewith
sells to TA the Shares 1 including all ancillary rights and assigns them
to TA.
2. Upon the terms and conditions of this Agreement the Seller 2 herewith
sells to TA the Shares 2 including all ancillary rights and assigns them
to TA.
3. The Purchaser accepts the relevant sales and assignments.
4. The assignment of the Shares is subject to the occurrence of the following
conditions precedent:
4.1 The receipt by the Sellers of the Cash Purchase Price in accordance
with Article 2. The Sellers shall acknowledge in writing the receipt
of the Purchase Price without undue delay. A copy of this receipt
shall be sent to the notary for attachment to this deed.
5. Irrespective whether the assignment of the Shares herewith agreed becomes
effective ad rem (dinglich) "Effective Date" within the meaning of this
------ --------
Agreement shall be the date of the Closing.
6. The profits of the current fiscal year as well as the profits of previous
fiscal years which have not been distributed to the shareholders (i.e.
profits carried forward
- 5 -
and profits of previous fiscal years with respect to which no resolution
on the appropriation of results (Erqebnisverwendunq) has been passed)
------------------
shall be exclusively for the account of the Purchaser. The Company has not
made any distributions of dividends in its business year 1993/94. No
resolutions for the distribution of dividends have been passed.
7. The Purchaser hereby consolidates (Zusammenlegung) all shares in the
Company to one share of DM 50,000.
ARTICLE 2
Purchase Price, Further Undertakings of Purchaser
-------------------------------------------------
1. The aggregate cash purchase price for the Shares (hereinafter being
referred to as the "Cash Purchase Price") is DM 30,050,000 (in words:
Deutsche Mark thirty million and fiftythousand). The Cash Purchase Price
shall be paid at the Closing at the full amount of DM 30,050,000 by
certified cheque (including also bank cheques).
2. A contingent payment to provide an incentive for the Sellers to give up
their indirect participation in IMM Burotechnik Handel GmbH (hereinafter
being referred to as the "Contingent Payment" or the "Golden Share") which
shall be payable by the selling Shareholder (as hereinafter defined) shall
amount to 15% of the Net Proceeds (as hereinafter defined) from any
Effective Sale (as hereinafter defined).
2.1 Net Proceeds shall mean the excess, if any, of
2.1.1 the proceeds, in money or money's worth, from an Effective
Sale over
2.1.2 any funds or contributions of any kind (including but not
limited to capital increases, capital injections, shareholder
- 6 -
loans, payments pursuant to shareholder guarantees or other
security) in money or money's worth, committed or made
available by, or on behalf of, shareholders of the Company,
IMM Burotechnik Handel GmbH or IMM Office Systems Holding GmbH
or subsidiaries or affiliates after the signing hereof and up
to the Effective Sale. The - effective - channelling through
of funds or contributions through several companies by
interrelated action shall count only once.
2.2 Companies shall mean OPOG, IMM Burotechnik Handel GmbH or IMM Office
Systems Holding GmbH.
2.3 Shareholders shall mean the shareholders of the Companies (excluding
DBG/Haug) at the time of conclusion of this Agreement and TA (or any
of its affiliates) and Bankers Trust Company (or any of its
affiliates).
2.4. Effective Sale shall mean a commitment (Bindendes
Verpflichtungsgeschaft) between the date hereof and the fifth
anniversary of the Closing by (i) one of the Shareholders to sell all
or part of their shares in one of the Companies to a third party not
affiliated with one of the Shareholders; or (ii) one of the Companies
to sell all or substantially all of their assets ("Assets") to a
third party not affiliated with one of the Shareholders. A sale of
the shares or Assets of one of the Companies or any part thereof by
one of the Shareholders or Companies to an affiliate of one of the
Shareholders ((S) 15 Aktiengesetz) shall be permissible only if the
transferee assumes all obligations, if any, under this provision
within 30 days after the respective sale.
2.5 The Golden Share shall be assessed on the aggregate value of the
Companies only once. Considering this,
- 7 -
the Golden Share shall not be assessed on the proceeds for the sale
of the shares or the Assets of one of the Companies as far as the
Golden Share has already been directly or indirectly assessed on the
value of such shares or Assets in connection with a preceeding
Effective Sale.
2.6 The Sellers will be entitled to all reasonable information concerning
(i) the occurrence of an Effective Sale and (ii) the computation of
the Net Proceeds; in particular, the Sellers will be entitled to
obtain a full set of notarial and other documentation relating to an
Effective Sale (including such information which is adequate for the
Sellers in order to establish whether or not an Effective Sale has
occurred).
In the event that the respective seller or transferor shall fail to
advise the Sellers within 60 days of an Effective Sale that such
Effective Sale has occurred, the Sellers shall be entitled to a cash
penalty payment of DM 5,000,000 (Deutsche Mark five million) if the
respective Seller or transferor fails to provide that information. In
the event of a share deal, the relevant amounts of DM 5,000,000 shall
be due pro rata to the shares sold/transferred by the relevant
seller/ transferor in the relevant company. The amount payable
pursuant to the Golden Share shall be deducted from the penalty.
2.7 Any of the persons obliged under the Golden Share may extinguish all
of the Sellers' rights with respect to the Golden Share, at any time
(i) but not later than at the 2nd anniversary of the Closing by
making a cash payment to the Sellers of DM 15,000,000 (in words:
Deutsche Marks fifteen million) and (ii) thereafter by making a cash
payment to the Sellers of DM 20,000,000 (in words: Deutsche Marks
twenty million). Any individual person obliged under the
- 8 -
Golden Share may exercise its rights hereunder pro rata to the shares
held by it.
2.8 The Purchaser and the Obligors will refrain from actions the sole or
primary purpose of which would be to diminish the value of the Golden
Share.
3. The from time to time outstanding portion of the Purchase Price (including
the Cash Purchase Price and the Contingent Payment) shall, from the due
date until payment, bear interest at a rate which equals FIBOR for
3-months-deposits quoted on the due date plus 25 basis points.
ARTICLE 3
Seller's Warranties
-------------------
The Sellers jointly and severally warrant to the Purchaser by way of an
independent promise of guarantee that the following statements as of the Closing
are true and accurate:
1. The statements in the whereas-clause of this Agreement with respect to the
Sellers and the Company are complete and correct.
2. The Company is a company with limited liability (Gesellschaft mit
----------------
beschrankter Haftunq) duly organized under the laws of the Federal
--------------------
Republic of Germany and validly existing in accordance with the excerpt of
the Commercial Register and the Articles of Association filed with the
Commercial Register. Save for notarial deed 1189/94 J. Kartner, Munich,
there are no shareholder resolutions amending the Articles of Association
which have not yet been registered in the Commercial Register nor are
there any side agreements relating to the constitution and organisation of
the Company.
3. The Sellers are the legal and beneficial owners of the Shares sold by
them, respectively, which are free of any encumbrances or any other rights
for the benefit of third parties. The Sellers have the right and the power
to freely dispose of the Shares without the consent of any third party and
without violation of the rights of any third party.
4. The Company is the legal and beneficial owner of the Class-B-Shares
("Stamm-B-Geschaftsanteilell", as defined in the Articles of Association
of IMM Burotechnik Handel GmbH), as acquired on October 5, 1992 by
notarial deed 1-1226/92 of notary public Dr. H. Wolfsteiner, Munich. Such
Class-B-Shares are free of any encumbrances or any other rights for the
benefit of third parties. Further, the Company has free and clear title to
DM 50,000 cash on hand, deposited in a fixed account with Deutsche Bank
AG, Frankfurt am Main.
5. Save for the Loans (subject to Art. 5.1) the Company has no liabilities or
obligations to any person (including the Sellers and their affiliates, in
particular Alco Standard Corporation, banks, tax authorities, creditors,
suppliers etc.) of any kind whatsoever whether actual, contingent,
present, future or otherwise, whether or not shown or to be shown on the
balance sheet, which are attributable to or grounded in the time period up
to the date of the Closing. All contractual arrangements with the Sellers
or affiliates of the Sellers have been terminated at no costs to the
Company.
6. There shall be no further warranties or guarantees whatsoever, express or
implied, other than those expressly stipulated herein.
- 10 -
ARTICLE 4
Legal Consequences
------------------
1. If one or several of the statements which the Sellers have guaranteed
pursuant to Article 3 of this Agreement should turn out not to be
accurate, then the Purchaser shall have the right to demand that the
Sellers create a situation within 60 days after receipt of such demand
which would exist were such statements correct. If the Sellers within such
period of time do not create the situation which is in accordance with
this Agreement the Purchaser and the Company shall be entitled to monetary
damages.
2. Expressly excluded are any rights of the Purchaser to exchange (Wandlung)
--------
or reduction of Purchase Price (Minderung), damages for incorrect
---------
representation (Schadensersatz wegen unrichtiger Zusicherung), culpa in
-------------------------------------------- --------
contrahendo, voidance of this Agreement because of the lack of
-----------
substantial qualities (Anfechtung wegen des Fehlens einer wesentlichen
-------------------- --------------------------
Eigenschaft) or recision or adjustment of this Agreement because of the
-----------
lack of substantial elements (Wegfall der Geschaftsgrundlage), except all
------------------------------
as expressly otherwise provided for in this agreement.
3. Save for legal defects in title all guarantee rights of the Purchaser
pursuant to this Article 4 are subject to a limitation period of three (3)
years beginning with the date hereof, and shall be excluded unless raised
in court prior to the expiration of such period.
4. Any claims because of non-fulfillment of the guarantees regarding taxes
and other public dues (Abgaben) expire three (3) months after the final
-------
assessment (Bestandskraft) of the relevant dues. There will be a netting
of tax benefits and disadvantages arising from the same source of present,
past and future tax periods.
- 11 -
5. The Purchaser shall cause the Company to permit Sellers and their advisers
who are bound by professional secrecy obligations to get involved in all
tax field audits of the Company for the period before the Effective Date.
The Purchaser shall procure that the Company informs the Sellers about the
announcement or commencement of such field audit without any undue delay,
and to permit the Sellers and their advisers to attend the final tax audit
meeting (SchluBbesprechung). If no agreement can be reached about the
results of any such field audit, then the Purchaser shall upon request of
the Sellers cause the Company to initiate legal proceedings against the
respective tax assessment (Steuerbescheid) and, if necessary, conduct a
--------------
legal action in accordance with Sellers' instructions. The costs of any
such legal action shall be born by the Sellers.
ARTICLE 5
Miscellaneous
-------------
1. Alco hereby commits itself, and guarantees in that respect also the
performance of all its subsidiaries and entities it controls, that (i)
neither Alco or subsidiaries and entities which it controls shall assign
the Loans to any other person than Alco, affiliates of Alco or entities
which Alco controls; (ii) in the event that the owner of the Loans should
leave the group of companies consisting of Alco, affiliates of Alco and
entities which Alco controls (the "Alco Group") Alco shall make adequate
arrangements so that the Loans shall always be owned by a member of the
Alco Group; (iii) the Loans shall be called for payment only at the time
and to the extent the Company realizes in cash or otherwise (for instance
by way of setoff) the accrued potential claims for reimbursement of taxes
against the German Fiscal Authorities which are presently available and
which amount to DM 812,428 each. If it is finally resolved, by
unappealable court ruling, that
- 12 -
the Company is unable to realize the relevant claims, the Loans shall be
waived. The Purchaser shall observe the interests of the Sellers when
realizing the relevant claims. Art. 4 para 5 shall apply mutatis mutandis.
Alco and the Company will arrange for an express amendment of the loan
documentation in accordance with the above.
2. The Purchaser and each of the Obligors shall be severally liable
(Teilschuld).
3. At the Closing, the Sellers will provide the Purchaser with a resignation
letter of Mr. Bill Brady as the managing director of the Company and of
Mr. John Hearn as a managing director of IMM Burotechnik Handel GmbH, who
shall resign at no costs to the relevant company. The Sellers will, in
turn, appoint Mr. Scheiter as new managing director with sole signing
power of the Company.
4. At the Closing the Sellers will provide the Purchaser with declarations of
Messrs. Fisseler and Rohrer, who shall declare that they return the powers
of attorney to act on behalf of (i) the Sellers and (ii) the Company.
5. This Agreement, including this provision, may only be amended by written
or, if necessary, notarial instrument.
6. Should any provision of this Agreement be held wholly or in part invalid
or unenforceable, the validity or enforceability of the other provisions
shall not be affected thereby. The invalid or unenforceable provision
shall be deemed replaced by such valid and enforceable provision which
serves best the economic interests of the parties originally pursued by
the invalid or unenforceable provision.
7. Any agreements made heretofore between the parties to this Agreement are
superseded by the conclusion of this Agreement.
Attachment 1
------------
(a) BUKOR Beteiligungs- und Beratungsgesellschaft mbH & Co. KG, Hameln
(b) Alcyon S.A. Porrentruy, Porrentruy
(c) Dr. Petra Wibbe, Dr. Markus Trauttmansdorff-Weinsberg, Dr. Dietmar
Scheiter, Dr. Hans Albrecht und Dr. Thomas Buhler, unter der Bezeichnung
IBG Beteiligungsgesellschaft burgerlichen Rechts, Grunwald
(d) Dr. Raimund Konig, Grunwald
(e) Dr. Wolfgang Buhler, Furth
(f) Verena von Fuchs, Leoni
(g) Andra von Fuchs, Grunwald
(h) Gerda Klonne, Furth
(i) Alexander von Fuchs, Leoni
(j) Dr. Petra Wibbe, Munich
(k) Office Products-Office Group Industrie
Beteiligungs GmbH, Munchen
(l) TA Triumph-Adler Aktiengesellschaft,
Munchen
Exhibit II to
Deed 1-1562/1994 of
Notary Wolfsteiner
in Munich
SHARE PURCHASE AGREEMENT/ESKOFOT
--------------------------------
between
IMM Office Systems Holding GmbH
ArnulfstraBe 27
80335 Munchen
(hereinafter referred to as the "Seller")
and
AOP, Inc.
Silverside Carr Executive Center
501 Silverside Road
Wilmington DE 19809
(hereinafter referred to as the "Purchaser")
WHEREAS
-------
The Seller is the sole shareholder of IMM Office Systems Denmark A/S, a Danish
stock corporation which is registered with the Danish Commerce & Companies
Agency under registration no. A/S 209171 and has its main business
establishment at Industrieparken 35-37, DK 2750 Ballerup, Kingdom of Denmark,
(hereinafter referred to as the "Company").
- 2 -
The share capital of the Company (hereinafter referred to as the "Stated
Capital") is DKK 13,000,000.00 and is fully paid up. The Stated Capital
consists of 13,000 shares with a nominal value of DKK 1,000 each (hereinafter
referred to as the "Shares").
The Seller has granted a subordinated loan of DKK 12,000,000 in cash (such
loan and all other shareholder financing including interest as from the
Effective Date, hereinafter referred to as the "Shareholder Loan") in order to
improve the equity position of its subsidiary.
The Company, in turn, is the sole shareholder of ESKOFOT Kontor Systemer A/S,
a Danish stock corporation registered with the Danish Commerce & Companies
Agency under registration no. A/S 61104 who has its main business
establishment at Industriparken 35-37, DK 2750 Ballerup, Kingdom of Denmark
(hereinafter referred to as "ESKOFOT Kontor"). ESKOFOT Kontor has a share
capital of DKK 5,300,000.00 which is fully paid up.
ESKOFOT Kontor, in turn, is the sole shareholder of ESKOFOT Leasing A/S, a
Danish stock corporation registered with the Danish Commerce & Companies
Agency under registration no. A/S 66042 who has its main business
establishment at Industriparken 35-37, DKK 2750 Ballerup, Kingdom of Denmark
(hereinafter referred to as "ESKOFOT Leasing"). ESKOFOT Leasing has a share
capital of DKK 2,000,000.00 which is fully paid up.
The Seller is interested in divesting itself of the Shares and the Shareholder
Loan. The Purchaser is interested in purchasing the Shares and the Shareholder
Loan.
The parties therefore agree as follows:
- 3 -
ARTICLE 1
Sale and Assignment of Shares, Shareholder Loan, Right to Profits, Effective
----------------------------------------------------------------------------
Date
----
1. Upon the terms and conditions of this Agreement the Seller herewith sells
to the Purchaser the Shares including all ancillary rights and assigns them
to the Purchaser. Further, the Seller hereby sells and assigns to the
Purchaser the Shareholder Loan. The Purchaser accepts such sales and
assignments.
2. The assignment of the Shares and the Shareholder Loan is subject to the
occurrence of the following conditions precedent:
2.1 Receipt of the Purchase Price pursuant to Article 2. The Seller shall
acknowledge in writing the receipt of the Purchase Price without undue
delay. A copy of this receipt shall be sent to the notary for
attachment to this deed.
3. Irrespective whether the assignment of the Shares and of the Shareholder
Loan herewith agreed becomes effective ad rem (dinglich) "Effective Date"
-- --- --------
within the meaning of this Agreement shall be the date of the Closing.
4. The profits of the current fiscal year as well as the profits of previous
fiscal years which have not been distributed to the shareholders (i.e.
profits carried forward and profits of previous fiscal years with respect
to which no resolution on the appropriation of results (Ergebnisverwendung)
------------------
has been passed) shall be exclusively for the account of the Purchaser. The
Sellers have not caused any dividends, whether openly or concealed, for the
business year 1993.
- 4 -
ARTICLE 2
Purchase Price, Further Undertakings of Purchaser
-------------------------------------------------
1. The aggregate purchase price for the Shares and the Shareholder Loan
(hereinafter referred to as the "Purchase Price") is DM 9.000,000 (in
words: Deutsche Mark nine million).
2. The Purchase Price shall be paid by the Purchaser by certified cheque
(including also bank cheque).
3. The from time to time outstanding portion of the Purchase Price shall, from
the Effective Date until payment, bear interest at a rate which equals
FIBOR for 3-months-deposits quoted on the Effective Date plus 25 basis
points.
ARTICLE 3
Seller's Warranties
-------------------
The Seller warrants to the Purchaser in the form of an independent promise of
guarantee that the following statements are true and accurate as of the Closing:
1. The statements in the whereas-clause of this Agreement with respect to the
Seller and the Company and its subsidiaries are complete and correct.
2. The Company and its subsidiaries are stock corporations with limited
liability duly organized under the laws of the Kingdom of Denmark and
validly existing in accordance with the filings with the Danish Commerce &
Companies Agency register. There are no shareholder resolutions amending
the Articles of Association of the Company which have not yet been
registered with the Danish Commerce & Companies Agency nor are there any
side agreements with the Seller or subsidiaries other than the Company and
its
- 5 -
subsidiaries relating to the constitution and organisation of the Company or
its subsidiaries.
3. The Seller is the legal and beneficial owner of the Shares which are free of
any encumbrances or any other rights for the benefit of third parties. The
Seller has the right and the power to freely dispose of the Shares without
the consent of any third party. Such disposal would not violate the right of
any third party. Rights of Den Danske Bank A/S, if any, against the disposal
shall not be covered by this Art. 3.3.
4. The Company is the legal and beneficial owner of the shares in ESKOFOT Kontor
which are free of any encumbrances or any other rights of third parties save
for a pledge in favour of Den Danske Bank A/S in connection with the
financing of the operations of the pledgor. ESKOFOT Kontor, in turn, is the
legal and beneficial owner of all the shares in ESKOFOT Leasing, which are
free of any encumbrances or any other rights of third parties save for a
pledge in favour of Den Danske Bank A/S in connection with the financing of
the operations of the pledgor.
5. After December 31, 1993, the Company and its subsidiaries have been operated
in the ordinary course of business; in particular, no distributions of
profits (including hidden distributions) have occurred for the time period
after December 31, 1993, within this framework the Company has complied with
all material provisions of the law.
6. The Seller is not liable for any acts or amissions of Alco Standard
Corporation's employees or nominees.
- 6 -
ARTICLE 4
Legal Consequences
------------------
l. If one or several of the statements for which Seller has guaranteed pursuant
to Article 3 of this Agreement should turn out not to be accurate, then the
Purchaser shall have the right to demand that the Seller within 60 days
creates a situation which would exist were such statements correct. If Seller
within such period of time does not create the situation which is in
accordance with this Agreement the Purchaser shall be entitled to monetary
damages.
2. With respect to the warranty of Article 3.5 the Seller's liability pursuant
to Article 4.1 hereof is limited to the amount of the Purchase Price.
3. Expressly excluded are any rights of the Purchaser to exchange (Wandlung) or
--------
reduction of Purchase Price (Minderung), damages for incorrect representation
---------
(Schadensersatz wegen unrichtiger Zusicherung), culpa in contrahendo,
-------------------------------- ----------- -------- -----------
voidance of this Agreement because of the lack of substantial qualities
(Anfechtung wegen des Fehlens einer wesentlichen Eigenschaft) or recession or
--------------------- ------------- ------------------------
adjustment of this Agreement because of the lack of substantial elements
(Wegfall der Geschaftsgrundlage).
-------- ----------------------
4. Save for legal defects in title of the Company all warranty rights of
Purchaser pursuant to this Article 4 are subject to a limitation period of
three (3) years beginning with the date hereof, and shall be excluded unless
raised in court prior to the expiration of such period.
5. Any claims because of non-fulfillment of the warranties regarding taxes and
other public dues expire three (3) months after the final assessment of the
relevant dues if a warranty claim in that respect should arise under
- 7 -
Article 3.5. There will be a netting of tax benefits and disadvantages of
present, past and future tax periods.
6. The Purchaser shall cause the Company to permit Seller or its advisers who
are bound by professional secrecy obligations to get involved in all tax
field audits of the Company for the period before the Effective Date. The
Purchaser shall procure that the Company informs the Seller about the
announcement or commencement of such field audit without any undue delay. If
no agreement can be reached about the results of any such field audit, then
the Purchaser shall upon request of the Seller cause the Company to initiate
legal proceedings against the respective tax assessment (Steuerbescheid) and,
--------------
if necessary, conduct a legal action in accordance with the Seller's
instructions. The cost of any such legal action shall be borne by the Seller.
ARTICLE 5
Miscellaneous
-------------
1. The Purchaser undertakes to change the name of the Company so as to delete
the term "IMM".
2. The Seller shall submit to the Purchaser resignation letters of the following
persons resigning at no costs to the relevant company from the following
positions:
- Dr. Hans Albrecht (Managing Director of the Company; Board of
Directors of the Company; and of ESKOFOT KONTOR)
- Christian Franckenstein (Managing Director of the Company; Board of
Directors of ESKOFOT KONTOR)
- 8 -
- Dr. Frank Tofflinger (Board of Directors of the Company; of ESKOFOT
Leasing)
- Manfred Gastinger (Board of Directors of ESKOFOT LEASING).
3. [intentionally omitted]
4. This Agreement, including this provision, may only be amended by written or,
if necessary, notarial instrument.
5. Should any provision of this Agreement be held wholly or in part invalid or
unenforceable, the validity or enforceability of the other parts shall not be
affected thereby. The invalid or unenforceable provision shall be deemed
replaced by such valid and enforceable provision which serves best the
economic interest of the contract parties originally pursued by the invalid
or unenforceable provision.
6. Any agreements made heretofore between the parties to this Agreement are
superseded by the conclusion of this Agreement.
7. The Seller shall assist the Purchaser in any possible manner, as the
Purchaser may reasonably request, in the pursuit the Purchaser's or the
Company's rights, if any, against the previous owner of the Shares, Eskofot
A/S, Ballerup in connection with the Stock Purchase Agreement of June 28,
1993.
8. In the event a liability of the Seller should arise pursuant to Art. 4 and,
in the reasonable determination of the Seller there should be a recourse of
the Company against the former seller of the shares in ESCOFOT Contor which
are substantially comparable, then the Purchaser shall procure that the
Company initiates, without pre-
- 9 -
judice to the rights of the Purchaser, at the Seller's expense and in
accordance with the Seller's instructions, all reasonable legal actions
against the former seller in order to reduce the damages of the Purchaser.
Exhibit III to
Deed 1-1562/ 1994 of
Notary Wolfsteiner
in Munich.
SHARE PURCHASE AGREEMENT/STR
----------------------------
between
IMM Office Systems Holding GmbH
ArnulfstraBe 27
80335 Munchen
(hereinafter referred to as the "Seller")
and
AOP, Inc.
Silverside Carr Executive Center
501 Silverside Road
Wilmington DE 19809
(hereinafter referred to as the "Purchaser")
WHEREAS
-------
The Seller is a shareholder of IMM Office Systems France S.A., a French stock
corporation which is registered with the commercial register of Paris under
the registration no. B 393 20 3609 and has its main business establishment at
Michel Labrousse, Parc Technologique de BASSO CAMBO, Toulouse, France
(hereinafter referred to as the "Company").
The registered share capital of the Company (hereinafter referred to as the
"Stated Capital") is FF 250,000.00. The
- 2 -
Stated Capital consists of 2,500 shares with a nominal value of FF 100 each.
2494 shares are being held by the Seller, while the remaining Stated Capital
is being held by the following persons:
- Robert Collongues 1 share of FF 100
- Hans Albrecht 1 share of FF 100
- Hans-Ulrich Bendner 1 share of FF 100
- Christian Franckenstein 1 share of FF 100
- Frank Tofflinger 1 share of FF 100
- Petra Wibbe 1 share of FF 100
The share capital has been increased to FF 8,400,000 by conversion of a
shareholder loan granted by the Seller to the Company of FF 8,150,000 into
81,500 shares with a nominal value of FF 100 each. Such capital increase has
not yet been registered with the local extrait K-bis; however, the new shares
have been validly created in accordance with all applicable provisions of
French corporate law.
The new shares have all been allotted to the Seller. Consequently, the Seller
is the owner of 83,994 shares of FF 100 each (hereinafter being referred to as
the "Shares"). The Shares have been fully paid up.
The Company, in turn, is a shareholder of S.T.R. REPROGRAPHIE S.A., a French
stock corporation registered with the Commercial Register of Toulouse under
registration no. B 303 322 317 who has its main business establishment at 15,
rue Michel Labrousse, Parc Technologique de BASSO CAMBO, Toulouse (hereinafter
referred to as "STR"). STR has a share capital of 6,846 shares with a nominal
value of FF 800 each, i.e. FF 5,476,800 which is fully paid up.
- 3 -
The Company holds a share capital of 6,810 shares with a nominal value of FF
800 each, i.e. FF 5,448,000 in STR (hereinafter referred to as the "STR
Shares").
The remaining shares are being held either by the Company or as follows on
behalf of the Company:
- Robert Collongues 1 share of FF 800
- Seller 1 share of FF 800
- Frank Tofflinger 1 share of FF 800
- Petra Wibbe 1 share of FF 800
- Christian Franckenstein 1 share of FF 800
- Hans Albrecht 1 share of FF 800,
and, on his own behalf: Joel Guillo 30 shares of FF 800 each.
Mr. Guillo has offered the 30 shares in STR held by him for sale and
assignment to the Company. The Company is committed to buy such shares at FF
90,000.
The Seller is interested in divesting itself of the Shares. The Purchaser is
interested in purchasing the Shares.
The parties therefore agree as follows:
ARTICLE 1
Sale and Assignment of Shares, Right to Profits, Effective
----------------------------------------------------------
Date
----
1. Upon the terms and conditions of this Agreement the Seller herewith sells
to the Purchaser the Shares including all ancillary rights and assigns
them to the Purchaser. The Purchaser accepts such sale and assignment.
2. The assignment of the Shares is subject to the occurrence of the following
conditions precedent:
- 4 -
2.1 Receipt of the Purchase Price pursuant to Article 2.
The Seller shall acknowledge in writing the receipt of the Purchase
Price without undue delay.
A copy of this receipt shall be sent to the notary for attachment to
this deed.
3. Irrespective whether the assignment of the Shares herewith agreed becomes
effective ad rem (dinglich) "Effective Date" within the meaning of this
------ --------
Agreement shall be the date of the Closing.
4. The profits of the current fiscal year as well as the profits of previous
fiscal years which have not been distributed to the shareholders (i.e.
profits carried forward and profits of previous fiscal years with respect to
which no resolution on the appropriation of results (Erqebnisverwendunq) has
------------------
been passed) shall be exclusively for the account of the Purchaser. The
Seller has not caused any dividends, whether openly or concealed, for the
business years 1993 and 1994 save for a one-time dividend of FF 1.5 million.
ARTICLE 2
Purchase Price, Further Undertakings of Purchaser
-------------------------------------------------
1. The aggregate purchase price for the Shares (hereinafter referred to as the
"Purchase Price") is DM 9,000,000 (in words: Deutsche Mark nine million).
2. The Purchase Price shall be paid by the Purchaser by certified cheque
including also Banque-cheque).
3. The from time to time outstanding portion of the Purchase Price shall, from
the due date until payment, bear in-
- 5 -
terest at a rate which equals FIBOR for 3-months-deposits quoted on the
Effective Date plus 25 basis points.
ARTICLE 3
Seller's Warranties
-------------------
The Seller warrants to the Purchaser in the form of an independent promise of
guarantee that the following statements are true and accurate as of the
Closing:
1. The statements in the whereas-clause of this Agreement with respect to the
Seller and the Company and its subsidiary are complete and correct.
2. The Company and STR are stock corporations with limited liability duly
organized under the laws of the Republic of France and validly existing in
accordance with the filings with the Commercial Register of Paris and
Toulouse, respectively. Save for the resolution increasing the share capital
of the Company to FF 8,400,000, and a further resolution moving the seat of
the Company to Toulouse there are no shareholder resolutions amending the
Articles of Association of the Company which have not yet been registered
with the commercial register nor are there any with the seller or
subsidiaries other than the Company or STR side agreements with the Seller or
subsidiaries other than the Company or STR relating to the constitution and
organisation of the Company or STR.
3. The Seller is the legal and beneficial owner of the Shares which are free of
any encumbrances or any other rights for the benefit of third parties. The
Seller has the right and the power to freely dispose of the Shares without
the consent of any third party. Such disposal would not violate the right of
any third party. Rights of BNP, if any, against the disposal shall not be
covered by this Art. 3.3.
- 6 -
4. The Company is the legal and beneficial owner of the STR Shares which are
free and clear of any encumbrances or any other rights of third parties.
Rights of BNP, if any, relating to a pledge over the STR-Shares shall not
be covered by this Art. 3.4.
5. After December 31, 1993, the Company and STR have been operated in the
ordinary course of business; in particular, no distributions of profits
(including hidden distributions) have occurred for the time period after
December 31, 1993 save for a one-time dividend from the Company to the
Seller of FF 1.5 million and a one-time dividend of STR to the Company and
to the minority shareholders of FF 3.1 million; within this framework the
Company and STR have complied with all material provisions of the law.
ARTICLE 4
Legal Consequences
------------------
1. If one or several of the statements for which Seller has guaranteed
pursuant to Article 3 of this Agreement should turn out not to be accurate,
then the Purchaser shall have the right to demand that the Seller creates
within 60 days a situation which would exist were such statements correct.
If Seller within such period of time does not create the situation which is
in accordance with this Agreement the Purchaser shall be entitled to
monetary damages.
2. With respect to the warranty of Art. 3.5 the Seller's liability pursuant to
Sect. 4.1 hereof is limited to the amount of the Purchase Price.
3. Expressly excluded are any rights of the Purchaser to exchange
(Wandlung) or reduction of Purchase Price (Minderung), damages for
-------- ---------
incorrect representation
- 7 -
(Schadensersatz wegen unrichtiger Zusicherung), culpa in contrahendo,
-------------------------------- ----------- -------- -----------
voidance of this Agreement because of the lack of substantial qualities
(Anfechtung wegen des Fehlens einer wesentlichen Eigenschaft) or recision or
--------------------- ------------- ------------------------
adjustment of this Agreement because of the lack of substantial elements
(Wegfall der Geschaftsgrundlaqe).
------- ----------------------
4. Save for legal defects in title of the Company all warranty rights of
Purchaser pursuant to this Article 4 are subject to a limitation period of
three (3) years beginning with the date hereof, and shall be excluded unless
raised in court prior to the expiration of such period.
5. Any claims because of non-fulfillment of the warranties regarding taxes and
other public dues expire three (3) months after the final assessment of the
relevant dues if a warranty claim in that respect should arise under Article
3.5. There will be a netting of tax benefits and disadvantages of present,
past and future tax periods.
6. The Purchaser shall cause the Company to permit Seller or its advisers who
are bound by professional secrecy obligations to get involved in all tax
field audits of the Company for the period before the Effective Date. The
Purchaser shall procure that the Company informs the Seller about the
announcement or commencement of such field audit without any undue delay. If
no agreement can be reached about the results of any such field audit, then
Purchaser shall upon request of Seller cause the Company to initiate legal
proceedings against the respective tax assessment (Steuerbescheid) and, if
--------------
necessary, conduct a legal action in accordance with Seller's instructions.
The cost of any such legal action shall be borne by Seller.
- 8 -
ARTICLE 5
Miscellaneous
-------------
1. The Purchaser undertakes to change the name of the Company so as to delete
the term "IMM".
2. The Seller undertakes to provide the appropriate ordre de mouvement to
transfer the Shares; it shall further procure that the remaining shares in
the Company and the shares in STR which are not STR Shares (excluding,
however, the shares held by Mr. Collongues and Mr. Guillo) will be
transferred in due course to designates of the Purchaser at no costs.
Further, the Seller shall provide the Purchaser with a letter of consent by
which the Board of Directors of the Company consents to the Purchaser as a
new shareholder in accordance with the Articles of Association of the
Company.
3. The Seller shall submit to the Purchaser resignation letters of the
following persons/institutions resigning at no costs to the relevant
company from the following positions:
- the Seller (Conseil d'Administration of the Company)
- Dr. Frank Tofflinger (Conseil d'Administration of the Company, and
STR)
- Christian Franckenstein (Conseil d'Administration of the Company,
and of STR, Directeur General of the Company)
- Dr. Hans Albrecht (Conseil d'Administration of STR).
- 9 -
4. This Agreement, including this provision, may only be amended by written or,
if necessary, notarial instrument.
5. Should any provision of this Agreement be held wholly or in part invalid or
unenforceable, the validity or enforceability of the other parts shall not be
affected thereby. The invalid or unenforceable provision shall be deemed
replaced by such valid and enforceable provision which serves best the
economic interest of the contract parties originally pursued by the invalid
or unenforceable provision.
6. Any agreements made heretofore between the parties to this Agreement are
superseded by the conclusion of this Agreement.
7. The Seller shall assist the Purchaser in any possible manner, as the
Purchaser may reasonably request, in the pursuit of the Purchaser's rights or
the Company's rights, if any, against the former owners of the Shares,
pursuant or in connection with, the Contrat de Cession d'Actions of December
10, 1993.
8. In the event a liability of the Seller should arise pursuant to Art. 4 and,
in the reasonable determination of the Seller there should be recourse of the
Company against the former seller of the shares in STR which are
substantially comparable, then the Purchaser shall procure that the Company
initiates, without prejudice to the rights of the Purchaser, at the Seller's
expense and in accordance with the Seller's instructions, all reasonable
legal actions against the former seller in order to reduce the damages of the
Purchaser.
APPROVAL LETTER
---------------
To: The German Shareholders (as defined in the following notarial deed)
via
Notary Dr. Wolfsteiner,
Munich
The undersigned Dr. Markus Fisseler, attorney-at-law in Frankfurt am Main,
herewith takes notice of notarial deed no. 1-1562, 1994 dated September 7,
1994, of notary public Dr. Hans Wolfsteiner, Munich, and acting on behalf of
Alco Companies (as defined in the notarial deed) pursuant to the powers of
attorney which have already been submitted to the notary, hereby approves all
acts made on behalf of the Alco Companies.
New York, the 19th September, 1994
/s/ Dr. Markus Fisseler
- ---------------------------
Dr. Markus Fisseler
Lon M. Singer
Notary Public, State of New York
No. 31-4994728
Qualified in New York County
Commission Expires July 29, 1995
Personally subscribed to before me this 19th day
of September, 1994 by Dr. Markus Fisseler who
personally came before me.
/s/ Lon M. Singer
---------------------------------
Lon M. Singer, Notary Public
APPROVAL LETTER
---------------
To: The Alco Companies (as defined in the following notarial deeds)
via
Notary Dr . Wolfsteiner,
Munich
The undersigned Dr. Petra Wibbe, attorney-at-law in Munich, herewith takes
notice of notarial deed no. 1-1562, 1994 dated September 7, 1994, of notary
public Dr. Hans Wolfsteiner, Munich, and acting on behalf of German
Shareholders (as defined in the notarial deed) pursuant to the powers of
attorney which have already been submitted to the notary, hereby approves all
acts made on behalf of the German Shareholders.
New York, the September 19, 1994
------------
/s/ Dr. Petra Wibbe
- --------------------------------
Dr. Petra Wibbe
Lon M. Singer
Notary Public, State of New York
No. 31-4994728
Qualified in New York County
Commission Expires July 29, 1995
Personally subscribed to before me this 19th day
of September, 1994 by Dr. Petra Wibbe who
personally came before me.
/s/ Lon M. Singer
---------------------------------
Lon M. Singer, Notary Public
APPROVAL LETTER
---------------
To: The Alco Companies (as defined in the following notarial deeds)
via
Notary Dr. Wolfsteiner,
Munich
The undersigned Dr. Petra Wibbe, attorney-at-law in Munich, herewith takes
notice of notarial deed no. 1-1562, 1994 dated September 7, 1994, of notary
public Dr. Hans Wolfsteiner, Munich, and acting on behalf of German
Shareholders (as defined in the notarial deed) pursuant to the powers of
attorney which have already been submitted to the notary, hereby approves all
acts made on behalf of the German Shareholders.
New York, the September 19, 1994
----------------
/s/ Dr. Petra Wibbe
- ------------------------
Dr. Petra Wibbe
Lon M. Singer
Notary Public, State of New York
No. 31-4994728
Qualified in New York County
Commission Expires July 29, 1995
Personally subscribed to before me this 19th day
of September, 1994 by Dr. Petra Wibbe who
personally came before me.
/s/ Lon M. Singer
---------------------------------
Lon M. Singer, Notary Public
APPROVAL LETTER
---------------
To: The German Shareholders (as defined in the following notarial deed)
via
Notary Dr. Wolfsteiner,
Munich
The undersigned Dr. Markus Fisseler, attorney-at-law in Frankfurt am Main,
herewith takes notice of notarial deed no. 1-1562, 1994 dated September 7,
1994, of notary public Dr. Hans Wolfsteiner, Munich, and acting on behalf of
Alco Companies (as defined in the notarial deed) pursuant to the powers of
attorney which have already been submitted to the notary, hereby approves all
acts made on behalf of the Alco Companies.
New York, the 19th September, 1994
/s/ Dr. Markus Fisseler
- -------------------------
Dr. Markus Fisseler
Lon M. Singer
Notary Public, State of New York
No. 31-4994728
Qualified in New York County
Commission Expires July 29, 1995
Personally subscribed to before me this 19th day
of September, 1994 by Dr. Markus Fisseler who
personally came before me.
/s/ Lon M. Singer
---------------------------------
Lon M. Singer, Notary Public
VOLLMACHT
Der/die Unterzelchnele
bevollmachtigl hiermit jeaen der loicenden Vollmachtnehmer
Dr. Petra Wibbe, Munchen.
Reinhard Pollath, Berlin.
den Vollmachtgeber zu vertreten.
1. beim AbschlurB von und anderen Handlungen im Zusammenhang mit allen
Vertragen mit oder Erklarungen gegenuber Alco Standard Corporation und
deren verbundenen Unternehmen und Tochtergesellschaften einschlieBlich
Offlice Products - Office Group Industrie Beteiligungs GmbH. Office
Products. Inc., Office Group, Inc. und AOP, Inc. (alle zusammen und je
einzeln "Alco") im Zusammenhang mit der VerauBerung durch Alco von
einigen oder allen Anteilen an der Office Products - Office Group
Industrie Beteiligungs GmbH sowie der VerautBerung durch die IMM
Office Systems Holding GmbH von einigen oder allen Anteilen an der IMM
Denmark A/S und der IMM Office Systems France S.A. einschlieBlich aller
etwaigen anderen erforderlichen oder zweckmaBigen Vertrage Erklarungen
und MaBnahmen im Zusammenhang damit,
2. bei der Ausubung aller Slimm- und anderer Gesellschafterrechte jeder Art
des Vollmachtgebers an der IMM Burolechnik Handel GmbH und oder der Office
Products-Office Group Industrie Beteiligungs GmbH (einschlieBlich Anderung
von Gesellschattsvertragen. Bestellung und Abberufung von Geschattsfuhrern
und AbschluB. Anderung und Beendigung von Anstellungsvertragen mit diesen).
3. bei allen Anmeldungen zur Registrierung beim Handelsregister,
Anzeigen/Anmeldungen beim Bundeskartellamt, Erklarungen gegenuber sonstigen
staatlichen Stellen und anderen und
4. bei der Entgegennahme von Erklarungen und Unterlagen und beim
treuhanderischen Empfang von Geld im Zusammenhang damit.
Diese Vollmacht ist so umtassend wie rechtlich moglich auszulegen um die
Erreichung der Zwecke der oben genannten Geschafte zu erleichtern oder zu
bewirken.
Jeder Vollmachtnehmer kann den Vollmachtgeber in den vorstehenden Geschaften
vertreten undgleichzeitig in demselben Geschaft im eigenen Namen und auf
eigene Rechnung oder im Namen und auf Rechnung anderer Vollmachtgeber handeln
(Befreiung von (S) 181 BGB). Der Vollmachtnehmer kann seine Befugnisse unter
dieser Vollmacht auf einen oder mehrere andere als Unterbevollmachtigte
ubertragen.
- ---------------, den ------------- 1994
/s/ [SIGNITURE TO COME]^^^^^^^^^^^^
- ------------------------------------
Vollmachtgeber
(notarielle Beglaubigung)