AEG 21604 G Manual de usuario descargar pdf (Pagina 129)

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To protect the integrity of the business understanding regarding the earn-out consideration during the

earn-out period, the Issuer is required to continue the business of the Guarantor in consistence with past

practice, refrain from taking any actions which could have a negative effect on the opportunity of the

Sellers to receive the earn-out consideration, to cause AEG PS Group to maintain the books and records

in accordance with past practice and to provide quarterly unaudited and annual audited financial state-

ments in accordance with IFRS as supplied in the past, except where such actions have been approved by

the members of the Board of Directors proposed by Ripplewood. In the event that the Issuer undergoes a

change of control during the earn-out period, it has to pay to the Sellers all of the outstanding earn-out

payments that could become due and payable as of the date of such change of control, unless the Sellers'

representative otherwise consents.

The Acquisition Agreement contained customary representations, warranties and covenants, all of which

became ineffective upon the closing of the transaction on 10 September 2009 with the exception of the

warranties regarding title of the shares sold and transferred by the Sellers, due incorporation, capacity and

authorization to execute the Acquisition Agreement. In addition, the Sellers undertook to indemnify the

Issuer for any losses which the Issuer suffers from a breach of such Seller's representations to title of its

shares and ability to enter the Acquisition Agreement to sell its shares, if a claim is made by the Issuer for

losses incurred from a breach of such representation during the five years following closing. The Issuer

will also be indemnified, out of an escrow account, for certain tax liabilities that could become due in

Germany as a result of an ongoing audit by the German tax authorities.

The Issuer and AEG PS Group will be indemnified, solely from amounts on deposit in the tax escrow

fund described below, from German taxes imposed on AEG PS Group or any of its German subsidiaries

(i) for tax years 2004-2007 as a result of the current audit in Germany and (ii) for the 2008 tax year or the

portion of the 2009 tax year ending before the closing date to the extent attributable to issues raised in the

current audit in Germany. The initial amount in the tax escrow fund was EUR 5,000,000 in cash and

500,000 shares. On 21 October 2010 the Issuer and the Sellers entered into a full and final release and

settlement of all claims related to the German tax escrow. By the terms of the agreement, the Issuer re-

ceived an amount of EUR 2,948,801.11 and 5 shares as a full and final settlement of all claims resulting

from the German tax audit.

To protect the Sellers' tax position, the Issuer agreed in the Acquisition Agreement to not make an elec-

tion under Section 338 of the U.S. internal revenues code with respect to any company in the AEG PS

Group. In addition, until 10 September 2011, the Issuer agreed to use its best efforts to maintain the level

operations of AEG PS Group at all times during the taxable year of AEG PS Group in which the closing

of the Acquisition occurred, and to not take any position or action inconsistent therewith. During such

period, without the prior written consent of the Sellers' representative, the Issuer may not undertake any

corporate transaction which could reasonably be expected to cause any of the Sellers or any of their direct

or indirect shareholders, partners, members or equity holders to recognize any gains or losses in the

Shares for US federal income tax purposes. The migration process was explicitly exempted from this

covenant. The acquisition was approved by the Issuer's shareholders on 12 August 2009. The closing took

place on 10 September 2009 after the required clearance from the Russian antimonopoly commission had

been obtained.

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AEG 21604 G Manual de usuario Pagina 129