|
Exhibit
2.1
-
Purchase Agreement
between
S. C. PARAT RO s.r.l., domiciled Sighisoara, str. Mihai Viteazu
nr. 92, Kreis Mures, register of companies Mures, nr.
J/26/423/1998, Steuer Nr. RO 10654070, with account nr.
RO56BRDE270SV02692962700, bei der Banca Romana de Dezvoltare
Sighisoara, represented by HARALD OTTMAR GITSCHNER and COTARLAN
RODICA DOINA, Administrator,
and
S. C. ASCI RO, SRL , domiciled Sighisoara, str. Andrei Saguna
nr. 26 bl 103 -1C sc B ap 17, Kreis Mures, register of companies
Mures , nr. J/26/743/2001 , Seuer Nr. RO 14246006 , with account nr
RO38RNCB0191015648030001 , bei der Banca Comerciala Romana
Sighisoara; represented by UWE ZIMMERMANN and PAVEL MOOZ,
Administrator
– hereinafter referred to as "Buyer"
–
Preliminary Statement
Seller operates a business enterprise under the
corporate name PARAT RO s.r.l. Said company is domiciled in
Sighisoara. The purpose of the business is to manufacture, market
and sell airbags and baggage. Seller is registered under the number
J/26/423/1998 in the commercial register of the competent court.
Seller maintains his sole business operation in Sighisoara.
Buyer shall acquire and take over Seller’s
operation of the commercial business with economic effect at 1
January 2007 (hereinafter referred to as the "transfer date")in
compliance with the terms of this Purchase Contract together with
all fixed assets and current assets, accounts receivable, other
rights, liabilities, and other obligations under current contracts
and legal relationships (hereinafter referred to as the "commercial
division"). Buyer shall continue operation of the commercial
division at the current business site in Sighisoara. The Seller
keeps the manufacturing, marketing and selling of baggages
(hereinafter referred to as the "division of
baggage-manufacturing").
This having been said, the contract parties
covenant as follows:
-
§ 1 Objects of sale from fixed assets
(1) Buyer shall acquire the following moveable
fixed assets of the commercial business subject to any rejection
pursuant to subsection (3). Said assets (motor vehicles, machinery
and other equipment, factory and office equipment, including
existing telephone, fax, and data processing systems and their
hardware and software components) are itemized at their current
takeover value in Annex 1 , and they include minor asset
items and items that will be disposed of with Buyer’s consent
following closing of this Agreement.
(2) Buyer shall acquire the business properties
and buildings located upon it likewise subject to any rejection
pursuant to subsection (3). Said real estate items (production
buildings, offices, warehouse and garages) are itemized in Annex
2 at their respective
2
The execution agreement is according to Romanian law.
-
Upon closing this Purchase Agreement, Buyer
offers to Seller the business property and building as outlined in
Annex 2 a for continuing division of baggage production to
the conditions mentioned there in special tenancy agreement,
Annex 2 b.
(3) Buyer may reject taking over the following kinds of
items:
a)
that cannot be used any longer for business
operations due to their irreparable and damaged condition on the
transfer date;
b)
that are damaged beyond normal wear and tear as
common for operating conditions, if Seller does not agree to bear
the cost of repairing them.
(4) If Seller agrees to bear the repair costs pursuant to
subsection (3) letter b) above, then Buyer shall assume execution
of repairs on his own account.
§ 2 Purchased inventory items
(1) Buyer shall acquire the entire inventory (commercial goods)
subject to restrictions in accordance with subsections (2), (3) and
(4) provided that they belong to the aforementioned commercial
division, were purchased for the account of the commercial division
and are physically present on the transfer date in the business
operation or are on order from suppliers and not yet delivered.
(2) Buyer may refuse to take over any such goods that evidence
material defects or do not comply with technical regulations that
apply for the respective class of goods or that are not licensed
for sale in accordance with regulations under public or official
directives in effect after the transfer date.
(3) Buyer shall furthermore acquire
all tools, cleaning an care products, pallets another packing
materials, sales brochures and documents, protective clothing and
similar work clothing, all office supplies and all other raw
materials and supplies for the operating the commercial division
that are present on the transfer date. Buyer shall take over the
requirement to return such items to suppliers, insofar as owned by
suppliers (items on loan), and he shall undertake to release Seller
from the requirement to return them;
(4) Buyer may refuse any items that are slated for take over in
accordance with subsection (3) that can no longer be utilized for
operational purposes due to their defective condition.
§ 3 Taking over employment contracts
(1) Seller shall
terminate the employment contracts of Seller’s employees who
are named separately in Annex 3 . Said contracts shall be
terminated effective as of the transfer date. Buyer (shall
undertake) shall close new employment contracts with the employees
of the Seller named in Annex 3. Said contracts shall take
effect as of 1 January 2007. Additional
3
-
employment contracts shall not be taken over. Buyer shall not
assume any of the obligations established under Seller’s
contracts with the employees designated in Annex 3 from the
period of employment with the Seller up to the transfer date.
Seller shall release Buyer from an such obligations. .
(2) The purchase price shall likewise be reduced
if Buyer is required under mandatory provisions of Rumanian law to
take over additional employment contracts beyond those contracts
expressly stated in Annex 3 . The amount of reduction in the
purchase price shall result from the claims that arise from
employment contracts subject to takeover up to the first date that
is possible for terminating them.
§ 4 Entering contractual relations with suppliers
|
|
a)
|
contracts designated in Annex 5 , under
which deliveries and services are to be accepted or could be used
after the transfer date, subject to the approval of the respective
contract partner;
|
|
|
b)
|
orders for repair of damaged fixed asset items
that were already placed prior to the transfer date, if and in so
far as the costs are charged to Seller in accordance with § 1
(4).
|
-
(2) Seller hereby assigns to Buyer warranty claims and/or claims
arising from product liability against suppliers insofar and to the
extent that they exist or could arise from commercial goods already
delivered and further sold to customers. Buyer herby accepts the
above assignment.
§ 5 Entry into other contractual relationships
(1) Buyer shall enter into Seller’s rights and obligations
arising from the current kinds of contractual and legal
relationships as listed below that are in effect on the transfer
date, with each instance thereof taking effect on the transfer date
and with the consent of the respective contract partner:
a)
leasing and rent contracts designated in Annex
6;
b)
commission agreements designated in Annex
7;
c)
commercial goods contracts with commercial agents
designated in Annex 8;
d)
insurance contracts designated in Annex 9
that pertain to the die objects of sale, buildings and property
pursuant to § 1, subsections (1) and (2) and the lists in
Annexes 1 and 2 ;
4
-
e)
energy supply and waste disposal contracts
designated in Annex 10 ;
f)
additional contracts designated in Annex 11
;
g)
all other contracts related to performances that are
to be handled beyond the transfer date, which are closed by the
transfer date with Buyer’s prior written consent and the
willingness to enter into them. Seller shall prepare a separate
list with the contract’s name, the parties to it, subject
matter of contract, value and date.
(2) After closing this Agreement, Seller shall neither amend nor
unilaterally terminate nor close any contracts of a similar kind
for business operations of the commercial division, as designated
in Annexes 6 to 11 under subsection (1) letters a) to g)
without Buyer’s prior consent. If Seller handles said
contracts contrary to the above assurance, without Buyer’s
consent and prior to the transfer date in the following manner:
|
|
–
|
amends them or closes new ones, then Buyer may
refuse, at his own discretion, to enter into any such contracts or
request from Seller settlement of disadvantages in accordance with
§ 14 that Buyer incurs after the transfer date from taking
over the contract that was amended or closed in breach of
assurance;
|
|
|
–
|
terminates them, then Buyer may request from
Seller settlement of disadvantages in accordance with § 14
that Buyer incurs after the transfer date due to lapse of the
respective contract that was terminated.
|
-
(3) Income and expenses, accounts receivable and accounts
payable arising under contracts taken over pursuant to subsection
(1) shall be allocated to Seller prior to the transfer date and to
Buyer thereafter.
§ 6 Taxes and levies on business operations
(1) Seller shall be reliable for all operational taxes and
charges until date of transfer of commercial division. After that
this obligation turns to the Buyer. Seller shall release the Buyer
from all liabilities which are justified until date of
transfer.
(2) Buyer shall not take over Seller’s debts as justified
and still standing up to the transfer date that arise from VAT that
has accrued for operating the commercial business and from other
accrued business taxes and levies—unless otherwise covenanted
under subsection (1)—for which the assets of the commercial
business and/or its respective owner are liable, including wage
taxes and social security contributions that are due for
withholding prior to the transfer date and including any
obligations of Seller for reimbursing VAT-related prepaid
deductions and other refunds and benefits under tax and levy laws.
Seller is required to release Buyer immediately from any and all
recourse made to him by the creditors of the aforementioned kinds
of debt.
(3) Taxes and levies in connection with the transfer of the
business properties (§ 1 subsection (2)) according to romanian
law shall pay the Buyer.
§ 7 Recording individual items and transfer
(1) Seller shall surrender the following items on the transfer
date to an authorized agent who Buyer shall name:
5
|
|
–
|
business papers and documents that belong to the
commercial business slated for transfer;
|
|
|
–
|
the entire data processing system of the
commercial business operation including all general and
company-dedicated software and all electronically stored data along
with all programs and documentation belonging thereto and all
exiting copies.
|
-
A transfer record shall be prepared of the above
items. Seller shall furthermore cause that all instructions are
given to Buyer’s authorized agent that are necessary for
future use. Buyer shall leave with Seller business papers and
records, software and data that are not required for continuing
business operations and for handling assets that were taken over,
including transferred contractual and legal relationships and/or as
required by Seller for handling the residual assets and tax
conditions that apply to him, or Buyer shall make them available to
Seller in a manner that the parties shall agree upon; for all
remaining purposes, Buyer shall not make or retain any copies of
any such papers and records, software and data.
(2) Seller and Buyer agree that Seller shall assign to Buyer the
following kinds of claims and rights, insofar as assignable and
with respective right in rem to the same on the transfer date:
a)
all claims and other contractual rights arising
under employment contracts and from contractual relationships that
Buyer enters into in accordance with § 3, § 4, § 5
and § 6, and in the event of automatic takeover in compliance
with § 3;
b)
all usufructuary rights, exploitation rights and all
other rights to the company-dedicated electronic software
designated in the transfer record and to the general software that
Seller is entitled to in compliance with the provisions of
respective software license agreements that constitute the basis
for them; and furthermore all rights of the above kind to software
programs and electronically stored files that Seller has created
for the business operation and the respective irrevocable,
unlimited and unrestricted usufructuary right for all types of
usage together with the right to discretionary modification and
outward transmission and all other existing exploitation rights
pursuant to Sections 69 a to 69 g of the German Copyright
Act.
Seller shall assert and exercise the aforementioned kinds of
claims and rights in accordance with the arrangements made under
§ 8 (3) below on a fiduciary basis in the event that
assignment cannot be made effectively due to a current assignment
ban based on law or contract.
§ 8 Exclusion of more extensive takeover, withholding and
release obligations, handling non-transferable rights and
obligations.
(1) Buyer shall not take over contractual and other legal
relationships from Seller other than the tangible assets, accounts
receivable and accounts payable, rights and obligations set out
under § 1 to § 5, § 7 as arising under contracts and
other legal relationships. Non-transferred contractual and other
legal relationships shall remain with Seller. Unless otherwise
agreed under this Agreement, Buyer shall also not take over, in his
relation to Seller, any such liabilities and obligations that are
justified by the business operations of the commercial division
that transfer to Buyer by virtue of mandatory law or for which
Buyer, in his capacity as purchaser of the business operation
and/or of the assets he takes over, bears personal liability or
liability in rem by virtue of mandatory law. Seller shall remain
the sole debtor in relation to the respective creditor insofar as
Buyer takes over performance of Seller’s liabilities or
obligations in compliance with the terms of this Agreement. Seller
shall release Buyer from all liabilities that arise under this
clause.
6
|
|
–
|
Seller receives payments or other performances
toward accounts receivable and other claims that shall be
transferred to Buyer under the terms of this Purchase Agreement,
then Seller is required to transfer them immediately to
Buyer;
|
|
|
–
|
Buyer receives payments or other performances
toward accounts receivable and other claims that shall be
transferred to Seller under the terms of this Purchase Agreement,
then Buyer is required to transfer them immediately to
Buyer;
|
|
|
–
|
recourse is made to Seller that arises from
liabilities and obligations that Buyer shall take over under the
terms of this Agreement or that Buyer is required to fulfill for
Seller under the terms of this Purchase Agreement, then Buyer is
required to release Seller immediately from any kind of recourse
whatsoever;
|
|
|
–
|
recourse is made to Buyer from liabilities and
obligations that Buyer shall not take over under the terms of this
Agreement or that Buyer is not required to fulfill for Seller under
the terms of this Purchase Agreement, then Seller is required to
release Buyer immediately from any kind of recourse
whatsoever.
|
-
(3) The parties hereby agree as follows if the
contract partners fail to consent to Buyer’s take over of
liabilities and other contractual obligations that release Seller
from debt and/or to assignment of accounts receivable and other
contractual rights under exclusion of contract or subject to
agreement that arise from the contracts that Buyers shall take over
in accordance with § 4, § 5:
a)
Buyer shall fulfill all of Seller’s
liabilities and other obligations vis-à-vis the contract
partner and immediately release Seller from any and all recourse to
him. Seller shall assert all of Buyer’s non-transferable
claims and other contractual rights and fulfill all contractual
obligations vis-à-vis the contract party that he is required
to fulfill personally on a fiduciary basis for Buyer in accordance
with Buyer’s instructions and for Buyer’s account.
Seller hereby irrevocably authorizes Buyer to assert the rights
under this Purchase Agreement vis-à-vis third
parties.
b)
Seller is required to transfer all payments and
other performances to Buyer, which he received from fiduciary
handling of contractual partners, and to issue ongoing account
settle statements to Buyer regarding the same. Buyer is required to
release Seller immediately from any and all recourse made by
contract partners or third parties.
§ 9 Purchase price
(1) The net purchase price (without VAT) is EUR 5.5 MN (in words
five million five hundred thousand euro). The above purchase breaks
down as follows:
|
|
-
|
for real estate EUR 5,2
MN.............,
|
|
|
-
|
for moveable fixed assets EUR 0,2
MN....................,
|
|
|
-
|
for inventories ...EUR 0,1
MN.......................,
|
7
|
|
Payment shall be made under the assumption
that:
|
-
a. the original suretyship document pursuant to § 15 is
available to Automotive Safety Components International GmbH &
Co. KG, Maybachstr. 7, 31135 Hildesheim, on 4th January 2007,
12.00.
b. that the original commitment letter of PARAT Automotive
Schönenbach GmbH & Co. KG, An der Hasenjagd 7, 42897
Remscheid, concerning the ban on competition pursuant according the
agreement between PARAT and ASCI from 27 th November
2006, that is essential part of this contract, is available to
AUTOMOTIVE SAFTEY COMPONENTS INTERNATIONAL GMBH & CO. KG on 4
th January 2007, 12.00.
c. the mortgages of 1 Mn Euro in the land registers no. 9808,
9809 and 9853 under C-3, C-7 and C-1 are removed; the Seller shall
deliver proof of the deletion until 20 th December
2006.
If these preconditions are not fulfilled until the mentioned
dates, the maturity of the payment is postponed seven days after
fulfillment of the last condition.
(3) If from a fiscal point of view VAT is due on the purchase
price and/or other payments, the contracting parties agree that the
VAT has to be paid form Buyer to the Seller additionally to the
purchase prices mentioned in this agreement immediatly, regardless
of asserted input tax claims. The Seller will do everything that
the Buyer can apply for the VAT deduction.
(4) Sighioara is deemed place of performance for all payments of
Buyer and Seller, with exception of payments from the suretyship
pursuant to § 15.
(5) Set-off and/or retention for counter-claims is prohibited
with regard to all mutual claims to payment insofar and to the
extent that the respective counter-claim is secured by a bank
guarantee or guarantee (§ 15).
§ 10 Seller’s declarations concerning the condition
of the business operation and of the objects being sold
(1) Unless otherwise stated, Seller states as follows regarding
the respective condition on the transfer date (Numbers 1 to
14.):
1.
Petition has not been filed for opening an
insolvency proceeding (according to Romanian Law) against
Seller’s assets, nor has any such proceeding been opened or
dismissed due to lack of assets, nor are any other requirements
given that would require Seller in compliance with insolvency
statutes to file a petition for opening an insolvency proceeding
(according to Romanian Law).
2.
Petition has not been filed for opening an
insolvency proceeding (according to Romanian Law) against
Seller’s assets, nor has any such proceeding been opened or
dismissed due to lack of assets, nor are any other requirements
given that would require Seller in compliance with insolvency
statutes to file a petition for opening an insolvency proceeding
(according to Romanian Law).
8
-
3.
Seller is not subject to any sale restrictions and
no third party rights are given regarding tangible assets, claims
and rights and obligations as arising under contracts and other
legal relationships that shall be transferred to Buyer under the
terms of this Purchase Agreement, except for:
-
-
–
statutory requirements that concern approval by
creditors for Buyer’s take over of liabilities and
obligations that release Seller from debt;
–
required approvals of contract partners so that
Buyer may enter into Seller’s rights and obligations under
contractual and legal relationships that are subject to
transfer;
4.
The moveable fixed assets being sold in accordance
with § 1 (1) Annex 1 are present within the business
operation, except for any disposals caused by operational use after
the closing of this Purchase Agreement.
5.
The objects being sold in accordance with § 2
are adequately available in terms of the kind and quantity thereof
insofar as they are required for continuing the business
operation.
6.
Seller is not in default in meeting liabilities,
other obligations and incumbent responsibilities arising under
contractual and legal relationships that Buyer shall be taking
over. Other claims of respective contract partners due to breach of
duties or interference with the inherent basis of contract are not
given and have also not been raised, except for any claims pursuant
to § 437, German Civil Code, due to materially defective
supplies and deliveries of the commercial business. Litigation
concerning the objects and rights sold in accordance with § 1
and § 2 and/or that involves the contractual relationships
that Buyer is taking over in accordance with § 4 and § 5
is neither pending on the date that this Agreement is closes, nor
has notice been made of any such litigation. <
/font>
7.
The following declaration is made concerning the EDP
software and electronically saved data that Buyer is taking
over:
-
-
a) The
software designated in Annex 13 or in the transfer record
and the saved data of the commercial division
–
have previously not been made available to other
third parties except for Seller and to employees of the commercial
division—also in the event that they depart the
company—who are obligated to maintain strict confidentiality
and to employees of software suppliers, who are likewise obligated
to maintain strict confidentiality. Said software and saved data
shall not be rendered accessible to third parties by Seller and by
employees of the commercial division who are not transferring to
Buyer. Copies or other reproductions of said software and saved
data do not exist, except for those copies or reproductions being
transferred to Buyer, and Seller shall not produce copies of
them;
–
shall no longer be used by Seller after the transfer
date, except in accordance with the second paragraph of the
"Preliminary Statement" and § 1, (2) subsection 2 for
continuing residual operations of the commercial business by Seller
in accordance with arrangements made pursuant to § 1
(2).
b) Seller in his capacity as owner of the commercial business is
entitled to the unrestricted, exclusive and perpetual usufructuary
right to the software designated in Annex 13 or in the
transfer record. Said right is transferable to Buyer. All other
data processing programs used by the commercial business may be
used
9
|
