Common use of PURCHASER'S UNDERTAKINGS; INCREASE OF FAIR CASH COMPENSATION Clause in Contracts

PURCHASER'S UNDERTAKINGS; INCREASE OF FAIR CASH COMPENSATION. 8.1 With respect to the sale and transfer of the Sellers' Shares by the Sellers and the settlement between the Parties in accordance with Section 7 above, the Purchaser undertakes vis-a-vis the Sellers, subject to compliance with applicable law, to increase the fair cash compensation (Abfindung) under the Mandatory Offer of EUR 41.92 per Share resolved upon during the AGM (the "ORIGINAL CASH COMPENSATION") by an amount of EUR 9.08 per Share (the "ADDITIONAL CASH COMPENSATION") up to an aggregate amount of EUR 51.00 per Share for all minority shareholders that accept the Mandatory Offer on or prior to September 29, 2005, provided, however, that a minority shareholder shall only be entitled to the Additional Cash Compensation if such shareholder irrevocably declares by signing a waiver declaration the form of which is attached as Annex C that such shareholder (i) has not filed or has withdrawn (as the case may be), and will not file, an application for the initiation of award proceedings, and irrevocably waives any and all rights to initiate and carry out award proceedings in connection with the Domination Agreement; (ii) has not adhered, and will not adhere, to applications and has not, or will not, facilitate award proceedings in connection with the Domination Agreement in any other way, whether directly or indirectly; and (iii) irrevocably waives any and all rights to participate in an increase of the amount of the fair cash compensation and/or the guaranteed fixed annual payment as a result of, or in connection with the Award Proceedings or other proceedings or agreements irrespective of whether such increase occurs through a court ruling, an agreement amongst the parties or otherwise. Minority shareholders who accept the Mandatory Offer after September 29, 2005 shall not be entitled to receive the Additional Cash Compensation. 8.2 Notwithstanding the foregoing, for the avoidance of doubt and as a matter of utmost precaution the increase of the fair cash compensation under the Mandatory Offer shall be structured in a manner that, if the declarations described in the proviso to Section 8.1 above are not binding upon minority shareholders and the Original Cash Compensation is increased as a result of the Award Proceedings, other proceedings or agreements - irrespective of whether such increase occurs through a court ruling, an agreement amongst the parties to the relevant proceedings or otherwise - (the "COMPENSATION INCREASE"), the Additional Cash Compensation is to be credited against such Compensation Increase. Thus, the Additional Cash Compensation shall be deemed to be a prepayment on such Compensation Increase. 8.3 As long as the Purchaser complies with Sections 8.1 and 8.2, the undertakings of the Purchaser set forth in this Section 8 shall not prevent the Purchaser to enter into separate transactions with one, several or all minority shareholders and/or their representatives on terms and conditions deviating from the terms and conditions provided for in this Section 8.