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Exhibit 10(a)


TRANSLATION 




Notarial Deed No. 54/2005









Negotiated




in Frankfurt am Main on March 30, 2005




Before the signing attorney-at-law




Dr. Norbert Kissel




as officially appointed deputy of the notary




in the District of the Higher Regional Court at Frankfurt am Main




Dr. Hilger Speiser




with official residence in Frankfurt am Main





	 	appeared today:
	 
	 	1.  	Mr. Klaus Michael Flesch, born on December 4, 1961,

business address Kühnheimer Straße 21 in 79206 Breisach,

by presenting his identification card, issued by the Municipality Breisach am Rhein
with the No. 6654188479.
	 
	 	2.  	Mrs. Angelika Kornelia Flesch, birth name Giener, born on June 25, 1960,

business address Kühnheimer Straße 21 in 79206 Breisach,

by presenting her identification card, issued by the Municipality Breisach am Rhein
with the No. 6654188413.




 









 





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	 	3.  	Mr. Subramanian Krishnan, born on June 20, 1954,

residing in Plymouth, Minnesota, USA,

by presenting his identification card, issued by the Passport Agency Chicago, U.S.A.
with the No. 027709822.
	 
	 	4.  	Mr. Dieter Vesper, born on April 15, 1954,

business address Joseph-von-Fraunhofer-Straße 23, 44227 Dortmund,

by presenting his identification card, issued by the Community Ismaning with the No.
8267199644.
	 
	 	5.  	Rechtsanwalt Ralph Hummel, born on March 13, 1956,

business address Neue Mainzer Straße 52-58 (Main Tower),

60311 Frankfurt am Main, by presenting his identification card, issued by the City of
Frankfurt am Main with the No. 4012532234.
	 
	 	   	The appearing persons No. 1) and 2) are acting in their own names – in the following
referred to as “A. and K. Flesch”.
	 
	 	   	The appearing persons to 1) and 2) further each acting as members of the management board
with sole representation right of Embedded Solutions AG with seat in Breisach, registered
in the Commercial Register of the local court of Freiburg i. Br. under HRB 428 Bs – in the
following referred to as “Vendor”. The representation right of the appearing persons No.
1) and 2) have been proved to the deputy notary by providing a certified excerpt from the
Commercial Register dated February 17, 2005 which has been attached to this deed in
certified copy as Exhibit A.
	 
	 	   	The appearing persons to 1) and 2) are further in the following not acting in their own
names but as sole Managing Directors of FS-FORTH-SYSTEME GmbH Entwicklung von Hard- und
Software, registered in the Commercial Register of the local court of Freiburg under HRB
212 BS. The representation right of appearing persons No. 1) and 2) have been proved to
the deputy notary by providing a certified excerpt from the Commercial Register dated
February 17, 2005 which has been attached to this deed in certified copy as Exhibit B.
	 
	 	   	The appearing person No. 1) is further in the following not acting in its own name but as
one of the two Administratores of Sistemas Embebidos S.A.U., registered in the Commercial
Register of La Rioja under the number 491, Folio 128, Page Number LO-7, 562m inscription.
The representation right of the appearing person to No. 1) has been proven to the deputy
notary by a German language certificate of the












 





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	 	   	attorney at law Dr. Kai Fischer in Barcelona / Spain of today, which was available in copy
and has been attached to the deed as Exhibit C. The appearing person promised to provide
an original of this certificate to the notary for review within due course.
	 
	 	   	The appearing persons No. 3) and 4) in the following are acting not in their own name but
each of them as Managing Directors with sole representation right of Digi International
GmbH with seat in Dortmund, registered in the Commercial Register in the local court of
Dortmund under HRB 13962, in the following referred to as
“Purchaser”. The representation
right of the appearing persons No. 3) and 4) has been proven to the deputy notary by
providing a certified excerpt from the Commercial Register dated March 23, 2005 which has
been attached to this deed in certified copy as Exhibit D.
	 
	 	   	The appearing person No. 3) is not in command of the German language. As translator for
the English language the appearing person No. 5) has been acting. The appearing person No.
5) is not generally sworn in as translator. Upon advice by the deputy notary, all
participants waived the swearing-in under oath by the appearing person No. 5). The
appearing person No. 3) has been advised that he could require the preparation and
presentation for review as well as attachment to this deed of a written translation of
today’s notarial deed. Upon advice, he waived that right.
	 
	 	   	The notary asked the appearing persons, whether he, the deputy notary, the notary in
office or a person, who is occupationally related to him, has been or is acting in this
matter, which is subject to notarization, beyond his official duties as notary. The
persons appearing negated a prior involvement after being advised by the deputy notary
regarding the prohibition of his prior involvement in accordance with § 3 para. 1 No. 7
German Notarization Code (Beurkundungsgesetz).





Preamble




The Vendor holds the entire share capital of FS Forth-Systeme GmbH Entwicklung von Hard- und
Software in the amount of € 224,000.00 consisting of one share in the nominal amount of €
224,000.00 and the entire share capital of Sistemas Embebidos S.A. in the amount of € 125,000.00
consisting of 125,000 shares with a nominal value of € 1.00 each.












 





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Vendor wishes to sell all of its shares in these two Companies and the Purchaser wishes to buy all
the shares in the Companies on the terms and conditions set out herein.




The appearing persons then requested notarization of the following




Purchase and Assignment Contract




and declared the following for notarial recording:





	1.  	Definitions
	 
	   	For the application and interpretation of this Agreement, the following terms and
expressions shall, unless the context otherwise requires, have the following meanings:
	 
	   	Accounting Principles means the accounting principles which comply with current German
or Spanish accounting practices and regulations as applicable used on a consistent basis
for the production of the accounts and financial statements of the Companies also
referred to as German and/or Spanish GAAP.
	 
	   	Claim means any claim of the Purchaser against the Vendor under the representations and
warranties, including any claim made as a result of a Third Party Claim against the
Companies.
	 
	   	Companies means GmbH and S.A. collectively or individually, as the case may be.
	 
	   	Completion Date means the date of this Agreement and the transfer of the shares in the
Companies with legal effect.
	 
	   	Digi USA means Digi International Inc., a Delaware corporation.
	 
	   	GAAP means generally accepted accounting principles as applied in the United States of
America.












 





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	   	GmbH means FS FORTH-SYSTEME GmbH Entwicklung von Hard- und Software, a German limited
liability corporation whose registered office are located at Küferstrasse 8 in 79206
Breisach, Germany registered in the Commercial Register of Freiburg i. Breisgau under
HRB 212 BS.
	 
	   	Key Employees means those employees as shown in Exhibit 1. Reference is made to this
Exhibit 1. Upon advice by the deputy notary the participants waived the reading of this
Exhibit 1.
	 
	   	Representations and Warranties means the representations and warranties set out in
Section 5 and 9.
	 
	   	Restricted Business means the business currently carried on by the Companies, namely the
business of development, manufacturing and distribution of embedded computer modules
with correspondending firmware programs in Germany, Spain and the other territories
where the Companies carry on business or are preparing to commence business as at the
Completion Date and the business of distributing, licensing and the use of or acting as
value added reseller of such products in certain territories where the Companies carry
on such business or are preparing to commence such business as at the Date of
Completion.
	 
	   	Shares means the shares constituting the entire issued capital of the Companies held by
the Vendor.
	 
	   	Shareholder’s Equity means the shareholder’s equity (,,Eigenkapital“) under § 266 (3) A.
HGB (German Commercial Code).
	 
	   	Sistemas Embebidos S.A. means a Spanish stock corporation with limited liability whose
registered offices are located at CL Calvo Sotelo, 1 1DR, 26003 Logrono (La Rioja),
Spain, registered at the Companies’ Commercial Register of La Rioja at Volume 491, Folio
128, Page Number LO-7, 562, inscription 1.
	 
	   	Spanish Investment Grants means the nine investment grants as specified in more detail
on Exhibit 5.1.14 to which reference is made. Upon advice by the deputy notary the
participants waived the reading of this Exhibit 5.1.14.
	 
	   	Third Party Claims means such claims as may be asserted against any of the Companies in
accordance with Nr. 8.3 of this Agreement.












 




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	   	Vesting Day means March 31, 2005 being the day of transfer of the Shares in the
Companies with economic effect.
	 
	2.  	Sale and Purchase of the Shares
	 
	2.1  	Sale. The Vendor hereby sells its entire equity holding in GmbH representing one
share in the nominal amount of € 224,000,00 to the Purchaser who accepts them. The Vendor
further hereby sells its entire equity holdings in SA consisting of 125,000 shares in the
total nominal amount of € 125,000,00 to the Purchaser who accepts them. In each case the sale
is completed with economic effect as at 24.00 hours on 31 March 2005 (“Vesting Day”) with all
the associated rights and obligations. In each case the completed sale shall include all
ancilliary rights (“Nebenrechte”) appertaining to the shares including all voting and dividend
rights and all undistributed profits. At the same time, Vendor shall sell and transfer at no
cost ownership in any specific assets and business that reside in Embedded Solutions AG and
are related to GmbH’s and S.A.’s business and which are described in more detail in Exhibit
2.1 to GmbH to which reference is made. Upon advice by the deputy notary the participants
waived the reading of this Exhibit 2.1.
	 
	2.2  	Assignment. In completion of the sale in accordance with Nr. 2.1 the Vendor hereby
assigns to the accepting Purchaser its abovementioned share in the GmbH and the shares in the
S.A. under the suspensive condition of full and complete payment of the Initial Payment which
immediately falls due under Nr. 3.2.1.
	 
	3.  	Consideration and Payment
	 
	3.1  	Full Purchase Price. The total purchase price potentially due to the Vendor amounts
to US-$ 6,400,000, increased or reduced as provided for in Nr. 3.2.2 and 3.2.3 “Method and
Payment Date”. Thereof, 75% belong to the Shares in the GmbH and 25% to those in the S.A.












 





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	3.2  	Method and Payment Date.
	 
	3.2.1  	At the Completion Date, the Purchaser shall pay US-$ 4,400,000 in cash to Vendor by bank
wire transfer (the Initial Payment), such amount being subject to post-closing adjustments as
provided for in Nr. 3.2.3 “Method and Payment Date”.The Initial Payment at the time of
Completion shall be made in Euros by applying an following exchange rate of € 1.30677.
	 
	3.2.2  	The Purchaser shall pay in Euros to the Vendor subject to and in compliance with the
following Retention and Earn Out Terms one additional purchase price instalment of US-$800,000
on October 1, 2006 and one of US-$ 1,200,000 on October 1, 2007. For these payments, to be
made in Euros, a fixed exchange rate of US-$ 1.32094 for Euro 1.00 shall be applied. The
payment components and terms are shown in Exhibit 3.2.2.
	 
	3.2.3  	As of the Vesting Day, Vendor will deliver the Companies with a shareholder’s equity of EUR
406,354.76 for GmbH which is the shareholder’s equity as of September 30, 2004 and a
shareholder’s equity of EUR 209,479.54 for S.A. which is the shareholder’s equity as of
December 31, 2004. If the combined shareholder’s equity of the GmbH and of the SA as
calculated from the Vesting Day Accounts as described under Nr. 6 below, and/or from the
corrections to it by the arbitrators, is less than the combined guaranteed equity of EUR
615,834.30, the purchase price and the Initial Payment shall be reduced by an amount equal to
the difference. If the combined shareholder’s equity of the Companies calculated from the
Vesting Day Accounts as described under Nr. 6 below and/or from the corrections made to it by
the arbitrators is greater than the combined equity of EUR 615,834.30, the purchase price and
the Inital Payment shall be increased by the difference. However, no purchase price decreases
or increases shall be made to the extent that any difference between GmbH’s shareholder’s
equity on September 30, 2004 and March 31, 2005 or at any later date is caused by GmbH’s
release from the pension obligation and the subsequent transfer of the connected pension
insurance as provided under Nr. 4.4. c) below. Any adjustments to the purchase price and the
Initial Payment under this Nr. 3.2.3 shall be paid by the party owing any such amounts within
eight (8) days as from the date when the relevant Vesting Day Accounts became binding on the
parties. For the purpose of the above adjustment, the parties agree that for the currency
conversion, the same exchange rate as the exchange rate used for the Initial












 





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	   	Payment as provided for under Nr. 3.2.1 shall be applied. At Closing, the combined
liabilities of the two Companies shall in no event exceed EUR 390,600 If the combined
liabilities of the Companies calculated from the Vesting Day Accounts as described under
Nr. 6 below and/or from the corrections made to it by the arbitrators is greater than
EUR 390,600, the purchase price and the Initial Payment shall be decreased by the
difference unless such difference has already resulted in a respective decrease of the
combined shareholder’s equity and a corresponding purchase price reduction under the
provisions above. For any payment owed by the Vendor from such purchase price reduction,
the above provisions in this No. 3.2.3 on payment terms and the exchange rate apply
respectively.
	 
	3.2.4  	Purchaser is entitled to deduct amounts for claims for damages under Nr. 8 and Nr. 9 from
any payments which Purchaser is required to make from outstanding payments under this Section
Nr. 3.2.2,
	 
	3.2.5  	All payments to be made under this contract shall, from the due date until the date of
actual payment, be subject to interest at an interest-rate of 3.5 basis points above EURIBOR
for 3-month Euro-deposits.
	 
	3.2.6  	All payments under this Agreement shall be made to the following bank accounts:






	 	a)  	Vendor: Embedded Solutions AG

Deutsche Bank Freiburg

Account: 246421

Bank Code 680 700 30

Swift: DEUTDE6F
	 
	 	b)  	Purchaser: Digi International GmbH

Deutsche Bank, Dortmund

Bank Code 44070050

IBAN DE10440700500149808800

BIC DEUTDEDE440






	4.  	Completion – Delivery of documents
	 
	   	Prior or simultaneous transactions to the Completion Date
	 
	4.1  	The Vendor warrants that, at the Completion Date:






	 	a)  	all intercompany receivables and liabilities between the Vendor and the
Companies have been settled;












 





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	 	b)  	all specific assets as specified in Exhibit 2.1, have been validly
transferred by the Vendor to the GmbH for one Euro;
	 
	 	c)  	the current Microsoft Partner Alliance Agreement and the Wind River
Partner Alliance License Agreement with Wind River will be continued unchanged.






	4.2  	Delivery of Documents. The Vendor shall deliver, at Completion of this Agreement, to
the Purchaser:






	 	a)  	the sole share certificate issued for the entire share capital of S.A.
which at Completion of the Agreement will be endorsed by Vendor to Puchaser;
	 
	 	b)  	- deleted -
	 
	 	c)  	originals of the minutes of any required General Meetings of the
Companies and declarations by the Companies related to the sale of the Shares; and
	 
	 	d)  	the two new Managing Director Service Agreements with GmbH duly
executed by Klaus Flesch and Angelika Flesch, each in form as attached as Exhibits
4.2 d) – KF and 4.2 d) – AF to which reference is made. Upon advice by the deputy
notary the participants waived the reading of Exhibits 4.2 d) – KF and 4.2 d) – AF;
	 
	 	e)  	originals of the minutes of the supervisory board meeting of Vendor
approving the sale of the Shares;
	 
	 	f)  	written confirmations from Microsoft and Wind River referred to under
4.1 d) above.






	4.3  	The Purchaser shall deliver, at the date of this Agreement, to the Vendor:






	 	a)  	the initial payment by bank wire transfer under 3.2.1.;
	 
	 	b)  	the two new Managing Director Service Agreements referred to under
4.2., d) above duly counter-executed.





4.4 Post-Completion / Delivery of Documents





	 	a)  	Guarantees. The guarantees and other collateral given by Frau
Angelika Flesch and Herr Klaus Flesch and listed in Exhibit 4.4 have been taken up
on behalf of the GmbH/S.A. The Purchaser undertakes to assure the within ten
working days from the signature of this contract and the return of the related
originals of guarantee and other deeds within a reasonable period of time.












 




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	 	b)  	Domaine Names. Any domaines listed on Exhibit 5.1.9 and not
directly held by GmbH or S.A. shall be transferred to one of the Companies selected
by the Purchaser as soon as reasonably possible.
	 
	 	c)  	Pension Obligations. GmbH is released from the pension
obligation which is described in more detail in Exhibit 4.4.c) in conjunction with
the transfer of the connected pension insurance (“Rückdeckungsversicherung”) within
a reasonable period of time but not more than 60 days upon such transfer. Upon such
transfer neither the GmbH nor K. and A. Flesch shall have any claim or counter
claim under this or any other pension committment or the above transfer;
	 
	 	d)  	Share Ledger. On the Vesting Day, the Parties will jointly
arrange for the registration of Purchaser instead of Vendor in the S.A.’s share
ledger as well as for required filings with the Spanish authorities.






	5.  	Vendor’s Liability to Assessments
	 
	5.1  	Statements by the Vendor. The Vendor and A. and K. Flesch (in the following also
referred to as “the Vendor Group“) declare jointly and severally to the Purchaser that,
regardless of fault, they vouche for the fact that on the day of concluding this contract the
following information is correct and complete with the proviso that (i) their liability for a
possible breach of this liability to assessment is exclusively governed by the rules set out
in Nr 8, to the exclusion of all legal consequences, and thus the restrictions of liability
described in Nr 8. are applicable (such as upper and lower limits of liability, procedural
rules, and special rules regarding the extinction of claims due to lapse of time) and (ii) the
liability to assessments assumed by the Vendor and A. and K. Flesch in this clause Nr. 5. does
not therefore represent any guarantee, and in particular represents no guarantee of the
composition or nature of the object in question within the meaning of §§ 443, 444 BGB (the
German Civil Code), but represents an independent liability sui generic under § 311 (1) BGB.:
	 
	5.1.1  	Legal status of the GmbH and the SA. The GmbH and the S.A. are properly constituted
in accordance with the law applicable to their status under company law and have a valid
existence. Each of them possesses the necessary juridical














 






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	   	powers to hold assets and to carry on business in accordance with the law applicable to
their status under company law. At the occasion or in connection with the continuation
of the sole proprietorship carried out by Angelika Flesch under the name Forth-Systeme
until the formation of GmbH in 1991, GmbH did not make any payments or payment
committments.
	 
	5.1.2  	No insolvency. No insolvency or similar proceedings concerning the assets of the
GmbH or the S.A. have been initiated. Neither the management of the GmbH, nor that of the S.A.
is under any obligation to initiate an insolvency or comparable proceedings.
	 
	5.1.3  	Equity participation in the GmbH and in the S.A.. The Vendor is the owner of the
equity holding in the GmbH that has been sold and assigned and of the sold and assigned shares
in the S.A.; it may freely dispose of either holding and no third-party rights exist in them.
	 
	5.1.4  	No other equity holdings. The GmbH and the S.A. have no equity holdings in any
companies, and there are no decisions pending for the acquisition of such holdings. The same
applies to interests in partnerships, silent partnerships and profit participation agreements.
	 
	5.1.5  	No third-party rights of acquisition. With respect to the sold and assigned holding
in the GmbH and shares in the S.A. there are no existing pre-emptive rights, rights of first
refusal, option rights or other rights legally entitling a third party to acquire these
holdings. The sold equity holding and shares in each case constitute the entire issued share
capital and there are also no third party rights for the granting of new shares or other
profit participation rights. The Vendor is not bound by any option, voting or similar
agreements regarding its shareholding in the Companies.
	 
	5.1.6  	Documents required by company law. The copies (i) of the articles of association and
(ii) extracts from the Commercial Register, which were handed over by the Vendor to the
Purchaser before the conclusion of this contract and which are attached as Exhibits 5.1.6 a),
b), c) and d) represent the relevant current status of the articles of association as well as
the content of the Commercial Register in respect of the GmbH and S.A. Neither for the GmbH
nor for the S.A. are there any pending amendments to the articles of association or any filing
of information pending with the Commercial Register. All filings required by applicable laws
have




 









 





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	   	been made. For the S.A., only one single share certificate has been issued for the
entire share capital. The GmbH has not issued any share certificate. Reference is made
to Exhibits 5.1.6 a), b), c) and d) to which reference is made. Upon advice by the
deputy notary the participants waived the reading of Exhibits 5.1.6 a), b), c) and d).
	 
	5.1.7  	No outstanding claims for dividends or other payments. Neither the Vendor nor K. and
A. Flesch or any of their related parties (“nahestehende Personen”) are entitled to any claims
against the GmbH or the S.A. for hitherto unpaid dividends or other payments of any kind.
	 
	5.1.8  	Real estate. The Companies own no real estate.
	 
	5.1.9  	Intellectual Propery Rights. Neither the GmbH nor the S.A. or K. and/or A. Flesch
owns any protected commercial rights other than the domaines listed on Exhibit 5.1.9.
	 
	5.1.10  	Significant individual assets. To the best of the Vendor’s knowledge the GmbH and
the S.A. are unrestricted owners of or enjoy contractual rights of use over all movable items
in the fixed asset register, the absence of which would have significant deleterious effects
on the overall business activities of the GmbH or the S.A.
	 
	5.1.11  	Employees. Neither in the GmbH, nor in S.A. are there any agreements of a
collectively binding nature in force (wage agreements, plant agreements, requirements for
unanimous approval by the workforce and similar collective agreements), which might entitle
the employees of the GmbH or of the S.A. to claim special forms of remuneration (Special
annual payments, bonuses, profit share, anniversary payments, share options or similar rights,
pensions etc.). None of the Companies has a Works Council or similar employees’ representation
body. To the best of the Vendor’s knowledge no infringements are being committed against any
provisions of employee protection legislation of significance to the protection of employees
of companies. Besides their current managing director service agreements, neither K. Flesch
nor A. Flesch are parties to any other service or employment agreement with any of the
Companies. As of the Vesting Day, the Companies do not employ any other employees (including
any free lancers) other than those listed separately for each Company on Exhibit 5.1.11.




 









 





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	5.1.12  	Permits and licences. The GmbH and the S.A. are in possession of all governmental
permits and licences, the lack of which would have significant deleterious effects on the
overall business activities of the GmbH or the S.A.
	 
	5.1.13  	Litigation. In the event of having to defend a lawsuit, borrowings and/or reserves
of an adequate amount have been built up in the GmbH and/or S.A. Currently, none of the
Companies is involved in any pending litigation and, to Vendor’s best knowledge, no litigation
is threatening.
	 
	5.1.14  	Investment Grants. With the exception of the Spanish Investment Grants listed for
the S.A. on Exhibit 5.1.14, none of the Companies has received or applied for any other
Investment Grants or other public funds. All information provided by S.A. in connection with
Spanish Investment Grants specified on Exhibit 5.1.14 to the competent authorities and other
offices has been correct and complete. The Spanish Investment Grant projects number 1 through
8 are fully completed and there are no indications for a claim for repayment with the
exception. As of the Vesting Day, there are no indications against granting the Investment
Grant for project Nr. 9. Reference is made to Exhibit 5.1.14. Upon advice by the deputy notary
the participants waived the reading of this Exhibit 5.1.14.
	 
	5.1.15  	– deleted -
	 
	5.1.16  	Accounts receivable. As at Vesting Day neither the GmbH, nor the S.A. has any
overdue accounts receivable for shipments and services. The term ,overdue’ in the above
context applies to accounts receivable for shipments and services, which have already been
outstanding for more than 90 days.
	 
	5.1.17  	Stocks. As at the Vesting Day neither the GmbH nor the S.A. holds stocks in excess
of six months’ requirements, except for stock which is held for a specific valid undisputed
purchase order.
	 
	5.1.18  	Intercompany loans. As of March 29, 2005, the only intercompany accounts and loan
accounts in existence between the GmbH and the S.A. are those listed in Exhibit 5.1.18. Any
changes through the Vesting Day will be limited to those in the normal course of business.
Reference is made to this Exhibit 5.1.18. Upon advice by the deputy notary the participants
waived the reading of this Exhibit 5.1.18.




 









 





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	5.1.19  	Agreement with Vendor. Between the Vendor’s Group (and its related parties) and the
Companies, no agreements except those specified in this Nr. 5.1.19 do exist:






	 	a)  	A sales co-operation agreement of October 15, 2002 exists between the
Vendor and the GmbH and/or S.A. These agreements are terminated as of the Vesting
Day.
	 
	 	b)  	The business procurement contract dated 07.02.2002, between the Vendor
and the GmbH will be terminated as of the Vesting Day.






	5.1.20  	Computers and Software. The Companies own all the computer systems and software
necessary to run their businesses fully and effectively to the extent to which it is presently
conducted. The computers, software and software packages used by the Companies are owned by
it, or are subject to licenses, authorizations or rights of use for the benefit of the
respective company. All amounts, if any, payable by the Companies under such licenses,
authorizations or user rights have been duly paid. No person is entitled to receive any
royalty in respect of the use, development and exploitation by Companies or its licensees of
the software owned by the respective company. In case of default, the Vendor guarantees to
regularize the situation in a form acceptable for the Companies, which is unconditionally
accepted by the Purchaser.
	 
	5.1.21  	Insurance.






	 	a)  	Exhibit 5.1.21 contains a list of the insurance policies subscribed by
the Companies, indicating the risks covered, the maximum amounts of compensation
and the applicable excess. Reference is made to this Exhibit 5.1.21. Upon advice by
the deputy notary the participants waived the reading of this Exhibit 5.1.21. Each
of the Companies is up to date with respect to the payment of the premiums due for
each of such policies, which are currently in force and has not breached any
provision of such policies which may call into question its right to compensation.
There are no outstanding claims made by the Companies under any of such insurance
policies whatsoever. To the best knowledge of the Vendor, no circumstances exist
which might give rise to such a claim.




 









 





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	 	b)  	The Vendor warrants that the Companies have adequate and sufficient
insurance coverage for risks reasonably related to their business.






	5.1.22  	Environment.






	 	a)  	The Companies have obtained all the necessary permits and
authorizations with respect to applicable environmental regulations that they
require in order to carry out its respective business.
	 
	 	b)  	The Companies are in compliance and have always complied with the
environmental permits and authorizations granted to it, as well as with applicable
environmental regulations.
	 
	 	c)  	No goods of whatsoever nature are stocked (whether permanently or
temporarily) in any property used by the Companies which might be the basis of a
liability claim by any third party as a result of contamination or pollution.
	 
	 	d)  	None of the Companies has incurred to this date, any liability with
respect to any cleaning or decontamination obligation whatsoever relating to land
or property either currently occupied or occupied in the past by it.






	5.1.23  	Absence of Changes. The Vendor declares that for the GmbH, between September 30,
2004 and the Vesting Day, and for the S.A. between December 31, 2004 and the Vesting Day,






	 	a)  	there has been no material adverse change in the turnover of the
Companies compared to the same period of the past financial year;
	 
	 	b)  	no interim financial statements have been established apart from those
as of March 31, 2005;
	 
	 	c)  	he has managed the Companies in accordance with reasonable management
practices and the Companies have carried on business in the ordinary and normal
course;
	 
	 	d)  	he has ensured that no agreement or undertaking has been entered into
by the Companies other than in the normal course of business;




 









 





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	 	e)  	he has not allowed the Companies to sell, rent, transfer or, in any
manner whatsoever, dispose of any major asset are of importance for the business
activities of the Companies;
	 
	 	f)  	he has ensured that the Companies have taken all reasonable steps
necessary to preserve and protect their assets and have immediately notified the
Purchaser of any substantial change relating thereto;
	 
	 	g)  	he has not acted and has ensured that the Companies have not acted in a
manner incompatible with the provisions hereof or with the execution of the
agreements referred to hereunder;
	 
	 	h)  	he has ensured that no distribution of dividends has been made, voted
or approved by the Companies;
	 
	 	i)  	he has ensured that neither of the Companies has acted in a manner
incompatible with the provisions of any agreement to which it is a party;
	 
	 	j)  	he has ensured that neither of the Companies has taken out any loan, or
entered into any borrowing or other undertaking that might increase the financial
indebtedness of the Companies other than in the normal course of business;
	 
	 	k)  	he has ensured that none of the Companies has granted to any party
whatsoever any guarantee, endorsement, security or collateral whatsoever, except
those reasonably given in the normal course of business;
	 
	 	l)  	he has ensured that no decision has been taken by the Companies that
would result in any amendment to the articles of association;
	 
	 	m)  	he has ensured that no major decision has been taken that would have a
substantial impact on the financial or commercial position and on the operation of
any one of the Companies and in particular (the following list being
non-exhaustive) a decision which results in the termination, refusal of renewal of
agreements or the renewal of agreements on higher price terms (or otherwise less
favorable), without the Purchaser’s prior written consent;




 









 





- 17 -



	 	n)  	he has ensured that no increases in the salaries and payments to be
made, in whatsoever form, by the Companies to its employees or managers have been
granted, except those reasonably given in the normal course of business, and
	 
	 	o)  	the Companies have not lost an important customer or supplier.






	5.1.24  	Financial statements. The unconsolidated financial statements of GmbH as of
September 30, 2004 and the interim financial statements of GmbH for the six month period
ending on March 31, 2005 as well as the unconsolidated financial statements of S.A. as of
December 31, 2004 and the interim financial statements of S.A. for the 3 month period ending
on March 31, 2005, (together, the “Financial Statements”) have and will have been prepared in
accordance with German and Spanish GAAP, as applicable, on a basis consistent with past
practice, in particular with respect to valuation methods and depreciation rules, and present
in all material respects a true and fair view of the assets, liabilities, financial position
and results of operation of each of the Companies separately as of the date, and for the
period, to which they relate. All provisions and reserves, if any, made are sufficient to
cover all risks and liabilities. The conversion of the September 30, 2004 financial statements
of GmbH for US balance sheet accounting purposes has been prepared in accordance with US GAAP.
All Financial Statements from 2004, to which reference is made, are attached as Exhibit
5.1.24. Upon advice by the deputy notary the participants waived the reading of this Exhibit.
	 
	5.2.  	No ongoing liability to assessments. Beyond the information given in Nr 5.1, the
Vendor makes no further statements as to the legal and economic situation of the GmbH and S.A.
and assumes no ongoing liability to assessments. In particular, the Vendor assumes no
exceeding liability, and the Parties exclude as far as is legally permissible any liability on
the part of the Vendor, regardless of its legal basis, for the accuracy and/or completeness of
any information supplied to the Purchaser or its advisers by the Vendor or its advisers,
including information exchanged orally or in writing between the Parties in the course of
their discussions and negotiations.
	 
	5.3  	The Vendor’s best knowledge. For the purposes of this contract the term ’to the best
of the Vendor’s knowledge’ is taken to mean the actual personal knowledge of the relevant
circumstances on the part of Klaus and Angelika Flesch, and excludes all legislative
provisions concerning the attribution of knowledge.




 









 





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	6.  	Vesting Day Accounts
	 
	6.1  	Only and exclusively for the purpose of calculating the book-value of the shareholders’
equity and the total of all liabilities (see Nr. 3.2.3), interim financial statements will be
drawn up for the GmbH as of the Vesting Day (in accordance with the provisions of the German
Commercial Code) and interim financial statements will be drawn up for the S.A. (in accordance
with the provisions of the Spanish Accounting Principle) and delivered by the Vendor within 30
days upon the Vesting Day. Both interim financial statements are separately or collectively
also referred to as the “Vesting Day Accounts“. In addition, conversions of the Vesting Day
Accounts for the Companies to US GAAP will be delivered by the Vendor within 30 days upon the
Vesting Day; such conversion shall be based on the same principles applied by the Vendor for
the US GAAP conversion of the September 30, 2004 financial statements of GmbH.
	 
	6.2  	In view of the fact that the drawing up of the interim accounts on the Vesting Day will
already be carried out at the instigation of the Purchaser, the Parties agree the following:






	 	(i)  	Vendor shall arrange for and Purchaser shall cooperate in drawing up
the Vesting Day Accounts on the basis of the practice applied hitherto in the GmbH
and the S.A. for the presentation of accounts, including the valuation standards.
	 
	 	(ii)  	The Purchaser shall instruct the GmbH and the S.A. not to carry out any
partial depreciation of the fixed assets of both companies, not to make any
provisions for bad debts other than the normal blanket provision applied hitherto,
except where the receivables are overdue (5.1.16), and not to make any stock
write-downs except where stocks are held in excess of six months’ requirements,
unless those are held for a valid undisputed purchase order (5.1.17).
	 
	 	(iii)  	Should the Parties not reach agreement on the amount of the combined
shareholder’s equity and/or the total liabilities of the Companies and/or any
corresponding purchase price adjustments, on the basis of the Vesting Day Accounts
to be drawn up as at Vesting Day, , then each of the Parties is entitled to apply
to the President of the Chamber of Auditors in Berlin for an arbitrator to be
appointed. The application for the appointment of the arbitrator




 









 





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	 	   	must be lodged within thirty days from the delivery of the Vesting Day Accounts. The
arbitrator must be a qualified auditor for both Companies’ accounts if both are
under dispute, if needed two separate arbitrators shall be appointed. After hearing
the arguments of the Parties, the arbitrator has to examine the Vesting Day
Accounts of the GmbH and/or the S.A. as at Vesting Day in the light of the
principles stated earlier. This examination shall only and exclusively be carried
out for the purpose, binding on both Parties, of ascertaining the amount of the
combined shareholders’ equity of the Companies on Vesting Day and the total
liabilities in each of the Companies on Vesting Day. The arbitrator shall also use
his discretion in deciding as to who should bear the costs of the arbitration.
	 
	 	(iv)  	Should the decision of the arbitrators cause a reduction of the Initial
Purchase Price under Nr. 3.2.1 because more extensive provisions against accounts
receivable or stocks either, contrary to (ii) above, are, in the opinion of the
arbitrator, absolutely required, or because, in drawing up the Vesting Day
Accounts, provisions were already made for overdue accounts or for too large a
stock coverage, then the Vendor may demand, (,,Zug um Zug“) against redurction of
the purchse price under 3.23 such purchase price reduction, that receivables and/or
stocks written down in this way are transferred and assigned to itself.






	6.3  	The Vesting Day Accounts will become binding upon the Parties, if






	 	(i)  	none of the Parties has applied for appointment of an arbitrator within
30 days from delivery of the Vesting Day Accounts, or
	 
	 	(ii)  	eight (8) days from the delivery of the arbitrator’s decision to both
Parties for all of the Vesting Day Accounts provided to the arbitrator for its
decision.






	7.  	Declarations and Undertakings by the Purchaser






	7.1.1  	Completeness of information. Before the conclusion of this contract the Purchaser
received in good time from the Vendor all information about the GmbH and S.A. which the
Purchaser believes to be necessary to make an appropriate decision about concluding this
contract. All the Purchaser’s questions on the legal and economic situation of the GmbH and
S.A. have been answered and no requested information is outstanding. The Purchaser’s decision
to acquire the GmbH and S.A. and to conclude this contract does not rest, as far as the
Purchaser is






 









 






- 20 -





	   	concerned, on the Purchaser being convinced of the presence or absence of specific
circumstances and in particular of specific financial parameters of the GmbH and S.A.,
apart from the statements in this contract.
	 
	7.1.2  	No knowledge of the inaccuracy of statements by the Vendor. The Purchaser is not
aware of any incorrect statements made by the Vendor in Nr. 5.
	 
	7.1.3  	Renewal of lease. The Purchaser undertakes to instruct the GmbH and the Vendor to
instruct Klaus & Arno Flesch GbR, to renew and fulfil the existing lease contract on the
building in Kueferstraße in Breisach at least until 31 December 2008 on the same terms as
hitherto. The contract as agreed is attached as Exhibit 7.1.3, to which reference is made.
Upon advice by the deputy notary the participants waived the reading of this Exhibit. At the
end of this period the lease contract will be renegotiated at fair market value.
	 
	8.  	Legal Consequences of Breaches of Contract by the Vendor
	 
	8.1  	Proceedings. A claim by the Purchaser in accordance with Nr 8.2 requires that (i) the
Purchaser immediately informs the Vendor, but in any case not later than 30 days of having
knowledge of them, of the circumstances entitling the Purchaser to make a claim under Nr 8.2;
in so doing the Purchaser must present the grounds for its claim specifically identifying the
statements that are in its opinion inaccurate and giving a sufficiently detailed description
of the facts of the case, and (ii) the Purchaser on request makes copies available of all
due-diligence reports or other audit reports that may have been prepared by the Purchaser or
his advisors in connection with the transactions provided for in this contract and provides
the Vendor with all the information which he requires in order to verify the Breach of
Contract and the extent of his liability. The Vendor Group must provide the Purchase with all
information and documentation related to such claim which is available to it. § 377 HGB
(German Commercial Code) shall not apply to this Agreement.
	 
	8.2  	Payment of damages. In the event of a statement by the Vendor in Nr. 5.1 or Nr. 9.1
proving incorrect or of any other breach of this contract by the Vendor (“Breach of
Contract”), the Purchaser may demand under the terms in this Nr 8. that the Vendor within a
reasonable period, but not later than one month from the receipt of the request, restores,
initially through natural restitution, the Purchaser or the GmbH or the S.A. if they are
affected by the Breach of Contract, to the




 









 











- 21 -





	   	position it or they would be in had the Breach of Contract in question not taken place.
If within the appropriate period set for this the Vendor has not restored the
circumstances to their prior state, the Purchaser may demand monetary compensation from
the Vendor.
	 
	8.3  	Third party claims. In the event that a third party should, after Completion, assert
a claim or threaten to assert a claim against the Company (including, but not limited to, any
tax assessment) which is likely to give rise to a Claim by the Purchaser against the Vendor:






	 	a)  	Subject to Article 8.3(b) below, the Purchaser shall defend the
relevant Company, at the cost of the Vendor, from any such Third Party Claim and
will be free to take any decision which it may consider useful to so defend, in the
most practical manner, the relevant Company. However, the Purchaser shall not be
entitled to start up, continue or cease any arbitration or trial or enter into any
settlement without the prior approval of the Vendor. The Purchaser shall use its
reasonable endeavors to limit the prejudice suffered by the Company or by itself.
	 
	 	   	The parties shall designate by mutual agreement the lawyer in
charge to defend the affected Company’s interests. The final choice in case of
disagreement shall be made by the Vendor.
	 
	 	b)  	The Purchaser shall however:






	 	(i)  	notify such Third Party Claim to the Vendor as soon as
practicable and at the latest within 10 business days from the date of receipt
of the written Third Party Claim to the relevant Company or to the Purchaser;
	 
	 	(ii)  	procure that the Vendor has full access to the information and
documents needed and required to understand the Claim asserted against the
relevant Company and the relevant Company’s defense;
	 
	 	(iii)  	procure that the relevant managers and the Vendor be involved
in the various stages of proceedings initiated for the purpose of defending the
relevant Company’s interests, at the expense of the Vendor, and




 









 











- 22 -





	 	(iv)  	associate and consult with the Vendor and take into account the
Vendor’s reasonable views before making a joint decision in respect of the
defense to the Third Party Claim or the settlement of the Third Party Claim.






	 	c)  	The Vendor, inasmuch as he may have control of some evidence or
information material to the defense against the Third Party Claim, shall fully
disclose and deliver to Purchaser any such evidence or information.






	8.4  	Exclusions of liability. The Purchaser has no claim under Nr. 8.2, if and to the
extent that:






	 	(i)  	the Purchaser has contributed to the origin or enlargement of the
damage;
	 
	 	(ii)  	the damage arises from a change in legislation or in the general
administrative practice of the authorities or from a change to the Purchaser’s
accounting principles, or to those of the GmbH or S.A. after the conclusion of this
contract;
	 
	 	(iii)  	the Purchaser, the GmbH or the S.A. are entitled to payment claims
against third parties, in particular against insurance companies, arising from or
connected with the Vendor’s Breach of Contract or with the damaged caused by it;
	 
	 	(iv)  	the Purchaser, the GmbH or the S.A. gain financial benefits, including
tax advantages, from or in connection with the Vendor’s Breach of Contract or with
the damage arising from it;
	 
	 	(v)  	the circumstances creating the Breach of Contract or the damages
arising from it are covered by the liabilities, reserves, or deferred liability
items contained in the financial statements of the GmbH for the year ending
30.09.2004 or those of the S.A. for the year ending 31.12. 2004;
	 
	 	(vi)  	no reserves of any kind whatsoever in the annual accounts of the GmbH
for the year ending 30.09.2004 or those of the S.A. for the year to 31 December
2004, are necessary to cover the risk in question or if payments of written-off
accounts receivable have been made;




 









 











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	 	(vii)  	the Vendor is subject to claims with an effect equivalent to that
arising from the shareholders’ equity resulting from adjustments under Nr. 3.2.3
(no double claim).






	8.5  	Minimum and maximum sums for liability. The Purchaser only has a claim under Nr 8.2
if and to the extent that (i) the damages arising from an individual Breach of Contract exceed
EUR 20,000.00 and (ii) the damages qualifying for compensation under Nr. (i) from all Breaches
of Contract in total exceed EUR 100,000.00. Claims by the Purchaser under Nr. 8.2 are
restricted in total to a maximum sum of the then still outstanding payments as described under
3.2.2. The initial payment of US-$ 4,400,000 will not be effected by such liability.
	 
	8.6  	Statute of limitations. Claims by the Purchaser under Nr. 8.2, which arise from an
inaccuracy in the statements by the Vendor Group in Nr. 5.1.1. through 5.1.7 shall expire on
March 31, 2015, and claims from all other statements in Nr. 5.1., shall expire on October 1,
2007. With the receipt by the Vendor of a communication under Nr. 8.1, the expiry of the
communicated claims shall be suspended for a period of three months. Sections 203 to 213 of
the BGB (German Civil Code) do not apply.
	 
	8.7  	Disqualification of more extensive claims. With the exception of claims under Nr.
8.2, all claims by the Purchaser on account of Breaches of Contract by the Vendor, are
expressly ruled out, in particular legal claims for subsequent performance, revocation,
compensation or reduction on account of material defects, claims to challenge this contract on
account of the absence of an important feature or claims for a reverse transaction or
adaptation of this contract on account of cessation or interruption of the basis of the
business and for compensation on account of breach of a contractual obligation, including
culpa in contrahendo. Claims of fraudulent misrepresentation or other intentional misconduct
and any other claims not legally alterable by mutual consent remain unaffected by this Nr.
8.7.
	 
	9.  	Taxes and Other Public Levies
	 
	9.1  	Submission of tax returns. The Vendor declares that the GmbH and S.A. have submitted
all tax returns due up to Vesting Day. All taxes due for payment as at Vesting Day and other
public levies including interest, surcharges for default and overdue payments and social
security contributions (together referred to




 









 











- 24 -





	   	hereinafter as “Taxes”) have either been paid or are shown in full in the accounts of
the company as liabilities or reserves.
	 
	9.2  	Additional taxes. If tax assessments after Vesting-day, in particular tax audits or
audits by the social insurance authorities, for the GmbH or S.A. for the period up to
Vesting-day, lead to an increase in the taxes payable, the Vendor shall reimburse the GmbH
and/or S.A. for these additional taxes. In the event of a reduction of the tax assessment on
the basis of tax audits after Vesting-day for the period up to the present, the Purchaser
shall instruct the GmbH and/or S.A. to reimburse the amount of the reduction to the Vendor. To
the extent that the assessments by the tax authorities lead to fiscal advantages for the GmbH
or S.A. after Vesting-day, in particular to subsequent amortisable capitalisations, these
advantages are to be offset against the reimbursement of additional taxes by the Vendor.
	 
	9.3  	Tax audits. Claims by the Purchaser under Nr 9.1 and 9.2 require that the Purchaser
abides by the following provisions: the Purchaser shall immediately inform the Vendor when the
tax authority announces or begins a tax audit of the GmbH or S.A. for the period up to
Vesting-day. The Purchaser shall give the Vendor and its advisers the opportunity to obtain
information on the progress of the audit and to establish direct contact with the officials of
the tax authority concerned with the audit. The Vendor and its advisers are entitled to take
part in all discussions, in particular formal signing-off meetings, in as far as they may have
an impact on the Vendor. If it is not possible to reach agreement with the tax authority, the
Purchaser undertakes to instruct the GmbH and S.A. to seek legal remedies against tax
decisions that lead to additional taxation of the GmbH or S.A. for the periods up to
Vesting-day. This is to be done on written request and at the expense of the Vendor and on the
Vendor’s instructions.
	 
	   	The Vendor for its part shall, if requested by the Purchaser, assist, at its own
expense, with tax audits relating to the period up to Vesting-day, and for this purpose
bring in its advisers at the request and at the expense of the Purchasers.

The provisions under Nr. 8.3 apply respectively unless this Nr. 9.3 provides otherwise.
	 
	9.4  	Legal consequences of incorrect declarations. Should the declarations by the Vendor
contained in Nr 9.1 prove inaccurate, Nr 8. will then apply, in as far as Nr 9. does not
settle the matter otherwise.




 









 











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	9.5  	Exclusion of the duty to make reimbursement. The Purchaser, the GmbH and the S.A.
have no claims under Nr 9.1 or 9.2, if and to the extent that either






	 	(i)  	the Purchaser, the GmbH or the S.A. has, after Vesting Day, through
acts contrary to its duty or interests, contributed to the levying of the taxes in
question;
	 
	 	(ii)  	the taxes in question arise, after the conclusion of this contract,
from a change in legislation or in the general administrative practice of the tax
authorities or from a change in the Purchaser’s accounting principles or those of
the GmbH or S.A. ;
	 
	 	(iii)  	the Purchaser or the GmbH or S.A. is entitled to make claims for
payment against third parties arising from or in connection with the taxes, and if
these claims can in fact be asserted;
	 
	 	(iv)  	the Purchaser or the GmbH or S.A. gains financial advantages, including
tax advantages, arising from or in connection with the taxes in question;
	 
	 	(v)  	the Vendor is subject to claims with an effect equivalent to that
resulting from adjustments under Nr. 3.2.3 which related to the guaranteed
shareholders’ equity and liabilities (no double claim).






	9.6  	Statute of limitations. Claims by the Vendor under Nos. 9.1 and 9.2 expire within six
months from the time at which the assessment and/or rectifying assessment by the tax office or
other authorities becomes legally binding with final effect, but at the earliest six months
after delivery of legally finally assessments binding upon the Purchaser or the GmbH or S.A.
	 
	9.7  	Definitive ruling. The above-mentioned rules conclusively determine the legal
consequences of fiscal assessments and amended tax notices for the period up to Vesting-day as
well as the liability to assessments for taxes and to that extent take precedence over all
other provisions of this Agreement.




 









 











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	10.  	Confidential Information, Non-Solicitation, Non-Competition
	 
	10.1  	For the purpose of assuring to Purchaser the full benefit of the transactions contemplated by
this Agreement, each of the Vendor and A. and K. Flesch undertakes to Purchaser that, whether
alone or in conjunction with any other person, whether on its own account or on behalf of any
other person, and whether directly or indirectly :






	 	(a)  	it will not at any time after Closing (other than in the proper course
of their functions as an employee or officer of the Companies) knowingly disclose
to any person, or use for its own benefit, and shall use its reasonable endeavours
to prevent the disclosure of, any secret or confidential information concerning the
business or affairs of the Companies or any of its customers of which it has
knowledge;
	 
	 	(b)  	it will not for the period of three years after Closing offer or
facilitate an offer to employ or engage the services of, or otherwise solicit or
endeavour to entice away from any of the Companies, any of its officers or
employees;
	 
	 	(c)  	it will not for three years after Closing solicit the customers of or
endeavour to entice away from any of the Companies any person who to its knowledge
is, or has at any time during the previous two years been, a client or customer of
the Companies; and
	 
	 	(d)  	it will not, at any time use or attempt to use in the course of any
business any trade or service mark, business name, design, logo (whether registered
or not) or domain name used in the business of any of the Companies or the
corporate name of any of the Companies, or one which is similar to or likely to be
confused with any of them.






	10.2  	For the purpose of further assuring to Purchaser the full benefit of the transactions
contemplated by this Agreement, each of the Vendor and A. and K. Flesch in addition also
undertakes that, whether alone or in conjunction with any other person, whether on its own
account or on behalf of any other person, and whether directly or indirectly, it will not, for
three years after Closing carry on, or be concerned or interested (whether as principal,
officer, employee, agent, consultant, partner, owner, shareholder or otherwise) in carrying on
any




 









 











- 27 -





	   	Restricted Business as defined in No. 1 whether in Germany/Spain or any other country
where any Companies or Purchaser of its affiliated companies currently or during such
restricted period carries on any business activities.
	 
	10.3  	Nothing in this Clause prevents the Vendor or A. and K. Flesch or any of them from holding
for investment purposes only any units of any authorised unit trust or not more than 10% of
any class of shares, participations or other interests in any company or other business.
	 
	10.4  	The Vendor and A. and K. Flesch agree that the undertakings in this Clause and the
restrictions accepted are fair and reasonable and that they are necessary for the protection
of Purchaser’s legitimate interests in the goodwill of the Companies.
	 
	10.5  	All of the restrictions in this Clause under 10.1 through 10.4 above shall also apply to each
of the Vendor and A. and K. Flesch related persons (nahestehende Personen) in the meaning of
Section 15 of the German Fiscal Code (Abgabenordnung) and to each of their affiliated
companies in the meaning of Sections 15 et seq. of the German Stock Corporation Act
(Aktiengesetz).
	 
	10.6  	Each of the restrictions and undertakings in this Clause shall be construed as being separate
and independent. If any such restriction or undertaking shall be found to be void or voidable
but would be valid and enforceable if some part or parts of it were deleted or reduced in
duration, it shall apply with such minimum modification as may be necessary to make it valid
and enforceable.
	 
	11.  	Cartel Provision
	 
	   	The Parties are in agreement that neither in Germany nor in Spain they are subject to
any notification or filing requirements with the competent authorities under applicable
anti-trust laws.
	 
	12.  	Confidentiality; Press Releases
	 
	   	The Parties undertake to maintain silence concerning all events connected with the
negotiation, conclusion and performance of this contract, and to enjoin their advisers,
employees and other representatives to treat in strict confidence any information, which
they have received or will receive in direct or indirect




 









 











- 28 -





	   	connection with the initiation, preparation, conclusion and/or performance of this
contract. This does not apply in cases where there is a compelling legal obligation or
an obligation based on stock-market disclosure requirements or where a disclosure is
necessary to protect the disclosing Party’s own legitimate interests. Neither Party
shall issue a press release or similar announcement in relation to or in connection with
this contract without prior written agreement by the other Party; at the same time
neither Party may without justifiable reason refuse its consent to a press release which
the other Party wishes to make.
	 
	13.  	Communications
	 
	   	All statements and communications to the Vendor and the Purchaser in connection with
this contract are to be sent to the following addresses:




To the Vendor and to K. and A. Flesch:

Embedded Solutions AG

Angelika Flesch, Klaus Flesch

Kühnheimer Str. 21

D-79206 Breisach


To the Purchaser


Digi International GmbH

Dieter Vesper

Joseph-von-Fraunhofer-Str. 23

D-44227 Dortmund




	   	The above-named addresses remain valid until the other Party is informed in writing of a
change. All communications shall be in writing, in as far as no notarial form is
required.
	 
	14.  	Costs; Transaction Taxes
	 
	   	Costs. The costs of the conclusion and implementation of this contract, in
particular notary costs, Commercial Register costs and any possible costs arising from
the merger monitoring procedure, shall be borne by the Purchaser. The Parties shall each
bear the costs of their own advisers.




 









 











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	15.  	Miscellaneous
	 
	15.1  	Transfer of rights and obligations, withholding of consent. The rights and
obligations of the Parties arising from this contract may not be transferred wholly or in part
without the consent of the other Party in each case. Each Party is entitled to transfer the
rights and obligations arising from this contract to a company linked to the Party in
question. In this case the transferring Party remains responsible for the fulfilment of its
obligations under this contract. The Party in question must further ensure that the rights and
obligations arising from this contract are transferred back to itself or to another associated
company, if the [first] associated company ceases to be so.
	 
	15.2  	Appendices. All appendices to this contract form an integral part of the contract. In
the event of a discrepancy between an appendix and the terms of this contract, the terms of
this contract take precedence.
	 
	15.3  	Written form. Amendments or supplements to this contract – including to this clause
on written form – require to be in writing before they can take effect, unless a stricter form
is prescribed. Faxed documents are sufficient to meet the requirement of written form. Where
normal written form is insufficient, faxes are null and void.
	 
	15.4  	Prior agreements. This agreement replaces all prior agreements, which the Parties
(may) have made in relation to or in connection with the subject of this contract.
	 
	15.5  	Saving clause. Should a provision of this contract be or become unenforceable or
incapable of performance, this shall not affect the validity of the remainder of the contract.
In place of the unenforceable or unperformable provision, an enforceable and performable
provision shall be considered agreed, of which the economic outcome is as close as possible to
that of the unenforceable or unperformable provision. This also applies, if the
unenforceability of a provision relies for example on a measure of performance or time (period
or date) prescribed in the contract; in this case a measure or performance or time (period or
date) shall be considered to be agreed, which is legally permissible and which approximates as
closely as possible to the desired outcome. The same applies if, in the implementation of the
contract, an omission is revealed which it is




 









 











- 30 -





	   	necessary to rectify. The court of law to which the matter is referred shall be
empowered, in cases of dispute, to undertake on behalf of the Parties the redrafting to
which the Parties have here given their undertaking.
	 
	15.6  	Applicable law. This contract is subject to the laws of the Federal Republic of
Germany to the exclusion of private international law.
	 
	15.7  	Arbitration clause. All disputes between the Parties in connection with this contract
as well as concerning the validity of this contract shall, to the exclusion of the proper
legal channels, be settled by an arbitration tribunal in accordance with Arbitration Ordinance
of the German Institution for Arbitration Jurisdiction (Deutsche Institution für
Schiedsgerichtbarkeit e.V. or DIS). The arbitration tribunal may decide on whether the
validity of this arbitration agreement is also binding on courts of the German state
judiciary. The arbitration tribunal also rules on such counter-claims made for offsetting
purposes, as arise from this contractual relationship. With regard to the terms agreed in this
contract concerning partial nullity (saving clause) it is agreed that the arbitration tribunal
shall be empowered in cases of dispute, to undertake on the behalf of the Parties the
redrafting to which the Parties have given their undertaking in the saving clause. The seat of
the arbitration tribunal is Frankfurt am Main.





This protocol and its Exhibits 3.2.2, 4.4.a), 4.4.c) and 5.1.9 have been read by the deputy notary
to the appearing persons; the protocol and its Exhibits 3.2.2, 4.4.a), 4.4.c) and 5.1.9 have been
translated by the appearing person No. 5 to the appearing person No. 3. All other Exhibits to this
protocol have been presented to the appearing persons for review. The protocol and its exhibits
were in the following approved by the appearing persons and personally signed by them and by the
deputy notary as follows:



signed by:




Klaus Flesch

Angelika Flesch

Subramanian Krishnan

Dieter Vesper

Ralph Hummel

Notary’s stamp — The deputy notary