Exhibit 2.1
Roll of Deeds No. 36/2004
RECORDED
in Frankfurt am Main on July 30/July 31, 2004
Before me the undersigned Lawyer
Dr. Hubertus Kolster
as officially appointed Deputy of the Notary
Prof. Dr. Alexander Riesenkampff
with place of business
Friedrich-Ebert-Anlage 44
60325 Frankfurt am Main
appeared today in the office of Linklaters Oppenhoff & Radler, Mainzer
Landstrasse 16, 60325 Frankfurt am Main, where I appeared upon request of
the
appearing parties:
<PAGE>
1. Markus Florian Stephanblome, Rechtsanwalt, date of birth April 29, 1974
resident:
Cimbernstr.
33 40545 Dusseldorf
place of business
Freshfields
Bruckhaus
Deringer,
Freiligrathstrasse 1, D-40479 Dusseldorf identified by
his German
Identity Card No. 1543593068
The person
appeared under 1.
declared that in the
following, he does
not
act in his own
name, but on behalf of
WP Domus Limited Liability Company (LLC)
466 Lexington Avenue
New York, N.Y. 10017 USA
(hereinafter referred to as "Seller").
He submitted a duly
executed power of attorney dated July 26,
2004 (without
Secretary Certificate
and Apostille). Notarial
certified copy of such power of attorney is attached hereto.
2. Mr. Peter Schulz, date of
birth June 13, 1964
resident:
Josef-Ritz-Weg 88,
81673 Munchen
identified by
his German Identity Card No. 4027077511
The person
appeared under 2. declared that in the following, he does act
in
his own name
and, furthermore,
on behalf of Mr.
Wilhelm Kaiser,
date of
birth April 23,
1966, resident: Breitenbachstrasse 13, 82515 Wolfratshausen
(Mr.
Schulz and Mr. Kaiser hereinafter individually referred to as a
"Manager",
collectively the "Management").
Mr. Schulz
submitted a duly executed power of attorney of Mr. Kaiser,
dated
July
29, 2004. Notarial certified copy of such power of attorney is
attached
hereto.
3. Dr. Markus Kapplinger, Rechtsanwalt, date of birth September 3, 1973,
resident:
Kuglerstrasse
18, 10439 Berlin place of business Linklaters
Oppenhoff &
Radler, Mainzer
Landstrasse
16, 60325 Frankfurt am Main -
identified by
his German Identity Card No. 2536052748
The person
appeared under 3.
declared that in the
following, he does
not
act in his own name, but on
behalf of
Invacare GmbH & Co. KG
Dehmer Str. 66
Bad Oeynhausen
(hereinafter referred to as the "Purchaser")
<page>
which company
will be represented by Invacare Verwaltungs GmbH, which is
represented by
its managing director Mark Prosser.
Dr. Kapplinger
submitted a duly
executed power of attorney, signed by the
aforesaid
managing director,
dated July 29, 2004.
Notarial certified copy
of such power of
attorney is attached hereto.
Furthermore,
Dr. Kapplinger
presented certified excerpts of the Commercial
Register of the
Lower Court in Bad
Oeyenhausen of
Invacare GmbH &
Co. KG
(HRA No. 2461)
and Invacare
Verwaltungs GmbH (HRB
No. 3367),
both dated
July 23
2004. Upon an inspection to this excerpts the Notary hereby
confirms,
that Invacare GmbH & Co. KG shall be
represented
by Invacare
Verwaltungs
GmbH, and that
Invacare Verwaltungs
GmbH shall be represented
by its managing
director Mark Prosser, acting alone.
4. Mr. Fabian Ehlers,
Rechtsanwalt, date of
birth September 8, 1964 resident:
Bohmerstrasse
14, 60322 Frankfurt am Main place of business
Linklaters
Oppenhoff &
Radler, Mainzer
Landstrasse
16, 60325 Frankfurt am Main -
identified by
his German Identity Card No. 4011877187
the person
appeared under 4.
declared that in the
following, he does
not
act in his own
name, but on behalf of
Invacare
Corporation
One Invacare Way
Elyria, OH 44035
USA
(hereinafter referred to as the "Purchaser's Guarantor").
He submitted a duly executed power of attorney, dated July 17, 2004
(without
Apostille).
Notarial certified
copy of such power of attorney is
attached
hereto.
If in the following "notary" is recorded this means at the same time the
officially appointed Deputy of the
notary.
Prior to the following notarization the notary asked the deponents about any
prior involvement pursuant to ss. 3 sub. 1 No. 7 Notarization Act and he
explained this clause. The deponents denied
such prior involvement. Therefore, a
prohibition of involvement of the notary
does not exist.
<PAGE>
The persons appearing requested that this
deed should be recorded in the English
language. The notary, who is in command of the English
language, ascertained
that the persons appearing are also in command of
the English language.
After
having been advised accordingly,
the persons appearing
waived their right to be
assisted by a sworn interpreter and to have
a written translation of this deed.
Before entering into the notarisation the notary advised the appeared
persons
about possible consequences resulting from the fact that sufficient
confirmations with respect to the rights of representation could not be
presented as of yet.
The persons appeared parties then requested
the notarisation of the attached
<PAGE>
================================================================================
Sale and Purchase Agreement
Regarding the Sale and Purchase
of All Shares in WP Domus GmbH
================================================================================
by and among
WP Domus LLC
(hereinafter referred to as the "Seller"),
Mr. Peter Schulz and Mr. Wilhelm Kaiser
(hereinafter individually referred to as a "Manager",
collectively the "Management"),
Invacare GmbH & Co. KG
(hereinafter referred to as the "Purchaser")
And
Invacare Corporation
(hereinafter referred to as the "Purchaser's Guarantor"),
the Seller, the Management, the Purchaser and the Purchaser's Guarantor
hereinafter collectively referred to as the "Parties", and each of them as a
"Party".
<PAGE>
TABLE OF CONTENTS
INDEX OF
DEFINITIONS..........................................................7
INDEX OF ANNEXES
.............................................................13
PREAMBLE
.............................................................15
SECTION 1
CORPORATE OWNERSHIP / STRUCTURE OF THE ACQUISITION...........16
SECTION 2
SALE AND PURCHASE OF THE SHARES; RIGHTS TO PROFITS...........20
SECTION 3
PURCHASE PRICE; PRELIMINARY PURCHASE PRICE;
CONDITIONS OF PAYMENT........................................21
SECTION 4
EFFECTIVE DATE
STATEMENTS....................................25
SECTION 5
CLOSING; CLOSING CONDITIONS..................................28
SECTION 6
SELLER'S AND MANAGEMENT'S GUARANTIES.........................32
SECTION 7
REMEDIES FOR BREACH OF SELLER'S GUARANTIES OR
MANAGEMENT'S GUARANTIES......................................45
SECTION 8
TAXES........................................................52
SECTION 9
PURCHASER'S GUARANTIES.......................................58
SECTION 10
COVENANTS....................................................59
SECTION 11
CONFIDENTIALITY / PRESS RELEASES.............................64
SECTION 12
ASSIGNMENT OF RIGHTS AND UNDERTAKINGS........................65
SECTION 13
PURCHASER'S GUARANTOR........................................66
SECTION 14
COSTS AND TAXES..............................................66
SECTION 15
NOTICES......................................................67
SECTION 16
FINDERS' FEE.................................................70
SECTION 17
MISCELLANEOUS................................................70
<PAGE>
INDEX OF DEFINITIONS
Accounting Principles
shall mean the
accounting
principles of
the Companies attached
as Annex 0 hereto
Affiliate(s)
shall mean affiliated companies within the
meaning of Sections 15 et seq. AktG,
including, for the avoidance of doubt, with
respect to the Seller, the Seller's members
Agreement
shall have the meaning ascribed to it in
the Preamble
AktG
shall mean German Stock Corporation Act
(Aktiengesetz)
BGB
shall mean German Civil Code (Burgerliches
Gesetzbuch)
Business
shall have the meaning ascribed to it in
the Preamble
Business Day
shall have the meaning ascribed to it in
Section 17.3
Cash
shall have the meaning ascribed to it in
Section 3.1.3
Cash Statement
shall have the meaning ascribed to it in
Section 4.1.1
Closing
shall have the meaning ascribed to it in
Section 5.1
Closing Condition(s)
shall have the meaning ascribed to it in
Section 5.2
Closing Date
shall have the meaning ascribed to it in
Section 5.1
Code
shall have the meaning ascribed to it in
Section 8.5 (2)
Company
shall have the meaning ascribed to it in
Section 1.1
Companies
shall have the meaning ascribed to it in
Section 1.3.3 (5)
Companies' Shares
shall have the meaning ascribed to it in
Section 1.3.3 (5)
Consequential Damages
shall have the meaning ascribed to it in
Section 7.1.1
Consolidated Financial
Statements
shall have the meaning ascribed to it in
Section 6.2.2
Debt Statement
shall have the meaning ascribed to it in
Section 4.1.2
De Minimis Amount
shall have the meaning ascribed to it in
Section 7.3
<page>
Deutsche Bank Shares
shall have the meaning ascribed to it in
Section 1.3.1 (1)
DH AG
shall mean Domus Homecare AG
Disclosed Documents
shall have the meaning ascribed to it in
Section 7.4
Domus Companies
shall have the meaning ascribed to it in
Section 1.3
Effective Date
shall have the meaning ascribed to it in
Section 1.6
Effective Date Accounts
shall have the meaning ascribed to it in
Section 4.1
Effective Date Statements
shall have the meaning ascribed to it in
Section 4.1.3
Encumbrance
shall have the meaning ascribed to it in
Section 6.4.2 (1)
Environmental Claim
shall
mean any and all administrative
or judicial
actions, suits,
orders,
claims, liens,
investigations,
complaints, requests
for information,
proceedings, or
other written
communication pursuant
to or relating to
any Environmental
Law by any Person
based
upon, alleging,
asserting,
or claiming
any actual (i)
violation of or
liability
under any
Environmental Law or any permit
or approval
thereunder, or (ii)
liability
for investigatory
costs, cleanup
costs,
removal costs,
remedial costs,
response
costs, natural
resource damages,
property damage,
personal injury,
fines, or penalties related to
pollution,
contamination or
any
Hazardous Material
at any location
Environmental Laws
shall mean any laws,
ordinances, codes
of
conduct, regulations
(including
technical
standards),
administrative
guidelines,
policies and
orders (including European
Community and other
supranational
acts),
as each may be amended
from time to time,
(i) which (as
legislative objective
or in
the individual case)
have as a purpose or
effect the protection
of (or
consequences to) the environment, safety
and health of employees, workers or other
Persons,
including the
public;
(ii)
relate to
consequences of
damages to
the environment,
workers or the public;
(iii) which
classify,
regulate,
call for
the remediation
of, require
reporting with respect
to, or list or
define air, water,
groundwater, solid
waste, hazardous or toxic substances,
materials, pollutants
or contaminants;
<page>
(iv) which regulate,
relate to or govern
any activity regarding
Hazardous
Materials or materials
containing
Hazardous Materials;
(v) or which apply
to zoning, planning
and construction of
buildings or
facilities. For the
avoidance of doubt,
the Federal
Soil
Contamination
Act(Bundesbodenschutzgesetz)
and the Federal Soil Contamination
Ordinance
(Bundesbodenschutzverordnung)
are Environmental Laws.
Estimated Effective Date
Statements
shall have the meaning ascribed to it in
Section 3.2
Euribor
shall mean the rate at which euro interbank
term deposits are offered by one prime bank
to another prime bank and which is
published at 11.00 a.m. CET on the
Moneyline Telerate pages 248 - 249
Facility Agreement
shall have the meaning ascribed to it in
Section 5.5.3
Financial Debt
shall have the meaning ascribed to it in
Section 3.1.2
Financial Statements
shall have the meaning ascribed to it in
Section 6.2.2
Fixed Purchase Price
Component
shall have the meaning ascribed to it in
Section 3.1.1
German GAAP
shall mean German generally accepted
accounting principles
Hazardous Materials
shall mean
any toxic, hazardous,
infectious or
radioactive substance,
material, product
or waste, or any
pollutant or
contaminant, including
those substances,
materials,
products
and wastes
defined
in or regulated
or addressed
by any Environmental
Laws; petroleum and
petroleum products
including crude oil
and any fractions
thereof; natural
gas, synthetic gas, and
any mixtures thereof; and asbestos
HGB
shall mean German Commercial Code
(Handelsgesetzbuch)
Indemnified Litigation
shall have the meaning ascribed to it in
Section 10.6.4
<page>
Information Memorandum
shall have the meaning ascribed to it in
the Preamble
Intellectual Property Rights
shall have the meaning ascribed to it in
Section 6.4.4 (1)
Key Employee(s)
shall have the meaning ascribed to it in
Section 6.4.7 (2)
Leased Real Property
shall have the meaning ascribed to it in
Section 6.4.2
Legal Terms
shall have the meaning ascribed to it in
Section 16.5.2
Management
shall collectively mean the Managers
Management Accounts
shall mean the written financial
data prepared by DH AG with respect to the
consolidated Business and relating to the
six months period ended 30 June 2004
comprised of a balance sheet and an income
statement
Management's Knowledge
shall have the meaning ascribed to it in
Section 6.6
Management's Liability Cap
shall have the meaning ascribed to it in
Section 7.2.2
Manager
each of Mr. Peter Schulz and Mr. Wilhelm
Kaiser
Manager's Liability Cap
shall have the meaning ascribed to it in
Section 7.2.2
Material Agreement(s)
shall have the meaning ascribed to it in
Section 6.4.6
Material Assets
shall have the meaning as defined in
Section 6.4.3
Neutral Auditor
shall have the meaning ascribed to it in
Section 4.4
Nominee
shall have the meaning ascribed to it in
Section 2.3
Notices
shall have the meaning ascribed to it in
Section 15.1
Objections
shall have the meaning ascribed to it in
Section 4.4
Owned Real Property
shall have the meaning as ascribed to it in
Section 6.4.2
Party(ies)
shall have the meaning as defined on the
cover page
Person
shall mean any individual, legal entity or
governmental body
Preliminary Purchase Price
shall have the meaning ascribed to it in
Section 3.2
<page>
Purchaser
Invacare GmbH & Co. KG
Purchaser's Account
shall have the meaning ascribed to it in
Section 3.4.2
Purchaser's Auditor
shall have the meaning ascribed to it in
Section 4.2
Purchaser's Guarantor
Invacare Corporation
Purchase Price
shall have the meaning ascribed to it in
Section 3.1
Purchase Price Adjustment
shall have the meaning ascribed to it in
Section 3.3
Real Property
shall have the meaning ascribed to it in
Section 6.4.2
Registered Share Capital
shall have the meaning ascribed to it in
Section 1.2
Relevant Companies
shall have the meaning ascribed to it in
Section 7.5.2
Reports
shall mean the PwC Vendor's Due Diligence
Reports, the L.E.K.
Vendor's Market
Due
Diligence Presentation
and the Freshfields
Bruckhaus Deringer
Vendor's Legal Due
Diligence Report, in each case as made
available to the Purchaser
Revised Effective Date
Statements
shall have the meaning ascribed to it in
Section 4.3
SEC
shall mean the U.S. Securities and Exchange
Commission
Seller
WP Domus LLC
Seller's Account
shall have
the meaning ascribed to it in
Section 3.4.1
Seller's Auditor
shall have the meaning ascribed to it in
Section 4.1.3
Seller's Knowledge
shall have the meaning ascribed to it in
Section 6.6
Seller's Liability Cap
shall have the meaning ascribed to it in
Section 7.2.2
Share(s)
shall have the meaning ascribed to it in
Section 1.2
Signing Date
shall have the meaning ascribed to it in
Section 1.6
Subordinated Loan
Agreements
shall have the meaning ascribed to it in
Section 1.5
Subsidiary(-ies)
shall have the meaning ascribed to it in
Section 1.3
Tax(es)
shall have the meaning ascribed to it in
Section 8.1
<page>
Taxing Authority
shall have the meaning ascribed to it in
Section 8.1
Tax Contest
shall have the meaning ascribed to it in
Section 8.6.2
Third Party(-ies)
shall mean any individual
person, legal entity or other subject
having legal capacity (Rechtsfahigkeit)
which is not party to this Agreement
Threshold
shall have the meaning ascribed to it in
Section 7.3
U.S. GAAP
shall mean generally accepted
accounting principles in the United States
of America
Warburg Pincus
shall have the meaning ascribed to it in
Section 11.2
Working Capital
shall have the meaning ascribed to it in
Section 3.1.4
Working Capital Statement
shall have the meaning ascribed to it in
Section 4.1.3
WPGV
shall mean WP Gesundheits Verwaltungs GmbH
<PAGE>
INDEX OF ANNEXES
Annex 0
Accounting Principles
Annex 2.2
Share Transfer Agreement
Annex 3.2
Estimated Effective Date Statements
Annex 5.5.1 (b)
Members of the DH AG supervisory board to resign
Annex 5.5.1 (e)
Guarantee Letter by Warburg Pincus Ventures L.P. and
Warburg Pincus Ventures International L.P.
Annex 5.5.2
Waiver Statements relating to ESOP II and ESOP III
Annex 5.5.3
Assignment and Assumption Agreement between, inter
alia, DH AG, Deutsche Bank, the Purchaser
Annex 6.2.1 (1)
List of Articles of Association of certain
Subsidiaries
Annex 6.2.1 (2)
Minority Shareholders in Swiss Subsidiaries
Annex 6.2.2 (1)
(Consolidated) Financial Statements
Annex 6.4.1 (1)
(Consolidated) Financial Statements
Annex 6.4.2 (1)
Real Property owned by the Companies
Annex 6.4.2 (2)
Real Property leased or rented by the Companies
Annex 6.4.2 (4)
Expropriation
Annex 6.4.3
Material Assets
Annex 6.4.4 (1)
Intellectual Property Rights
Annex 6.4.4. (3)
Software Licences
Annex 6.4.5
Compliance with Law
Annex 6.4.6
Material Agreements
Annex 6.4.7 (1)
Collective Bargaining Agreements
Annex 6.4.7 (2)
Key Employees
<page>
Annex 6.4.8
Insurance Policies
Annex 6.4.9
Litigation
Annex 6.4.10
Ordinary Course of Operation
Annex 6.4.11
Hazardous Materials
Annex 6.6
List of Individuals relevant for Seller's Knowledge
Annex 7.1.3
Managers' Liability
Annex 7.4
Documents disclosed in the Data Room
Annex 8.2.1
Taxes
<PAGE>
PREAMBLE
WHEREAS, the Seller is a Limited Liability
Company duly organized under the laws
of Delaware, the members of which are
Warburg, Pincus Ventures L.P. and Warburg,
Pincus Ventures International L.P.;
WHEREAS, the Purchaser is a Limited
Partnership
(Kommanditgesellschaft) with a
Limited Liability Company as general partner (GmbH & Co. KG) duly
organized
under the laws of Germany with registered
offices in Bad Oeynhausen;
WHEREAS, WP Domus GmbH is the majority
shareholder
of Domus Homecare AG
being
the holding company of a group of companies
which belong to Europe's leading
manufacturers of innovative, high-quality mobility aids and bathroom
safety
products for elderly and handicapped people. The business of the group of
companies directly or indirectly owned by Domus Homecare AG comprises the
manufacturing and distribution of bath lifts,
other bathroom safety
products,
walkers, power drives for wheelchairs and power wheelchairs (such business,
taken as a whole, hereinafter also referred
to as the "Business");
WHEREAS, the Seller has determined to sell all of its
shares in WP Domus GmbH,
and the Purchaser wishes to acquire these
shares;
WHEREAS, a confidential information
memorandum prepared by Rothschild GmbH dated
March 2004 (hereinafter referred to as the
"Information
Memorandum"), has
been
made available to the Purchaser
prior to the
negotiation
and signing of
this
sale and purchase agreement (hereinafter
referred to as the "Agreement");
WHEREAS, the Managers of DH AG in
consideration
of the Purchaser
agreeing to
enter into this Agreement have agreed to
give various guaranties relating to the
Business on the terms set out herein;
NOW, THEREFORE, the Parties hereto agree as
follows:
<PAGE>
SECTION 1
CORPORATE OWNERSHIP / STRUCTURE OF THE ACQUISITION
1.1 Particulars of the Company
WP Domus
GmbH (hereinafter referred to as the "Company") is a limited
liability
company (Gesellschaft
mit beschrankter
Haftung) organized under
the laws of
Germany with
registered offices at
Munich and registered with
the Commercial
Register of the Lower
Court (Amtsgericht)
at Munich under
HRB 139980.
1.2 Share Capital of the Company
The registered
share capital
(Stammkapital) of the
Company amounts to EUR
100,000 (in
words: one hundred thousand Euros) (hereinafter referred to as
the "Registered
Share Capital"). The Registered Share Capital is
divided
into the
following shares, all of which are held by the Seller
(hereinafter
collectively
referred to as the "Shares", each a "Share"):
(1) one Share with a par value (Nennbetrag) of EUR 25,000 (in words:
twenty five thousand Euros); and
(2) one Share with a par value of EUR
75,000 (in words: seventy five
thousand Euros).
1.3 Subsidiaries of the Company;
Companies' Shares
The Company
holds shares or interests, directly or indirectly, in the
following
wholly-owned
or majority-owned subsidiaries (hereinafter
collectively
referred to as the
"Subsidiaries" or the
"Domus Companies",
and each of them
as a "Subsidiary"):
1.3.1 Germany
(1) The Company holds 98.2 per cent of
the share capital (Grundkapital) of
Domus
Homecare AG,
Munich,
a
German
stock
corporation
(Aktiengesellschaft)
registered with the
commercial register of
the
Lower Court of Munich under HRB 128656 (hereinafter referred to as
"DH
AG"). The entire share
capital of DH AG
amounts to EUR 7,800,000 and
is divided into
7,800,000 non par
value registered
shares (auf den
Namen lautende
Stuckaktien).
The remaining 1.8 per cent of the
registered share
capital are held by
Deutsche Bank
Luxembourg S.A.
<page>
(hereinafter referred
to as the "Deutsche
Bank Shares") and will
be
sold and transferred to the Company, together with all rights
pertaining to the Deutsche Bank Shares, including, without
limitation,
the rights to receive dividends which are not yet distributed,
before
or at Closing, and the
payment of the purchase price for such shares
which the Purchaser
will make at Closing
pursuant to Section
5.5.5
below shall
be deemed to have been made by the Company on the
Effective Date (thereby reducing the Purchase Price due
hereunder).
(2) DH AG holds 100 per cent of the registered share capital
(Stammkapital) of WP Gesundheits Verwaltungs GmbH, Munich, a German
limited liability
company (Gesellschaft mit beschrankter Haftung)
registered with the
commercial register of
the Lower Court at Munich
under HRB 145182
(hereinafter
referred to as "WPGV"). The entire
registered share
capital of WPGV amounts to EUR 25,000 and is divided
into one share in the amount of EUR 25,000.
(3) DH AG holds a general partner's
interest
(Komplementaranteil)
with a
participation in the
capital (Kapitalanteil) in the amount of EUR
357,546.42 (99.9 per cent) in Ulrich Alber GmbH & Co. KG,
Albstadt, a
German limited partnership (Kommanditgesellschaft) registered with
the
commercial register of the Lower Court at Albstadt under HRA 1319.
The
sole limited
partner of Ulrich Alber GmbH & Co. KG is WPGV with
a
limited partner's interest (Kommanditanteil) which participates in
the
capital in an amount of EUR 357.90 (0.1 per cent). Such
participation
is held by WPGV as trustee (Treuhander) of DH AG which is the
beneficial owner of such participation.
(4) DH AG holds a general partner's interest with a participation in
the
capital in the
amount of EUR
168,608.67
(99.9 per cent) in
Aquatec
GmbH & Co. KG, Isny i.A., a German limited partnership
registered with
the commercial
register of the Lower
Court at Ravensburg
under HRA
967. The sole limited
partner of Aquatec GmbH & Co. KG is WPGV with a
limited partner's
interest which
participates
in the capital in
an
amount of EUR 168.78
(0.1 per cent). Such
participation
is held by
WPGV as trustee of DH AG which is the beneficial owner of such
participation.
1.3.2 Sweden
(1) DH AG is the sole shareholder of Dolomite Holding AB, Gislaved,
Sweden, registered under no. 556551-6878. The registered share
capital
of Dolomite
Holding AB amounts to
SEK 100,000
and is divided
into
1,000 shares with a par value of SEK 100.
<page>
(2) Dolomite Holding AB is the sole shareholder
of Dolomite AB, Gislaved,
Sweden, registered under no. 556509-6673. The registered share
capital
of Dolomite AB amounts to SEK 100,000 and is divided into 1,000
shares
with a par value of SEK 100.
1.3.3 France, Austria, Switzerland,
Canada
(1) DH AG is the sole shareholder of
Mobitec S.a.r.l., Venissieux, France,
registered with the
Registre du Commerce
des Societes de Lyons under
no. B 403457302. The
registered
share capital of Mobitec S.a.r.l.
amounts to EUR
274,450.00
and is divided
into 8,000
shares of EUR
34.30 each.
(2) DH AG is the sole shareholder of
Mobitec Mobilitatshilfen Ges.m.b.H.,
Tiefgraben, Austria,
registered
with the local court
of Wels in the
Company
Book (Firmenbuch) under no. B F N 53543 s. The
registered
share capital of Mobitec Mobilitatshilfen Ges.m.b.H. amounts to EUR
72,672.83 and is divided into 1 share of EUR 72,672.83.
(3) DH AG holds 97 shares in the amount of CHF 1,000 each in the
registered share
capital of Mobitec
Rehab AG (formerly:
Alber AG),
Wurenlos, Switzerland,
registered with the commercial register of the
canton Aargau under
CH-400.3.010.321-B.
The entire share
capital of
Mobitec Rehab AG amounts to CHF 100,000 and is divided into 100
shares
with a nominal amount of CHF 1,000 each. The remaining three shares
in
Mobitec Rehab AG in which DH AG does not hold legal title are held
for
reason of local corporate law only by Messrs. Peter Schulz, Giovanni
Borrelli and Christian
Biedermann-Rok
as trustees of DH AG.
Each of
these three
individuals holds one
share in the nominal amount of CHF
1,000. Accordingly, DH AG is the beneficial owner of such shares as
DH
AG may request at any time that these three individuals transfer
their
shares to DH AG for a nominal consideration.
(4) Mobitec Rehab AG is the majority
shareholder of Alber
GmbH, Wurenlos,
Switzerland,
registered with the
commercial
register of the
canton
Aargau under
CH-400.4.025.214-7.
The entire share
capital of Alber
GmbH amounts to CHF 20,000 and is divided into two shares, one share
with a nominal amount
of CHF 19,000 held by Mobitec Rehab AG and one
share with
a nominal amount of CHF 1,000 held by Christian
Biedermann-Rok for
reasons of local
corporate law only as trustee of
Mobitec Rehab AG.
Accordingly,
Mobitec Rehab AG is the beneficial
owner of such share as Mobitec Rehab AG may request at any time that
<page>
Christian Biedermann-Rok transfers his share to Mobitec Rehab AG
for a
nominal consideration.
(5) DH AG is the sole shareholder of Dolomite Homecare Products Inc.,
Markham, Canada,
registered under no.
257756-9. The registered share
capital of Dolomite
Homecare Products Inc.
amounts to CAD
1,325,000
and is divided into 1,000 non par value shares.
The Company and its Subsidiaries are hereinafter collectively
referred
to as the "Companies". The shares and interests in the Company and
its
Subsidiaries are
hereinafter
also referred to as the "Companies'
Shares".
1.4 Profit and Loss Pooling
Agreement
DH AG and WPGV entered into a profit and loss pooling agreement
(Ergebnisabfuhrungsvertrag) dated 28 August 2003. Apart from this
agreement,
no further enterprise
agreements within the
meaning of Section
291 et seq. AktG
(Unternehmensvertrage
im Sinne der ss.ss.
291 ff. AktG)
exist to which
the Seller or any of the Companies is a party.
1.5 Subordinated Loan Agreements
The Seller has
extended to DH AG a subordinated loan on 23 December 2002 as
evidenced by a
subordinated
loan agreement between the Seller and DH AG
dated 10
February 2004. Each of Seller's two shareholders has extended to
DH AG a
subordinated
loan pursuant to amended and restated
subordinated
loan agreements
between each of Seller's shareholders and DH AG
originally
dated 17
December 1997, 26 March 1998 and 25 August 1998 (as amended
and/or
restated on 16
April 1998, 18 December 1998, 29 March 1999, 19 May 1999 and
19 December
2003). The three subordinated loans referred to in the two
preceding
sentences are
hereinafter referred
to as the "Subordinated Loan
Agreements".
Other than the aforementioned arrangements, there are no loans
or borrowings between the Seller and its Affiliates (other than the
Companies) on
the one part and the Companies on the other part.
1.6 Signing Date; Effective Date
For the purposes
of this Agreement the
"Signing Date" shall
mean the date
this
Agreement is signed on (hereinafter referred to as the "Signing
Date"),
and the "Effective Date" shall mean 24:00 hours
(German time) of
the last day of
the calendar month immediately preceding the calendar month
in which the
Closing occurs
(hereinafter
referred to as the "Effective
Date").
<PAGE>
SECTION 2
SALE AND PURCHASE OF THE SHARES; RIGHTS TO PROFITS
2.1 Sale and Purchase of the Shares;
Rights to Profits
The Seller
hereby sells, and the Purchaser hereby purchases, upon the
terms
and conditions
of this Agreement, the
Shares with commercial
effect (mit
wirtschaftlicher
Wirkung) as of the
Effective Date. The
sale and purchase
of the Shares
hereunder shall include any and all rights pertaining to the
Shares,
including, without limitation, the rights to receive dividends
that
are not yet
distributed.
For the avoidance of
doubt it is agreed that all
profits and
losses of the Companies for the previous fiscal years and for
the current
fiscal year up to and
including the Effective Date will be
taken into
account for the
calculation of the Purchase Price in accordance
with Section
3.1.
2.2 Separate Transfer Document
The Seller and
the Purchaser
agree that the Shares sold and purchased
hereunder
are not transferred by virtue of this Agreement but will be
transferred with
effect "in rem" (mit dinglicher Wirkung) at the Closing by
means of a
separate notarial
transfer deed
substantially
in the form as
attached hereto
as Annex 2.2.
2.3 Purchaser's Nominee
The Purchaser
shall be entitled to
nominate one or more of its Affiliates
(hereinafter
individually
referred to as a
"Nominee") to acquire title to
the Shares or
any part thereof. Such nomination shall be made in writing to
the Seller at least
five Business
Days prior to the
Closing (as defined
below).
Upon such nomination, each Nominee shall assume all rights and
obligations,
and shall otherwise assume the position, of the Purchaser
hereunder.
Purchaser hereby
guarantees by way of an independent promise of
guaranty
pursuant to Section 311 para. 1 BGB the proper fulfillment of all
of the
obligations of each of the Nominees pursuant to this Agreement,
in
particular,
but not limited to,
the payment of the Purchase Price together
with interest on
the Closing Date.
<PAGE>
SECTION 3
PURCHASE PRICE; PRELIMINARY PURCHASE PRICE; CONDITIONS OF
PAYMENT
3.1 Purchase Price
The Purchase
Price to be paid by
the Purchaser for the
Shares as sold and
purchased
hereunder shall be the aggregate of:
3.1.1A fixed amount of EUR 190,000,000.00 (in words: one
hundred ninety million
Euros)
(hereinafter referred to as the "Fixed Purchase Price
Component");
minus
3.1.2 the consolidated nominal amount
of
(1) interest or non-interest
bearing debt
obligations of the Companies to
banks, financial or
other similar institutions as well as all amounts
owed by
any of the Companies to the Seller or its shareholders (or any
other Affiliate
of the Seller) pursuant to the Subordinated Loan
Agreements (to the
extent not
waived or deemed to
have been waived
before or at the Effective Date) or otherwise;
(2) any dividends declared but unpaid
(except for dividends payable to any
of the Companies);
(3) all obligations for deferred
purchase price
payments relating to
the
acquisition of fixed assets (Anlagevermogen);
(4) the net present value as of the
Effective Date of all
obligations of
the Companies as
lessee under leases that have been or, in accordance
with applicable generally accepted accounting principles are required
to be recorded as capitalized leases, i.e. as debt;
(5) the amount of the net present
value of all pension
liabilities of the
Companies
calculated under
U.S. generally accepted accounting
principles (SFAS 87), less the fair value of pension plan
assets;
(6) all Tax liabilities shown or provided by way of an accrual
(Ruckstellung) in the Effective Date Accounts (taking into account
the
tax effects of the payments deemed to be made on the
Effective Date
under Section 5.5.2 (settlement payments under ESOP II and III));
such
Tax accrual shall be determined based on the trial balances (Bilanz
und Gewinn-
und Verlustrechnung in Kontenform) and the monthly
management reporting
for each of the
Companies for the period of 1
<page>
January 2004
up to and including the Effective Date under the
generally accepted accounting principles of the respective
countries
in which the Companies
are located, as if it would have been for a
fiscal year end closing; and
(7) all interest accrued but unpaid and charges due
as of the
Effective
Date and all prepayment penalties or other penalties,
in relation to
any of the above and all other costs, fees and expenses (excluding
for
the avoidance
of doubt interest accrued in the period between the
Effective Date
and the Closing Date and cash collateral or bank
guaranty as set
forth in the
assignment
and assumption agreement
mentioned in Section
5.5.3) to be paid or
taken into account for the
purchase price of the
loan under the
Facility Agreement
payable to
Deutsche Bank and
other banks under the
assignment
and assumption
agreement mentioned in
Section 5.5.3 (such payments deemed to be due
on the Effective Date),
(hereinafter
referred to as
"Financial Debt"),
each as existing or deemed
to be existing
as at the Effective Date;
plus
3.1.3the consolidated amount of cash and cash
equivalents within the meaning of
Section
266 para 2 (B) (IV) HGB as well as the
consolidated
amount of
securities
(sonstige Wertpapiere) within the meaning of Section 266 para.
2
lit.
(B) (III) (3) HGB (hereinafter referred to as "Cash"), each as
existing as at
the Effective
Date, including for the avoidance of doubt
payments
made by direct
debits not yet
credited to one of the
Companies'
bank
accounts.
plus
3.1.4 the amount, if any, by which the
balance of
(1) the consolidated amount of the
inventory within the meaning of Section
266 para 2
(B) (I) HGB and the accounts receivable within the meaning
of Section 266 para 2 (B) (II) (1) HGB (Forderungen aus Lieferungen
und Leistungen), less
(2) the consolidated amount of the trade accounts payable and the
prepayments received
within the meaning of Section 266 para 3 (C) (3)
and (4)
HGB (erhaltene Anzahlungen
auf Bestellungen und
Verbindlichkeiten aus
Lieferungen und Leistungen) as well as vouchers
payable liabilities
for goods and/or
services received for
which an
invoice has not yet been received (ausstehende Rechnungen und/oder
Fremd-leistungen)
<page>
for the Companies (hereinafter referred to as "Working Capital"),
each
existing as per the Effective Date, exceeds EUR 9,900,000 (in
words:
nine million nine hundred thousand Euros);
minus
3.1.5the amount, if any, by which the Working
Capital (for the avoidance of
doubt, including any Working Capital below zero) existing as per the
Effective Date,
falls short of EUR 8,900,000 (in words: eight million nine
hundred thousand
Euros);
(hereinafter
referred to as the "Purchase Price").
3.2 Preliminary Purchase Price
As of the date of this Agreement and based on the financial
information provided by the Seller to the Purchaser, the Parties have
estimated and agreed in the form of the Effective Date Statements (as
defined below)
the Financial Debt, the Cash and any adjustment
resulting from a Working Capital excess or shortfall as
shown in each
case in the estimated
Effective Date
Statements attached
hereto as
Annex 3.2 (the "Estimated Effective Date Statements"). Based on the
Fixed Purchase Price
Component and the
Financial Debt, the
Cash and
any adjustment
resulting from the Working Capital excess or shortfall
as shown in the Estimated Effective Date Statements, the Parties have
agreed on a preliminary purchase price of EUR 145,637,605 (in words:
hundred forty five
million six hundred
thirty seven thousand six
hundred and five Euros) (heretofore and hereinafter referred to as
the
"Preliminary Purchase
Price"). On the Closing Date, the
Preliminary
Purchase Price becomes due and payable and the Purchaser shall pay
the
Preliminary Purchase Price to the Seller into the Seller's Account
(as
defined in
Section 3.4.1 below) by way of wire transfer - to be
credited on the same day - free of any costs and fees.
<page>
3.3 Purchase Price Adjustment
If on the basis
of the Effective Date Statements (as defined in and finally
agreed or
determined
in accordance with Section 4 below),
the Purchase
Price is higher
than the Preliminary
Purchase Price,
the Purchaser
shall
pay to the
Seller an amount equal to the amount by which the Purchase
Price
exceeds the
Preliminary Purchase
Price. If, on the
basis of the Effective
Date Statements,
the Preliminary Purchase Price is higher than the Purchase
Price,
the Seller shall pay
to the Purchaser an amount equal to the amount
by which the
Preliminary
Purchase Price exceeds
the Purchase Price.
Any
such
amount to be paid by either Purchaser or the Seller (hereinafter
referred to as
the "Purchase Price Adjustment") shall be paid as follows:
3.3.1Any Purchase Price Adjustment owed by the Purchaser shall be paid by the
Purchaser
by way of wire
transfer - to be
credited on the same day - free
of any costs and
fees ten Business Days after the Effective Date Statements
have become final and binding upon
the Parties in accordance with Section 4
below to the
Seller's Account.
3.3.2Any Purchase Price Adjustment owed by the Seller shall be paid by the
Seller by way of
wire transfer - to be
credited on the same
day - free of
any costs and
fees ten Business Days
after the Effective
Date Statements
have become
final and binding upon the Parties in accordance with Section 4
below to the
Purchaser's Account (as defined in Section 3.4.2 below).
3.4 Seller's Account; Purchaser's
Account
3.4.1All payments owed by the Purchaser to the Seller under this Agreement
shall be paid by
the Purchaser by irrevocable wire transfer to the Seller's
bank account
held by Warburg,
Pincus Ventures
International, LP and
kept
with JP
Morgan Chase New York, SWIFT code CHASUS 33, account number
323063098 for
further credit to WP
Domus LLC (hereinafter
referred to as
the "Seller's
Account") or any other
account to be nominated by the Seller
to the
Purchaser in writing at least five Business Days prior to the
Closing
Date.
3.4.2All payments owed by the Seller to the
Purchaser under this Agreement
shall be paid by
the Seller by irrevocable wire transfer to the Purchaser's
bank account
kept with Bank One, NA, London, SWIFT code FNBC GB 2X, , sort
code
40-50-20 account number 7170394 (hereinafter referred to as the
"Purchaser's
Account") or any other account to be nominated by the
Purchaser to the
Seller in writing at least five Business Days prior to the
Closing
Date.
<PAGE>
3.5 Interest
The Purchase
Price and any Purchase Price Adjustment shall bear interest at
the rate of 300
basis points over the one month rate Euribor p.a. as of the
next Business
Day after the Effective Date, commencing as of the Effective
Date and (i)
through the Closing Date in relation to the Purchase Price and
(ii)
through the date of payment in relation to any Purchase Price
Adjustment.
Interest shall be calculated on the basis of actual days
elapsed
and a calendar year with 360 days. If any Party is in default
(Verzug) of
payment with regard to the Purchase Price or the Purchase Price
Adjustment,
the Purchase Price or
the Purchase Price Adjustment shall bear
interest at the
rate of 700 basis
points over the one
month rate Euribor
p.a. as for the
time such Party is in default.
3.6 No Right to Set-off
Any right of the
Purchaser or the Seller to set-off and/or to withhold any
payments due
under this Agreement is hereby expressly waived and excluded
except for
claims which are undisputed or res iudicatae.
SECTION 4
EFFECTIVE DATE STATEMENTS
4.1 Preparation of the Effective Date
Statements
The Financial
Debt, the Cash and the Working Capital of the Companies, each
existing
as per the Effective Date, as well as any Purchase Price
Adjustment
resulting therefrom, shall be determined on the basis of
consolidated
effective date financial statements of the Company (the
"Effective
Date Accounts") which are established for the purpose of
deriving the
following statements therefrom:
4.1.1"Cash Statement" shall mean a statement
showing only the Cash
(as defined
herein
and to be calculated in accordance with Section 3.1.3) of the
Companies as of
the Effective Date;
4.1.2"Debt Statement" shall mean a statement
showing only the
Financial Debt
(as defined
herein and to be
calculated in accordance with Section 3.1.2)
of the Companies
as of the Effective Date;
4.1.3"Working Capital Statement" shall mean a statement showing only the
Working
Capital (as defined
herein and to be calculated in accordance with
Sections 3.1.4
and 3.1.5) of the Companies as of the Effective Date;
<page>
The Effective
Date Accounts and the Cash Statement, the Debt Statement and
the Working Capital Statement derived therefrom are heretofore and
hereinafter
collectively
referred to as the
"Effective Date
Statements".
The draft of the
Effective Date Statements shall be prepared by the Company
in cooperation with the Seller and examined by Ernst & Young AG
Wirtschaftsprufungsgesellschaft, Munich (hereinafter referred to as the
"Seller's
Auditor") in accordance with German GAAP, subject to the
accounting
principles used in the preparation of the Consolidated
Financial
Statements
(as defined in Section 6.2.2 (1) below) und such
principles
consistently
applied with past
practice (regardless
whether or not
these
principles
are set out in any
accounting
manuals of the
Companies)
and
subject to
utilizing and
continuing the same
capitalization and
election
rights,
valuation and
consolidation
principles as used in
preparation of
the Consolidated
Financial Statements; provided, however, that the net
present value of
pension liabilities and the fair value of the pension plan
assets
(Section 3.1.2 (5))
shall be calculated in accordance with US-GAAP.
The Effective
Date Statements shall be prepared as of the Effective Date.
<PAGE>
4.2 Review and Delivery of Effective
Date Statements to the Purchaser
The Seller shall
until the Closing Date and the Purchaser shall after the
Closing
Date, instruct the management of each of the Companies to
effectively
assist Seller's Auditor in the review of the
Effective Date
Statements,
in particular by
providing all information and documentation
requested by the
Seller. The
Effective Date Statements prepared by the
Company in
cooperation with the Seller and reviewed by the Seller's
Auditor
shall
be delivered by the Seller to Ernst & Young AG,
Wirtschaftsprufungsgesellschaft, Frankfurt am Main or Dusseldorf (as
nominated
by the Purchaser to the Seller no later than 35
days after the
Closing Date)
(hereinafter
referred to as the
"Purchaser's
Auditor") no
later than forty
five days after the Closing Date. The Purchaser's Auditor
shall
receive all
necessary assistance and shall be given access to
the
management of
the Companies, and to
all relevant
documentation
necessary
for reviewing
the Effective Date Statements, however, excluding the working
papers of the
Seller's Auditor.
4.3 Revised Effective Date
Statements
The determination of the Financial Debt, the Cash
and the Working Capital
of the
Companies shall be based on the Effective
Date Statements to the
extent that the
Purchaser does not within forty five days after the receipt
of the Effective
Date Statements
provide the Seller
with a written report
asserting
that the Effective
Date Statements
received from the
Seller do
not meet the provisions of this Agreement by way of stating specific
objections to
that effect. In such
event revised Effective Date Statements
shall be
prepared by the
Purchaser's Auditor
and submitted to the
Seller
within the very
forty five days' period mentioned before which shall take
into account the
changes that are
necessary in the
Purchaser's
Auditor's
view
(hereinafter referred
to as the "Revised Effective Date Statements").
Seller's Auditor
shall receive all necessary assistance and shall be given
access to the
management of the Companies and to all documentation relevant
for reviewing
the Revised Effective Date Statements, however, excluding the
working papers
of the Purchaser's
Auditor. If no written objections are
raised by the
Seller within forty
five days following
the delivery of the
Revised
Effective Date
Statements by the
Purchaser's
Auditor, then the
Revised
Effective Date Statements shall be final and binding on the
Parties
and the
determination
of the Financial Debt, the Cash and the Working
Capital of the
Companies, each
existing as per the Effective Date, as well
as any Purchase
Price Adjustment resulting therefrom, shall be based on the
Revised
Effective Date Statements.
<page>
4.4 Arbitration Proceedings
If, after the Seller having raised in time and due form its
objections
against the
Revised Effective Date Statements (hereinafter referred to as
the
"Objections"), the Seller and the Purchaser cannot agree on the
changes
to the Revised
Effective Date
Statements within
thirty days following the
delivery of the
Objections, each of
Seller and Purchaser shall be entitled
to request
the "Institut der Wirtschaftsprufer in Deutschland e.V.",
Dusseldorf,
to appoint an auditor to act as an arbitrator
(Schiedsgutachter)
(hereinafter referred
to as the "Neutral
Auditor") to
determine
the correct amount of the Financial Debt, the Cash and the
Working
Capital as at the Effective Date, if and to the extent such
positions are in
dispute between the Seller and the Purchaser. The Neutral
Auditor shall
decide on the issues in dispute within thirty Business Days
after being
appointed by either
Seller or Purchaser in accordance with the
principles set
out in Section 4.1 above. The Neutral Auditor shall give the
Seller and the
Purchaser adequate opportunity to present their views in
writing
and at a hearing or
hearings to be held in the presence of the
Seller and the
Purchaser and their advisors. The Neutral Auditor shall give
reasons for its
decision and on all
issues, which are in
dispute between
the Seller and
the Purchaser. The
Effective Date
Statements as determined
by the Neutral
Auditor shall be final and binding on the Parties subject to
Section 319
BGB.
4.5 Costs of Examination by
Auditors
All costs
arising out of or in connection with the examination by the
Seller's Auditor
shall be borne by the Seller. All costs arising out of or
in connection
with the examination by the Purchaser's Auditor shall be
borne by the
Purchaser alone. In case of arbitration proceedings referred
to in
Section 4.4 the Neutral Auditor may decide in its equitable
discretion
upon the allocation of its costs and expenses, taking into
account the
degree of success and
defeat of each Party.
Each Party shall
bear its own
costs and the costs of its advisors and counsel.
SECTION 5
CLOSING; CLOSING CONDITION
5.1 Closing Conditions; Closing
Date
The consummation of the transactions contemplated by this Agreement
(hereinafter
referred to as
"Closing") shall take
place at the offices of
Freshfields
Bruckhaus Deringer in Frankfurt am Main at 10:00 hours CET,
<page>
five
Business Days after the date on which the last of the Closing
Conditions
set forth in Section
5.2 has been
fulfilled,
or at any other
time or place
which the Seller and the Purchaser will mutually agree upon
(hereinafter
referred to as "Closing Date").
5.2 Closing Conditions
The obligations of the Seller and the Purchaser to carry out the
Closing
shall be subject
to the satisfaction of the following conditions to Closing
(heretofore
and hereinafter collectively referred to as the "Closing
Conditions",
each a "Closing Condition"):
5.2.1The German Federal Cartel Office
(Bundeskartellamt)
shall have cleared the
transaction.
This condition shall
be deemed satisfied if (i) the Purchaser
and/or the
Seller has received a
written notice
from the German
Federal
Cartel Office
that it will not prohibit the acquisition, or (ii) the German
Federal
Cartel Office fails to notify the Purchaser and/or the Seller
within one month
after the pre-merger
filing in accordance with Section 40
para. 1 clause 1
of the German Act Against Restraints on Competition
(GWB)
that it has
commenced a formal
investigation of the proposed acquisition,
or (iii) the German Federal Cartel Office fails to issue an order in
accordance with
Section 40 para. 2 clause 1 GWB to the Purchaser and/or the
Seller within
four months after receipt by the Federal Cartel Office of the
pre-merger
filing, and no extension of the four-month period has been
agreed with the
Federal Cartel Office. Neither the Purchaser nor the Seller
shall
grant its consent and approval to any extension of the waiting
periods
without the prior
written consent of the
respective
other Party
involved.
5.2.2The Norwegian Competition Authority shall have cleared the
transaction.
This condition
shall be deemed
satisfied if: (i) the Purchaser and/or the
Seller
has received a written notice from the Norwegian Competition
Authority
that it will
not intervene in the transaction, or (ii) the
Norwegian
Competition
Authority fails to
order, the Purchaser
and/or the
Seller
within 15 working days after the receipt of the standardized
notification,
the submission of a
complete notification in accordance with
Section 18 para.
3 of the Norwegian Competition Act, or (iii) the Norwegian
Competition
Authority fails to notify the Purchaser and/or the Seller
within 25
working days after the receipt of a complete notification that
it
might intervene
against the transaction in accordance with Section 20 para.
2 of the
Norwegian Competition Act.
5.2.3There shall not have occurred during a period of five
weeks after the
Signing
Date any circumstances, facts or matters after the Signing Date
which
have or which are
likely to have a
material adverse
effect on the
business,
operations,
properties, assets,
financial condition or results,
in each case of
the Business taken as a whole, excluding, however, any such
<page>
circumstances,
facts or matters which
affect the markets
generally or the
markets
in which the Companies operate (for the avoidance of doubt
excluding
in particular any changes to the available reimbursement
regulations
or reimbursement levels) (hereinafter referred to as a
"Material
Adverse Change").
5.3 Obligations with Respect to the
Closing Conditions
The Seller and
the Purchaser
undertake to use their best efforts and to
cause the
Closing Conditions
to be satisfied
as soon as
possible. With
regard to the
merger control
clearance, the
obligations of the Seller and
the Purchaser are more specifically set out in Section 10.1 below.
The
Seller and the
Purchaser shall inform
each other in writing
without undue
delay
(unverzuglich) as soon as the Closing Conditions have been
satisfied.
5.4 Consequences of Non-Satisfaction
of the Closing Conditions
If the Closing
has not occurred
within four months plus five Business Days
after the
Signing Date, the Seller or the Purchaser may rescind this
Agreement
(Rucktritt
vom Vertrag) by
written notice to the
other Parties
with a copy to the acting
notary. Any rescission under this Section 5.4
shall be valid
only if the recipient Party has received such written notice
of rescission
prior to the date on
which the relevant
Closing Conditions
has been
satisfied or waived.
In case of (i) a rescission of the Agreement
under this
Section 5.4 or (ii) if it becomes clear by objective measures
(objektive
Massstabe)
otherwise that the Closing will not occur and, in
each case,
provided that the Closing Condition in Section 5.2.3 has
been
satisfied
(i.e. there has not occurred a Material
Adverse Change in the
period
indicated in Section
5.2.3), the Purchaser
shall pay to the Seller
as full and
final compensation a
lump sum of EUR 6,000,000 (in words: six
million Euro) to
compensate the Seller for any costs and expenses incurred
in connection
with the transactions
contemplated under
this Agreement and
any loss of
value to the Business.
For the avoidance of doubt, if the
Seller
were later to sell the Business for a consideration below the
consideration
agreed
between the Seller and the Purchaser in this
Agreement, the
Seller shall have no right to claim such difference from the
Purchaser.
If this
Agreement is
rescinded in accordance with this Section, this
Agreement shall
cease to have force and effect (without prejudice to claims
of any Party for
breach of any of the terms hereof having occurred prior to
rescission) and
shall not create any binding obligation between the Parties
except that this
Section 5.4 with respect to the lump sum payment, Sections
11
(Confidentiality), 13
(Purchaser's Guarantor), 14 (Costs and Taxes), 15
(Notices) and 17
(Miscellaneous) shall remain in force and effect.
<PAGE>
5.5 Actions on the Closing Date
At the
Closing, the Parties shall simultaneously (Zug um Zug) take the
following
actions:
5.5.1 The Seller shall deliver to the
Purchaser
(a) a duly executed resignation letter (waiving all claims against the
Company), effective at
or prior to the Closing Date, by Mr. Timothy
Curt, the sole managing director of the Company;
(b) duly executed resignation letters (waiving all
claims against DH AG),
effective at or prior to the Closing Date, of all members of DH AG's
supervisory board (Aufsichtsrat) who are listed in Annex 5.5.1
(b);
(c) trust agreements or written confirmations from the legal holders of
the shares held as trustees of DH AG and Mobitec Rehab AG as referred
to in Sections
1.3.3 (3) and (4),
confirming
that the trustor may
request at any time that the trustees transfer their shares to the
trustor for a nominal consideration;
(d) the original of a shareholder's
resolution of the
Company appointing
such person or persons as new managing director(s) of the Company,
effective as of
the Closing Date, as shall be notified by the
Purchaser to the Seller not later than five Business Days prior to
the
Closing Date;
(e) a guarantee letter by Warburg Pincus Ventures L.P. and by Warburg
Pincus Ventures
International
L.P. by which the two
funds guarantee
the proper fulfillment
of all obligations of the Seller under this
Agreement, substantially in the form as attached hereto as Annex
5.5.1
(e);
(f) evidence that Deutsche Bank
Luxembourg
S.A. has transferred to the
Company with effect no later than the Closing Date the Deutsche Bank
Shares;
(g) a written waiver statement of the Banks (as defined in the draft
agreement on the assignment and assumption of claims and
obligations
and the release of
security attached hereto as Annex 5.5.3) with
respect to their pledge over the Shares and the Companies'
Shares and
a release statement in respect of any other collateral, including
land
charges, substantially in the form set forth in Annex 5.5.3;
(h) a copy of a waiver agreement relating to the Subordinated Loan
Agreements, executed
and effected before
the Effective Date
subject
only to the condition subsequent (auflosende Bedingung) that Closing
will not occur.
<page>
5.5.2The Seller shall deliver written
waiver statements of Messrs. Peter Schulz,
Wilhelm Kaiser,
Michael Grindborn,
Lennart Magnusson, Marika Johansson,
Ralf
Ledda, Bernd Engels, Thomas Birmanns, Marc Binder, Cornelia
Wetschorek,
Klaus Schlebes and Jeff Smith by which they declare their
waiver of any
and all rights
pursuant to any employee stock options issued
to them
substantially
in the form of Annex
5.5.2; any payments to be made
in consideration of such waivers shall be deemed to
have been made on the
Effective Date
(thereby reducing the Purchase Price due hereunder).
5.5.3The Purchaser or one or more Affiliates of the Purchaser shall have
acquired from
Deutsche Bank AG,
Munich, and certain
other banks all their
rights
and obligations (by way of assignment and assumption -
Vertragsubernahme)
under a certain
EUR 83 million Term Loan and EUR 10
million
Revolving Credit Facility Agreement dated 20 December 2002
between,
inter alia, DH
AG, the Facility Agent and Deutsche Bank AG as Arranger (the
"Facility
Agreement")
pursuant to an
assignment and assumption agreement
substantially in
the form attached hereto as Annex 5.5.3.
5.5.4The Purchaser on behalf of and for the
account of the Company shall pay to
Deutsche
Bank Luxembourg S.A. the purchase price for the Deutsche
Bank
Shares in an
amount evidenced by
the Seller to the Purchaser in writing no
later than three
Business Days before the Closing Date.
5.5.5The Purchaser shall pay the
Preliminary
Purchase Price in
accordance with
Sections 3.2 and
3.4.
5.5.6The Seller shall transfer the Shares
to the Purchaser by way of a
separate
notarial transfer deed as set out in Section 2.2.
SECTION 6
SELLER'S AND MANAGEMENT'S GUARANTIES
6.1 Form and Scope of Seller's
Guaranties
The Seller
hereby guarantees to the Purchaser by way of an
independent
promise of
guaranty pursuant to
Section 311 para.
1 of the German
Civil
Code
(selbstandiges
Garantieversprechen
im Sinne des ss. 311
Abs. 1 BGB)
within the scope
and subject to the requirements and limitations provided
in Section 7
hereof or otherwise in this Agreement that the statements
set
forth in Section
6.2 are complete
and correct as of the
Signing Date and,
unless
explicitly
provided otherwise in this Section 6, on the Closing
Date. The Seller
and the Purchaser
agree and explicitly
confirm that the
<page>
guaranties
in this Section 6 are
not granted,
and shall not be
qualified
and construed
as, quality guaranties
concerning the object of the purchase
(Garantien fur
die Beschaffenheit der Sache) within the meaning of Sections
443,
444 BGB, respectively, that Section 444 BGB shall not and does
not
apply to the
guaranties contained in this Section 6.
6.2 Seller's Guaranties
6.2.1 Corporate Issues and Authority of the
Seller
(1) The statements in Section 1 hereof regarding the Companies are
complete and correct. The Companies have been duly established and
are
validly existing
under the laws of their respective jurisdiction.
Annex 6.2.1 (1)
contains a true and correct list of the articles of
association (or
equivalent documents)
of the Companies. As
from its
acquisition by the Seller as a shelf company, the sole activities of
the Company were to serve as holding company for the Business.
(2) The Companies' Shares have been validly
issued, are fully paid in,
either in cash or in
kind, are non-assessable (unterliegen keiner
Nachschusspflicht),
have not been repaid and are free from any
encumbrances or other
rights of Third Parties (except for the pledge
of certain Companies' Shares to the financing banks under the
Facility
Agreement, which is to
be released at the latest as of Closing), and
there are no pre-emptive rights, options, voting arrangements or
other
direct or indirect
rights of Third
Parties to acquire any of the
Companies' Shares,
in each case except
under statutory law or
under
the articles of association (or equivalent documents) listed in Annex
6.2.1 (1).
Persons or companies other than the Seller and the
Companies do not hold any direct interest of any type in the
Companies
- except for (i) the
140,400 shares in DH
AG held by Deutsche
Bank
Luxembourg S.A. which
will be transferred to the Company at latest at
the Closing Date, (ii)
the share pledges
mentioned in the
preceding
sentence and (iii) the shares held by the individuals as mentioned in
Sections 1.3.3 (3) and
(4) - and there are no claims for the transfer
or creation of such interest. Except as disclosed in Annex 6.2.1
(2),
there are no silent
partnership agreements
with regard to any of the
Companies or other
rights of third
parties to participate in the
Companies' revenues, profits, assets or equity (or the value
thereof).
(3) As of the Signing Date, no bankruptcy, insolvency or judicial
composition
proceedings concerning
any of the
Companies have been
applied for
and no circumstances exist which would require an
<page>
application for any
bankruptcy,
insolvency or judicial
composition
proceedings nor do any circumstances exist according to any
applicable
bankruptcy or
insolvency
laws which would
justify the avoidance
of
this Agreement.
(4) The Seller is entitled to freely
dispose of the Shares
without such a
disposal infringing any rights of a Third Party.
(5) This Agreement constitutes a valid and binding obligation of the
Seller, enforceable
under German law against the Seller in accordance
with its terms, except as the enforceability thereof may be limited
by
bankruptcy, insolvency, reorganization, moratorium, or other similar
laws relating to or
affecting the rights
of creditors generally
and
except that the remedy of specific performance and injunctive
relief
and other forms of
equitable relief may be subject to equitable
defenses and
to the discretion of the court before which any
proceedings may be brought.
(6) The execution and performance by the Seller of this
Agreement and the
consummation of the
transaction
contemplated
hereby are within
the
limited liabi
