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PURCHASE AND TRANSFER AGREEMENT
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between
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Bruker
AXS GmbH
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Östliche
Xxxxxxxxxxxxxxxxxx 00
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X-00000
Xxxxxxxxx
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- hereinafter
referred to as the “Purchaser” -
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and
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1.
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bmp Aktiengesellschaft
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Alt-Moabit 59-61
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D-10555 Berlin
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2.
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bmp Venture Tech
GmbH
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Alt-Moabit 59-61
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D-10555 Berlin
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3.
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Ventegis Capital AG
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Xxxxxxxxxxxxxx 000
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X-00000 Xxxxxx
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4.
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Xx. Xxxxxx Xxxxxx
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***
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5.
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Xx. Xxxxxxx Xxxxxx
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***
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6.
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Mr. Gert Kommichau
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***
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7.
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Xx. Xxxxx Xxxxxx
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***
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8.
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Xx. Xxxx Xxxxxxxxx
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***
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9.
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Xx. Xxxxxxx Xxxxxx
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***
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10.
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Xx. Xxxx Xxxxxxx
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***
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11.
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Xx. Xxxxxx Xxxxxxxxx
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***
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12.
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Xx. Xxxxxx
Xxxxxxxxx
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***
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13.
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Herrn Xxxxxx Xxxxxxxx
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***
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14.
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Herrn Xxxx. Xxxxxxx
Xxxxxxxx
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***
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15.
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Herrn Xxxxxx Xxxxxxxxxxxx
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***
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-
hereinafter referred to individually or together as the “Sellers” -
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-
the Sellers Nos. 4 through 15 are referred to individually and together as
the “Old Shareholders”, and the Sellers Nos. 1 through 3 are also referred to
individually and jointly as the “Financial Investors” -
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the Seller No. 1 is also referred to hereinafter as “bmp AG” -
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the Sellers and the Purchaser will hereinafter also be referred to
individually as a “Party” and together as the “Parties” -
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[ ***] Indicates information has been omitted and
separately filed with the Securities and Exchange Commission pursuant to an
application for an order declaring confidential treatment thereof.
LIST OF DEFINITIONS
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Share/Shares
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see
the Preamble
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Old Shareholders
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see page 3
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Banking Day
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every day on which banks are open in Frankfurt am
Main
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Base Purchase Price
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see Clause 3.1
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bmp AG
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see page 3
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Bruker-Röntec Division
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is the business division currently operated by RÖNTEC
AG in Berlin, which will continue to be conducted in Berlin, if applicable after
a transformation [Umwandlung]
of RÖNTEC AG or a merger [Verschmelzung]
of RÖNTEC AG with the Purchaser. If in
the future the Purchaser wants to locate its own divisions or divisions which
are still to be acquired on the site of RÖNTEC AG in Berlin, these divisions
are not to be attributed to the Bruker-Röntec Division for the purposes of
this Agreement and especially not for the purpose of determining turnover in
order to calculate an increase in the Purchase Price pursuant to § 4.
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Retention Amount
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see Clause 3.3
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Supplemental Cash Purchase Price 2006 and 2007
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see Clause 4.4.1
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Supplemental Purchase Price 2006
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see Clause 4.1
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Supplemental Purchase Price 2007
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see Clause 4.2
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Supplemental Purchase Price in Kind 2006 and 2007
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see Clause 4.4.1
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Financial Investors
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see page 3
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Indemnification Claims
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see Clause 9.2
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Company
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see the Preamble
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Maximum Liability Amount
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see Clause 6.2
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Annual Financial Statements
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see Clause 3.3.1
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Purchaser
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see page 2
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Sellers’ Knowledge
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see Clause 5.1.4
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Small
Shareholders
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stockholders
of RÖNTEC AG each holding less than 0.5% of the shares in RÖNTEC AG
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Minimum Amount
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see Clause 6.3
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Party / Parties
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see page 3
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Reduction Amount
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see Clause 3.2
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Registered Shares
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see Clause 3.2.2
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RÖNTEC AG
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see Preamble
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RönTec GmbH
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see Preamble
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Threshold Amount
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see Clause 6.3
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Effective Transfer Date
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see Clause 1.3
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Sold Shares
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see Clause 2.1
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Seller
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see page 3
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Closing Date
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see Clause 2.2.1
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LIST OF EXHIBITS
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Exhibit
P1
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Copy of the Share Register of RÖNTEC AG
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Exhibit
P3
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Draft of the Purchase and Transfer Agreement
with all Small Shareholders, each holding less than 0.5% of the shares in
RÖNTEC AG
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Exhibit
P4 (Part 1)
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List of Shares and Shareholders of RÖNTEC AG;
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Exhibit
P4 (Part 2)
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Index of the Sellers and the Sold Shares they
own;
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Exhibit
P4 (Part 3)
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Allocation of the Purchase Price among the
Sellers;
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Exhibit
P4 (Part 4)
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Bank Accounts of the Sellers;
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Exhibit
3.2.
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Subsidies for Subsidy Periods after the
Closing Date
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Exhibit
3.3.8
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Sample Confirmation of Receipt of the
Purchase Price
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Exhibit
3.3.5
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Confirmation by the Secretary of Bruker
BioSciences Corporation of the Transfer of Title to the Registered Shares
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Exhibit
3.3.3
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Summary of the SEC Trading Restrictions
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Exhibit
3.3.8
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Sample Confirmation of Receipt of the
Purchase Price
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Exhibit
5.3.1
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Excerpt from the Commercial Register and
Articles of RÖNTEC AG
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Exhibit
5.3.2
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Agreements on Silent Partnerships with bmp
AG, bmp Venture Tech GmbH and Venegis Capital AG
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Exhibit
5.8
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List of the Company’s Contingent Liabilities
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Exhibit
5.10
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List of all of the Company’s Loan Agreements
/ Liabilities owed to Banks
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Exhibit
5.13
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List of all Patents, Trademarks and
Intellectual Property Rights of the Company
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Exhibit
5.15
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The Company’s Leases and Long Term
Contractual Relationships
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Exhibit
5.16
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Procurement Agreements of the Company
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These exhibits are omitted
in accordance with Item 601(b)(2) of Regulation S-K. The Registrant will furnish a copy of any
omitted annex or exhibit to the Securities and Exchange Commission supplementally
upon request.
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Exhibit
5.17
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Service Agreements of the Company
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Exhibit
5.18
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Consulting Agreements of the Company
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Exhibit
5.19
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Distribution Agreements and Commercial Agency
Agreements of the Company
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Exhibit
5.23
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List of all Insurance Agreements of the
Company
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Exhibit
5.25
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Warranties given by the Company
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Exhibit
5.27
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Compliance
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Exhibit
5.30
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Restrictions on Competition
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Exhibit
5.31
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List of Agreements between the Sellers and RÖNTEC
AG
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Exhibit
6.1.2.a
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Disclosure Letter
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Exhibit
6.1.2.b
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Due Diligence Report of CMS Xxxxxx Xxxxx
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Exhibit
6.1.2.c
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Letter from Xxxxxxx Xxxxxx dated 20 September
2005
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Exhibit
8.
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List of Liabilities for Release
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Exhibit
00
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Xxxxx Xxxxxxxxxx Agreement between various
Old Shareholders and Bruker BioSciences Corporation
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These exhibits are omitted in accordance with Item
601(b)(2) of Regulation S-K. The
Registrant will furnish a copy of any omitted annex or exhibit to the
Securities and Exchange Commission supplementally upon request.
PREAMBLE
The Sellers hold a total of 3,035,080 shares of
registered common stock in RÖNTEC Aktiengesellschaft, with each share having a notional
par value of EUR 1.00. RÖNTEC Aktiengesellschaft has its registered office in
Berlin, is registered in the Commercial Register of the Local Court Charlottenburg[Amtsgericht] of Berlin under no. HRB 72789 and has a share
capital of EUR 3,064,968 (in words: three million sixty-four thousand nine hundred
and sixty-eight Euros) (hereinafter referred to as “RÖNTEC AG”
or also as the “Company”). The share capital is divided into a total of
3,064,968 shares of registered common stock, each having a notional par value
of EUR 1.00 (hereinafter collectively referred to as the “Shares”
or individually as a “Share”).
A copy of the share register of RÖNTEC AG,
status 7 October 2005, is attached as Exhibit P1.
The Purchaser is registered in the Commercial
Register of the Local Court of Karlsruhe under no. HRB 7524. The Purchaser has its registered office in
Karlsruhe.
RÖNTEC AG is active in the field of planning,
development, production and distribution of devices for materials and
structural analysis using x-rays, including applications in industry, research
and academics. The Company provides
products in the form of complex system solutions consisting of hardware and
software, especially x-ray spectrometers for x-ray microanalysis, micro x-ray
fluoroscopic spectrometers for the analysis of works of art, total reflection
spectrometers for environmental and trace analysis, energy dispersion x-ray diffractometers
for determining single crystal characteristics as well as x-ray detectors for
various applications.
There are contracts on establishing silent
partnerships [stille Gesellschaften]
between RÖNTEC AG and Ventegis Capital AG, Berlin (Local Court of Charlottenburg,
no. HRB 57882), bmp Venture Tech GmbH, Berlin (Local Court of Charlottenburg,
no. HRB 68302) and bmp Mobility AG Venture Capital, Berlin (Local Court of Charlottenburg,
no. HRB 65607). These silent
partnerships were initially concluded with RönTec-Gesellschaft für
Röntgenanalysen-Technik mbH (hereinafter referred to as “RönTec GmbH”)
and were transferred to RÖNTEC AG after RönTec GmbH was merged with this company. bmp Mobility AG Venture Capital, which in the
meantime has changed its name to bmp eBusiness AG Venture Capital, transferred
its rights under the silent partnership by an agreement of 28 June 2000 to bmp
Life Science AG, Berlin (Local Court of Charlottenburg, HRB 67465). Both bmp Mobility AG Venture Capital, which
changed its name to bmp eBusiness AG, as well as bmp Life Science AG have been
merged in the meantime with bmp Aktiengesellschaft, Berlin (Local Court of Xxxxxxxxxxxxxx,
XXX 00000X), so that bmp Aktiengesellschaft, bmp Venture Tech GmbH as well as
Ventegis Capital AG hold silent participations in RÖNTEC AG.
Under the above silent partnerships, RÖNTEC AG
is required to surrender part of its profits.
RÖNTEC AG has granted Xxxx. Xxxxxxx Xxxxxxxx an
option to acquire *** shares in RÖNTEC AG under a convertible bond dated 18
November 2002.
The Sellers as well as all other shareholders
in RÖNTEC AG intend to sell 100 % of the share capital in RÖNTEC AG, i.e. all
3,064,968 shares. The Purchaser intends
to acquire the above Shares. It is intended that those shareholders in RÖNTEC
AG, who are not parties to this Agreement and who each hold less than 0.5 % of
the Shares of RÖNTEC AG (hereinafter, the “Small Shareholders”)
will sell and transfer all of the shares they hold in RÖNTEC AG to the
Purchaser under a separate share purchase and transfer agreement. The draft of this agreement is attached as Exhibit P3.
The Purchaser also intends after acquiring all
shares in RÖNTEC AG to transform the legal form into a company with limited
liability [Gesellschaft mit beschränkter Haftung]
and then change the fiscal year to the calendar year. This can also be accomplished by merging
RÖNTEC AG with the Purchaser, whereby the division of the current RÖNTEC AG
would then be continued, for example, as “Bruker-Röntec Division” at the site
in Berlin as a branch of the Purchaser.
The Purchaser also intends to strengthen the
equity capital of RÖNTEC AG after the above acquisition of all shares in RÖNTEC
AG. This can be accomplished on the one
hand by obtaining releases from the current liabilities of RÖNTEC AG owed to
third parties, and also by direct contribution of funds to RÖNTEC AG.
The Parties are aware that the Exhibits
attached to this Agreement are presently not complete and also are only
preliminary in nature, meaning that changes in these Exhibits can occur up to
the Closing Date. The final Exhibits,
which are supposed to be binding on the Parties, will be exchanged between the
Parties on the Closing Date and will be attached to this Agreement.
Now therefore, the
Parties agree as follows:
[ ***] Indicates information has been omitted and
separately filed with the Securities and Exchange Commission pursuant to an
application for an order declaring confidential treatment thereof.
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§ 1
COMPANY DETAILS
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1.1
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Company Details
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RÖNTEC AG is a stock corporation [Aktiengesellschaft] existing under German law with the
name “RÖNTEC Aktiengesellschaft”, which has its registered office in Berlin
and is registered in the Commercial Register of the Local Court of
Charlottenburg under no. HRB 72789.
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1.2
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Share Capital of RÖNTEC AG
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The share capital
of RÖNTEC AG is EUR 3,064,968.00 (in words: three million sixty-four thousand
nine hundred sixty-eight Euros) and is fully paid in. The share capital
consists of 3,064,968 registered shares of common stock having a notional
value of EUR 1.00 each, which are held as set forth in Exhibit P4 (Part 1). All shares and the
shareholders listed in Exhibit P4 (Part 1) are registered in the Share
Register of RÖNTEC AG. The shares do not have certificates.
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1.3
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Effective Transfer Date
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The effective transfer date within the
meaning of this Purchase and Transfer Agreement is 7 October 2005, 24:00
hours (hereinafter referred to as the “Effective Transfer Date”).
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§ 2
SALE OF SHARES; ENTITLEMENT TO DIVIDENDS
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2.1
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Sale of Shares
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The Sellers hereby
sell to the Purchaser, which accepts the sale, all shares in RÖNTEC AG which
they hold and are listed in Exhibit P4
(Part 2) (hereinafter referred to as the “Sold
Shares”) with economic effect as of the Effective Transfer Date
pursuant to the provisions of this Purchase and Transfer Agreement. The sale
of the Sold Shares includes all related claims and other rights including the
right to a dividend for the current fiscal year and all previous fiscal
years.
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2.2
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Transfer;
Consents
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Subject to the condition precedent of payment of the
Base Purchase Price pursuant to Clauses 3.1, 3.3.1, 3.3.3 through 3.3.6 minus
a withheld amount of EUR *** under Clause 3.3.1 for the Financial Investors,
the Sellers transfer to the Purchaser the Sold Shares under Clause 2.1
including all related claims and other rights such as the dividend right for
the current fiscal year and all past fiscal years. In execution hereof, the
Sellers assign to the Purchaser the Sold Shares subject to the above
condition precedent. The Purchaser accepts the assignment. The date on which
the Base Purchase Price under Clauses 3.1, 3.3.1, 3.3.3 through 3.3.6 minus
the Retention Amount for the Financial Investors under Clause 3.3.1 is paid
to the Sellers and title to the Sold Shares thereby passes to the Purchaser
is hereinafter referred to as the “Closing Date”.
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§ 3
PURCHASE PRICE; PAYMENT METHOD
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3.1
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Base Purchase Price
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The Purchase Price
to be paid by the Purchaser to the Sellers for the Sold Shares which are sold
and transferred under Clause 2.1 of this Purchase and Transfer Agreement as
well as for all other performance and actions of the Sellers pursuant to this
Purchase and Transfer Agreement is EUR 3,085,119.00, hereinafter
referred to as the “Base Purchase Price”),
which is allocated to the Sellers in accordance with the information in Exhibit P4 (Part 3).
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3.2
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Adjustment of the Purchase
Price
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If the subsidies
for subsidy periods after the Closing Date listed in Exhibit 3.2 are reduced during a period
of 12 calendar months after the Closing Date compared to the amount set forth
in Exhibit 3.2 because the acquisition of the shares in RÖNTEC AG by the
Purchaser means that the prerequisites for a continued grant of the listed
subsidies are no longer met, the share of the Base Purchase Price under
Clause 3.1 allocable to the Financial Investors and, thus, the Base Purchase
Price itself will be reduced by a total of *** of the amount by which the subsidies
listed in Exhibit 3.2 in the mentioned period of time are reduced compared to
the amounts listed in Exhibit 3.2 (the amount by which the Base Purchase
Price is reduced under the above calculation is hereinafter
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[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
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referred to as the
“Reduction Amount”. The
Reduction Amount is limited to a maximum of EUR ***
and is allocated to the Financial
Investors in a manner proportionate to their respective interests in the Base
Purchase Price as set forth in Exhibit P4
(Part 3). The Purchase Price will not be adjusted if a final and binding
subsidy ruling has been presented to the Purchaser prior to the applicable
reduction in the subsidies, and such ruling provides an assurance that the
subsidies listed in Exhibit 3.2 will not be reduced below the amounts listed
in Exhibit 3.2 on the grounds that the prerequisites for the further grant of
the listed subsidies continue to exist despite the acquisition of the shares
in RÖNTEC AG by the Purchaser.
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3.3
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Due Date, Allocation and
Payment of the Purchase Price
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3.3.1
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The Base Purchase Price minus a retained
amount of EUR *** (hereinafter referred to as the “Retention
Amount”) is to be paid pursuant to the provisions in Clauses 3.3.3
et seq. within five Banking Days after
all of the following conditions have occurred:
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a)
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Proof of the extension of the existing lease
agreement between RÖNTEC AG and WISTA AG for the property currently used by
RÖNTEC AG in Xxxxxxxxxxxxxxxxxxxx 00, 00000 Xxxxxx. The extension must be for
a period of at least 3 years and on the current conditions;
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b)
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Presentation of a confirmation from WISTA AG
that it will not terminate the lease with RÖNTEC AG for the property
currently used by RÖNTEC AG in Xxxxxxxxxxxxxxxxxxxx 00, 00000 Xxxxxx, as a
result of the transfer of a majority of the shares or all of the shares in
RÖNTEC AG to the Purchaser;
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c)
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Valid conclusion of the share purchase and
transfer agreement with the Small Shareholders of RÖNTEC AG attached as
Exhibit P3;
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d)
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Presentation of a confirmation from the ***
that RÖNTEC AG has properly and fully settled all license fees *** in the
past;
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e)
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Valid conclusion of a Stock Repurchase
Agreement pursuant to Exhibit 11 between Bruker BioSciences Corporation
and each Old shareholder, except for the Old shareholders Xxxxxx Xxxxxx,
Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and Prof. Xx. Xxxxxxx Xxxxxxxx;
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[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
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f)
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Presentation of the audited annual financial
statements of RÖNTEC AG for the fiscal year ending on 30 June 2005, affixed
with an unqualified auditor’s opinion (hereinafter referred to as the “Annual Financial Statements 2005”, and together with the
annual financial statements for 30 June 2004, the “Annual
Financial Statements”);
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g)
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All members of the Supervisory Board have
given written notices of resignation, according to which each of them resigns
from his office as a member of the Supervisory Board effective at the point
in time of transfer of all shares in RÖNTEC AG to the Purchaser;
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h)
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The shareholders’
meeting of RÖNTEC AG has consented to the transfer of the 219,351 shares of
common stock to Ventegis Capital AG under the agreement of 29 October/3
November 2004, to the transfer of all Shares to the Purchaser as well as the
cancellation of the agreements on partial transfer of profits with bmp
Aktiengesellschaft, bmp Venture Tech GmbH and Ventegis Capital AG;
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i)
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Cancellation of the option agreement between
RÖNTEC AG and Xxxx. Xxxxxxx Xxxxxxxx as well as conclusion of an agreement
with Xxxx. Xxxxxxx Xxxxxxxx to the effect that the bond of RÖNTEC AG in the
nominal amount of EUR 5,000.00 which was subscribed to by Xxxx. Xxxxxxx
Xxxxxxxx will be redeemed in the near future;
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j)
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Approval of all resolutions adopted by the
shareholders’ meeting of RÖNTEC AG since 2 April 2002 by the two equally
entitled beneficiaries of the estate of Xxxx-Xxxxxxxx Xxxxx, Xxxxxxxxx Xxxxx
and Xxxxx Xxxxx;
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k)
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Presentation of all completed Exhibits to
this Agreement in a form acceptable to all Parties and written confirmation
of the Parties or their representatives to this effect;
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l)
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Cancellation of all existing participation
agreements between shareholders in RÖNTEC AG and RÖNTEC AG itself, if any;
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m)
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Conclusion of a cancellation agreement for
the silent partnerships/partial transfer of profits agreements listed in
Exhibit 5.3.2 with bmp Aktiengesellschaft, bmp Venture Tech GmbH and Ventegis
Capital AG effective as of the Closing Date;
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n)
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Performance of a due diligence examination at
RÖNTEC USA Inc. with a result satisfactory to the Purchaser.
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The Purchaser is entitled to completely or
partially waive the occurrence of the above conditions by declaration to the
Sellers. If the above conditions precedent have not occurred by no later than
18 November 2005 or, in the case of non-occurrence, if the Purchaser has not
waived the occurrence of the respective condition which has not occurred by
no later than 18 November 2005, the Purchaser on the one hand and the Sellers
holding at least 45% of the share capital acting jointly on the other hand
can withdraw from this Agreement by declaration given to the Sellers. Sellers
who jointly hold at least 45% of the share capital and act jointly are
entitled in the case of the non-occurrence of the condition under point k) to
withdraw regardless of any declaration of waiver by the Purchaser, but not
before 19 November 2005. If the Purchaser withdraws from this Agreement
pursuant to this Clause 3.3.1, claims of the Sellers against the Purchaser
based on or as a result of the withdrawal from this Agreement are excluded.
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3.3.2
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The Retention Amount allocated to the
Financial Investors in the amount of EUR ***, minus any Reduction Amount
under Clause 3.2, is to be paid within 15 Banking Days of the earlier of 15
March 2007 or the date upon which a final and binding subsidy ruling is
presented, according to which the subsidies listed in Exhibit 3.2 will not be
reduced below the amounts listed in Exhibit 3.2 on the grounds that the
conditions for the continuing grant of the listed subsidies are no longer
present as a result of the acquisition of the Shares in RÖNTEC AG by the
Purchaser; to the extent that the date determined in the above manner is not
a Banking Day, payment shall be made on the next Banking Day. The payments
are to be made to the Financial Investors proportionate to their respective
interests in the Base Purchase Price, as set forth in Exhibit P4
(Part 3).
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3.3.3
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The Base Purchase Price less the Retention
Amount is to be paid to the Financial Investors and the Old Shareholders as
follows: the amount payable to the Financial Investors must be wholly
rendered in cash, while 25% of the amount payable to the Old Shareholders
must be rendered in cash and 75% must be in the form of registered shares
(each with a par value of US Dollars 0.01) in the American company, Bruker
BioSciences Corporation, with its registered office in Xxxxxxxxx, XX 00000,
XXX (hereinafter, the “Registered Shares”).
The Purchaser guarantees that it is able to transfer to the respective
Sellers title to the Registered Shares free of title rights of third parties
as part of the Base Purchase Price. This does not apply to the rights
resulting under the Stock Repurchase Agreement pursuant to Exhibit 11 which
must still be concluded.
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|
[ ***] Indicates information has been omitted and
separately filed with the Securities and Exchange Commission pursuant to an
application for an order declaring confidential treatment thereof.
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3.3.4
|
The Base Purchase Price is allocated to the
individual Sellers on a proportionate basis as set forth in Exhibit P4 (Part 3). To the extent that the Base Purchase
Price under Clause 3.2 is to be adjusted for any Reduction Amount, the
adjustment only affects the Financial Investors proportionate to their
respective interests in the Base Purchase Price as set forth in Exhibit P4 (Part 3).
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|
3.3.5
|
To the extent that the Base Purchase Price is
to be paid in cash, it is to be paid by transfer to the bank accounts set
forth for each Seller in Exhibit P4
(Part 4). To the extent that the Base Purchase Price is to be paid to the Old
Shareholders in the form of Registered Shares, the number of Registered
Shares calculated according to the provision in Clause 3.6 is to be
transferred to the Old Shareholders, and the transfer of title is to be
confirmed by the Secretary of Bruker BioSciences Corporation using the draft
letter attached as Exhibit 3.3.5,
and copies of the stock certificates are to be presented. Upon confirmation
by the Secretary of Bruker BioSciences Corporation, the Registered Shares to
be transferred to the Old Shareholders on a proportionate basis as part of
the Base Purchase Price are also deemed to have been provided for purposes of
fulfilling the condition precedent set forth in Clause 2.2.
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3.3.6.1
|
The number of Registered Shares to be
transferred to the respective Old Shareholders is calculated by allocating
75% of the Base Purchase Price to be paid to each Old Shareholder, exchanged
into US Dollars at the exchange rate applicable on the Effective Transfer
Date, which amount is then divided by the average price over the last 3
months prior to the Effective Transfer Date for the Registered Shares traded
on the Nasdaq.
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3.3.6.2
|
When calculating the Registered Shares to be
allocated to the individual Old Shareholders, the number of Registered Shares
for the respective Old Shareholder is to be rounded up to the next whole
number. For example, if an Old Shareholder is to notionally receive 100.21
Registered Shares, the Old Shareholder should receive a total of 101
Registered Shares after rounding.
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3.3.6.4
|
The exchange rate applicable for exchanging
Euros into US Dollars as of the Effective Transfer Date is to be determined
as follows: the rate fixed at 13:00 by Deutsche Bank (DBREF), according to
the information under xxx.xx-xxxxxxx.xx. The exchange rate as of the
Effective Transfer Date of 7 October 2005 is, therefore, 1.2145 US$ = 1 EUR.
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3.3.7
|
The Old Shareholders, except for the Old
Shareholders Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and Prof. Xx.
Xxxxxxx Xxxxxxxx, are restricted in their ability to transact with the
Registered Shares received as purchase price in kind in accordance with the
provisions in the Stock Repurchase Agreement attached as Exhibit 11. All Sellers
are also instructed that the Registered
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|
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Shares are subject to the SEC Trading
Restrictions and that the Sellers must comply with these. A brief summary of
the SEC Trading Restrictions is attached as Exhibit 3.3.3.
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3.3.8
|
Each Seller personally undertakes to confirm
to the Purchaser the receipt of the respective Purchase Price pursuant to
Exhibit P4 (Part 3) in the bank accounts set forth in Exhibit P4 (Part 4)
without undue delay after receipt of payment. The Sellers will issue the
declaration of confirmation using the form attached as Exhibit
3.3.8.
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§ 4
PURCHASE PRICE INCREASE
|
4.1
|
Supplemental Purchase
Price 2006
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|
The Purchase Price for the Old Shareholders
is to be increased by *** of the amount by which the turnover [Umsatz] of RÖNTEC AG or the Bruker-Röntec Division exceeds
an amount of EUR *** during the period between 1 January 2006 and 31 December
2006 (hereinafter referred to as the “Supplemental Purchase
Price 2006”). Thus, if the turnover of Bruker-Röntec Division does
not exceed the amount of EUR *** in the stated period of time, no
Supplemental Purchase Price 2006 is to be paid. In the event that the Bruker
Röntec Division is expanded in the field of x-ray microanalysis by the
acquisition of other activities, the Supplemental Purchase Price 2006 is
limited to a total amount of EUR ***. The maximum amount of EUR *** results
from subtracting the amount allocable to the Small Shareholders (EUR ***)
from EUR ***. The Supplemental Purchase Price 2006 will be distributed among
the Old Shareholders Pursuant to the information in Exhibit P4
(Part 3). The Financial Investors do not receive any portion of
the Supplemental Purchase Price 2006.
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4.2
|
Supplemental Purchase
Price 2007
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|
The Purchase Price allocable to the Old
Shareholders is to be further increased by *** of the amount by which the
turnover of RÖNTEC AG or the Bruker-Röntec Division during the period between
1 January 2007 and 31 December 2007 exceeds the turnover during the period
between 1 January 2006 and 31 December 2006 (hereinafter referred to as the “Supplemental Purchase Price 2007”). If the turnover during
the period between 1 January 2006 and 31
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|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
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|
December 2006 is less than EUR ***, the
Supplemental Purchase Price 2007 is *** of the amount by which the turnover
of the Bruker-Röntec Division during the period between 1 January 2007 and 31
December 2007 exceeds EUR ***. Thus, if the turnover of the Bruker-Röntec
Division during the period between 1 January 2007 and 31 December 2007 does
not exceed EUR ***, or if it does not exceed the turnover during the period
between 1 January 2006 and 31 December 2006, no Supplemental Purchase Price
2007 is to be paid. In the event that the Bruker-Röntec Division is expanded
in the field of x-ray microanalysis by the acquisition of other activities,
the Supplemental Purchase Price 2007 is limited to a total of EUR ***. The
maximum amount of EUR *** results from subtracting the amount allocable to
the Small Shareholders (EUR ***) from EUR ***. The Supplemental Purchase
Price 2007 will be distributed among the Old Shareholders Pursuant to the information
in Exhibit P4 (Part 3). The Financial
Investors do not receive any portion of the Supplemental Purchase Price 2007.
|
4.3
|
Determination of the
Relevant Turnover
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|
4.3.1
|
The turnover used to determine the
Supplemental Purchase Price 2006 and the Supplemental Purchase Price 2007
during the periods set forth in Clauses 4.1 and 4.2 is to be determined on
the basis of US GAAP as applied by the Purchaser. The Old Shareholders, to
the extent that they are in a service or employment relationship with RÖNTEC
AG, undertake not to shift turnover of RÖNTEC AG or the Bruker-Röntec
Division ordinarily anticipated in the calendar year 2005 to the calendar
year 2006 or to shift turnover ordinarily anticipated in the calendar year
2007 or 2008 to the respective preceding calendar year.
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4.3.2
|
To the extent that product lines of the
Bruker-Röntec Division are moved to other sites of the Purchaser, the
turnover of Bruker-Röntec generated there is to be added for purposes of
calculating the Supplemental Purchase Prices.
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4.3.3
|
Xxxxxx Xxxxxxxx is exclusively entitled to
manage and supervise, alone and/or with the help of advisers, the preparation
and audit of the turnover figures for the stated calendar years and to
inspect the relevant documents.
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|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
4.4
|
Due Date, Payment and
Adjustment of the Supplemental Purchase Prices
|
|
4.4.1
|
With regard to the portions of the
Supplemental Purchase Price 2006 and the Supplemental Purchase Price 2007
payable to the Old Shareholders, 50% is to be paid in cash (“Supplemental Cash Purchase Price 2006” or “Supplemental Cash Purchase Price 2007”) and 50% is to be
paid in Restricted Shares (“Supplemental Purchase
Price in Kind 2006 or “Supplemental Purchase
Price in Kind 2007”) to the Old Shareholders.
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|
4.4.2
|
The Supplemental Cash Purchase Price 2006,
the Supplemental Cash Purchase Price 2007 and the Supplemental Purchase Price
in Kind 2007 to be determined and paid to the Old Shareholders pursuant to
the provisions in Clauses 4.1, 4.2 and 4.4.1 is reduced, however, by the
Reduction Amount, i.e. by a total of 50% of that amount by which the
subsidies for subsidy periods after the Closing Date set forth in Exhibit 3.2
are reduced during a period of 12 calendar months after the Closing Date; the
reduction shall not, however, exceed EUR 100,000.00. The Reduction Amount is
first to be set off against the Supplemental Cash Purchase Price 2006 and, in
the event that the Reduction Amount exceeds the Supplemental Cash Purchase
Price 2006, the difference is then to be set off against the Supplemental
Cash Purchase Price 2007 and, in the event that the Reduction Amount exceeds
the Supplemental Cash Purchase Price 2006 and the Supplemental Cash Purchase
Price 2007, any remaining difference shall be set off against the
Supplemental Purchase Price in Kind 2007.
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4.4.3
|
The Supplemental Cash Purchase Price 2006 and
the Supplemental Purchase Price in Kind 2006 are due for payment on 15 March
2007; the Supplemental Cash Purchase Price 2007 and the Supplemental Purchase
Price in Kind 2007 are due on 15 March 2008 or, if any of the above dates is
not a Banking Day, on the next Banking Day, in each case less any reductions
pursuant to Clause 4.4.2.
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|
4.4.4
|
The Supplemental Cash Purchase Price 2006 and
the Supplemental Cash Purchase Price 2007, less any reductions under Clause
4.4.2, are allocated to the Old Shareholders proportionate to their
respective interests in the Base Purchase Price as set forth in Exhibit P4 (Part 3) and are to be paid by transfer to the
bank accounts of the respective Old Shareholder set forth in the above
Exhibit. The provision under Clause 3.3.8 applies mutatis
mutandis.
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|
4.4.5
|
The Supplemental Purchase Price in Kind 2006
and the Supplemental Purchase Price in Kind 2007, less any reductions under
Clause 4.4.2, are allocated to the Old Shareholders proportionate to their
respective interests in the Purchase Price as set forth in Exhibit P4 (Part 3) and are to be rendered by transfer of
Registered Shares to the Old shareholders. When determining the
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|
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number of Registered Shares to be transferred
as Supplemental Purchase Price in Kind 2006 and Supplemental Purchase Price
in Kind 2007, the provisions in Clauses 3.3.6.1 through 3.3.7 apply
accordingly, except that that the relevant rates for the exchange of Euros
into US Dollars as well as for determining the relevant closing price of the
Registered Shares traded on the Nasdaq will be determined as of 10 March 2007
for the Supplemental Purchase Price in Kind 2006 and on 10 March 2008 for the
Supplemental Purchase Price in Kind 2007 or, to the extent that these dates
are not Banking Days, on the next Banking Day.
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4.4.6
|
The Purchaser is entitled at any time to pay
the Supplemental Purchase Price in Kind 2006 or the Supplemental Purchase
Price in Kind 2007 completely or partially in cash to the bank accounts of
the Sellers set forth in Exhibit P3 (Part 4).
|
4.5
|
Loss of Claim for Payment
of a Supplemental Purchase Price
|
|
|
The claim of the Old Shareholders, except for
the Old Shareholders Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxx and
Prof. Xx. Xxxxxxx Xxxxxxxx, for payment of a Supplemental Purchase Price 2006
and/or payment of a Supplemental Purchase Price 2007 is lost if the
employment or service relationship with the relevant Old Shareholder is
terminated by the relevant Old Shareholder prior to 15 March 2007 in the case
of the Supplemental Purchase Price 2006 or before 15 March 2008 in the case
of the Supplemental Purchase Price 2007. The claim of the Old Shareholders,
except for the Old Shareholders Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx, Xxxx
Xxxxxxxxx and Prof. Xx. Xxxxxxx Xxxxxxxx, for payment of a Supplemental
Purchase Price in Kind 2006 and/or payment of a Supplemental Purchase Price
in Kind 2007 is also lost if the employment or service relationship with the
relevant Old Shareholder is terminated by RÖNTEC AG or its legal successor
for good cause [wichtiger Xxxxx] prior to 15
March 2007 in the case of the Supplemental Purchase Price in Kind 2006 or
prior to 15 March 2008 in the case of the Supplemental Purchase Price in Kind
2007. For the purpose of the preceding sentence, only serious misconduct on
the part of the Old shareholder concerned qualifies as good cause.
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§ 5
INDEPENDENT GUARANTEES OF THE SELLERS
|
5.1
|
Form and Scope of the
Guarantees by the Sellers
|
|
5.1.1
|
The Sellers hereby guarantee to the Purchaser
by way of an independent guarantee pursuant to § 311 para. 1 German Civil
Code [Bürgerliches Gesetzbuch, “BGB”] and
within the scope of the provisions of this Purchase and Transfer Agreement,
especially the terms in Clause 6 of this Purchase and Transfer Agreement,
that the statements contained in Clause 5.2 through Clause 5.35 of this
Purchase and Transfer Agreement are correct on the date on which this
Purchase and Transfer Agreement is concluded and on the Closing Date. The
Seller and the Purchaser expressly agree that the guarantees in Clause 5 of
this Purchase and Transfer Agreement are not guarantees as to the
characteristics or qualities of an object within the meaning of §§ 443, 444
BGB and that § 444 BGB is not applicable to the guarantees given here. To the
extent legally permissible and not expressly agreed otherwise in this
Purchase and Transfer Agreement, the provisions in §§ 5, 6 and 7 constitute
the totality of the agreements of the Parties with regard to the consequences
of an incorrect guarantee by the Sellers. All other claims and warranties,
regardless of how they arose, their scope or their legal basis, are expressly
excluded. This applies especially also for claims based on violation of
pre-contractual duties (§ 311 para. 2 and 3 BGB), violation of duties under a
contractual relationship [Schuldverhältnis],
defects as to quality or title defects [Sach- und Rechtsmängel],
especially § 434 para. 1 BGB, claims for reduction of the Purchase Price, and
claims based on disruption of the fundamental premises upon which the
transaction is based [Störung der
Geschäftsgrundlage]. The withdrawal from this Purchase and
Transfer Agreement is also excluded except in the cases of Clause 3.3.1, § 10
and Clause 15.2.
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5.1.2
|
Guarantees of bmp AG, bmp
Venture Tech GmbH and Ventegis Capital AG
|
|
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The guarantees under Clauses 5.4 through 5.35
and in § 7 are given only to the best of the Financial Investors’ knowledge.
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5.1.3
|
Knowledge
of the Old Shareholders and the Financial Investors
|
|
|
“Knowledge” of a Financial Investor within
the meaning of this Purchase and Transfer Agreement refers to the actual
knowledge of the respective Financial Investor; apart from actual knowledge,
the “knowledge” of an Old Shareholder includes matters which the Old
Shareholder ought to have known but for gross negligence.
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5.1.4
|
Attribution
of Knowledge
|
|
|
The knowledge of one Old Shareholder will be
attributed to the other Old Shareholders except for the Old Shareholders
Xxxxxx Xxxxxx, Xxxxxx Xxxxxxxxx und Xxxx Xxxxxxxxx
|
5.2
|
Ownership of the Shares
|
|
5.2.1
|
The Sellers are the sole, unrestricted legal
and beneficial owners of the Shares sold pursuant to Clause 2.1. The
information in the Share Register attached as Exhibit P1 is correct. Except
for the shareholders and Shares mentioned in Exhibit P1, there are no other
shareholders and/or Shares in RÖNTEC AG. The Shares are not represented by
certificates.
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5.2.2
|
The Shares have been validly issued. The
contributions to be paid for them were completely and properly rendered in
cash and/or as contributions in kind and have not been repaid (either openly
or in a hidden manner). There are no obligations to make additional
contributions. The Shares are free of encumbrances or other rights of third
parties. There are neither trustee relationships, nor silent participations
nor sub-participations in the Shares or similar agreements.
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5.2.3
|
The Sellers can freely dispose of the Sold
Shares after a corresponding resolution of the shareholders’ meeting
consenting to this, and the Purchaser will receive unrestricted legal and
beneficial title to the Sold Shares on the Closing Date.
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5.2.4
|
The Sold Shares are not encumbered with any
rights whatsoever of third parties. Neither the Sellers nor third parties
have preemption rights, rights of first refusal, subscription rights, option
rights or rights of conversion or similar rights with regard to the Sold
Shares. There are no agreements under which RÖNTEC AG is required to issue or
transfer shares, warrant-linked bonds or convertible bonds. This does not
apply to the convertible bond existing between the Company and Xxxx. Xxxxxxx
Xxxxxxxx which gives Xxxx. Xxxxxxx Xxxxxxxx an option to acquire 50,000
shares in RÖNTEC AG. The Sold Shares are not the subject of trustee
relationships or sub-participations.
|
5.3
|
Company Law Situation
|
|
5.3.1
|
The statements in the Preamble, Clause 1.1
and Clause 1.2 of this Purchase and Transfer Agreement are correct. RÖNTEC AG
has been properly established and continues to validly exist. Exhibit 5.3.1 contains the current articles of RÖNTEC AG
and the current excerpt from the Commercial Register for RÖNTEC AG. The
excerpt from the Commercial Register
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contains all facts which are required to be
registered as well as all resolutions of the shareholders’ meeting which must
be registered prior to the closing of this Purchase and Transfer Agreement.
In addition, there are no other agreements or collateral agreements about the
circumstances or the organization of the Company.
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5.3.2
|
Except for the silent partnerships with bmp
AG and bmp Venture Tech GmbH under the partnership agreement of 28 December
1998 and with Ventegis Capital AG under the partnership agreement of 29
October/5 November 2004, there are no silent participations in the Company.
The agreements on creating silent partnerships with bmp AG, bmp Venture Tech
and Ventegis Capital AG are attached as Exhibit 5.3.2.
Aside from these agreements, there are no other participations including
silent participations and sub-participations in the Company, and there are no
conditional obligations (options) owed to shareholders or third parties or
binding offers relating to the creation of such participations or the
granting of rights equivalent or similar to those of a shareholder (e.g.
voting agreements, profit participation agreements).
|
5.4
|
Participations
|
|
|
The Company holds the following
participations listed under points a) through c) and has a 100% participation
in the respective capital and voting rights of the following named companies.
|
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a)
|
RÖNTEC UK Ltd.
|
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b)
|
RÖNTEC France s.a.r.l.
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c)
|
RÖNTEC USA Inc.
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RÖNTEC AG holds no other participations. It
has not undertaken to shareholders or third parties to acquire or sell
participations.
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The companies listed above under points a)
and b) have discontinued their business operations. According to the
knowledge of the Sellers, these companies have no contracts with third
parties or liabilities owed to third parties. This does not include
liabilities resulting from discontinuing business operations or preparing the
annual financial statements. The Company also has no liabilities to the
companies listed under points a) and b) except for liabilities shown in the
Annual Financial Statements, and the Company is not liable towards third
parties for liabilities of these companies.
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|
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According to the knowledge of the Sellers,
the Company has no liabilities outside the ordinary course of business to the
subsidiary listed under point c) except to the extent shown in the Annual
Financial Statements of the
|
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Company. According to the knowledge of the
Sellers, the Company is not liable towards third parties for liabilities of
the subsidiary listed under point c). Aside from this, the independent
promises given in Clauses 5.2 through 5.35 for the subsidiary mentioned under
point c) apply accordingly, whereby a breach of guarantee only exists if the
Sellers have knowledge of the relevant matter.
|
5.5
|
Inter-company Agreements
|
|
|
RÖNTEC AG has not concluded any control,
profit and loss transfer or other inter-company agreements with other
companies. This does not apply to the contracts on the partial surrender of
profits which are related to the silent partnerships between RÖNTEC AG and
bmp AG, bmp Venture Tech GmbH and Ventegis Capital AG.
|
5.6
|
No Insolvency Proceedings
|
|
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No insolvency proceedings have been applied
for or commenced against RÖNTEC AG. According to the knowledge of the
Sellers, upon conclusion of this Purchase and Transfer Agreement, there are
neither circumstances which would require an application for insolvency
proceedings to be filed against RÖNTEC AG, nor circumstances which would
justify the annulment [Anfechtung]
of this Purchase and Transfer Agreement under applicable insolvency law.
|
5.7
|
Annual Financial
Statements
|
|
5.7.1
|
The following applies with regard to the
annual financial statements of RÖNTEC AG for the fiscal years ending on 30
June 2004 and 30 June 2005 (hereinafter referred to as the “Annual Financial Statements”) to be provided by the
Sellers to the Purchaser after conclusion of this Agreement. The Annual
Financial Statements have been audited and affixed with an unqualified
auditor’s opinion. According to the knowledge of the Sellers, the Annual
Financial Statements were prepared in accordance with generally accepted
accounting principals as well as in compliance with the principles of balance
sheet and valuation continuity (same valuation methods applied); the Annual
Financial Statements reflect from the perspective of the respective balance
sheet dates a true and accurate picture of the assets, financial situation
and earnings of RÖNTEC AG within the meaning of § 264 para. 2 German
Commercial Code [Handelsgesetzbuch,
“HGB”]. According to the knowledge of the Sellers, there are no liabilities
or contingent liabilities, nor have any such liabilities been created, which
exceed the liabilities and contingent liabilities within the meaning of § 251
HGB that are reported or for which provisions have been set aside in the
Annual Financial Statements; these
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liabilities and contingent liabilities are
completely and correctly identified in the notes to the Annual Financial
Statements.
|
5.8
|
Contingent Liabilities
|
|
|
Exhibit 5.8 contains a true and complete list of all contingent liabilities of
the Company as of the time when this Agreement is concluded, including any
contingent liabilities under bills of exchange.
|
5.9
|
Futures Transactions /
Options
|
|
|
The Company has not concluded any futures or
options transactions for commodities, foreign currency, securities or
financial products (e.g., indices, interest rates, financial units, etc.)
|
|
|
There are also no contingent obligations of
the Company under options or similar agreements on the acquisition or the
sale of (i) participations or memberships in other companies and (ii) real
property or rights equivalent to real property.
|
5.10
|
Loan Agreements /
Liabilities owed to Banks
|
|
|
Exhibit 5.10 contains a true and complete list as of the time when this Agreement
is concluded of all loan agreements concluded by the Company as the debtor,
including all loan agreements with the Sellers and/or third parties, as well
as the current status as of 30 September 2005 of all liabilities owed to
banks. The existing current account credit lines total EUR ***.
|
5.11
|
Security / Liability for
Obligations of Third Parties
|
|
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According to the knowledge of the Sellers,
the Company has not provided security for liabilities owed to third parties
and has not issued any sureties [Bürgschaften],
guarantees or letters of comfort [Patronatserklärungen],
except for the reservations of title for the benefit of suppliers which are
standard in the industry.
|
5.12
|
Assets
|
|
|
The Company is the sole and unrestricted
owner and/or holder of all assets allocated to fixed and current assets in
the ordinary course of business and included in the Company’s Annual
Financial Statements 2005. These assets are free of encumbrances of all kinds
in favor of third parties, except for
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
|
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standard reservations of title and security
interests in respect of the liabilities incurred in the ordinary course of
business and included in the Annual Financial Statements 2005. This does not
apply, however, to all receivables owed by customers, which have been
assigned as security to Deutsche Bank AG.
|
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The assets of the Company and the other items
which the Company uses in the ordinary course of business on the basis of
rent, lease or other agreements on use are in proper condition as of
30 September 2005 having regard to normal wear and tear and are
sufficient in order to conduct the operations of the Company to their current
extent. The above assets and items are free of defects except for such
defects for which provisions have been established in the Annual Financial
Statements 2005.
|
5.13
|
Intellectual Property
Rights
|
|
|
a)
|
Exhibit 5.13 is a full and complete list of all patents, trademarks and other
intellectual property rights which the Company holds and all agreements with
third parties (including the Sellers) about such patents, trademarks or other
intellectual property rights. In addition, license agreements (active and
passive) relating to such intellectual property rights or know-how are
included in Exhibit 5.13. The intellectual property rights listed in Exhibit
5.13 are validly existing and, to the knowledge of the Sellers, have not been
challenged by third parties and, to the knowledge of the Sellers, are not
subject to cancellation. Any registration fees or other costs for the maintenance
of these intellectual property rights have been fully paid.
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|
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b)
|
According to the knowledge of the Sellers,
the Company possesses all patents, trademarks and other intellectual property
rights which are necessary for its business operations. According to the
knowledge of the Sellers, the Company does not use any patents, trademarks or
other intellectual property rights of third parties to which it does not have
a right of use under a license agreement, and to the knowledge of the
Sellers, the Company is not violating patents, trademarks or other
intellectual property rights of third parties by the conduct of its business
as it is currently conducted.
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c)
|
The Sellers themselves hold no copyrights,
patents, trademarks or other intellectual property rights either directly or
indirectly (e.g., by family members or companies in which they hold
participations by themselves or together with family members) which the
Company requires or uses for the conduct of its business as it is currently
conducted.
|
5.14
|
Company Name
|
|
|
The Company is entitled to carry its name.
The use of the name does not violate any rights of third parties.
|
5.15
|
Lease and Similar
Agreements
|
|
|
Exhibit 5.15 reflects all rent, lease, leasing and other long-term contractual
relationships concluded by the Company which individually give rise to annual
payment obligations of more than EUR 5,000.00.
|
5.16
|
Procurement
|
|
|
Exhibit 5.16 contains all material agreements on the purchase of goods lasting
beyond 31 December 2005 and all orders issued to third parties relating to
the acquisition by the Company of assets with a value of more than EUR
5,000.00 in the individual case. There are no obligations of the Company,
including under the contracts listed in Exhibit 5.16, involving the
acquisition of minimum amounts of raw materials and supplies or other
products or for payment of prices higher than market price.
|
5.17
|
Service Agreements
|
|
|
Exhibit 5.17 contains a complete and accurate list of all service agreements under
which the Company is required to provide support and maintenance services to
its customers. Exhibit 5.17 also mentions all open technical and maintenance
problems which the Company currently has when rendering its services under
the service agreements.
|
5.18
|
Consulting Agreements
|
|
|
The Company has not concluded any consulting
agreements for services which the Company receives or under which the Company
is required to provide consulting services.
|
5.19
|
Distribution Agreements
|
|
|
Exhibit 5.19 contains a complete and accurate list of all distribution agreements
and commercial agency agreements (active and passive) of the Company.
According to the knowledge of the Sellers, these agreements have not been
terminated, nor is termination threatened to the best of the Sellers’
knowledge. The Company has not concluded any commercial agency,
distributorship or similar agreements which could lead to future claims
pursuant or according to § 89 b HGB, except to the extent they have been
|
|
|
identified as such in Exhibit 5.19. Claims
pursuant or according to § 89 b HGB have not yet been asserted and none
have been foreshadowed.
|
5.20
|
Personnel
|
|
|
a)
|
The personnel data of RÖNTEC AG provided to
the Purchaser on 7 October 2005 in the context of the due diligence
examination contains a true and complete list of all employees of the
Company. The data contained there are correct.
|
|
|
b)
|
No special benefits of any kind whatsoever
(e.g. premiums, bonuses, commissions, special vacations) have been promised
to employees and members of the management board [Vorstand]
for the future.
|
|
|
c)
|
The employment agreements between the Company
and the employees employed at the Company as of the Effective Transfer Date
on 7 October 2005 and the agreement with Xx. Xxxxxx Xxxxxxxx, a member
of the management board, have not been terminated, except for the agreement
with the employee Xx. Xxxxxxx Xxxxxxxx. To the best of the Seller’s
knowledge, none of the employees or Xx. Xxxxxx Xxxxxxxx has announced a
desire to terminate the employment relationship as a result of the pending
change in the shareholders or for other reasons.
|
|
|
d)
|
The Company is not a member of an employers’
association and is not subject to any binding union salary rates, including
under any union agreements which have been declared to be generally
applicable. There is no works council [Betriebsrat]
at the Company. To the best of the Sellers’s knowledge, there are also no
efforts to establish any works councils.
|
5.21
|
Continuation of Material
Agreements
|
|
|
The cooperation agreement existing between
the Company and *** is not subject to termination, limitation or amendment as
a result of the change in the shareholders and is legally valid; the rights
and claims of the Company established in this contract are enforceable. The
contract is not terminated. There are no indications that during the period
after conclusion of this Agreement there could be a termination, notice of
termination or failure to extend this contract. There have especially been no
circumstances which have
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
|
|
arisen in the business relationships of the
parties to the above contract which would indicate a disturbance or even a
breaking off of the business relationship in the near future.
|
5.22
|
Customer Relations
|
|
|
According to the knowledge of the Sellers,
there have been especially no circumstances in the business relationships
with their customers (such as resolved or unresolved warranty claims,
problems with deliveries or other contractual problems) which would result in
a disturbance or even a breaking off of the business relationship in the near
future.
|
5.23
|
Insurance
|
|
|
Exhibit 5.23 contains a true and complete list of all insurance agreements
concluded by the Company stating the insured risk and the respective
insurance amount. The Company has fulfilled its obligations under the
corresponding insurance contracts and has not defaulted on the obligation to
pay insurance premiums.
|
5.24
|
Disputes
|
|
|
As of 7 October 2005 there are no court
proceedings, administrative proceedings or arbitration proceedings or other
legal proceedings (active or passive) for or against the Company or which are
threatened where the amount in dispute exceeds EUR ***. In addition, to the
best of the Sellers’ knowledge, no such disputes or administrative
proceedings are to be expected in which the Company would be involved as a
party.
|
5.25
|
Warranties
|
|
|
The Company has granted warranties only in
the ordinary course of business to its customers or end-users of the products
it delivers. According to the knowledge of the Sellers, these warranties do
not exceed what is common in the field. Exhibit 5.25
contains a complete and accurate list of all products delivered by the
Company in the past for which the Company’s contract partner or the end-user
still has oral or written warranties or warranties in the form of a
“Gentlemen’s Agreement”. Exhibit 5.25 also contains a complete
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
|
|
and correct list of all products produced by
the Company in relation to which the respective customer of the Company or
the end-user has reported technical problems in the past, which has given
rise or could give rise to claims against the Company.
|
5.26
|
Products
|
|
|
To
the knowledge of the Sellers, the products produced and distributed by the
Company satisfy all applicable legal provisions and can be produced and
distributed without violating patents, trademarks or other intellectual
property rights of third parties.
|
5.27
|
Compliance
|
|
|
To the extent not stated otherwise in Exhibit 5.27, the following applies to the Company: The
business operations of the Company as well as the buildings they use are
substantially in compliance at the present time with the permits and
approvals under public law and all applicable laws and regulations, including
construction law and zoning law and provisions covering protection of health,
maintenance of safety at the work place and protection of the environment.
The Company has all permits and licenses under public law and civil law which
are required or appropriate for the conduct and operations of the Company and
for its transactions. The existence of such permits or concessions is not
endangered. The business operations of the Company do not violate any
administrative orders, conditions or other orders issued by government or
municipal authorities or courts.
|
5.28
|
Environment
|
|
|
The Sellers are not aware of any soil and/or
groundwater contamination or other harmful changes of the soil within the
meaning of § 2 para. 3 German Soil Protection Act [Bundesbodenschutzgesetz,
“BBodSchG”] requiring clean-up as a result of the operational activities of
the Company; furthermore, the Sellers are not aware of any classification of
the Company’s commercial property as an area of preexisting contamination [Altlasten] within the meaning of § 2 para. 5 BBodSchG for
which the relevant authorities, according to the current state of knowledge,
could require that the owner or holder of immediate possession conduct an
investigation, clean-up, removal, other treatment or control, or assume the
costs of such measures. According to the knowledge of the Sellers, there are
no pending proceedings of public authorities against the Company relating to
the removal of contamination of
|
|
|
the soil and/or the groundwater or an inspection
of such contamination, nor have such proceedings been announced or are they
to be expected.
|
5.29
|
Public Subsidies
|
|
|
To the extent that the Company received
public subsidies in the past, these subsidies were granted on the basis of
accurate and correct information by the Company, and they were used in
accordance with the determinations, conditions and terms in the orders
granting subsidies or the agreements on subsidies. Corresponding subsidies
have not been granted in violation of the substantive and formal provisions
under Art. 87 and 88 EU Treaty. The corresponding orders granting subsidies
are, to the knowledge of the Sellers, legally valid, have not been
challenged, and there are no indications that the Company is or could be
required to repay subsidies which have been approved or granted for periods
prior to the Closing Date for any reason (including the change of
shareholders effected by this Agreement).
|
5.30
|
Restrictions on
Competition
|
|
|
Except as stated in Exhibit
5.30, there are no prohibitions and agreements for the benefit of
the Company or burdening the Company, especially no agreements which could
restrict the Company from being or becoming active in its present field of
business or in other fields of business in the future. In addition, and
except as listed in Exhibit 5.30, there are no agreements on delineation of
markets or other arrangements relating to competition law between the Company
and third parties, especially not with the Sellers or enterprises in which
the Sellers have a direct or indirect participation.
|
5.31
|
Business Dealings with the
Sellers
|
|
|
Except for the contracts listed in Exhibit 5.31, the Company has no contracts with the
Sellers or parties related to the Sellers or businesses in which the Sellers
hold participations. Parties related to the Sellers or enterprises in which
the Sellers have a participation have not received loans from the Company
which have not yet been fully repaid and for which the borrower has not paid
market rate interest to the Company in full.
|
5.32
|
Complete Disclosure
|
|
|
During the discussions and negotiations in
the lead-up to this Agreement about the acquisition of the shares in the
Company and in response to the questions posed, the Sellers have provided to
the Purchaser and its representatives truthful and complete information which
a purchaser acting with reasonable care in commercial matters could in good
faith expect from a seller acting as
|
|
|
an honest businessman as the basis for the
decision to conclude this Agreement. According to the knowledge of the
Sellers, there are no circumstances indicating that the guarantees given in
this Agreement are not or will not be accurate on the date of conclusion and
closing of this Agreement, or which indicate that the unrestricted
continuation of the business operations of the Company after the date of
conclusion and closing of this Agreement could be materially adversely
affected.
|
5.33
|
Brokers
|
|
|
Neither the Seller nor the Company have
retained a broker or mediator in connection with the conclusion of this
Agreement, and no obligations to pay fees for a broker or a mediator in
connection with the conclusion of this Agreement have been undertaken for
which the Purchaser or the Company is or could be liable.
|
5.34
|
Assets of the Sellers
|
|
|
The Shares sold pursuant to Clause 2.1 do not
constitute the complete assets of the respective Sellers within the meaning
of § 1365 BGB.
|
|
|
|
|
§ 6
|
|
CONSEQUENCES OF BREACH
|
6.1
|
Compensatable Damage
|
|
6.1.1
|
In the case of a violation of the guarantees
under Clause 5 and Clause 7 of this Purchase and Transfer Agreement by the
Sellers, the Sellers must place the Purchaser and RÖNTEC AG in the position
they would have been in if the guarantee had not been violated [Naturalrestitution]. If the Sellers are not willing or
able to do this within 60 days after the Purchaser has notified the Sellers
in writing about the violation of a guarantee, the Purchaser can demand
monetary damages.
|
|
6.1.2
|
The Purchaser has no claims against the
Sellers for a breach of a guarantee under Clause 5 and Clause 7 of this
Purchase and Transfer Agreement if and to the extent that
|
|
|
(a)
|
the circumstance for which the claim is
asserted is sufficiently taken into account in the Annual Financial
Statements; or
|
|
|
(b)
|
provisions in the Annual Financial Statements
can be written back for this purpose; or
|
|
|
(c)
|
the set of facts constituting a breach of a
guarantee under Clause 5 and Clause 7 of this Purchase and Transfer Agreement
has been completely disclosed to the Purchaser in the Disclosure Letter
attached as Exhibit 6.1.2.a; or
|
|
|
(d)
|
the set of facts constituting the breach of a
guarantee under Clause 5 and Clause 7 of this Purchase and Transfer Agreement
has been addressed in the Due Diligence Report of the Law Firm CMS Xxxxxx
Xxxxx attached as Exhibit 6.1.2.b
or in the letter of Mr. Xxxxxxx Xxxxxx of 20 September 2005 attached as Exhibit 6.1.2.c; or
|
|
|
(e)
|
the violation of the warranty results
exclusively from the fact that the status of the law has changed between the
conclusion of this Agreement and the Closing Date.
|
6.2
|
Liability of the Sellers
for the Guarantees under Clause 5
|
|
|
The liability of the Sellers for a violation
of the guarantees in Clauses 5.4 through 5.26 and Clause 5.29 through Clause
5.35 of this Purchase and Transfer Agreement is limited to the amount of the
net Purchase Price plus the amount of any increase in the Purchase Price
pursuant to § 4 of this Purchase and Transfer Agreement allocable to the
respective Seller (hereinafter referred to as the “Maximum
Liability Amount”).
|
6.3
|
Exempt Amount, Total
Exempt Amount
|
|
|
The Purchaser is only entitled to assert
claims under Clauses 5.4 through 5.35 of this Purchase and Transfer Agreement
if in a specific case the claim against one or more Sellers has a total value
of EUR *** (ten thousand Euros) (hereinafter referred to as the “Minimum Amount”) and the total amount of one or more
individual claims against the Sellers under Clauses 5.4 through 5.35, taking
into account the following sentence, exceeds a total of EUR *** (twenty-five
thousand Euros) (hereinafter referred to as the “Threshold
Amount”). If the Minimum Amount and the Threshold Amount are
exceeded, the Sellers are liable for the total amount. In the case of claims
under Clauses 5.1 through 5.3 of this Purchase and Transfer Agreement, claims
can be asserted against one or more Sellers without the Minimum Amount or a
Threshold Amount having to be reached.
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
6.4
|
Knowledge of the Purchaser
|
|
|
Section 442 para. 1 BGB applies subject to
the proviso that the sets of facts contained in the Due Diligence Report of
the Law Firm CMS Xxxxxx Xxxxx attached as Exhibit
6.1.2.b and the letter of Mr. Xxxxxxx Xxxxxx of 20 September
2005 attached as Exhibit 6.1.2.c
are considered to be known to the Purchaser, and only claims against the
Sellers based on these sets of facts cannot be asserted; aside from this,
circumstances about which the Purchaser has knowledge and which would
constitute a breach of the guarantees in § 5 and § 7 do not preclude the Purchaser’s Rights.
|
6.5
|
Notice to the Sellers;
Proceedings in the Case of Third Party Claims
|
|
|
In the case of an actual or possible breach
of a guarantee under § 5 and § 7 of this Purchase and Transfer Agreement, the
Purchaser is required to notify the Sellers in writing about the actual or
potential breach and to state the estimated amount of the claim to the extent
possible. The Sellers must be given the opportunity to correct the breach
within the period set forth in Clause 6.1.1 of this Purchase and Transfer
Agreement.
|
6.6
|
Mitigation of Loss,
Exclusion of Liability
|
|
|
Section 254 BGB remains unaffected. In particular,
the Purchaser is required to avoid the occurrence of harm and to minimize the
amount of the resulting damages. A claim for damages by the Purchaser is
limited to the direct damages caused by the incorrectness of the guarantee,
excluding indirect damages, consequential damages and loss of profits.
|
6.7
|
Limitations Period
|
|
|
All claims of the Purchaser for breach of a
Sellers’ guarantee under Clause 5.4 through Clause 5.27 and Clause 5.30
through Clause 5.35 of this Purchase and Transfer Agreement are time-barred
on 31 March 200***; claims due to a breach of a guarantee under Clauses 5.1
through 5.3 of this Purchase and Transfer Agreement are time-barred after the
expiration of 10 (ten) years from the Closing Date, claims for a breach of
Clause 5.28 are time-barred after the expiration of 5 (five) years from the
Closing Date, and claims for violation of Clause 5.29 are time-barred upon
expiration of 3 (three) years from the Closing Date. Claims of the Purchaser
under § 7 (Taxes) of this Purchase and Transfer Agreement are time-barred 6
months after a final and binding ruling has been issued by the relevant tax
authority for the relevant period of time.
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
6.8
|
Exclusion of further
Claims
|
|
|
To the extent legally permissible and not
expressly agreed otherwise in this Purchase and Transfer Agreement, all
further claims and warranties are expressly excluded, regardless of how they
arose, their scope or their legal basis. This applies especially for claims
based on breach of pre-contractual duties (§ 311 para. 2 and 3 BGB),
violations of duties under a contractual relationship, claims for reduction
of the Purchase Price, and claims based on disruption of the fundamental
premises upon which the transaction is based. The withdrawal from this
Purchase and Transfer Agreement is also excluded except in the cases of
Clause 3.3.1, § 10, § 15.
|
|
|
|
|
§ 7
TAX WARRANTIES AND INDEMNIFICATION
|
7.1
|
Tax Guarantee
|
|
|
The Sellers also
guarantee as an independent guarantee pursuant to § 311 para. 1 BGB
that, as of the Closing Date:
|
|
|
(a)
|
RÖNTEC AG has provided all declarations and
preliminary notifications about taxes, fees, contributions and other levies,
customs duties and social insurance contributions and all other legally
required declarations to the relevant authorities on time or in accordance
with an express or implicit extension of deadline and in a complete and
truthful manner. There are no external audits or other audits currently being
conducted at RÖNTEC AG;
|
|
|
(b)
|
RÖNTEC AG has completely paid when due all
taxes including tax prepayments, fees, contributions and other levies, customs
duties and social insurance contributions and has withheld all taxes (tax
withholding amounts), fees, contributions and other levies, customs duties
and social insurance contributions which were required to be withheld and has
passed them on to the respective recipient when due and has paid all
ancillary tax payments, amounts subject to tax liability and penalties;
|
|
|
(c)
|
RÖNTEC AG has set aside tax provisions in the
Annual Financial Statements at least in the amount required by law to the
extent that taxes, including tax withholding amounts, ancillary tax payments
and amounts subject to tax liability, fees, contributions and other levies,
|
|
|
|
customs duties and insurance contributions as
well as fines were not paid or not paid in full for assessment periods prior
to 30 June 2005;
|
|
|
(d)
|
RÖNTEC AG has accurately reported any claims
for reimbursement or return of taxes, fees, contributions and other levies,
customs duties and social insurance contributions in the Annual Financial
Statements.
|
7.2
|
Damages based on Tax
Guarantees
|
|
|
The Purchaser is entitled to assert a claim
for damages against the Sellers in the amount of any tax burden on RÖNTEC AG
(including tax prepayments, fees, contributions and other levies, customs
duties and social insurance contributions) which (i) relates to assessment
periods up to 30 June 2005, or (ii) relates to periods prior to the Closing
Date and which has not been fully discharged by the Closing Date or has not
been sufficiently provided for in the Annual Financial Statements 2005. In
the case of sentence 1 (ii), the applicable taxes, levies, customs duties and
social insurance amounts will accrue on a pro rata temporis
basis. Sentence 1 applies accordingly in the case of taxes resulting from
hidden distributions of profits [verdeckte
Gewinnausschüttungen] which took place prior to the Closing Date.
|
|
|
The above claims for damages do not include
changes that are merely the result of shifting the tax basis (shifting
between tax periods).
|
|
|
|
|
§ 8
DISCHARGE OF RÖNTEC AG’S LIABILITIES
|
8.1
|
Release from Liabilities
under Loans and other Liabilities
|
|
|
The Purchaser
undertakes to directly obtain a release from the respective creditor of the
liabilities listed in Exhibit 8
within 30 Banking Days after the Closing Date and, in so doing, to make a
contribution to RÖNTEC AG’s other capital reserves as defined in § 252 para.
2 no. 4 HGB. Furthermore, the Purchaser intends to repay the other loan
obligations if this is economically appropriate.
|
|
§ 9
INDEMNIFICATIONS AND COVENANTS OF THE SELLERS
|
9.1
|
Limitations Period; Scope
of Liability
|
|
|
Claims for
indemnification under this Clause 9 are time-barred upon expiration of 8
(eight) years after the Closing Date. Clause 6.6 applies mutatis
mutandis.
|
9.2
|
Proceedings in the Case of
Indemnification Claims
|
|
|
To the extent that the Sellers consider
claims of third parties for which the Purchaser and/or RÖNTEC AG can claim
indemnification under Clauses 9.1 through 9.3 (hereinafter the “Indemnification Claims”) to be unjustified, the following
applies: The Purchaser and/or RÖNTEC AG will inform the respective Sellers
required to indemnify about the Indemnification Claims completely and without
undue delay and will only make declarations in litigation and other
declarations (also to public authorities) with the consent of the Sellers
required to indemnify. At the request of the respective Sellers required to
indemnify, the Purchaser and/or RÖNTEC AG will take measures to defend
against the Indemnification Claims either themselves or through a person
designated by the respective Sellers required to indemnify, provided that the
respective Sellers required to indemnify pay all related costs (court costs
as well as costs outside of court), including advances and security, before
they become due. The disputes about Indemnification Claims will be conducted
according to the instructions of the respective Sellers required to indemnify
to the extent that the respective Sellers under the obligation to indemnify
require this without undue delay after the notice from the Purchaser and/or
RÖNTEC AG about the Indemnification Claims. The costs of defending against
obviously unjustified claims will initially be borne by the Company.
|
9.3
|
Indemnification in
connection with Silent Participations
|
|
|
In the event that doubts exist that the
silent participations between RÖNTEC AG and bmp AG, bmp Venture Tech GmbH and
Ventegis Capital AG will be validly terminated with economic effect as of the
Closing Date pursuant to the termination agreement still to be concluded, bmp
AG, bmp Venture Tech GmbH and Ventegis Capital AG undertake to place the
Purchaser and RÖNTEC AG completely in the position they would have been in if
the above mentioned silent participations had been validly terminated
effective as of the Closing Date.
|
|
§ 10
MATERIAL ADVERSE CHANGE
|
|
|
If during the
period between conclusion of this Agreement and the Closing Date an event
occurs or circumstances become known which lead to the following, the
Purchaser is entitled to withdraw from this Agreement by declaration given to
the Sellers:
|
|
|
|
|
|
|
a)
|
if the unrestricted continuation of the
business operations of the Company during the period after the date of
conclusion or the closing of this Agreement could be materially adversely
affected,
|
|
|
|
|
|
|
or
|
|
|
|
|
|
|
|
b)
|
if there is a violation of one of the
independent guarantees given under § 5 and § 7 which may lead to actual or
anticipated harm to RÖNTEC AG and/or the Purchaser in excess of an amount of
EUR 300,000.00, without it being necessary that a claim of the Purchaser against
the Sellers for such damage actually exists under § 6 or § 8.
|
|
|
|
|
|
|
or
|
|
|
|
|
|
|
|
c)
|
if an application is submitted to commence
insolvency proceedings over the assets of the Company and/or reasons for
commencing insolvency proceedings under §§ 16 through 19 German Insolvency
Code [Insolvenzordnung] exists.
|
|
|
|
|
|
|
If the Purchaser
withdraws from this Agreement under this § 10, claims of the Sellers
against the Purchaser based on or relating to the withdrawal from this
Agreement are excluded. Any further claims of the Purchaser remain
unaffected, even if it withdraws from this Agreement. After expiration of the
Closing Date, the Purchaser is precluded from withdrawal pursuant to this §
10.
|
|
|
|
|
§ 11
VESTING
|
|
All Old
Shareholders, except for the Old Shareholders Xxxxxx Xxxxxx, Xxxxxx
Xxxxxxxxx, Xxxx Xxxxxxxxx and Prof. Xx. Xxxxxxx Xxxxxxxx, undertake to
conclude the
|
|
Stock Repurchase
Agreement with Bruker BioSciences Corporation attached as Exhibit 11 immediately after conclusion of this Agreement
and to comply with the restrictions on dispositions of the Registered Shares
set forth in the Stock Repurchase Agreement.
|
|
|
|
|
§ 12
PROHIBITION ON COMPETITION
|
12.1
|
Prohibition on Competition
for the Sellers
|
|
|
The Old Shareholders, except for ***,
undertake to the Purchaser and RÖNTEC AG by way of a third party beneficiary
contract that they will not engage in activities which are in competition
with the business of RÖNTEC AG as conducted on the date this Agreement is
concluded or promote such competition, be it directly or indirectly or for
own account or for the account of a third party, for a period of three years
after the date on which this Agreement is concluded. This prohibition on
competition covers the territory of ***.
|
12.2
|
Participations in a
competitive Enterprise
|
|
|
The Old Shareholders undertake towards the
Purchaser and RÖNTEC AG by way of a third party beneficiary contract also not
to participate in one or more enterprises which are in competition in any way
whatsoever with RÖNTEC AG in the territory mentioned in Clause 12.1, be it
directly or indirectly or for their own account or the account of third
parties, for a period of three years after conclusion of this Agreement. This
prohibition on participations applies to all participations as owner, shareholder
or in any other form (also silent), but not for the acquisition of shares
listed on an exchange up to 2% of the share capital in a stock corporation if
the acquisition is for purposes of investment without exercising or seeking
to exercise influence on the management of the relevant company.
|
12.3
|
Activity for RÖNTEC AG
|
|
|
The prohibition on competition is not
violated by work for RÖNTEC AG or its successors in right.
|
|
|
|
|
[ ***] Indicates information has been omitted and
separately filed with the Securities and Exchange Commission pursuant to an
application for an order declaring confidential treatment thereof.
|
12.4
|
Contract Penalty [Strafversprechen]
|
|
|
Each Seller who violates the provisions in
this § 12 or in § 13 undertakes to pay to the Purchaser a contract
penalty in the amount of EUR *** for each instance of a violation of the
prohibition on competition under the above Clauses 12.1 through 12.3 or the
provisions on confidentiality in § 13, which penalty is due upon the
commencement of the violation and will bear interest from that point in time
at the rate of 5% annually above the respective base interest rate [Basiszinssatz]. If the violation is continued despite a
written reminder, then a further contractual penalty in the amount set forth
in sentence 1 is to be paid for each commenced month of the violation; the
above provision applies mutatis mutandis
to when the penalty becomes due and to the interest thereon. The claim of the
Purchaser for payment of the contractual penalty does not affect the claims
of the Purchaser, RÖNTEC AG or any successors in right to RÖNTEC AG for
damages or performance (cease and desist in competing, compelling compliance
with the obligation of confidentiality). The Sellers are required to provide
information to the Purchaser and RÖNTEC AG about the duration, type and scope
of the violation against the prohibition on competition and/or the
requirement of confidentiality.
|
|
|
|
|
§ 13
CONFIDENTIALITY AND PRESS RELEASES
|
13.1
|
Confidentiality; Press
Releases; Public Announcements
|
|
|
The Sellers undertake to maintain
confidentiality towards third parties with regard to the conclusion, the
parties and the content of this Purchase and Transfer Agreement, unless the
relevant facts are public knowledge or their publication is required by law,
by other regulatory, accounting or tax rules, or by virtue of other
administrative requirements. In this case, the Sellers are required to inform
the Purchaser in advance and to limit the publication to the content required
by law or by the public authorities. The Purchaser is free - without the
consent of the Sellers - to issue press releases or other publications about
the transactions contemplated in this Purchase and Transfer Agreement. Any
notices or announcements, which are required by law or by the applicable
stock exchange rules or securities laws and regulations, must be made.
|
|
[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
|
13.2
|
Confidentiality on the
part of the Sellers
|
|
|
The Sellers are required to treat all
business secrets of the Company as confidential and not to disclose them to
third parties or use them for the Sellers’ own purposes, unless these
business secrets have become public knowledge prior to the date on which this
Purchase and Transfer Agreement is concluded without this obligation being
violated, or the Sellers are compelled by law to make such disclosures or the
Purchaser has given prior written consent to the disclosure.
|
|
|
|
|
§ 14
ASSIGNMENT OF RIGHTS AND OBLIGATIONS
|
|
|
The rights and obligations under this
Purchase and Transfer Agreement cannot be assigned, either in whole or in
part, without the prior written consent of the respective other Parties. This
does not apply to the transfer of rights and/or obligations of the Purchaser
to an enterprise, which is affiliated with the Purchaser or its shareholder [verbundenes Unternehmen] within the meaning of §§ 15 et seq. German Stock Corporations Act [Aktiengesetz, “AktG”].
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§ 15
CONTINUATION
OF THE BUSINESS OPERATIONS
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15.1
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The Parties will inform each other without
undue delay in the event that the following actions are supposed to be
carried out prior to the Closing Date:
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(a)
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withdrawals or (advance) distributions of
profits or reserves;
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(b)
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conclusion, termination, notice of
termination or amendments to contracts, which are outside of the ordinary
course of business or have a value of more than EUR 25,000.00 or a fixed term
of more than one year;
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(c)
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changes to the accounting methods;
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(d)
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issuance of guarantees, sureties [Bürgschaften], comfort letters or other forms of security for the liabilities of
third parties (including the Sellers);
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(e)
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authorization of capital expenditures in
excess of EUR 25,000.00;
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(f)
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hiring of employees, including trainees and
independent contractors, or granting pensions;
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(g)
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conclusion, termination, notices of
termination of or modification to contracts with the Sellers or enterprises
affiliated with the Sellers within the meaning of §§ 15 et seq.
AktG as well as the settlement of claims of the Sellers and/or their
affiliated enterprise against RÖNTEC AG or the making of other payments
to the above persons, except for those customary business payments, which
have been made in the ordinary course of business upon exercising the care of
a reasonable business person and which were similar to those payments made in
business year 2004/2005; or
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(h)
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conclusion, termination, notice of
termination of or modification to contracts or agreements for industrial
property rights, copyrights or other intellectual property rights, including
rights of use as well as the issuance of such declarations and the taking
other measures in connection with the above rights;
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(i)
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other actions outside of the ordinary course
of business.
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15.2
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If the Company carries out one of the above
measures in the period between conclusion of this Agreement and the Closing
Date without the prior consent of the Purchaser, then the Purchaser will be
entitled to withdraw from this Agreement by giving written notice to the
Sellers within a period of 30 calendar days after the point in time when the
Purchaser obtained knowledge of the measure. Mutual claims of the Parties
against each other do not exist in the case of a withdrawal under this Clause
15.2.
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§ 16
POWER OF ATTORNEY FROM THE SELLERS
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Each of the Sellers hereby grants power of
attorney to:
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Xx. Xxxxxxx Xxxxxxx, with offices at
Alt-Moabit 59-61, 10555 Berlin
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as well as
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Xx. Xxxxxx Xxxxxxxx, ***,
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[ ***]
Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
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as well as
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Xx. Xxxxxx Xxxxxx, with offices at
Xxxxxxxxxxxxxx 000, 00000 Xxxxxx,
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acting jointly, to
issue all necessary and/or appropriate declarations of intent for the Sellers
in connection with the sale and transfer of all shares held by the Sellers in
RÖNTEC AG to the Purchaser and to receive such declarations; this power of
attorney is irrevocable, but it is limited until 31 December 2005, and the
attorneys-in-fact are released from the restrictions of § 181 BGB. This also
applies to the exercise of all shareholder rights in shareholders’ meetings
of the Company.
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§ 17
TAXES AND COSTS
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17.1
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Taxes
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Any transaction taxes, including real
property transfer tax, and all other fees and levies resulting from the
conclusion or the performance of this Purchase and Transfer Agreement will be
borne by the Purchaser. This also applies to all fees and other costs in
connection with proceedings under cartel law, stock exchange proceedings and
the compliance with other provisions under public law.
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17.2
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Costs
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Otherwise, each Party bears its own costs and
disbursements, including the fees, costs and disbursements of its
Consultants.
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§ 18
NOTICES
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18.1
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Form of Notices
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All legal declarations and other notices in
connection with this Purchase and Transfer Agreement must be in written form
to the extent that notarization or another form is not required by law.
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18.2
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Notices to the Sellers
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All notices to the Sellers in connection with
this Purchase and Transfer Agreement are to be addressed to:
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a)
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In the case of a notice to bmp AG and/or bmp
Venture Tech GmbH:
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bmp Aktiengesellschaft
z. Hd. Xxxxxxx Xxxxxxx
Alt-Moabit 59-61
D-10555 Berlin
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b)
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In the case of a notice to Ventegis Capital
AG:
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Ventegis Capital AG z. Hd.
Herrn Xxxxxx Xxxxxx Xxxxxxxxxxxxxx 000 X-00000
Xxxxxx
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c)
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In the case of a notice to one or all Old
Shareholders:
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Xxxxxx Xxxxxxxx
***
All Old Shareholders hereby grant irrevocable
power of attorney, which will survive their own death, to Xx. Xxxxxx Xxxxxxxx
for the purpose of receiving all declarations as their agent for receipt of
legal declarations which are directed under this Agreement to one or more Old
Shareholders.
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18.3
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Notices to the Purchaser
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All notices to the Purchaser in connection
with this Purchase and Transfer Agreement are to be addressed to:
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Bruker AXS GmbH
z. H. Herrn Xx. Xxxxx Burgäzy
Östliche Xxxxxxxxxxxxxxxxxx 00
00000 Xxxxxxxxx
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[ ***] Indicates information has been omitted and
separately filed with the Securities and Exchange Commission pursuant to an
application for an order declaring confidential treatment thereof.
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18.4
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Changes in the Addresses
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The Parties must notify the respective other
parties in writing about changes in the above addresses. The current address
is deemed to be valid until such a notice.
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§ 19
FINAL PROVISIONS
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19.1
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Applicable Law
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This Purchase and Transfer Agreement is
governed by German law to the extent that the laws of another country are not
required to be applied. Any references under the applicable conflicts of law rules
[Internationales Privatrecht] and the
United Nations Sales Convention do not apply.
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19.2
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Jurisdiction and Venue
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To the extent legally permissible, the exclusive
jurisdiction and venue for all disputes between the Parties under or in
connection with this Purchase and Transfer Agreement shall be Berlin. The
Purchaser hereby appoints the Law Firm of CMS Xxxxxx Xxxxx, Xxxxxxxxxxxxxxx
00-00, 00000 Xxxxxxxxx xx Xxxx, as its agent for service of process, and the
Sellers jointly appoint Xx. Xxxxxx Xxxxxxxx as their agent for service of
process.
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19.3
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Amendments, Supplements
and Cancellations
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Amendments, supplements or the cancellation
of this Purchase and Transfer Agreement, including the amendment of this
provision itself, must be writing, unless the law mandates a stricter form
requirement.
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19.4
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Headings
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The headings of the clauses and sections in
this Agreement are intended only to ease reading. They are not to be taken
into account for purposes of interpreting this Purchase and Transfer
Agreement.
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19.5
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Exhibits
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All Exhibits are incorporated by reference
into this Purchase and Transfer Agreement. However, the Parties are aware
that the Exhibits to this Agreement present only an incomplete status and
must be supplemented and that they are only preliminary in nature and,
therefore, amendments to these Exhibits will occur up the Closing Date. The
final Exhibits, which are
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supposed to be binding for the Parties and
incorporated by reference into this Agreement, will be exchanged between the
Parties on the Closing Date and will be appended to this Agreement. Reference
is made to Clause 3.3.1.
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19.6
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Complete Agreement
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This Purchase and Transfer Agreement contains
all agreements of the Parties with respect to its subject matter as of the
date of conclusion of this Agreement and supercedes any and all oral and
written negotiations, agreements and arrangements concluded between the
Parties previously in connection with the subject matter of this Agreement.
Side agreements to this Purchase and Transfer Agreement do not exist.
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19.7
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Severability Clause
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If any provision in this Agreement is or becomes
completely or partially void, invalid or unenforceable, then the validity and
enforceability of all other provisions will not be affected thereby. The void,
invalid or unenforceable provision is deemed to have been replaced by a valid
and enforceable provision which most closely reflects the economic purpose
intended with the void, invalid or unenforceable provision. This applies
accordingly for any aspects which this Agreement did not address.
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******************
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Purchaser:
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October 7, 2005
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/s/ Xxxxx Burgaezy
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(Bruker AXS GmbH,
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represented by:
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Xxxxx Burgaezy)
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October 7, 2005
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/s/ Xxxxxxx
Xxxxxxxxx
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(Bruker AXS GmbH,
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represented by:
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Xxxxxxx Xxxxxxxxx)
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Sellers:
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October 7, 2005
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/s/ Xx. Xxxxxxx Xxxxxxx
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/s/ Xx. Xxxxxx Xxxxxxx
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(1. bmp Aktiengesellschaft)
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October 7, 2005
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/s/ Xx. Xxxxxxx Xxxxxxx
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/s/ Xx. Xxxxxx Xxxxxxx
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(2. bmp Venture Tech GmbH)
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October 7, 2005
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/s/ Xx. Xxxxxxx Xxxxx
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/s/ Xx. Xxxxxxx Haesen
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(3. Ventegis Capital AG)
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October 7, 2005
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/s/ Xxxxxx Xxxxxx
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(4. Xxxxxx Xxxxxx)
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October 7, 2005
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/s/ Xxxxxxx Xxxxxx
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(5. Xxxxxxx Xxxxxx)
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October 7, 2005
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/s/ Gert Kommichau
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(6. Gert Kommichau)
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October 7, 2005
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/s/ Xxxxx Xxxxxx
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(7. Xxxxx Xxxxxx)
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October 7, 2005
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/s/ Xxxx Xxxxxxxxx
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(8. Xxxx Xxxxxxxxx)
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October 7, 2005
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/s/ Xxxxxxx Xxxxxx
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(9. Xxxxxxx Xxxxxx)
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October 7, 2005
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/s/ Xxxx Xxxxxxx
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(10. Xxxx Xxxxxxx)
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October 7, 2005
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/s/ Xxxxxx Xxxxxxxxx
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(11. Xxxxxx Xxxxxxxxx)
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October 7, 2005
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/s/ Xxxxxx Xxxxxxxxx
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(12. Xxxxxx Xxxxxxxxx)
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October 7, 2005
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/s/ Xxxxxx Xxxxxxxx
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(13. Xxxxxx Xxxxxxxx)
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October 7, 2005
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/s/ Xxxx. Xxxxxxx Xxxxxxxx
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(14. Xxxx. Xxxxxxx Xxxxxxxx)
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October 7, 2005
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/s/ Xxxxxx Xxxxxxxxxxxx
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(15. Xxxxxx Xxxxxxxxxxxx)
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