Project Babylon

Share and Asset Sale and Purchase Agreement

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Share and Asset Sale and Purchase Agreement

- hereinafter referred to as the “ Agreement ” -

between

1.                          WIRTGEN GROUP Holding GmbH ,

with its registered seat in Windhagen, Germany, business address Reinhard-Wirtgen-Straße 2, 53578 Windhagen, registered with the commercial register ( Handelsregister ) of the local court ( Amtsgericht ) of Montabaur under HRB 10492

- hereinafter referred to as the “ Seller ” -

2.                           Deere & Company ,

a corporation organized and existing under the laws of the State of Delaware, USA, with business address One John Deere Place, Moline, Illinois 61265, USA, registered with the Secretary of State of the State of Delaware under registration number 522909

- hereinafter referred to as the “ Purchaser ” -

and

3.                          Deere & Company ,

a corporation organized and existing under the laws of the State of Delaware, USA, with business address One John Deere Place, Moline, Illinois 61265, USA, registered with the Secretary of State of the State of Delaware under registration number 522909

- hereinafter referred to as the “ Guarantor ”

- the Purchaser and the Guarantor hereinafter collectively referred to
as the “ Purchasing Parties ” and each as a “ Purchasing Party ” -

- the Seller and the Purchasing Parties hereinafter collectively referred to as
the “ Parties ” and each as a “ Party ”

Recitals

(A)                  The Seller together with its direct and indirect subsidiaries (hereinafter collectively referred to as the “ Seller’s Group ”) is an internationally operating group of companies in the construction machinery sector incorporating the traditional product brands

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“WIRTGEN”, “VÖGELE”, “HAMM”, “KLEEMANN” and “BENNINGHOVEN” as well as “CIBER”, including sales and service companies worldwide (collectively the “ Wirtgen Business ”). The Seller is privately held by the Wirtgen family through Wirtgen Group GmbH (“ Wirtgen Group ” ), registered with the commercial register of the local court of Montabaur under HRB 24277, being the sole shareholder of the Seller.

(B)                   The Guarantor together with its subsidiaries and affiliates is a global corporation that manufactures machinery of various industrial sectors, in particular agricultural, construction, landscaping and grounds care, golf and sports turf, forestry as well as engines and drivetrains. This is mainly done under the “Deere” brand. The Guarantor is publicly listed on the New York Stock Exchange and part of the S&P 500 stock index.

(C)                   The Seller intends to sell, and the Purchaser intends to acquire, the entire business operations pertaining to the Wirtgen Business by way of acquisition of (i) all shares in the Companies (as defined below) as well as (ii) the Sold Assets (as defined below), subject to and in accordance with the terms and conditions of this Agreement (hereinafter referred to as the “ Transaction ” ). The Transaction also comprises the continued use by the Purchaser and/or the relevant Companies and/or Subsidiaries, as the case may be, of the trademarks and other rights to the names “Wirtgen”, “Vögele”, “Hamm”, “Kleemann”, “Benninghoven” and “Ciber”.

(D)                  Prior to entering into this Agreement, the Seller has disclosed and made available to the Purchasing Parties those documents and information (hereinafter referred to as the “ Data Room Information ” ) provided in the virtual data room “Babylon” (hereinafter referred to as the “ Data Room ” ). The Purchasing Parties have been given the opportunity to undertake an examination of the Data Room Information. For purposes of evidence ( zu Beweiszwecken ), the Parties have handed over to the acting notary two (2) data storage devices (memory sticks) (hereinafter referred as the “ Data Room DVD ” ) on which any and all Data Room Information has been stored by the data room provider Intralinks (hereinafter referred to as the “ DR Provider ”). The DR Provider has confirmed to the Parties in writing that any and all Data Room Information as of May 26, 2017 has been stored on the Data Room DVD. The Parties have requested the acting notary to keep two (2) copies of the Data Room DVD in custody for a period of ten (10) years from the Signing Date (as defined in § 1(1)d) below) and to make available the Data Room Information on the Data Room DVD for inspection to any of the Parties upon written request after having informed the other Parties thereof. Each Party requesting the inspection of the Data Room DVD shall procure for the necessary technical equipment to the extent not provided by the acting notary. In addition, each Party has received a copy of the Data Room DVD with the confirmation of the DR Provider, provided that the copy of the Data Room DVD provided to the Purchasing Parties shall not include the documents contained in folder 20.2 of the Data Room.

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(E)                    The Purchaser has had the opportunity to review the Financial Statements and the Consolidated Financial Statements (as defined in § 9(2)f)aa) below).

Now, therefore, the Parties agree as follows:

§ 1

Transaction Dates; Certain Definitions

(1)                     Transaction Dates

a)                          “ CET ” shall mean Central European Time, or Central European Summer Time, as applicable.

b)                          “ Closing Date ” shall mean the fifth Business Day, at 10:00 hrs. CET, after the day on which the Closing Conditions set forth in § 7(1) below have been fulfilled or waived (other than a Business Day falling within the period from September 15, 2017 through October 31, 2017 (the “ Excluded Closing Period ”), in which case the Closing Date shall be November 2, 2017 under the condition that all Closing Conditions set forth in § 7(1) below have been fulfilled or waived by October 26, 2017 at the latest), or any other day and time the Seller and the Purchaser may mutually agree upon.

c)                           “ Effective Date ” shall mean January 1, 2017, at 0:00 hrs. CET.

d)                          “ Signing Date ” shall mean the date of this Agreement.

(2)                     Certain Definitions

a)                          “ Affiliate(s) ” shall mean any enterprise ( Unternehmen ) in terms of section 15 AktG.

b)                          “ AktG ” shall mean the German Stock Corporation Act ( Aktiengesetz ).

c)                           “ AO ” shall mean the German Tax Code ( Abgabenordnung ).

d)                          “ BGB ” shall mean the German Civil Code ( Bürgerliches Gesetzbuch ).

e)                           “ Business Day ” shall mean any day on which banks are open for general business in Frankfurt (Germany) and New York City (USA).

f)                             “ Data Protection Authority ” shall mean any body with the legal power to enforce Data Protection Legislation.

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g)                          “ Data Protection Legislation ” shall mean any legislation in force from time to time which implements the European Union’s Directive 95/46/EC, Directive 2002/58/EC or any other legal act of the European Union concerning the protection and processing of personal data.

h)                          “ EC ” shall mean the European Commission ( Europäische Kommission ).

i)                              “ Foreign Trade Laws ” shall mean all applicable laws relating to export, re-export, transfer, import controls and economic sanctions, including, if applicable in the individual case, the laws and regulations administered by U.S. Customs and Border Protection, the EU Dual Use Regulation, the U.S. Department of the Treasury, the U.S. Department of Commerce, the U.S. Department of State, the United Kingdom, and the European Union.

j)                             “ GmbHG ” shall mean the German Act on Limited Liability Companies ( Gesetz betreffend die Gesellschaften mit beschränkter Haftung ).

k)                          “ HGB ” shall mean the German Commercial Code ( Handelsgesetzbuch ).

l)                              “ Member State ” shall mean any member state of the European Union.

m)                      “ Personal Data ” shall have the meaning as ascribed under the Data Protection Legislation.

n)                          “ Related Person(s) ” shall mean (i) Wirtgen Group, (ii) any direct or indirect shareholder of Wirtgen Group, and (iii) any company in which one or more of the aforementioned entities or persons hold(s), either solely or collectively, directly or indirectly, the majority of the share capital or voting rights (for the avoidance of doubt, excluding the Companies and the Subsidiaries and, also for the avoidance of doubt, excluding the Seller).

o)                          “ Sanctioned Country ” means any country or region that is the subject or target of comprehensive economic sanctions (currently Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine).

p)                          “ Sanctioned Person ” means any individual or entity that is the target of economic sanctions under Foreign Trade Laws, including: (i) any individual or entity listed on any applicable governmental sanctions- or export-related restricted party list, including, without limitation, the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury and the EU Consolidated List; or (ii) any entity that is, in the aggregate, 50

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percent or greater owned, directly or indirectly, or otherwise controlled by a person or persons described in (i) above.

q)                          “ Security Breach ”  means any security breach relating to Personal Data or other data sufficiently serious or substantial to justify notification to the relevant Data Protection Authority and/or affected data subjects.

r)                           “ VAT ” means within the European Union such Tax as may be levied in accordance with (but subject to derogations from) the Directive 2006/112/EC (as amended from time to time) and outside the European Union any taxation levied by reference to added value or sales.

§ 2

Companies, Shares, Subsidiaries and Sold Assets

(1)                     GmbHs; KG; Foreign Companies

a)                          The Seller directly holds all shares (the “ GmbH Shares ”) in the limited liability companies ( Gesellschaften mit beschränkter Haftung ) organized under the laws of Germany (the “ GmbHs ”), each as further detailed in Annex 2.1.a .

b)                          The Seller directly holds the limited partnership contribution ( Kommanditeinlage ) in the amount of EUR 15,000,000 (the “ KG Interest ”) in Kleemann Immobilien GmbH & Co. KG, a limited partnership ( Kommanditgesellschaft ) organized under the laws of Germany (the “ KG ”).

c)                           The Seller directly holds and, for the avoidance of doubt, is also the unrestricted beneficial owner of the shares (the “ Foreign Shares ”) in the companies organized under foreign laws (the “ Foreign Companies ”), each as further detailed in Annex 2.1.c . For the avoidance of doubt, Wirtgen Qeshm Ltd. (“ Wirtgen Iran ”) shall not be considered a “Foreign Company” under this Agreement and shares in Wirtgen Iran shall not be transferred to the Purchaser in connection with the Transaction.

d)                          The shareholders’ lists ( Gesellschafterlisten ) in relation to the GmbHs attached hereto as Annex 2.1.d have been included ( aufgenommen ) in the commercial register; no objection has been attributed to these lists.

e)                           All registrable facts with respect to the Companies (as defined below) that need to be registered with the German commercial register or comparable registers in other jurisdictions are set out in the excerpts from the relevant registers, up-to-date copies of which are attached hereto as Annex 2.1.e .

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(2)                     Companies and Shares

a)                          The GmbHs, the KG and the Foreign Companies are hereinafter collectively referred to as the “ Companies ” and each as a “ Company ”.

b)                          The GmbH Shares, the KG Interest and the Foreign Shares are hereinafter collectively referred to as the “ Shares ” and each as a “ Share ”, including, for the avoidance of doubt, any and all shares and interests the Seller actually holds in the Companies, irrespective of whether the number, nominal amount or denomination of the Shares set forth in Annexes 2.1.a and 2.1.c (or in § 2(1)b) above with respect to the KG Interest) are correct.

(3)                     Subsidiaries

A description of all companies, partnerships and other legal entities in which the Companies hold a direct or indirect participation (collectively referred to as the “ Subsidiaries ” and each as a “ Subsidiary ” ; the shares/participations in the Subsidiaries collectively referred to as the “ Subsidiary Shares ”) is attached hereto as Annex 2.3 .

(4)                     Sold Assets

a)                          The Seller in particular owns, holds, or is subject or party to, as the case may be, the following assets, contracts, receivables, liabilities and other rights and obligations in connection with, or which are used for, the holding operations in relation to the Wirtgen Business (the “ Holding Operations ”):

aa)                    the assets specified in Annex 2.4.a.aa ;

bb)                  the trademarks (and associated goodwill) and all other registered and unregistered intellectual property rights of any kind or respective rights of use owned and/or otherwise held by the Seller and pertaining to the Wirtgen Business (the “ Seller IP ”), including the Seller IP listed in Annex 2.4.a.bb ;

cc)                    the employment agreements as well as all rights and obligations under the employment agreements of the Transferred Employees as defined below;

dd)                  the contracts listed in Annex 2.4.a.dd , including any and all agreements between the Seller and any of the Companies and/or Subsidiaries pertaining to the Wirtgen Business, as well as all rights and obligations thereunder;

ee)                    the liabilities listed in Annex 2.4.a.ee ;

ff)                      the receivables listed in Annex 2.4.a.ff ;

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gg)                  all relevant books, records and all other business documentation ( e.g. accounting records, business letters, contracts etc.), including any electronically stored business data (whether stored and/or administered via self-operated or third-party operated servers) and related hardware, relating to the Holding Operations and/or the Wirtgen Business, it being understood that the Seller may retain copies of all such books, records, all other business documentation and business data as reasonably required to fulfil its bookkeeping obligations; and

hh)                  all other rights and obligations relating to the assets, contracts, business documentation (including all relevant electronically stored business data), receivables, liabilities as well as other rights and obligations referred to in § 2(4)a)aa) to § 2(4)a)gg) above.

b)                          The Seller sells to the Purchaser pursuant to this Agreement all assets, contracts, business documentation (including all relevant electronically stored business data), receivables, and liabilities as well as any other rights and obligations of the Seller pertaining to, and/or required for the operation of, the Wirtgen Business, in particular all (i) assets, contracts, business documentation, receivables, liabilities as well as any other rights and obligations of the Seller listed in § 2(4)a)aa) to § 2(4)a)hh) above, (ii) other assets, contracts, business documentation, receivables, and liabilities as well as other rights and obligations of the Seller which are currently used for the Wirtgen Business and/or the Holding Operations even if they are not explicitly listed in § 2(4)a)aa) to § 2(4)a)hh) above, and (iii) (new) assets, contracts, receivables, and liabilities as well as other rights and obligations of the Seller which will be used for the Wirtgen Business and/or the Holding Operations following the Signing Date, in each of the cases under this § 2(4)b) less those items described in § 2(4)c) below .

c)                           Pursuant to this Agreement, the Seller sells to the Purchaser the assets, contracts, business documentation, receivables and liabilities as well as other rights and obligations referred to in § 2(4)b) above (i) only if and to the extent the Seller is (still) owner/holder of such assets, contracts, business documentation, receivables or liabilities or other rights or obligations at Closing, and (ii) except, for the avoidance of doubt, for the Excluded Assets defined below (solely for the avoidance of doubt: Seller’s obligations under § 14(8) and § 14(9) of this Agreement remain unaffected by § 2(4)b) above and this § 2(4)c)).

d)                          The assets, contracts, receivables and liabilities as well as other rights and obligations referred to in § 2(4)b) above less those excluded pursuant to § 2(4)c) above are hereinafter referred to as the “ Sold Assets ”.

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e)                           In relation to the contracts listed in Annex 2.4.a.dd as well as the liabilities listed in Annex 2.4.a.ee, the Seller will use best efforts to ensure that any consents from any third party or creditor required for the valid transfer of the respective contracts or liabilities to the Purchaser will be obtained in a duly documented format. This § 2(4)e) shall apply mutatis mutandis if and to the extent the consent of any debtor of any of the receivables listed in Annex 2.4.a.ff is required for the valid transfer to the Purchaser.

(5)                     Excluded Assets

The following (i) assets owned by the Seller and (ii) contracts to which the Seller is a party (the “ Excluded Assets ”) shall be excluded from the sale to the Purchaser pursuant to this Agreement:

a)                          the airplane with aircraft registration number: D-CWIR as well as all assets and contracts relating thereto;

b)                          the service agreements with Mr. Jürgen Wirtgen and Mr. Stefan Wirtgen;

c)                           the pension obligation of the Seller described in Annex 2.5.c ;

d)                          the two internet domains “kinderinnot.de” and “kinder-in-not.de”;

e)                           all Tax (as defined below) liabilities and potential Tax liabilities of the Seller (including the Tax liabilities of the Seller for which a Tax accrual in the amount of EUR 3,787,038.79 was established in the Consolidated Financial Statements) ; and

f)                             an amount of EUR 3,787,038.79 in cash required to fund the Tax liability of the Seller for which in the Consolidated Financial Statements a Tax accrual was established if and to the extent that such Tax liability has not already been settled prior to or on the Closing Date.

Prior to Closing, the Seller may elect to retain any of the assets and/or assume any of the contracts listed in Annex 2.5 hereto (any such retained asset/contract being a “ Retained Asset ”), provided that the Seller ensures that (i) an amount corresponding to the book value of any such Retained Asset is paid to the Seller or (ii) the remainder of any contract constituting a Retained Asset hereunder is assumed by the Seller, in either case prior to Closing(the Retained Assets shall then also be treated as Excluded Assets under this Agreement).

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(6)                     German VAT Fiscal Unity

a)                          Pre-Effective Date Period

aa)                    The Seller shall not and shall procure that no Related Person will raise any contractual or statutory compensation claims against the Purchaser, any Company or any Subsidiary in connection with or relating to a VAT fiscal unity (such claims, the “ VAT Fiscal Unity Claims Purchaser ” ) for the Pre-Effective Date Period. The Seller shall indemnify, hold harmless and reimburse the Purchaser, any Company and any Subsidiary from any VAT Fiscal Unity Claims Purchaser raised by the Seller or a Related Person for the Pre-Effective Date Period. Sentences 1 and 2 of this § 2(6)a)aa) shall not apply if and to the extent that the circumstances which lead to VAT Fiscal Unity Claims Purchaser lead to a corresponding input VAT credit of any Company or Subsidiary ( e.g. if (i) VAT payable by the Seller for the Pre-Effective Date Period which relates to the supply of goods or services by a Company or Subsidiary, which is or was a member of a VAT fiscal unity with the Seller, is increased and (ii) a Company or Subsidiary, which is not or was not a member of the VAT fiscal unity with the Seller, has a corresponding input VAT credit in relation to the same supply of goods or services, sentences 1 and 2 of this § 2(6)a)aa) shall not apply to the extent that a Company or Subsidiary, which is not or was not a member of the VAT fiscal unity with the Seller, has such input VAT credit).

bb)                  The Purchaser shall not and shall procure that no Affiliate of the Purchaser (including after the Closing Date any Company and any Subsidiary) will raise any contractual or statutory compensation claims against the Seller or a Related Person in connection with or relating to a VAT fiscal unity (such claims, the “ VAT Fiscal Unity Claims Seller ” ) for the Pre-Effective Date Period. The Purchaser shall indemnify, hold harmless and reimburse the Seller from any VAT Fiscal Unity Claims Seller raised by the Purchaser or any Affiliate of the Purchaser (including after the Closing Date any Company and any Subsidiary) for the Pre-Effective Date Period. Sentences 1 and 2 of this § 2(6)a)bb) shall not apply if and to the extent that the circumstances which lead to VAT Fiscal Unity Claims Seller lead to a corresponding VAT liability of a Company or Subsidiary, which is not or was not a member of the VAT fiscal unity with the Seller ( e.g. if (i) the input VAT credit of the Seller for the Pre-Effective Date Period which relates to the supply of goods or services received by a Company or Subsidiary, which is or was a member of a VAT fiscal unity with the Seller, is increased and (ii) a Company or Subsidiary, which is not or was not a member of the VAT fiscal unity with the Seller, has a corresponding VAT liability in

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relation to the same supply of goods or services, sentences 1 and 2 of this § 2(6)a)bb) shall not apply to the extent that a Company or Subsidiary, which is not or was not a member of the VAT fiscal unity with the Seller, has such VAT liability).

b)                          Period between the Effective Date and the Closing Date

aa)                    If and to extent that the German input VAT ( Vorsteuer ) of the Seller and of all Companies and Subsidiaries with which a fiscal unity for German VAT purposes (“ VAT Fiscal Unity ”) with the Seller exists (the Seller and such Companies and Subsidiaries which are or were members of the VAT Fiscal Unity hereinafter “ VAT Group ”) exceeds, in any relevant taxable period ( Veranlagungszeitraum ) between the Effective Date and the Closing Date, the German output VAT ( Umsatzsteuer ) of the VAT Group which relates (both input and output VAT) to (i) the Wirtgen Business and (ii) the period from the Effective Date until the Closing Date (“ Input VAT Excess ”, such input VAT hereinafter “ Relevant Input VAT ” and such output VAT hereinafter “ Relevant Output VAT ”), the Seller shall pay to the Purchaser an amount equal to the respective Input VAT Excess if and to the extent that such Input VAT Excess has not already been realized by the Seller prior to the Closing Date and the received funds are not transferred to the Purchaser as part of the Sold Assets.

bb)                  If and to extent that the Relevant Output VAT exceeds the Relevant Input VAT (“ Output VAT Excess ”), the Purchaser shall pay to the Seller an amount equal to such Output VAT Excess if and to the extent that such Output VAT Excess has not already been paid or otherwise settled by the Seller vis-à-vis the Tax Authorities prior to the Closing Date (for the avoidance of doubt, such Output VAT Excess liability is an Excluded Asset and, thus, not transferred to the Purchaser pursuant to the Transaction).

cc)                    Any German VAT paid by any member of the VAT Group to any supplier for goods or services received by such member prior to the Closing Date, but after the Effective Date shall be treated as Relevant Input VAT for the purpose of this § 2(6)b), even if, for the avoidance of doubt, the relevant invoice should only be issued after the Closing Date.

dd)                  The Purchaser shall and shall procure that any Company and any Subsidiary being a member of the VAT Group provides the Seller within twenty-five (25) Business Days after the Closing Date with a good faith calculation of the amounts of Relevant Input VAT and Relevant Output VAT. The Seller shall provide the Purchaser on this basis with a good faith calculation of the amounts

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preliminarily to be paid pursuant to this § 2(6)b) (such calculation, the “ Preliminary VAT Statement ” and such payment, the “ Preliminary VAT Payment ”) five (5) Business Days after the receipt of the relevant information by the Seller from the other members of the VAT Group. Any reasonable objections to the Preliminary VAT Statement by the Purchaser shall be taken into account by the Seller and the Preliminary VAT Statement shall be amended accordingly. The Preliminary VAT Payment shall become due and payable ten (10) Business Days after the receipt of the Preliminary VAT Statement by the Purchaser.

c)                        The Preliminary VAT Payment shall only be a preliminary and provisional settlement of the payment obligations under § 2(6)b) above. The Seller and the Purchaser shall fully cooperate to determine the relevant amounts to be paid under this § 2(6) in line with the applicable VAT regulations and both Parties shall, and shall cause any member of the VAT Group to, cooperate in good faith in managing VAT matters ( e.g. request amended invoices, provide additional documentation in order to achieve an input VAT credit etc.). Any difference between the amounts actually owed under this § 2(6) and the Preliminary VAT Payment (as adjusted by later payments of the Parties pursuant to § 2(6)b) above) shall become due and payable ten (10) Business Days after the respective Party has informed the other Party of the required adjustment. Such adjustment of payments under § 2(6)b) above may in particular be required after the amendment of Tax assessments, a Tax audit or the receipt of invoices, which relate to the supply of goods or the rendering of services received by any member of the VAT Group prior to the Closing Date, but after the Effective Date.

d)                          § 11(11)a) below shall apply mutatis mutandis to any claims of the Purchaser and the Seller under this § 2(6) . For the avoidance of doubt, neither the De Minimis Amount (as defined below) nor the Threshold (as defined below) shall apply with respect to claims of the Purchaser and the Seller under this § 2(6).

(7)                     Participations pertaining to the Wirtgen Business; no Other Participations

Annex 2.7 sets out the entire group of companies, partnerships and other legal entities pertaining to the Wirtgen Business as it will be transferred, directly or indirectly, from the Seller to the Purchaser subject to and in accordance with the terms and conditions of this Agreement. Apart from the foregoing, neither a Company nor a Subsidiary holds any direct or indirect participation in companies other than participations in publicly traded companies or funds for financial investment purposes in the ordinary course of business. In Annex 2.7, the legal entities pertaining to the Wirtgen Business which own and/or operate manufacturing units or functions and which are hereinafter collectively referred to as

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“ Manufacturing Companies ” (and each as a “ Manufacturing Company ”) are marked accordingly.

(8)                     No Affiliation Agreements

There are no affiliation agreements ( Unternehmensverträge ) within the meaning of sections 291 et seq . AktG in place between the Seller or any Related Person on one side and a Company or a Subsidiary on the other side.

§ 3

Sale and Purchase, Purchaser’s Nominees

(1)                     Shares and Sold Assets

a)                          With economic effect ( wirtschaftlicher Wirkung ) as of the Effective Date, the Seller hereby sells, and the Purchaser hereby purchases, the Shares and the Sold Assets.

b)                          The sale and purchase of the Shares pursuant to § 3(1)a) above encompasses any and all rights (including rights to profits) and obligations associated with the Shares, including the rights to profits for the business year 2016 and all preceding business years, in each case (as regards the business years prior to the business year 2016) to the extent that no shareholders’ resolution with respect to the profit distribution has been taken, as well as all partner’s accounts ( Gesellschafterkonten ) of the KG and comparable accounts of the Foreign Companies (if any).

c)                           On the Closing Date, the Seller shall assign ( übertragen/abtreten ) the Shares and the Sold Assets via separate transfer agreements substantially in the forms referred to in § 8(2)b) and § 8(2)d) below to the Purchaser and the Purchaser shall accept such assignments.

d)                          As between the Seller and the Purchaser ( im Innenverhältnis ), the transfer of (i) the contracts listed in Annex 2.4.a.dd, (ii) the liabilities listed in Annex 2.4.a.ee and (iii) any further contracts and liabilities which are not listed in the Annexes but which are used for the Holding Operations or otherwise pertain to the Wirtgen Business (without being transferred automatically via the assignment of the Shares to the Purchaser according to this Agreement), and which are therefore also sold, shall be effected as of the Closing Date.

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(2)                     Consents

a)                          The partners’ meeting of the KG has approved the sale and assignment of the KG Interest to the Purchaser. A copy of the resolution of the partners’ meeting is attached hereto as Annex 3.2.a .

b)                          The shareholders’ meetings of each of the GmbHs have approved the sale and assignment of the respective GmbH Shares to the Purchaser. Copies of the respective resolutions of the shareholders’ meetings are attached hereto as Annex 3.2.b .

c)                           The shareholders’ meeting of the Seller has approved this Agreement, in particular the sale and assignment of the Shares and the Sold Assets to the Purchaser, in notarized form as part of the notarial framework deed to which this Agreement is also a part.

(3)                     Power of Attorney

a)                          With respect to section 16 paragraph 1 GmbHG (and similar provisions under applicable foreign law), the Seller hereby grants a power of attorney to the Purchaser including a release from any restrictions set forth in section 181 BGB (and similar provisions under applicable foreign law) to fully represent the Seller as to the exercise of shareholders’ and partners’ rights (as applicable) relating to the Shares sold by the Seller, in particular to exercise the voting rights in shareholders’ and partners’ meetings (as applicable), to pass resolutions and to issue and receive declarations of approval and waiver. A delegation of this power of attorney to third parties shall be permitted.

b)                          This power of attorney is valid for the period between the occurrence of Closing pursuant to § 8(3) below and the point in time when, with respect to each Company for which this is relevant, the new shareholders’ list relating to the respective Company has been included in the commercial register or (as applicable) the Purchaser has been registered or otherwise been accepted and/or established for all relevant legal purposes as a new shareholder or partner of the respective Company.

(4)                     Purchaser’s Nominees

The Purchaser shall be entitled to assign its rights and obligations under this Agreement to purchase and/or acquire legal title in relation to any of the Shares or Sold Assets (for the avoidance of doubt, the Sold Assets shall only be purchased and/or acquired as a whole by a single entity) and to assign any other related rights and/or obligations under this Agreement to one or more nominees of the Purchaser being an Affiliate of the Guarantor (the “ Purchaser’s Nominees ”) with the effect that the Purchaser’s Nominees shall

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become parties to this Agreement, provided that no regulatory clearance or other requirement for Closing is denied or substantially delayed as a result of any such assignment and nomination. The Purchaser will inform the Seller of any envisaged assignment and nomination reasonably in advance, at the latest thirty (30) Business Days prior to the Closing Date. In the event of any such assignment and nomination, the Purchaser (and the Guarantor) would continue to be fully responsible and liable vis-à-vis the Seller (together with the Purchaser’s Nominees) in accordance with the terms of this Agreement and the Purchaser also would continue to exercise any of the Purchaser’s Nominees’ rights and obligations under this Agreement on a trust basis so as to ensure that the Purchaser (and the Guarantor) continues to be the sole contractual point of contact of the Seller under this Agreement in as much as practically possible and legally permissible ( inter alia , in respect of giving and receiving notices, exercising rights etc.). For the avoidance of doubt, the Purchaser’s Nominees concept pursuant to this § 3(4) shall, in case the Purchaser so elects, apply to all relevant provisions of this Agreement regardless of whether or not this concept is expressly reflected in any such provisions of this Agreement. Accordingly, any reference to a Purchaser’s Nominee used in certain provisions of this Agreement shall not limit, or to be construed to as to limit, the application of the Purchaser’s Nominees concept also in relation to other provisions in this Agreement, as the case may be.

§ 4

Purchase Price and Payment Conditions

(1)                     Purchase Price

a)                          The purchase price to be paid by the Purchaser to the Seller under this Agreement as consideration for the sale of the Shares and the Sold Assets shall be the amount of EUR 4,357,000,000 (in words: four billion three hundred fifty-seven million euros) (hereinafter referred to as the “ Purchase Price ”).

b)                          The Purchase Price shall be allocated as set out in Annex 4.1.b-1 (the “ Purchase Price Allocation ”). The Parties shall use their reasonable best efforts to defend the Purchase Price Allocation vis-à-vis any Tax Authority unless and to the extent that such Purchase Price Allocation does not comply with mandatory law. All relevant Tax Returns of the Seller, the Purchaser, and the relevant Companies and Subsidiaries shall be based on the Purchase Price Allocation (as far as relevant) but each Party may disclose any facts and circumstances relevant in connection with the Purchase Price Allocation in the course of filing the relevant Tax Returns as far as it is necessary to comply with obligations under applicable law. The Parties agree that any decrease or increase of the Purchase Price due to the provisions of this Agreement shall lead to a corresponding adjustment of the Purchase Price Allocation ( i.e. if and

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to the extent that the decrease or increase of the Purchase Price (i) relates to a specific Share or Sold Asset, the purchase price allocated to such specific Share or Sold Asset shall be adjusted and (ii) does not relate to a specific Share or Sold Asset, the purchase price allocated to the Shares and Sold Assets shall be adjusted proportionally). After the Signing Date, the Purchaser shall make available to the Seller a copy of (i) the valuation report prepared by Ernst & Young LLP regarding the valuation of the Sold Assets and the Shares as well as (ii) sufficient documentation on which the valuation report relies on or refers to for the purpose of the valuation (if not already included in the aforementioned valuation report) subject to the signing of a non-reliance letter in the form as attached as Annex 4.1.b-2 . The Seller may disclose the aforementioned valuation report to Tax Authorities or Tax courts only with the Purchaser’s prior written consent, which shall not be withheld or delayed unless such disclosure would violate applicable law.

c)                           The Parties jointly assume that the Transaction is either not subject to VAT ( nicht umsatzsteuerbar ) or VAT exempt under applicable VAT law and will treat the Transaction accordingly in their VAT returns. The Seller will not waive any applicable VAT exemption and will not opt to treat the Transaction or a part or parts of it as being subject to VAT.

The Parties jointly assume that this Agreement is not an invoice within the meaning of any applicable VAT law. The Seller shall issue an invoice or invoices in compliance with applicable VAT law to the Purchaser, in which the fact that the Transaction is not subject to VAT and/or the applicable VAT exemptions is explicitly mentioned.

If and to the extent a competent Tax Authority – against the Parties’ expectations and understanding - treats the Transaction or a part or parts of the Transaction as being subject to VAT, the following shall apply:

aa)                    any VAT - including for the avoidance of doubt any interest (including interest within the meaning of section 233a AO) and penalties - triggered by the Transaction or part or parts of the Transaction which is owed by the Seller shall increase the Purchase Price and paid by the Purchaser unless the Transaction or a part or parts of the Transaction are subject to VAT only due to a waiver of an applicable VAT exemption by the Seller; and

bb)                  the payment of such VAT - including for the avoidance of doubt any interest (including interest within the meaning of section 233a AO) and penalties - shall become due and payable within ten (10) Business Days after the Purchaser has received an invoice complying with applicable VAT law from the Seller, in which the Transaction or the respective part or parts of the

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Transaction are treated as being subject to VAT, however, not earlier than two (2) Business Days before the respective VAT payment has to be made by the Seller to the respective Tax Authorities.

(2)                     Payment of the Purchase Price

a)                          The Purchase Price shall be paid by the Purchaser:

aa)                    in the amount of EUR 3,921,300,000 (in words: three billion nine hundred twenty-one million three hundred thousand euros), less the Closing Hold-Back Amount (as defined in § 4(2)b) below), if any, in accordance with the payment modalities set out in § 16(3) on the Closing Date; and

bb)                  in the amount of EUR 435,700,000 (in words: four hundred thirty-five million seven hundred thousand euros) (the “ Escrow Amount ”) into a bank account (the “ Escrow Account ”) maintained by the Seller with Citigroup Global Markets Deutschland AG in Frankfurt am Main (the “ Account Bank ”) and operated by Citibank, N.A., London Branch (the “ Account Agent ”) on the Closing Date. The Escrow Amount shall serve as collateral for any claims of the Purchaser against the Seller under this Agreement. The Escrow Account shall be operated by the Account Bank and the Account Agent in accordance with the terms of the account bank agreement attached hereto as Annex 4.2.a.bb (the “ Account Bank Agreement ”). The Seller and the Purchaser shall jointly instruct the Account Agent in accordance with the terms and conditions of the Account Bank Agreement to release the Escrow Amount or any portion thereof to the Purchaser if and to the extent the Purchaser has made a claim under this Agreement and such claim (i) is undisputed or (ii) has been established by an arbitral award pursuant to § 20(2). The Purchaser shall issue a blocking notice pursuant to section 5.2 of the Account Bank Agreement against the automatic release of the (remaining) Escrow Amount to the Seller only if and to the extent the Purchaser has made any claims against the Seller based on - and in accordance with - this Agreement prior to the second anniversary of the Closing Date which have not been fully settled or fulfilled. In case the Purchaser has made claims in accordance with § 10(4)a) of this Agreement and issued a corresponding blocking notice pursuant to section 5.2 of the Account Bank Agreement but has not initiated arbitration proceedings in relation to the relevant disputed matter in accordance with § 20(2) of this Agreement within a period of eight (8) months after such claim has been made, the Purchaser shall be obliged to issue an instruction pursuant to section 5.3(a) of the Account Bank Agreement.

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b)                          In case the legal transfer of any Specified Shares (as defined in § 8(3) below) has not been validly effected as of the Closing Date (in spite of the fulfillment of all Closing Actions by the relevant Parties), the fraction(s) of the Purchase Price allocated to such Specified Shares pursuant to Annex 4.1.b-1 (the “ Closing Hold-Back Amount ”) shall also be paid into a bank account held by the Seller with the Account Bank and operated by the Account Agent and governed by the Account Bank Agreement (the “ Hold-Back Account ”), to be released to the Seller once the respective Specified Shares are validly transferred to the Purchaser or the respective Purchaser’s Nominee. In case the legal transfer of the relevant Specified Shares to the Purchaser or respective Purchaser’s Nominee has still not been validly effected within three (3) months after the Closing Date, the Parties will enter into bona fide discussions with a view to agreeing to suitable mechanisms based on which the Purchaser and/or the relevant Purchaser’s Nominee(s), if any, can achieve the same economic benefits as if the relevant Specified Shares had been validly transferred as of the Closing Date. If and to the extent this has not been achieved (and/or the relevant Specified Shares have not been validly transferred) within six (6) months after the Closing Date, the Seller and the Purchaser shall jointly instruct the Account Agent to transfer the (remaining) Closing Hold-Back Amount to the Purchaser; for the avoidance of doubt, the Purchaser’s obligation to pay the relevant portion of the Purchase Price upon effectiveness of the transfer of the relevant Specified Shares, if any, shall remain unaffected.

c)                           In order to secure any payment claims the Purchaser may have under this Agreement and/or under the Account Bank Agreement against the Seller, the Seller shall pledge both the Escrow Account and the Hold-Back Account, including all amounts standing to the credit of such accounts and all rights against the Account Bank, to the Purchaser on the basis of an account pledge agreement substantially in the form attached hereto as Annex 4.2.c (the “ Account Pledge Agreement ”) and promptly ( unverzüglich ) notify both the Account Bank and the Account Agent of this pledge in accordance with the terms and conditions of the Account Pledge Agreement.

d)                          As compensation for the earnings of the Wirtgen Business, the Purchase Price shall bear interest at a rate of 5 percent per annum as from the Signing Date until the Closing has occurred (within the meaning of § 8(3) below), which shall be paid by the Purchaser in accordance with § 16(3) on the Closing Date in addition to the Purchase Price stated in § 4(1)a) above.

e)                           Any claims made by the Purchasing Parties under or in connection with this Agreement shall, to the extent not otherwise settled or paid by Seller, primarily ( vorrangig ) be claimed from the Escrow Amount.

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(3)                     Withholding Taxes

a)                          Any payment by the Purchaser to the Seller shall be made without any deduction or withholding unless and to the extent, the Purchaser is required by mandatory law to make a deduction or withholding for or on account of Taxes, for account of the Seller due to the payment of the Purchase Price or the consummation of the Transaction (any such Tax, a “ Withholding Tax ” and such deduction or withholding, a “ Withholding Tax Deduction ”). The preceding sentence shall not apply if and to the extent that such Withholding Tax is only triggered by the fact that a Purchaser’s Nominee is acquiring or purchasing the Sold Assets or any of the Shares instead of the Purchaser unless and to the extent such Withholding Tax can be credited by the Seller against a Tax which would also be triggered in case the Purchaser would be acquiring or purchasing the Sold Assets or any of the Shares. With the Seller’s prior written consent, which shall not be unreasonably withheld or delayed, the Purchaser shall make Withholding Tax Deductions as required by mandatory law from the payments to the Seller. Therefore, the Purchaser shall notify the Seller in writing of the intention to make a Withholding Tax Deduction twenty (20) Business Days prior to the due date of the respective payment at the latest. The Seller and the Purchaser shall after the notification to the Seller discuss in good faith whether the Withholding Tax Deduction is required by mandatory law. The Purchaser shall (i) forward the withheld or deducted amounts to the competent Tax Authorities (as defined below) as appropriate and (ii) provide the Seller with full evidence of such payment to the Tax Authorities and any further documentation that is required to be provided under applicable law.

b)                          The Seller shall indemnify the Purchaser from and against any and all Withholding Taxes if and to the extent no Withholding Tax Deductions have been made pursuant to § 4(3)a) above, along with all reasonable external costs associated with such Withholding Taxes (“ Indemnifiable Withholding Taxes ”); it being understood, that the indemnification of reasonable external costs shall apply to adviser costs only if and to the extent the adviser was engaged by the Seller or after consent of the Seller. The Seller shall be under no obligation to make a payment under this § 4(3) if and to the extent that the Purchaser failed to comply with any obligation set forth in this § 4(3), if and to the extent that the Seller proves that such non-compliance has either caused or increased the respective Indemnifiable Withholding Taxes.

c)                        § 11(3)d) and § 11(3)e) below shall apply mutatis mutandis with regards to indemnification payments relating to Indemnifiable Withholding Taxes.

d)                       The Purchaser shall procure that all Tax Returns (as defined below) relating to Withholding Taxes (“ Withholding Tax Returns ”) to be filed by the Purchaser (if

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any) shall be agreed with the Seller and shall be filed only with the Seller’s prior written consent, which consent shall not be unreasonably withheld or delayed. The Purchaser shall provide drafts of any Withholding Tax Return reasonably in advance prior to the filing (with the objective of a review period for the Seller of at least fifteen (15) Business Days) to the Seller. The Seller shall be allowed to submit changes to the Purchaser reasonably in advance prior to the filing date. The consent of the Seller to the filing of the respective Withholding Tax Return shall be deemed to be granted if the Seller has not provided changes to the Withholding Tax Return to the Purchaser three (3) Business Days prior to the filing date at the latest. The Seller shall have a comprehensive right to instruct the Purchaser with respect to the content of any Withholding Tax Return unless and to the extent these instructions do not comply with mandatory law. The Purchaser may request that the Seller shall prepare any Withholding Tax Return to be filed by the Purchaser under mandatory law in which case the preceding sentences shall apply vice versa taking into account when such request is made to the Seller.

e)                           § 11(4)b) and § 11(4)c) below shall apply mutatis mutandis with regards to a Tax Proceeding relating to Withholding Taxes. § 11(4)d) through § 11(4)g) below shall apply mutatis mutandis with regards to Withholding Taxes and to Tax Proceedings relating to Withholding Taxes.

f)                             The Purchaser shall pay to the Seller the amount equal to any Withholding Tax refunded by any Tax Authority to the Purchaser if and to the extent that such Withholding Tax has previously been (i) deducted by the Purchaser pursuant to § 4(3)a) above or (ii) paid by the Seller to the Purchaser pursuant to § 4(3)b) and an amended Tax assessment notice or another decision of any competent Tax Authority or Tax court provides that the payment of the Withholding Tax to the Tax Authority was not justified. For the avoidance of doubt, the Purchaser shall not be precluded from raising a claim against the Seller with respect to Withholding Taxes refunded by any Tax Authority and paid by the Purchaser to the Seller if and to the extent it should subsequently be determined by the competent Tax Authority or a Tax court that the assessment of the Withholding Tax was still justified and the payment of Withholding Tax is (again) requested by the Tax Authorities. The amount due pursuant to the first sentence of this § 4(3)f) shall be paid by the Purchaser to the Seller within five (5) Business Days after the Withholding Tax has been received by the Purchaser.

g)                          § 11(11)a) below shall apply mutatis mutandis to any claims of the Purchaser and the Seller under this § 4(3) and the Purchaser’s obligations to inform the Seller pursuant to this § 4(3) . For the avoidance of doubt, neither the De Minimis Amount (as

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defined below) nor the Threshold (as defined below) shall apply with respect to claims of the Purchaser and the Seller under this § 4(3).

(4)                     Chinese Tax Filing Requirements

a)                          The Parties agree that the indirect transfers of the shares in Chinese Subsidiaries due to the transfer of the Shares of Wirtgen Hong Kong Ltd. must be notified to the Chinese Tax Authorities (“ Chinese Tax Notification ”) and may trigger Taxes (for the avoidance of doubt, including any interest and penalties) to be paid by the Seller to the Chinese Tax Authorities (“ Chinese Taxes ”).

b)                          The Seller is obliged to engage a Chinese legal, tax and/or accounting firm (“ Seller’s Chinese Tax Adviser ”) to handle the Chinese Tax Notification on its own costs. The Chinese Tax Notification (including any required annexes) shall be prepared by the Seller’s Chinese Tax Adviser and shall be based in particular on the Purchase Price Allocation. For the avoidance of doubt, the principles stipulated in § 4(1)b) sentences 2 and 3 regarding the (indirect) Purchase Price Allocation with respect to the Chinese entities shall apply mutatis mutandis . The draft of the Chinese Tax Notification (including all required annexes) (“ Draft Chinese Tax Notification ”) shall be provided to the Purchaser for review and comment within twenty (20) days of the date of this Agreement. The Purchaser shall provide its comments to the Draft Chinese Tax Notification five (5) Business Days prior to the filing deadline for the Chinese Tax Notification at the latest. The Seller shall consider in good faith all comments by the Purchaser if and to the extent that such comments comply with mandatory law and ensure that the decision by the Chinese Tax Authorities based on the Chinese Tax Notification is binding ( e.g. ensure that the facts and circumstances of the case are described completely and correctly). The Seller shall file the Chinese Tax Notification (including all required annexes) with the Chinese Tax Authorities within the statutory filing deadline.

c)                           The Seller shall keep the Purchaser fully informed of any matter in relation to the Chinese Tax Notification and Chinese Tax (including any proceedings, assessments, rulings and decisions by the Chinese Tax Authorities or Chinese courts) (“ Chinese Tax Proceedings ”). The Seller shall notify the Purchaser of any written document received from the Chinese Tax Authorities in connection with the Chinese Tax Proceedings as soon as reasonably practicable. The Purchaser and an adviser of the Purchaser which is bound by the duty of professional confidentiality shall have the right to fully participate in any Chinese Tax Proceedings (including the right to attend any meeting or conversation with the Chinese Tax Authorities). The Seller shall consider in good faith any comments by the Purchaser in connection with the Chinese Tax Proceedings if and to the extent that such comments comply with

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mandatory law and ensure that the decision by the Chinese Tax Authorities is binding ( e.g. ensure that the facts and circumstances of the case are described completely and correctly).

d)                          The Seller shall indemnify and hold the Purchaser harmless from and against any and all Chinese Taxes.

e)                           The Purchaser shall pay to the Seller the amount equal to any Chinese Taxes (including interest) that are refunded by any Tax Authority to the Purchaser, a Company or Subsidiary, if and to the extent that such Chinese Taxes have previously been paid by the Seller to the Purchaser, a Company or Subsidiary or the Tax Authorities. For the avoidance of doubt, the Purchaser shall not be precluded from raising a claim against the Seller with respect to Chinese Taxes refunded by any Tax Authority and paid by the Purchaser to the Seller if and to the extent it should subsequently be determined by the competent Tax Authority or a Tax court that the assessment of the Chinese Taxes was still justified and the payment of Chinese Taxes are (again) requested by the Tax Authorities. The amount due pursuant to the first sentence of this § 4(4)e) shall be paid by the Purchaser to the Seller within five (5) Business Days after the Chinese Taxes have been received by the Purchaser.

f)                             § 11(11)a) below shall apply mutatis mutandis to any claims of the Purchaser and the Seller under this § 4(4). For the avoidance of doubt, neither the De Minimis Amount (as defined below) nor the Threshold (as defined below) shall apply with respect to claims of the Purchaser and the Seller under this § 4(4).

§ 5

Replacement of Seller Security

With effect as of the Closing Date, the Purchaser shall assume with debt discharging effect ( mit schuldbefreiender Wirkung ) for the Seller the obligations and liabilities (i) under the guarantees, letters of comfort, loss assumption declarations ( Verlustübernahmeerklärungen ) and/or other security listed in Annex 5 hereto which the Seller has issued or otherwise granted, as well as (ii) under the guarantees, letters of comfort, loss assumption declarations and/or other security which the Seller may issue or otherwise grant between the Signing Date and the Closing Date (it being understood, solely for the avoidance of doubt, that the Seller’s obligations under § 14(8) and § 14(9) below remain unaffected ), in respect of obligations and liabilities of the Companies and/or Subsidiaries (hereinafter collectively referred to as the “ Seller Security ”) as follows:

a)                          With effect as of the Closing Date, the Purchaser shall replace, to the extent that the beneficiary of the relevant Seller Security consents to such replacement, each Seller

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Security so that the Seller is fully released from all obligations and liabilities as from the Closing Date.

b)                         If and to the extent that the replacement of the Seller Security in accordance with § 5a) above has not been effected with effect as of the Closing Date, the Purchaser hereby agrees to indemnify and hold harmless ( freistellen ) the Seller against all liabilities, costs and expenses of the Seller arising after the Closing Date under or in connection with any Seller Security. In this event, on the Closing Date, the Purchaser shall provide the Seller with a guarantee from a reputable international bank (having been approved by the Seller) under which such bank will provide an unconditional guarantee payable on first demand ( unbedingte Bankbürgschaft auf erstes Anfordern ) for the benefit of the Seller with respect to the indemnification obligation of the Purchaser pursuant to sentence 1 above excluding, however, any Seller Security that has only been provided verbally. However, nothing contained in this § 5b) shall release the Purchaser from its obligations to fully replace, and release the Seller from, the Seller Security as set forth in § 5a) above.

c)                           The Seller shall update Annex 5 with respect to any Seller Security which has been issued after the Signing Date pursuant to and in accordance with the terms of the first paragraph of this § 5 and deliver such updated Annex to the Purchaser ten (10) Business Days prior to the Closing Date, which shall then be deemed to be the conclusive list of Seller Security for purposes of this Agreement.

§ 6

Transfer of Employment Agreements

(1)                     Transferred Employees

a)                          The Parties are aware that the employment agreements with all employees of the Seller who are exclusively or primarily employed in the Holding Operations (except for those whose employment agreements terminate or end with effect on or prior to the Closing Date), including the employees listed in Annex 6.1.a (“ Transferring Employees ”), will transfer to the Purchaser on the Closing Date in accordance with applicable law (section 613a BGB), provided that such employees have not properly objected to their transfer of employment (“ Objecting Employees ”).

b)                          The employees whose employment agreements actually transfer to the Purchaser under applicable law are referred to herein as the “ Transferred Employees ”.

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(2)                     Notification and Reasonable Efforts

a)                          The Seller and the Purchaser shall jointly notify the Transferring Employees of the proposed transfer of their employment, in compliance with section 613a paragraph 5 BGB, no later than (30) Business Days before the Closing Date substantially in the form of the draft notification attached hereto as Annex 6.2.a .

b)                          If any Transferring Employees or Objecting Employees (with the exception of the Remaining Employees as defined in § 14(6)b) below) do not become Transferred Employees, the Purchaser shall reimburse the Seller for the costs and expenses related to such employees that arise following the Closing Date (including the costs of termination of employment), provided that the Seller issues notice of termination to the relevant employees as soon as practicable and no later than one month after the Closing Date. Notwithstanding the foregoing, the Purchaser will fully indemnify the Seller from any liability with respect to any Objecting Employee arising after the expiration of a period of one month following receipt by the relevant employee of the notice referred to in § 6(2)a) above resulting from any non-compliance of the notice with the requirements of section 613a paragraph 5 BGB with respect to any measures affecting the employees and envisaged by the Purchaser after the Closing Date.

(3)                     Employee Related Liabilities

a)                          As between the Seller and the Purchaser ( im Innenverhältnis ), the Purchaser shall assume with effect as of the Closing Date all obligations and liabilities with respect to the Transferred Employees including (i) those which relate to annual bonuses, withholding Taxes, annual holiday, anniversary payments or company pensions and (ii) any liability relating to unpaid compensation, employee inventions, employee loans, accidents, injuries or discrimination (but, for the avoidance of doubt, with the exception of the bonus payments pursuant to § 14(11) below); and

b)                          to the extent that the Seller has made or makes any payments etc. with respect to any obligations or liabilities to be assumed by the Purchaser pursuant to § 6(2)a) above ( e.g. wage payments prior to the Closing Date), the Purchaser shall reimburse the Seller within ten (10) Business Days after the Closing Date.

(4)                     ÖBAV Unterstützungskasse e. V.

Seller and Purchaser will use best efforts to ensure that the Purchaser shall become a member of ÖBAV Unterstützungskasse e. V. upon or as soon as possible following Closing.

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(5)                     Executive Employment Agreement

The Purchaser shall offer Mr. Rainer Otto an employment agreement as managing director or in an equivalent function with effect as of the Closing Date (also being an agreement for the benefit of a third party ( als echter Vertrag zugunster Dritter, Section 328 BGB).

§ 7

Closing Conditions

(1)                     Closing Conditions

a)                        The obligations of the Seller and the Purchaser to consummate the Transaction shall be subject to the conditions precedent ( aufschiebende Bedingungen ) (hereinafter referred to as the “ Closing Conditions ” ) pursuant to § 7(1)b) to § 7(1)e)below.

b)                          Clearance by Merger Control Authorities

The competent merger control authorities in:

aa)                    the European Union, China, the USA, Brazil, India, Kazakhstan, Kenya, Macedonia, Paraguay, Russia, South Africa, South Korea, Tanzania, Turkey, Ukraine; and

bb)                  in any other jurisdiction where, based on the Parties’ mutual agreement, merger control filings with respect to the Transaction have been submitted and where the consummation of the Transaction before clearance would be prohibited by law,

have either (i) cleared the Transaction, or (ii) not issued an order within the applicable examination period prohibiting the Transaction (the “ Foreign Antitrust Condition ”).

c)                           The Transaction has not been prohibited pursuant to section 4 paragraph 1 no. 4, section 5 paragraph 2 of the German Foreign Trade Act ( Außenwirtschaftsgesetz – “ AWG ” ) and section 59 paragraph 1 sentence 1 of the German Foreign Trade Ordinance ( Außenwirtschaftsverordnung – “ AWV ” ) (the “ AWV Clearance ”).

d)                        No enforceable judgment, injunction or order by a court or a governmental authority of competent jurisdiction is prohibiting the Transaction.

e)                         The Purchaser has not validly rescinded from this Agreement prior to Closing based on the existence of a Material Adverse Change (as defined in § 7(6) below).

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(2)                     Merger Control Proceedings

a)                        The Purchaser shall be responsible for the merger control proceedings pursuant to this § 7(2) with the exception of merger control filings which the Seller is required to make in its capacity as seller.

b)                          The Purchaser shall file notifications of the Transaction to the competent authorities as soon as reasonably practicable after the Signing Date. The filing of the notifications as well as any application for or consent to any extensions of applicable time periods relating to such proceedings shall be mutually agreed between the Seller and the Purchaser, the Seller’s approval not to be unreasonably withheld. The Purchaser may withdraw ( zurücknehmen ) any filings made with the competent merger control authorities only with the express prior written consent of the Seller, such consent not to be unreasonably withheld.

c)                         The Seller and the Purchaser shall closely cooperate in the preparation of such filings as well as in any discussions and negotiations with the competent merger control authorities in order to obtain clearance for the Transaction in the shortest time period possible.

d)                        The Seller has used all efforts which can reasonably be expected in the context of the preparation and submission of the merger control filings and the handling of the process with the competent merger control authorities (including the provision of information which is required in order to allow the Purchaser to respond as promptly as possible to all inquiries received from merger control authorities for additional information or documentation) which are required for fulfilling (i) the Foreign Antitrust Condition, (ii) the non-suspensory merger control filings with the competent merger control authorities in Argentina, the Common Market for Eastern and Southern Africa, Costa Rica, Egypt, and any other jurisdiction in which the Parties agree a non-suspensory merger control filing should be made, and (iii) the voluntary submission with the merger control authority in Australia and any other jurisdiction in which the Parties agree to make a voluntary submission (the “ Other Antitrust Regimes ”).

e)                           If, prior to the Closing Date, one or several of the Other Antitrust Regimes is amended in a way which renders approval by the competent merger control authority suspensory for the consummation of the Transaction by the Closing Date, the Purchaser and the Seller shall mutually agree in good faith on appropriate steps to be taken in order to allow the Purchaser to comply with local laws to the greatest extent possible, to mitigate risks for the Purchaser and the Seller and to allow the Transaction to be consummated on the Closing Date.

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f)                             The Seller and the Purchaser shall be obliged to inform one another of all written communications with the competent merger control authorities and to provide one another with copies of such communications (with business secrets redacted as required), in each case as soon as reasonably practicable. The Purchaser shall notify the Seller as soon as reasonably practicable after receipt of each clearance or approval which is required under the Foreign Antitrust Condition.

g)                          The costs of the merger control proceedings shall be borne by the Purchaser except for legal fees incurred by the Seller, where the Seller decides to retain its own counsel or where fees are related to merger control filings which the Seller is required to make in its capacity as seller.

h)                          If the competent merger control authorities will grant clearance only subject to the satisfaction of conditions or obligations ( Bedingungen oder Auflagen ), then the Purchaser and the Guarantor shall consider in good faith and at the Purchaser’s and the Guarantor’s sole reasonable discretion whether any structural or behavioral undertakings or commitments vis-à-vis any relevant competent merger control authority can be offered or given by the Purchaser or the Guarantor or any of their Affiliates, or whether any appropriate legal remedies can be invoked, in order to obtain regulatory clearance for the Transaction as soon as practically possible. The Parties shall use best efforts to jointly cooperate in order to find possible solutions for obtaining clearance but, for the avoidance of doubt, nothing in this Agreement shall limit the Purchaser’s and/or the Guarantor’s ultimate freedom to decide at their own reasonable discretion whether any such undertakings or commitments shall be offered or given or whether any such legal remedies shall be invoked.

(3)                     German Foreign Trade Act

a)                          For the purpose of obtaining the AWV Clearance referred to in § 7(1)c) above, the Purchaser shall file an application pursuant to section 58 paragraph 1 sentence 1 AWV within fifteen (15) Business Days after the Signing Date.

b)                          § 7(2)b) to § 7(2)g) above shall apply mutatis mutandis .

c)                           The Closing Condition set forth in § 7(1)c) above shall be deemed satisfied if the German Federal Ministry of Economics and Energy:

aa)                    has issued a certificate of compliance ( Unbedenklichkeitsbescheinigung ) (the “ Clearing Certificate ”) to the Purchaser upon the Purchaser’s application pursuant to section 58 paragraph 1 sentence 1 AWV;

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bb)                  has not initiated a formal investigation pursuant to section 55 AWV in relation to the Transaction within one (1) month after receipt of the Purchaser’s application for a Clearing Certificate (section 58 paragraph 2 AWV);

cc)                    has, in the event that a Clearance Certificate has not been issued, not notified the Purchaser of the initiation of a formal investigation pursuant to section 55 AWV in relation to the Transaction within three (3) months from the Signing Date (section 55 paragraph 3 AWV); or

dd)                  has, in the event of a formal investigation pursuant to section 55 AWV, failed to prohibit the Transaction within a period of two (2) months from the submission of the complete documentation of the acquisition as specified in section 57 AWV (section 59 paragraph 1 AWV).

(4)                     Best Efforts; Consequences of Failure to Close

a)                          Unless otherwise provided in this Agreement, the Seller and the Purchaser shall use their respective best efforts ( nach besten Kräften ) to ensure that the Closing occurs as soon as possible after the Signing Date.

b)                          If Closing has not occurred within nine (9) months after the Signing Date at the latest, the Seller may rescind this Agreement ( Rücktritt vom Vertrag ) by written notice to the Purchaser, and the Purchaser may rescind this Agreement by written notice to the Seller, in each case with a copy to the acting notary.

c)                           In the event of a rescission pursuant to § 7(4)b) above, § 15 (Confidentiality and Press Releases), § 16 (Prohibited Assignments etc.), § 17 (Guarantor), § 18 (Costs and Taxes), § 19 (Notices) and § 20 (Miscellaneous) shall remain in full force and effect. Further, any claims that any Party may have for breach of contract ( Vertragsverletzung ) under this Agreement that has occurred prior to its termination shall remain unaffected.

(5)                     Confirmatory Due Diligence

Following the Signing Date, the Purchaser will be granted the opportunity to perform a confirmatory due diligence in the areas set out in Annex 7.5 (the “ Confirmatory Due Diligence ”). However, the performance and/or the findings of the Confirmatory Due Diligence shall not have any effect on the Closing of the Transaction; in particular, the (satisfactory) outcome for the Purchaser of the Confirmatory Due Diligence shall neither be a Closing Condition nor shall it give the Purchaser a right to withdraw from the Transaction, to prevent or delay Closing and/or to otherwise amend or alter this Agreement (including

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