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,
– hereinafter referred to as
“Seller” –
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
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take-over value, and they include
all storage areas and access drives and all facilities and
structural systems insofar as they are accessories of the property
and buildings. Buyer shall acquire the business properties free of
any encumbrances.
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
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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
(1) Buyer shall enter into all of
Seller’s rights an obligations arising from the following
kinds of contracts and agreements with suppliers of the commercial
business on the transfer date, subject to the approval of the
respective contract partner:
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a)
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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;
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b)
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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).
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(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 ;
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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:
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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;
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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.
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(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:
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business papers and documents that belong to the
commercial business slated for transfer;
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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.
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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.
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(2) If – after the date of
transfer -
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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;
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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;
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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;
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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.
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(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:
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for real estate EUR 5,2
MN.............,
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for moveable fixed assets EUR 0,2
MN....................,
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for inventories ...EUR 0,1
MN.......................,
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(2) The purchase price is due for
payment on 5 th January 2007. It is to be deposited in
Seller’s bank account no. B.R.D. Sighisoara by CONT
..................... IBAN RO49BRDE270SV02692962700 EUR.
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Payment shall be made under the assumption
that:
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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).
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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:
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statutory requirements that concern
approval by creditors for Buyer’s take over of liabilities
and obligations that release Seller from debt;
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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
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unrestrictedly and can be
transferred to Buyer, except for restrictions that arise from basic
software license agreements with program manufacturers.
c) According to the knowledge that Seller is aware
of or must be aware of at the time that this Purchase Agreement is
closed, no copyrights or usufructuary rights of third parties and
no regulations under the Data Protection Act are being breached by
using the company-dedicated and other software and by using all
electronically saved data for the operational purposes of the
commercial business.
8.
The following declaration is made
regarding employment contracts in the event of compulsory automatic
takeover in accordance with Romanian law:
a) All employees are fully listed in Annex 3
a (employees that Buyer shall take over) and in Annex 3
b (employment contracts already terminated and to be terminated
by Seller) and Annex 4 b (employees that stay with the
seller), who are employed in the operations of the commercial
division on the date that this Agreement is closed.
b) Part time employees who work for the commercial
division on the date that this Agreement is closed are fully listed
in Annex 4 c. O
