Final Draft of the Drop-down and Transfer Agreement regarding Wacker Neuson SE dated 4 April 2011

Transcription

1 This translation is provided for information purposes only and for your convenience. The Annexes to this draft agreement have not been translated. The German version shall govern in all instances. In the event of discrepancies between the German and the English version, the German version shall prevail. Final Draft of the Drop-down and Transfer Agreement regarding Wacker Neuson SE dated 4 April 2011 Wacker Neuson SE Executive Board Richard Mayer Martin Lehner Günther Binder Wacker Neuson Produktion GmbH & Co. KG The Management Helmut Bauer Dr.-Ing. Michael Fischer Andreas Krüger Wacker Neuson Vertrieb Europa GmbH & Co. KG The Management Werner Schwind Wacker Neuson Vertrieb Deutschland GmbH & Co. KG The Management Bernd Peiler

2 Wacker Neuson SE / Drop-down and Transfer Agreement Page 1 of 58 Document no. /2011 Drop-down and Transfer Agreement On this day, of the year two thousand and eleven the following individuals appeared before me, Dr. Bernhard Schaub Notary Public in Munich, at the offices of Wacker Neuson SE, Preußenstraße 41, Munich, which I visited at the request of the persons present: 1) Mr Richard Mayer, born on 26/03/1962, Business address: Preußenstraße 41, Munich, identified using his official photo identification card and Mr. Günther Binder, born on 28/06/1965, Business address: Preußenstraße 41, Munich, identified using his official photo identification card Mr. Mayer and Mr. Binder are not acting in their own names, but on behalf of Wacker Neuson SE, based in Munich, entered in the Commercial Register of Munich under Register No. HRB , Business address: Preußenstraße 41, Munich, as members of the company s Executive Board, solely authorised to represent the company,

3 Wacker Neuson SE / Drop-down and Transfer Agreement Page 2 of 58 2) Mr. Helmut Bauer, born on 30/04/1969 Business address: Preußenstraße 41, Munich, identified using his official photo identification card and Dr. Michael Fischer, born on 08/04/1968, Business address: Preußenstraße 41, Munich, identified using his official photo identification card and Mr. Andreas Krüger, born on 27/03/1957 Business address: Preußenstraße 41, Munich, identified using his official photo identification card Mr Bauer, Dr. Fischer und Mr Krüger are not acting in their own names, but on behalf of Wacker Neuson PGM Verwaltungs GmbH, entered in the Commercial Register of Munich under Register No. HRB , business address: Preußenstraße 41, 80809, Munich, as Executive Directors solely authorised to represent the company, with Wacker Neuson PGM Verwaltungs GmbH in turn acting on behalf of Wacker Neuson Produktion GmbH & Co. KG, based in Munich, entered in the Commercial Register of Munich under Register No. HRA 95158, business address: Preußenstraße 41, Munich, as the company s personally liable partner. 3) Mr. Werner Schwind, born on 02/11/1956, Business address: Preußenstraße 41, Munich, identified using his official photo identification card

4 Wacker Neuson SE / Drop-down and Transfer Agreement Page 3 of 58 here not acting in his own name, but on behalf of Wacker Neuson SEM Verwaltungs GmbH, entered in the Commercial Register of Munich under Register No. HRB , business address: Preußenstraße 41, 80809, Munich, as Executive Director solely authorised to represent the company, Wacker Neuson SEM Verwaltungs GmbH, in turn acting on behalf of Wacker Neuson Vertrieb Europa GmbH & Co. KG, entered in the Commercial Register of Munich under Register No. HRA 95807, business address: Preußenstraße 41, Munich, as the company s personally liable partner. 4) Mr. Bernd Peiler, born on 12/09/1953, Business address: Preußenstraße 41, Munich, here in turn not acting in his own name, but on behalf of Wacker Neuson SGM Verwaltungs GmbH, entered in the Commercial Register of Munich under Register No. HRB , business address: Preußenstraße 41, 80809, Munich, as Executive Director solely authorised to represent the company, Wacker Neuson SGM Verwaltungs GmbH, in turn acting on behalf of Wacker Neuson Vertrieb Deutschland GmbH & Co. KG, based in Munich and entered in the Commercial Register of Munich under Register No. HRA 95808, business address: Preußenstraße 41, Munich, as the company s personally liable partner. Representation arrangements shall be made separately. At the request of those present, I hereby certify the statements made in my presence according to the following:

5 Wacker Neuson SE / Drop-down and Transfer Agreement Page 4 of 58 A. Drop-down and Transfer Agreement PRELIMINARY REMARKS (A) (B) (C) Wacker Neuson SE (hereinafter referred to as "WN SE ) is a listed European public company under German law, based in Munich and entered in the Commercial Register of the Regional Court in Munich under Register No. HRB Its equity capital is currently 70,140, and is divided into 70,140,000 registered common shares (nopar shares) with a proportional amount of the equity capital amounting to 1.00 per individual share. Wacker Neuson Produktion GmbH & Co. KG (formerly: Blitz GmbH & Co. KG), based in Munich and entered in the Commercial Register of the Regional Court of Munich under Register No. HRA 95158, is a shelf company acquired for the purposes of the dropdown planned in this drop-down agreement (hereinafter also referred to as PGM KG ). WN SE is the sole limited partner of PGM KG with a fully paid and non-repaid limited partner capital contribution of EUR (in words: five hundred Euro), which is identical to the liability deposit entered in the Commercial Register. Wacker Neuson PGM Verwaltungs GmbH (formerly: Blitz GmbH), based in Munich and entered into the Commercial Register at the District Court in Munich under Register No. HRB (hereinafter also referred to as "KPG") is the sole personally liable associate, who has not invested in the fixed limited partner capital (hereinafter also referred to as "fixed capital". The sole associate of KPG in turn is PGM KG itself, which holds 25,000 business shares in the general partner with a nominal value of EUR 25, in total (in words: Euro twenty-five thousand). PGM KG is therefore organised as a consolidated unit company. Wacker Neuson Vertrieb Europa GmbH & Co. KG (formerly: Blitz GmbH & Co. KG), based in Munich and entered in the Commercial Register of the Regional Court of Munich under Register No. HRA 95807, is a shelf company acquired for the purposes of the drop-down planned in this drop-down agreement (hereinafter also referred to as SEM KG ). WN SE is the sole limited partner of SEM KG with a fully paid and non-repaid limited partner capital contribution of EUR (in words: five hundred Euro), which is identical to the liability deposit entered in the Commercial Register. Wacker Neuson SEM Verwaltungs GmbH (formerly: Blitz GmbH), based in Munich and entered in the Commercial Register at the District Court in Munich under Register No. HRB (hereinafter also referred to as "KSE") is the sole personally liable associate, who has not invested in the fixed limited partner capital (hereinafter also referred to as "fixed capital"). Sole associate of KSE in turn is SEM KG itself, which holds 25,000 business shares in the

6 Wacker Neuson SE / Drop-down and Transfer Agreement Page 5 of 58 general partner with a nominal value of EUR 25, in total (in words: Euro twenty-five thousand). SEM KG is therefore organised as a consolidated unit company. (D) (E) (F) Wacker Neuson Vertrieb Deutschland GmbH & Co. KG (formerly: Blitz GmbH & Co. KG), based in Munich and entered in the Commercial Register of the Regional Court of Munich under Register No. HRA 95808, is a shelf company acquired for the purposes of the drop-down planned in this drop-down agreement (hereinafter also referred to as SGM KG ). WN SE is the sole limited partner of SGM KG with a fully paid and non-repaid limited partner capital contribution of EUR (in words: five hundred Euro), which is identical to the liability deposit entered in the Commercial Register. Wacker Neuson SGM Verwaltungs GmbH (formerly: Blitz GmbH), based in Munich and entered in the Commercial Register at the District Court in Munich under Register No. HRB (hereinafter also referred to as "KSG") is the sole personally liable associate, who has not invested in the fixed limited partner capital (hereinafter also referred to as fixed capital ). Sole associate of KSG in turn is SGM KG itself, which holds 25,000 business shares in the general partner with a nominal value of EUR 25, in total (in words: Euro twentyfive thousand). SGM KG is therefore organised as a consolidated unit company. The purpose of WN SE is the development, manufacture and sale of machines, devices, tools and processes and the provision of all associated services. WN SE also holds business shares and participations in those national and foreign companies described in more detail in Annex E, which are also mainly involved in the manufacturing, sale, hire and servicing of construction equipment and machines (these business shares and participations are hereinafter referred to jointly with the limited partner shares in PGM KG, SEM KG and SGM KG as the HQM Participations ). Previously, WN SE has been organised as a parent company in Germany, i.e. various operative divisions are included within the same legal unit, partially through dependent branch offices and industrial facilities. The Executive Board and Supervisory Board of WN SE are of the opinion that the creation of a holding structure in which WE SE will have the function of an executive management and functional holding company for the purposes of standardised management will support the integration of the Group and the management of the company divisions Production, Sales and Logistics. In its role as parent company of an industrial group, the holding company shall provide services of an administrative, financial, commercial and technical nature at a charge for its affiliated companies. Against this background, the Executive Board has, with the approval of the Supervisory Board, decided to transfer to PGM KG, SEM KG and SGM KG (these companies are hereinafter also referred to as Subsidiaries ) the entire operational business of WN SE,

7 Wacker Neuson SE / Drop-down and Transfer Agreement Page 6 of 58 manly defined by the three business divisions Production, Sales Europe and Sales Germany, which are described in more detail below, with the exception of central staff and company functions and the HQM Participations in accordance with this Drop-down and Transfer Agreement (hereinafter the Drop-down Agreement ). The following individual measures have been planned: (G) (H) (I) Within the scope of its operational business, WN SE produces light equipment in Germany (also referred to within the company as Production Germany Munich or PGM ), among other things. This division includes the departments PMG Sales Management, Export, Security, the production units Focus Manufacturing 1 (concrete technology), Focus Manufacturing 2 (compaction), Focus Manufacturing 3 (break-up technology and Focus Manufacturing 5 (replacement parts) at the Reichertshofen site, focus manufacturing administration, a hardening shop, tool construction, a training centre, saw and convulsion processing, tool grindery, tool store administration, steel construction, a paint finishing shop, test substance monitoring, incoming goods, disposition, purchasing, PGM accounting, personnel, research and development, product marketing, product management and quality management and a training centre at the Reichertshofen site (this operational division is hereinafter referred to collectively as PGM Division ). The PGM Division also has businesses and plant sections in Reichertshofen and Munich. WN SE also manages the European Sales and Logistics Division within the scope of its operations (also referred to as Sales Europe Munich" or SEM within the company). This area includes, among other things, all logistical functions for Europe in the areas of light equipment and (light and compact) replacement parts. All internal and external customers of the current company WN SE are supplied with light equipment and replacement parts from the Logistics Centre at the Karlsfeld site. The Division also includes the departments Data Processing, SEM Sales (support for international customers, key accounts), Marketing and SEM Accounting (this operational area is hereinafter collectively referred to as SEM Division ). The SEM Division has businesses and plant sections in Karlsfeld and Munich. WN SE also provides a direct sales service within the scope of its operational business, which currently includes over 68 branches (also referred to as Sales Germany Munich or SGM within the company), which includes the departments Administration, SGM Accounting and Sales, Servicing, Second-Hand Devices and Rental Business (Rental) for Germany (this operational area of business is hereinafter collectively referred to as SGM Division"). The SEGM Division has businesses and plant section at the sites in Munich, Gotha and at those regional sales offices and branches listed in Annex I.

8 Wacker Neuson SE / Drop-down and Transfer Agreement Page 7 of 58 (J) (K) The PGM Division, SEM Division and SGM Division will each be completely transferred, i.e., each along with their allocated agreements, accounts, liabilities and assets, including any property required for operations, to PGM KG, SEM KG and SGM KG by way of a drop-down. In the following clauses 2.3, 3.3, 4.3 and 5 of this Drop-down Agreement, the PGM Division, SEM Division and SGM Division shall each be described separately (the business areas to be divested, for example the assets, liabilities and other legal relationships they embody, are hereinafter also referred to as the Drop-down Assets ). The HQM Participations, the section of HQM's business operations described in more detail in Clause 5 below, including the accompanying contractual relationships, and the other assets not allocated to the Drop-down Assets in accordance with Clauses 2.3, 3.3 and 4.3 below, shall remain the property of WN SE. The organisational unit, in addition to the remaining assets, which will remain the property of WN SE, shall hereinafter be collectively referred to as HQM Division and the assets, liabilities and other legal relationships which embody it shall be referred to as Remaining HQM Assets". Now therefore, Wacker Neuson SE, Wacker Neuson Produktion GmbH & Co. KG, Wacker Neuson Vertrieb Deutschland GmbH & Co. KG and Wacker Neuson Vertrieb Europa GmbH & Co. KG enter into the following Drop-down and Transfer Agreement 1. PARTICIPATING LEGAL ENTITIES 1.1 WN SE is participating in the drop-down as the transferring legal entity. 1.2 PGM KG, SEM KG and SGM KG are participating in the drop-down as absorbing legal entities. 1.3 As the transferring legal entity, WN SE holds 100% of the fixed limited partner capital of PGM KG, SEM KG and SGM KG. As the personally liable partner with no capital share, KPG participates in PGM KG, KSE in SEM KG and KSG in SGM KG. 2. DROP-DOWN OF THE PGM DIVISION TO PGM KG 2.1 Drop-down and transfer of assets As the transferring legal entity, WN SE shall transfer the PGM Division from its assets (the PGM Division or the assets, liabilities and other legal relationships are hereinafter also referred to as PGM Drop-down Assets ) as an entirety with all rights and obligations and pursuant to the specifications in Clause 2.3 below by way of drop-down for transfer

9 Wacker Neuson SE / Drop-down and Transfer Agreement Page 8 of 58 pursuant to Section 123 (3) 1 UmwG (German Reorganisation Act), with the continuation of WN SE, to the accepting PGM KG as the absorbing legal entity. The Remaining HQM Assets pursuant to Clause 5 are in all cases excluded from the transfer. 2.2 Consideration by PGM KG, provision of shares In consideration for the transfer of the PGM Drop-down Assets pursuant to Clause 2.1 to PGM KG, WN SE s stake in PGM KG's fixed capital of shall be increased by 4,999, to 5,000, WN SE shall remain the sole limited partner of PGM KG. WN SE s liability contribution entered in the Commercial Register shall also be increased to 5,000, KPG shall remain the personally liable and sole partner authorised to manage the business with no share of the fixed capital The contribution for the stake of WN SE in the fixed capital of PGM KG pursuant to Clause 2.2.1, which is to be newly created, i.e. increased, corresponds to the net accounting value according to commercial law (assets minus liabilities) of the PGM Dropdown Assets on the Effective Drop-down Date. If this net accounting value exceeds the nominal amount of the capital share provided pursuant to Clause (amounting to 4,999,500.00), the difference shall be paid into PGM KG's reserves account / capital account II. No payment shall be owed by PGM KG for this remaining amount WN SE is not required to make any cash payments WN SE has the right to a share in the profits from its increased capital share in PGM KG from the Effective Drop-down Date onwards. The provisions in Clause 7.5 regarding the postponement of the Effective Drop-down Date apply correspondingly. 2.3 PGM Drop-down Assets WN SE shall transfer the PGM Division as an entirety with all assets and liabilities indirectly and directly allocated to this division, with the exception of those items which are allocated to the Remaining HQM Assets, SEM Drop-down Assets and SGM Drop-down Assets. The PGM Drop-down Assets therefore include: all tangible and intangible assets, all obligations and liabilities, uncertain liabilities, contingent liabilities, future and conditional accounts receivable in addition to all employment contracts and other contractual and legal obligations, including those under public law, and other legal relationships of all kinds

10 Wacker Neuson SE / Drop-down and Transfer Agreement Page 9 of 58 associated with WN SE at the time of completion (Clause 8.1), which serve, aim to serve the PGM Division, otherwise relate to the PGM Division or are to be allocated to it economically, through the factual connection with the PGM Division described in more detail in letter G of the preliminary remark, its employees defined in Annex 2.3a or through explicit listing in the Annexes of this Drop-down Agreement, irrespective of whether these items can be listed on the balance sheet or not, or whether they have actually been included on the balance sheet or not. According to the wishes of the Parties, the PGM Drop-down Assets in particular include all assets and liabilities which represent a significant basis of operations for the PGM Division as a separable part of the business operations. Those assets and liabilities which have been allocated to the pro-forma balance sheet attached as Annex 2.3b and through allocation in WN SE s accounting pursuant to the cost centre plans for the PGM Division attached to this Annex are to be particularly included without being limited thereto, in the drop-down to PGM KG, unless otherwise determined in Clauses 2.3, 3.3, 4.3 and 5. The following assets, liabilities and legal relationships listed individually below in Clauses to will particularly be transferred, although this is not an exhaustive list, provided that and insofar as they have not been expressly allocated to the Remaining PQM Assets according to Clause 5, the SEM Drop-down Assets pursuant to Clause 3.3 or the SGM Drop-down Assets pursuant to Clause Intangible assets (a) All of WN SE s intangible assets included in the PGM Division, in particular all inventions relating exclusively to the PGM Division, technical and operational knowhow (even if not protected by commercial property rights), business and operational secrets, patents, utility patents, design patents, patent applications, rights of use for industrial property rights, processes and formulae, including the embodiment of such items (samples, drawings, copies etc.). Those design patents, patents and utility patents and the corresponding applications and inventions, even if the latter have been recorded and saved for further processing, but have not yet been formally reported, listed in Annex (a) are therefore particularly included in the PGM Drop-down Assets. All trademarks and rights to internet domains held by WN SE allocated to the Remaining HQM Assets pursuant to Clauses and are expressly excluded.

11 Wacker Neuson SE / Drop-down and Transfer Agreement Page 10 of 58 (b) All rights to software used exclusively within the PGM Division, including software exclusively adapted, internally developed for or licensed to this division and all further updates to this software. The software and company software licences owned by WN SE allocated to the Remaining HQM Assets pursuant to Clause in addition to the software allocated to the SEM Drop-down Assets pursuant to Clause (b), in particular the software used by the IT department in the SEM Division, which will be centrally available to the other companies in the future within the scope of company service agreements. (c) (d) All rights and obligations arising from those contractual or other legal relationships underlying or associated with the transferred intangible assets pursuant to lit. (a) and (b), in particular licence and usage agreements. WN SE s client and supplier base, insofar as the corresponding client and supplier agreements pursuant to Clause are transferred to PGM KG. Insofar as WN SE is only jointly entitled to the transferred intangible assets pursuant to Clause of this agreement, it shall transfer the corresponding joint entitlement Fixed assets, financial assets The following fixed assets, including all rights and obligations underlying these items and contractual or other legal relationships which are associated with them: (a) All Property listed in Annex 2.3.2(a) (hereinafter referred to as PGM Property ) with all of the main elements, accessories and stock, along with all rights associated with ownership (Section 96 of the German Civil Code (BGB) and all encumbrances entered into Sections II and III of the respective Land Register, including all obligations as an owner of land or buildings and public easements, irrespective of their entry into a Public Easement Register, including all rental agreements associated with the PGM Property. WN SE's Property in Munich-Milbertshofen, along with the accompanying buildings and external facilities, is allocated to the Remaining HQM Assets pursuant to Clause In the future, PGM PG shall rent various parts of buildings and rooms in the new company headquarters located in this area from WN SE, in particular those offices used by PGM Division employees in addition to the Testing Hall. A corresponding agreement shall be concluded after the completion date. (b) All chattels belonging to the PGM Division which are part of WN SE s assets, in particular all technical equipment and machines in addition to other facilities,

12 Wacker Neuson SE / Drop-down and Transfer Agreement Page 11 of 58 operational and business equipment, low-value economic goods, facilities being constructed, each including all claims arising from advance payments which have been made in addition to all other chattels, in particular those which are located within the perimeter limits of the PGM Property, in storage at Bachstraße 3, Pörnbach-Puch, or in those properties, buildings and rooms to be rented by PGM KG in the future as listed in lit (a), in each case to the extent that these items are not expressly allocated exclusively to the SEM, SGM or HQM Divisions in Clauses 3.3, 4.3 or 5. On the Effective Drop-down Date, the transferred and balanced chattels in the assets have been determined on the basis of PGM KG s pro-forma balance sheet pursuant to Annex 2.3b and their allocation in WN SE's accounts according to the cost centre plans attached to this balance sheet. Other loans allocated exclusively to the PGM Division shall also be transferred, including all rights and obligations from underlying and associated contractual or other legal relationships. As of the Effective Drop-down Date, the transferred other loans are based on SGM KG s pro-forma balance sheet pursuant to Annex 2.3b and its allocation in WN SE's accounts according to the cost centre plans attached to this balance sheet Inventories All stock owned by WN SE and allocated exclusively to the PGM Division, in particular raw materials, additives and operating supplies, incomplete products and services, completed products and goods, each including all claims to advance payments which have been made and all other chattels forming part of the circulating assets, in particular those which are located within the perimeter limits of the PGM Property, stored at Bachstraße 3, Pörnbach-Puch to be transferred pursuant to Clause lit. (a) or those properties, buildings and rooms to be rented by PGM KG in the future as listed in lit (a), in each case unless these properties have been expressly allocated to the SEM, SGM or HQM Divisions, and in each case including all rights and obligations arising from contractual or other legal relationships underlying or associated with these items. On the effective Drop-down date, the transferred stock is based on PGM KG s pro-forma balance sheet in Annex 2.3b and its allocation in WN SE's accounts according to the cost centre plans attached to this balance sheet Accounts receivable and other assets All of WN SE s accounts receivable from deliveries and services belonging to the PGM Division. All other rights and claims of any kind, in particular and not exclusively those

13 Wacker Neuson SE / Drop-down and Transfer Agreement Page 12 of 58 types included in the transferred ownership of assets described in Clause 2.3 and those for the exclusive or non-exclusive use or employment of intangible or intangible assets which belong to the PGM Division, those which result from the agreements and legal relationships transferred to PGM KG pursuant to Clause 2.3.7, credits, claims for compensation and all other rights and claims, irrespective of their nature, which are associated with the accounts receivable described above. This particularly includes accounts receivable connected to the sale and delivery of production and replacement parts to associated companies of WN SE, for which the PGM Division shall act as a toll manufacturer, in particular for Kramer-Werke GmbH, Weidemann GmbH and Wacker Neuson Linz GmbH. On the effective Drop-down date, the transferred accounts receivable on the balance sheet are based on PGM KG s pro-forma balance sheet pursuant to Annex 2.3b Assets at banks, active accruals and deferrals, other assets (a) (b) (c) (d) (e) Those bank accounts, deposit accounts, etc. of WN SE listed in Annex 2.3.5(a), including credit balances and deposits recorded on the Effective Drop-down Date in Annex 2.3.5(a), the agreements with banks underlying these accounts, deposits, etc., in addition to the resulting rights and obligations. All other assets in WN SE s circulating assets which are to be exclusively allocated to the PGM Division. AWN SE's active accruals and deferrals allocated to the PGM Division and their underlying legal relationships as defined in PGM KG s pro-forma balance sheet on the Effective Drop-down Date pursuant to Annex 2.3b and the cost centre plans attached to this balance sheet. All other assets which are exclusively part of the PGM Division which do not need to be or cannot be included in the balance sheet, in particular all other in personam or in rem rights of way, fencing and ownership rights, land charges, beneficial interests, land easements and limited personal easements and other in rem or in personam land rights and similar rights against third parties or other property owners, in particular those which secure the construction, use or development of assets or property included in PGM s Drop-down Assets. All receivables, rights and claims for existing ancillary and preferential rights in the sense of Section 401 of the German Civil Code (BGB) and support and security interests, including the securities for the receivables and claims to be transferred,

14 Wacker Neuson SE / Drop-down and Transfer Agreement Page 13 of 58 such as charges on property, debt guarantees, etc. which have been transferred pursuant to this clause Liabilities, obligations and other expenses The PGM Drop-down Assets also in particular include, but are not exclusively limited to, all of WN SE's liabilities and obligations which are exclusively allocated to the PGM Division, including WN SE s uncertain, contingent and future liabilities when their legal foundations have already been established. These particularly include (a) All of WN SE s conditional or unconditional obligations and liabilities resulting from deliveries and services that have an order reference in the ERP system, from received advance payments and orders, product warranties and product liabilities, breaches of environmental regulations, including the regulations regarding abandoned sites owned by the PGM Division, and from bonds and guarantees, including other liabilities and including public charges and obligations under public law, in particular those obligations and charges which are currently unknown and which will only exist in the future. As of the Effective Drop-down Date, the transferred liabilities from services and deliveries are as stated in the balance sheet and the other liabilities in PGM KG s pro-forma balance sheet pursuant to Annex 2.3b. (b) (c) (d) All conditional or unconditional obligations and liabilities from all employment relationships and liabilities, from payment terms for employee inventions and pension obligations for all employees in the PGM Division pursuant to Clause 2.3 lit. 7 lit. (a) below, and to other employees transferred to PGM KM. All liabilities towards associated companies to be allocated exclusively to the PGM Division. This in particular applies to all liabilities from the sale of production parts or parts for use in so-called service kits from Wacker Neuson Corporation, USA, or its Subsidiaries and liabilities towards Drillfix AG, Switzerland, from licence agreements. Uncertain liabilities, including pension liabilities, bonuses for employees, process and liability risks, irrespective of the type, which underlie the reserves exclusively allocated to the PGM Division. If WN SE provided sureties for the aforementioned liabilities and obligations, the claim for repayment of these securities shall be transferred to PGM KG.

15 Wacker Neuson SE / Drop-down and Transfer Agreement Page 14 of Contracts and other legal relationships As of the PGM Effective Drop-down Date, all of WN SE s contractual relationships and other legal relationships shall particularly be allocated to the PGM Division, irrespective of whether they are of a private or public nature, including agreement supplements and additional agreements and together with the resulting rights and obligations. The following shall particularly also be transferred: (a) All employment contracts with employees currently existing at WN SE, which are allocated to the PGM Division and which are described in more detail in Annex 2.3a, including any possible existing obligations (in particular expectancy pension rights) for operational old-age provisions, liability insurance for operational maintenance interests and other commitments of a provisional nature, which shall be transferred to PGM KG pursuant to Sections 613a (1) 1 of the German Civil Code (BGB) and 324 of the German Restructuring Act (UmwG). All of WN SE's agreements which have been concluded with third parties for the benefit of those employees described in more detail in Annex 2.3a, or which affect these employees in any other way, are also included, in particular the existing direct insurance policies for these employees at Deutscher Ring Lebensversicherungs-AG, no. LF PGM KG shall become liable for all rights and obligations arising from agreements made by WN SE to secure the existing semi-retirement accounts pursuant to Section 8a of the German Partial Retirement Act (Altersteilzeitgesetz). PGM KG shall particularly take over the position of pledger with regard to the security funds at Commerzbank Aktiengesellschaft, Frankfurt a.m., the deposit and accounts listed in Annex (a), along with the balances on the Effective Drop-down Date as stated in this Annex. The semi-retirement accounts shall therefore remain unaffected. These means of security form an assessment unit together with the corresponding other reserves and shall therefore not be shown in the balance sheet as securities in the investment assets. On the Effective Drop-down Date, PGM KG shall furthermore accept all rights and obligations arising from the agreements made by WN SE to secure the existing work-time accounts pursuant to Sections 7e SGB (Social Security Code) Book IV and following. PGM KG shall particularly take over the position of trust or, with regard to the security funds (shares in funds) at DAB bank AG, Munich, the deposits and accounts listed in Annex (a) along with the stated balances and, with regard to the capital assets in the form of a direct investment in the insurer s reserve stock at Allianz Lebensversicherungs-AG, Stuttgart, under group agreement nos.

16 Wacker Neuson SE / Drop-down and Transfer Agreement Page 15 of 58 5/ (until ) and 5/868522/2 (from ), each with the balances stated in the Annex as of the Effective Drop-down Date. The work-time accounts shall therefore remain unaffected. (b) All of WN SE's agreements, insofar as these are to be allocated exclusively to the PGM Division. These particularly also include those agreements described below in Clause 6.3 which affect several companies, insofar as partial allocation to the PGM Division is possible by way of a distribution of assets pursuant to Clause 6.3 below. This includes, for instance, - Rental, tenancy, lease and other use and transfer agreements, in particular those regarding those properties, buildings, facilities and other assets transferred pursuant to this Clause 2.3 and other office and business equipment, in addition to associated servicing and maintenance agreements. - Contracts regarding the acquisition or sale of objects transferred pursuant to this Clause 2.3, - Purchasing, consultation, service and business provision agreements, plant, supply and disposal, account management and financing agreements, - General service and delivery agreements with suppliers and customers, including associates agreement regarding tools and forms - General service and delivery agreements with buyers - Plant trader agreements, representative agreements and - (Production) licence and usage agreements, research and development agreements, cooperation agreements, framework agreements and licence agreements. The term agreement in the sense used above includes all written and verbal agreements, arrangements and undertakings, in addition to all offers made by or to WN SE. A rental agreement for an external storage area in Bachstraße 3, Pörnbach- Puch has been allocated to the PGM Division. The main supplier agreements for the PGM Division are listed in Annex PGM-7. The main delivery agreements in the PGM Division are listed in Annex 2.3.7(b)/1. Those suppliers who supply parts to the PGM Division for production and the SEM Division for the provision of replacement parts are listed in Annex 2.3.7(b)/2. In this respect, a division is to be made in accordance with Clause 6.2 and corresponding

17 Wacker Neuson SE / Drop-down and Transfer Agreement Page 16 of 58 framework agreements are to be concluded after the Effective Date of Completion, which apply to both PGM KG and SEM KG. The main trader agreements for the Export Department in the PGM Division are listed in Annex 2.3.7(b)/3. It is hereby noted that, for logistic processing reasons, PGM KG shall deliver the products it manufactures to SEM KG, after which they shall then be sold on to the traders by SEM KG. The same applies with regard to third parties for which the PGM Division produces OEM products. In this respect, all agreements, accounts payable and liabilities associated with these traders and the buyers of OEM products manufactured for third parties in the PGM Division shall be allocated to the SEM Drop-down Assets, with PGM Division supporting SEM KG in the future with regard to the technical and specialist maintenance of these agreements. Insofar as WN SE itself buys products from the OEM manufacturers, the agreements, accounts receivable and liabilities shall also be allocated to the SEM Drop-down Assets, as for reasons of logistical planning, SEM KG shall purchase these devices and distribute them within the Group, with PGM KG supporting SEM KG in the future with regard to the technical and specialist maintenance of these agreements After the completion date, PGM KG and SEM KG shall enter into appropriate agreements with each other and the affected third parties to regulate the abovementioned processes for export traders, buyers of the OEM products manufactured in the PGM Division for third parties and for OEM manufacturers in detail. (c) (d) (e) All contractual relationships with external consultants, service providers etc. which relate to the HR department (attached to the PGM Division). All of WN SE s agreements concluded with associated companies, which exclusively affect the PGM Division, in particular purchase, sale and delivery agreements and licence agreements as described in more detail in Clauses and (c), in addition to agreements regarding the services of the Training Centre TGR for associated companies. All rights and obligations, accounts payable and liabilities towards external service providers regarding the operation of the canteen at the Munich and Reichertshofen sites.

18 Wacker Neuson SE / Drop-down and Transfer Agreement Page 17 of 58 (f) (g) All rights and obligations, accounts payable and liabilities, private and public contractual relationships and all rights and obligations arising from national and foreign concessions under public law, authorisations, permits and other entitlements of any kind which are associated with WN SE's sales office in Dubai (the official description is Wacker Construction Equipment AG Representative Office, Sultan Business Centre, near Lamcy Plaza, Office No. 229, Dubai, United Arab Emirates), its business operations, assets or employees. All rights and obligations arising from national and foreign concessions, approvals, authorisations and other entitlements of any kind relating to public law (hereinafter referred to as entitlements relating to public law ) which are allocated to the PGM Division and arise from all - authorisations for those facilities which require authorisation and other operational authorisations transferred to PGM KG according to this agreement, - approvals for the property, buildings and other structures, including building authorisations transferred to PGM KG according to this agreement, - any permits and approvals relating to water regulations which affect the GM Division, - business licences for the locations and operations allocated to the PGM Division, in addition to - authorisations, certifications and approvals for specific devices produced in the PGM Division, such as permissions for a specific type of device, (h) (i) (j) All of WN SE s memberships in associations and federations, insofar as these relate exclusively to the PGM Division, each including all associated rights and obligations. All other rights and contractual relationships, in addition to WN SE's rights and obligations which are to be allocated exclusively to the PGM Division, in particular those described in more detail in Annex 2.3.7(i). All of WN SE s procedural legal relationships and other legal relationships relating to procedural law and arbitral procedures, irrespective of whether WN SE is involved as a party or in any other way (e.g. as an intervener or third party admitted to the proceedings), insofar as they are related to the assets to be dropped down and transferred to PGM KG or otherwise exclusively affect the business operations of the PGM Division, and the existing investment agreements with the accompanying attorneys.

19 Wacker Neuson SE / Drop-down and Transfer Agreement Page 18 of 58 (k) WN SE s accumulated deficits relating to trade tax shall be transferred to the absorbing company PGM KG to the extent that they would be allocated to the separable part of the business operations being taken over, i.e. the PGM Division, in a way which is in accordance with their cause. Furthermore, Clause below also applies to tax situations. 3. DROP-DOWN OF THE SEM DIVISION TO SEM KG 3.1 Drop-down and transfer of assets As the transferring legal entity, WN SE shall transfer the PGM Division from its assets (the SEM Division or the assets, liabilities and other legal relationships are hereinafter also referred to as SEM Drop-down Assets ) as an entirety with all rights and obligations and pursuant to the specifications in Clause 3.3 below by way of drop-down for transfer pursuant to Section 123 (3) 1 UmwG (German Reorganisation Act), with continuation of WN SE, to the accepting company SEM KG as the absorbing legal entity. The Remaining HQM Assets pursuant to Clause 5 are in all cases excluded from the transfer. 3.2 Consideration by SEM KG, provision of shares In consideration for the transfer of the SEM Drop-down Assets pursuant to Clause 3.1 to SEM KG, WN SE s stake in SEM KG's fixed capital of shall be increased by 4,999, to 5,000, WN SE shall remain the sole limited partner of SEM KG. WN SE s liability contribution entered in the Commercial Register shall also be increased to 5,000, KSE shall remain the personally liable and sole associate authorised to manage the business with no share of the fixed capital The contribution for the stake of WN SE in the fixed capital of SEM KG pursuant to Clause 3.2.1, which is to be newly created, i.e. increased, corresponds to the net accounting value according to commercial law (assets minus liabilities) of the SEM Drop-down Assets on the Effective Drop-down Date. If this net accounting value exceeds the nominal amount of the capital share provided pursuant to Clause (amounting to 4,999,500.00), the difference shall be paid into the reserves account / Capital Account II of SEM KG. No payment shall be owed by SEM KG for this remaining amount WN SE is not required to make any cash payments WN SE has the right to a share in the profits from its increased capital share in SEM KG from the Effective Drop-down Date onwards. The provisions in Clause 7.5 regarding the postponement of the effective drop-down day apply correspondingly.

20 Wacker Neuson SE / Drop-down and Transfer Agreement Page 19 of SEM Drop-down Assets Pursuant to Clause 3.1, WN SE shall transfer the SEM Division as an entirety with all assets and liabilities indirectly and directly allocated to this division, with the exception of those items which are allocated to the Remaining HQM Assets, PGM Drop-down Assets and SGM Drop-down Assets. The SEM Drop-down Assets therefore include: all tangible and intangible assets, all obligations and liabilities, uncertain liabilities, contingent liabilities, future and conditional accounts receivable in addition to all employment contracts and other contractual and legal obligations, including those under public law, and other legal relationships of all kinds associated with WN SE at the time of completion (Clause 8.1), which serve or aim to serve the SEM Division, otherwise relate to the SEM Division or are to be allocated to it economically, through the factual connection with the SEM Division described in more detail in letter H of the preliminary remark, its employees defined in Annex 3.3 or through explicit definition as part of the SEM Division in the Annexes of this Drop-down Agreement, irrespective of whether these items can be listed on the balance sheet or not, or whether they have actually been included on the balance sheet or not. According to the wishes of the Parties, the SEM Drop-down Assets in particular include all assets and liabilities which represent a significant basis of operations for the SEM Division as a separable part of the business operations. Those assets and liabilities which have been allocated to the pro-forma balance sheet attached as Annex 2.3b and through allocation in WN SE s accounting pursuant to the cost centre plans for the SEM Division attached to this Annex are in particular included without being limited thereto in the drop-down to SEM KG, unless expressly determined otherwise in Clauses 2.3, 3.3, 4.3 and 5. The following assets, liabilities and legal relationships listed individually below in Clauses to will in particular be transferred, although this is not an exhaustive list, if and insofar as they have not been expressly allocated to the Remaining HQM Assets according to Clause 5, the PGM Drop-down Assets pursuant to Clause 2.3 or the SGM Drop-down Assets pursuant to Clause Intangible assets (a) All intangible assets belonging to the SEM Division in WN SE s investment assets, in particular all technical and operational expertise, business and operational

21 Wacker Neuson SE / Drop-down and Transfer Agreement Page 20 of 58 secrets, processes and formulae, including the embodiment of such items (samples, drawings, recipes etc.) relating exclusively to the SEM Division. In particular, all trademarks and rights to internet domains held by WN SE allocated to the Remaining HQM Assets pursuant to Clauses and are expressly excluded. The trademarks and all rights of WN SE in internet domains which have been allocated to the Remaining HQM Assets pursuant to Clauses and 5.1.2, in addition to WN SE s design patents, patents and utility patents, which have been allocated to the PGM Drop-down Assets pursuant to Clause (a). (b) All rights to software used exclusively within the SEM Division, including software exclusively adapted, internally developed or licensed for this division and all further updates to this software. This also includes software which the (IT department connected to the SEM Division) will provide centrally in the future for the other participating companies within the scope of company service agreements. WN SE s software and company software licences allocated to the Remaining HQM Assets pursuant to Clause are expressly excluded. (c) (d) All rights and obligations arising from those contractual or other legal relationships underlying or associated with the transferred intangible assets pursuant to lit. (a) and (b), in particular licence and usage agreements. WN SE s client and supplier base, insofar as the corresponding client and supplier agreements pursuant to Clause are transferred to SEM KG. With regard to settlement for export traders in the PGM Division, buyers of OEM products manufactured for third parties in the PGM Division and OEM suppliers in the PGM Division, please see Clause (b). Insofar as WN SE is only jointly entitled to the transferred intangible assets pursuant to Clause of this agreement, it shall transfer the corresponding joint entitlement Fixed assets, financial assets The following fixed assets, including all rights and obligations underlying these items and contractual or other legal relationships which are associated with them: (a) All property listed in Annex 3.3.2(a) (hereinafter referred to as SEM Property ) with all of the main elements, accessories, stock, along with all rights associated with ownership (Section 96 BGB (German Civil Code)) and all encumbrances entered into Sections II and III of the respective Land Register, including all obligations as an owner of land or buildings and public easements, irrespective of their entry into a

22 Wacker Neuson SE / Drop-down and Transfer Agreement Page 21 of 58 public easement register, including all rental agreements associated with the SEM Property. WN SE's Property in Munich-Milbertshofen, along with the accompanying buildings and external facilities, are allocated to the Remaining HQM Assets pursuant to Clause In the future, SEM KG shall rent various parts of the buildings and rooms in the new company headquarters located in this area from WN SE, in particular those offices used there by SEM Division employees in addition to the Testing Hall. A corresponding agreement shall be concluded after the completion date. (b) All chattels belonging to the SEM Division which are part of WN SE s assets, in particular all other facilities, operational and business equipment, low-value economic goods, in addition to all other chattels in the assets, in particular those which are located within the boundaries of the SEM properties to be transferred pursuant to lit. (a) or those properties, buildings and rooms to be rented by SEM KG in the future as listed in lit (a), in each case unless these properties have been expressly allocated to the PGM, SGM or HQM Divisions pursuant to Clauses 2.3, 4.3 or 5. On the Effective Drop-down Date, the transferred and balanced chattels in the assets have been determined on the basis of SEM KG s pro-forma balance sheet pursuant to Annex 2.3b and their allocation in WN SE's accounts according to these attached cost centre plans. Other loans allocated exclusively to the SEM Division shall also be transferred, including all rights and obligations from underlying and associated contractual or other legal relationships. As of the Effective Drop-down Date, the transferred other loans are based on SEM KG s pro-forma balance sheet pursuant to Annex 2.3b and its allocation in WN SE's accounts according to the cost centre plans attached to this balance sheet Inventories All stock owned by WN SE and allocated exclusively to the SEM Division, in particular raw materials, additives and operating supplies, incomplete products and services, completed products and goods, each including all claims to advance payments which have been made and all other chattels in the circulating assets, in particular those which are located within the SEM Property pursuant to Clause lit. (a) or those properties, buildings and rooms to be rented by SEM KG in the future as listed in Clause lit (a), in each case unless these properties have been expressly allocated to the PGM, SGM or HQM Divisions pursuant to clauses 2.3, 4.3 or 5, and in each case including all rights and