Exhibit 2.1
No. 51 of the Roll of Deeds for 2021
Transacted
in Frankfurt am Main on 24 and 25 June 2021
Before me, the undersigned notary
Dr. Cornelius Götze
with official place of business at Frankfurt am Main,
Ulmenstraße 23-25, 60325 Frankfurt am Main,
appeared in the offices of Gleiss Lutz Hootz Hirsch PartmbB, Taunusanlage 11, 60329 Frankfurt am Main, where the notary had come to at the parties’
instigation
| 1. |
Mr. Björn Weber, born on 8 July 1977, with business address Im Gewerbegebiet 7, 77855 Achern, Germany, identified by his valid German identity card,
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in the following not acting in his own name but in the name and on behalf of
F.E.R. fischer Edelstahlrohre
GmbH, a German limited liability company incorporated under the laws of Germany, having its registered seat in Achern, Germany, registered with the commercial register of the local court of Mannheim under no. HRB 220198, with
business address at Im Gewerbegebiet 7, 77855 Achern, Germany,
as its managing director (Geschäftsführer);
the notary certifies upon inspection of the commercial register of the local court of Mannheim on 23 June 2021 that the
commercial register shows under no. HRB 220198 the registration of F.E.R. fischer Edelstahlrohre GmbH, Achern, and of Mr. Björn Weber as its managing director authorized to represent the company acting solely;
| 2. |
Dr. Antonius Mann, born on 10 January 1988, with business address c/o Gleiss Lutz Hootz Hirsch PartmbB, Taunusanlage 11, 60329 Frankfurt am Main, personally
known to the notary,
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in the following not acting in his own name but – without assuming any personal liability – in the name and on behalf of
Advent Technologies Holdings,
Inc., a U.S. Corporation incorporated under the laws of the state of Delaware, USA, with principal place of business at 200 Clarendon Street, Boston, Massachusetts 02116, USA,
on the basis of a notarially certified and apostilled power of attorney dated 18 June 2021, the original of which was
available during notarization and a copy of which, the word-for-word-conformity of which with the original is hereby certified, will be attached to this deed; in order to evidence the representative power of the signatory of the power of
attorney, the person appearing ad 2. presented the copy of a notarially certified secretary’s certificate and promised to submit the original of such certificate with apostille without undue delay, a certified copy of which will then be
attached to this deed.
The notary asked about a prior involvement within the meaning of section 3 para. 1 sentence 1 no. 7 of the German Notarization Act (BeurkG). Pursuant to this provision, a notary must not act in his capacity as notary in a matter in which he or any of his partners or
associates or any persons sharing offices with the acting notary have previously been involved in the same matter in another capacity. The question was denied by the persons appearing.
The persons appearing requested the notarization of this deed in the English and in the German language. The notary, who himself is in sufficient
command of the English language, ascertained that the persons appearing too are in sufficient command of the English language.
The persons appearing declared that the parties represented by them act in their own name and on their own account.
I.
Thereupon, the persons appearing requested notarization of the
SHARE PURCHASE AGREEMENT
attached to this deed as ANNEX.
The notarization included the following exhibits to the Share Purchase Agreement attached to this deed:
To the extent this deed, the Annex or any exhibits thereto make use of words in the Danish language, such words are not part of the notarization
and shall serve information purposes only.
Part 2 of Exhibit A (List of Definitions), Exhibits B and C and the copy of the shareholder resolution of fischer group SE & Co. KG included in
Exhibit 9.15 are attached to the Share Purchase Agreement for information purposes only and were not read aloud to the persons appearing. Likewise, the Table of Contents of the Share Purchase Agreement serves information purposes only and was
not read aloud to the persons appearing.
In order to facilitate the notarization of the Share Purchase Agreement attached to this deed as Annex, a reference deed dated 23 and 24 June 2021
has already been notarized (number 50 of the roll of deeds for 2021 of the acting notary - hereinafter the “Reference Deed”). The original
of said Reference Deed was made available to the persons appearing. The persons appearing declared that they are fully aware of the entire content of the Reference Deed, that they fully approve thereof and waive their right to have the
Reference Deed read to them, have it presented to them for inspection and have it attached to this deed together with the Share Purchase Agreement. The persons appearing make reference to (verweisen auf) the Reference Deed. To the extent that reference is made in the Share Purchase Agreement to exhibits that are not attached to this deed, such reference shall apply to the
exhibits attached to the Reference Deed, in which case such exhibits attached to the Reference Deed shall be treated as if they were attached to this deed. The notary pointed out in this context the meaning of Sections 13 and 13a of the
German Notarization Act (BeurkG).
If and to the extent exhibits attached to this deed or the Reference Deed make reference to exhibits, annexes, schedules or other documents not
contained in the exhibits attached to this deed or the Reference Deed, the Parties agree that such exhibits, annexes, schedules or other documents shall not constitute part of the agreement between the Parties, unless such documents
constitute publicly available documents that do not require notarization to become part of the agreement (such as laws and ordinances).
II.
The notary advised the persons appearing that
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the notary is obliged to submit an amended list of shareholders to the commercial register of fischer eco solutions GmbH without undue delay after the transfer
of the shares of fischer eco solutions GmbH agreed in the Share Purchase Agreement enters into effect;
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a share in a German GmbH may be acquired in good faith from a non-authorised person if the non-authorised person is recorded as the holder of the share in the
shareholders’ list recorded in the commercial register and either (i) the shareholders’ list has been incorrect for at least three years at the time of the acquisition or (ii) the incorrectness is imputable to the actual owner of the
shares;
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the Buyer is liable as joint and several debtor together with the Seller for any contribution obligations vis-à-vis fischer eco solutions GmbH which are overdue
at the time when the new shareholders’ list is recorded in the commercial register of this company;
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the Buyer is liable in full for any outstanding contributions and any shortfalls of the Seller and of all other former shareholders of fischer eco solutions
GmbH;
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this deed must contain all stipulations and agreements of the Parties with regard to the subject matter of the notarized document;
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the notary is obliged to submit a certified copy of this deed to the German tax authority competent for corporate tax;
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the sale of shares in a company can be subject to German real estate transfer tax if the company or any subsidiary of the company owns real estate in Germany;
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the notary has not advised in any law other than German law;
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the notary was not instructed to review the tax consequences of this deed and accordingly has not rendered any tax advice in connection herewith;
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the Parties are jointly liable for the costs of this deed, regardless of the agreements made between them.
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The above deed including the Annex and, unless indicated otherwise above, the exhibits attached to this deed were read out aloud
by the notary to the persons appearing, approved by them and signed by them and the notary in their own hands as follows:
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sgd. Mr. Björn Weber
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sgd. Dr. Antonius Mann
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on behalf of Seller
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on behalf of Buyer
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[seal of the
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sgd. Dr. Cornelius Götze, notary
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Notary public]
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ANNEX – SHARE PURCHASE AGREEMENT
Project Fenway / SPA
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Project Fenway
Share Purchase Agreement
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between
F.E.R. FISCHER EDELSTAHLROHRE GMBH
and
ADVENT TECHNOLOGIES HOLDINGS, INC.
TABLE OF CONTENTS
Share Purchase Agreement
between
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(1)
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F.E.R. fischer Edelstahlrohre GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) incorporated under the Laws of Germany, having its registered seat in Achern, Germany,
registered with the commercial register of the local court of Mannheim, Germany under no. HRB 220198, with business address at Im Gewerbegebiet 7, 77855 Achern, Germany (“Seller”);
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and
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(A)
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Seller is the owner of one hundred percent (100%) of the equity interests of SerEnergy A/S, a Danish stock corporation (Aktieselskab) registered with the Danish
Central Business Register (CVR) under registration no. 29616647, with its principal place of business in Lyngvej 8, 9000, Aalborg, Denmark (“SerEnergy”).
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(B)
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SerEnergy has an aggregate registered share capital (selskabskapital) of DKK 3,881,652.00 (in words: three million eight hundred eighty one thousand six hundred
fifty two Danish kroner), divided into 3,881,652 (in words: three million eight hundred eighty one thousand six hundred fifty two) shares with a nominal amount of DKK 1.00 (in words: one Danish krone) each, all of which are held by
Seller (collectively the “SerEnergy Shares”).
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(F)
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The business of the Target Group is the development, production, marketing and distribution of power generators based on high temperature fuel cells with an integrated methanol reformer. The Target Group
is developing products and production processes, producing power generators and accessories, market and sell their products worldwide and provide related services (the “Business”).
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(G)
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(H)
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The shares in Advent are traded on the Nasdaq Capital Market under the ticker symbol ‘ADN’.
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(I)
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Buyer desires to purchase and acquire the Shares, including all things incidental to the conduct and operation of the Business, as well as certain SHL Receivables (as defined in the SHL Receivables Sale
and Transfer Agreement) pursuant to the terms and conditions set forth herein (the “Transactions”).
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NOW, THEREFORE, Seller and Buyer hereby agree as follows:
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1.
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Unless expressly provided otherwise herein, for purposes of this Agreement, the following rules of interpretation shall apply:
| 1.1 |
The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. Unless expressly otherwise provided in this Agreement, any reference to a Section, an Exhibit or a Disclosure Schedule
is a reference to a Section, an Exhibit or a Disclosure Schedule of this Agreement.
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| 1.2 |
The Exhibits and Disclosure Schedule shall be construed as an integral part of this Agreement. Any reference to this Agreement includes this Agreement and the Exhibits and the Disclosure Schedule as a whole.
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| 1.3 |
If any Person or entity shall, pursuant to this Agreement, use “commercially reasonable efforts”, such Person/entity shall be required to make a diligent, reasonable and good faith effort to accomplish the applicable objective. Such
obligation, however, does not require an expenditure of material funds or the incurrence of a material Liability, nor does it require to make any concession or acts in a manner that would be contrary to normal commercial practices under
the given circumstances in order to accomplish the objective. The fact that the objective is or is not actually accomplished is no indication that the Person/entity did, or did not, in fact use its reasonable commercial efforts in
attempting to accomplish the objective.
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| 1.4 |
Words such as “hereof”, “herein” or “hereunder” refer (unless otherwise required by the context) to this Agreement as a whole and not to a specific provision of this Agreement.
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| 1.5 |
The word “including”, “in particular” or any variation shall be deemed to be followed by the words “without limitation” and shall not be construed to limit a general statement to the specific exemplary items or matters following it.
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| 1.6 |
Any reference in this Agreement to gender shall include all genders. Words (including definitions) imparting the singular number only shall include the plural and vice versa.
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| 1.7 |
This Agreement is made in the English language. The English language version of this Agreement shall prevail over
any translation of this Agreement save for German or Danish terms inserted in brackets, which shall be authoritative for the purposes of interpretation of the relevant English term used and shall prevail over any translation of this
Agreement. The relevant English term shall be interpreted the same way throughout the Agreement, unless the context requires otherwise.
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| 1.8 |
Wherever in this Agreement the term “material” or “materiality” or any variation thereof appears, no monetary threshold set forth in any provision of this Agreement shall be considered in connection with the interpretation thereof
unless specifically and explicitly tied thereto.
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| 1.9 |
Any monetary thresholds denominated in Euro shall include the equivalent in any foreign currency calculated based on the Exchange Rate as of the Signing Date.
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| 1.10 |
Except where otherwise specifically set forth herein, references to a specific time herein are references to local time in Frankfurt am Main, Germany.
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2.
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| 2.1 |
Exhibit A sets out, for purposes of this Agreement, (i)
certain defined terms and (ii) a list of all defined terms used in this Agreement.
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| 2.2 |
Exhibit B sets forth a list of all Exhibits to this
Agreement.
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| 2.3 |
Exhibit C sets forth a list of all sections of the
Disclosure Schedule to this Agreement.
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3.
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Subject to the terms and conditions set forth herein, Seller hereby sells to Buyer, and Buyer purchases from Seller
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a)
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one hundred percent (100%) of the FES Shares; and
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b)
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one hundred percent (100%) of the SerEnergy Shares,
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free and clear of any mortgage, pledge, lien, charge, security interest, claim, community property interest, option, equitable interest, restriction of any kind
(including any restriction on use, voting, transfer, receipt of income, or exercise of any other ownership attribute), or other encumbrance (each, an “Encumbrance”).
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4.
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| 4.1 |
Subject to the fulfilment of the conditions precedent (aufschiebende Bedingungen) pursuant to section 158 (1) BGB of (i) the fulfilment or due waiver of all Closing Conditions in accordance
with Section 15 and (ii) Seller has received the Preliminary Cash Consideration and the Consideration Shares (each as defined below) in accordance with the terms of this Agreement (the “Transfer
Conditions”),
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a)
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Seller hereby assigns (abtreten) to Buyer the FES Shares with in rem effect as of the Effective Date, and
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b)
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Seller hereby transfers and assigns to Buyer the SerEnergy Shares with effect as of the Effective Date.
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| 4.2 |
The Parties may fully or partly waive the Transfer Conditions by mutual agreement in the form of Section 34 or in the Closing Memorandum. The effect of any such waiver shall be limited to eliminating the need that the relevant
Transfer Condition be fulfilled and, unless otherwise agreed, shall not limit or prejudice any claims that a waiving Party may have with respect to any circumstances relating to such Transfer Condition not having been fulfilled. All
Transfer Conditions shall be deemed to irrefutably (unwiderleglich) have been satisfied and the transfer of the Shares shall be deemed to irrefutably (unwiderleglich)
have occurred upon execution of the Closing Memorandum by the Parties.
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| 4.3 |
Without undue delay (unverzüglich) after the fulfilment of the Transfer Conditions, the Parties shall notify the acting notary about the fulfilment of the Transfer Conditions, in particular by
submitting a copy of the Closing Memorandum executed by all Parties to the acting notary.
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5.
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The Shares shall be sold and assigned to Buyer and shall be purchased and acquired by Buyer with effect as at 24:00 hours CET/CEST of the last day of the calendar month in which Closing
occurs / 0:00 hours CET/CEST of the day immediately following the last day of the calendar month in which Closing occurs (the “Effective Date”), with all benefits and the burdens attached to the Shares,
including the right to receive profits or Losses, attaching to them as at the Effective Date.
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6.
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6.1
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| 6.1.1 |
The purchase price (the “Consideration”) for the Shares as well as the SHL Receivables shall be made through a combination of cash (the “Cash Consideration”)
and shares of common stock, par value $0.0001 per share of Advent (the “Share Consideration”). The Consideration shall be the sum of:
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a)
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EUR 52,000,000 (in words: fifty-two million Euro) (the “Base Amount”);
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b)
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plus the aggregate amount of the Effective Date Cash (as defined below);
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c)
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minus the aggregate amount of the Effective Date Financial Debt (as defined below);
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d)
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adjusted by the amount (either added or subtracted) that the Effective Date Working Capital (as defined below) differs from the Target Working Capital (as defined below) (the “Working Capital Adjustment”). The Working Capital Adjustment shall only be made if the difference amount exceeds five percent (5%) of the Target Working Capital.
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| 6.1.2 |
The estimated Consideration based on good faith estimates of the Effective Date Cash, Effective Date Financial Debt and of the Working Capital Adjustment as at 31 August 2021 amounts to EUR 52,658,756.26 (in words: fifty-two million
six hundred fifty-eight thousand seven hundred fifty-six Euro and twenty-six Cent) (“Estimated Consideration”). No later than ten (10) Business Days prior to the Scheduled Closing Date, Seller
shall deliver to Buyer by Notice an update on (i) the good faith estimate on the amount of the Consideration (the “Preliminary Consideration”), including updated estimates of the Effective Date
Cash, Effective Date Financial Debt and the Effective Date Working Capital as at the Scheduled Closing Date, and (ii) a good faith updated estimate on the SHL Receivables Purchase Price as of the Scheduled Closing Date. If the amount
notified by Seller does not deviate from the Estimated Consideration by more than five percent (5%), the Preliminary Consideration shall amount to the Estimated Consideration. If the amount notified by Seller deviates from the Estimated
Consideration by more than ten percent (10%), Buyer shall be entitled to object to such amount by Notice and the Parties shall discuss and agree in good faith on the Preliminary Consideration. If the Parties have not found an agreement
on the Preliminary Consideration before the Scheduled Closing Date, the Preliminary Consideration shall amount to the Estimated Consideration.
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| 6.1.3 |
The preliminary Cash Consideration (the “Preliminary Cash Consideration”) shall be EUR 15,000,000 (in words: fifteen million Euro). Buyer shall pay the Preliminary Cash Consideration on the
Scheduled Closing Date.
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| 6.1.5 |
The amount of the common shares to be granted as Share Consideration (the “Consideration Shares”) shall be calculated by dividing the amount of the Fair Market Value Equivalent of the
Consideration Shares by the corresponding EUR amount (the “Agreed Share Value”) of the volume-weighted arithmetic average of the closing prices of Advent’s stock in trading on the Nasdaq capital
market during the last twenty (20) trading days ending two (2) trading days prior to the Closing Date, as displayed on the NASDAQ homepage (https://www.nasdaq.com/market-activity/stocks/adn/historical), and rounded down to the next full
number of shares. The EUR amount of the closing prices of Advent’s stock shall be calculated based on the Exchange Rate as of the third last day before the Closing Date. The amount of the Consideration Shares, however, shall not exceed
(i) 9.999% of the number of shares of common stock of Advent outstanding (after issuance/transfer of the Consideration Shares to Seller) at the Closing Date or (ii) the number of authorized but unreserved shares of Common Stock of
Advent at the Closing Date.
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| 6.1.6 |
The final Cash Consideration shall be equal to the balance of (i) the Consideration minus (ii) the Share Consideration.
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| 6.1.7 |
The Parties agree that Exhibit 6.1.7 shall, apart from mandatory Laws, comprise the only limitations on Seller’s ability to sell the Consideration Shares.
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| 6.1.8 |
A sample calculation of the Consideration, of the Share Consideration, also including a sample calculation of the volume-weighted arithmetic average of the closing prices of Advent’s stock in the relevant period, and of the Cash
Consideration is attached hereto as Exhibit 6.1.8.
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6.2
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For the purpose of this Agreement:
| 6.2.1 |
| 6.2.4 |
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6.3
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6.3.1
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b)
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bb)
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Amounts in foreign currency shall be converted into EUR with the Exchange Rate as of the Effective Date.
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c)
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To facilitate Seller’s creation of the Effective Date Balance Sheet Buyer shall, subject to reasonable Notice, make available free of charge during normal office hours to Seller all books, reports in
relation to the Business, billing statements, correspondence, records and any and all other relevant documentation as may be reasonably required to develop the Effective Date Balance Sheet and as is reasonably available to the Target
Group Companies.
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d)
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Seller shall deliver the Effective Date Balance Sheet together with a convenience calculation of the Consideration, the Cash Consideration and the Adjustment Amount (as defined below) derived therefrom to
Buyer within forty (40) Business Days after the HGB Financial Statements (defined herein) have been delivered to Seller pursuant to Section 9.2.1d).
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6.3.2
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b)
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To facilitate Buyer’s review of the Effective Date Balance Sheet Seller shall, subject to reasonable Notice, and to the extent such information and documents are not available to the Target Companies, but
to Seller or its Affiliates, make available free of charge during normal office hours to Buyer all books, reports in relation to the Business, billing statements, correspondence, records and any and all other relevant documentation as
may be reasonably required to review the Effective Date Balance Sheet.
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6.3.3
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a)
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c)
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Seller and Buyer shall jointly engage the Neutral Expert to decide the items in dispute in accordance with the provisions of this Agreement.
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d)
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The Neutral Expert shall
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aa)
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act as an expert (Schiedsgutachter), not as an arbitrator, and shall decide by way of a written expert’s opinion (Schiedsgutachten)
substantiating the decision;
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bb)
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decide only on the items in dispute between the Parties;
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cc)
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apply the accounting and valuation standards and principles referred to in Section 6.3.1b), interpret this Agreement only to the extent necessary in order to decide the items in dispute, and not decide
upon legal issues (unless such legal issues specifically pertain to the applicable accounting and valuation standards and principles);
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dd)
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give each Party adequate opportunity to present their point of view in writing, shall share such arguments with the respective other Party, and shall hold at least one (1) hearing in the presence of the
Parties and their professional advisors and accountants;
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ee)
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not pass a decision beyond or outside the positions taken by the Parties; and
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ff)
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decide upon the allocation of its costs and expenses between the Parties by applying the principles of sections 91 et seqq. ZPO.
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e)
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The Parties shall
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aa)
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instruct the Neutral Expert to use its best efforts to deliver its written expert’s opinion to them as soon as reasonably practicable, but no later than six (6) weeks after the items in dispute have been
referred to, and the Parties have properly instructed, the Neutral Expert;
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bb)
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provide any information and other support which the Neutral Expert deems required in connection with the preparation of its written expert’s opinion. They shall, subject to reasonable Notice, make
available free of charge during normal office hours to the Neutral Expert all books, reports in relation to the Business, billing statements, correspondence, records and any and all other relevant documentation as may be reasonably
required and as available to them.
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f)
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6.3.4
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The Effective Date Balance Sheet shall be final and binding on the Parties for the purpose of determining the Consideration and the Cash Consideration,
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a)
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in accordance with Section 6.3.2c), if and to the extent Buyer has not raised objections to the Effective Date Balance Sheet within the time period set forth in Section 6.3.2a);
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b)
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if and to the extent Seller and Buyer have reached an agreement concerning the disputed items within the time period set forth in Section 6.3.3b) or at any time thereafter;
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c)
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in accordance with Section 6.3.3b) in connection with Section 6.3.2c), if and to the extent the Parties have not reached an agreement and neither Party requests within the time limit set forth in Section
6.3.3b) that the matter in dispute be decided by the Neutral Expert; and
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d)
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(the so-determined final and binding Effective Date Balance Sheet is referred to herein as “Final Effective Date Balance Sheet”).
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6.3.5
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a)
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Seller shall bear the costs and expenses of the preparation of the Effective Date Balance Sheet. The Target Companies shall bear the costs and expenses of the support provided to Seller in the preparation
of the Effective Date Balance Sheet.
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b)
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Buyer shall bear the costs and expenses of its own review of, and preparation of objections to, the Effective Date Balance Sheet.
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c)
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Each Party shall bear its own costs incurred in connection with the dispute resolution procedure set forth in Section 6.3.3.
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6.4
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| 6.4.1 |
If, on the basis of the Final Effective Date Balance Sheet, the Consideration deviates from the Preliminary Consideration
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a)
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Buyer shall pay to Seller an amount in cash equal to the difference by which the Consideration exceeds the Preliminary Consideration; or
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b)
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Seller shall pay to Buyer an amount in cash equal to the difference by which the Consideration falls short of the Preliminary Consideration
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(any such amount to be paid by Buyer or Seller, the “Adjustment Amount”). If an Adjustment Amount is payable by Buyer, Buyer
shall be entitled to increase the Share Consideration, to the extent permitted by Laws, and grant additional Consideration Shares at the Agreed Share Value in lieu of making a cash payment up until the Maximum Value Equivalent of the
Consideration Shares is achieved and any remaining amount, if applicable, shall be paid in cash. If an Adjustment Amount is payable by Seller, Seller shall be entitled to decrease the Share Consideration and return Consideration Shares, to the
extent permitted by Laws, at the Agreed Share Value in lieu of making a cash payment and any remaining amount, if applicable, shall be paid in cash.
| 6.4.2 |
The Adjustment Amount shall become due on the fifth (5th) Business Day after the Effective Date Balance Sheet has become final and binding on the
Parties.
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| 6.4.3 |
If and to the extent that the Effective Date Financial Debt as shown in the Effective Date Balance Sheet contains any specific provision with regard to potential claims by Globe Communication Inc. against a Target Company and such
specific provision can be released at a later point in time after Closing, the Consideration shall be increased by the amount of such specific provision as soon as it can be released. Any such increase of the Consideration shall be paid
by Buyer in Consideration Shares at the Agreed Share Value within twenty (20) Business Days after the relevant release.
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7.
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| 7.1 |
The Parties agree to allocate the Consideration to the Shares and the SHL Receivables as follows:
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a)
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First, an amount equal to the nominal amount of the Shareholder Loans plus accrued and unpaid interest until the Closing Date (the “SHL Receivables Purchase Price”)
shall be allocated to the SHL Receivables;
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b)
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Thereafter, an amount equal to the value equivalent to the equity (Eigenkapital) of SerEnergy as reflected in the Effective Date Balance Sheet shall be allocated
to the SerEnergy Shares; and
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c)
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Thereafter, any remainder of the Consideration shall be allocated to the FES Shares.
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| 7.2 |
It is the common understanding of the Parties that the sale and transfer of the Shares are not subject to or are exempt from VAT, and Seller hereby waives any right to opt for VAT with respect to any consideration owed under this
Agreement.
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8.
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| 8.1 |
Any payments under or in connection with this Agreement shall be made in Euro by wire transfer in immediately available funds without any kind of deductions, bank charges or other charges for the recipient. Any such payment shall be
deemed to have been made only upon its full, irrevocable and unconditional crediting to the relevant bank account.
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| 8.2 |
All payments owed hereunder to Seller or to Buyer shall be paid to the following bank accounts, as applicable:
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a)
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Account holder:
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F.E.R. fischer Edelstahlrohre GmbH
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Bank:
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Volksbank eG
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Bank sort code:
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66490000
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BIC:
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GENODEOG1
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IBAN:
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DE75664900000060676003
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b)
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Account holder:
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Advent Technologies Holdings, Inc
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Bank:
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M&T Bank
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Routing Number:
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022000046
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Account Number:
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9870128486
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SWIFT Number:
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MNT Bank
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Seller and Buyer may notify each other of a change of their above mentioned accounts at any time by giving Notice at least five (5) Business Days prior to the respective due date.
| 8.3 |
Should any Party fail to pay any amount payable by it under or in connection with this Agreement on its due date, such Party shall be in default from the due date of the unpaid amount without further Notice being required. Interest
shall accrue on the unpaid amount from (and including) the day following the due date up to (and including) the date of receipt of the actual payment at a rate of five percent (5%) per annum, to be calculated on the basis of the actual
days elapsed and a year with three hundred sixty (360) days. Further claims and remedies of the Parties in connection with such failure shall remain unaffected.
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9.
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9.1
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| 9.1.1 |
| 9.1.2 |
As soon as reasonably practicable after the fulfilment or due waiver of the Closing Conditions set forth in Section 15.1a) and, if applicable, d), Seller shall cause FES to apply for the consent of the competent Taxing Authority to
the change of FES’ fiscal year and the introduction of a short fiscal year (Rumpfgeschäftsjahr) ending, as agreed with Buyer, on the last calendar day of the then current or of the next calendar
month or as otherwise agreed by the Parties (the “Short Fiscal Year”).
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| 9.1.3 |
As soon as reasonably practicable after the fulfilment or due waiver of the Closing Conditions pursuant to Section 15.1a) and Section 15.1d), Seller shall
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a)
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b)
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cause FES to file an application to register the amendment of its articles of association with the competent commercial register.
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| 9.1.4 |
On the Scheduled Closing Date, Seller (i) shall terminate the PLTA for cause (aus wichtigem Grund kündigen) and (ii) in addition, as a matter of precaution, shall, and shall cause FES to,
enter into a termination agreement (Aufhebungsvertrag) regarding the PLTA, in both cases (i) and (ii) with effect as of the end of the Short Fiscal Year and substantially in the form as attached
hereto in Exhibit 9.1.4 (the “PLTA Termination Agreement”). Buyer shall procure that FES effects the registration of the termination of the PLTA
with the competent commercial register of FES without undue delay (unverzüglich) after the end of the Short Fiscal Year.
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| 9.1.5 |
The shareholder meeting of fischer group SE & Co. KG has approved the termination agreement (Aufhebungsvertrag) regarding the PLTA as set out in Exhibit
9.1.5, and the shareholder meetings of FES and of Seller will approve such termination agreement substantially in the form as set out in Exhibit 9.1.5 (the “PLTA Termination Resolutions”).
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9.2
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| 9.2.1 |
Buyer shall procure that
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d)
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| 9.2.2 |
All costs related to the preparation and audit of the HGB Financial Statements shall be borne by FES.
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9.3
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| 9.3.1 |
If the HGB Financial Statements show
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a)
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b)
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| 9.3.2 |
The payment or, respectively, off-set according to Section 9.3.1 shall be made (i) no later than ten (10) Business Days after receipt of the approved (festgestellt) HGB Financial Statements by
Seller from Buyer and (ii) including interest accrued on the respective amounts, if any.
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| 9.3.3 |
For the avoidance of doubt, any Profit Transfer Amount owed by FES to Seller will be considered as Effective Date Financial Debt in the Effective Date Balance Sheet, and any Loss Compensation Amount owed by Seller to FES will be
considered as Effective Date Cash in the Effective Date Balance Sheet, in each case in the amount shown in the HGB Financial Statements and provided that such amounts may not be challenged by either Party under Section 6.3.3.
Accordingly, the Retained Portion of the SHL 1 Receivable will be considered as Effective Date Financial Debt in the Effective Date Balance Sheet.
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9.4
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| 9.4.1 |
From the Effective Date, Buyer shall cause FES to use commercially reasonable efforts to ensure that the PLTA will be duly consummated (durchgeführt) with respect to the time period until the
end of the Short Fiscal Year. If and to the extent it turns out that the financial statements of FES for any fiscal year ending on or prior to the Effective Date are in breach of any mandatory provisions of HGB or German GAAP (Grundsätze ordnungsmäßiger Buchführung und Bilanzierung), and that
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in each case of a) and b) to the extent necessary for Tax purposes to preserve the fiscal unity created by the PLTA.
| 9.4.2 |
In case of any amount which is payable in accordance with Section 9.4.1a) by FES, and provided that such amount has not already reduced the Consideration, Seller shall pay an amount equal to such amount to Buyer concurrently (Zug-um-Zug) with the payment by FES. In case of any amount to be paid in accordance with Section 9.4.1b) by Seller, and provided that such amount has not already increased the Consideration, Buyer
shall pay an amount equal to such amount to Seller concurrently with the payment by Seller. Any such payments shall be treated as a reduction or an increase of the Consideration, as the case may be.
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| 9.4.3 |
From the Effective Date, Buyer shall cause FES to indemnify (freistellen) Seller from any claims asserted by creditors of FES under any security (Sicherheitsleistung)
Seller may have provided or will provide in connection with the termination of a PLTA pursuant to section 303 AktG.
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10.
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Buyer shall use reasonable efforts to procure the release of Seller and of any Seller’s Affiliates or the relevant third party banks from any (i) securities, (ii) guarantees and (iii)
indemnities which are listed in Exhibit 10 given by or binding upon Seller or Seller’s Affiliates or given by the relevant third party banks under certain guarantee or credit lines with Seller or
Seller’s Affiliates in respect of any Liability of the Business (the “Seller’s Securities”) by Closing or, to the extent not done by Closing, as soon as reasonably practicable thereafter. Pending such
release, from and after the Closing Buyer shall take all actions necessary to procure that the Target Group Companies indemnify Seller and Seller’s Affiliates against any payment obligations they have incurred under Seller’s Securities in
relation to Liabilities of the Business, except to the extent that Seller is, under Seller Warranties or any other covenant or indemnity given in this Agreement, obliged to indemnify Buyer against, or compensate Buyer for, such Liability.
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11.
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Except for the agreements set forth in Exhibit 11 (the “Continued Intra-Group Agreements”) and the
agreements entered into in connection with the Transactions as set forth in this Agreement, all agreements and arrangements between any Seller Group Company on the one hand and any Target Group Company on the other hand shall be terminated with
effect as of the Closing Date (the “Discontinued Intra-Group Agreements”). Seller shall procure that the relevant parties to the respective Discontinued Intra-Group Agreements enter into a termination
agreement or accept a termination Notice with regard to such Discontinued Intra-Group Agreement effective as of the Effective Date. The Parties shall procure that neither a Party nor any of its respective Affiliates raises a claim under any
Discontinued Intra-Group Agreement after the Closing Date, except (i) for any open trade receivables (Forderungen und Verbindlichkeiten aus Lieferungen und Leistungen) existing as of the Closing Date to
the extent they have been reflected in the Effective Date Balance Sheet or (ii) if expressly provided otherwise or reserved in this Agreement.
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12.
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| 12.2 |
Seller shall use commercially reasonable efforts to cause the Target Group Companies to enter into managing directors’ service contracts with the persons listed in Exhibit 12.2
substantially in the form as reasonably proposed by Buyer and to terminate any other managing directors’ service contract or employment contract such persons may have with Seller or any other Seller’s Group Company.
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| 12.3 |
Seller shall use commercially reasonable efforts to cause the Target Group Companies to enter into addenda to the relevant employment agreements with the Key Employees substantially in the form as reasonably proposed by Buyer.
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13.
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Seller shall, and shall procure that the relevant Seller Group Companies will, enter into the following agreements with the relevant Target Group Companies on the Scheduled Closing Date and
with effect as at the Effective Date as indicated below (collectively the “Ancillary Agreements”):
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a)
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b)
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14.
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In the period until the Scheduled Closing Date, Seller shall and shall cause the Target Group Companies to take all actions reasonably required to achieve that on the Scheduled Closing Date
the Target Group Companies will have available, as owners, if applicable, or based on valid and enforceable lease, license, service or similar agreements, all assets (whether tangible or intangible), rights, employees, systems (including IT
systems, software, hardware and databases), contracts and services required by them in order to continue after the Closing to conduct their businesses in the ordinary course as currently conducted, taking into account any service and other
agreements with the Seller and its Affiliate to be entered into pursuant to this Agreement on the Scheduled Closing Date and except for the matters identified in Exhibit 14 . Any (actual or
contingent) liabilities incurred by the Target Group Companies in connection with any action according to this Section 14 which have not been settled prior to the Effective Date shall be included in the Effective Date Working Capital.
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15.
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15.1
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The obligations of Seller and Buyer to perform the Closing Actions pursuant to Section 16.2 shall be subject to satisfaction (or waiver pursuant to Section 15.2) of the following conditions
precedent (aufschiebende Bedingungen) pursuant to section 158 (1) BGB (the “Closing Conditions”):
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b)
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c)
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Buyer shall have delivered to Seller a draft of the Registration Statement (as defined in Exhibit 6.1.7) in substantially final form for filing with the SEC, providing for the resale of all of the
Consideration Shares, which draft shall be reasonably satisfactory to Seller;
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15.2
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| 15.2.1 |
The Parties shall notify each other of the fulfilment or the definitive failure (endgültiger Nichteintritt) of any Closing Condition without undue delay (unverzüglich)
after obtaining knowledge thereof, and shall include in such notifications all relevant evidencing documents.
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| 15.2.2 |
The Closing Conditions may be waived by mutual agreement of the Parties, such agreement to be made in the form of Section 34. Any waiver of a Closing Condition may be made in full or in part. The effect of a waiver of a Closing
Condition shall be limited to eliminating the need that such Closing Condition be fulfilled and, unless otherwise agreed, shall not limit or prejudice any claims that a waiving Party may have with respect to any circumstances relating
to such Closing Condition not having been fulfilled.
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15.3
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| 15.3.1 |
As soon as reasonably practicable after the Signing Date, Buyer shall file an application with the BMWi for the issuance of the German FIC Clearance, and as soon as reasonably practicable after 1 July 2021, Buyer shall file an
application with the Danish Business Authority for Danish FIC Clearance, to the extent required.
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| 15.3.2 |
In order to obtain the German FIC Clearance and the Danish FIC Clearance, as applicable, (i) the Parties shall reasonably cooperate with each other in the preparation of any filings or notifications by Buyer and in connection with
any submissions to, or investigations or enquiries of, the competent authorities, (ii) Seller provides, and shall procure that the Target Companies provide, Buyer with all information relating to the Seller or the Target Companies
reasonably requested by Buyer to apply for the German FIC Clearance and/or the Danish FIC Clearance, as applicable, (iii) with respect to the German FIC Clearance, Seller shall consent, and shall procure that the Target Companies
consent, at the request of Buyer, to any extension of the statutory review periods pursuant to Section 14a (5) AWV, (iv) Buyer shall provide to the BMWi and/or the Danish Business Authority, as applicable, additional information
reasonably requested by the BMWi and/or the Danish Business Authority, as applicable, and (v) to the extent permitted under applicable Law, Buyer shall keep Seller reasonably informed of the proceedings related to the German FIC
Clearance and/or the Danish FIC Clearance, as applicable.
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| 15.3.3 |
If the BMWi and/or the Danish Business Authority, as applicable, expresses its intention to issue binding orders or impose restrictions and obligations, proposes the conclusion of a public law agreement or requests that Buyer makes
unilateral commitments vis-à-vis the BMWi and/or the Danish Business Authority, as applicable, in relation to the Transactions as a condition to the issuance of the German FIC Clearance and/or the Danish FIC Clearance, as applicable,
Buyer shall have the sole discretion to decide whether Buyer agrees to accept and comply with such binding orders, conclude a public law agreement with the BMWi and/or the Danish Business Authority, as applicable, or make unilateral
commitments vis-à-vis the BMWi and/or the Danish Business Authority, as applicable, in relation to the Transactions.
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| 15.3.4 |
For the avoidance of doubt, the communication among the Parties in connection with this Section 15.3 shall be subject to (i) compliance with mandatory legal restrictions and (ii) appropriate measures to safeguard the confidentiality
of competitively, commercially and/or otherwise sensitive information and business secrets (which shall, in particular, be provided on a counsel-to-counsel basis only).
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16.
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16.1
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The consummation of the Transactions contemplated by this Agreement (the “Closing”) shall take place (i) on the last Business Day of the Short Fiscal
Year, or (ii) at such other time or date as the Parties have mutually agreed upon in the form of Section 34. The date on which the Closing is scheduled to occur according to the foregoing sentence shall be referred to as the “Scheduled Closing Date”. The day on which the Closing actually takes place pursuant to this Section 16 is referred to as the “Closing Date” and the time at which the
Closing is deemed to have occurred is the Effective Date.
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16.2
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On the Scheduled Closing Date, the Parties shall take, or if applicable, cause to be taken, concurrently (Zug um Zug) the following actions (the “Closing Actions”), in each case if not already taken before in accordance with this Agreement:
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a)
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b)
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c)
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d)
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Seller shall deliver to Buyer resignation letters or copies of shareholders’ resolutions, as applicable, evidencing that the Leaving Function Holders have resigned or been removed from their positions
pursuant to Section 12.1 and including a confirmation from each Leaving Function Holders that such Leaving Function Holder does not have any claims against the relevant Target Company, including for out-of-pocket expenses and board fee
or similar earned in the ordinary course of business until the Closing Date;
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e)
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f)
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Unless this has been done before, Seller shall deliver to Buyer copies of addenda to the employment agreements with each of the Key Employees duly executed by the relevant parties in accordance with
Section 12.3;
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g)
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h)
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Unless this has been done before, Seller shall contribute and thereby pay the amount of Taxes triggered by the IP Transfer Earn-out at the level of the Target Group Companies to SerEnergy in cash;
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j)
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k)
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Buyer shall deliver to Seller a Notice setting forth the amount of the Consideration Shares to be transferred to Seller as Share Consideration and Seller shall acknowledge and confirm the amount of
Consideration Shares in the form of a Notice;
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l)
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m)
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16.3
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| 16.3.1 |
The Closing Actions referred to in Sections 16.2j) through l) may be waived by Seller only. The Closing Actions referred to in Sections 16.2a) and c) through g) and m) may be waived by Buyer only. The other Closing Actions may only
be waived by mutual agreement of the Parties, such agreement to be made in the form of Section 34. Any waiver of a Closing Action may be made in full or in part. The effect of a waiver of a Closing Action shall be limited to eliminating
the need that such Closing Action be taken at the Closing and, unless otherwise agreed, shall not limit or prejudice any claims that a waiving Party may have with respect to any circumstances relating to such Closing Action not having
been taken at the Closing.
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16.4
|
| 16.4.1 |
Any withdrawal (Rücktritt) from this Agreement shall be permissible only in accordance with this Section 16.4 and only until the Closing has occurred. Any withdrawal after the Closing or any
withdrawal prior to the Closing other than in accordance with this Section 16.4 shall be excluded to the extent permitted by applicable Law.
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| 16.4.2 |
Either Seller or Buyer may withdraw (zurücktreten) from this Agreement prior to Closing by written Notice if
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a)
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b)
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c)
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in the event that the number of authorized but unreserved shares of Common Stock of Advent at the Closing Date does not suffice to deliver the required number Consideration Shares representing the Fair
Market Value Equivalent of the Consideration Shares; or
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d)
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The right of a Party to withdraw from this Agreement in accordance with Sections 16.4.2a) and d) is in addition to all other rights and claims it has under this Agreement and the right of a
Party to alternatively seek specific performance from the other Party, provided that a Party may at its sole discretion at any time change from seeking specific performance from the other Party to pursuing the other rights and claims it has
against the other Party under this Agreement (e.g., to withdraw from this Agreement and seek damages). In the event of a withdrawal pursuant to Section 16.4.2b) or Section 16.4.2c), each Party shall bear its own costs and no Party shall be
liable for such withdrawal to the other Party.
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17.
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17.1
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| 17.1.2 |
The scope and content of each Seller Warranty as well as the remedies and limitations of liability in case of breaches of Seller Warranties are exclusively defined by the provisions of this Agreement, in particular Sections 17
through 20, which shall form an integral part of Seller Warranties.
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| 17.1.3 |
No Seller Warranty shall qualify as a quality agreement within the meaning of section 434 (1) BGB (Beschaffenheitsvereinbarung) or as a guarantee of condition within the meaning of sections
443, 444 BGB (Garantie für die Beschaffenheit der Sache).
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| 17.1.4 |
For purposes of this Agreement, “Seller’s Knowledge”, “Knowledge of Seller” and any similar phrases shall mean the actual knowledge (positive Kenntnis) of the managing directors of FES and SerEnergy (Mr. Roland Fischer and Mr. Johann (“Hans”) Fischer) after having made due inquiries with Dr. Nikolaus Benz, Jochen Baurmeister and
Joseph Abbott Kristensen at the date of this Agreement.
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17.2
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| 17.2.1 |
Seller is a German limited liability company (Gesellschaft mit beschränkter Haftung), duly established and validly existing under the Laws of Germany.
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| 17.2.2 |
Seller has all requisite power and authority, to execute, deliver, and perform its obligations under this Agreement and all other documents related to the Closing.
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| 17.2.3 |
No insolvency proceedings (Insolvenzverfahren) or similar proceedings under applicable Laws are pending regarding Seller and Seller is not required under applicable Laws to file for any such
proceeding.
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17.3
|
The execution, delivery, and performance by Seller of this Agreement and the consummation of the Transactions contemplated hereby, do not and will not violate or conflict with (a) any
provision of the organizational documents or operating agreement, or other governing documents of Seller or the Target Group Companies or (b) any order or injunction by any court or governmental authority.
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17.4
|
Required Approval
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All shareholders’ and board resolutions by Seller or any of its shareholders as required to execute the Transactions contemplated under this Agreement have been obtained.
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17.5
|
| 17.5.1 |
All Target Group Companies are duly established and validly existing under their respective jurisdictions of incorporation or formation.
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| 17.5.2 |
The Shares and the Subsidiary Interests are validly issued, the initial contributions (Einlagen) on the Shares and the Subsidiary Interests have been made in accordance with statutory Law, and
there are no obligations to make further contributions (keine Nachschusspflichten) on the Shares and the Subsidiary Interests.
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| 17.5.3 |
Seller is the sole legal and beneficial owner of the Shares, SerEnergy is the sole legal and beneficial owner of the Subsidiary Interests, the Shares and the Subsidiary Interests are free and clear of any Encumbrances (dingliche Belastungen) and there are no pre-emptive rights, rights of first refusal, options or other rights of any third party to purchase or acquire any of the Shares and the Subsidiary Interests.
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| 17.5.4 |
Seller and Fischer group SE Co. & KG are the sole and unrestricted creditors in legal and economic terms in relation to the SHL Receivables, which are free from any Encumbrances. There are no shareholder loans granted by any
Seller or any other Seller’s Group Company to any Target Group Company other than as listed in Exhibit (G).
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17.6
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No insolvency proceedings (Insolvenzverfahren) or similar proceedings under applicable Laws are pending regarding any Target Group Company and no
Target Group Company is required under applicable Laws to file for any such proceeding.
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17.7
|
As of the Signing Date and as of the Closing Date, except for the PLTA, no Target Group Company is a party to any enterprise agreements (Unternehmensverträge)
or silent partnership agreements (stille Beteiligungsverträge) that would entitle any Person or entity to participate in the profits of or to exercise control over any Target Group Company.
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17.8
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Complete copies of the Target Companies’ financial statements consisting of the balance sheet and the profit and loss statements of the Target Companies as of the fiscal year end date in
each of the years 2020 and 2019 (the “Financial Statements”) which in case of the Financial Statements of SerEnergy have been audited were made available to Buyer. The Financial Statements have been
prepared in accordance with applicable Laws and with generally accepted accounting principles specified therein, applied on a consistent basis throughout the period involved. The Financial Statements are based on the books and records of the
Target Companies and present a true and fair view of the assets and liabilities, financial condition and results of operations (Vermögens-, Finanz- und Ertragslage)
of the Target Companies as of the respective dates they were prepared and for the periods indicated above. The Financial Statements of SerEnergy have been audited with an auditors’ certificate as disclosed in the Data Room.
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17.9
|
| 17.9.1 |
The Target Companies have no off-balance sheet liabilities (e.g. under guarantees), except those which have been incurred in the ordinary course of business consistent with past practice since 31 December 2020 and which are not,
individually or in the aggregate, material in amount.
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| 17.9.2 |
No Target Group Company has paid or is obliged to pay a finder’s fee or any other type of brokerage fee, commission or benefit to any finder, broker, agent or other third party in connection with this Agreement or the Transactions
contemplated herein.
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| 17.9.3 |
No Target Company is liable for any Liabilities of any SerEnergy Subsidiary except for bank guarantees of PHP 80.530.943 (in words: eighty million five hundred thirty thousand nine hundred forty-three Philipine Peso) issued by
SerEnergy on behalf of its subsidiary Serenergy Philippines Inc. for the downpayment and performance of its services contract with Smart Communications, Inc. for the performance of its contract with Globe Communication Inc.
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17.10
|
The update on the Target Companies’ revenues and EBITDA in the period from 1 January 2021 until 31 May 2021, as attached as Exhibit 17.10 has
been prepared with due care in accordance with applicable GAAP and in accordance with past practice in all material respects.
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17.11
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|
a)
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agreements with the top ten (10) customers and agreements with the top ten (10) suppliers, in each case in terms of overall order volume with the respective customer or supplier for the last full fiscal
year and the current fiscal year to date;
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b)
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agreements relating to the acquisition or sale of interests in other companies, businesses or real estate providing, in each case, for a consideration or, if applicable, book value of EUR 50,000 (in
words: fifty thousand Euro) or more in the individual case;
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c)
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agreements relating to joint ventures, shareholders agreements, research and development agreements relating to a material part of the Business;
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d)
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loan and credit agreements between any Target Group Company as lender or borrower and any third party (i.e. any entity outside the Target Group) with outstanding principal amounts exceeding EUR 50,000 (in
words: fifty thousand Euro) in the individual case or EUR 100,000 (in words: one hundred thousand Euro) in the aggregate; and
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e)
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guarantees, suretyships, comfort letters and similar instruments and agreements that grant or create a lien, pledge or other security interest over any asset of the Target Group Companies issued or
entered into by any of the Target Group Companies for any debt of any third party (excluding Seller and any of its Affiliates), except for liens arising by operation of Law and in the ordinary course of business, liens over bank
accounts arising under general terms and conditions of banks, and customary retention of title rights (Eigentumsvorbehalte) in favor of suppliers.
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| 17.11.3 |
According to Seller’s Knowledge, there are no exclusivity and non-compete undertakings by any Target Group Company which would materially restrict the Target Group to conduct its business as conducted or contemplated to be conducted
on the Signing Date or on the Closing Date or to expand its territorial reach, except as set forth in section 17.11.3 of the Disclosure Schedule.
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17.12
|
Real Property; Title to Assets
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| 17.12.1 |
Except for SerEnergy, no Target Group Company has owned or owns any real estate or rights equivalent to real estate, nor is any Target Group Company obliged to acquire any real property, hereditary buildings rights (Erbbaurechte), other in-rem real property rights (grundstücksgleiche Rechte), or equivalent rights in the relevant jurisdictions (together with all buildings,
structures, and improvements located thereon, the “Real Property”).
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| 17.12.2 |
Section 17.12.2 of the Disclosure Schedule lists all Real Property which is owned by any Target Group Company (“Owned Real Property”) or in which any Target Group Company has a leasehold (or
subleasehold) interest or which any Target Group Company has otherwise leased (“Leased Real Property”), including: (i) for Owned Real Property the details from the land register excerpt for each
parcel of Real Property; and (ii) for Leased Real Property the street address of each parcel of Real Property and the current use of each parcel of Real Property. Seller has Fairly Disclosed to Buyer true, correct, and substantially
complete copies of all Contracts relating to the Real Property.
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| 17.12.3 |
The Target Group Companies have title (Eigentum/Inhaberschaft) to, hold a leasehold (or subleasehold) interest or are entitled to use under unterminated contracts all Real Property and all
tooling and other production assets and laboratory equipment as well as any other assets (other than IP Rights), which, in each case, are material for the Target Group Companies to conduct their business as conducted on the Signing
Date. All Owned Real Property and personal property and other assets (including leasehold interests) are free and clear of Encumbrances except those items set forth in section 17.12.3 of the Disclosure Schedule.
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| 17.12.4 |
To Seller’s Knowledge, the Real Property, tooling and other physical production assets and laboratory equipment and other physical assets (other than IP Rights) which are material for the Target Group Companies to conduct their
business as conducted on the Signing Date are in all material respects in an operating condition as required to conduct the Target Group Companies’ business in the ordinary course (subject to normal wear and tear and taking into account
that the Target Group’s business is still in process of development) and have been, in all material respects, maintained in the ordinary course of business in accordance with past practice and, in particular, with the latest budget
2020.
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| 17.12.5 |
Except as identified in section 17.12.5 of the Disclosure Schedule, none of Seller and Seller’s Group Companies own or co-use any tangible or intangible asset which is material for the Target Group Companies to conduct their business
as conducted on the Signing Date and which is not being transferred to Buyer upon consummation of this Agreement.
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17.13
|
Business Securities
|
Except as listed in section 17.13 of the Disclosure Schedule, there are no securities, guarantees, indemnities or liabilities given or assumed by or binding upon the Target Group Companies
in respect of any Liability of Seller or any Seller’s Affiliate (other than Target Group Companies).
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17.14
|
| 17.14.3 |
‘The Target Group Companies own or have the valid and enforceable right to use all (i) issued patents and patent applications, inventions and rights to and from inventions and invention disclosures (whether or not patentable); (ii)
(registered or non-registered) trademarks, service marks, trade names; (iii) trade secrets (iv) utility models, (v) registered or non-registered designs, (vi) data and databases and (vii) software, used or held for use in or necessary
(i) for the conduct of their business as currently conducted, and (ii) to continue such conduct after the Closing (the “Company Intellectual Property”), free and clear of all Encumbrances. Except
for the patent applications filed in the name of a Target Group Company, all of the Company Intellectual Property is, to Seller’s Knowledge, valid and enforceable, and all Company IP Registrations are, to Seller’s Knowledge, subsisting
and in full force and effect. The Target Group Companies have taken all reasonable and necessary steps to prosecute, register, maintain, renew, protect and enforce their Intellectual Property.
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| 17.14.4 |
To Seller’s Knowledge, the conduct of the Target Group Companies’ business as currently and formerly conducted, and as proposed to be conducted, has not infringed, misappropriated, or otherwise violated, is not infringing,
misappropriating or otherwise violating and will not infringe, misappropriate, or otherwise violate, the Intellectual Property or other rights of any Person. No Person has infringed, misappropriated, or otherwise violated any Company
Intellectual Property.
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| 17.14.5 |
To Seller’s Knowledge, none of the execution and delivery or effectiveness of this Agreement, the consummation of the Transactions, nor the performance of the Target Group Companies’ obligations under this Agreement will cause the
forfeiture or termination of, or give rise to a right of forfeiture or termination of, any Company Intellectual Property, or impair the right of the Target Group Companies’ to use the Company Intellectual Property or any portion
thereof. All Owned IP Right will to the same extent as before Closing be transferable, alienable or licensable by Buyer and/or the Target Group Companies without restriction and without payment of any kind to any third party.
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| 17.14.6 |
To Seller’s Knowledge, each Target Group Company has paid all remuneration and other compensation asserted to such Target Group Company relating to any commercial exploitation of Owned IP Rights made prior to the Closing Date to
Persons entitled thereto pursuant to applicable Laws (in particular pursuant to the German Act on Employee Inventions, Arbeitnehmererfindungsgesetz) or any similar applicable Laws or pursuant to
contractual arrangements, if applicable. To Seller’s Knowledge, no Target Group Company is obliged or will be obliged after the Closing Date to pay any remuneration or other compensation for any use of Owned IP Rights made prior to the
Closing Date.
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17.15
|
| 17.15.1 |
Information Technology Systems
|
|
b)
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All Information Technology Systems
|
|
aa)
|
are in satisfactory working order, are fit for the purpose for which they are being used and operate and perform in accordance with their documentation and functional specifications and otherwise as
required for the relevant Target Group Company to carry on its business as conducted on the Signing Date;
|
|
bb)
|
have not suffered any material error, breakdown, failure or security breach within the last twelve (12) months prior to the Signing Date which has caused disruption or damage to the business of any Target
Group Company constituting a material adverse effect on such Target Group Company’s business.
|
|
c)
|
To Seller’s Knowledge, there have been no unauthorised intrusions or breaches of the security of the Target Group Companies Information Technology Systems except as set forth otherwise in section 17.15 of
the Disclosure Schedule. The Target Group Companies have implemented any and all current security patches, updates or upgrades that are generally available for their Information Technology Systems.
|
|
d)
|
No software has been incorporated into, integrated or bundled into any product, service or proprietary software or has been otherwise used or distributed by the Target Group Companies in any way which
would make it subject to licensing terms for open source software (e.g. the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Artistic License, the Netscape
Public License, the Sun Community Source License (SCSL) the Sun Industry Standards License (SISL) and the Apache License, irrespective of the applicable version of the licensing or distribution terms), and which would restrict the
Target Group Companies ability to charge for any distribution of such product, service or proprietary software and the rendering of related services or to use such product, service or proprietary software for commercial purposes, in
each case except as Fairly Disclosed in the Data Room.
|
|
e)
|
None of the license terms applicable to open source software used by the Target Group Companies create any obligations for the Target Group Companies:
|
|
aa)
|
to disclose any trade secret which is incorporated in a Target Group Company’s product, service and/or proprietary software,
|
|
bb)
|
to distribute any of the software owned or licensed by a Target Group Company in source code format,
|
|
cc)
|
to license any of the Target Group Companies’ products, services, proprietary software and/or licensed software for the purpose of making derivative works, or
|
|
dd)
|
to redistribute any of the Target Group Companies’ products, services, proprietary software and/or licensed software at no charge.
|
|
17.16
|
Section 17.16 of the Disclosure Schedule sets forth a true and complete list of all current policies or binders of insurance maintained by Seller or its Affiliates (including the Target
Group Companies) and relating to the assets, business, operations, employees, officers, and directors of the Target Group Companies (collectively, the “Insurance Policies”). Such Insurance Policies are,
to Seller’s Knowledge, in full force and effect. Neither Seller nor any of its Affiliates (including the Target Group Companies) has received any written Notice of cancellation of, premium increase with respect to, or alteration of coverage
under, any of such Insurance Policies. All premiums due on such Insurance Policies have been paid. None of Seller or any of its Affiliates (including the Target Group Companies) is in de-fault under, or has otherwise failed to comply with, in
any material respect, any provision contained in any Insurance Policy in each case in a way that would impact the scope of insurance protection for the Target Group Companies. The Insurance Policies are sufficient for compliance with all
applicable Laws and Contracts to which the Target Group Companies are a party or by which they are bound.
|
17.17
|
| 17.17.2 |
To Seller’s Knowledge, the Target Group Companies are in all material respects in compliance with all governmental orders against, relating to, or affecting their business, properties or assets.
|
|
17.18
|
| 17.18.1 |
In the period since 1 January 2016, to Seller’s Knowledge the Target Group Companies have complied, and are now complying, with all Laws applicable to them or their business, products, properties or assets except for any failure to
comply with applicable Laws which is not material.
|
| 17.18.3 |
In the period since 1 January 2016, except as set out in section 17.18.3 of the Disclosure Schedule, no Target Group Company has received a Governmental Order, penalty, fine or other sanction, with respect to a violation of
applicable law or Permits, or have been accused of or convicted of any violation of applicable law or Permits.
|
| 17.18.4 |
None of the Target Group Companies is subject to any pending administrative or criminal investigation regarding an alleged Compliance Case and there exist no incidents that are likely to result in such investigation.
|
| 17.18.5 |
In the period since 1 January 2016, neither the Target Group Companies nor, to
Seller’s Knowledge, any of the current or former directors, officers, employees, or agents of the Target Group Companies have been accused of or convicted for, in each case as a result of actions for or on behalf of the Target Group
Company, any Compliance Case, none of the Target Group Companies has received a written notice stating that a Compliance Case has occurred with regard to the aforementioned persons. There are no internal reports (including
whistleblowing reports), which give rise to an initial suspicion that any of the aforementioned persons have been involved since 1 January 2016 in Compliance Case, in each case as a result of actions for or on behalf of the Target
Group Company.
|
|
17.19
|
Data Protection
|
The Target Group Companies are not subject to an official investigation, order or informal inquiry of the competent authorities with regard to compliance with data protection laws applicable to
the Target Group Companies and are not obliged under any court decision or administrative order to pay damages to data subjects or administrative fines under data protection law. No claims for such damages have been asserted by data subjects
against any of the Target Group Companies in writing. To Seller’s Knowledge, all steps necessary to ensure that personal data is being processed in accordance with data protection laws applicable to the Target Group Companies have been taken
and duly implemented by the Target Group Companies and their employees, managing directors, board members and officers except, in each case, where a failure to do so would not or is not reasonably expected to result in a loss in excess of EUR
10,000.
|
17.20
|
Environmental Matters
|
| 17.20.2 |
Except as set out in section 17.20.2 of the Disclosure Schedule, to Seller’s Knowledge, there has not been any spill, leak, discharge, injection, escape, leaching, dumping, disposal, or release of any kind of any Hazardous Substances
in violation of any Environmental Law: (i) with respect to the business or assets of the Target Group Companies; or (ii) at, from, in, adjacent to, or on any real property currently or formerly owned, leased, or used by the Target Group
Companies. Except as set out in section 17.20.2 of the Disclosure Schedule, neither any of the Target Group Companies were notified that there would be any, and to Seller’s Knowledge there are no, Hazardous Substances in, on, about, or
migrating to any real property currently or formerly owned, leased, or used by the Target Group Companies, or that such real property is affected in any way by any Hazardous Substances.
|
|
17.21
|
Section 17.21 of the Disclosure Schedule contains an accurate and complete list of all state aid within the meaning of Art. 107 of the Treaty on the Functioning of the European Union
(including, for the avoidance of doubt, any de minimis aid), public grants (Zuschüsse) and subsidies (Subventionen),
public R&D funding, subsidized loans, contributions or silent partnerships, investment grants or allowances or similar financial support of any national or European governmental entity received by, granted to or applied for on behalf of any
Target Group Company in whatever form during a period of seven (7) years prior to the Signing Date, (the “Subsidies”). Each Target Group Company is and has been in full compliance with its obligations
under or in connection with the relevant Subsidies and no Subsidies have been or will be revoked, withdrawn, terminated, reduced or not granted in full or in part as a result of any failure by a Target Group Company to comply with the terms and
conditions of any such Subsidy. To Seller’s Knowledge, no Actions regarding a revocation, reduction, amendment or withdrawal of the Subsidies have been initiated or threatened and there are no circumstances, which would justify the initiation
of such Actions, in each case with regard to any Subsidy exceeding a value of EUR 50,000. No Target Company has any outstanding obligation under the terms of any Subsidy which materially impacts the Target Company’s ability to conduct its
business at its discretion. No Subsidy limits or restricts in any material way the Target Company’s operations or the ability of the Target Company to exploit the rights of its research and development activities.
|
17.22
|
There has been no recall or withdrawal of any product manufactured, produced or sold by any Target Group Company, or other similar action by any Governmental Authority or private action with
respect to any such product. To Seller’s Knowledge, there have been no facts or circumstances that could reasonably have been expected to result in a recall or withdrawal of, a corrective measure or a governmental order related to any product
manufactured, produced or sold by any Target Group Company. To Seller’s Knowledge, there are no serial defects of the products manufactured, delivered or sold by any Target Group Company.
|
17.23
|
[deleted]
|
|
17.24
|
| 17.24.2 |
FES’ managing directors (Geschäftsführer) are Mr. Johann (gen. Hans) Fischer and Mr. Roland Fischer. No service/employment agreements with FES are in place.
|
| 17.24.3 |
Section 17.24.3 of the Disclosure Schedule contains for FES and SerEnergy a correct and complete list of their leadership team, i.e. all first level officers below the managing directors (Gruppenleiter)
(collectively, the “Key Employees”). None of the Key Employees and, except as expressly provided for in this Agreement, no managing director, board member, officer or member of other corporate
bodies of the Companies has given Notice of termination or requested amendment of his/her employment agreement or has announced such termination or request for amendment. The execution and performance of this Agreement or the
Transactions contemplated therein do not trigger any rights or claims of any Key Employee, managing director, board member, officer or member of other corporate bodies of the Companies.
|
| 17.24.4 |
FES is not a member in any employers association (Arbeitgeberverband) and no collective bargaining agreements (Tarifverträge) apply to the employees of
FES. FES only pays shift and overtime allowances following (in Anlehnung an) the respective collective bargaining agreements of the metal and electric industry.
|
| 17.24.5 |
| 17.24.6 |
In the last three (3) years prior to the date of this Agreement the Target Companies have not experienced any strike, lockout or labor interruption. The Target Companies are not involved in any legal proceedings before any court with
any current or former employee, managing director, board member, officer or member of other corporate bodies of the Target Companies. To Seller’s Knowledge, no such legal proceedings have been threatened against any Target Company.
|
|
17.25
|
No representation or warranty by Seller in this Agreement and no statement contained in the Disclosure Schedule to this Agreement or any certificate or other document furnished or to be
furnished to Buyer pursuant to this Agreement contains any untrue statement of a material fact, or omits to state a material fact necessary to make the statements contained therein. Seller has Fairly Disclosed to Buyer all facts or
circumstances relating to the Target Group Companies and their Business which are material and reasonably relevant to evaluate the Target Group Companies and their Business and associated risks and opportunities.
|
17.26
|
Seller as Investor in Consideration Shares
|
| 17.26.1 |
Seller acquires the Consideration Shares for investment for Seller’s own account, not as a nominee or agent, and not with a view to the resale or distribution of any part thereof, and Seller has no, and will have no, intention of
selling, granting any participation or otherwise distributing the Consideration Shares. Seller does not have and will not have as of the Closing Date any contract, undertaking, agreement or arrangement with any Person (except as
provided in this Agreement) to sell, transfer or grant participation to a Person any of the Consideration Shares. Seller has received all information from the Buyer and its management that the Buyer considers necessary or appropriate
for deciding whether to purchase the Consideration Shares hereunder. Seller further represents that it has had an opportunity to ask questions and receive answers from the Seller regarding the Seller, its financial condition, results
of operations and prospects and terms and conditions of the offering of the Consideration Shares sufficient to enable it to evaluate its investment.
|
| 17.26.2 |
Seller is an “accredited investor” (as defined in Regulation D under the Securities Act). Seller has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the
investment in the Consideration Shares.
|
| 17.26.3 |
Neither Seller nor any of its Affiliates beneficially owns any securities of Buyer.
|
| 17.26.4 |
Seller understands that the Consideration Shares, when issued, shall be “restricted securities” under the federal securities Laws inasmuch as they are being acquired from Buyer in a transaction not involving a Public Offering and
that under such Laws the Consideration Shares may be resold without registration under the Securities Act only in certain limited circumstances. Seller represents that it is familiar with Rule 144 of the Securities Act, as presently in
effect.
|
| 17.26.5 |
Seller understands that any certificates representing the Consideration Shares shall bear the following legends:
|
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”) OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN
MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND SUCH LAWS WHICH, IN THE OPINION
OF COUNSEL FOR THIS COPORATION, IS AVAILABLE.
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18.
|
|
18.1
|
| 18.1.1 |
If any of Seller Warranties is incorrect or in the event of a breach of any obligation of Seller under or in connection with this Agreement, Seller shall put Buyer or, at Buyer’s election, the relevant Target Group Company into the
position it would have been in if Seller Warranty had not been incorrect or the obligation of Seller had not been breached (restitution in kind; Naturalrestitution). If and to the extent Seller
fails to effect restitution in kind, Buyer shall be entitled to request from Seller payment of damages (Schadensersatz in Geld) to Buyer or, at Buyer’s election, to the relevant Target Group
Company for the Losses incurred by Buyer or the relevant Target Group Company as a result of the incorrectness of Seller Warranty or the breach of the obligation of Seller, as applicable. Seller shall at any time be entitled to render
payment of damages instead of restitution in kind. Claims of Buyer pursuant to this Section 18.1.1, which, for the avoidance of doubt, do not include any Tax Indemnification Claim, shall be referred to as the “Buyer Claims”.
|
| 18.1.3 |
If a Seller Warranty contained in Section 17.6 is incorrect, the Losses shall at least equal the amount that is necessary to put the respective Target Group Company in the position as if Seller Warranty had not been breached (filling
of balance sheet, Bilanzauffüllung), provided that if Seller Warranty is breached because a provision for a certain matter has not been made at all, or not in the appropriate amount, Losses
shall not exceed the difference between the actual (or reasonably expected) damage or detriment of the relevant Target Group Company and the amount of the provisions actually made in the Financial Statements.
|
|
18.2
|
Seller shall not be liable for, and Buyer shall not be entitled to bring, any Buyer Claim if and to the extent that:
|
a)
|
the facts or circumstances giving rise to the claim have been taken into account (i) as Liability (Verbindlichkeit), specific provision (Rückstellung), specific depreciation (Abschreibung), specific value adjustment (Wertberichtigung) or otherwise specifically in the
Financial Statements 2020 of the Target Companies and/or (ii) as a deduction item in the determination of the Consideration pursuant to Section 6.1.1, it being understood that any specific or generic provision made for product warranty
or product liability in the Effective Date Balance Sheet and which is accordingly included as Effective Date Financial Debt shall reduce (and be set off against) Seller’s liability under this Agreement with regard to any product
warranty or product liability related claims, except for any specific provision made in the Effective Date Balance Sheet with regard to claims of Globe Communication, Inc. against any Target Group Company which shall only reduce (and be
set off against) Seller’s liability under this Agreement with regard to respective claims of Globe Communication Inc. against any Target Group Company, if applicable, and otherwise Section 6.4.3;
|
|
b)
|
|
c)
|
Buyer, any Affiliate of Buyer or, after the Effective Date, any Target Group Company has (i) caused or partially caused the facts or circumstances giving rise to the claim or (ii) failed to mitigate
damages;
|
|
d)
|
the matter to which the claim relates was caused by the passing of or any change in any Law, or in the interpretation or application thereof by any administrative body or court, after the Closing Date;
|
|
f)
|
|
18.3
|
Buyer shall not be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any Liability, Loss, cost, shortfall, damage, breach or
other set of circumstances that gives rise to more than one (1) claim.
|
19.
|
|
19.1
|
Buyer shall without undue delay, but in any event forty (40) Business Days after Buyer has gained knowledge of facts that are reasonably likely to form the basis of a Buyer Claim, give
Seller Notice of such alleged claim, stating in such Notice in reasonable detail the nature thereof (including all relevant available facts and circumstances) and the amount involved, to the extent that such amount has been determined at the
time when such Notice is given.
|
19.2
|
| 19.2.2 |
Buyer will and, after Closing, will procure that the Target Group Companies, will make no admission of Liability with respect to any Third Party Claim which involves potential Liability against Seller without consulting Seller and
receiving written consent of Seller for such admission regarding the Third Party Claim and the Third Party Claim will not be compromised, disposed of or settled without the prior consultation and written consent of Seller which shall
not be unreasonably withheld.
|
| 19.2.3 |
If Seller wishes to defend Buyer or the relevant Target Group Company against the Third Party Claim in their name and on their behalf, Seller shall give Notice to Buyer of such decision within a period of three (3) weeks after having
been duly notified of the Third Party Claim in accordance with Section 19.2.1. Upon such notification and provided that Seller has acknowledged its responsibility for such Third Party Claim under this Agreement, Seller shall be entitled
to take any action it deems necessary to defend against or appeal the Third Party Claim (including the assertion and pursuit of counter-claims or other claims against any third parties) at its sole discretion in the name and on behalf
of Buyer or the relevant Target Group Company in each case taking into account the legitimate business interests of Buyer and the Target Group Companies and provided that Buyer or the relevant Target Group Company shall have the right
to participate in the defence of any Third Party Claim. Seller shall not have the right to assume or direct the defence of any Third Party Claim that (a) seeks an injunction or other equitable relief against Buyer or any of the Target
Group Companies (from and after the Closing), (b) involves any criminal charges, (c) is reasonably anticipated to exceed the applicable maximum Liability amounts of Seller pursuant to this Agreement. In the event that Seller timely
elects to assume such defence but then fails to promptly commence and diligently pursue the defence against a Third Party Claim pursuant to this Section 19.2.3, Buyer shall in such events be entitled to assume the defence of such Third
Party Claim and to take any action it deems necessary to defend against or appeal the Third Party Claim (including the assertion and pursuit of counter-claims or other claims against any third parties), if Buyer has notified Seller of
its intention in advance.
|
| 19.2.4 |
To the extent that Seller was in breach of a Seller Warranty, all costs and expenses incurred by Buyer or the relevant Target Group Company in connection with the defence against the Third Party Claim shall be borne by Seller. If
Seller has assumed or directed the defence of any Third Party Claim, all costs and expenses incurred by Seller in connection with such defence shall be borne by Seller, irrespective of whether Seller was in breach of a Seller Warranty.
|
|
20.
|
|
20.1
|
The Parties agree that the rights and remedies that Buyer may have against Seller under or in connection with this Agreement and the Transactions contemplated hereunder shall be limited to
the rights and remedies expressly provided for herein and shall be solely governed by this Agreement. All other rights or remedies of any legal nature that Buyer may otherwise have against Seller under or in connection with this Agreement or
the Transactions contemplated hereunder are hereby waived by Buyer and excluded to the largest extent permitted under applicable Law, in particular any (i) right to withdraw (zurücktreten) from this
Agreement or to require the winding up (Rückabwicklung) of the Transactions contemplated hereunder (e.g. by way of großer Schadensersatz), (ii) claims for breach
of pre-contractual obligations (culpa in contrahendo, including claims arising under sections 241 (2), 311 (2) and (3) BGB) or ancillary obligations (positive
Forderungsverletzung, including claims arising under sections 280, 282 BGB), (iii) claims in connection with frustration of contract pursuant to section 313 BGB (Störung der Geschäftsgrundlage),
(iv) claims for defects of the sold assets (Mängelrechte) under sections 434 et seq. BGB, (v) rights to rescind (anfechten) or otherwise terminate this Agreement
and (vi) other statutory rights or remedies.
|
20.2
|
| 20.2.1 |
Buyer shall only be entitled to bring any claims under or in connection with this Agreement other than pursuant to Sections VII (Tax Matters) and VIII (Indemnification) if and to the extent:
|
|
a)
|
|
b)
|
If the thresholds pursuant to Section 20.2.1a) and Section 20.2.1b) are exceeded, the entire amount shall be taken into account and not only the exceeding amount.
| 20.2.2 |
The aggregate total Liability of Seller for any and all claims under or in connection with this Agreement shall be limited to the sum of (i) an amount of thirty five percent (35%) of the Cash Consideration (the “Cap Cash Portion”) and (ii) thirty five percent (35%) of the Share Consideration (the “Cap Share Portion”, together with
the Cap Cash Portion the “Cap” ). Any Liability of Seller shall be first compensated by way of cash payment up to the aggregate amount of the Cap Cash Portion and only after the Cap Cash Portion
is used up entirely by way of a re-transfer of Consideration Shares up to the amount of the Cap Share Portion, provided that for the purpose of determining the number of Consideration Shares to be re-transferred, the Agreed Share Value
shall be applied (i.e. the number of Consideration Shares to be re-transferred shall be equal to the amount of Losses to be compensated by Seller divided by the Agreed Share Value).
|
| 20.2.3 |
The Cap shall not apply to any claim to pay the Adjustment Amount, claims for breach of any of Seller Warranties listed in Sections 17.2 through 17.6 (the “Fundamental Warranties”) and claims
pursuant to Sections VII (Tax Matters) and VIII (Indemnification), provided, however, that Seller’s overall Liability for any and all claims under or in connection with this Agreement shall in no event exceed the sum of (i) an amount of
one hundred percent (100%) of the Cash Consideration (the “Fundamental Warranty Cap Cash Portion”) and (ii) one
hundred percent (100%) of the Share Consideration (the “Fundamental Warranty Cap Share Portion”, together with the Fundamental Warranty Cap Cash Portion the
“Fundamental Warranty Cap” ). Any Liability of Seller shall be first compensated by way of cash payment up to the aggregate amount of the Fundamental
Warranty Cap Cash Portion and only after the Fundamental Warranty Cap Cash Portion is used up entirely by way of a re-transfer of Consideration Shares up to the amount of the Fundamental Warranty Cap Share Portion, provided that for the
purpose of determining the number of Consideration Shares to be re-transferred, the Agreed Share Value shall be applied (i.e. the number of Consideration Shares to be re-transferred shall be equal to the amount of Losses to be
compensated by Seller divided by the Agreed Share Value).
|
|
20.3
|
All claims of Buyer arising under or in connection with this Agreement shall become time-barred (verjähren) eighteen (18) months after the Closing Date, except for:
|
a)
|
claims resulting from a breach of any of the Fundamental Warranties, which shall become time-barred five (5) years after the Closing Date;
|
|
b)
|
|
c)
|
claims pursuant to Section VIII (Indemnification) which shall become time-barred three (3) years after the Closing Date.
|
|
20.4
|
The limitations of Liability in this Agreement, including limitations with regard to the term Losses and the limitations set forth in Sections 17 to 20, shall not apply if a breach is based
on fraud (Arglist) or wilful misconduct (Vorsatz) by or on behalf of Seller or any Seller’s Affiliates.
|
21.
|
| 21.1 |
Buyer represents and warrants (garantiert) to Seller by way of an independent promise of guarantee (selbständiges Garantieversprechen) pursuant to
section 311 (1) BGB within the scope and subject to the remedies and limitations set forth in this Agreement that the statements contained in this Section 21 (the “Buyer Warranties”) are true and
correct as of the Signing Date and the Closing Date, unless a Buyer Warranty is explicitly made as of a different date, in which case such Buyer Warranty shall be correct only as of such different date:
|
| 21.1.1 |
Buyer is a U.S. Corporation, duly incorporated and validly existing under the Laws of the state of Delaware, USA, with the requisite power and authority to own and use its properties and assets and to carry on its business as
currently conducted. The shares of common Stock, par value $0.0001 per share, of Advent (the “Common Stock”) are traded on the Nasdaq Capital Market under the ticker symbol ‘ADN’. Buyer has all requisite corporate power and authority to
enter into this Agreement, to carry out its obligations hereunder, and to consummate the Transactions contemplated hereby. The copies of the certificate of incorporation and by-laws of Buyer as most recently filed with the Buyer’s SEC
Documents are true, correct, and complete copies of such documents as in effect as of the date of this Agreement. The execution and delivery by Buyer of this Agreement, the performance by Buyer of its respective obligations hereunder,
and the consummation by Buyer of the Transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of Buyer. As used in this Agreement, “Buyer’s SEC Documents”
shall mean all registration statements, prospectuses, reports, schedules, forms, statements, and other documents (including exhibits and all other information incorporated by reference) required to be filed or furnished by Buyer with
the SEC, and “SEC” shall mean the U.S. Securities and Exchange Commission.
|
| 21.1.2 |
The execution, delivery, and performance by Buyer of this Agreement, and the consummation of the Transactions contemplated hereby, do not and will not: (i) violate or conflict with any provision of the certificate of incorporation,
by-laws, or other governing documents of Buyer or any of its subsidiaries; (ii) violate any provision of any Law or governmental order applicable to Buyer or any of its subsidiaries; or (iii) constitute a breach of, or default under (or
an event which, with notice or lapse of time or both, would become a default under) or conflict with, or give rise to any right of termination, cancellation or acceleration of, any agreement, arrangement or instrument, whether written
or oral, by which Buyer or any of its subsidiaries is bound, except in each case, as would not have a Material Adverse Effect.
|
| 21.1.3 |
No insolvency proceedings (Insolvenzverfahren) or similar proceedings under applicable Laws are pending regarding Buyer or any of its subsidiaries and neither Buyer nor any such subsidiary is
required under applicable Laws to file for any such proceeding.
|
| 21.1.4 |
No consent, approval, authorization or other order of or filing with any Governmental Authority is required to be obtained by Buyer in connection with the authorization, execution and delivery of this Agreement or with the issuance
and sale of the Consideration Shares at the Closing, except the filing of a Current Report on Form 8-K and a Notice of Sale of Securities on Form D with the SEC to the extent required by applicable Law.
|
| 21.1.5 |
The authorized capitalization of Buyer consists of: (a) 110,000,000 shares of common stock (“Common Stock”) and (b) 1,000,000 shares of preferred stock, $0.0001 par value (“Preferred Stock”). As of the date hereof: (i) 46,128,745 shares of Common Stock are issued and outstanding; (ii) no shares of Preferred Stock are issued and outstanding; (iii) warrants to purchase
26,369,557 shares of Common Stock are outstanding; (iv) 2,305,294 options to purchase 2,305,294 shares of Common Stock are outstanding; and (v) 2,382,510 restricted stock units are outstanding. Except as described in the immediately
preceding sentence, as of the date hereof, there are no outstanding (A) securities of Buyer or any of its subsidiaries convertible into or exchangeable for shares of capital stock of Buyer, (B) options, warrants, or other agreements or
commitments to acquire from Buyer or any of its subsidiaries, or obligations of Buyer or any of its subsidiaries to issue, any shares of capital stock of (or securities convertible into or exchangeable for shares of capital stock of)
Buyer, or (C) restricted shares, restricted stock units, stock appreciation rights, performance shares, profit participation rights, contingent value rights, “phantom” stock, or similar securities or rights that are derivative of, or
provide economic benefits based, directly or indirectly, on the value or price of, any shares of capital stock of Buyer, in each case that have been issued by Buyer or its subsidiaries. All outstanding shares of Common Stock, and all
outstanding shares of capital stock, voting securities, or other ownership interests in any subsidiary of Buyer, have been issued or granted, as applicable, in compliance in all material respects with all applicable securities Laws.
The sale and issuance of the Shares will not obligate Buyer to issue shares of Common Stock or other securities to any other person and will not result in a right of any holder of securities issued by Buyer to adjust the exercise,
conversion, or exchange price or ratio under any such securities. Other than as set forth in Buyer’s SEC Documents, Buyer is not a party to any stockholders, voting or similar agreement with any other person.
|
| 21.1.6 |
When issued and delivered in accordance with the terms hereof against payment therefor, the Consideration Shares shall be validly issued, fully paid and nonassessable, free from any liens, encumbrances or restrictions on transfer,
including preemptive rights, rights of first refusal or other similar rights, other than as arising pursuant to this Agreement, as a result of any action by Seller or under federal or state securities Laws. Assuming the accuracy of the
representations and warranties of Seller in this Agreement, the Consideration Shares will be issued in compliance with all applicable federal and state securities Laws and accordance with the Nasdaq marketplace rules.
|
| 21.1.7 |
From and after 4 February, 2021, Buyer has timely filed with or furnished to, as applicable, all of the Buyer’s SEC Documents. As of their respective filing dates (or date of amendment, if amended), each of Buyer’s SEC Documents (i)
complied as to form in all material respects with the requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (as the case may be), and the rules and regulations of
the SEC promulgated thereunder applicable to such Buyer’s SEC Documents, and (ii) contained no untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. Buyer is in compliance in all material respects with all of the applicable listing and corporate governance rules of the Nasdaq.
|
| 21.1.8 |
From and after 4 February 2021 to the date hereof, (i) there have been no events, occurrences or developments that have had or would reasonably be expected to have, either individually or in the aggregate, a Material Adverse Effect
and (ii) Buyer has not incurred any liabilities other than (A) trade payables, accrued expenses and other liabilities incurred in the ordinary course of business consistent with past practice, (B) liabilities not required to be
reflected in Buyer’s financial statements pursuant to GAAP or disclosed in filings made with the SEC and (C) liabilities that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
|
| 21.1.9 |
There is no action, suit, proceeding or investigation pending, or to the knowledge of Buyer, threatened which (i) would reasonably be expected to materially adversely affect or successfully challenge the legality, validity or
enforceability of this Agreement or (ii) except as specifically disclosed in Buyer’s SEC Documents, would, if there were an unfavorable decision, individually or in the aggregate, have or reasonably be expected to result in a Material
Adverse Effect. Except as disclosed in Buyer’s SEC Documents, neither Buyer nor, to the knowledge of Buyer, any director or officer thereof is or has been the subject of any action, suit, proceeding or investigation involving a claim of
violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty relating to actions taken at Buyer.
|
| 21.1.10 |
Buyer is not, and is not an Affiliate of, and immediately after receipt of payment for the Consideration Shares, will not be or be an Affiliate of, an “investment company” within the meaning of the Investment Company Act of 1940, as
amended.
|
| 21.1.11 |
Neither Buyer nor any Person acting on behalf of Buyer has offered or sold any of the Consideration Shares by any form of general solicitation or general advertising (within the meaning of Regulation D of the Securities Act).
|
| 21.1.12 |
Neither Buyer nor any of its subsidiaries engages in the design, fabrication, development, testing, production or manufacture of one (1) or more “critical technologies” within the meaning of the U.S. Defense Production Act of 1950,
as amended, including all implementing regulations thereof.
|
| 21.1.13 |
No representation or warranty by Buyer in this Agreement and no statement contained in any certificate or other document furnished or to be furnished to Seller pursuant to this Agreement contains any untrue statement of a material
fact, or omits to state a material fact necessary to make the statements contained therein.
|
| 21.2 |
Sections 19 and 20 shall apply mutatis mutandis to any Seller’s claims under this Section 21, provided that:
|
|
a)
|
The aggregate total liability of Buyer for any and all claims under this Section 21 shall be limited to the Cap Share Portion and, if applicable, shall be settled in cash;
|
|
b)
|
The Cap Share Portion shall not apply to claims for breach of any of Buyer Warranties listed in Sections 21.1.1 through 21.1.6 (“Fundamental Buyer Warranties”),
provided, however, that Buyer’s overall liability for any and all claims under this Section 21 shall in no event exceed the amount of the Share Consideration (determined based on the Agreed Share Value); and
|
|
c)
|
Claims resulting from a breach of any of the Fundamental Buyer Warranties shall become time-barred five (5) years after the Closing Date and any other claims under this Section 21 shall become time-barred
eighteen (18) months after the Closing Date.
|
|
22.
|
| 22.1 |
Seller shall cause the Target Companies to (i) conduct the Business until the Closing Date only in the ordinary course of business consistent with past practice, and (ii) cause, to the extent permitted under applicable Law, the other
Target Group Companies to conduct their business operations until the Closing Date only in the ordinary course of business consistent with past practice, in each of the cases (i) and (ii) unless Buyer has consented to the specific
measure or activity.
|
| 22.2 |
Seller shall not take in relation to the Target Group and shall cause the Target Companies (i) not to take, and (ii) to cause, to the extent permitted under applicable Law, the other Target Group Companies not to take, any of the
following measures or activities unless Buyer has consented to them:
|
|
a)
|
Make any change in authorized equity ownership interests;
|
|
b)
|
Sell, purchase, transfer, acquire, redeem or issue any shares or other equity interests, securities convertible into shares or other equity interests, or any debt securities;
|
|
c)
|
Issue or grant any options, warrants, conversion rights or other rights to purchase shares or other equity interests;
|
|
d)
|
Purchase or otherwise acquire or agree to acquire for a consideration any shares (other than in a fiduciary capacity);
|
|
e)
|
Take any action, or authorize any Person to take any actions relating to the disposition of any Target Group Company’s business or assets, or the sale of any shares in any Target Group Company to, or the
merger of any Target Group Company with, any Person other than Buyer;
|
|
f)
|
Enter into or amend any employment, pension, retirement, profit sharing, deferred compensation, consultant, bonus, or similar plan or agreement in respect of any of its shareholders or other employees, or
increase the current level of contributions to any such plan now in effect;
|
|
g)
|
Acquire, consolidate or merge with any other company, corporation, or association, or acquire, other than in the ordinary course of business, any assets of any other company, corporation, or association;
|
|
h)
|
Mortgage, pledge, or subject to a lien or any other Encumbrance, any of their assets, dispose of any of their assets, incur or cancel any debts or claims, or increase the current level of compensation or
benefits payable to its members or employees except in the ordinary course of their business as heretofore conducted, or take any other action not in the ordinary course of their business as heretofore conducted, or incur any material
obligation, or enter into any material contract except as provided for in this Agreement;
|
|
i)
|
Amend organizational documents, in particular the articles of association of the Target Group Companies or operating agreements;
|
|
j)
|
Take any material shareholders’ resolutions, including with respect to reorganization, dissolution or liquidation;
|
|
k)
|
Enter into or amend any agreements involving annual payment obligations in excess of EUR 30,000 (in words: thirty thousand Euro) in the individual case, except for any supply agreements entered into in
the ordinary course of business consistent with past practice;
|
|
l)
|
Enter into any loan agreements with a party other than another Target Group Company exceeding a principal amount of EUR 30,000 (in words: thirty thousand Euro) in the individual case;
|
|
m)
|
Make any capital expenditures in excess of EUR 50,000 (in words: fifty thousand Euro) in the individual case;
|
|
n)
|
Acknowledge (anerkennen) any claims exceeding EUR 5,000 (in words: five thousand Euro) in the individual case;
|
|
o)
|
Enter into any settlement agreement (Vergleich) with a value in dispute exceeding EUR 5,000 (in words: five thousand Euro) in the individual case;
|
|
p)
|
Appoint or dismiss any managing directors (Geschäftsführer) or directors of the Target Group Companies, except for dismissal for cause (aus wichtigem Grund) or as provided for in Section 12; and
|
|
q)
|
To the extent it may affect or relate to the Target Group Companies: (i) make, change, or rescind any Tax election; (ii) amend any Tax Return, except as required by applicable Laws; (iii) change any
method of accounting for Tax purposes; (iv) (except for the introduction of the Short Fiscal Year) change any annual Tax accounting period, or (v) enter into an contractual obligation or request any binding ruling in respect of Taxes
with any governmental authority.
|
| 22.3 |
Buyer is aware that the insurance coverage for the Target Group Companies is provided by Seller’s umbrella insurances (Konzern-Policen). Seller shall continue to insure the Target Group
Companies under Seller’s umbrella insurances on the substantially same terms and conditions as at the Signing Date until the Closing Date. Buyer is further aware that such insurance coverage will cease as of the Closing Date, except to
the extent the respective insurance terms provide for occurrence based protection for matters, causes or events occurring prior to or on the Effective Date. Seller herewith undertakes to provide the Buyer within 14 days after the
Signing Date with a complete list setting forth all matters for which the Target Group Companies are protected under Seller’s umbrella insurance occurrence based policies for matters, causes or events occurring prior to or on the
Closing Date. Buyer is aware that as from Closing the Target Group Companies are responsible for obtaining adequate insurance coverage on a stand-alone basis. Seller shall reasonably assist Buyer and the Target Group Companies to obtain
such insurance coverage in time.
|
|
23.
|
| 23.1 |
Following the Closing, each of the Parties shall, and shall cause their respective Affiliates to, execute and deliver such additional documents and instruments and take such further actions as may be reasonably required to carry out
the provisions hereof and give effect to the Transactions contemplated by this Agreement.
|
| 23.2 |
The Parties shall, and shall cause their respective Affiliates to, reasonably cooperate to prevent any of the Subsidies from being revoked, withdrawn, terminated, reduced or not granted in full or in part as a result of the
Transactions contemplated by this Agreement and take all actions required prior to Closing to satisfy any existing reporting or notification obligations with regard to the Subsidies which may arise as a result of the Transactions
contemplated by this Agreement.
|
| 23.3 |
SerEnergy as seller and FES as purchaser have entered into a “Patent and IP Purchase and Transfer Agreement” dated 17 December 2018. The agreement provides that SerEnergy shall be entitled to a purchase price premium (Kaufpreisaufschlag) if a third party acquires more than 25% of the shares in FES (the “Investor Entry”). Such purchase price adjustment (the “IP Transfer Earn-out”) will be triggered by the consummation of the transactions contemplated hereunder. The Buyer undertakes to ensure that SerEnergy and FES will comply with the terms of the Patent
and IP Purchase and Transfer Agreement. The Parties agree that the Taxes triggered by the IP Transfer Earn-out at the level of the Target Companies relate to the period prior to the Effective Date (including for claims under Section VII
(Tax Matters)) and shall therefore be included in the Effective Date Balance Sheet as Tax liability to the extent these Taxes are not settled prior to the Effective Date and shall, accordingly, be included in the Effective Date
Financial Debt. Seller undertakes to contribute the amount of such Taxes in cash to SerEnergy prior to or on the Scheduled Closing Date and the cash amount from the contribution shall, accordingly, be included in the Effective Date
Cash.
|
| 23.4 |
Seller and the Target Companies acknowledge that Buyer is a U.S. public company with its shares listed on Nasdaq Capital Market and subject to various reporting, disclosure and filing requirements under Law. Seller and the Target
Companies covenant and agree to cooperate with Buyer’s reasonable requests in order to prepare the pro forma financial statements and historical financial statements of the Target Companies for the periods required to be filed by Buyer
with the SEC, in connection with Buyers’ obligations to report the Transaction on a Current Report on Form 8-K or in connection with any registration statement filed by Buyer, or as otherwise required by Law. Seller shall, and shall
cause the Target Companies to, obtain from the registered accounting firm that audited the historical financial statements of the Target Companies to deliver all required consents for the inclusion of such historical financial
statements in any filings made by Buyer. Seller and the Target Companies acknowledge that the filings described in this Section 23.4 necessitate timely cooperation, including cooperation in the performance of incremental audit
procedures necessary, by Seller and the Target Companies to facilitate the execution and filing of an auditor’s consent. Seller and the Target Companies covenant and agree to promptly cooperate from and after the date hereof including
following the Closing to facilitate such actions and to supply the requested information as described in this Section 23.4. Buyer shall reimburse Seller and the Target Companies for any reasonable out-of-pocket costs incurred in
providing the cooperation described in this Section 23.4.
|
|
24.
|
|
24.1
|
Following the Closing, as soon as reasonably possible Buyer shall use commercially reasonable efforts to achieve that:
|
a)
|
Buyer is duly registered as the legal owner (legal ejer) of SerEnergy in the Danish Public Register of Shareholders (Det
Offentlige Ejerregister) and that the ultimate owner(s) of SerEnergy are duly registered as such (reelle ejere) in the Danish Public Register of Shareholders (Det Offentlige Ejerregister) within the applicable time limits provided by law; and
|
|
b)
|
to the extent that any Leaving Function Holder resigns from his or her positions with SerEnergy at Closing, one or more extraordinary general meeting(s) or meetings of the board of directors, as
applicable, of SerEnergy are held in accordance with the organizational documents of SerEnergy in order to elect new directors or officers, as applicable, and that the necessary de-registrations and registrations with the Danish
Business Authority (Erhvervsstyrelsen) are conducted within the applicable time limits provided by law.
|
|
25.
|
Any and all existing Tax sharing agreements (Steuerumlageverträge) (whether written or not) binding upon the Target Group Companies, if any, shall be
terminated as of the Closing Date. After such date neither the Target Group Companies, Seller, nor any of Seller’s Affiliates and their respective representatives shall have any further rights or Liabilities thereunder.
|
26.
|
Seller represents and warrants (garantiert) to Buyer by way of an independent promise of guarantee (selbständiges
Garantieversprechen) pursuant to section 311 (1) BGB within the scope and subject to the remedies and limitations set forth in this Agreement that the statements contained in this Section 26 (the “Tax
Representations”) are, taking into account the facts and circumstances set forth in Exhibit 26 (the “Tax Disclosure Schedule”), true and correct as
of the Signing Date.
|
b)
|
All Taxes due and owing by the Target Group Companies (whether or not shown on any Tax Return) have been timely paid. No extensions or waivers of statutes of limitations have been given or requested with
respect to any Taxes of the Target Group Companies.
|
|
c)
|
FES and Seller are part of a fiscal unity for corporate income tax, trade tax and VAT purposes. Except for the fiscal unity between FES and Seller, the Target Group Companies have not been a member of an
affiliated, combined, consolidated, or unitary Tax group for Tax purposes.
|
|
d)
|
The Target Group Companies keep books of accounts as required by applicable Law, and the application thereof by the competent Taxing Authority, and have sufficient records (including any required transfer
pricing documentation) relating to past events during all times prior to and including the Closing Date.
|
|
e)
|
There are no liens for Taxes (other than for current Taxes not yet due and payable) upon the assets of the Target Group Companies.
|
|
f)
|
The Target Group Companies have their registered office and place of effective management in the jurisdiction of incorporation, and do not have any permanent establishments (Betriebstätten) outside such jurisdiction, other than a permanent establishment for VAT purposes that FES might have in Denmark, if any.
|
|
27.
|
| 27.1 |
Seller shall pay to Buyer an amount equal to any Indemnifiable Tax (the “Tax Indemnification Claim”), provided that Seller shall not be liable vis-à-vis Buyer (and the Tax Indemnification Claim
shall be reduced accordingly) if and to the extent:
|
|
a)
|
the respective Tax has been paid or otherwise discharged until the Effective Date; or
|
|
b)
|
a specific Liability (Verbindlichkeit) or provision (Rückstellung) for the Indemnifiable Tax is included in the Final
Effective Date Balance Sheet and has reduced the Consideration.
|
|
d)
|
|
f)
|
|
g)
|
| 27.2 |
Any amounts payable to Buyer under this Section 27 shall be payable and due within ten (10) Business Days after the Seller has been notified by the Buyer about the amount payable and the date on which the Tax is due by providing a
copy of the Tax assessment notice, if available, but not prior to five (5) Business Days prior to the day on which the respective Tax is due for payment by the Target Group Company to the competent Taxing Authority even if the
assessment does not yet have binding effect (formelle Bestandskraft).
|
| 27.3 |
As from the Closing Date, Buyer shall cause the Target Group Companies to prepare and file, when due, all Tax returns required to be filed by or on behalf of the Target Group Companies with respect to any taxable period ending before
or including the Effective Date. The Buyer shall provide, or cause to be provided, drafts of such Tax returns, excluding preliminary Tax returns and Tax returns filed on a monthly basis, to the Seller not later than four (4) weeks
before the relevant filing date. All such Tax returns and any amendments to any Tax returns filed by the Target Group Companies which relate to any period prior to or including the Effective Date shall require the prior written consent
of the Seller, such consent not to be unreasonably withheld, conditioned or delayed. If and to the extent that the Parties fail to reach an agreement thereon, the Target Group Companies shall file or amend the Tax returns in their free
discretion (to the extent legally permissible). If, after the Closing Date, any Taxing Authority informs the Buyer or any Target Group Company of a Relevant Tax Matter or any other matter which could otherwise reasonably be expected to
have an impact on the Seller’s Tax position, or if the Buyer or any Target Group Company otherwise becomes aware of a Relevant Tax Matter, the Buyer shall notify the Seller of such matter. The Buyer’s notice shall be given within
fifteen (15) Business Days after the Buyer or the relevant Target Group Company has received the relevant information or knowledge, or at any earlier date if required to enable the Seller to participate in any Tax audit or to review the
relevant Tax assessment within the applicable period available for an appeal or other legal remedy. If the Buyer has reason to believe that a payment is to be made by the Seller pursuant to Section 27.1, such notice shall state the
amount of the alleged Tax Indemnification Claim and include evidence reasonably necessary to determine the fact, amount and payment of such claim to the extent already known and available.
|
|
28.
|
| 28.1 |
| 28.2 |
Buyer shall pay to the Seller an amount equal to any unused Tax liability (Steuerverbindlichkeit) or Tax provision (Steuerrückstellung) of any of the
Target Group Companies as shown in the Final Effective Date Balance Sheet which may be dissolved after Closing, except to the extent
|
|
a)
|
such Tax liability or Tax provision has been set off against any Indemnifiable Tax. Buyer shall be entitled to set off any other Buyer Claim against such payment obligation; or
|
|
b)
|
the Buyer or the Target Group Companies have an obligation arsing from actions, measures or omissions taken by the Target Group Companies or Seller or any of its Affiliates prior to or on the Effective
Date to forward such amounts to a third party.
|
| 28.3 |
Seller shall not have a claim under Sections 28.1 or 28.2 if and to the extent the circumstances giving rise to the Tax Refund or to the fact that the Tax liability or Tax provision is not used to set off any Indemnifiable Tax or any
Buyer Claim is not set off against the respective payment claim results in a tax disadvantage for the Buyer, the Target Group Companies, or the tax group or fiscal unity to which such Target Group Company is a member, for the period
starting on or after the Effective Date; the principles set out in Section 27.1c) shall apply mutatis mutandis.
|
| 28.4 |
Buyer shall notify Seller in writing and without undue delay (unverzüglich) of any relevant decision by the Taxing Authority. Any amounts payable to Seller pursuant to this Section 28 shall be
due and payable within five (5) Business Days after the relevant decision of the Taxing Authority has been taken, provided, however, that any amounts payable to Seller pursuant to Section 28.2 shall not be due and payable prior to
expiry of five (5) years after the Closing or, if later, the last Buyer Claim has been satisfied or become time-barred.
|
|
29.
|
| 29.1 |
In the event Taxes relate to a Tax period beginning before the Effective Date and ending thereafter, such Tax period shall deemed to be split in one Tax period ending on the Effective Date and another Tax period starting after the
Effective Date for the purpose of determining claims under this Section VII (Tax Matters).
|
| 29.2 |
All payments to be made by Seller to Buyer or by Buyer to Seller under this Agreement shall constitute a reduction or an increase in the Consideration for Tax purposes, as the case may be. If and to the extent payments are made by
Seller directly to the Target Group Companies, such payments shall be construed and deemed as contributions (Einlagen) made by Buyer into the Target Companies and shall be treated as a reduction
of the Consideration as between the Parties.
|
|
30.
|
| 30.1 |
The Buyer and the Seller shall, and shall ensure that the Target Group Companies, their respective employees and advisors, including the employees and advisors of Seller, fully cooperate with each other in connection with any
Relevant Tax Matter, including but not limited to the filing of any Tax Return, the conduct of any inquiry, examination, audit, investigation, negotiation, dispute, appeal, litigation or mutual agreement procedures (Verständigungsverfahren).
|
| 30.2 |
The Buyer shall, and shall ensure that any Target Group Company follow any reasonable instructions of the Seller in respect of any Relevant Tax Matter. In particular, and without prejudice to the aforementioned the Buyer shall
|
|
e)
|
| 30.3 |
The Seller shall reasonably consider the interest of Buyer and the Target Group Companies when defending a Relevant Tax Matter and using its rights under this Agreement. The Seller shall bear all costs incurred in connection with the
defence of the Relevant Tax Matter or the cooperation rights of the Seller under this Section 30.
|
|
31.
|
Claims under this Section VII (Tax Matters) shall be time-barred upon expiration of six (6) months after the ultimate, final and binding assessment of the relevant Tax. However, Seller’s
rights under Section VII shall not be time-barred before the expiration of six (6) months after Seller has been notified by Buyer about the circumstance giving rise to a claim of Seller.
|
32.
|
Subject to the other terms and conditions of this Section 32, Seller shall indemnify and defend each of Buyer and its Affiliates (including the Target Group Companies) (collectively, the “Buyer Indemnitees”) against, and shall hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Losses, incurred or sustained by, or imposed upon, Buyer
Indemnitees based upon, arising out of, with respect to, or by reason of:
|
a)
|
the dissolution (Auflösung) or liquidation (Liquidation) of Meyer & fischer eco solutions GmbH, a limited liability
company incorporated under the Law of Germany, having its registered seat in Papenburg, registered with the commercial register of the local court of Osnabrück under no. HRB 206613, with business address at Deverhafen 2, 26871
Papenburg, Germany, in which FES as at the Signing Date holds fifty percent (50%) of the shares;
|
|
b)
|
the dissolution or liquidation or any other similar instrument available under applicable Law for winding up any SerEnergy Subsidiary;
|
|
d)
|
any potential irregularities in the accounts for the financial statements 2020 of SerEnergy Philippines, Incorporated;
|
|
e)
|
the presence, release or threatened release of any Hazardous Substances as set out in section 17.20.1 and section 17.20.2 of the Disclosure Schedule, regardless of whether the contamination set forth in
in section 17.20.1 and section 17.20.2 of the Disclosure Schedule was caused by any Target Group Company, a prior owner or former user of the Real Property, or any other Person whatsoever;
|
|
f)
|
any penalty payments relating to non-compliance with applicable data privacy law by any Target Group Company, in particular with regard to (i) Target Group Companies not having concluded mandatory data
protection agreements with service providers, employees, banks or any other third party, and/or (ii) the lack of other mandatory documentation required under the General Data Protection Regulation and the Danish Data Privacy Act, in
each case if and to the extent such non-compliance existed to Seller’s Knowledge on the Closing Date;
|
|
g)
|
the dismissal of employees in connection with the restructuring of SerEnergy’s sales and marketing department in September 2020;
|
|
h)
|
any Action by any Governmental Authority as may be taken against SerEnergy from time to time alleging a potential breach of applicable Laws by the cooperation agreement between SerEnergy and Foresight
Energy Co., Ltd. signed by the parties on 26 September/14 October 2020, if applicable.
|
|
33.
|
The costs for the notarization of this Agreement, all stamp duties, transfer Taxes and similar levies, all administrative and court fees associated with the consummation of this transaction
(in particular, fees related to the German FIC Clearance and, if required, Danish foreign investment clearance) shall be borne by Buyer. All other costs and expenses incurred in connection with this Agreement and the Transactions contemplated
hereby shall be paid by the Party incurring such costs and expenses, including the fees for its advisors.
|
34.
|
Any notice (“Notice”) hereunder shall be made in the English language, in writing and given by personal delivery, by commercial overnight delivery
service, or by certified mail, postage prepaid, return receipt requested, or by email including a document with a signature, at the following address:
|
If to Seller:
|
F.E.R. fischer Edelstahlrohre GmbH
Im Gewerbegebiet 7, 77855 Achern
Germany
Email: bjoern.weber@fischer-group.com
Attention: Mr. Björn Weber, Managing Director, CFO
|
|
with a copy (which shall not constitute a Notice) to:
|
Ernst & Young Law GmbH Rechtsanwaltsgesellschaft Steuerberatungsgesellschaft
Mergenthaler Allee 3-5, 65760, Eschborn/Frankfurt a.M., Germany
Email: Felix.von.Bredow@de.ey.com
Attention: Dr. Felix von Bredow
|
|
If to Buyer:
|
Advent Technologies Holdings, Inc.
200 Clarendon Street
Boston, MA 02116
Email: jcoffey@advent.energy
Attention: James F. Coffey,
Chief Operating Officer and General Counsel
|
|
with a copy (which shall not constitute a Notice) to:
|
Gleiss Lutz Hootz Hirsch PartmbB Rechtsanwälte, Steuerberater
Taunusanlage 11
D-60329 Frankfurt am Main
Email: cornelia.topf@gleisslutz.com; christian.cascante@gleisslutz.com
Attention: Dr. Cornelia Topf / Dr. Christian Cascante
|
Each Notice shall be effective upon receipt (Zugang) which shall be deemed to have occurred (i) if personally served, upon such service, (ii) if sent by commercial overnight delivery service, upon the next Business Day following such sending, (iii) if mailed,
forty-eight (48) hours following the first attempt of the postal service to deliver same, (iv) if sent by email upon transmission, provided that the Person sending the email shall not have received an out-of-office reply or a failure notice
or (v) if otherwise transmitted, if acknowledged in writing by all other Parties to this Agreement.
|
35.
|
Any Party may, by like Notice at any time and from time to time, designate a different address to which Notices shall be sent.
|
36.
|
Should any individual provision of this Agreement be or become in whole or in part invalid or infeasible, or should there be an omission in this Agreement, this shall indisputably (unwiderlegbar) not affect the validity or feasibility of the remaining provisions, without any party to this Agreement having to argue (darlegen) and prove (beweisen) the Parties’ intent to uphold this Agreement even without the invalid or infeasible provision or the omission. In place of the invalid or infeasible provision or in order to remedy the omission,
the Parties undertake to agree on an appropriate, valid and feasible provision that comes closest to what the Parties intended or would have intended in accordance with the purpose of this Agreement had they considered the matter at the outset.
|
37.
|
This Agreement (including its Exhibits and the Disclosure Schedule) constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein,
and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements in the body of this Agreement and those in any
Exhibits or the Disclosure Schedule (other than an exception expressly set forth as such in the Disclosure Schedule), the statements in the body of this Agreement will control.
|
38.
|
No Party shall be entitled to exercise any right to set-off, retention or other right to refuse performance (Aufrechnung, Zurückbehaltung oder sonstige
Leistungsverweigerungsrechte) with respect to any of its payment obligations under or in connection with this Agreement, except in case the underlying rights or claims of the Party have been expressly acknowledged (anerkannt) by the other Party in the form of Section 34 or have been awarded in a legally binding (rechtskräftig) decision in principal proceedings (im Hauptsacheverfahren) by a competent court or arbitral tribunal.
|
39.
|
This Agreement shall be binding upon and shall inure to the benefit of the Parties hereto and their respective successors and permitted assigns. Neither Party may assign its rights or
obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed. No assignment shall relieve the assigning Party of any of its obligations hereunder.
|
40.
|
This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each Party hereto, unless notarization is required in which case such amendments,
modifications or supplements have to be notarized. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the Party so waiving. No failure to exercise, or delay in
exercising, any right or remedy arising from this Agreement shall operate or be construed as a waiver thereof. No single or partial exercise of any right or remedy hereunder shall preclude any other or further exercise thereof or the exercise
of any other right or remedy.
|
41.
|
The Parties have pre-aligned on and Seller has consented to Buyer’s filing of a Notice of Sale of Securities on Form D and a Current Report on Form 8-K to be made pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, which shall include a copy of this Agreement as an exhibit, as well as an accompanying press release, concurrently with the execution of this Agreement. The Parties undertake that without the
written consent of the other Party neither Party shall make any public announcement regarding this Agreement or any part of its content or the transactions contemplated hereunder, unless required by applicable law, regulation or stock exchange
rules applicable to the respective Party. If legally permissible, at least five (5) Business Days prior to any permitted press release the Party wishing to make the announcement shall notify the other Parties thereof in writing, provide to the
other Parties the proposed wording and take any requests of the other Parties into due consideration.
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42.
|
This Agreement shall be construed in accordance with, and governed by, German Law, excluding the German conflict of Law rules and excluding the United Nations Convention on Contracts for the
International Sale of Goods (CISG).
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43.
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All disputes arising out of or in connection with this Agreement (including the breach, termination or validity thereof) shall be finally settled, without recourse to the ordinary courts of
Law, by arbitration in accordance with the Arbitration Rules of the German Arbitration Institute (Deutsche Institution für Schiedsgerichtsbarkeit e.V.), as amended from time to time. The arbitral
tribunal shall be comprised of three (3) arbitrators. The seat of the arbitration shall be Frankfurt am Main, Germany. The language of the arbitration shall be English. Documents originating in the German language may be submitted in the German
language and without an English translation. The right to obtain injunctive relief (vorläufigen Rechtsschutz) before state courts shall not be excluded.
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1.
|
In this Agreement, the following terms shall have the following meanings:
|
means any Person or entity that controls, is controlled by, or is under common control with, such Person or entity. As used in this definition, “control” (including the terms “controlling”, “controlled
by” and “under common control with”) means the possession, directly or indirectly, of the power to direct, or cause the direction of, the management and policies of a Person or entity, whether through (i) ownership of voting securities
or other interests, (ii) the ability to appoint a majority of the board of directors (or other similar body in respect of an entity that is not a corporate body), or (iii) contract or otherwise.
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|
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means the German Stock Corporation Act (Aktiengesetz).
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|
|
means the German Civil Code (Bürgerliches Gesetzbuch).
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|
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means any day other than a Saturday or Sunday on which banks are open for business in Frankfurt am Main, Germany, Copenhagen, Denmark and Boston, USA.
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|
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“Code”
|
means the U.S. Internal Revenue Code.
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“Compliance Case”
|
means any (i) criminal conduct (Straftat) under applicable Laws, or (ii) non-criminal offenses (Ordnungswidrigkeit) or
similar concepts under non-German laws) under applicable (w) anti-corruption laws, (x) sanctions, (y) laws regarding money laundering (Geldwäsche) or (z) antitrust laws.
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“DKK”
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means Danish Krone or Danish Kroner.
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|
means any Laws, now or hereafter in effect, in each case as amended or supplemented from time to time, relating to the regulation and protection of human health, occupational and general safety, the
existence, use, handling, generation, manufacturing, distribution, collection, transportation, storage, disposal, clean-up or release of Hazardous Substances, the environment, and natural resources, including any federal, state, or
local transfer of ownership notification or approval statutes.
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means Euro or Euros.
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|
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“Exchange Rate”
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means the exchange rate of the relevant currency versus the Euro as determined by the European Central Bank on its website at
https://www.ecb.europa.eu/stats/policy_and_exchange_rates/euro_reference_exchange_rates/html/index.en.html as published (i) for the relevant date if the relevant date is a Business Day, or (ii) for the last Business Day prior to the
relevant date if the relevant date is not a Business Day.
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means: (A) “hazardous materials,” “hazardous wastes,” “hazardous substances,” “industrial wastes,” or “toxic pollutants,” as such terms are defined under any Environmental Laws; (B) any other hazardous or
radioactive substance, contaminant, or waste; and (C) any other substance identified or designated as hazardous substance or hazardous material under any applicable law or with respect to which any Environmental Law or governmental
authority requires environmental investigation, regulation, monitoring, or remediation.
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|
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means the German Commercial Code (Handelsgesetzbuch).
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|
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“Indemnifiable Tax”
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means (i) any damages arising from a breach of any representation in Section 26 (except for damages caused by a decrease in tax loss carry forwards available at the Effective Date) and (ii) any Taxes
imposed on or payable by the Target Group Companies and (a) relating to the time period (Zeitraum) prior to and including the Effective Date or (b) resulting from actions taken on or prior to the
Effective Date or (c) resulting from the PLTA or its consummation in periods after the Effective Date.
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“Laws”
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shall mean any German, US, Danish or other federal, state, regional, county and local law, statute, ordinance (Verwaltungsvorschrift), legally binding rule,
directive or regulation (rechtlich bindende technische Norm oder Regelwerk), code, judgment, constitution, principle of common law, edict, treaty, ruling or directive or similar regulation of
general applicability of any governmental authority or stock exchange rules.
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2.
|
The following terms have the meanings set forth in the location in this Agreement referenced below:
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Actions
|
33
|
|
Adjustment Amount
|
14
|
|
Advent
|
4
|
|
Affiliate
|
61
|
|
Agreed Share Value
|
9
|
|
AktG
|
61
|
|
Ancillary Agreements
|
19
|
|
AWG
|
20
|
|
AWV
|
20
|
|
Base Amount
|
8
|
|
BGB
|
61
|
|
BMWi
|
20
|
|
Business
|
5
|
|
Business Day
|
61
|
|
Buyer
|
4
|
|
Buyer Claims
|
38
|
|
Buyer Indemnitees
|
55
|
|
Buyer Warranties
|
44
|
|
Buyer’s Account
|
15
|
|
Cap
|
42
|
|
Cap Cash Portion
|
42
|
|
Cap Share Portion
|
42
|
|
Cash Consideration
|
8
|
|
Closing
|
22
|
|
Closing Actions
|
22
|
|
Closing Conditions
|
20
|
|
Closing Date
|
22
|
|
Closing Memorandum
|
24
|
|
Code
|
61
|
|
Common Stock
|
44
|
|
Company Intellectual Property
|
31
|
|
Company IP Registrations
|
30
|
|
Compliance Case
|
61
|
|
Consideration
|
8
|
|
Consideration Shares
|
9
|
|
Continued Intra-Group Agreements
|
19
|
|
Danish FIC Clearance
|
21
|
|
Data Room
|
40
|
|
Data Room Documents
|
40
|
|
De Minimis Amount
|
42
|
|
Deductible Amount
|
42
|
|
Disclosure Schedule
|
25
|
|
Discontinued Intra-Group Agreements
|
19
|
|
DKK
|
61
|
|
Effective Date
|
7
|
|
Effective Date Balance Sheet
|
10
|
|
Effective Date Cash
|
9
|
|
Effective Date Financial Debt
|
9
|
|
Effective Date Working Capital
|
9
|
|
Employee Benefits
|
36
|
|
Encumbrance
|
7
|
|
Environmental Law
|
61
|
|
Estimated Consideration
|
8
|
|
EUR
|
62
|
|
Exchange Act
|
45
|
|
Exchange Rate
|
62
|
|
Fair Market Value Equivalent of the Consideration Shares
|
8
|
|
Fairly Disclosed
|
40
|
|
FES
|
4
|
|
FES Shares
|
4
|
|
Final Effective Date Balance Sheet
|
13
|
|
Financial Statements
|
27
|
|
Fundamental Buyer Warranties
|
46
|
|
Fundamental Warranties
|
43
|
|
Fundamental Warranty Cap
|
43
|
|
Fundamental Warranty Cap Cash Portion
|
43
|
|
Fundamental Warranty Cap Share Portion
|
43
|
|
German FIC Clearance
|
20
|
|
Hazardous Substances
|
62
|
|
HGB
|
62
|
|
HGB Financial Statements
|
16
|
|
Indemnifiable Tax
|
62
|
|
Information Technology Systems
|
31
|
|
Insurance Policies
|
33
|
|
Intellectual Property
|
30
|
|
Investor Entry
|
49
|
|
IP Transfer Earn-out
|
49
|
|
Key Employees
|
36
|
|
Knowledge of Seller
|
25
|
|
Laws
|
62
|
|
Leased Real Property
|
29
|
|
Leaving Function Holders
|
19
|
|
Loss Compensation Amount
|
17
|
|
Losses
|
38
|
|
Material Adverse Effect
|
63
|
|
Material Contracts
|
28
|
|
|
|
Maximum Value Equivalent of the Consideration Shares
|
9
|
|
Neutral Expert
|
11
|
|
Notice
|
57
|
|
Owned IP Rights
|
30
|
|
Owned Real Property
|
29
|
|
Parties
|
4
|
|
Party
|
4
|
|
Pension Commitments
|
36
|
|
Permits
|
33
|
|
Person
|
63
|
|
PLTA
|
15
|
|
PLTA Termination Agreement
|
16
|
|
PLTA Termination Resolutions
|
16
|
|
Preferred Stock
|
45
|
|
Preliminary Cash Consideration
|
8
|
|
Preliminary Consideration
|
8
|
|
Product Safety Law
|
63
|
|
Profit Transfer Amount
|
17
|
|
Property Lease Agreement
|
19
|
|
PWC
|
11
|
|
Real Property
|
29
|
|
Relevant Tax Matter
|
63
|
|
Retained Portion of the SHL 1 Receivable
|
17
|
|
Scheduled Closing Date
|
22
|
|
Seller
|
4
|
|
Seller Group
|
63
|
|
Seller Group Company
|
63
|
|
Seller Warranties
|
25
|
|
Seller’s Account
|
15
|
|
Seller’s Knowledge
|
25
|
|
Seller’s Securities
|
18
|
|
SerEnergy
|
4
|
|
SerEnergy Shares
|
4
|
|
SerEnergy Subsidiaries
|
5
|
|
Share Consideration
|
8
|
|
Shareholder Loans
|
5
|
|
Shares
|
4
|
|
SHL Agreements
|
5
|
|
SHL Receivables
|
5, 63
|
|
SHL Receivables Purchase Price
|
14
|
|
SHL Receivables Sale and Transfer Agreement
|
23
|
|
Short Fiscal Year
|
15
|
|
Signing Date
|
63
|
|
StGB
|
63
|
|
Subsidiary Interest
|
5
|
|
Subsidies
|
35
|
|
Target Companies
|
4
|
|
Target Group
|
5
|
|
Target Group Companies
|
5
|
|
Target Group Company
|
5
|
|
Target Working Capital
|
10
|
|
Tax Benefits
|
52
|
|
Tax Disclosure Schedule
|
51
|
|
Tax Indemnification Claim
|
51
|
|
Tax or Taxes
|
63
|
|
Tax Refund
|
64
|
|
Tax Representations
|
51
|
|
Tax Returns
|
51
|
|
Taxing Authority
|
64
|
|
Third Party Claim
|
41
|
|
Transactions
|
5
|
|
Transfer Conditions
|
7
|
|
Transitional Services Agreement
|
19
|
|
VAT
|
64
|
|
Working Capital Adjustment
|
8
|
|
ZPO
|
64
|
|
|
|
Exhibit (E)
|
Subsidiaries
|
5
|
|
Exhibit (G)
|
SHL Agreements
|
5
|
|
Exhibit A
|
Definitions Cross-Reference Table
|
6
|
|
Exhibit B
|
List of Exhibits
|
6
|
|
Exhibit C
|
List of sections of the Disclosure Schedule
|
6
|
|
Exhibit 6.1.7
|
Limitations to Sell Consideration Shares
|
9
|
|
Exhibit 6.1.8
|
Sample Calculations Consideration
|
9
|
|
Exhibit 6.2
|
Definition of Effective Date Cash, Effective Date Financial Debt, Effective Date Working Capital
|
9
|
|
Exhibit 6.3.1b)aa)
|
Accounting Policies
|
10
|
|
Exhibit 9.1.4
|
PLTA Termination Agreement
|
16
|
|
Exhibit 9.1.5
|
PLTA Termination Resolutions
|
16
|
|
Exhibit 10
|
Seller’s Securities
|
18
|
|
Exhibit 11
|
Continued Intra-Group Agreements
|
19
|
|
Exhibit 12.1
|
Leaving Function Holders
|
19
|
|
Exhibit 12.2
|
Managing Directors
|
19
|
|
Exhibit 13a)
|
Transitional Services Agreement
|
19
|
|
Exhibit 13b)
|
Property Lease Agreement
|
19
|
|
Exhibit 14
|
Stand-alone business conduct
|
20
|
|
Exhibit 16.2i)
|
SHL Receivables Sale and Transfer Agreement
|
23
|
|
Exhibit 16.2m)
|
PoA Seller Voting Rights
|
24
|
|
Exhibit 16.3.2
|
Closing Memorandum
|
24
|
|
Exhibit 17.1.1
|
Disclosure Schedule
|
25
|
|
Exhibit 17.10
|
Interim financial results YTD 2021
|
27
|
|
Exhibit 26
|
Tax Disclosure Schedule
|
51
|
|
Exclusivity and Non-compete Agreements
|
28
|
|
|
Section 17.11.4
|
Related Party Agreements
|
29
|
|
Section 17.12.2
|
Real Property
|
29
|
|
Section 17.12.3
|
Encumbrances
|
29
|
|
Section 17.12.5
|
Non-Transferred Material Assets
|
29
|
|
Section 17.13
|
Business Securities
|
30
|
|
Section 17.14.2
|
Company IP Registrations
|
30
|
|
Section 17.15
|
IT Security Breaches
|
32
|
|
Section 17.16
|
Insurance Policies
|
33
|
|
Section 17.17
|
Actions
|
33
|
|
Section 17.18.2
|
Permits
|
33
|
|
Section 17.18.3
|
Sanctions
|
34
|
|
Section 17.20.1
|
Compliance with Environmental Laws
|
35
|
|
Section 17.20.2
|
Hazardous Substances
|
35
|
|
Section 17.21
|
Subsidies
|
35
|
|
Section 17.24.1
|
List of Employees and Members of Corporate Bodies
|
36
|
|
Section 17.24.3
|
Key Employees
|
36
|
68/68
Project Fenway
Execution Version
Exhibit 6.1.7
Conditions for sale of the Consideration Shares by Seller
|
|
1. |
All terms not defined herein shall have the meaning set forth in the Share Purchase Agreement.
|
|
|
2. |
The Buyer agrees that it shall file a registration statement or amend an existing registration statement on Form S-1 (together, the “Registration Statement”)
registering the resale of all of the Consideration Shares, within thirty (30) calendar days following the Closing Date; provided, in the event that Buyer needs additional time (i) to obtain auditor consents, (ii) to prepare financial
statements or (iii) to otherwise prepare the Registration Statement, due to changes in Law or stock exchange regulations or guidance from the SEC that, in each case, become effective or are issued after the Closing, Buyer shall be
permitted to delay the filing of such Registration Statement but shall use commercially reasonable efforts to submit the Registration Statement as promptly as practicable thereafter. Buyer shall use commercially reasonable efforts to
have the Registration Statement declared effective as soon as practicable thereafter, and in any event within 60 (sixty) days following the filing date. The Buyer and the Seller agree that neither the timing of the SEC determination
that the Registration Statement will not be subject to review nor the timing of the effectiveness of the Registration Statement is controlled by the Buyer, and the Buyer shall not be subject to any liability in the event that the SEC
review process takes longer than 60 (sixty) calendar days, provided that the Buyer has made its commercially reasonable efforts to have the Registration Statement declared effective within 60 (sixty) calendar days following the filing
date.
|
|
|
3. |
In the event that the Registration Statement is on or near the Buyer’s fiscal quarter end, the Buyer and the Seller understand that filing the Registration
Statement may not be able to be done within thirty (30) calendar days of the Closing Date, provided that the Buyer shall submit the Registration Statement as promptly as practicable, but in no event later than sixty (60) calendar days
after the Closing Date (subject to the proviso in the first sentence of Section 2 above).
|
|
|
4. |
The Buyer agrees that the Buyer will cause such Registration Statement or another registration statement (which may be a “shelf” registration statement) for the
resale of all of the Consideration Shares to remain effective until the earlier of (i) one year from the issuance of the Consideration Shares, (ii) the date on which the Seller ceases to hold any of the Consideration Shares covered by
such Registration Statement, or (iii) on the first date on which the Seller can sell all of its Consideration Shares under Rule 144 of the Securities Act of 1933, as amended (the “Securities Act”) without limitation as to the manner of
sale or the amount of such securities that may be sold. The Seller agrees to disclose its beneficial ownership, as determined in accordance with Rule 13d-3 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), of the
Consideration Shares to the Buyer upon request to assist the Buyer in making the determination described above. Seller shall furnish in writing to the Buyer such information regarding the Seller, the securities of the Buyer held by the
Seller and the intended method of disposition of the Consideration Shares as shall be reasonably requested by the Buyer to effect the registration of the Consideration Shares, and shall execute such documents in connection with such
registration as the Buyer may reasonably request that are customary of a selling stockholder in similar situations. If the SEC prevents the Buyer from including any or all of the Consideration Shares proposed to be registered for resale
under the Registration Statement due to limitations on the use of Rule 415 of the Securities Act for the resale of the Buyer’s securities by Seller, the Buyer shall use reasonable best efforts to register such Consideration Shares as
promptly as practicable thereafter when permitted.
|
Project Fenway
Execution Version
|
|
5. |
The Seller agrees to indemnify and hold the Buyer, and the officers, employees, directors, partners, members, attorneys and agents of the Buyer, each person, if
any, who controls the Buyer within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, and each affiliate of the Buyer within the meaning of Rule 405 under the Securities Act (collectively, the
“Buyer Indemnified Parties”), harmless against any and all losses, claims, damages and liabilities (including any out-of-pocket legal or other expenses reasonably incurred in connection with defending or investigating any such action or
claim) (collectively, “Losses”) incurred by the Buyer Indemnified Parties directly that are caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any other registration statement which covers the Consideration Shares (including, in each case, the prospectus contained therein) or any amendment thereof
(including the prospectus contained therein) or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made), not misleading, to the extent insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Buyer by the Seller expressly for use therein.
Notwithstanding the foregoing, the Seller’s indemnification obligations shall not apply to amounts paid in settlement of any Losses if such settlement is effected without the prior written consent of the Seller (which consent shall not
be unreasonably withheld, delayed or conditioned).
|
|
|
6. |
The Buyer agrees to indemnify and hold the Seller, each person, if any, who controls Seller within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act, and each affiliate of the Seller within the meaning of Rule 405 under the Securities Act (collectively, the “Seller Indemnified Parties”), harmless against any and all Losses incurred by the Seller Indemnified
Parties directly that are caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any other registration statement which covers the Consideration Shares (including, in
each case, the prospectus contained therein) or any amendment thereof (including the prospectus contained therein) or caused by any omission or alleged omission to state therein a material fact necessary in order to make the statements
therein (in the case of a prospectus, in the light of the circumstances under which they were made), not misleading, except to the extent insofar as the same are caused by or contained in any information or affidavit so furnished in writing to the Buyer by the Seller expressly for use therein. Notwithstanding the foregoing, the Buyer’s indemnification obligations shall not apply to amounts
paid in settlement of any Losses if such settlement is effected without the prior written consent of the Buyer (which consent shall not be unreasonably withheld, delayed or conditioned).
|
Project Fenway
Execution Version
|
|
7. |
The Buyer may delay filing or suspend the use of any such registration statement if it determines that in order for the registration statement to not contain a
material misstatement or omission, an amendment thereto would be needed, or if such filing or use could materially affect a bona fide business or financing transaction of the Buyer or would require premature disclosure of information
that could materially adversely affect the Buyer (each such circumstance, a “Suspension Event”); provided, that the Buyer shall use commercially reasonable efforts to make such registration statement available for the sale by the Seller
of such securities as soon as practicable thereafter. Upon receipt of any written notice from the Buyer of the happening of any Suspension Event during the period that the Registration Statement is effective or if as a result of a
Suspension Event the Registration Statement or related prospectus contains any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made (in the case of the prospectus) not misleading, the Seller agrees that it will (i) immediately discontinue offers and sales of the Consideration Shares under the Registration Statement
until the Seller receives (A) (x) copies of a supplemental or amended prospectus that corrects the misstatement(s) or omission(s) referred to above and (y) notice that any post-effective amendment has become effective or (B) notice from
the Seller that it may resume such offers and sales, and (ii) maintain the confidentiality of any information included in such written notice delivered by the Buyer unless otherwise required by applicable law. If so directed by the
Buyer, the Seller will deliver to the Buyer or destroy all copies of the prospectus covering the Consideration Shares in the Seller’s possession; provided, however, that this obligation to deliver or destroy all copies of the prospectus
covering the Consideration Shares shall not apply to (i) the extent the Seller is required to retain a copy of such prospectus (A) in order to comply with applicable legal, regulatory, self-regulatory or professional requirements or (B)
in accordance with a bona fide preexisting document retention policy or (ii) copies stored electronically on archival servers as a result of automatic data back-up.
|
| 8. |
The Buyer shall bear all expenses in connection with the filing of the Registration Statement. It is acknowledged by the Seller that the Seller shall bear all
incremental selling expenses relating to the sale of Consideration Shares, such as all underwriters’ commissions and discounts, brokerage fees, underwriter marketing costs and all reasonable fees and expenses of any legal counsel
representing the Seller.
|
Exhibit 9.1.5 – PLTA Termination Resolutions
|
Execution Version
Gesellschafterbeschluss
fischer eco solutions GmbH
|
|
I.
|
|
Präambel
|
|
Das Stammkapital der fischer eco solutions GmbH mit Sitz in Achern, Geschäftsanschrift Gewerbegebiet 7, 77855 Achern,
eingetragen im Handelsregister des Amtsgerichts Mannheim unter HRB 706920 (die „Gesellschaft“) beträgt EUR 1.000.000,00 (in
Worten: eine Million Euro) und ist eingeteilt in drei Geschäftsanteile im Nennbetrag von EUR 1,00, EUR 949.999,00 sowie von EUR 50.000,00. Die F.E.R. fischer Edelstahlrohre GmbH mit Sitz in Achern, eingetragen im Handelsregister des Amtsgerichts Mannheim unter HRB 220198 (die
„Alleingesellschafterin“) hält sämtliche dieser Geschäftsanteile und ist somit die Alleingesellschafterin der Gesellschaft.
|
|
Die Gesellschaft und die Alleingesellschafterin haben am 19. Dezember 2013 einen Ergebnisabführungsvertrag geschlossen (der „EAV“).
|
|
Die Alleingesellschafterin und die Gesellschaft beabsichtigen einen Vertrag zur Aufhebung des EAV (der „Aufhebungsvertrag“) zu
schließen, der im wesentlichen Anlage 1 entspricht.
|
|
II.
|
|
Gesellschafterbeschlüsse
|
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Unter Verzicht auf die Einhaltung aller durch Gesetz und durch Gesellschaftsvertrag für die Einberufung, Vorbereitung und Durchführung
von Gesellschafterversammlungen vorgesehenen Form- und Fristvorschriften hält der [Erschienene zu 1)] hiermit namens der Alleingesellschafterin eine
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außerordentliche Gesellschafterversammlung der Gesellschaft
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ab und beschließt was folgt:
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Der Aufhebung des EAV durch Abschluss des Aufhebungsvertrages wird zugestimmt.
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Weitere Beschlüsse werden nicht gefasst. Die Gesellschafterversammlung der Gesellschaft ist beendet.
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Execution Version
Gesellschafterbeschluss
fischer eco solutions GmbH
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III.
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Hinweise des Notars
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Der Notar hat insbesondere darauf hingewiesen,
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- dass der Notar selbst nicht steuerlich – insbesondere nicht zu den steuerlichen und wirtschaftlichen Auswirkungen des Aufhebungsvertrags und des Ergebnisabführungsvertrags sowie dieser Urkunde und ihres Vollzuges – beraten
hat, sondern den Beteiligten empfohlen hat, sich durch einen Wirtschaftsprüfer oder Steuerberater beraten zu lassen.
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