Exhibit 10.19
English Translation of Option Agreement between Xxxx Xxxxxx and
Rofin-Sinar Laser GmbH
Document Record 2000/97 Original Copy
dated June 21, 2000, of Notary
Xx. Xxxxxx Xxxxxxxxx, Basel (Switzerland)
NOTARIAL DOCUMENT
OPTION CESSION AGREEMENT
Drawn up in Basel, Switzerland, on June 21 (twenty-first), 2000 (two
thousand).
Before me, the undersigned Notary,
Xx. Xxxxxx Xxxxxxxxx,
with domicile in Basel/Switzerland, there appeared:
Xx. Xxxx Xxxxx, Licentiate in Law, born on January 8, 1971, Attorney at Law,
Swiss citizen, residing in CH-4102 Binningen, Ob dem Hugliacker 83,
personally known,
acting, according to his own statement, not for himself but, with exclusion
of any personal liability, on behalf of
1. Mannesmann Demag Xxxxxx-Xxxxxx Aktiengesellschaft, with domicile in
Munich, Xxxxxx-Xxxxxx-Xxxxxxx 0, X-00000 Xxxxxx, registered in the
Commercial Register of the Munich District Court under HRB
127000, as documented by a facsimile copy of a certified power of
attorney dated May 11, 2000, (Appendix 1), reserving the right to
subsequently submit the original,
- referred to as "MDKM" hereinafter -
2. ROFIN-SINAR Laser GmbH, with domicile in Xxxxxxx, Xxxxxxxxxxxxxxxx 00,
X-00000 Xxxxxxx, registered in the Commercial Register of the Xxxxxxx
Xxxxxxxx Xxxxx xxxxx XXX 00000, as documented by a facsimile copy of a
certified power of attorney dated June 21, 2000, (Appendix 2),
reserving the right to subsequently submit the original and a
confirmation of the power of attorney,
- referred to as "Rofin" hereinafter -
- Rofin and MDKM are jointly referred to as "parties" hereinafter -
The notary explained the prohibition against involvement pursuant to the
Notarial Code of the City of Basel (EG/ZGB ? 233 Para. 1 No. 4) and pursuant
to the German law on drawing up documents (? 3 Para. 1 No. 7). The question
as to whether the Notary or the office partner of the Notary or any other
persons affiliated with the Notary in the exercise of his profession or
working in the same offices is/are involved in the sense of these provisions
was denied both by the parties involved and by the Notary.
The person appearing, acting as stated above, declared as follows, with the
request that this be documented by the Notary:
Preliminary Remarks
1. With a notarial document of the officiating Notary, Xx. Xxxxxx
Xxxxxxxxx, Basel (Switzerland) (Document Record 2000/60), Rofin
acquired from MDKM all the shares held by MDKM in Xxxx Xxxxxx
Lasertechnik GmbH (referred to as the "document" hereinafter). The
document is known to the parties and they waive having it read aloud
and attached as an appendix to this agreement.
2. Pursuant to Art. 6.3 of the document, MDKM undertook to transfer to
Rofin its rights and obligations resulting from the option agreement
between Xx. Xxxx Xxxxxx and MDKM (Document Record No. 3374/1999 of
Notary Xx. Xxxxx Xxxxx, Munich) (referred to as the "option agreement"
hereinafter), which is known to the parties, who waive having it read
aloud and attached as an appendix to this agreement. Rofin has
undertaken to conclude such an agreement and to accept the transfer.
In execution of the aforementioned obligations, MDKM and Rofin agree as
follows:
Section 1
1.1 MDKM hereby transfers to Rofin its rights and obligations resulting
from the option agreement, thereby being released from all liability.
1.2 Rofin accepts the transfer.
1.3 The provisions of Article 6.3 Sentences 4 to 6 of the document continue
to apply. MDKM does not accept any warranty or guarantee with regard
to the option agreement, over and above the guarantee provided in
Article 6.3 Sentence 6 of the document.
Section 2
2.1 The commerce taxes, fees (including notarial fees), public charges and
costs that occur in connection with this agreement or its
implementation will be paid by Rofin.
2.2 Each party will pay the taxes and costs it incurs for its own
consultants.
2.3 The provisions of Articles 8.1 to 8.7 of the document apply also to
this agreement.
IN DOCUMENTATION OF WHICH this document was read aloud by me, the Notary, to
the person appearing, and acknowledged as correct and approved by him, and
then this document was signed by the person appearing and by me, the Notary,
in our own hands, and my official seal was affixed.
Basel (Switzerland), June 21 (twenty-first), 2000 (two thousand)
[inked seal] [signature]
[signature]
Xx. Xxxxxx Xxxxxxxxx, Notary
Document Record 2000/97
[2 fee stamps]
[rubber stamp of Notary]
Appendix 1
Option Agreement
MDKM/Xxxxxx/4-26-00
Appendices to Purchase Agreement (Rofin).xls/Appendix 1
Document Record No. /1999
Ass.
Option Agreement concerning GmbH Shares
Today, on December twenty-first,
nineteen hundred ninety-nine,
- 12/21/99 -
there appeared before me,
Xx. Xxxxx Xxxxx,
Notary in Munich,
with offices in 80333 Xxxxxx, Xxxxxxxxxx 0, in the offices of Mannesmann
Demag Xxxxxx-Xxxxxx AG [stock corporation] in 80997 Munich, Xxxxxx-Xxxxxx-
Xxx. 0, where I went upon request:
1. Xx. Xxxx X. Xxxxxx,
born on 3/24/41,
residing in Xxxxxxxxxxxx Xxx. 0
X - 00000 Xxxxxx Xxxxxxx
identity documented by official photo ID,
2. Xx. Xxxxx Xxxxxxxxx, Member of the Board of Management,
Xx. Xxxxxx Xxxx, authorized company representative,
both personally known to me,
acting here
for
Mannesmann Demag Xxxxxx-Xxxxxx AG
with domicile in Munich
as a Member of the Board of Management and an authorized representative
of the company, authorized to represent the company jointly. Written
authorization is waived.
Upon the request of the parties appearing, I hereby document their
declarations as follows:
[initials]
Option Agreement
between
Mannesmann Demag Xxxxxx-Xxxxxx AG
with domicile in Munich (MDKM)
and
Xxxx Xxxxxxxxx Baasel, Starnberg (CFB)
I. Preamble
The shareholders of the company Xxxx Xxxxxx Lasertechnik GmbH [limited
liability corporation] - referred to as the company hereinafter - registered
in the Commercial Register of the Munich District Court under HRB 70075, with
domicile in Starnberg, with a fully paid-in capital stock of DM 4,000,000.00,
are CFB with two shares with a par value of a total of DM 399,600.00,
corresponding to 9.99% of the capital stock, Xx. Xxxxx Xxxxxxx with a share
of DM 120,000.00, corresponding to 3% of the capital stock, which share was
sold and ceded to MDKM by a notarial document, effective today (Document
Record No. .../99), and MDKM with two shares with a par value of a total of
DM 3,480,400.00, corresponding to 87.01% of the capital stock (referred to as
MDKM shares hereinafter).
MDKM intends to sell its interest in the company. CFB might not wish to sell
his interest until a later point in time. In order to grant an acquiring
party an assured legal position to acquisition of 100% of the shares of the
company and, on the other hand, to allow MDKM the necessary freedom to
conduct negotiations, the parties, with this agreement, grant one another
reciprocal put and call options with regard to the shares held by CFB, which
MDKM can transfer to an acquiring party.
This stated, the parties agree as follows:
[initials]
Section 1
Purchase Option
CFB hereby grants MDKM an irrevocable, unconditional option to acquire the
shares in the company held by CFB, in the amount of DM 380,000.00 and DM
19,600.00 (referred to as "option shares" hereinafter), by purchasing them.
MDKM can exercise the purchase option at any time, but no earlier than
1/1/03, with advance notice of one month by means of notarial declaration
issued to CFB. When the acceptance declaration is received by CFB, a
purchase agreement at the terms stated in section 3 will come about. The
option can only be exercised uniformly, with regard to all the option shares.
Section 2
Selling Option
MDKM hereby grants CFB an irrevocable, unconditional option, which can be
exercised at any time, but no later than 12/31/07, to sell the option shares
to MDKM. CFB can exercise the selling option with advance notice of one
month, by means of a notarial declaration issued to MDKM. When the
acceptance declaration is received by MDKM or the party acquiring the MDKM
shares, to whom MDKM has transferred the rights and obligations resulting
from this agreement, pursuant to section 4.1, a purchase agreement at the
terms stated in section 3 will come about. Section 1 Sentence 4 applies
analogously.
Section 3
Purchase Agreement
3.1 CFB sells the option shares to MDKM, with all their rights and
obligations, effective on the date this purchase agreement comes
about, and cedes them to MDKM.
The purchase price for the option shares is DM 12,287,000.00 (in
words: twelve million two hundred eighty-seven thousand German marks),
referred to as "base purchase price" hereinafter.
[initials]
3.2 If MDKM achieves a purchase price related to 100% of the shares of the
company of more than DM 130,000,000.00 (one hundred thirty million
German marks) in a sale of all shares of the company (with the transfer
of rights and obligations resulting from this agreement counting as a
share of the option shares, with regard to the option shares), before
12/31/02 (deciding factor: date of the notarial agreement), the base
price to be paid to CFB pursuant to 3.1 is increased by 80% of the
additional purchase price that exceeds DM 130,000,000.00, calculated
with reference to the option shares (9.99% of the capital stock)
(increased price). In this connection, any monetary or ancillary
payments, equivalent to money, which are paid by the acquiring party,
must be included as part of the purchase price, if they would be viewed
as an additional purchase price or a substitute purchase price when
considered from an objective economic point of view. If the acquiring
party settles monetary commerce accounts or redeems group or bank
guaranties assumed on behalf of the company, this is not considered
part of the purchase price. If MDKM sells only part of the shares
and/or the option shares of the company, Para. 3.2 applies analogously,
with the provision that for purposes of the application of Para. 3.2 to
the relationship between the parties, partial sales always count as
proportional sales of the shares of MDKM and the option shares, in a
ratio of 90.01 : 9.99, regardless of the actual conditions.
3.3 CFB warrants that the option shares are established with legal
validity, fully paid in, and free of the rights of third parties,
particularly that the option shares have not been placed under lien nor
ceded as security or for any other reason to a third party, and that
there are no other rights of third parties to acquisition of the option
shares. Any further warranty or liability, no matter for what legal
reason it might exist, is precluded.
3.4 Cession of the option shares takes place with the postponing condition
of payment of the full purchase price. The purchase price owed becomes
due within 30 days after this purchase agreement goes into effect.
[initials]
Section 4
Cession of the Legal Position
4.1 MDKM is entitled to transfer all the rights and obligations resulting
from this agreement, with the effect of being released from all
liability, to the party acquiring the MDKM shares, or to a third party
named by such acquiring party. This agreement will be referred to as
"option cession agreement" hereinafter. MDKM will inform CFB about the
identity of the party acquiring the MDKM shares, in person, within 10
days before notarization of the sale of the MDKM shares, and will
request CFB to exercise his option right, as described below, within 8
days after receipt of this information.
4.2 MDKM warrants that
a) At the request of CFB, which request must be declared to MDKM,
before the option cession agreement is concluded, the party
acquiring the MDKM shares, or a third party, at the request of the
acquiring party, issues an unconditional guaranty of a major German
bank for DM 12,287,000.00, for its own account, which is
irrevocable until 4/1/03, and which is issued with waiver of the
objections pursuant to section 770 and section 771 BGB [German
Civil Code] as well as the right of deposit, and secures CFB's
claims resulting from this agreement, or
b) if CFB has not issued a request pursuant to Number 4.2 a) before
conclusion of the option cession agreement, the party acquiring
the MDKM shares takes on the obligation to give CFB the guaranty
indicated in Number 4.2 a), at his request,
c) where in either of the aforementioned cases, CFB can give the
guaranty back at any time.
4.3 The documented costs of this guaranty will be paid by CFB up to a
maximum amount of 0.50% p.a., until return of the guaranty.
[initials]
Section 5
Miscellaneous
5.1 MDKM takes on the obligation, with regard to CFB, to exercise its vote
in the general shareholders' meeting of the company that decides about
the allocation of the profit for 1999, to the effect that the highest
possible distribution of the surplus for the year 1999 will be
resolved.
5.2 The parties to the agreement are in accord that the provisions of this
agreement concerning the option shares will always take precedence over
the provisions of the bylaws of the company. MDKM takes on the
obligation, with regard to CFB, to work towards annulment of section 7
Para. 5 and 6 of the bylaws and towards an agreement concerning a claim
to full distribution for the shareholders, by giving its approval in
this regard, at the next general shareholders' meeting of the company.
5.3 Upon request by MDKM or the party acquiring the MDKM shares, CFB will
work towards a shareholders' resolution that provides that in future
fiscal years (including the fiscal year in which the option is
exercised, but not longer than for the fiscal year ending on 12/31/02),
full distribution of the surplus for the year that is achieved in each
instance will take place or, for the option shares, that a guaranteed
dividend in the amount of 5.75% p.a. of the base purchase price (if the
option is exercised early: on a prorated basis) will be paid by the
company or the majority shareholder, independent of the actual balance
sheet result for the year in each instance. The acquiring party must
exercise this option by 3/31/01, but not before the end of six months
after acquisition of the MDKM shares. If the acquiring party does not
exercise this option, full distribution of the profit for the year in
each instance is considered to have been agreed.
5.4 If payment of a guaranteed dividend is resolved, CFB can demand that
the acquiring party provide security as described in Number 4.2 a) for
the entire amount of the guaranteed dividends to be paid for the
periods up to 1/1/03. MDKM warrants that the acquiring party will
provide such security.
Section 6
Costs
The costs of this document and its implementation will be paid by MDKM.
Unless otherwise agreed, each party pays its own costs as it incurs them.
[initials]
Section 7
Validity Clause
If a provision of this agreement is or becomes null, unenforceable, or
legally invalid, regardless of the reason, this does not affect the validity
of the other provisions. The invalid, ineffective, or unenforceable
provision must be replaced by a new and enforceable provision that
corresponds to the economic intent of the parties when concluding the
agreement. The same holds true if it turns out that there are gaps in the
agreement.
Section 8
Confidentiality
The parties to the agreement undertake to treat the content of this agreement
as confidential until 6/30/00, but at most until sale of the MDKM shares
occurs, and not to inform uninvolved third parties of it, unless this is
necessary within the scope of the sales process ("need to know basis").
[initials]
Section 10
[deleted by hand, corrected to 9]
Notes, Copies
The parties were instructed that a cession of shares if the option is
exercised must be reported to the company, pursuant to section 16 GmbHG [law
on limited liability companies]. The Notary furthermore pointed out the
obligation of the management to immediately file a new list of shareholders
with the Commercial Register. This will be done by the parties after the
cession of shares goes into effect.
Subjugation to collection measures for the purchase price obligation is
waived.
There is no real estate included in the assets of the company.
The following parties receive a copy of this document:
a) each party to the agreement,
b) the company,
c) the German Revenue Office as a notice pursuant to section 54 EStDVO
[code for enforcement of income tax law].
Read aloud by the Notary,
approved by the parties,
and signed by their own hand:
[signature]
[2 signatures]
[illegible inked seal] [signature],Notary
[initials]
Xxxx Xxxxxx Lasertechnik GmbH
We hereby approve the sale of the 3% share of Xx. Xxxxx Xxxxxxx to Mannesmann
Demag Xxxxxx-Xxxxxx AG on 12/21/99. At the same time, we approve conclusion
of the option agreement between Xxxx Xxxxxx and Mannesmann Demag Xxxxxx-
Xxxxxx AG dated 12/21/99.
Munich, December 21, 1999
[signature] [signature]
Xxxx X. Xxxxxx Xxxxx Xxxxxxx
Mannesmann Demag Xxxxxx-Xxxxxx AG
[2 signatures]
