Indiana
|
1-6651
|
35-1160484
|
||
(State or other jurisdiction
of incorporation)
|
(Commission File Number)
|
(IRS Employer Identification No.)
|
1069 State Route 46 East
Batesville, Indiana
|
47006-8835
|
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(Address of principal executive offices)
|
(Zip Code)
|
Not applicable
|
(Former name or former address, if changed since last report)
|
o
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
o
|
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
o
|
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
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o
|
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
(d)
|
Exhibits
|
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1.1
|
Stock Purchase Agreement, dated as of June 13, 2014
|
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99.1
|
Press release, dated June 16, 2014, issued by the Corporation
|
HILL-ROM HOLDINGS, INC.
|
||||
Date: June 16, 2014
|
By:
|
/s/ Susan Lichtenstein
|
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Susan Lichtenstein
|
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Senior Vice President of
|
||||
Corporate Affairs,
|
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Chief Legal Officer and Secretary
|
Share Purchase and Transfer Agreement
- Project Joker -
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Preamble
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27
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(1)
|
TRUMPF International Beteiligungs-GmbH
, having its registered seat in Ditzingen, Germany, registered in the commercial register of the local court of Stuttgart under no. HRB 200753, with registered business address at Johann-Maus-Straße 2, 71254 Ditzingen, Germany (the “
Seller
”);
|
(2)
|
Hill-Rom Holdings Netherlands B.V.
, having its registered seat in Amsterdam, The Netherlands, registered in the Trade Register of the Netherlands (
Kamer van Koophandel
) under no. 56079362, with registered business address at Gustav Mahlerplein, 93-95 Symphony Tower, 1082 MS Amsterdam, The Netherlands (the “
Purchaser
”);
|
(3)
|
HR Europe B.V.
, having its registered seat in Amsterdam, The Netherlands, registered in the Trade Register of the Netherlands (
Kamer van Koophandel
) under no. 53660404, with registered business address at Gustav Mahlerplein, 93-95 Symphony Tower, 1082 MS Amsterdam, The Netherlands (the “
Co-Purchaser
”); and
|
(4)
|
Hill-Rom Holdings, Inc.,
with business address at 1069 State Route 46 East, Batesville, IN 47006, USA, a company existing under the laws of the State of Indiana (the “
Purchaser Guarantor
”; collectively with the Purchaser, the Co-Purchaser and the Seller the “
Parties”
, each a “
Party
”).
|
(A)
|
The Seller is within the TRUMPF Group the intermediary holding company of
inter alia
the sub group Medical Technology.
|
(B)
|
The Purchaser is a private limited liability company (
besloten vennootschap met beperkte aansprakelijkheid
) with seat in Amsterdam. The Purchaser is a Finance Holding, indirectly wholly owned by the Purchaser Guarantor.
|
(C)
|
The Co-Purchaser is a private limited liability company (
besloten vennootschap met beperkte aansprakelijkheid
) with seat in Amsterdam. The Co-Purchaser is a Finance Holding, indirectly wholly owned by the Purchaser Guarantor.
|
(D)
|
The Purchaser Guarantor is a corporation under the laws of Indiana, USA, with seat in Batesville.
|
(E)
|
The Seller intends to sell and transfer to the Purchaser its activities in the area of medical technology for the consideration and subject to the terms and conditions set forth in this Agreement. The Purchaser intends to accept such sales and transfers.
|
(F)
|
The Purchaser Guarantor is the ultimate shareholder of the Purchaser and has agreed to guarantee the performance of the obligations of the Purchaser set forth in this Agreement.
|
Definitions
|
Corporate Structure
|
Target Companies
|
|
The
following entities will be referred to as the “
Target Companies
”:
|
|
a)
|
TRUMPF Medizin Systeme GmbH + Co. KG, having its registered seat in Saalfeld, Germany, registered in the commercial register of the local court of Jena under no. HRA 502248, with registered business address at Carl-Zeiss-Straße 7-9, 07318 Saalfeld, Germany (“
TM
”);
|
|
b)
|
TRUMPF Medizin Systeme Beteiligungs-GmbH, having its registered seat in Puchheim, Germany, registered in the commercial register of the local court of Munich under no. HRB 139265, with registered business address at Benzstraße 26, 82178 Puchheim, Germany (“
TMK
”);
|
|
c)
|
TRUMPF Medizinsysteme Österreich GmbH,
a limited liability company
incorporated under the laws of Austria, registered in the company register (
Firmenbuch
) of the regional court (
Landesgericht
) of Linz under FN 287115d, with corporate seat in Linz and registered business address at Industriepark 24, 4061 Pasching, Austria (“
TATM
”);
|
|
d)
|
TRUMPF Medical Systems Inc.,
a corporation
incorporated under the laws of the U.S. state of Delaware, registered with the Division of Corporation of the U.S. state of Delaware under file number 3268842, with registered office at 1209 Orange Street, Wilmington, Delaware, USA (“
TUSM
”); and
|
|
e)
|
TRUMPF Systèmes Médicaux SAS, a simplified joint-stock company (
société par actions simplifiée
) incorporated under the laws of France, registered with the trade and companies register of Clermont-Ferrand under identification number 855 201 455 RCS CLERMONT-FERRAND, with registered office at rue Claude Burdin, ZAC de Claveloux CS 60412, 63017 Clermont-Ferrand, France (“
TFRM
”).
|
Shares
|
a)
|
The fixed capital (
Festkapital
) of TM is EUR 7,500,000.00 which is identical with the limited partner contribution (
Kommanditeinlage
) of the Seller (the limited partner contribution together with any partners accounts of the Seller (including inter alia the so called reserve account (
Rücklagenkonto
), loan account (
Darlehenskonto
) and loss carried forward account (
Verlustkonto
) which show a positive or negative balance) forming the “
TM Limited Partnership Interest
”).
|
|
b)
|
The registered share capital of TMK amounts to EUR 25,000.00 and is represented by one share in the nominal amount of EUR 25,000.00 which is held by the Seller (the “
TMK Share
”). The Seller is also listed as the holder of this share in the most recent list of shareholders of TMK which is recorded in the commercial register, dated 24/30 June 2001.
|
|
c)
|
The registered share capital of TATM amounts to EUR 35,000.00 and is represented by one share held by the Seller (the “
TATM Share
”).
|
|
d)
|
The subscribed capital of TUSM amounts to USD 20.00 and is divided into 2,000 shares with a par value of USD 0.01 each, which are all held by the Seller (the “
TUSM Share
”).
|
|
e)
|
The total registered share capital of TFRM amounts to EUR 510,000.00 and is divided into 17,000 shares which are all held by the Seller (the “
TFRM Share
”).
|
General partner’s interest of TMK in TM
|
Subsidiaries of TM
|
United Kingdom
|
People’s Republic of China
|
Italy
|
Australia
|
Med Group; Participation Companies
|
Business
|
Intra-Group Financing Agreements, TRUMPF Group Securities
|
2.7.1
|
TRUMPF has granted to certain of the Med Companies financing loans as listed in
Schedule 2.7.1
(the “
Intra-Group Financing Agreements
”).
|
2.7.2
|
As of the date of this Agreement, TRUMPF or the Seller have granted the comfort letters, guarantees, indemnities or other securities listed in
Schedule 2.7.2
in favour of the Med Companies (the “
TRUMPF Group Securities
”).
|
2.7.3
|
The Seller has granted to certain of the Participation Companies financing loans as listed in
Schedule 2.7.3
.
|
Sale and Transfer
|
Shares
|
Sale of the Shares
|
|
a)
|
Sale to the Purchaser
|
|
aa)
|
a portion of ninety percent (90%) of the TM Limited Partnership Interest;
|
|
bb)
|
the TMK Share;
|
|
cc)
|
the TATM Share;
|
|
dd)
|
the TUSM Share; and
|
|
ee)
|
the TFRM Share.
|
|
b)
|
Sale to the Co-Purchaser
|
Transfer of the Shares
|
|
a)
|
TM Limited Partnership Interest
|
|
aa)
|
the portion of ninety percent (90%) of the TM Limited Partnership Interest referred to in Clause 3.1.1a)aa) to the Purchaser, and the Purchaser hereby accepts such transfer; and
|
|
bb)
|
the portion of ten percent (10%) of the TM Limited Partnership Interest referred to in Clause 3.1.1b) to the Co-Purchaser, and the Co-Purchaser hereby accepts such transfer.
|
|
b)
|
TMK Share
|
|
c)
|
TATM Share
|
|
d)
|
TUSM Share
|
|
e)
|
TFRM Share
|
Ancillary rights
|
Priority of this Agreement
|
|
a)
|
The separate purchase and transfer agreements referred to in Clauses 3.1.2 (each a “
Share Transfer Agreement
”) are intended to implement the sale and transfer of the respective Shares contemplated by this Agreement and not to constitute or create additional obligations for any Party. In case of a conflict between this Agreement and a Share Transfer Agreement, this Agreement will prevail.
|
|
b)
|
Except for its claim regarding the transfer of the respective Shares, the Purchaser and the Co-Purchaser will not, and will ensure that no directly or indirectly wholly owned Affiliate of the Purchaser Guarantor will, exercise any right or assert any claim arising from or in connection with the Share Transfer Agreements. The Purchaser will indemnify the Seller with regard to any such right or claim which may be exercised or asserted by the Purchaser, the Co-Purchaser or any directly or indirectly wholly owned Affiliate of the Purchaser Guarantor vis-à-vis the Seller, TRUMPF or any Affiliate of TRUMPF.
|
|
c)
|
Except for its claim regarding the transfer of the portion of ten percent (10%) of the TM Limited Partnership Interest referred to in Clause 3.1.1b), the Co-Purchaser will not exercise any right or assert any claim arising from or in connection with this Agreement. The Purchaser will indemnify the Seller with regard to any such right or claim which may be exercised or asserted by the Co-Purchaser vis-à-vis the Seller, TRUMPF or any Affiliate of TRUMPF.
|
|
d)
|
The Seller will not, and will ensure that TRUMPF or any Affiliate of TRUMPF will not, exercise any right or assert any claim arising from or in connection with the Share Transfer Agreements vis-à-vis the Purchaser, the Co-Purchaser or any directly or indirectly wholly owned Affiliate of the Purchaser Guarantor. The Seller will indemnify the Purchaser, the Co-Purchaser or any directly or indirectly wholly owned Affiliate of the Purchaser Guarantor with regard to any such right or claim which may be exercised or asserted by the Seller vis-à-vis the Purchaser or any of its subsidiaries.
|
Closing Intra-Group Payables
|
Status of payables under Intra-Group Financing Agreements; Definition of Closing Intra-Group Payables
|
Sale
|
Assignment
|
Discharging effect
|
Consents
|
4
.
|
Total Purchase Price, payments
|
Share Purchase Price
|
|
a)
|
a fixed amount of EUR 187,000,000.00 (in words: one hundred and eighty seven million Euro) (the “
Base Amount
”);
|
|
b)
|
minus
the Closing Financial Debt;
|
|
c)
|
plus
the Closing Cash;
|
|
d)
|
plus
or
minus
any amount by which the Closing Working Capital is higher or lower than EUR 64,500,000.00 (in words: sixty-four million and five hundred thousand Euro);
|
Closing Intra-Group Payables Purchase Price
|
Estimations
|
On the date of this Agreement, the Parties estimate that:
|
|
a)
|
the Closing Cash will amount to EUR 4,300,000.00 (the “
Estimated Closing Cash
”);
|
|
b)
|
the Closing Financial Debt will amount to EUR 98,000,000.00 (the “
Estimated Closing Financial Debt
”); and
|
|
c)
|
the Closing Intra-Group Payables will amount to the sum of EUR 66,600,000,00 and USD 14,500,000.00 (the “
Estimated Closing Intra-Group Payables
”).
|
If deemed appropriate by the Seller, the estimations set out in Clause 4.3.1 will be adjusted prior to Closing. In that case, the Seller will in good faith calculate new estimations and provide the new figures including details of their calculation to the Purchaser no later than ten (10) Business Days prior to the date when Closing will take place. For purposes of this Agreement, the figures set out in Clause 4.3.1 will be deemed replaced by the respective new figures.
|
Payment of the Preliminary Total Purchase Price
|
|
a)
|
the Base Amount;
|
|
b)
|
plus
the Estimated Closing Cash;
|
|
c)
|
minus
the Estimated Closing Financial Debt;
|
|
d)
|
plus
the Estimated Closing Intra-Group Payables.
|
Final determination of the Total Purchase Price
|
Adjustment Amount
|
|
a)
|
the Total Purchase Price is higher than the Preliminary Total Purchase Price, the Purchaser will pay to the Seller an amount equal to such excess together with interest accrued thereon pursuant to Clause 4.5.3; and
|
|
b)
|
the Total Purchase Price is lower than the Preliminary Total Purchase Price, the Seller will pay to the Purchaser an amount equal to such shortfall together with interest accrued thereon pursuant to Clause 4.5.3
|
Due date for payment of Adjustment Amount
|
|
a)
|
If no Dispute Report is issued, the full Adjustment Amount and the interest accrued thereon will become due on the sixth Business Day after the Closing Accounts have become final and binding on the Parties in accordance with Clause 5.6.1.
|
|
b)
|
If a Dispute Report is issued,
|
|
aa)
|
such portion of the Adjustment Amount which can be calculated without taking the Disputed Items into consideration will, together with the interest accrued on such amount, become due on the sixth Business Day after the Draft Closing Accounts have become partially final and binding on the Parties in accordance with Clause 5.4.1,
|
|
bb)
|
upon agreement on any Disputed Items between the Seller and the Purchaser, such further portion of the Adjustment Amount which can be calculated without taking any still unresolved Disputed Items, if any, into consideration will, together with the interest accrued on such amount, become due on the sixth Business Day after the Parties have agreed on or the Neutral Expert has determined the relevant Disputed Item, as the case may be, and
|
|
cc)
|
the remaining portion of the Adjustment Amount, if any, and the interest accrued thereon will become due on the sixth Business Day after the Closing Accounts have become final and binding on the Parties in accordance with Clause 5.6.2 or Clause 5.6.3, as the case may be.
|
Interest on Adjustment Amount
|
|
a)
|
the due date for payment of the (i) Adjustment Amount pursuant to Clause 4.5.2a) or (ii) relevant portion of the Adjustment Amount pursuant to Clause 4.5.2b), as the case may be, and
|
|
b)
|
the date of the actual receipt by the respective Party of the (i) Adjustment Amount or (ii) relevant portion of the Adjustment Amount, as the case may be,
|
General rules for payments
|
Modes for payment
|
Bank accounts
|
|
a)
|
Seller
|
Account Holder:
|
TRUMPF International Beteiligungs-GmbH
|
Bank:
|
BW-Bank / Stuttgart
|
BIC (SWIFT):
|
SOLADEST600
|
IBAN:
|
DE44 6005 0101 0002 9294 40
|
Account Holder:
|
TRUMPF International Beteiligungs-GmbH
|
Bank:
|
BW-Bank / Stuttgart
|
BIC (SWIFT):
|
SOLADEST600
|
IBAN:
|
DE56 6005 0101 7482 1136 42
|
|
b)
|
Purchaser
|
Account Holder:
|
Hill-Rom Holdings Netherlands B.V.
|
Bank:
|
JPMorgan Chase, Amsterdam
|
BIC (SWIFT):
|
CHASNL2X
|
IBAN:
|
NL26CHAS0209980168
|
Payment confirmations
|
Default interest
|
|
a)
|
If any Party fails to pay any amount payable by it under or in connection with this Agreement on its due date, such Party will be in default from the respective due date without further notice being required. Interest will accrue on the unpaid amount as provided for by Section 288 German Civil Code (
BGB
).
|
|
b)
|
Any interest accruing pursuant to this Clause 4.6.4 will be payable on demand by the Party that is entitled to such interest.
|
Calculation of interest
|
Impact of payments on the Total Purchase Price
|
No netting
|
|
a)
|
set-off any rights and claims it may have against the Seller, TRUMPF or any Affiliate of TRUMPF against any rights or claims which the Seller, TRUMPF or any Affiliate of TRUMPF may have under or in connection with this Agreement or otherwise, or
|
|
b)
|
refuse to perform any obligation it may have under or in connection with this Agreement on the grounds that it has a right of retention (
Zurückbehaltungsrecht
),
|
VAT
|
Closing Accounts
|
Form and Content
|
Accounting Policies
|
The Closing Accounts will be prepared and consolidated in accordance with:
|
|
a)
|
the accounting and consolidation principles generally accepted in Germany under the German Commercial Code (
Handelsgesetzbuch
), applied consistently with past practice;
|
|
b)
|
to the extent not inconsistent with Sub-Clause a) , the policies, procedures and practices set forth in
Schedule 5.2.1
b)
;
|
|
c)
|
to the extent not inconsistent with Sub-Clause a) and b), the accounting and consolidation policies, procedures and practices adopted in the Reference Consolidated Financial Statements, applied consistently with past practice.
|
The Closing Accounts will be prepared on a going-concern basis disregarding the transactions contemplated in this Agreement.
|
The individual accounts (the “
Individual Accounts
”) of each Med Company, which will consist of the respective group reporting package (HBII) established for the consolidation into the Closing Accounts on the basis of financial statements drawn-up in accordance with the applicable local standards and requirements (HBI), will be prepared in accordance with:
|
|
a)
|
the accounting principles generally accepted in Germany under the German Commercial Code (
Handelsgesetzbuch
), applied consistently with past practice;
|
|
b)
|
to the extent not inconsistent with Sub-Clause a), the policies, procedures and practices set forth in
Schedule 5.2.1b)
;
|
|
c)
|
to the extent not inconsistent with Sub-Clauses a) and b) , the accounting and consolidation policies, procedures and practices adopted in the Financial Statements, applied consistently with past practice.
|
The Individual Accounts of each Med Company which will be consolidated into the Closing Accounts will be prepared on a going-concern basis disregarding the transactions contemplated in this Agreement.
|
The applicable currency exchange rate for the amounts set forth in the Individual Accounts in currencies other than Euro will be the mean between the respective offer rate and selling rate as published by the Deutsche Bank AG website “https://www.db-markets.com/#fx_rates/db_fixings” for the Business Day immediately preceding the Closing Date.
|
Preparation
|
The Med Companies will prepare a draft of the Individual Accounts as of the Closing Date within twelve (12) Business Days after the Closing Date and transmit such Individual Accounts to the local auditors determined by the Seller (the “
Local Auditors
”). The Seller will ensure that the Local Auditors will audit and, in the case of TMK and TATM, review the Individual Accounts within twelve (12) Business Days following receipt of the Individual Accounts and the Purchaser will ensure that the Med Companies will provide all reasonable assistance necessary for the audit and review of the Individual Accounts, in particular make available all appropriate documentation and allow all appropriate communication between the relevant Med Company’s employees and the Local Auditors. The Local Auditors will present to the Seller and, based on a non-reliance letter, to the Purchaser the Individual Accounts together with their opinion without undue delay after the lapse of the audit and review period and their opinion will disclose any amendments to the Individual Accounts the Local Auditors believe to be required.
|
Following the receipt of all Individual Accounts with the respective opinions from all Local Auditors, the Seller will prepare a draft of the Closing Accounts (the “
Draft Closing Accounts
”) within twelve (12) Business Days and submit the Draft Closing Accounts to the Purchaser and Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft. The Seller will ensure that Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft will audit the Draft Closing Accounts within twelve (12) Business Days following receipt of the draft and the Purchaser will ensure that the Med Companies will provide all reasonable assistance necessary for the audit of the Draft Closing Accounts, in particular make available all appropriate documentation and allow all appropriate communication between the relevant Med Company’s employees and Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft. Immediately following the receipt of the audited Draft Closing Accounts, the Seller will submit the audited Draft Closing Accounts together with the Seller’s ERP position plan
1
and the Individual Accounts including the respective Local Auditors’ opinions to the Purchaser.
|
1
|
ERP position plan means the accounting details of relevant balance sheet items prepared according to past practice.
|
Dispute Resolution
|
Dispute Period and Dispute Report
|
Appointment of Neutral Expert
|
|
a)
|
The Seller and the Purchaser will use their best efforts to resolve any Disputed Item within twenty (20) Business Days following the receipt by the Seller of the Dispute Report. Any Disputed Item not resolved within such period will be submitted by the Seller or the Purchaser to an expert arbitrator (
Schiedsgutachter
) (the “
Neutral Expert
”). The Parties agree that Warth & Klein Grant Thornton GmbH & Co. KG Wirtschaftsprüfungsgesellschaft, Frankfurt am Main,
will
be appointed as Neutral Expert. If Warth & Klein Grant Thornton GmbH & Co. KG Wirtschaftsprüfungsgesellschaft becomes unavailable, the Seller and the Purchaser will agree on another accounting firm of international standing to be appointed as Neutral Expert. If the Seller and the Purchaser are unable to agree on such accounting firm within fifteen (15) Business Days after it appears that Warth & Klein Grant Thornton GmbH & Co. KG Wirtschaftsprüfungsgesellschaft becomes unavailable, the Neutral Expert will be appointed by the German Institute of Public Accountants (
Institut der Wirtschaftsprüfer in Deutschland e.V.
).
|
|
b)
|
The Neutral Expert will determine the Disputed Items by way of a binding expert opinion pursuant to section 317 (1) German Civil Code (
BGB
). In rendering its decision, the Neutral Expert will consider only the Disputed Items and, with respect to each such Disputed Item, will stay within the range of the values allocated to it by the Purchaser and the Seller. The Seller and the Purchaser will co-operate with the Neutral Expert and comply with its reasonable requests made in connection with the carrying out of its duties. The Seller and the Purchaser will instruct the Neutral Expert to deliver to the Seller and the Purchaser as promptly as practicable its determination of the Disputed Items stating the reasons for its decision. The reasons will specifically address the controversial arguments brought forward by the Seller and the Purchaser with respect to each Disputed Item. Such determination of the Neutral Expert will be final and binding on the Parties but subject to the qualifications set forth in section 319 German Civil Code (
BGB
) or any obvious calculation errors.
|
|
c)
|
The costs and expenses of the Neutral Expert will be shared between the Seller and the Purchaser in proportion to their respective success and defeat as determined by the Neutral Expert.
|
Co-operation
|
Finalisation
|
5.6.1
|
if no Dispute Report is issued: upon the expiration of the Dispute Period or upon earlier confirmation of the Purchaser of its agreement with the Draft Closing Accounts;
|
5.6.2
|
if a Dispute Report is issued but the Seller and the Purchaser have resolved all Disputed Items without involving a Neutral Expert: upon such resolution in the form as amended by such resolution;
|
5.6.3
|
if a Neutral Expert has been involved: upon determination of the Disputed Items by the Neutral Expert in the form of such determination.
|
Fulfilment of the Closing Conditions
|
Closing Conditions
|
All merger control filings in the jurisdictions listed in
Schedule 6.1.1
where such merger control filings are mandatory have been made, all approvals by the competent merger control authorities in such jurisdictions have been obtained or are deemed to have been obtained and all applicable waiting periods have expired or otherwise terminated with respect to the transactions contemplated by this Agreement.
|
The TCNM Share has been validly transferred from TSI to TM, as evidenced by (i) the approval letter and the amended Certificate of Approval for the Establishment of Enterprise with Foreign Investment in China, each issued by Taicang Bureau of Commerce and (ii) the amended Business License of TCNM issued by Taicang Administration for Industry and Commerce.
|
Waiver of Closing Conditions
|
Save for restrictions under mandatory law (e.g., Section 41 (1) German Act Against Restraints of Competition (
Gesetz gegen Wettbewerbsbeschränkungen
)), the Parties are entitled to jointly waive the Closing Conditions in whole or in part by notice in writing or telefax to the acting notary expressly stating that the respective Closing Condition is being waived.
|
The waiver will have the effect of eliminating the Closing Condition as a requirement for the obligation to perform the relevant Closing Action and to effect the Closing, but will not limit or prejudice any rights or claims any Party may have due to the non-fulfilment of the Closing Condition.
|
Obligation to fulfil the Closing Conditions
|
Co-operation
|
Merger filings
|
|
a)
|
duly file the necessary notifications with the competent merger authorities immediately after the date of this Agreement, in no event later than ten (10) Business Days as from (and including) the date of this Agreement; and
|
|
b)
|
provide the Seller with copies of all communication with the relevant authorities without undue delay (
unverzüglich
).
|
Proceedings with Chinese authorities pertaining to the transfer of TCNM Share
|
Notifications
|
Period prior to Closing
|
Activities of the Med Companies
|
Between the date of this Agreement and the Closing, the Seller will ensure that each Med Company will carry on its business as a going concern in the ordinary course of business as carried out prior to the date of this Agreement.
|
Without prejudice to the generality of Clause 7.1.1, between the date of this Agreement and the Closing, the Seller will ensure that, unless in each case of this Clause 7.1 expressly permitted by or provided for in this Agreement, no Med Company will take any of the following actions without the prior consent of the Purchaser, which must not be unreasonably withheld:
|
|
a)
|
enter into or amend any agreement or incur any commitment other than agreements with suppliers and customers and other than agreements in the ordinary course of business which (i) is not capable of being terminated by the Med Company concerned without compensation at any time with six months’ notice or less or (ii) involves or may involve total annual expenditure in excess of EUR 200,000.00, exclusive of VAT, or (iii) would qualify as a Material Agreement according to Clause 10.14.1 a), e), f) and g) or terminate a Material Agreement according to Clause 10.14.1 c), d) and h) other than for cause;
|
|
b)
|
(i) enter into or amend or terminate (other than for cause) any framework agreement with customers with an expected annual turnover of EUR 1,000,000.00 or more, exclusive of VAT or (ii) enter into or amend any framework agreement with suppliers which (x) is not capable of being terminated by the Med Company concerned without compensation at any time with 6 (six) months’ notice or less and (y) involves or is expected to involve a total annual expenditure in excess of EUR 500,000.00, exclusive of VAT; it being understood that a framework agreement in the context of this subclause is any agreement allowing the respective customer to call for the delivery of products within a certain timeframe exceeding one (1) year;
|
|
c)
|
acquire or dispose of any fixed asset or amend any agreement to do so, in each case involving consideration, expenditure or liabilities in excess of EUR 200,000.00, exclusive of VAT;
|
|
d)
|
acquire or dispose of any share, shares or other interest in any company, partnership or other venture;
|
|
e)
|
amend, to any material extent, any of the terms on which goods, facilities or services are supplied;
|
|
f)
|
save as required by law or applicable collective bargaining agreements or other than in line with past practice:
|
|
aa)
|
make any amendment to the terms and conditions of employment (including, without limitation, remuneration, pension entitlements and other benefits) of any Senior Employee; or
|
|
bb)
|
provide or agree to provide any gratuitous payment or other benefit to any Senior Employee or any of his/her relatives;
|
|
cc)
|
terminate the employment of any Senior Employee other than for cause;
|
|
dd)
|
enter into any material works agreement (
Betriebsvereinbarung
), except for any works agreement which will be concluded in the context of the reorganisation of the research and development department of TM;
|
|
g)
|
introduce any new non-mandatory or non-governmental pension or other retirement benefit scheme;
|
|
h)
|
increase the number of full time equivalent of employees (including the Senior Employees other than Officers) of the Med Companies above 725; or
|
|
i)
|
enter into any guarantee, indemnity or other agreement to secure any obligation of a third party or create any encumbrance over any of its assets;
|
Activities of the Seller
|
|
a)
|
ensure that no shareholders’ resolution is approved regarding:
|
|
aa)
|
a liquidation of any Med Company;
|
|
bb)
|
an amendment to the articles of association of any Med Company or any other constitutional corporate document;
|
|
cc)
|
a transformation (
Umwandlung
) within the meaning of the German Reorganisation Act (
Umwandlungsgesetz
) or a comparable act applicable in the relevant jurisdiction involving a Med Company;
|
|
dd)
|
any declaration, making or payment of any dividend or other distribution of income, except for withdrawals of the Seller from the loan account (
Darlehenskonto
) of the Seller at TM refinanced through increasing the amount of the Closing Intra-Group Payables (being understood that the Purchaser shall agree on a withdrawal without such refinancing if the cash positions of the Med Company allow for it);
|
|
b)
|
object to any shareholders’ resolution of any Participation Company regarding any of the measures referred to in Sub-Clause a);
|
|
c)
|
not sell, transfer, create any encumbrances on, or otherwise dispose over, any Shares, or grant any rights to purchase or otherwise become the legal or commercial owner of any Shares;
|
|
d)
|
not enter, and will ensure that neither TRUMPF nor any Affiliate of TRUMPF will enter, into any agreement or other transaction or arrangement with any Med Company or Participation Company, other than agreements pertaining to the supply of goods and services (
Lieferungen und Leistungen
) in the ordinary course of business, in each case involving consideration, expenditure or liabilities in excess of EUR 50,000.00, exclusive of VAT;
|
Release of the TRUMPF Group Securities
|
The Purchaser will ensure that the Seller, TRUMPF and the Affiliates of TRUMPF are completely released from the TRUMPF Group Securities and will for this purpose replace the TRUMPF Group Securities prior to or at Closing.
|
To the extent that the Seller, TRUMPF or any Affiliate of TRUMPF will not have been released from the TRUMPF Group Securities in accordance with Clause 7.3.1 by Closing, the Purchaser:
|
|
a)
|
will provide prior to or at Closing one or more unconditional bank guarantees for the benefit of the Seller, TRUMPF or the respective Affiliate of TRUMPF issued by a Standard & Poor’s AA or better ranked bank of international standing and payable upon first demand, substantially in the form as attached as
Schedule 7.3.2
, in an aggregate amount equal to the aggregate amount of the outstanding obligations secured by those of the
|
|
b)
|
will use its best endeavours to ensure a release of the Seller, TRUMPF or the respective Affiliate of TRUMPF from such TRUMPF Group Securities as soon as reasonably practical after Closing.
|
In relation to each bank guarantee provided to the Seller, TRUMPF or any Affiliate of TRUMPF according to Clause 7.3.2 and in case that TRUMPF Group Securities secured by such bank guarantee have been released, the Seller shall or will, as the case may be, ensure that TRUMPF or the Affiliate of TRUMPF who is the addressee of that bank guarantee shall, release such amounts from the respective bank guarantee which exceed the aggregate amount of TRUMPF Group Securities secured by such bank guarantee.
|
Termination of service agreements
|
Right to withdraw
|
Prerequisites of right to withdraw
|
If the Closing Conditions have not been fulfilled or waived by 2 December 2014, or such other date as mutually agreed in writing between the Seller and the Purchaser (the “
Cut-Off Date
”), or if it turns out that a Closing Condition can definitely not be fulfilled, the Seller and the Purchaser may withdraw from this Agreement (
Rücktritt
) without prior notice (
ohne Einhaltung einer Frist
). The Purchaser’s right to withdraw is subject to the Purchaser providing evidence to the Seller that the Purchaser has fully complied with its obligations under Clause 6.3.2. The Seller’s right to withdraw is subject to the Seller providing evidence to the Purchaser that the Seller has fully complied with its obligations under Clause 6.3.3.
|
The Seller will also be entitled to withdraw from this Agreement (
Rücktritt
) without prior notice (
ohne Einhaltung einer Frist
) if the Purchaser has failed to duly file the necessary notifications with the competent merger authorities referred to in Clause 6.3.2 within fifteen (15) Business Days as from (and including) the date of this Agreement.
|
The right to withdraw may be exercised by either the Seller or the Purchaser by sending a written notice of withdrawal to the respective other Party (Purchaser or Seller, as the case may be).
|
Consequences of withdrawal
|
Limitation of liability
|
Legal consequences
|
|
a)
|
Without prejudice (
unbeschadet
) to the foregoing, any Party will be entitled – besides having the right to withdraw from this Agreement – to demand compensation of its damages (
Schadensersatz
) and/or to exercise any other contractual or statutory right.
|
|
b)
|
In case of a valid withdrawal, this Agreement will be terminated and unwound in accordance with sections 346 et seqq. German Civil Code (
BGB
); all rights and obligations under this Agreement will cease to exist, except that this Clause 8.2, 17, 20 and 22.6 will survive and remain in full force and effect.
|
Closing
|
Closing, Closing Date
|
|
a)
|
1 July 2014 and
|
|
b)
|
the first Business Day of the month that follows the month in which the Closing Conditions referred to in Clauses 6.1.1 and 6.1.2 have been either fulfilled or duly waived, provided, however, that the Closing Conditions have been either fulfilled or duly waived prior to or on the fifth Business Day preceding such day, or otherwise on the first Business Day of the following month in which the Closing Conditions have been so timely met
|
Closing Actions
|
Purchaser’s Closing Actions
|
|
a)
|
The Purchaser will pay the Preliminary Total Purchase Price to the Seller
in accordance with this Agreement.
|
|
b)
|
The Purchaser will deliver reasonably acceptable evidence for the Seller of the release of the TRUMPF Group Securities in accordance with Clause 7.3.1 and/or, to the extent there was no such release, one or more bank guarantees in accordance with Clause 7.3.2.
|
Seller’s and Purchaser’s Closing Actions
|
|
a)
|
The Seller, TMK, the Purchaser and the Co-Purchaser will execute the application to the commercial register to effect the Succession Registration in due form and hand it over to the certifying notary with the irrevocable instruction to submit it to the commercial register without undue delay after Closing has been completed.
|
|
b)
|
The Seller and the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2c) will sign and execute the purchase and transfer agreement regarding TATM as set forth in Clause 3.1.2c) and implement any further action contemplated thereunder or otherwise necessary or expedient to effect the immediate transfer of the Shares in TATM from Seller to the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2c).
|
|
c)
|
The Seller and the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2d) will sign and execute the purchase and transfer agreement regarding TUSM as set forth in Clause 3.1.2d) and implement any further action contemplated thereunder or otherwise necessary or expedient to effect the immediate transfer of the Shares in TUSM from the Seller to the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2d).
|
|
d)
|
The Seller and the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2e) will sign and execute the purchase and transfer agreement regarding TFRM as set forth in Clause 3.1.2e) and implement any further action contemplated thereunder or otherwise necessary or expedient to effect the immediate transfer of the Shares in TFRM from the Seller to the Purchaser or the directly or indirectly wholly owned Affiliate of the Purchaser Guarantor nominated by Purchaser according to Clause 3.1.2e).
|
|
e)
|
TRUMPF (represented by the Seller on the basis of a power of attorney), TM and the Purchaser and/or one or two directly or indirectly wholly owned Affiliate or Affiliates of the Purchaser Guarantor nominated by Purchaser according to Clause 3.2.3 will sign and execute the assignment agreement regarding the Closing Intra-Group Payables as specified in Clause 3.2.3.
|
|
f)
|
The Seller and TM will sign and execute the Transitional Services Agreement (as defined in Clause 16.1 below).
|
|
g)
|
TRUMPF (represented by the Seller on the basis of a power of attorney) and TM will sign and execute the Trademark License Agreements (as defined Clause 16.2.2 below).
|
|
h)
|
TRUMPF (represented by the Seller on the basis of a power of attorney) and TM will sign and execute the Non-TruName Trademark Transfer Agreement (as defined Clause 16.3 below).
|
Waiver of Closing Actions
|
The Seller is entitled to waive each of the Closing Actions set forth in Clause 9.2.1 in whole or in part at any time prior to the occurrence of Closing by written notice to the Purchaser.
|
The Purchaser and the Seller are entitled to jointly waive each of the Closing Actions set forth in Clause 9.2.2 in whole or in part at any time prior to the occurrence of Closing by signing a joint written confirmation.
|
The waiver will have the effect of eliminating the requirement that the relevant Closing Action must be performed at Closing and will not limit or prejudice any rights or claims any Party may have due to the non-performance of any Closing Action.
|
Closing Memorandum
|
After all Closing Actions have been performed or waived, the Seller, the Purchaser and the Co-Purchaser will confirm in a written document, to be jointly executed (at least in duplicate) substantially in the form of the draft attached as
Schedule 9.4.1
(the “
Closing Memorandum
”), that all Closing Actions have been performed or waived and that Closing is completed.
|
The executed Closing Memorandum will serve as evidence that Closing is completed. The execution of the Closing Memorandum will not limit or prejudice the rights of the Parties arising under or in connection with this Agreement or under applicable law.
|
Co-ordination with commercial register of TM
|
Seller’s representations
|
General
|
|
a)
|
the Warranties are in each case made by way of an independent guarantee (
selbstständiges Schuldversprechen
) within the meaning of section 311 (1) German Civil Code;
|
|
b)
|
the Warranties are made as of the date of this Agreement and/or as of such other date as is expressly stated in the respective Warranty;
|
|
c)
|
where a Warranty is restricted to “
Seller’s Knowledge
”, Seller’s Knowledge exclusively means the actual positive knowledge of the individuals listed in
Schedule 10.1
c)
;
|
|
d)
|
the Warranties are made only within the scope of and subject to the limitations, rights and remedies set forth in Clause 11 which constitute an integral part of the Warranties;
|
|
e)
|
the Warranties do not constitute an agreement on a certain condition (
Beschaffenheitsvereinbarung
) within the meaning of section 434 German Civil Code or a guarantee of quality concerning a condition (
Beschaffenheitsgarantie
) within the meaning of section 443 German Civil Code.
|
Authorisation of the Seller
|
Status
|
No insolvency
|
Due Authorisation
|
Legal, valid and binding obligations
|
No interference
|
Shares
|
The Shares, the TGBM Share, the TCNM Share, the ITV Share and the AUM Share have been legally and validly issued and are fully paid up and free of additional payment obligations (
Nachschusspflichten
). The issued share capital of the Med Companies has not been repaid or otherwise distributed to their shareholders or their Affiliates. The issued share capital of the Participation Companies has not been repaid or otherwise distributed to the Seller or an Affiliate of the Seller.
|
The Seller is the sole legal and economic owner of the Shares. TMK is the sole legal and economic owner of the TM General Partner’s Interest. TM is the sole legal and economic owner of the TGBM Share, the ITV Share and the AUM Share. At the date of this Agreement, TSI is the sole legal and economic owner of the TCNM Share; at the Closing, and unless there has been a waiver pertaining to the Closing condition contained in Clause 6.1.2, TM is the sole legal and economic owner of the TCNM Share.
|
The Shares, the TM General Partner’s Interest, the TGBM Share and the TCNM Share are free of encumbrances and other third party rights affecting the legal title of their respective owners and not subject to any restrictions in respect of the sale or transfer pursuant to Clause 3.1, except as set forth in this Agreement.
|
No Med Company nor, at the date of this Agreement and to the Seller’s Knowledge, any Participation Company is party to any agreement relating to the acquisition or sale of any participation in another Legal Entity or any business (
Betrieb
) other than agreements where the main obligations (
Hauptleistungspflichten
) have been fully performed by all parties thereto.
|
Corporate status
|
The information on the Target Companies and the Shares contained in Clauses 2.1 and 2.2 is correct.
|
Each Med Company and each Participation Company is duly organized and validly existing under the laws of the jurisdiction in which it was organized. Each Med Company and to the Seller’s Knowledge each Participation Company (i) is qualified to do business and (where such concept applies) in good corporate standing in each jurisdiction where the conduct of its business requires it to be so qualified and (ii) holds all requisite corporate power and authority to carry on its business operations as they are now being conducted.
|
Under the applicable insolvency laws, no Med Company is over-indebted (
überschuldet
) or unable to pay its debts when they become due (
zahlungsunfähig
). No circumstances exist that would require or justify the opening of, or a petition for the opening of, insolvency proceedings in respect of any Med Company or their assets.
|
Schedule 10.4.4
contains a true and accurate list of the articles of association, partnership agreements or shareholders agreements, as the case may be, of the Participation Companies a Med Company is party to.
|
Except for amendments to the agreements in relation to the transfer of the ITV Share and the AUM Share to TM, at the Med Companies and to the Seller’s Knowledge at the Participation Companies, there are no shareholders resolutions pertaining to (i) their dissolution, (ii) changes of the partnership agreements or the articles of association, (iii) capital increases or decreases, (iv) measures according to the German Reorganisation Act (
Umwandlungsgesetz
) or equivalent provisions under applicable foreign law, or (v) enterprise agreements (
Unternehmensverträge
) within in the meaning of Sec. 291 and 292 German Stock Corporation Act (
Aktiengesetz –
“
AktG
”) or equivalent provisions under applicable foreign law which must be entered in the commercial register or similar registers and which have not yet been registered.
|
No Med Company and to the Seller's Knowledge no Participation Company has entered into any agreements regarding (i) corporate silent partnerships (
Verträge über stille Gesellschaften
) or (ii) corporate management of operations (
gesellschaftsrechtliche Betriebsführungsverträge
).
|
Closing Intra-Group Payables
|
Financial Statements
|
The Seller has delivered to the Purchaser:
|
|
a)
|
with respect to the Med Companies, the individual group reporting packages (HBII) prepared for the consolidation into the TRUMPF group accounts (
Konzernabschluss
) for the financial year ending on 30 June 2013 (the “
Financial Statements
”); and
|
|
b)
|
with respect to the Med Group, the internal consolidated financial statements (fully consolidating the Med Companies and consolidating the Participation Companies at cost) for the financial year ending on 30 June 2013 (the “
Reference Consolidated Financial Statements
”).
|
The Financial Statements have been drawn up in accordance with the standards provided for by Clause 5.2.3 and the Reference Consolidated Financial Statements have been drawn up in accordance with the standards provided for by Clause 5.2.1. The foregoing accounting principles were applied in all material respects consistently as in previous years unless otherwise required by changes of the generally accepted accounting principles or disclosed or noted in the Financial Statements or the Reference Consolidated Financial Statements, as the case may be.
|
For the purpose of consolidation into the TRUMPF group accounts (
Konzernabschluss
), the Financial Statements of TM, TFRM and TGBM were audited by the respective auditors disclosed in such Financial Statements which issued an unqualified opinion thereon (
uneingeschränkter Bestätigungsvermerk
) and the Financial Statements of TUSM and TCNM were subject to a limited review by the respective auditors which review did not lead to any objections. The Reference Consolidated Financial Statements were subject to a limited review (
prüferische Durchsicht
) by Ernst & Young GmbH Wirtschaftsprüfungsgesellschaft which has not led to any objections.
|
The Med Companies have in all material respects kept their books and records in accordance with applicable law and have access to all such books and records.
|
Ordinary course of business
|
Owned Real Property
|
Schedule 10.8.1
contains a list of all real property (
Grundstücke
), rights equivalent to real property (
grundstücksgleiche Rechte
) and buildings owned by the Med Companies (the “
Owned Real Property
”). With respect to the Owned Real Property, no agreed title conveyances (
Auflassungen
) and no declarations of consent for an entry in the register or for a cancellation of a registration entry (
Eintragungs- oder Löschungsbewilligungen
) or any other declarations have been made which require or bring an entry in the register and which are not apparent from a perusal of the property register. No Med Company has assumed any obligations to enter into such transactions or to make such declarations.
|
Except as set forth in Schedule 10.8.2 , there are no lease agreements with third parties with respect to the Owned Real Property material to the respective site of the Business.
|
To the Seller’s Knowledge, except as disclosed in
Schedule 10.8.3
,
|
|
a)
|
the Owned Real Property is not subject to any land charges, easements or equivalent encumbrances in favor of third parties (other than statutory pre-emption rights or similar restrictions) which are not registered in the land register or hereditary building rights register and
|
|
b)
|
no Med Company has agreed to grant such encumbrances.
|
Leased Real Property
|
Schedule 10.9.1
contains a list of all real property (
Grundstücke
) and buildings used, but not owned, by the Med Companies each with a lease payment obligation (
Mietzinsverpflichtung
) of more than EUR 5,000.00 (in words: Euro five thousand) per month (the “
Leased Real Property
”).
|
|
a)
|
The Med Companies have concluded valid lease agreements in relation to the Leased Real Property,
|
|
b)
|
the Med Companies are not in breach of obligations under such lease agreements which would entitle the landlord to terminate the relevant lease for cause (
aus wichtigem Grund
) or to early termination according to the respective lease agreement, and
|
|
c)
|
there are no sublease agreements with third parties with respect to Leased Real Property material to the respective site of the Business.
|
Environmental
|
Assets
|
The Med Companies have full access to all fixed assets necessary to carry on the Business as conducted at the date of this Agreement either through ownership, valid leasehold or indirectly through service agreements with the Seller, TRUMPF or their Affiliates or third party service providers. Except for retention of title rights of suppliers or similar security rights of third parties entered in the ordinary course of business or statutory rights of third parties, the owned fixed assets are free and clear from any encumbrances and legal title has not been transferred for the purpose of granting securities.
|
Except for the services to be made available through the Transitional Services Agreement and the intellectual property rights to be licensed through the Trademark License Agreements or to be transferred under the Non-TruName Trademark Transfer Agreement, the Med Companies and the Participation Companies encompass the complete activities directly or indirectly held by TRUMPF in the Business.
|
Intellectual property
|
Schedule 10.12.1
contains a list of all patents, trademarks, utility patents, design patents, trade names, domain names and equivalent intellectual property rights (
gewerbliche Schutzrechte
), which are material to the Business and are either owned by the Med Companies (the “
O
wned Material Intellectual Property Rights
”) or licensed to the Med Companies, excluding software (the “
Licensed Material Intellectual Property Rights
”, and collectively with the Owned Material Intellectual Property Rights the “
Material Intellectual Property Rights
”), indicating, to the extent applicable, (i) with regard to the Owned Material Intellectual Property Rights, the countries and classifications for which the respective Material Intellectual Property Right enjoys protection and (ii) with regard to the Licensed Material Intellectual Property Rights, any license or similar agreement on the basis of which a Med Company uses the respective Material Intellectual Property Right. No Med Company and to the Seller's Knowledge no other party to such a license agreement has breached material obligations thereunder. To the Seller's Knowledge, except as disclosed in
Schedule 10.12.1
, in the EU, the United States of America and Canada no third party infringes any Owned Material Intellectual Property Right.
|
Except as disclosed in
Schedule 10.12.2
,
|
|
a)
|
the Owned Material Intellectual Property Rights are not subject to any pending proceedings for opposition, cancellation or revocation,
|
|
b)
|
to the Seller’s Knowledge, there are no restrictions that would prevent the Med Company from the use of the Material Intellectual Property Rights as required for continuing the Business in substantially the same manner as at the date of this Agreement except, to the extent that a Material Intellectual Property Right is used on the basis of a license or similar agreement, if and where such license or similar agreement
|
|
aa)
|
is concluded for a fixed term and such term expires, or
|
|
bb)
|
is terminable for the contractual partner of the relevant Med Company in accordance with its terms (other than through a termination right based on a change of control of TM or the respective Med Company), and
|
|
c)
|
there is no litigation threatened to a Med Company in writing by any third party on the grounds that a Med Company is infringing any intellectual property right of such third party, and to the Seller's Knowledge no Med Company is infringing any intellectual property right of any third party.
|
Information Technology
|
Material Agreements
|
Except for (i) the agreements listed in
Schedule 10.14.1
(the “
Material Agreements
”) and (ii) any agreements required to be disclosed pursuant to any other provision of this Agreement, as of the date of this Agreement no Med Company is a party to any of the following written agreements (other than agreements as to which all primary contractual obligations have been fulfilled or which have been effectively terminated):
|
|
a)
|
corporate joint venture or shareholder agreements;
|
|
b)
|
agreements with the Seller, TRUMPF or any Affiliate of TRUMPF, excluding agreements pertaining to the supply of goods and services (
Lieferungen und Leistungen
), in each case involving consideration, expenditure or liabilities in excess of EUR 50,000.00, exclusive of VAT;
|
|
c)
|
(i) any framework agreement with customers with an expected annual turnover of EUR 1,000,000.00 or more, exclusive of VAT or (ii) framework agreement with suppliers which (x) is not capable of being terminated by the Med Company concerned without compensation at any time with 6 (six) months’ notice or less and (y) involves or is expected to involve a total annual expenditure in excess of EUR 500,000.00, exclusive of VAT; it being understood that a framework agreement in the context of this subclause is any agreement allowing the respective customer to call for the delivery of products within a certain timeframe exceeding one (1) year
|
|
d)
|
agreements with distributors generating revenues of at least EUR 1,000,000.00 in the financial year ending on 30 June 2013;
|
|
e)
|
loan agreements (other than relating to any intercompany debt towards the Seller, TRUMPF or any Affiliate of TRUMPF), bonds (
Anleihen
) or debentures (
Schuldverschreibungen
) issued by any Med Company and involving, individually, an outstanding indebtedness of the Med Company of EUR 20,000.00 or more;
|
|
f)
|
guarantees, indemnities and suretyships issued by any of the Med Companies for any debt of any third party (other than any Med Company) exceeding an outstanding amount of EUR 10,000.00 or more per item;
|
|
g)
|
agreements with advisers or consultants, advertising agencies, internet agencies or other agencies each providing for a consideration of more than EUR 100,000.00 or with a remaining minimum term of more than one (1) year;
|
|
h)
|
agreements entered into since 1 July 2013 regarding the acquisition or sale of any significant assets providing, in each case, for a consideration of EUR 1,000,000.00 or more;
|
|
i)
|
other agreements or arrangements outside the ordinary course of business of the Med Companies providing, in each case, for a yearly consideration of EUR 200,000.00 or more or with a remaining minimum term of more than three (3) years,
|
|
j)
|
agreements that can be altered or terminated as a consequence of the transactions contemplated by this Agreement and such termination would reasonably be expected to have an adverse material effect on the Business.
|
Prior to the date of this Agreement, the Seller has granted the Purchaser access to complete and correct copies of all Material Agreements. As of the date of this Agreement and to the Seller’s Knowledge, these agreements were validly entered into and not materially changed. No written notice of termination has been given by any Med Company and, to the Seller's Knowledge, no written notice has been given by any other party with respect to any Material Agreement. No Med Company and to the Seller's Knowledge no other party to a Material Agreement has breached any material obligations thereunder.
|
Employees
|
Schedule 10.15.1
contains a list of all persons currently employed by a Med Company (including personnel number, employment start date, annual fixed gross salary, gross annual compensation benefits (including all bonuses) and other incentives, deferred compensation claims (
Entgeltumwandlung
), and the term or period of notice for termination of employment) who
|
|
a)
|
are currently appointed Officers of a Med Company; or
|
|
b)
|
have received, or are entitled to receive, in or with respect to the business year ending on 30 June 2013 an annual fixed gross salary exceeding EUR 140,000.00 (excluding performance-related payments/bonuses and fringe benefits such as incentives, company cars or other benefits)
|
No Senior Employee has given or received notice of termination of his/her employment or has entered into a termination agreement with a Med Company or has made or received an offer to enter into a termination agreement.
|
As at 31 May 2014, the Med Companies did not employ more than 705 full time equivalent of employees (including the Senior Employees other than Officers) and no more than 40 temporary workers (
Leiharbeitnehmer
). The Med Companies have duly and fully performed all due payment obligations owed to their workers and employees as well as any social security or Chinese housing-fund contributions when those obligations became due.
|
Schedule 10.15.4
contains a list of all material works agreements (
Betriebsvereinbarungen
) applicable to the Med Companies which contain more than merely a repetition of statutory law and which
|
|
a)
|
contain benefit or incentive plans to be triggered by a change of control over the relevant Med Company;
|
|
b)
|
contain limitations to the termination of employment agreements including provisions concerning severance payments or to relocate activities of a Med Company;
|
|
c)
|
guarantee a certain number of employees in general or in respect of individual locations;
|
|
d)
|
have been concluded after 30 June 2013.
|
Except as disclosed in
Schedule 10.15.5
, no Med Company operates any non-mandatory or non-governmental pension or other retirement benefit scheme, or has made any individual commitments regarding pensions (
betriebliche Altersversorgung
), under which the Med Company is or may become obliged to provide retirement benefits to an individual, all or a group of its current or past employees, Officers or dependants thereof.
|
Except as disclosed in
Schedule 10.15.6
, no Med Company is involved in any legal proceedings before any court or administrative body with any current or former employee or any employee representative.
|
No Med Company is bound by any reconciliation of interests agreements (
Interessenausgleiche
) or social plans (
Sozialpläne
).
|
Insurance Coverage
|
Schedule 10.16.1
contains a true and complete list of (i) all insurance policies taken out by the Med Companies, and (ii) all group insurance policies taken out by TRUMPF (or an Affiliate of TRUMPF) which relate to the assets, business or operations of the Med Companies, and which in each case are material to the Business. Insurance policies are considered material to the Business only if any impediment to, or impossibility of, obtaining coverage in an insurance event by the Med Companies would have an adverse material effect on the Business.
|
All such policies are in full force and effect. All premiums have been duly paid.
|
T
here are no material claims by any Med Company pending under any of such policies as to which coverage has been questioned, denied or disputed by the insurer.
|
Litigation
|
Product liability
|
Business Permits, Subsidies
|
Each Med Company has obtained and complied with all material public permits which are necessary to conduct its business as currently conducted (together the “
Business Permits
”).
|
Schedule 10.19.2
contains a true and complete list of all public grants (
Zuschüsse
), allowances (
Investitionszulagen
), aids (
Beihilfen
) or other subsidies (
Subventionen
), which have been applied for the benefit of the Med Companies since 1 July 2011 exceeding an amount of EUR 50,000.00 individually (together, but excluding any tax benefits other than allowances (
Investitionszulagen
) referred to above, the “
Subsidies
”). None of the Business Permits or Subsidies has been revoked, rescinded or restricted, either in whole or in part, and to the Seller's Knowledge, there is no concrete indication that such Business Permits or Subsidies will be revoked, rescinded or restricted, either in whole or in part; in particular, no Subsidy will have to be repaid in whole or in part due to the execution or consummation of this Agreement. No Med Company has received any pending notice of any failure to comply with a Business Permit or the terms of a Subsidy nor is any Med Company to the Seller’s Knowledge under investigation with respect to any such failure.
|
Compliance with laws
|
The Med Companies have within the past 36 months prior to the date of this Agreement operated the Business in compliance with all applicable
|
|
a)
|
anti-bribery laws and anti-trust laws; and
|
|
b)
|
to the Seller’s Knowledge, export restrictions, non-discrimination laws and, in all material respects, anti-money laundering laws, in each case as in force in the relevant jurisdiction of the relevant Med Company at the date of this Agreement.
|
With respect to a violation of the laws referred to in Clause 10.20.1 by a Med Company, no Med Company has within the past 36 months prior to the date of this Agreement received any written notice from any court, governmental agency (
öffentlich-rechtliche Anstalt
) or regulatory body (
öffentlich-rechtliche Behörde
).
|
Finder’s Fees
|
No other representations or warranties of the Seller
|
Remedies
|
Compensation for Breach
|
Losses
|
“
Losses
” means all liabilities, reasonable costs and expenses and other damages within the meaning of sections 249 et seq. of the German Civil Code (
BGB
), it being understood that
|
|
a)
|
lost profits (
entgangener Gewinn)
will only be taken into account for purposes of calculating the Losses, if and to the extent that they are caused adequately (
adäquat kausal
) and covered by the purpose and intent of the relevant obligation (
Schutzzweck der Norm
) which has been breached, being understood that the amount of any Loss will not be based on the argument that the determination of the enterprise value was made using incorrect assumptions, e.g. an incorrect basis for any multiple applied, and
|
|
b)
|
consequential or indirect damages (
Folgeschäden, mittelbare Schäden
), frustrated expenses (
vergebliche Aufwendungen
) within the meaning of section 284 of the German Civil Code (
BGB
) and internal administration and overhead costs of the Purchaser, any of its Affiliates or a Med Company or a Participation Company will be excluded.
|
Any Loss will be computed net of (i) the net present value (calculated at a discount rate of 3.5% p.a.) of any present or future advantages and benefits (including avoided losses, tax benefits and savings as well as increases in the value of any asset owned by the Med Group related to the relevant matter) and (ii) any amounts which are covered by insurance under any insurance policy as existing at the Closing or which can reasonably be recovered otherwise from any third party.
|
Notice of Breach, access by the Seller
|
Notice of Breach
|
Co-operation with the Seller
|
Third Party Claim
|
Notification
|
No admittance by Purchaser
|
Defence by the Seller
|
Costs and expenses of defence
|
|
a)
|
by the Seller to the extent that a Breach was involved; and
|
|
b)
|
by the Purchaser to the extent that no Breach was involved.
|
Limitation of Seller’s liability
|
|
a)
|
the Purchaser or, after the Closing, the relevant Med Company or Participation Company, has caused or contributed to causing (
mitverursacht
) the relevant Losses or claims within the meaning of section 254 (1) German Civil Code (
BGB
), but, for the avoidance of doubt, only as to that portion which is determined to have been caused by the Purchaser or after the Closing the relevant Med Company or Participation Company;
|
|
b)
|
the Purchaser or, after the Closing, the relevant Med Company or Participation Company, has failed to avoid or mitigate the relevant Losses or claims pursuant to section 254 (2) German Civil Code (
BGB
), but, for the avoidance of doubt, only as to that portion which is determined to have been caused by the Purchaser or after the Closing the relevant Med Company or Participation Company;
|
|
c)
|
the procedures and time limits set forth in Clause 11.3 and Clause 11.4 have not been complied with by Purchaser or any of its Affilates or the relevant Med Companies and such non-compliance has caused or increased the damage resulting from the Breach;
|
|
d)
|
any claims of the Purchaser result from or are increased as a result of the passing of, or a change in, any law, regulation or rule or the interpretation of any law, regulation or rule by the courts, arbitrators or governmental authorities or a change in the administrative practice of the governmental authorities or any change in the accounting or taxation policies or practices applied by the Purchaser and the relevant Med Company or Participation Company after the date of this Agreement;
|
|
e)
|
where the Warranties refer to laws or regulations, the Seller will not be liable for the correct interpretation of such laws or regulations, unless the Purchaser was not in a position to evaluate and interpret the laws or regulations with respect to the relevant facts itself because the Purchaser had no access to the relevant information;
|
|
f)
|
the matter to which the claims of the Purchaser relate has been specifically or generally (
einzeln oder pauschal
) taken into account
|
|
aa)
|
in the Financial Statements or the Reference Consolidated Financial Statements as a liability (
Verbindlichkeit
), provision (
Rückstellung
), depreciation (
Abschreibung
) or valuation adjustment (
Wertberichtigung
); or
|
|
bb)
|
in the Closing Accounts and was reflected in the calculation of the Total Purchase Price (including the Adjustment Amount);
|
|
g)
|
as regards any Warranty Breach (with the exception of all claims of the Purchaser for Breaches pursuant to Clauses 10.3.2 and 10.3.3), the Purchaser, its representatives and any person involved in the transaction (in particular in the due diligence) on behalf of the Purchaser had actual knowledge (
positive Kenntnis
) of the circumstances constituting the Breach; for the avoidance of doubt section 442 Civil Code and section 377 German Commercial Code (HGB) will not apply;
|
|
h)
|
as regards any Warranty Breach (with the exception of all claims of the Purchaser for Breaches pursuant to Clauses 10.3.2 and 10.3.3), the matter to which the claims of the Purchaser relate was Disclosed in this Agreement, including the Schedules hereto and documents referred to in the Agreement or the Schedules, or in the Data Room to which the Purchaser or third parties on behalf of the Purchaser had access;
|
|
i)
|
the realization of the claims would lead to or result in a double discharge of the Loss in question (
keine Doppelanrechnung
). For the avoidance of doubt, if the Purchaser is entitled to a claim or payment in respect of the same factual circumstances under more than one provision of this Agreement, it will only be entitled to recover the full amount once; or
|
|
j)
|
advantages result from the specific cause of the Seller’s liability, in particular tax advantages and damages covered by a claim of the Purchaser or the relevant Med Companies or Participation Companies against third parties (e.g. insurance) to the extent such advantages can reasonably be recovered.
|
Pro rata principle
|
Monetary limits
|
De minimis rules
|
|
a)
|
the amount of an individual claim exceeds EUR 50,000.00 (in words: Euro fifty thousand) (
individual de minimis
) (the “
Individual De Minimis Amount
”); and
|
|
b)
|
the total amount of all claims exceeding the Individual De Minimis Amount exceeds EUR 500,000.00 (in words: Euro five hundred thousand) (
de minimis
) (“
De Minimis Amount
”).
|
Liability caps
|
Time limits
|
Limitation
|
Exclusion
|
Exclusion of other rights and remedies of the Purchaser
|
|
a)
|
any defect-related rights and claims in accordance with sections 434 to 441 German Civil Code (
BGB
);
|
|
b)
|
any rights to withdraw (
zurücktreten
) from this Agreement or to require the unwinding of the transactions contemplated by this Agreement, any rights to reduction of the purchase price (
Minderung
), avoidance (
Anfechtung
) or termination (
Kündigung
);
|
|
c)
|
any rights and claims for breach of pre-contractual obligations (
culpa in contrahendo
, sections 241 (2), 311 (2) (3) German Civil Code (
BGB
));
|
|
d)
|
any claims for frustration of agreement pursuant to section 313 German Civil Code (
BGB
) (
Störung der Geschäftsgrundlage
) and any other rights to require adjustment of the Agreement (
Vertragsanpassung
); and
|
|
e)
|
any claims based on unjustified enrichment (
ungerechtfertigte Bereicherung
) or tort (
Delikt
)
|
Liability from wilful misconduct
|
Taxes
|
Tax Indemnification
|
Subject to the provisions contained in this Clause 12, the Seller will pay to the Purchaser an amount equal to any Indemnifiable Tax (the “
Tax Indemnification Claim
”), provided that the Seller will not be liable vis-à-vis the Purchaser (and the Tax Indemnification Claim will be reduced accordingly) if and to the extent:
|
|
a)
|
the respective Tax has been paid until the Closing Date;
|
|
b)
|
liabilities (
Verbindlichkeiten
) or provisions (
Rückstellungen
) for Taxes of the Med Companies that are included in the Closing Accounts for purposes of determination of the Purchase Price may be offset against the Tax Indemnification Claim irrespective of whether such liability or provision relates to the specific Tax giving rise to such claim;
|
|
c)
|
the Purchaser, any Med Company or any of their Affiliates are entitled to any benefits in respect of Taxes that are related to the Tax Indemnification Claim and that arise for the time period (
Zeitraum
) beginning on or after the Closing Date, including (without limitation) benefits resulting from the lengthening of any amortization or depreciation periods, a step-up in the Tax basis of assets or the non-recognition of liabilities or provisions (
Phasenverschiebung
) (herein collectively “
Tax Benefits
”), it being understood that the net present value of the corresponding Tax Benefits will reduce the Tax Indemnification Claim. For the avoidance of doubt, the Parties agree that any step-up for Tax purposes of the assets owned by TM shall not be considered a Tax Benefit to the extent a step-up has already been made in the tax supplementary balance sheets (
steuerliche Ergänzungsbilanzen
) of the respective Purchaser as a consequence of the acquisition of the Partnership interests in TM. The net present value will be calculated (a) on the basis of the Tax rates applicable (or expected to be applicable) in the year in which the respective Tax Benefit arises, (b) for such periods (discount periods) in which the Tax Benefit can be realised, and (c) on the basis of an applied discount factor of 2 and a quarter (2.25) percent per annum;
|
|
d)
|
the income resulting in the respective Tax may be offset against a loss carry-back or loss carry-forward available at the level of the Med Companies and generated in periods or portions thereof ending on or before the Closing Date;
|
|
e)
|
the amount of Taxes results from (i) any change in law, (ii) any change in the accounting or taxation principles or practices of the Med Companies (including methods of submitting Tax returns) introduced on or after the Closing Date, unless such change is required by applicable law, (iii) any transaction, action or omission taken by the Purchaser or any Med Company or any of their Affiliates on or after the Closing Date;
|
|
f)
|
the respective Tax has been caused by a non-compliance of any Med Company, the Purchaser or any of their Affiliates with the procedures set forth in Clause 12.4 or 12.5; or
|
|
g)
|
the amount of Taxes has been recovered from a third party (including under an insurance policy). If and to the extent the amount of Taxes has not been recovered from a third party the Purchaser will assign any respective claim against such third party to the Seller.
|
Any amounts payable to the Purchaser under this Clause 12.1 will be payable and due five (5) Business Days before the respective Tax is due and payable to the Tax authority but not earlier than ten (10) Business Days after the Seller has been notified by the Purchaser about such due date. The Seller may request the filing of an application for a suspension of enforcement (
Aussetzung der Vollziehung
) at his expense. The Purchaser will ensure that such application is filed in accordance with the Seller’s instructions. If, after the settlement of the Purchaser’s claims under this Clause 12.1, the respective Tax is reduced before the Purchaser has paid the respective Tax to the Taxing Authorities, the Purchaser will pay to the Seller the amount of the respective Tax reduction. In so far, Clause 12.3 applies
mutatis mutandis
.
|
With regard to any amounts payable by the Seller to the Purchaser under this Clause 12.1 the pro rata principle under Clause 11.6 applies
mutatis mutandis
.
|
Reverse Indemnity
|
Tax Refunds
|
Tax Returns and Tax assessment
|
After the Closing Date, the Purchaser will prepare and file, or cause any Med Company to prepare and file, when due all Tax Returns required to be filed by or on behalf of any Med Company, provided, however, that any Tax Returns relating to any period ending before or including the Closing Date will be subject to the review and prior written consent of the Seller and will be filed in accordance with the Seller’s instructions. The Tax Returns to be filed for periods beginning before and ending after the Closing Date shall be coordinated by and between the Parties in a timely fashion before the filing date. In the event that the Seller and the Purchaser are unable to resolve any dispute concerning such Tax Return within ten (10) Business Days, the dispute shall be submitted to an independent auditor appointed jointly by the Seller and the Purchaser for a binding and final decision. The costs and expenses of the independent auditor and any fees and duties levied by the Tax Authorities for the delay in filing the respective Tax Return will be shared between the Seller and the Purchaser in proportion to their respective success and defeat as determined by the independent auditor. All Tax Returns to be filed after the Closing Date will be prepared consistent with the policies, procedures, practices and election rights adopted in the financial statements of the relevant Tax period as well as the Tax Returns for previous Tax periods of the Med Companies. The Purchaser will ensure that any Tax Returns to be reviewed and approved by the Seller will be furnished to the Seller no later than thirty (30) Business Days prior to the due date of the relevant Tax Return. Any Tax Returns relating to any period ending before or including the Closing Date may not be amended without the prior written consent of the Seller, and the Purchaser will follow, and will cause any Med Company to follow any instructions of the Seller regarding the amendment of such Tax Returns.
|
If, after the Closing Date, any Taxing Authority informs the Purchaser, any Med Company or any of their Affiliates of a proposed audit, assessment, dispute or other circumstance, or if the Purchaser or any Med Company otherwise become aware of any circumstance, in each case relating to any matter which could give rise to (or increase) a Tax Indemnification Claim, a claim of the Seller under this Clause 12 or which could otherwise have an impact on the Seller’s Tax position (each such matter a “
Relevant Tax Matter
”), the Purchaser will notify the Seller of such matter. The Purchaser’s notice will be given within fifteen (15) Business Days after the Purchaser or any Med Company have received the relevant information, assessment 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 Purchaser has reason to believe that a payment is to be made by the Seller pursuant to Clause 12.1 such notice will state the amount of the alleged Tax Indemnification Claim and must be accompanied by evidence reasonably necessary to determine the fact, amount and payment of such claim.
|
Co-operation on Tax matters
|
The Purchaser will, and will ensure that any Med Company, their Affiliates and their respective employees and advisors, fully cooperate with the Seller and its advisors 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 or litigation. Moreover, the Purchaser will grant access to its own and the Med Companies’ books and records as reasonably required in such context. As regards periods prior to Closing Date, the Seller will cooperate similarly with the Purchaser with respect to any matter involving the Med Companies and Participation Companies, and will grant similar access to its own books and records as reasonably required in such context.
|
The Seller will be in control of any Relevant Tax Matter, and the Purchaser will, and will ensure that any Med Company and their Affiliates, follow any instructions of the Seller in respect of any Relevant Tax Matter within the boundaries of applicable law. In particular, and without prejudice to the aforementioned the Purchaser will
|
|
a)
|
not cause or permit any Med Company to take any action on or after the Closing Date (including, without limitation, the making or changing of any Tax election, the amendment of any Tax Return or the taking of any Tax position on any Tax Return) that could give rise to (or increase) any Tax Indemnification Claims without the Seller’s prior written consent unless such action is required by applicable law;
|
|
b)
|
keep and make available on a reasonable scale and at the Seller’s expense to the Seller, and instruct that any Med Company will keep and make available to the Seller, all books, records and information relating (wholly or partly) to any Relevant Tax Matter in accordance with, and during the periods required under statutory law (and to the extent such books, records and information might be of relevance for the Relevant Tax Matter, until the relevant Tax has become final and binding and can no longer be amended) and, following such periods, give the Seller reasonable notice prior to transferring, discarding or destroying, and allow the Seller to take possession of any such books, records and information;
|
|
c)
|
provide, or instruct any Med Company to provide, to the Seller and its advisors, upon the Seller’s request and at its expense, all relevant documents or other information and permit, or instruct any Med Company to permit, the Seller and its representatives to have access, during regular business hours and upon reasonable advance notice, to the premises, employees and books and records of any Med Company, to the extent relating to a Relevant Tax Matter;
|
|
d)
|
permit, or instruct any Med Company to permit, the Seller and its advisors to participate at their sole discretion, in all current and future Tax proceedings relating (wholly or partly) to a Relevant Tax Matter in such a way that the Seller will be entitled directly and/or via advisors of its choice to actively control such Tax proceedings insofar as they relate to a Relevant Tax Matter;
|
|
e)
|
at the Seller’s expense (except for internal costs of any Med Company and the Purchaser), challenge and litigate, and instruct any Med Company to challenge and to litigate, at the request of the Seller and at the Seller’s sole discretion and according to the Seller’s instructions, any Tax assessment relating to a Relevant Tax Matter;
|
|
f)
|
authorize, or instruct any Med Company to authorize the Seller or its advisors (upon the Seller’s request), by power of attorney and such other documentation as may be necessary and appropriate to represent any Med Company in the Relevant Tax Matter; and
|
|
g)
|
not accept, compromise, dispose of or settle, and instruct that any Med Company neither accepts, compromises, disposes of nor settles, any Tax proceedings or Tax assessment relating to a Relevant Tax Matter without the Seller’s prior written consent.
|
As if- assessment
|
Limitation period
|
Miscellaneous
|
Purchaser’s and Purchaser Guarantor’s representations
|
General
|
Authorisation of Purchaser
|
Status
|
No insolvency
|
|
a)
|
Neither the Purchaser nor the Purchaser Guarantor is over-indebted, unable to pay its debts when they become due (
zahlungsunfähig
), insolvent or subject to any insolvency proceedings. No circumstances exist that would require or justify the opening of or a petition for the opening of such proceedings pertaining to the Purchaser or the Purchaser Guarantor.
|
|
b)
|
The location in which the Purchaser is actually administered and where all material decisions are taken (
tatsächlicher Verwaltungssitz
) is in Amsterdam, the Netherlands. The location in which the Purchaser Guarantor is actually administered and where all material decisions are taken (
tatsächlicher Verwaltungssitz
) is in Batesville, Indiana, United States of America.
|
Due authorisation
|
Legal, valid, binding and enforceable obligations
|
No interference
|
Financial capability
|
No knowledge of Seller’s breach
|
Remedies
|
Purchaser’s Covenants
|
Covenants
|
The Purchaser will ensure that TM will comply with the duties and obligations arising from Clause 7 (
Dynamische Beschäftigungssicherung
) of the framework agreement between TM and the joint works council
(Gesamtbetriebsrat
) of TM (
Rahmenvereinbarung Nr. 01/2011 “Bündnis für Arbeit 2016“ – Rahmenvereinbarung zwischen Gesamtbetriebsrat und Geschäftsleitung der Firma TRUMPF Medizin Systeme GmbH + Co. KG“
) effective as of 1 July 2011, which is listed in
Schedule 10.15.4
.
|
Further, the Purchaser undertakes that each of the existing sites of the Med Group will be maintained with a minimum number of employees (excluding temporary workers (
Leiharbeitnehmer
)) which is equivalent to 95% of the full time equivalent of employees in the respective sites as at 31 May 2014 as shown in
Schedule 14.1.2
. For the avoidance of doubt, employees terminating their employment at will and employees terminated by the respective Med Company for cause (
aus verhaltens- oder personenbedingtem wichtigem Grund
) will not be regarded as a reduction of the respective number of full time equivalent of employees of the respective site. In case of a voluntary transfer of an employee from one site to another, such transfer is deemed to have not occurred. The undertaking of the Purchaser under this subsection is limited
|
|
a)
|
to three (3) years from Closing Date for the sites of TM in Puchheim, Germany, and Saalfeld, Germany; and
|
|
b)
|
to one (1) year from Closing Date for the sites of the Med Group outside of Germany.
|
The Purchaser will ensure that the officers and employees of TUSM will be included in a medical insurance or medical plan maintained by either the Purchaser Guarantor or another directly or indirectly wholly owned Affiliate of the Purchaser Guarantor in the United States, as from the Closing.
|
The Purchaser’ covenants under this Clause 14.1 are referred to as the “
Purchaser’s Covenants
”.
|
Penalty
|
In addition to any other remedies available to the Seller, TRUMPF or any Affiliate of TRUMPF under applicable law, the Purchaser will pay to the Seller a penalty in the amount of EUR 1,000,000.00 (in words: Euro one million) for each individual breach of the Purchaser’s Covenants pursuant to Clause 14.1.2, being understood that the termination of several employees under a single redundancy measure shall be treated only as one individual breach. If such a breach of the Purchaser’s Covenants continues for more than one month, the Purchaser will pay to the Seller an additional penalty in the amount of EUR 10,000.00 per full time equivalent of employees by which the threshold is undercut for each month in which such breach of the Purchaser’s Covenants continues.
|
The payment of a penalty by the Purchaser to the Seller will not affect any rights and claims the Seller, TRUMPF or any Affiliate of TRUMPF may have due to a breach of the Purchaser’s Covenants. However, an amount equal to the penalty paid by the Purchaser will be deducted from the losses suffered by the Seller, TRUMPF or any Affiliate of TRUMPF.
|
Seller’s covenants
|
Non-Compete
|
Non-Solicitation
|
Penalty
|
Covenant regarding Austrian stamp duties
|
Covenant regarding Group Insurances
|
Transitional Services Agreement, Trademark License Agreements, Non-TruName Trademark Transfer Agreement
|
Transitional Services Agreement
|
Trademark License Agreements
|
After the Closing Date, the Med Companies will be entitled to use the trademark rights and domain names listed in
Schedule 16.2.1 (i)
in accordance with the terms and conditions of the license agreement, a draft of which is attached hereto as
Schedule 16.2.1 (ii)
(the “
TRUMPF Interim Trademark Use
Agreement
”).
|
After the Closing Date, the Med Companies will be entitled to use the trademark rights and domain names listed in
Schedule 16.2.2 (i)
in accordance with the terms and conditions of the license agreement, a draft of which is attached hereto as
Schedule 16.2.2 (ii)
(the “
TruName License Agreement
”; together with the TRUMPF Interim Trademark Use Agreement the “
Trademark License Agreements
”)
|
Non-TruName Trademark Transfer Agreement
|
Confidentiality
|
Confidentiality obligation
|
Return of documents
|
Public announcements
|
Guarantee by Purchaser Guarantor
|
Notices and communication
|
General
|
Addresses
|
Seller
|
Address:
|
Johann-Maus-Straße 2
71254 Ditzingen
Germany
|
Attention:
|
Mr Peter Bokelmann
General Counsel
|
Telephone:
|
+49 7156 303-30247
|
Fax:
|
+49 7156 303-930247
|
Email:
|
peter.bokelmann@de.trumpf.com
|
Name:
|
Gleiss Lutz
|
Address:
|
Taunusanlage 11
60329 Frankfurt am Main
Germany
|
Attention:
|
Dr Hoimar von Ditfurth
|
Telephone:
|
+49 69 95514-444
|
Fax:
|
+49 69 95514-198
|
Email:
|
hoimar.ditfurth@gleisslutz.com
|
Purchaser and Co-Purchaser
|
Address:
|
Gustav Mahlerplein, 93-95 Symphony Tower, 1082 MS Amsterdam, The Netherlands
|
Attention:
|
Marco Bijl, VP Legal International
|
Telephone:
|
+31 20 301 1002
|
Fax:
|
+31 203306890
|
Email:
|
marco.bijl@hill-rom.com
|
Name:
|
CMS Hasche Sigle Partnerschaft von Rechtsanwälten und Steuerberatern mbB
|
Address:
|
Barckhausstraße 12-16
60325 Frankfurt am Main
Germany
|
Attention:
|
Dr Heike Wagner
|
Telephone:
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+49 69 71701322
|
Fax:
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+49 69 7170140619
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Email:
|
Heike.Wagner@cms-hs.com
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Purchaser Guarantor
|
Address:
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1069 State Route 46 East, Batesville, IN 47006, USA
|
Attention:
|
Susan R. Lichtenstein, Senior Vice President, Corporate Affairs
|
Telephone:
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+1 312 819 7213
|
Fax:
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+1 312 819 7219
|
Email:
|
susan.lichtenstein@hill-rom.com
|
Name:
|
CMS Hasche Sigle Partnerschaft von Rechtsanwälten und Steuerberatern mbB
|
Address:
|
Barckhausstraße 12-16
60325 Frankfurt am Main
Germany
|
Attention:
|
Dr Heike Wagner
|
Telephone:
|
+49 69 71701322
|
Fax:
|
+49 69 7170140619
|
Email:
|
Heike.Wagner@cms-hs.com
|
Changes
|
Delivery
|
|
a)
|
if conveyed by way of fax, when received in readable form, provided that a fax will be presumed to have been received in readable form if it has been transmitted to the relevant fax number set forth in the Clause 20.2 and the transmitting Party can present a transmission report in due form (
ordnungsgemäßer Sendebericht
); or
|
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b)
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if conveyed by way of letter, when it has been left at the relevant address or five (5) Business Days after being posted with postage prepaid in an envelope addressed to the receiving Party in due form;
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Costs and expenses
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Miscellaneous
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Schedules
|
Amendments
|
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a)
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unless a notarised deed is required by law, by written instrument which has been executed by all Parties and explicitly refers to this Agreement; or
|
|
b)
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by notarised deed.
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Interpretation
|
This Agreement is made in the English language, except for certain Schedules. The English language version of this Agreement will prevail over any translation of this Agreement. However, terms to which a German translation has been added must be interpreted throughout this Agreement as having the meaning assigned to them by the German translation (whether or not the German translation is added to each use of the term).
|
Unless otherwise indicated, the definition of a term in the singular will include the definition of such term in the plural and vice versa.
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The table of contents, headings and sub-headings are for convenience purposes only and will not affect the interpretation of this Agreement.
|
Unless otherwise expressly set forth in this Agreement, a reference to
|
|
a)
|
a “
Clause
”, “
Sub-Clause
” or “
Schedule
” is a reference to a clause, sub-clause or schedule of this Agreement;
|
|
b)
|
the words “
including
”, “
includes
”, “
in particular
” or “
such as
” will be deemed to be followed by the phrase “without limitation” and will not be construed to express limitation in any way;
|
|
c)
|
a “
person
” or “
party
” is a reference to a natural person or a Legal Entity, as applicable.
|
Remedies and waivers
|
Assignment
|
Arbitration
|
All disputes or claims arising out of or in connection with this Agreement will be finally settled under the Arbitration Rules of the German Institution of Arbitration (
Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS
) by three arbitrators appointed in accordance with such Arbitration Rules of the German Institution of Arbitration (
Deutsche Institution für Schiedsgerichtsbarkeit e.V. – DIS
).
|
The place of arbitration is Frankfurt am Main, Germany. Unless otherwise provided for by the Parties and after prior consultation with the Parties, the arbitral tribunal may hold one or more hearings or meetings at any other place or places which it deems appropriate.
|
The substantive law of Germany (excluding any conflict-of-law rules and excluding the United Nations Convention on Contracts for the International Sale of Goods) is applicable to the dispute.
|
The language of the arbitral proceedings is English. Documents drafted/originating in the German language may be submitted without an English translation.
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Partial invalidity
|
|
a)
|
cash and cash equivalents (including, without limitation, cash in hand, deposits with the German Federal Bank and other banks, financial or similar institutions, checks (including fixed term deposits (
Festgelder
))) within the meaning of sections 298, 266 (2) B.IV German Commercial Code (
HGB
);
|
|
b)
|
plus
other securities (
sonstige Wertpapiere
) within the meaning of sections 298, 266 (2) B.III.2 German Commercial Code (
HGB
).
|
|
a)
|
all Closing Actions have been taken or waived in accordance with this Agreement; and
|
|
b)
|
the Preliminary Total Purchase Price has been credited (
gutgeschrieben
) to the bank account of the Seller in accordance with Clause 4.6.
|
|
a)
|
payables owed to financial institutions (
Verbindlichkeiten gegenüber Kreditinstituten
) within the meaning of sections 298, 266 (3) C.2 German Commercial Code (
HGB
);
|
|
b)
|
plus
payables of any kind owed to TRUMPF or an Affiliate of TRUMPF (
Verbindlichkeiten gegenüber verbundenen Unternehmen
) within the meaning of sections 298, 266 (3) C.6 German Commercial Code (
HGB
) (including, for the avoidance of doubt, the Closing Intra-Group Payables), to the extent not resulting from the supply of goods and services (
Verbindlichkeiten aus Lieferungen und Leistungen
);
|
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c)
|
plus
financial loans from third parties other than financial institutions, TRUMPF or Affiliates of TRUMPF (unless already covered by another item of this definition);
|
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d)
|
plus
liabilities on bills accepted and drawn within the meaning of sections 298, 266 (3) C.5 German Commercial Code (
HGB
);
|
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e)
|
plus
accruals for personnel costs relating to severance payments;
|
|
f)
|
plus
other accruals relating to maintenance costs related to restructuring (but excluding any accruals which may occur in relation to the transactions contemplated under this Agreement),
|
|
“
Financial Statements
” is defined in Clause 10.6.1a).
|
|
a)
|
inventories (
Vorräte
) within the meaning of sections 298, 266 (2) B.I. German Commercial Code (
HGB
) (including prepayments made for stock (
geleistete Anzahlungen für Umlaufvermögen
) within the meaning of sections 298, 266 (2) B.I.4. German Commercial Code (
HGB
));
|
|
b)
|
plus
trade receivables resulting from the supply of goods and services (
Forderungen aus Lieferungen und Leistungen
) within the meaning of sections 298, 266 (2) B.II.1. German Commercial Code (
HGB
);
|
|
c)
|
plus
receivables against TRUMPF or an Affiliate of TRUMPF (
Forderungen gegen verbundene Unternehmen
) within the meaning of sections 298, 266 (2) B.II.2. German Commercial Code (
HGB
) to the extent resulting from the supply of goods and services (
Forderungen aus Lieferungen und Leistungen
);
|
|
d)
|
plus
receivables against participation companies within the meaning of sections 298, 266 (2) B.II.3. German Commercial Code (
HGB
) (
Forderungen gegen Unternehmen, mit denen Beteiligungsverhältnis besteht
) to the extent resulting from the supply of goods and services (
Forderungen aus Lieferungen und Leistungen
) to the Participation Companies;
|
|
e)
|
plus
other receivables and assets (other than income taxes) within the meaning of sections 298, 266 (2) B.4 German Commercial Code (
HGB
);
|
|
f)
|
plus
prepaid expenses (other than deferred taxes) (
aktiver Rechnungsabgrenzungsposten
) within the meaning of sections 298, 266 (2) C German Commercial Code (
HGB
);
|
|
g)
|
minus
trade payables resulting from the supply of goods and services (
Verbindlichkeiten aus Lieferungen und Leistungen
) within the meaning of sections 298, 266 (3) C.4 German Commercial Code (
HGB
);
|
|
h)
|
minus
payables of any kind owed to TRUMPF or an Affiliate of TRUMPF (
Verbindlichkeiten gegenüber verbundenen Unternehmen
) within the meaning of sections 298, 266 (3) C.6 German Commercial Code (
HGB
), to the extent resulting from the supply of goods and services (
Verbindlichkeiten aus Lieferungen und Leistungen
);
|
|
i)
|
minus
payables vis-à-vis participation companies within the meaning of sections 298, 266 (3) C.7 German Commercial Code (
HGB
) (
Verbindlichkeiten gegenüber Unternehmen, mit denen ein Beteiligungsverhältnis besteht
) to the extent resulting from the supply of goods and services (
Verbindlichkeiten aus Lieferungen und Leistungen
) to the Participation Companies;
|
|
j)
|
minus
prepayments received on orders (
erhaltene Anzahlungen auf Bestellungen
) within the meaning of sections 298, 266 (3) C.3 German Commercial Code (
HGB
);
|
|
k)
|
minus
accruals for pensions within the meaning of sections 298, 266 (3) B.1 German Commercial Code (
HGB
);
|
|
l)
|
minus
accruals for personnel costs (
Rückstellungen für Personalkosten
);
|
|
m)
|
minus
customer-related accruals (
Rückstellungen aus Kundenbeziehungen
);
|
|
n)
|
minus
other accruals (
sonstige Rückstellungen
) within the meaning of sections 298, 266 (3) B.3 German Commercial Code (
HGB
) (except those relating to maintenance costs related to restructuring);
|
|
o)
|
minus
other liabilities (other than income taxes, Intra-Group Payables and loans maturing less than 1 year) within the meaning of sections 298, 266 (3) C.8 German Commercial Code (
HGB
);
|
|
p)
|
minus
deferred income (
passive Rechnungsabgrenzungsposten
) within the meaning of sections 298, 266 (3) D German Commercial Code (
HGB
).
|
Investor Relations
|
|
Contact:
|
Blair A. (Andy) Rieth, Jr., Vice President, Investor Relations
|
Phone:
|
312-819-7259
|
Email:
|
andy.rieth@hill-rom.com
|
Media
|
|
Contact:
|
Larry Baumann, Executive Director, Corporate Communications
|
Phone:
|
312-819-7248
|
Email:
|
larry.baumann@hill-rom.com
|
HILL-ROM ANNOUNCES DEFINITIVE AGREEMENT TO
ACQUIRE TRUMPF MEDICAL
Combination Will Enhance Product Portfolio
to Create Integrated Operating Room Solutions Provider
Diversifies Revenue Stream and Expands Global Footprint
Immediately Accretive to Adjusted EPS
Company to Host Conference Call Today
|