Document/Exhibit Description Pages Size
1: 10-Q Quarterly Report for Period Ended 04/03/04 HTML 339K
2: EX-10.1 Purchase and Transfer Agreement 57 164K
3: EX-31.1 Certification of Principal Executive Officer 2± 9K
4: EX-31.2 Certification of Principal Financial Officer 2± 9K
5: EX-32.1 SEC. 906 Certification by Chief Executive Officer 1 7K
6: EX-32.2 SEC. 906 Certification by Chief Financial Officer 1 7K
EXHIBIT 10.1
NUMMER 323 DER URKUNDENROLLE FUR 2004
[LOGO]
RECORDED
in Frankfurt am Main, this 4th / 5th day of April, 2004
The following parties under 1., 2. and 3. (hereinafter the, Deponents")
today appeared before me, the undersigned Notary
DR. GERHARD PILGER
Practising in the district of the High Regional Court of Frankfurt am Main
who, at the request of the deponents, rendered himself to the offices of Mayer,
Brown, Rowe & Maw LLP, Bockenheimer Landstr. 98-100, 60323 Frankfurt am Main
II
1. Mr Dipl.-Kfm. Franz Margraf, born 8 October 1947, of: Luisenstr. 11, 58332
Schwelm,
- acting not in his own name but in his capacity as managing director
(being exempted from the restrictions of Section 181 of the German Civil
Code ("BGB") and authorised to act as sole representative) of
a) GHW Verwaltungs GmbH
which has its registered office in Wuppertal at Am Kraftwerk 13,
42369 Wuppertal and is recorded in the commercial register held at
the Local Court of Wuppertal under HR B 10754,
- hereinafter referred to as "GHW VERWALTUNG" -
- which entity is acting both on its own behalf and as the general
partner (being authorised to act as sole representative) of
b) GHW Gebaudemanagement GmbH & Co. KG
which has its registered office in Wuppertal at Am Kraftwerk 13,
42369 Wuppertal and is recorded in the commercial register held at
the Local Court of Wuppertal under HR A 17416
-hereinafter referred to as the "GHW GEBAUDEMANAGEMENT" -.
2. a) Mr. Jorg Swoboda,
residing at Kollwitzstra(beta)e 17,
60488 Frankfurt am Main
- acting not in his own name and on his own behalf, but for Ms. Ruth
Matzler, residing at Kreuzberg-Promenade 39, A-5026 Salzburg, on the
basis of (i) the notarially certified power of attorney dated April
3, 2004 and (ii) the notarially certified sub-power of attorney
dated April 4, 2004 certified copies of which are attached hereto in
Annex Set N.
b) Mr. Dirk Lange,
residing at Faunastra(beta)e 27,
40239 Dusseldorf,
- acting not in his own name and on his own behalf, but for Mr .
Klaus Hartmann, residing at Im Leimenacker 3, 64658 Furth-Steinbach,
on the basis of the notarially certified power of attorney dated
April 4, 2004 certified copies of which are attached hereto in Annex
Set N.
- the persons represented by the deponents under 2. a) and 2. b)
hereinafter
collectively referred to as the "SELLERS" -.
III
3. Mr. John A. Faylor,
with business address at
Bockenheimer Landstra(beta)e 98-100,
60323 Frankfurt am Main
not acting in his own name, but on the basis of a notarially
certified power of attorney of Mr. Paul R. Jefferson,
residing at 22, rue Guynemer,
78600 Maisons-Laffitte, France,
- given in his capacitiy as managing director (being exempted
from the restrictions of Section 181 BGB and authorised to act
as sole representative) - for
a) Lear Corporation Holding GmbH
which has its registered office in Munich and is recorded in
the Commercial Register held at the Local Court of Munich
under HR B 151862,
- hereinafter referred to as "PURCHASER" -,
b) Lear Corporation Verwaltungs GmbH
which has its registered office in Ginsheim-Gustavsburg at Vor
der Schanz 1-5, 65461 Ginsheim-Gustavsburg and is recorded in
the Commercial Register held at the Local Court of Darmstadt
under HR B 53571,
- hereinafter referred to as "LEAR VERWALTUNG" -,
-the Sellers, the Purchaser,
GHW Verwaltung and Lear Verwaltung
shall hereinafter be referred to individually
as a "PARTY" or collectively as the "PARTIES"-.
c) Lear Corporation Verwaltungs GmbH,
acting in its capacity as the only general partner of
Lear Corporation GmbH & Co. KG
IV
which has its registered office in Ginsheim-Gustavsburg at Vor der
Schanz 1-5, 65461 Ginsheim-Gustavsburg and is recorded in the
Commercial Register held at the Local Court of Darmstadt under HR A
53091
- hereinafter referred to as the "GUARANTOR" -,
also appearing with Mr. John A. Faylor were Mr. Paul R. Jefferson and Mr.
Thomas Saeli. These persons stated that they did not wish to render a
legal declaration, but merely wished to evidence their presence at the
recording of this notarial deed.
The Deponents proved their identity by producing valid photo identification:
- the Deponent under 1. submitted his valid German passport No. 9112086104;
- the Deponent under 2. a) submitted his valid German passport No. 4008106021;
- the Deponent under 2. b) submitted his valid German identity card No.
5004947597;
- the Deponent under 3. is personally known to the notary;
Mr. Paul R. Jefferson is personally known to the notary as well. Mr. Thomas
Saeli presented his US passport. Both are not considered to be Deponents in the
following.
The following documents were produced in order to verify the respective Parties'
powers of representation:
- the Deponent under 1. submitted certified commercial register extracts for GHW
Verwaltungs GmbH and GHW Gebaudemanagement GmbH & Co. KG; and
- the Deponent under 2 a). submitted a notarially certified power of attorney
and a notarially certified sub-power of attorney;
- the Deponent under 2 b) submitted a notarially certified power of attorney;
- the Deponent under 3. submitted a notarially certified power of attorney and
certified commercial register extracts for Lear Corporation Beteiligungs GmbH,
Lear Corporation Verwaltungs GmbH, Lear Corporation GmbH & Co. KG, a simple
copy of the note of entry regarding the registration of Lear Corporation
Holding GmbH - a certified excerpt from the commercial register will be
provided to the notary as soon
V
as available - and a notarially certified copy of the shareholder's resolution
of Lear Corporation Holding GmbH of March 31, 2004 in which Paul Jefferson was
appointed managing director.
A certified copy of each of the aforementioned documents verifying powers of
representation are annexed to this instrument as Annex Set N.
This instrument is drafted in English and will be read out in English at the
request of the Deponents. The notary has ascertained to his satisfaction that
the Deponents have, and the notary confirms that he himself has, adequate
command of the English language.
The Deponents, acting in the capacities described above and having given an
answer in the negative to the question of whether there had been any prior
involvement (Vorbefassung) within the meaning of Section 3 (1) No. 7 of the
German Notarisation Act ("BeurkG"), requested notarisation of the following
PURCHASE AND
TRANSFER AGREEMENT RELATING TO ALL OF THE
INTERESTS IN
GHW GEBAUDEMANAGEMENT GMBH & CO. KG:
VI
TABLE OF CONTENTS
[Download Table]
PAGE
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Section 1 BACKGROUND....................................................... 2
Section 2 SALE AND PURCHASE ............................................... 3
Section 3 PURCHASE PRICES, DUE DATE ....................................... 4
Section 4 COMPLETION ...................................................... 6
Section 5 SELLERS' WARRANTIES ............................................. 8
Section 6 LEGAL CONSEQUENCES OF A BREACH OF WARRANTY ...................... 24
Section 7 TIME LIMITATIONS ................................................ 27
Section 8 WAIVER OF CLAIMS ................................................ 28
Section 9 RIGHTS TO NAMES ................................................. 30
Section 10 SELLERS' PARTICIPATION IN LIABILITY DISPUTES ................... 31
Section 11 DUTIES PRIOR TO CLOSING ........................................ 32
Section 12 NON-COMPETE COVENANT ........................................... 34
Section 13 CONDITIONS PRECEDENT ........................................... 35
Section 14 MERGER CONTROL ................................................. 38
Section 15 CONFIDENTIALITY, PRESS RELEASES AND OTHER DISCLOSURES .......... 40
Section 16 JOINT LIABILITY OF GUARANTOR, GUARANTEE ........................ 41
Section 17 CONSENT REQUIREMENTS ........................................... 41
Section 18 WRITING REQUIREMENT ............................................ 42
Section 19 COSTS AND TAXES ................................................ 42
Section 20 CHOICE OF LAW, JUDICIAL FORUM .................................. 42
Section 21 MISCELLANEOUS .................................................. 43
Section 22 INSTRUCTIONS AND ADVICE OF THE NOTARY .......................... 45
VII
SCHEDULE OF ANNEXES
Annex Set N Documents evidencing powers of representation
Annex P.1. Associated Companies
Annex 1.3 Appraisal (Sachgrundungsbericht)
Annex 1.6 Shareholder loans/Assignment/Acknowledgment of debt
Annex 3.6 Escrow Agreement
Annex 4.2 Completion Memorandum
Annex 4.2 (a) Draft notification letter GHW Gebaudemanagement
Annex 4.2 (b) Draft notification letter Company
Annex 5.1.1 (a) Security Pool Agreement
Annex 5.1.1 (b) Third party rights relating to shares in Associated
Companies
Annex 5.1.5 List of silent participations, participation loans, or
similar obligations
Annex 5.2.2 (a) Disposition of fixed assets
Annex 5.2.2 (b) List of collateral and other security
Annex 5.2.4 List of bank accounts and authorised signatories
Annex 5.2.5 (a) List of debt and respective agreements with financial
institutions
Annex 5.2.5 (b) List of banks, bank credit lines, amounts drawn
down thereunder and statements of account
Annex 5.2.7 List of factoring agreements
Annex 5.2.8 Management accounts
VIII
Annex 5.3.1 List of agreements with the Seller or closely-related
persons
Annex 5.3.2 (a) List of equity joint venture and written cooperation
agreements
Annex 5.3.2 (b) List of substantial oral cooperation agreements
Annex 5.3.2 (c) List of agreements containing change of control
clauses
Annex 5.3.3 List of insurance policies
Annex 5.3.4 List of key contracts
Annex 5.3.4 d) List of licensed software
Annex 5.4.1 List of industrial property rights
Annex 5.4.2 List of public subsidies and grants
Annex 5.4.3 List of legal disputes
Annex 5.4.5 List of transactions outside the ordinary course of
business
Annex 5.4.6 (a) List of transactions involving assets outside the
ordinary course of business
Annex 5.4.6 (b) Capital Expenditure
Annex 5.4.8 Product Liability Claims
Annex 5.4.9 List of real property
Annex 5.4.10 (a) List of materially adverse circumstances
Annex 5.4.10 (b) Material customer relationships
Annex 5.4.11 List of Employees
Annex 5.6.7 Partnership Agreement GHW Gebaudemanagement
Annex 5.6.9 Draft annual financial statements GHW
Gebaudemanagement 2003
Annex 5.6.12 List of bank accounts GHW Gebaudemanagement
IX
Annex 5.6.13 Distributions/Payments GHW Gebaudemanagement
Annex 5.6.16 Liabilities GHW Gebaudemanagement
Annex 5.6.17 List of contracts GHW Gebaudemanagement and
List of intra-group contracts Gebaudemanagement
Annex 5.6.22 List of employment agreements GHW
Gebaudemanagement
Annex 11.1 List of sensitive information
Annex 13.1 (b) (i) Draft resolution on change of legal form
Annex 13.1 (b) (ii) Draft share transfer agreement
Annex 13.1 (b) (iii) Draft revised shareholders' list
Annex 13.1 (b) (v) Draft notification letter regarding change of legal
form
Annex Set 17.2 Minutes of the shareholders' meeting and the
resolution of the supervisory board
Annex 21.7 Confidentiality agreement
X
LIST OF DEFINITIONS
Seller Recitals
Purchaser Recitals
Party Recitals
Parties Recitals
Guarantor Recitals
Associated Companies Preamble
Company Section 1.1
Limited Partnership Section 1.2
Receivables Section 1.6
Closing Date Section 2.5
Closing Section 2.5
Interests Section 2.7
Purchase Price Section 3.1
Escrow Amount Section 3.6
Escrow Agreement Section 3.6
Completion Date Section 4
Completion Section 4
This Day Section 5 sentence 2
Pre-Existing-Contamination Section 5.4.4.
Taxes Section 5.4.7
Refusal Letter Section 6.1
- 1 -
PREAMBLE
1. The Sellers are the only limited partners in GHW Gebaudemanagement with a
limited partner's capital interest (Haft- und Pflichteinlage) of EUR
5,000,000.00 each. GHW Verwaltung is GHW Gebaudemanagement's sole general
partner without any capital interest.
2. GHW Gebaudemanagement is the sole shareholder of GHW Grote & Hartmann
GmbH, Wuppertal, and holds no other participations in other companies.
3. The Purchaser intends to acquire the Sellers' interests and GHW
Verwaltung's interest in GHW Gebaudemanagement and thus indirectly acquire
GHW Gebaudemanagment's interests in GHW Grote & Hartmann GmbH as well as
GHW Grote & Hartmann GmbH's direct and indirect interests in the other
entities described in Annex P.1
- the other entities are hereinafter
also referred to as the "ASSOCIATED COMPANIES" -.
4. Prior to the effectiveness of the aforementioned acquisition of all of the
interests in GHW Gebaudemanagement by the Purchaser, GHW Grote & Hartmann
GmbH's legal form shall be converted from a GmbH to a GmbH & Co. KG with
GHW Verwaltung becoming the sole general partner of the future GHW Grote &
Hartmann GmbH & Co. KG and with GHW Gebaudemanagement becoming the sole
limited partner in the future GHW Grote & Hartmann GmbH & Co. KG as
described in more detail in Section 13 1. b).
5. GHW Gebaudemanagement also holds claims against GHW Grote & Hartmann GmbH,
which stem from shareholder loans and which the Purchaser also intends to
indirectly acquire via its acquisition of the interests in GHW
Gebaudemanagement.
6. The Guarantor is a German group company of the Purchaser.
Now therefore, the Parties agree as follows:
- 2 -
SECTION 1
BACKGROUND
1.1 GHW Gebaudemanagement holds as sole shareholder a share with a nominal
value of EUR 30,457,600 in GHW Grote & Hartmann GmbH, which is recorded in
the commercial register held at the Local Court of Wuppertal under HR B
12541, has a nominal capital of EUR 32,000,000, and has its registered
office in Wuppertal,
- hereinafter also referred to as the "COMPANY", it being understood
that this term relates to the company before and after the
conversion addressed in No. 4 of the Preamble -.
1.2 The Company was originally founded as Grote & Hartmann GmbH & Co. KG with
its registered office in Wuppertal
- hereinafter referred to as the "LIMITED PARTNERSHIP" -
which was reorganised in accordance with Sections 190 et seq. of the
German Reorganisation Act ("UmwG") in accordance with a resolution dated
16 July 2003, which was notarised by Stefanie Steinkamp, notary,
practising in Wuppertal (instrument no. 974/2003), and recorded in the
commercial register held at the Local Court of Wuppertal on 28 August
2003. The version of the Company's articles of association contained in
the aforementioned instrument remains unchanged.
1.3 The Company's nominal capital was fully paid in by virtue of the change in
legal form described in Section 1.2. In this respect, after deducting
debts, the remaining assets of the Limited Partnership were, on the basis
of an appraisal (Sachgrundungsbericht) attached hereto as Annex 1.3,
determined to be equivalent to the amount of the Company's nominal
capital, and the shares held by the partners of the Limited Partnership in
the Limited Partnership's assets were equivalent to the initial
contributions created at that time (EUR 30,457,600 and EUR 1,542,400).
1.4 In the course of changing the legal form as described in Section 1.2, the
share referred to in Section 1.1 with a nominal value of EUR 30,457,600
was granted to GHW Gebaudemanagement, and a share with a nominal value of
EUR 1,542,400 was granted to Hartmann Metallwaren GmbH, with registered
office in Wuppertal. Hartmann Metallwaren GmbH was then merged with the
Company pursuant to a merger agreement and shareholders' resolutions dated
26 July 2003, which were notarised by Stefanie Steinkamp, notary,
practising in Wuppertal (instrument no. 976/2003 and instrument no.
977/2003), as well as by virtue of registration in the relevant commercial
- 3 -
register on 10 October 2003, and the Company thus acquired its own share
with a nominal value of EUR 1,542,400.
1.5 The sole managing director of the Company is Mr Franz Margraf, an MBA
graduate (Dipl.-Kfm.) and the 1st Deponent.
1.6 Today GHW Gebaudemanagement has receivables against the Company, which are
based on the loan agreements contained in Annex 1.6 ("Receivables"). The
Sellers transferred such Receivables to the GHW Gebaudemanagement pursuant
to the agreements contained in Annex 1.6. As of This Day, the Receivables
total, including accrued interest, EUR 3,455,084.80. The Company has
issued a corresponding acknowledgment of debt, which is contained in Annex
1.6.
SECTION 2
SALE AND PURCHASE
2.1 The Sellers hereby sell, and agree to transfer as provided for in Section
4, to the Purchaser all of their limited partners' interests as described
in No. 1 of the Preamble, together with all partners' accounts including
loan accounts, owned by the Sellers. The Purchaser hereby accepts the sale
and the subsequent transfer of such interests as provided for in Section
4.
2.2 [deleted]
2.3 GHW Verwaltung hereby agrees to transfer as provided for in Section 4, to
Lear Verwaltung its general partner's interest (Komplementarstellung) in
GHW Gebaudemanagement as described in No. 1 of the Preamble. Lear
Verwaltung hereby accepts the transfer of such interest as provided for in
Section 4.
2.4 GHW Verwaltung hereby agrees to transfer as provided for in Section 4, to
Lear Verwaltung its future general partner's interest in the future GHW
Grote & Hartmann GmbH & Co. KG (which will come into existence once the
Company has changed its legal form to a GmbH & Co. KG as provided for in
Section 13 1. b)). Lear Verwaltung hereby accepts the transfer of such
interest as provided for in Section 4.
2.5 The transfers of the Interests take effect contractually as between the
Parties as of 24:00 hours on the date on which the last of the conditions
for releasing the funds in the
- 4 -
trust account as mentioned in Section 3.4 (i) through (iv) have been met
(hereinafter the "CLOSING" or the "CLOSING DATE" (Wirksamkeit oder
Wirksamkeitstag)).
2.6 The Parties agree that the profit rights, including rights to withdrawals
attaching to the limited partners' interests being sold may be exercised
by the Purchaser as of the Closing Date, and such rights may also relate
to the current financial year and to financial years, which ended prior to
the Closing Date to the extent profit or drawing rights were not
exercised. This was taken into account in calculating the Purchase Price
under Section 3.1.
2.7 All of the limited partner's interests in GHW Gebaudemanagement, the
general partner's interest of GHW Verwaltung in GHW Gebaudemanagement and
the general partner's interest of GHW Verwaltung in the future [GHW Grote
& Hartmann GmbH & Co. KG] shall in this Agreement collectively be referred
to as the "INTERESTS".
SECTION 3
PURCHASE PRICES, DUE DATE
3.1 The purchase price to be paid to the Sellers for the Interests
-hereinafter referred to as the "PURCHASE PRICE" -
shall be
EUR 60,000,000
("sixty million Euros").
3.2 [deleted]
3.3 [deleted]
3.4 Except as otherwise provided in Section 3.6 hereof, within 10 banking days
(Frankfurt/Main) of the conditions precedent set forth in Section 13.1
being satisfied, the Purchaser must pay, in Euros, an amount of EUR
48,000,000, unconditionally, and clear of any fees and charges into the
following trust account held by the officiating notary:
- 5 -
Bank is to be chosen by the notary at his own discretion. Bank and Bank
Account are to be notified by the notary.
The officiating notary is hereby irrevocably instructed to immediately
release the funds including any interests accrued in this trust account to
the Sellers upon receipt of, submitted by either of the Sellers or the
Purchaser or obtained by the notary himself, the following certified
excerpts from the Commercial Register of the Local Court of Wuppertal
showing that
(i) the Purchaser is registered as the only limited partner of GHW
Gebaudemanagement and
(ii) Lear Verwaltung is registered as the only general partner of GHW
Gebaudemanagement and
(iii) Lear Verwaltung is registered as the only general partner of the
future [GHW Grote & Hartmann GmbH & Co. KG] (which will come into
existence once the Company has changed its legal form to a GmbH &
Co. KG as provided for in Section 13 1. b)) and
(iv) GHW Gebaudemanagement is the only limited partner of such future
[GHW Grote & Hartmann GmbH & Co. KG].
The released amounts shall be transferred via express wire transfer
(Blitzuberweisung) in equal portions to the accounts of the Sellers,
details of which shall be notified to the notary by the Sellers.
The costs of the trust account shall be shared equally between the
Purchaser on the one hand and the Sellers on the other hand.
If the registrations referred to in this Section 3.4 have not occurred
within four months following the date on which payment into the trust
account has been made, the provisions of Section 13.3 shall apply.
3.5 If the Purchase Price has not been credited to the trust account (Section
3.4) and the escrow account (Section 3.6) by the due dates as per Section
3.4 and Section 3.6, then the Purchaser must pay default interest on the
outstanding amount at a rate that is 6.0 percentage points higher than the
respective base interest rate under Section 247 BGB. The Sellers reserve
the right to demand compensation for any greater damage or to rescind this
Agreement.
- 6 -
The Purchase Price shall bear interest at a rate of 3 % per annum from the
date on which the last of the anti-trust approvals referred to in Section
13.1 a) is received until the date upon which the funds in the trust
account referred to in Section 3.4 are released to the Sellers pursuant to
the provisions in Section 3.4. The interest due shall be reduced by the
aggregate amount of interest accruing on the funds in the escrow account
in the period until the funds in the trust account are released and of
interest accruing on the funds in the trust account to the date of release
of the funds in the trust. The payment of such interest determined as
provided for in this paragraph shall be paid to the Sellers' accounts
specified in equal portions within 10 banking days (Frankfurt/Main) after
the release of the funds in the trust account.
3.6 Within 10 banking days (Frankfurt/Main) of the conditions precedent set
forth in Section 13.1 being satisfied, the Purchaser must deposit the
remaining amount of EUR 12,000,000 (the "ESCROW AMOUNT") in an
interest-bearing escrow account in the name of the Sellers to be held and
administered by Michael H. Spring, pursuant to the terms of the escrow
agreement (the "ESCROW AGREEMENT") contained in Annex 3.6 hereof. The
Escrow Amount shall serve as Purchaser's security for the observance of
Sellers' warranties as set forth in Section 5 hereof as provided for in
detail in the Escrow Agreement.
SECTION 4
COMPLETION
4.1 Subject to the occurrence of the conditions precedent that:
a) the conditions precedent set forth in Section 13.1 are satisfied;
and
b) the Purchase Price is paid into the trust and escrow accounts in
accordance with Section 3.4 and 3.6 above;
- the day on which payment of the Purchase Price occurs
shall be referred to as "COMPLETION" or "COMPLETION
DATE" (Vollzug oder Vollzugstag) -.
the Sellers hereby assign all of their limited partners' interests,
together with all partners' accounts including loan accounts, in GHW
Gebaudemanagement sold pursuant to Section 2.1, i.e. Ms Ruth Matzler
assigns her limited partner's interest in the amount of EUR 5,000,000
(Haft- und Pflichteinlage), together with all partner's accounts including
loan accounts, and Mr. Klaus Hartmann assigns his limited partner's
- 7 -
interest in the amount of EUR 5,000,000 (Haft- und Pflichteinlage),
together with all partner's accounts including loan accounts, to the
Purchaser and the Purchaser accepts such assignments, whereby such
assignments shall only become effective upon registration of the Purchaser
as successor in title to the Sellers' limited partners' interests in the
commercial register, and
GHW Verwaltung hereby assigns its general partner's interest in GHW
Gebaudemanagement to Lear Verwaltung and Lear Verwaltung accepts such
assignment, whereby such assignment shall only become effective upon
registration of the Purchaser as the new limited partner of GHW
Gebaudemanagement in the commercial register, and
GHW Verwaltung hereby assigns its future general partner's interest in the
future [GHW Grote & Hartmann GmbH & Co. KG] (which will come into
existence once the Company has changed its legal form to a GmbH & Co. KG
as provided for in Section 13 1. b)) to Lear Verwaltung and Lear
Verwaltung accepts such assignment, whereby such assignment shall only
become effective upon registration of the Purchaser as the new limited
partner of GHW Gebaudemanagement in the commercial register.
4.2 On the Completion Date, the Parties shall
(i) sign a completion memorandum in substantially the form as attached
as Annex 4.2 in which they confirm that the conditions precedent
contained in Section 13.1 have occurred, that the Purchase Price has
been paid as provided for in Section 3.4 and Section 3.6, and in
which they confirm and repeat the transfers of the Interests as
contained in Section 4.1; and
(ii) the Sellers, the Purchaser, GHW Verwaltung and Lear Verwaltung shall
sign before a notary a notification letter to the commercial
register in substantially the form as attached hereto in German as
Annex 4.2 (a) applying for registration of the changes of the
partners of GHW Gebaudemanagement;
and
(iii) Lear Verwaltung, GHW Verwaltung and GHW Gebaudemanagement shall sign
before a notary a notification letter to the commercial register in
substantially the form as attached hereto in German as Annex 4.2 (b)
applying for registration of the change of the general partner of
the future [GHW Grote & Hartmann GmbH & Co. KG],
- 8 -
and submit such notification letters to the commercial register
immediately. All of the Parties are obligated to provide all cooperation
as any other Party requests to bring about the registrations applied for
in these notification letters as soon as possible.
SECTION 5
SELLERS' WARRANTIES
The Sellers hereby furnish the Purchaser with warranties, which take the form of
an independent guarantee (selbststandiges Garantieversprechen) and in part are
based on both subjective and objective observations. Unless another point in
time is specifically indicated below, the warranties are based on the facts as
they exist on this day (i.e., the date on which the Parties sign this Agreement
in front of the notary ("THIS DAY")). The warranties made in Section 5.1 and
Section 5.5 and Section 5.6 and, for the avoidance of doubt, the warranties
specifically given as to This Day and/or the Closing Date below, however, relate
to This Day and the Closing Date.
5.1 Ownership relations:
5.1.1 GHW Gebaudemanagement owns the share in the Company and Company owns
the shares, either directly or indirectly, in the Associated
Companies. GHW Gebaudemanagement may freely sell or otherwise
dispose of the share in the Company. This share and, except as
provided for in Annex 5.1.1 (a) (Security Pool Agreement) and Annex
5.1.1 (b), the shares representing the ownership of the Associated
Companies are free and clear of any third party rights and are
specifically not subject to any rights of first refusal or purchase
options.
5.1.2 The statements made in the Preamble, Nos. 1 and 2, and in Section
1.1 through Section 1.5 are true and correct.
5.1.3 The Company's nominal capital has been fully paid in and has not
been repaid to the shareholders. The net worth of the Company on the
date of its reorganisation as a German limited liability company
was not less than EUR 32,000,000.
5.1.4 The Company's articles of association, in the version indicated in
the last sentence of Section 1.2 have not been amended, and no
resolutions to amend the Articles have been adopted.
- 9 -
5.1.5 The Company is not subject to any control agreement, profit transfer
agreement or other intra-group agreement, all within the meaning of
Sections 291 et seq. of the German Stock Corporation Act ("AKTG").
The Company has no silent participations, participating loans or, to
the Sellers' best knowledge, similar obligations, unless otherwise
specified in Annex 5.1.5.
5.1.6 Except for the transactions contemplated in this Agreement or
otherwise disclosed in this Agreement including its Annexes, neither
the share of GHW Gebaudemanagement in the Company nor the shares
held by the Company and by GHW Engineering GmbH in the Associated
Companies will be sold or transferred prior to the Closing Date nor
will obligations relating thereto be incurred. If the shares in GHW
Brazil Ltda. are transferred as a result of the call option
addressed in Annex 5.1.1 (b) being exercised, this shall not lead to
a violation of this Section 5.1.6. If the shares in Klingel Italiana
s.r.l. are transferred as a result of the preemptive right addressed
in Annex 5.1.1 (b) being exercised, this shall not lead to a
violation of this Section 5.1.6.
5.2 Financial condition:
5.2.1 When provided, the Company's and the Associated Companies' audited
annual financial statements and, if the law applicable to an
Associated Company does not require such Associated Company to have
the annual financial statements audited, the non-audited annual
financial statements, as per 31 December 2003 - subject to the
commentary in the auditor's report - have been prepared in
accordance with the generally accepted principles of accounting as
applicable to the respective annual financial statements (valuation
rules consistently applied) and to the Sellers' best knowledge,
these financial statements - subject to the statements in this
section 5.2.1 - present a true and fair reflection of the Company's
and the Associated Companies' net assets, financial position and
results of operation as at 31 December 2003.
For the purposes of this Section 5.2.1 and of the following Section
5.2.2, the term Associated Companies shall not include GHW Brazil
Ltda and Klingel Italiana s.r.l.
5.2.2 The fixed and current assets reported (i) as owned by the Company
and the Associated Companies or (ii) as to which the Company and the
Associated Companies have rights, in the Company's and the
Associated Companies' annual financial statements per 31 December
2003 were owned by the Company and the Associated Companies on that
date or the respective rights existed on the same date and there
have been no dispositions in the fixed assets
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between that date and the Closing Date except as disclosed in Annex
5.2.2 (a) and in Annex 5.3.4 under b), whereby only dispositions of
assets exceeding EUR 25,000 (purchase price if arms' length
transaction or actual value (Teilwert)) regarding a single asset
and dispositions of assets exceeding EUR 150,000 (purchase price if
arms' length transaction or actual value (Teilwert)) in the
aggregate are relevant (it being understood that a disposition of a
single asset already disclosed in such Annexes shall not be taken
into account in the determination of dispositions of assets in the
aggregate), and to the Sellers' best knowledge, were not encumbered
by any third party rights, except for (i) the security interests
customarily used in the ordinary course of business to secure the
claims of banks, suppliers and other creditors and (ii) the
collateral listed in Annex 5.2.2 (b) and inuring to the benefit of
the financial institutions listed therein, and to the Sellers' best
knowledge, include any and all assets as of 31 December 2003 that
are recorded on the balance sheet of the Company and the Associated
Companies, as the case may be, and that are necessary to operate the
business of the Company and the Associated Companies as at the
Closing Date. "Fixed assets" shall, for the purpose of this Section
5.2.2, mean such assets which are needed for the manufacturing of
products for sale or lease to customers.
5.2.3 The statements including the respective best knowledge
qualifications made under Section 5.2.1 and Section 5.2.2 also apply
to the Company's consolidated financial statements per 31 December
2003.
5.2.4 To the Sellers' best knowledge, Annex 5.2.4 represents a true and
complete listing of all bank accounts held by the Company and the
Associated Companies and of the relevant authorised signatories.
5.2.5 All debt to be discharged by the Purchaser owed to the Pool Banks
and secured by Security Pool Agreement shall not exceed the amount
of EUR 68,332,000 as of February 29, 2004 and shall not exceed the
amount of EUR 70,332,000 at the Closing Date, it being understood
that the amount by which the debt owed at the Closing Date exceeds
the aforementioned maximum amount as per This Day shall only be
caused by draw-downs in the ordinary course of business. As of
This Day and the Closing Date, there is no other debt due to
financial institutions (for the avoidance of doubt, not including
sale and lease back arrangements and capital leases
(Finanzierungsleasing)) other than due under Security Pool
Agreement or under the agreements as listed in Annex 5.2.5 (a). The
debt as described in Annex 5.2.5 (a) shall not exceed the amount of
EUR 6,463,000 as of February 29, 2004 and the
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amount of EUR 6,463,000 at the Closing Date, it being understood
that the amount by which the debt owed at the Closing Date exceeds
the aforementioned maximum amount as per This Day shall only be
caused by draw-downs in the ordinary course of business. At the
Closing Date, there are no encumbrances on the assets of the Company
or the Associated Companies other than under the Security Pool
Agreement or mentioned in Annex 5.2.2.(b). A list of banks as of
This Day, a list of bank credit lines as of This Day and the amounts
drawn down thereunder as at the day two days prior to This Day and
statements of account as at the day two days prior to This Day are
attached as Annex 5.2.5(b).
It is understood that the above mentioned debts shall be amounts
owing to banks minus cash as defined in Section 266 para. 2 B IV
German Commercial Code (HGB).
5.2.6 Except as in accordance with the contracts listed in Annex 5.3.1,
Company has made no distributions to GHW Gebaudemanagement and to
the holders of its partnership interests (Komplementar and
Kommanditisten) in cash or in kind or undertaken to do so, whether
disclosed or undisclosed, since 31 December 2003 and will not make
such distributions prior to the Closing Date.
5.2.7 Except as listed in Annex 5.2.7, none of the receivables of the
Company and the Associated Companies are subject to factoring
agreements with third parties.
5.2.8 The Company's and the Associated Companies' monthly management
accounts as attached in Annex 5.2.8 have been prepared in accordance
with the company accounting guidelines for such monthly management
accounts, consistently applied, and, to the Seller's best knowledge,
these monthly management accounts present a fair reflection, taking
into consideration the scope of monthly management accounts, of the
Company's and the Associated Companies' financial position and
results of operation as at the respective day.
- 12 -
5.3 Contracts:
5.3.1 Except for the contracts listed in Annex 5.3.1, the Company is, as
of This Day and through and as of the Closing Date, not bound by any
contracts with the Sellers or with any of the Sellers'
closely-related persons within the meaning of Section 15 of the
German Tax Code ("AO"), apart from the Associated Companies.
5.3.2 Except for the equity joint venture and written cooperation
agreements listed in Annex 5.3.2 (a), no written cooperation
agreements on development, research, manufacture and distribution,
and, without such limitation, no equity joint venture agreements
exist with third parties, nor will the Company or an Associated
Company enter into any such agreement prior to the Closing Date
without giving prior written notice to Purchaser. Except as listed
in Annex 5.3.2(b), there are, to the Sellers' best knowledge, no
oral cooperation agreements with substantial importance to either
the Company or one of the Associated Companies. To the Sellers' best
knowledge, except for the contracts listed in Annex 5.3.2(c), the
Company and the Associated Companies, as the case may be, are not
party to any agreements, pursuant to which the contract may be
terminated because of a contractual clause explicitly providing for
a right to terminate such contract on the basis of a change in
control of the Company or the Associated Companies.
5.3.3 To the Sellers' best knowledge, the Company and/or the Associated
Companies have in effect the insurance policies, which are listed in
Annex 5.3.3.
5.3.4 To the Sellers' best knowledge, Annex 5.3.4 contains a true and
complete listing of all contracts, which have been concluded between
GHW Gebaudemanagement, the Company or an Associated Company (for
the purpose of this Clause 5.3.4 Associated Companies shall not
include GHW Brazil Ltda. and Klingel Italiana s.r.l.) and a third
party and which (i) have not yet been fully performed by at least
one of the contracting parties, (ii) relate to a subject matter set
forth below and/or are executed with one of the third parties set
forth below, and (iii) are deemed significant to the business
operations of GHW Gebaudemanagement, the Company and/or its
Associated Companies (i.e., the value of the contractual subject
matter exceeds at least EUR 250,000 or, in the case of term
contracts or framework agreements, the actual or estimated value
exceeds EUR 100,000 annually, whereby if there is any uncertainty as
to the basis for such estimate, the values existing in 2003 should
dictate):
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a) Contracts or obligations concerning the purchase, sale,
encumbrance or other disposal of real property or interests in
real property.
b) Contracts concerning the purchase or sale of fixed assets,
including any intangible assets, tangible assets (with the
exception of those defined in a)) and financial assets.
c) Any leases or leasing contracts with a lessor or lessee, etc.
d) Licence agreements with a licensor or licensee, except those
licenses relating to software as listed in Annex 5.3.4 d).
e) Loan agreements with lenders or borrowers, except for
customary credit agreements entered into in the ordinary
course of business and except for the agreements listed in
Annex 5.2.5 (a) and Annex 5.1.1 (a).
f) Employment agreements.
g) Sales agency, distributorships or similar distribution
agreements.
h) Capital leases (Finanzierungsleasing).
i) All customer relationships with BMW and VW.
j) Contracts containing non-compete covenants (it shall not be
considered a violation of this Section 5.3.4 j), if
non-compete covenants are not contained in Annex 5.3.4 under
j), but notified to the Purchaser until the Completion Date
and the Purchaser, upon demand of the Sellers, confirm in
writing the receipt of such notification).
5.3.5 The contracts regarding the sale of the Galvanic assets shall only
be executed after consultation with the Purchaser.
5.4 Other relationships:
5.4.1 To the Sellers' best knowledge, the Company or the Associated
Companies are the lawful holders of the patents, patent
registrations, trademarks or trademark registrations as well as
other industrial property rights, which are
- 14 -
summarised in Annex 5.4.1, and, to the Seller's best knowledge, the
Company and the Associated Companies have not violated any patent,
patent registration, trademark or trademark registration as well as
other industrial property rights, including know how, of third
parties.
5.4.2 The public subsidies or grants (offentliche Zulagen oder Zuschusse)
exceeding EUR 100,000, which the Company has obtained since 1
January 1999 for the procurement or manufacture of capital goods,
are limited to those summa-rised in Annex 5.4.2.
5.4.3 Neither the Company nor an Associated Company is a claimant or
claimee in any pending judicial or arbitration proceedings, where
the amount in controversy exceeds EUR 100,000, nor is any such
proceeding explicitly threatened in writing, unless otherwise
specified in Annex 5.4.3, and the accumulated amount of all amounts
in controversy, irrespective of whether or not the aforementioned
threshold of EUR 100,000 is exceeded, does not exceed EUR 500,000.
5.4.4 The real property owned on This Day by the Company or the Associated
Companies is on the Closing Date free and clear of a contamination,
as defined in Section 2 (3) of the Federal Soil Contamination Act
("BBODSCHG") and/or other applicable German federal and/or state or
local soil and water laws and regulations, for which the Company or
the Associated Companies, even though the manner of use of such
property (for instance, industrial usage) has not been altered,
could be held liable for remediation under the legislation that
governs environmental contamination and is applicable and in effect
on This Day ("PRE-EXISTING CONTAMINATION").
5.4.5 To the Sellers' best knowledge, the Company and the Associated
Companies have, from 31 December 2003 to This Day, conducted their
business operations in the same customary manner as before, subject
to the exceptions listed in Annex 5.4.5.
5.4.6 From This Day until the Closing Date, the Company and the Associated
Companies will continue to manage their business affairs in
accordance with prior practice and in accordance with the care
exercised by an ordinary merchant, specifically no assets will be
purchased, sold or encumbered outside the ordinary course of
business, except for the transactions listed in Annex 5.4.6 (a) and
Annex 5.2.2 (a) and Annex 5.3.4 under b). GHW Gebaudemanagement, the
Company and the Associated Companies will not enter into any sale
and
- 15 -
lease back transactions, nor enter into any capital lease
transaction, nor incur any capital expenditure in excess of Euro
10,000 prior to the Closing Date.
Annex 5.4.6 (b) contains all items of capital expenditure
(Investitionen) and commitments to capital expenditure for the
period from April through the end of July 2004 for the Company and
the Associated Companies. The Company and the Associated Companies
will not spend any amounts exceeding the aggregate amount of capital
expenditures mentioned in Annex 5.4.6 (b) during this period. After
the expiration of the aforementioned period, any further capital
expenditure shall only be incurred after discussion with the
Purchaser.
5.4.7 The Company, including the Company prior to its reorganisation as a
German limited liability company, and the As sociated Companies have
filed all necessary Tax returns in a timely, complete and correct
manner and have paid all Taxes assessed by the competent authorities
in the past when due or, if not due on the respective cut-off dates,
have been duly entered in the reserve of the financial statements.
If hidden profit distributions have been made prior the sale and
transfer of the Interests, Seller shall bear all Taxes resulting
therefrom. All social security contributions due and payable with
respect to the period until the Closing Date have been paid. "Taxes"
shall mean any direct and/or indirect levies by the governmental
authorities and/or any direct or indirect fiscal and/or financial
public burdens (i.e., Zolle, Steuern, Abgaben, Gebuhren) on the
Company's, respectively, the Associated Companies' business,
transactions, assets and respective income.
5.4.8 To the best knowledge of the Sellers the business operations of, and
all products manufactured by, the Company and the Associated
Companies conform to applicable legal requirements and quality
standards (ISO TS 19949 or VDA 6.1. or QS 9000 or ISO 9001 plus the
respective quality standards of OEMs, internal quality standards of
the Company and the Associated Companies and approved prototypes
(Muster)) which at the Closing Date were in force in their
respective jurisdictions and which must be observed pursuant to
administrative regulations and applicable laws, including such legal
requirement and quality standards in other countries in which the
Company and the Associated Companies manufacture and sell their
products. Seller is not aware of any product recalls pending or
decisions by competent public authorities (Behorden) in respect of
such a recall. On This Day, except as listed in Annex 5.4.8, no
product liability claim has been asserted which could result in a
payment obligation of the Company or the Associated Companies over
and above EUR 100,000 in the current business year and/or the
following three business
- 16 -
years and neither the Company nor the Associated Companies have
been notified as per This Day, of any specific concerns which could
reasonably lead to the assertion of such claims. Regarding the
potential MAN/Porsche product liability issues addressed in more
detail in Annex 5.4.8, any amount of damages arising in connection
with these issues exceeding the amount of EUR 750,000 reserved
therefor in the annual financial statements ending December
31, 2003 has full insurance coverage.
5.4.9 The list of the real property owned or leased by the Company and
the Associated Companies set forth in Annex 5.4.9 is complete and
correct. Neither the Company nor the Associated Companies own,
directly or indirectly, additional real property which is not
listed in the aforesaid Annex 5.4.9.
5.4.10 Except as listed in Annex 5.4.10 a) or otherwise disclosed in this
Agreement and its Annexes, between December 31, 2003 and This Day,
the Sellers have not received factual information of customer- or
supplier-related circumstances which could materially adversely
affect the business of the Company or the Associated Companies;
this applies, in particular, but without limitation, to the
termination of a material relationship with a customer or supplier
as listed in Annex 5.4.10 b) and to claims for damages. The Sellers
have no knowledge of an event that has a material adverse affect on
the business of the Company.
From This Day until the Closing Date, the Company and the
Associated Companies will inform the Purchaser in writing without
undue delay regarding any customer-related facts and circumstances
which are "materially adverse", whereby, only for purposes of this
obligation to inform, "material adverse" shall also comprise
material adverse events the influence of which on the sales
revenues can not be computed. In the event of doubt, the Company
and the Associated Companies shall not act without having provided
prior information to Purchaser regarding an existing or threatened
"material adverse" event as defined herein.
For the avoidance of doubt, it is understood that (i) a loss of the
sales revenues net of tax and customs of the Company or Associated
Companies not exceeding EUR 3,000,000 net of tax and customs, or
(ii) an event in the public knowledge, or (iii) an event in the
ordinary course of business shall not be deemed to be "materially
adverse" within the meaning of this clause 5.4.10.
5.4.11 The attached list of employees of the Company and Associated
Companies in Annex 5.4.11 lists all service, employment and labor
relationships (Dienst-,
- 17 -
Angestellten- und Arbeitsvertragen) and shows, respectively, name
of employee, amount of monthly fixed salary, bonus, date of
commencement of the employment and job title and is complete, true
and correct.
The accruals for pension commitments of the Company and of the
Associated Companies in their annual financial statements for the
fiscal year ending December 31, 2003 have been consistently
provided for in the same manner as in the financial statements for
the fiscal years prior to December 31, 2003 and, regarding the
Company and GHW Engineering GmbH, in accordance with the valuation
principles of Dr. Klaus Heubeck.
5.4.12 No member of the Company's or the Associated Companies' management
(managing directors (Geschaftsfuhrer) or their equivalent in
foreign jurisdictions, as the case may be) has indicated that
he/she intends to terminate their employment agreement on the
grounds of a change of control brought about in connection with
this Agreement.
5.5 Receivables pursuant to Section 1.6:
5.5.1 GHW Gebaudemanagement may freely sell or otherwise dispose of the
Receivables. These Receivables exist, are not encumbered by third
party rights and are specifically not subject to any rights of
first refusal or purchase options.
5.5.2 The statements made in Section 1.6 are true and correct.
5.5.3 No repayments and payments of interest have been made on the
Receivables since This Day.
5.5.4 The loan agreements comprising the Receivables exist in the
versions appended hereto as Annex 1.6 and have not been modified.
5.6 GHW Gebaudemanagement:
The Sellers provide the Purchaser with the following warranties in respect
of GHW Gebaudemanagement:
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5.6.1 GHW Gebaudemanagement is a German limited partnership
(Kommanditgesellschaft) duly organized, registered and validly
existing under the laws of the Federal Republic of Germany and,
except as disclosed in Annex 5.1.1 a), has the full power and
authority to own, lease and operate its assets and properties, to
own and hold the share in the Company, to execute and to perform its
obligations under this Agreement, to perform the other transactions
contemplated herein, and to carry out its business as currently
conducted and as set forth in the effective GHW Gebaudemanagement's
partnership agreement. GHW Gebaudemangment is, on the Closing Date,
financially solvent, is neither over-indebted nor unable to pay its
accounts payable. GHW Gebaudemanagement acts through its general
partner, GHW Verwaltungs GmbH, the latter acts through its sole
managing director (Geschaftsfuhrer), which is, at This Day, Franz
Margraf with sole power of representation. Franz Margraf is exempted
from the restrictions of Section 181 of the German Civil Code
("BGB").
5.6.2 GHW Verwaltungs GmbH is a German limited liability company
(Gesellschaft mit beschrankter Haftung) organized, registered and
validly existing under the laws of the Federal Republic of Germany.
It has the authority to assume the position and assumes the position
as general partner in GHW Gebaudemanagement.
5.6.3 Sellers may freely sell or otherwise dispose of their interests in
GHW Gebaudemanagement and their interests are free and clear of all
liens, charges, encumbrances and of any third party rights or rights
in favour of the Sellers and are specifically not subject to any
rights of first refusal, pre-emptive rights or purchase or call
options.
5.6.4 Sellers' limited partner interests (Pflichteinlagen) in GHW
Gebaudemanagement are fully paid-in, all capital contributions in
kind regarding their limited partner interests in GHW
Gebaudemanagement have been made and have the full value at which
they were transferred and accepted; their interests have not been
repaid or decreased as a result of losses and no hidden repayments
were made nor do obligations exist to effect repayments. The
contributions have not been withdrawn. GHW Verwaltungs GmbH does not
hold a capital interest in GHW Gebaudemanagement. No further
partners exist. In addition to the Partnership Agreement of GHW
Gebaudemanagement, there are no side agreements relating to the
constitution and organization of GHW Gebaudemanagement.
- 19 -
5.6.5 With respect to GHW Gebaudemanagement, there are no rights of the
Sellers or third parties to subscribe to or otherwise acquire new
interests or to convert any other rights into interests or to
require the issue of new interests or to grant any of the aforesaid
rights. The Sellers have, except from the powers of attorney
attached to this notarial deed as Annex Set N, to be used for
declarations in connection with the transactions contemplated in
this Agreement, not granted any third party the right to exercise
Sellers' voting rights in partnership meetings of GHW
Gebaudemanagement, whether by way of powers of attorney or
otherwise.
5.6.6 GHW Gebaudemanagement is not subject to any control agreement,
profit transfer agreement or other intra-group agreement, all within
the meaning of Sections 291 et seq. of the German Stock Corporation
Act ("AkTG"). GHW Gebaudemanagement has no silent participations,
participating loans or, to the best of Sellers' knowledge, similar
obligations.
5.6.7 GHW Gebaudemanagement's partnership agreement, in the currently
governing version attached hereto as Annex 5.6.7, has not been
amended, and no resolutions to amend the partnership agreement have
been adopted, except for the resolution adopted in the partners'
meeting of today, contained in Annex Set 17.2.
5.6.8 GHW Gebaudemanagement does not directly or indirectly own or hold
any share or interest in any company other than the Company or the
Associated Companies.
5.6.9 GHW Gebaudemanagements' annual financial statements as per 31
December 2003, the draft of which is attached hereto as Annex 5.6.9,
have been prepared in accordance with generally accepted principles
of accounting (valuation rules consistently applied) and these
financial statements present a true, correct, complete and fair
reflection in all material respects, in particular, but not limited
to, of GHW Gebaudemanagement's net assets, liabilities, financial
position and results of operation as at 31 December 2003.
Any incorrectness of the annual financial statements addressed in
Section 5.2.1 which does not lead to a warranty claim of the
Purchaser under Section 5.2.1 shall also not lead to a warranty
claim under this Section 5.6.9 regarding the value of the interest
in the Company as stated in GHW Gebaudemanagement's annual financial
statements.
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5.6.10 The fixed, intangible and current assets reported in GHW
Gebaudemanagements' annual financial statements per 31 December
2003 were owned by GHW Gebaudemanagement on that date and there
have been no dispositions or encumbrances in favour of third
parties with regard to these assets. GHW Gebaudemanagements' annual
financial statements per 31 December 2003 include any and all
assets as of 31 December 2003 that are recorded on the balance
sheet of GHW Gebaudemanagement and that are necessary to operate
the business of GHW Gebaudemanagement as at the Closing Date. As of
the Closing Date, the net assets of GHW Gebaudemanagement will
amount to at least the amount specified in the financial statements
per December 31, 2003.
5.6.11 All of the receivables of GHW Gebaudemanagement reported in GHW
Gebaudemanagements' annual financial statements per 31 December
2003 were owned by GHW Gebaudemanagement on that date and there
have been no dispositions and no encumbrances in favour of third
parties. None of the receivables of the GHW Gebaudemanagement are
subject to factoring agreements.
5.6.12 Annex 5.6.12 represents a true and complete listing of all bank
accounts held by GHW Gebaudemanagement and of the relevant
authorised signatories. The list includes, broken down by account
number, purpose, currency, maturity dates, current debit and
amounts not yet drawn down.
5.6.13 Sellers have not received payments or withdrawn funds from GHW
Gebaudemanagement in cash or in kind since 31 December 2003,
except as disclosed in Annex 5.6.13. GHW Gebaudemanagement has made
no distributions in cash or in kind or undertaken to do so or
resolved a capital contribution, whether disclosed or undisclosed,
since December 31, 2003.
5.6.14 Except for the Receivables, GHW Gebaudemanagement has not taken out
any loans and is, except for the Security Pool Agreement contained
in Annex 5.1.1 a), not party to any other financing, borrowing or
lease arrangement and has not undertaken any form of off-balance
sheet financing such as, but not limited to sale-and-lease-back
agreements, or financial leases. GHW Gebaudemanagement has
undertaken no obligation which prohibits it from pledging or
assigning any of its assets or to otherwise use them as collateral.
5.6.15 Except as for the obligations of GHW Gebaudemanagement as provided
for in the Security Pool Agreement contained in Annex 5.1.1 a),
there are no
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guaranties, warranties or securities of any kind (including comfort
letters) granted by GHW Gebaudemanagement in favor of third
parties, the Sellers, the Company, the Associated Companies or any
of its shareholders, partners, managers or employees or any member
of the families of the Sellers.
5.6.16 There are no liabilities or debt of GHW Gebaudemanagement of any
kind whatsoever, whether accrued, contingent, absolute, determined,
determinable or otherwise, and there is no existing condition,
situation or set of circumstances which could reasonably be
expected to result in such a liability or debt, other than: (i)
liabilities/debt fully reflected or provided for in the financial
statements per 31 December 2003; (ii) current liabilities incurred
in the ordinary course of business consistent with past practice
since December 31, 2003 which are comprehensively listed in Annex
5.6.16 and which, in the aggregate, do not materially affect the
valuation of the business; and (iii) liabilities under contracts
and bids entered into or made in the ordinary course of business
consistent with past practice.
5.6.17 Except as attached as Annex 5.6.17, there are no contractual
relationships or agreements or arrangements whether written or oral
of whatever kind and content exceeding an annual value of EUR
15,000. The contractual relationships or agreements or arrangements
attached as Annex 5.6.17 are agreed between GHW Gebaudemanagement
and the Company or the Associated Companies only. These are entered
into at arm's length and are attributable to GHW
Gebaudemanagements' ordinary business only. GHW Gebaudemanagement,
with the exception of its partnership agreement, is not bound by
any contracts with the Sellers or with any of the Sellers'
closely-related persons as defined in clause 5.3.1. Except for the
Receivables, there are no claims of GHW Gebaudemanagement against
the Sellers, Company, Associated Companies or any of its
shareholders, partners, managers or employees or any member of the
families of the Sellers and no claims of the Sellers, Company,
Associated Companies or any of its shareholders, partners, managers
or employees or any member of the families of the Sellers against
GHW Gebaudemanagement.
5.6.18 GHW Gebaudemanagement does not manufacture, purchase, sell,
distribute or trade products - for the avoidance of doubt,
"products" shall not include the provision of services to the
Company or the Associated Companies pursuant to the contracts
listed in Annex 5.6.17 - of whatever kind and nature.
- 22 -
5.6.19 GHW Gebaudemanagement has filed all necessary tax returns in a
timely, complete and correct manner and has paid all Taxes assessed
by the competent authorities in the past when due or, if not due on
the respective cut-off dates, have been duly entered in the reserve
of the financial statements. If hidden profit distributions have
been made prior to the sale and transfer of the interests in GHW
Gebaudemanagement, the Sellers shall bear all Taxes resulting
therefrom. All social security contributions due and payable with
respect to the period until the Closing Date have been paid.
"TAXES" shall mean any direct and/or indirect levies by the
governmental authorities and/or any direct or indirect fiscal
and/or financial public burdens (i.e., Zolle, Steuern, Abgaben,
Gebuhren) on GHW Gebaudemanagement's business, transactions, assets
and respective income.
5.6.20 GHW Gebaudemanagement has not entered into any lease contracts
regarding real property.
5.6.21 GHW Gebaudemanagement does not own real property. The real property
leased or used by GHW Gebaudemanagement is on the Closing Date free
and clear of a contamination, as defined in Section 2 (3) of the
Federal Soil Contamination Act ("BBodSchg") and/or other applicable
German federal and/or state or local soil and water laws and
regulations, for which the Company or the Associated Companies,
even though the manner of use of such property (for instance,
industrial usage) has not been altered, could be held liable for
remediation under the legislation that governs environmental
contamination and is applicable and in effect on This Day
("PRE-EXISTING CONTAMINATION"). The same applies for all real
property owned or leased or used previous to the Closing Day by GHW
Gebaudemanagement, even if they were not owned or leased or used on
This Day or Closing Date.
5.6.22 Except as listed in Annex 5.6.22, GHW Gebaudemanagement has not
entered into any service, employment and labor contracts (Dienst-,
Angestellten- und Arbeitsvertrage). There are no pension
commitments or obligations other than those for which reserves are
booked in the annual financial statements as per December 31, 2003
and these reserves adequately reflect those pension commitments.
There are no obligations or commitments regarding direct insurance.
5.6.23 There are no works councils. There are no applicable collective
bargaining agreements (Tarifvertrage), shop agreements
(Betriebsvereinbarungen) and social plans.
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5.6.24 All social security contributions, if any, legally required to be
paid by GHW Gebaudemanagement have been paid and will be paid in
the future. To the extent that there are any outstanding social
security contributions, sufficient accruals have been set up in the
financial statements.
5.6.25 All of the members of the supervisory board or similar boards of
GHW Gebaudemanagement will resign from their office as of the
Closing Date. Except for current year supervisory board fees and
expenses pro rata temporis as per the Closing Date, they have no
claims against GHW Gebaudemanagement, the Company or any Associated
Companies.
5.6.26 GHW Gebaudemanagement does not own any intellectual property rights
(e.g. patents, patent applications, utility model registrations,
trademarks, trademark registrations, service marks, business or
trade names, brand names, logos, registered designs, design rights,
copyrights, recipes and formulas, rights in domains, domain names,
rights in know-how, trade secret or invention) as well as other
industrial property rights, all of the foregoing hereinafter also
referred to as "IPR".
5.6.27 There are no outstanding claims by third parties against GHW
Gebaudemanagement relating to the infringement of any IPR and no
such claims are threatened or pending and there are, to the best of
Sellers' knowledge, no known circumstances possibly leading to such
claims.
5.6.28 No material IPR of a third party, apart from standard office
software, are used by GHW Gebaudemanagement and GHW
Gebaudemanagement is not dependent on any other IPR of a third
party.
5.6.29 There are no insurance contracts, and there are no insurable risks.
5.6.30 GHW Gebaudemanagement is neither a claimant nor claimee in any
pending judicial or arbitration proceedings exceeding an amount in
dispute of EUR 50,000 and there are; to the best knowledge of the
Sellers, no threatened legal disputes exceeding the same threshold.
According to the Sellers' best knowledge, there are currently no
administrative investigations or procedures against GHW
Gebaudemanagement in connection with the operations of the busine
Section There are, to the best of Sellers' knowledge, no facts or
circumstances which could give rise to any such actions, suits,
proceedings or investigations. This is, in particular, true with
respect to proceedings in trade, tax,
- 24 -
product liability, product warranty, environmental liability, or
unfair trade practices or real estate matters.
5.6.31 There are no public subsidies or grants (offentliche Zulagen oder
Zuschusse) which GHW Gebaudemanagement has obtained.
5.6.32 All administrative approvals, permits, licenses and registrations
which are necessary for GHW Gebaudemanagement to operate and
continue its respective business are without exception existing and
valid.
5.6.33 GHW Gebaudemanagement has at all times prior to the Closing Date
without exception been in compliance with all administrative
security regulations applicable to it in connection with the
operation of its businesses, including requirements imposed by
trade authorities, construction authorities, technical supervisors.
No additional requirements are to be expected in the future under
the presently existing laws. Any commissioners required by law have
been duly appointed.
SECTION 6
LEGAL CONSEQUENCES OF A BREACH OF WARRANTY
6.1 If and to the extent that any warranties provided in Section 5 are
breached, then, within two months following receipt of a Purchaser's
relevant performance demand, which must be sent via certified mail (return
receipt requested), the Sellers shall in their discretion either perform
the warranty or pay compensatory damages such that the Purchaser or GHW
Gebaudemanagement or the Company or the Associated Company is placed in
the position it would have been in, had the warranty not been breached. If
the Sellers fail to perform the warranty within the meaning of the
aforementioned sentence within the two months period indicated or if the
Sellers notify the Purchaser by registered letter (return receipt
requested) that the Sellers see no possibility to perform the warranty or
that the Sellers refuse the claim (such letter, in this Agreement, being
referred to as the "REFUSAL LETTER"), then it will be required to pay
compensatory damages suffered by either of the Purchaser, GHW
Gebaudemanagement, the Company or the Associated Companies after the
expiration of this period or upon receipt of such notification.
For the avoidance of doubt, the aforementioned two months period shall not
prevent the Purchaser, GHW Gebaudemanagement or the Company or one of the
Associated Companies from taking immediate action even before the
aforementioned two months
- 25 -
period has lapsed, if without such action the interest of the Purchaser,
GHW Gebaudemanagement, the Company or the Associated Companies would be
impaired. The Purchaser, GHW Gebaudemanagement, the Company or the
Associated Companies are obligated to inform the Seller immediately of
such action, if possible, prior to such action.
6.2 The Purchaser will be entitled to enforce its breach of warranty claims,
only if and to the extent that
a) the value of any single given claim or series of claims relating to
a specific product (Teile) exceeds a minimum amount of EUR 100,000.
and
b) the value of all claims, which are included under sub-paragraph a),
exceeds an allowance (Freibetrag) of EUR 1,000,000; i.e. the
Purchaser's claim will be limited only to the amount exceeding this
allowance amount.
c) The provisions of this Section 6.2 a) and b) shall not be applicable
to a warranty claim of the Purchaser under Section 5.4.7 or Section
5.6.19 relating to possible real estate transfer tax to be paid in
connection with the reorganization of the Company described in
Section 1.2, such reorganization having been preceded by a transfer
of Sellers' former limited partners' interests in the Company prior
to the reorganization described in Section 1.2 to GHW
Gebaudemanagement, i.e. the full amount of the damages to which such
warranty claim relates shall be paid and not be subject to the above
limitations in Section 6.2 a) and b).
6.3 The Sellers' quantitative liability shall be limited as follows:
a) in the case of a breach of the warranties provided in Section 5.1.1
and Section 5.1.2, to an amount equal to the Purchase Price paid;
b) in the case of a breach of the warranties provided in Section 5.5.1
and Section 5.5.2, to the amount referred to in Section 1.6;
c) in the case of a breach of the warranties provided in Section 5.4.4
and Section 5.6.21, to an amount equalling EUR 7,500,000 and up to
that amount,
(i) 80% of the damages, which the Purchaser enforces during the
period ending twelve months following the Closing Date;
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(ii) 45% of the damages, which the Purchaser enforces within the
period from the expiration of twelve months until the
expiration of twenty-four months following the Closing Date;
(iii) 25% of the damages, which the Purchaser enforces within the
period from the expiration of twenty-four months until the
expiration of thirty-six months following the Closing Date;
d) in the case of one or more other breaches of warranty, to an amount
totalling 28% of the Purchase Price paid;
e) however, in no event shall the liability of the Sellers under this
Agreement exceed the total Purchase Price.
6.4 The Sellers may not be held liable twice (mehrfach) under this Agreement
for any claims, which are based on the same set of facts and circumstances
but enforced under another legal theory. This is to say, forms of double
jeopardy are hereby excluded. In calculating the Purchaser's claims, the
principal of offsetting gains (Vorteilsaus-gleich) must be applied,
specifically any equity capital items or other items reducing or
increasing the damages must be offset in a fair and reasonable manner;
this also applies in connection with any tax detriment suffered by the
Purchaser or the Company, which merely results in a postponement of the
basis for taxation.
6.5 The Purchaser is not entitled to enforce any claims under the Agreement,
if and to the extent that either an accrual was created in the annual
audited financial statements per 31 December 2003 of GHW
Gebaudemanagement, the Company or at an Associated Company to take into
account such an event or if a third party (specifically an insurance
carrier) succeeds in performing the warranty, paying compensatory damages
or otherwise compensating the Purchaser, GHW Gebaudemanagement, the
Company or another Associated Company in any given case. Section 8.5 shall
continue to apply.
6.6 Section 254 of the German Civil Code ("BGB") shall be applicable to
warranty claim of the Purchaser, i.e. the Purchaser shall have no claim
for damages to the extent such damages were caused or increased by the
Purchaser or to the extent the Purchaser has failed to mitigate, although
possible, such damages.
6.7 If and to the extent that the Sellers have provided a warranty to their
best knowledge or in a similarly qualified manner, then such knowledge
applies only to the facts, which were actually known, or should have been
known had they applied the diligence a businessman in their position, line
of business and country would have customarily
- 27 -
applied, by Franz Margraf, Markus Donni and the managing directors of the
Associated Companies excluding the managing director of GHW Brazil Ltda
and Klingel Italiana s.r.l. at the time this Agreement was notarised.
6.8 For the avoidance of doubt, the Parties agreed that there shall be no
violation of any of the warranties in Section 5 resulting solely from the
fact that the company has been converted as provided for under Section
13.1. b), i.e. the "violation" would not have occurred if the Company had
not been converted.
SECTION 7
TIME LIMITATIONS
7.1 Any claims by the Purchaser based on a breach of the warranties provided
in Section 5.1.1, Section 5.1.2, Section 5.5.1,Section 5.5.2, Section
5.6.1, Section 5.6.2, Section 5.6.3 and Section 5.6.5 will be time-barred
four years following the Closing Date. Claims based on any other breaches
of warranties will be time-barred six months from the date on which the
Purchaser receives knowledge of the relevant warranty breach, but no later
than two years from the Closing Date and no later than four years from the
Closing Date in the event of a breach of the warranties stated in Section
5.4.4., provided, however, that the breach of the warranty provided in
Section 5.4.7 shall be time-barred after a period of six months commencing
with the date on which the relevant assessment of Taxes becomes final and
unappealable.
7.2 The rules under the applicable statutes of limitations, as contained in
the BGB, will determine when the time limitations set forth herein
commence to run anew or are tolled, but such time limitations will not be
tolled or suspended as a result of negotiations.
7.3 A warranty claim of the Purchaser shall not be time-barred if it has been
asserted within the meaning of Section 6.1 sentence 1 (performance demand)
before the above-mentioned limitation periods have lapsed, provided the
Purchaser initiates court proceedings (Klageeinreichung) within three
months following the date on which it has asserted the claim within the
meaning of Section 6.1 sentence 1 (performance demand) or within one month
after receipt of the Refusal Letter as defined in Section 6.1, as the case
may be. If court proceedings have not been initiated within such periods,
the respective warranty claim of the Purchaser shall be time-barred. In
any event, no warranty claims of the Purchaser shall be time-barred before
the limitation periods of Section 7.1 have lapsed.
- 28 -
SECTION 8
WAIVER OF CLAIMS
8.1 The Parties hereby recognise and acknowledge that they intend for the
warranties relating to Sections 5, 6 and 7, this Section 8 and Section
17.3 to constitute an independent guarantee made by the Sellers within the
meaning of Section 311 (1) BGB and that these warranties should in no way
represent a guarantee as to qualities (Beschaffenheitsgarantie) or
durability (Haltbarkeitgarantie) within the meaning of Sections 443, 444
BGB.
8.2 The Sellers do not provide any warranty, representation, guarantee or
other promises in the broadest sense beyond those contained in this
Agreement regarding the Interests and the Receivables, specifically not
with respect to
a) the legal, economic, financial, tax or other conditions of GHW
Gebaudemanagement, the Company or the Associated Companies or any
of their assets;
b) the continuation of any prior, current or future financial condition
or earnings situation of GHW Gebaudemanagement, the Company or the
Associated Companies, their revenues or other features, about which
the Sellers or any of its authorised agents made statements either
prior to or during the negotiations of this Agreement;
c) the ability to collect (Einbringlichkeit) the Receivables and the
possible function of the loan pursuant to Section 1.6, as either a
partial or complete substitute for equity.
8.3 The Purchaser shall have no claim under the warranty provided in Section
5.4.4 and 5.6.21, if and to the extent that one of the following facts
exist with respect to the real property in question:
a) Pre-Existing Contamination - within the meaning of the laws and
regulations governing the real property in question - (i) was not
identified as a result of a final and binding order issued by the
competent regulatory authorities or a final court judgment and (ii)
with respect to which, remediation is required, but not as a result
of an immediately enforceable order issued by a regulatory authority
or an enforceable court judgment;
b) there has been a change of use, which led to a rezoning of the
relevant property following the Closing Date (e.g., industrial to
commercial use or residential use). Excluded herefrom is the real
property located at Wuppertal-Ronsdorf, provided,
- 29 -
however, that the change of use is not the result of a decision of
the Purchaser but was initiated by the Company prior to the Closing
Date;
c) there has been a sale of the relevant real property or a change in
ownership or a sale of individual divisions or the entire operating
business of the Company or an Associated Company.
8.4 The statutory provisions regarding defects in the product or in legal
title, including Section 442 para. 1 BGB, do not apply. Any other
Purchaser claims not expressly stipulated in this Agreement, irrespective
of the legal basis therefore, are hereby waived, whether the claims seek
compensatory damages, price reduction, subsequent performance, rescission
and restitution, action for avoidance or other such claims. This waiver of
claims also include any claims based on torts or those under Sections 311
(2), 313 BGB. Any other limitations on liability or claim waivers in this
Agreement will not be applicable to the extent that such liability is
mandatory and cannot be waived under Sections 276 (3), 826, 123 BGB.
8.5 The Purchaser and the Sellers hereby enter into a true third party
beneficiary contract (Section 328 BGB), pursuant to which the Purchaser
agrees to waive any and all claims, which are based on a breach of duties
and may be brought against (i) the Sellers, (ii) supervisory board members
of GHW Gebaudemanagement and the Company, and (iii) managers of GHW
Gebaudemanagement's general partner and of the Company. The Purchaser
shall ensure that the Company and the Associated Companies excluding GHW
Brazil Ltda and Klingel Italiana s.r.l. will not enforce any liability
claim of the Company against the foregoing persons provided they are not
based on wilful acts (Vorsatz), gross negligence (grobe Fahrlassigkeif) of
the diligence of a prudent businessman or fraud.
- 30 -
SECTION 9
RIGHTS TO NAMES
9.1 The Purchaser hereby covenants, in the form of an independent guarantee
(each made separately), to Ms Ruth Matzler, Kreuzberg Promenade 39, A5026
Salzburg and Mr Klaus Hartmann, Im Leimenacker 3, 64658 Furth-Steinbach,
in the form of a true third party beneficiary contract under Section 328
BGB, that the Purchaser or the enterprises directly or indirectly
affiliated with it will use and apply the corporate name or corporate name
components GHW, GHW Grote & Hartmann, Grote & Hartmann as well as the name
Grote and Hartmann such that this use does not injure the good reputation
of Ms Matzler and/or Mr Hartmann. This covenant also applies to any marks
or trademarks, which include any of these components. A use and
application within the meaning of this subsection must be understood in
its broadest sense, particularly in terms of each competitive act and any
use of electronic media (e.g., internet domains).
9.2 Whether and to what extent a reputation has been injured as a result of
such use will be determined according to the due discretion of the
relevant protected party (i.e. Ms Matzler or Mr Hartmann (in each case
individually)).
9.3 The use of the corporate names or the names or name components in
connection with the business operations of (i) GHW Gebaudemanagement, the
Company or its Associated Companies as of This Day and of (ii) the
Purchaser and its affiliated companies on This Day will in no way be
deemed injurious and will be permissible in any manner. Any use in the
"automotive" industry is likewise permissible. Any actions taken by the
Purchaser, which were decided in the ordinary course of management
decision-making and which limit or restructure the business operations of
GHW Gebaudemanagement, the Company and the Associated Companies, will
likewise not be considered injurious.
9.4 If the independent guarantee provided under Section 9 is breached, then
the injured party will have an injunctive claim. Ms Matzler and/or Mr
Hartmann will each have their own injunction claim, if and to the extent
that a breach of duty under the aforementioned provisions applies to
them.
- 31 -
SECTION 10
SELLERS' PARTICIPATION IN
LIABILITY DISPUTES
10.1 The Purchaser must promptly notify the Sellers in writing, if it receives
knowledge that the tax authorities are considering or indeed conducting a
tax audit at GHW Gebaudemanagement, the Company or an Associated
Company. The Sellers must be given an opportunity, at the earliest
possible time, to participate in defending any claims brought by the tax
authorities in all relevant tax proceedings including tax audits,
administrative proceedings and judicial proceedings, to the extent such
claims relate to a period of time prior to the Closing Date. If such a
dispute exists or a tax audit is called, then the Purchaser must promptly
inform the Sellers concerning the actual status of such a dispute or
audit. The Purchaser must provide the Sellers with all documents and
information, which could be relevant for the latter to protect their tax
interests. In the event of a tax audit, the Sellers have the right to
participate in the audit or to dispatch a representative, who is bound by
professional duties of confidentiality, to participate in the audit or any
final audit discussions.
10.2 In addition, the Sellers must be promptly provided with an opportunity, at
any time and at their own cost, to participate in the dispute with a third
party, to the extent these disputes affect the rights or interests of a
third party with respect to GHW Gebaudemanagement, the Company or an
Associated Company and to the extent that the results of any such disputes
could influence the purchase price claim of the Sellers and/or other
claims, which the Purchaser may have against the Sellers regarding to the
Company. Section 10.1 applies mutatis mutandis. In connection with any
environmental liability cases, the Purchaser must inform the Sellers in
advance respecting any inspection or remediation programs and must cause
GHW Gebaudemanagement, the Company or the relevant Associated Company to
inform the Sellers. The Sellers must also be granted access to the real
property in question.
10.3 For the purposes of an alleged violation of the warranty under Section
5.4.7 or Section 5.6.19 relating to the obligation to pay real estate
transfer tax which may have arisen in the context of the reorganization
addressed in Section 1, in addition to the duties under Section 10.1 and
Section 10.2, the Purchaser shall procure, if possible, that the Sellers
and/or their advisers are put in a position which allows them to
participate in any audit, assessment, proceeding or litigation (authority
to control and determine the conduct of the defence), as if they were a
direct party to such audit, assessment, proceeding or litigation.
Purchaser shall or shall procure that the Company or the taxable entity -
upon request of the Sellers
- 32 -
and/or their advisers - appeal any decision, order, assessment or judgment
(Rechtsmittel einlegen) and to conduct and control such proceedings.
Purchaser and/or the Company or the taxable entity may only issue notices
on declarations or other communication with the tax authorities or the
courts upon written approval or Sellers advisers in respect of this
matter. The Purchaser shall further procure that the Company or the
taxable entity and the Purchaser provide adequate support to the Sellers
and their advisers in order to allow them to defend their matter as
efficiently as possible, in particular provide documents and information
needed. Any reasonable external costs of the Purchaser and any costs of
the Sellers incurred in connection with all of the foregoing shall be
borne by the Sellers.
SECTION 11
DUTIES PRIOR TO CLOSING
11.1 To the extent permitted by merger control law, after This Day and until
merger control clearance has been granted pursuant to Section 14.1, the
Purchaser may demand that the Sellers cause GHW Gebaudemanagement, the
Company's management to grant the representatives designated by the
Purchaser access to all business premises, business documentation and
information concerning all business affairs of GHW Gebaudemanagement, the
Company and the Associated Companies and that such access be granted in a
reasonable manner and within a reasonable period of time to enable the
Purchaser to understand the business of the Company and the Associated
Companies, provided however that such cooperation shall not have a
significant adverse affect on the day to day business of the Company or
the Associated Companies. The Purchaser acknowledges that it has been
provided with certain sensitive information as contained in Annex 11.1.
Following the issuance of merger control clearance pursuant to Section
14.1, Purchaser's request for the grant of access as set forth in sentence
1 of this Section 11.1 shall not be subject to merger control restraints.
11.2 The Parties shall provide each other with any and all information and
documents and take all business and legal steps necessary to duly perform
this Agreement. As of This Day, in particular, without limitation, each
Party is obligated to provide such cooperation as any other Party
reasonably requests, provided however that such cooperation shall not have
a significant adverse affect on the day to day business of the Company or
the Associated Companies, and to execute or procure the execution of all
documents the execution of which is either needed to give full effect to
the transactions contemplated herein or reasonably requested by any other
Party. This shall serve to ensure, in particular, without limitation, to
bring about, as soon as possible, the change of legal form
- 33 -
as addressed in Section 13.1 (b) and to take all steps described in
Section 13.1 (b) (ii) through (v) immediately after the German antitrust
clearance has been obtained. The Sellers shall provide after This Day such
cooperation or procure the provision of such cooperation as the Purchaser
reasonably may request, at the Purchaser's expense, to enable the
Purchaser to prepare for the conduct of the Company's and the Associated
Companies' businesses after the Closing Date. Such cooperation shall
include (it is agreed that with respect to (ii) and (iii) of this
paragraph such measures, or any other measures which the Purchaser
requests may only be implemented, if in the reasonable opinion of Sellers'
tax or accountants advisers, such measures will not violate German GAAP
(HGB) or any applicable local accounting standards and they are only to be
permitted if and to the extent that reasonable opinion of the Sellers tax
or accountants advisers are not detrimental to the Sellers, to their tax
and financial position arising from the sale of Interests contemplated
hereunder. In the event of any changes agreed under this Section 11.2 (ii)
and (iii) such changes shall not give rise to any warranty claim by the
Purchaser), but not limited to, the following matters:
(i) a review of the financial systems and financial control procedures
of the Company and of the Associated Companies only to enable the
Purchaser to determine what systems and procedures the Purchaser
will be required to implement after the Closing Date so as to
comply with Sarbanes Oxley requirements;
(ii) to obtain prior to Closing (or allow the Purchaser to obtain for the
Sellers) US Identification Numbers, if not already obtained, and,
for each of the following respective Associated Companies, to
execute US Form 8832 entity elections, on or before Closing, for GHW
Engineering GmbH, GHW Polska Sp zoo, GHW France Sarl, Grote &
Hartmann South Africa (Pty) Ltd., GHW Czech Republic sro, and Grote
& Hartmann Iberica SL;
(iii) to review the US Purchasing Accounting issues with the Purchaser and
to make such adjustments to the accounts of the Company and the
Associated Companies immediately prior to Closing as may be
desirable for the Purchaser to effectively account under US Purchase
Accounting Requirements for the acquisition of the Interests and the
Associated Companies;
(iv) to participate or procure that the appropriate persons participate,
and provide all cooperation reasonably requested in connection
therewith, in talks of the Purchaser with the pool banks under the
Security Pool Agreement as contained in Annex 5.1.1 (a);
- 34 -
(v) to grant the Purchaser access to all of the premises as listed in
Annex 5.4.9 immediately after signing in order to conduct phase II
environmental due diligence, the results of which the Purchaser will
share with the Sellers and the costs of which will be borne by the
Purchaser;
(vi) to provide the Purchaser with information required to make the
necessary filings with the competent anti-trust authorities within
five calendar days from This Day.
(vii) to provide the Purchaser two days prior to Closing with an updated
list of the amounts drawn down under the Security Pool Agreement
contained in Annex 5.1.1 (a) and under the agreements listed in
Annex 5.2.5 (a).
(viii) to provide access to sites, management, Sellers' insurance brokers
and insurance files and policies in order for the Purchaser to
assess the insurance risk.
(ix) to provide the Purchaser prior to Completion with the financial
statements as addressed in Section 5.2.1 and 5.6.9.
Advisers to the Purchaser, Sellers, Company and the Associated Companies
shall cooperate with each other in good faith and as instructed to assist
in the implementation of this Section 11. The Purchaser herewith indemnify
Sellers as regard any reasonable Sellers advisers' costs in the context of
this Section 11 (ii) and Section 11 (iii).
SECTION 12
NON-COMPETE COVENANT
12.1 The Sellers covenant for a period of two (2) years from the Closing Date
to refrain from engaging in the product or geographic markets, on which
the Company actually does business on This Day, in any activities, which
would compete directly or indirectly with the Company or would have as its
effect direct or indirect competition. The Sellers shall specifically not
form, purchase, acquire an interest in or otherwise advise any enterprise,
with which the Company competes either directly or indirectly. This
non-compete covenant does not apply to the purchasing of shares equal to
10% or less of a publicly listed company.
12.2 If one or both of the Sellers breach the non-compete covenant stipulated
in Section 12.1, then they shall each pay to the Purchaser a contractual
penalty equal to EUR 150,000. If the breach continues, then the Sellers
must pay an additional contractual penalty of EUR 200,000 for each
additional month of the breach. The Purchaser reserves the right
- 35 -
to enforce any other additional damages resulting therefrom and to demand
that such conduct cease and desist.
12.3 The Sellers shall not owe any additional special damages or compensation
for the non-compete covenant.
SECTION 13
CONDITIONS PRECEDENT
13.1 This Agreement shall not be contractually consummated and the assignment
of the Interests shall not become effective, unless and until the
following conditions have been met:
a) the planned combination connected with this Agreement has not been
prohibited either by the German Federal Cartel Office pursuant to
Section 36 of the Act against Restraints of Competition ("GWB") and
by the competent antitrust regulators defined in Section 14.1
through Section 14.3;
and
a2) the change of the articles of association of GHW Verwaltung as
resolved upon by way of the notarized shareholders' resolution of
April_4, 2004 (Roll of Deed No. 320/2004 of the officiating notary)
has been registered in the commercial register and thereby become
effective;
and
b) the Company's change of legal form from a GmbH to a GmbH & Co. KG
has been registered in the commercial register and the entries in
the commercial register show that (i) GHW Verwaltung is the only
general partner without any capital in terest; and (ii) GHW
Gebaudemanagement is the only limited partner with a capital
interest (Haft- und Pflichteinlage) of EUR [30,457,600] or another
amount; and (iii) the new name of the Company is [GHW Grote &
Hartmann GmbH & Co. KG] or with another firm name;
the aforementioned change of legal form of the Company shall be
brought about by GHW Gebaudemanagement and GHW Verwaltung and the
Company as soon
- 36 -
as practically feasible after notarization of this Agreement, but,
however, shall not be reported for registration before the condition
precedent of Section 13.1 a) has been met, observing the following
steps in close consultation with the Purchaser whose prior approval
has to be sought before any of the following is finally executed,
such approval not to be unreasonably withheld or delayed:
(i) the draft resolution on the change of legal form
(UmwandlungsbeschluB) to be adopted by GHW Gebaudemanagement
and GHW Verwaltung (once the latter has been made a
shareholder in the Company) shall be drawn up, in
substantially the form as attached hereto in German as Annex
13.1 (b) (i), and submitted to the Company's works council as
soon as feasible after notarization of this Agreement, at the
latest, however, at the end of the tenth day following This
Day;
(ii) GHW Gebaudemanagement shall, after the condition precedent set
forth in Section 13.1 a2) has occurred, assign and transfer,
in a notarial deed, in substantially the form as attached
hereto in German as Annex 13.1 (b) (ii), a portion of its
share in the Company in the amount of EUR 600 to GHW
Verwaltung who shall hold it in trust for GHW
Gebaudemanagement and reassign and retransfer it to GHW
Gebaudemanagement as per the registration of the change of
legal form of the Company in the commercial register (the
notification of the acquisition of the share in the amount of
EUR 600 by GHW Verwaltung in the Company pursuant to Section
16 of the German Law on Limited Liability Companies is already
provided for in the draft attached in Annex 13.1 (b) (ii));
(iii) the Company shall prepare, in substantially the form as
attached hereto in German as Annex 13.1 (b) (iii), a revised
shareholders' list and submit it to the commercial register;
(iv) GHW Verwaltung and GHW Gebaudemanagement shall adopt, in a
notarial deed, in substantially the form as attached hereto in
German as Annex 13.1 (b) (i), the resolution on the change of
form of the Company the draft of which had been submitted to
the works council of the Company in accordance with (i) above,
waiving all requirements and rights relating to reports and
the voidance or challenge of the resolution that can be waived
under the applicable laws, and
(v) the Company, acting through the deponent under 1., shall
notify the change of legal form for registration in the
commercial register by signing and submitting
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the notification letter in substantially the form as attached
hereto as Annex 13.1 (b)(v);
and
c) all of the members of the supervisory boards of the Company
appointed by the shareholders and of GHW Gebaudemanagement have
provided the Purchaser with resignation letters as of the Closing
Date in which they confirm that they have no claims against the
Company other than claims for compensation pro rata temporis as
per the Closing Date;
and
d) The Sellers have provided the Purchaser with a balance sheet of GHW
Gebaudemanagement as per a date as close as possible to the
Completion Date which shows no assets other than the participation
in the Company and the loan accounts and with no liabilities or
accruals other than relating to the three employees of GHW
Gebaudemanagement.
13.2 If any of the aforementioned conditions precedent described in Section
13.1 have not been satisfied on or before December 31, 2004, then either
the Sellers or the Purchaser may rescind this Agreement by sending a
corresponding certified letter (return receipt requested). If the
Purchase Price has not been paid into the trust and escrow accounts in
accordance with Section 3.4. and Section 3.6 within thirty banking days
(Frankfurt/Main) following the date on which such payment has become due,
then the Sellers may rescind this Agreement by sending a certified letter
to the Purchaser (return receipt requested).
13.3 If the Purchase Price has been paid into the trust and escrow accounts in
accordance with Section 3.4 and Section 3.6, but if the conditions
described in Section 3.4 for releasing the funds in the trust account to
the Sellers have not been met within four months following the date on
which payment into the trust account had been made, then either the
Sellers or the Purchaser may rescind this Agreement by sending - with a
copy to the officiating notary and the Escrow Agent under the Escrow
Agreement, as attached as Annex 3.6 sent by either the Sellers or the
Purchaser - a certified letter (return receipt requested) to the Purchaser
or to the Sellers, as the case may be, and all funds in the trust and
escrow accounts are to be released to the Purchaser upon receipt of such
copy.
13.4 Purchaser may waive by a letter to the Sellers (i) any warranty provided
by the Sellers under this Agreement and/or (ii) any of the following
conditions precedents: Section 13.1 b), Section 13.1 c), and Section 13.1
d).
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SECTION 14
MERGER CONTROL
14.1 The condition precedent set forth in Section 13.1 a) concerning the
Federal Cartel Office will be deemed satisfied at the expiration of the
day, on which
a) the one-month period set forth in Section 40 (1) sentence 1 GWB has
expired, without the Federal Cartel Office having notified the
Parties that it will initiate a second-stage review of the planned
combination,
or
b) the four-month period set forth in Section 40 (2) sentence 2 GWB has
expired, and no prohibition order from the Federal Cartel Office
pursuant to Section 40 (2) sentence 1 GWB has been received during
this period of time;
or
c) receipt of a written notice from the Federal Cartel Office
indicating that the planned combination does not fulfil the
requirements for prohibition under Section 36 GWB,
or
d) the Federal Cartel Office has authorised the combination, subject to
conditions and/or requirements, the fulfilment of which is declared
economically feasible by both GHW Gebaudemanagement and the
Purchaser in writing at their sole discretion (willkurlich). GHW
Gebaudemanagement and the Purchaser may declare at any time upon
receipt of such authorisation in their sole discretion (willkurlich)
to the respective other party that it does not accept such
requirement or condition with the effect that this condition
(Section 13.1 a)) is not fulfilled and such non-fulfilment is final.
14.2 In addition to Section 14.1 above, the respective merger notification
regulations applicable in the following countries outside the Federal
Republic of Germany must be complied with in a manner which allows
consummation of this Agreement:
a) Austria;
- 39 -
b) Finland;
c) Slovak Republic;
d) Turkey;
e) Poland;
f) Czech Republic;
g) South Africa.
Besides, the Parties agree that a filing in Brazil is necessary and will
be made in a timely manner.
14.3 The condition precedent set forth in Section 13.1 a) will be met under the
collective application of the rules under Section 14.1 and Section 14.2,
only when the conditions for the Federal Republic of Germany under
Section 14.1 and for the countries listed in Section 14.2 have been met.
14.4 If the planned combination under this Agreement is subject to merger
control, then this Agreement will be subject to a condition subsequent,
that neither the Federal Cartel Office nor the antitrust regulators of
any country listed in Section 14.2 will prohibit the combination. This
condition subsequent will enter into effect two weeks from the date on
which one of the Parties has been served with a prohibition order from
either the Federal Cartel Office or the antitrust regulators of the
countries listed in Section 14.2.
14.5 The Parties shall co-operate with one another intensively in order to
secure, promptly after the execution of this Agreement, the authorisation
from the competent cartel and antitrust regulators under Section 14.1 and
Section 14.2 to consummate the transaction. In particular, the Sellers
and their advisors will use their best efforts to provide the Purchaser
and its advisors promptly with all necessary information relating to GHW
Gebaudemanagement and the Company and the Associated Companies to enable
the Purchaser and its advisors to make complete and timely notifications
in the countries listed in Section 14.1 and Section 14.2 above. If it
appears that there is a risk that the planned combination will be pro
hibited by one or more of the regulatory authorities, then the Parties
must promptly contact one another in order to eliminate, where possible,
the circumstances obstructing the combination.
14.6 The Purchaser and/or Sellers, as the case may be, shall through their
respective advisors promptly prepare all necessary and reasonable merger
notifications and promptly gather any documents and information which are
required in order to prepare merger notifications for filing with the
competent cartel and antitrust regulatory authorities in the countries
mentioned in Section 14.1 and Section 14.2. The draft petitions and the
attachments and information related thereto must be coordinated with the
Sellers' advisors and promptly
- 40 -
filed by the Purchaser. The Purchaser will advise the Sellers when each
notification is made and will without undue delay provide the Sellers with
a non-confidential version of each notification made. The Purchaser shall
promptly inform the Sellers' advisors about any and all correspondence,
orders, inquiries, prohibition orders, etc. issued by the competent
regulatory authorities.
14.7 The Purchaser shall file any required closing notices to the cartel and
antitrust regulatory authorities, such as the notification under Section
39 (6) GWB with the Federal Cartel Office.
14.8 Any fees or costs for filing and registering the planned combination will
be borne solely by the Purchaser. The Sellers shall bear only the costs of
their own advisers.
14.9 As regards proceedings in Section 14.2 a) through g), Section 14.1 d)
sentence 2 shall apply respectively (entsprechend) so as to allow the
parties to declare that the condition precedent in Section 13.1 a) is not
fulfilled and such non-fulfillment is final.
SECTION 15
CONFIDENTIALITY, PRESS RELEASES AND OTHER DISCLOSURES
15.1 The Parties agree to treat as strictly confidential any information and
knowledge, which they have received or will yet receive in connection with
the negotiation, the execution and the performance of this Agreement as
between themselves and concerning their respective affiliated enterprises
as well as the content of this Agreement, including the Purchase Price.
15.2 The Sellers, on the one hand, and the Purchaser, on the other hand, shall
issue press releases and other notices relating to this Agreement, only
after obtaining the prior written consent of the other Party, such
consent not to be unreasonably withheld or delayed.
15.3 Each Party must impose the foregoing duties on its affiliated companies,
owners, committee members, employees and advisors.
15.4 The aforementioned provisions will not be affected by the fulfilment of
any legally required notices, disclosures and other publication duties
and of such rules and regulations of the Stock Exchange, to which a Party
or its shareholders are admitted and by the fulfilment of any duties,
which are required in order to perform this Agreement. In all
- 41 -
cases, each Party is obligated to inform the other Party about any intent
to publish or otherwise disseminate information to the public and to
obtain in advance that other Party's opinion with respect thereto.
SECTION 16
JOINT LIABILITY OF GUARANTOR, GUARANTEE
The Guarantor hereby assumes as co-debtor vis-a-vis the Sellers the obligation
to cover any and all payments owed by the Purchaser under this Agreement.
SECTION 17
CONSENT REQUIREMENTS
17.1 The Sellers, as the sole limited partners, and GHW Verwaltung, as the sole
general partner, hereby hold an extraordinary partners' meeting of GHW
Gebaudemanagement (waiving all procedural forms and notice requirements)
and, as a precautionary measure, adopt a resolution approving the sale
and assignment of the Interests under the terms of this Agreement.
17.2 GHW Gebaudemanagement's supervisory board has already approved this
Agreement. Minutes of the relevant resolution have been appended hereto as
Annex Set 17.2. In addition, Annex Set 17.2 contains, as a measure of
precaution, a declaration of consent of today from Dr. Reinhard Freiherr
von Dalwigk, in his capacity as chairman of the supervisory board of GHW
Gebaudemanagement, in which he has consented to and approved of all
declarations given in and under this Agreement by GHW Verwaltung, both in
the latter's name and in GHW Gebaudemanagement's name, regarding GHW
Gebaudemanagement's participation in the Company and the future exercise
of its voting rights in the Company as contemplated in this Agreement.
17.3 The Sellers hereby state, warrant and represent that no other consents or
approvals will be required to affect the validity of this Agreement or its
performance.
17.4 The Purchaser hereby represents that it has obtained any and all consents,
approvals and authorisations required from its governing bodies in order
to execute and perform this Agreement and that the Purchaser is not
required to take any other action to legally execute and perform this
Agreement.
- 42 -
SECTION 18
WRITING REQUIREMENT
Any modifications to this Agreement must be made in writing, unless a more
stringent legal requirement prescribes otherwise. This same rule governs the
waiver of this written form requirement.
SECTION 19
COSTS AND TAXES
As between the Parties, the Purchaser shall bear the costs of the notarisation
of this Agreement as well as, unless expressly stipulated otherwise herein, any
other costs arising as a result of the execution and continued performance of
this Agreement, including any transaction taxes (Verkehrsteuern). Otherwise,
each Party shall bear its own costs and expenditures, including the costs of its
advisors.
SECTION 20
CHOICE OF LAW, JUDICIAL FORUM
20.1 This Agreement is governed by the substantive and procedural laws of the
Federal Republic of Germany, to the exclusion of any reference provisions
of German private international law (conflicts of law) and the UN
Convention on Contracts for the International Sale of Goods (CISG).
20.2 The exclusive judicial forum - to the extent legally permissible - for any
and all disputes arising from or connected with this Agreement (including
any agreements attached thereto) and its/their validity is the District
Court (Landgericht) of Dusseldorf. Any jurisdiction (international,
federal, state, local, material) of the courts of the United States of
America, or courts within the United States of America shall be excluded.
- 43 -
SECTION 21
MISCELLANEOUS
21.1 The Parties declare that the Company and Associated Companies' assets
include real property.
21.2 The Parties are precluded from asserting a right to offset their
respective claims under this Agreement against one another and/or from
withholding performance if and to the extent that their claims or
counterclaims have not been acknowledged or confirmed by a final and
binding judgment.
21.3 The Parties hereby mutually accept all representations made in this
Agreement.
21.4 The headings contained in this Agreement have been inserted for
explanatory purposes only and may not be used for the purpose of
contractual interpretation. For the avoidance of doubt, the Preamble and
its contents form an integral part of this Agreement and are subject to
the same rules of interpretation and construction as the main body of this
Agreement.
21.5 Unless the relevant Party notifies the other Parties of another attorney
who must have his/her practice in the Federal Republic of Germany, apart
from (instead of) the Parties themselves, the following persons are
authorised to receive service of all notices in connection with a legal
dispute as described in Section 20.2 and any documents to be served in any
pending legal dispute (including a Statement of Claim), and such persons
are also authorised to receive declarations of intent under this
Agreement, the validity of which is contingent upon receipt:
a) On behalf of the Sellers:
Aderhold v. Dalwigk Knuppel Rechtsanwaltsgesellschaft GmbH
Attn: Dirk Lange
Grafenberger Allee 159
40237 Dusseldorf
Facsimile: +49/211/6901-355
b) On behalf of the Purchaser:
Mayer Brown Rowe & Maw LLP
Attn. John A. Faylor
Bockenheimer Landstra(beta)e 98-100
60323 Frankfurt a.M.
- 44 -
Facsimile: +49/69/7941-100
with a simple copy, for information purposes only, to
Lear Corporation
Attn.: Mr. Paul Jefferson
22, rue Guynemer,
78600 Maisons-Laffitte, France
Facsimile: 0033 134 935281
c) On behalf of the Guarantor:
Mayer Brown Rowe & Maw LLP
Attn. John A. Faylor
Bockenheimer Landstra(beta)e 98-100
60323 Frankfurt a. M.
Facsimile: +49/69/7941-100
with a simple copy, for information purposes only, to :
Lear Corporation GmbH & Co. KG
Attn.: Mr. Daniel A. Ninivaggi
Vice President and General Counsel
21557 Telegraph Road
Southfield, Michigan 48384
Facsimile: 001 248 447 1524
All other notices under this Agreement shall be sent to:
d) On behalf of the Purchaser:
Lear Corporation
Attn.: Mr. Paul Jefferson
22, rue Guynemer,
78600 Maisons-Laffitte, France
Facsimile: 0033 134 935281
e) On behalf of the Sellers:
Aderhold v. Dalwigk Knuppel Rechtsanwaltsgesellschaft GmbH
Attn: Dr. Reinhard Freiherr von Dalwigk
Grafenberger Allee 159
40237 Dusseldorf
Facsimile: +49/211/6901-355
- 45 -
f) On behalf of the Guarantor:
Lear Corporation GmbH & Co. KG
Attn.: Mr. Daniel A. Ninivaggi
Vice President and General Counsel
21557 Telegraph Road
Southfield, Michigan 48384
Facsimile: 001 248 447 1524
21.6 Where not expressly permitted subject to certain conditions under this
Agreement, claims for restoration of the agreed state of affairs, for
compensatory damages or for indemnity under this Agreement may only be
assigned with the consent of the other Party.
21.7 With the exception of the confidentiality agreement attached as Annex
21.7, this Agreement supersedes all agreements reached by the Parties
prior to the conclusion of this Agreement.
21.8 If a term of this Agreement is or becomes wholly or partially invalid,
this will not affect the validity of the remaining terms. The invalid term
is to be replaced by a suitable term which, to the extent permitted by
law, most closely reflects the commercial purpose intended by the Parties
with the conclusion of this Agreement. The foregoing also applies if a
term is invalid because of a performance standard or period of time
prescribed by this Agreement. In such a case, the performance standard or
period of time which comes closest to that which the parties intended
shall be deemed agreed. The same applies in the event that any omissions
are discovered.
21.9 The Sellers are jointly and severally liable for the performance of their
obligations and the discharge of their liabilities under this Agreement.
SECTION 22
INSTRUCTIONS AND ADVICE OF THE NOTARY
The Deponents were instructed and advised by the notary that
- 46 -
a) a change of legal form only becomes effective upon registration in the
commercial register;
b) irrespective of the arrangements agreed between the Parties in this
instrument they remain jointly and severally liable for the notary's
costs;
c) the sale of the Interests under this Agreement may be subject to real
property transfer tax;
d) the notary has not provided the Parties with any tax advice, as they
indicated that they received tax advice from elsewhere.
This instrument together with its Annexes with the exception of the following
Annexes:
Annex Set N
Annex 5.2.2 a)
Annex 5.2.2 (b) pages 2 to 11
Annex 5.2.4
Annex 5.2.5 (a)
Annex 5.2.5 (b)
Annex 5.2.8 pages 2 to the end
Annex 5.3.1 pages 2 to the end
Annex 5.3.2 (a) pages 1 to 8
Annex 5.3.2 (b)
Annex 5.3.3
Annex 5.3.4
Annex 5.3.4 d)
Annex 5.4.1
Annex 5.4.2
Annex 5.4.3
Annex 5.4.6 (b)
Annex 5.4.8 pages 7 to the end
Annex 5.4.9
Annex 5.4.11
Annex 5.6.9
Annex 5.6.12
Annex 5.6.16
Annex 5.6.17
Annex 5.6.22
were read aloud to the Deponents in the presence of the notary, approved by the
Deponents and then personally signed by them and the notary as follows.
The Deponents waived their right to have read the aforementioned Annexes (with
exception of the Annex Set N), they have taken cognizance of its content and
have signed each page
- 47 -
of these Annexes. Annex 1.6 is the recording notary's deed of April 4, 2004
(Roll of Deed No. 319/2004). The deed has been presented in the original. The
parties have taken cognizance of the content of the deed and have waived its
reading. A notarially certified copy is to be taken as Annex 1.6 to this deed.
gez. Mr. Dipl.-Kfm. Margraf
gez. Mr. Jorg Swoboda
gez. Mr. Dirk Lange
gez. Mr. John A. Faylor gez. Mr. Paul R. Jefferson
gez. Mr. Thomas Saeli
gez. Mr. Dr. Gerhard Pilger, Notar
Dates Referenced Herein and Documents Incorporated by Reference
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