OFFER (OR GmbH) - ALTERATION CONTRACT AND ACCEPTANCE
Today, this 9th day of December 1998
appeared before me, Dr Xxxx Xxxx, notary public, at my office in Augsburg,
Xxxxxxxxx 0:
1. Xx Xxxxx Xxxxxx, born on 8 February 1962, merchant, residing at Xxxxxxxxxx
00, 00000 Xxxxxxx, xxxxxxxxxx known;
2. Xx Xxxxxxxxxxx Xxxxxxx, born on 31 May 1950, business residence: Xxxxxxxxx
Xxxxxxx 00, 00000 Xxxxxxxx, xxxxxxxxxx known.
Xx Xxxxxxx declares that he is not acting in his own name, but as a
representative of XXXXXX XXXX (IV) Vermogensverwaltungs-GmbH with its head
office in Cologne, registered in the commercial register of the local court in
Cologne under HRB 29606, which changed its firm on 26 June 1998 to SBS
Technologies Holding GmbH with its head office in Augsburg.
I.
The persons appearing before me request notarisation for the following
alteration contract concerning the deed of 1 July 1998 of the notary public
acting in his official capacity (deed register No. K 1454/98) -- hereinafter
"preliminary deed" --:
PREAMBLE:
1. The company OR Industrial Computers GmbH with its head office in Augsburg is
registered in the commercial register of the local court in Augsburg under HRB
9107. Based on a shareholders resolution on 16 November 1998 (Deed register No.
K 2533/98 of the notary public acting) the company has changed its firm to
SBS-OR Industrial Computers GmbH.
The following parties have an interest, as shareholders, in the share capital of
the company of DM 100.000,00:
a) the company ADMINI VIER (IV) Vermogensverwaltungs-GmbH with a partial share
in the nominal amount of DM 50.100,00 acquired by deed on 1 July 1998, of the
notary public acting in his official capacity (deed register No. K 1453/98);
b) Xx Xxxxx Xxxxxx with a partial share of DM 49.900,00, with respect to the
acquisition of which, Paragraphs 1 and 2 of the Preamble of the aforementioned
deed (K 1453/98) are referred to.
2. Xx Xxxxx Xxxxxx shall be hereinafter referred to as "Vendor". The company
ADMINI VIER (IV) Vermogensverwaltungs-GmbH shall hereinafter be referred to as
"Vendee", OR Industrial Computers GmbH shall hereinafter be referred to as
"Corporation".
3. By the preliminary deed the Vendee was offered by the Vendor the option to
acquire the remaining partial share of the Vendor in the Corporation following
the terms in the preliminary deed.
This offer is altered as follows:
1. A. OFFER
The wording under "A. Offer", sentence 3, concerning the option period within
which the offer may be accepted by the Vendee shall read as follows:
"IT MAY ONLY BE ACCEPTED IN THE PERIOD FROM 1 DECEMBER 1998 TO 31 DECEMBER 1998
("OPTION PERIOD")."
2. A. OFFER -- SECTION 1 -- SUB-SECTION 1 OBJECT OF THE PURCHASE, ASSIGNMENT
The following sub-paragraph 3 shall be added to the wording under "A. Offer --
Section 1 -- Sub-Section 1 Object of the Purchase, Assignment":
"3) THE TRANSFER OF SHARES IS SUBJECT TO THE RESOLUTORY CONDITION THAT ALL
PURCHASE PRICE AMOUNTS ARE NOT PAID BY THE VENDEE IN COMPLIANCE WITH THE
CONDITIONS UNDER "B. OPTION RIGHT" OF THIS CONTRACT BY 20 MARCH 1999 AT THE
LATEST".
3. A. OFFER -- SECTION 1 -- SUB-SECTION 2 TRANSFER DATE
The wording under "A. Offer -- Section 1 -- Sub-Section 2 Transfer date" shall
read as follows:
"1) THE TRANSFER DATE WITHIN THE MEANING OF THIS CONTRACT SHALL BE 31 DECEMBER
1998.
2) AFTER THE TRANSFER DATE, THE VENDEE SHALL BE ENTITLED TO RECEIVE THE
DIVIDENDS DISTRIBUTED WITH REGARD TO THE SOLD PARTIAL SHARE.
3) THE VENDOR SHALL BE ENTITLED TO RECEIVE A FRACTIONAL DIVIDEND PAYMENT
DEPENDENT UPON THE SALES VOLUME, FOR THE SOLD PARTIAL SHARE FOR THE PERIOD FROM
1 JULY 1998 TO 31 DECEMBER 1998 AS FOLLOWS:
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SALES VOLUME BASE VARIABLE
--------------------------------------------------------------------------------
up to DM 6.000.000 DM 375.000
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from DM 6.000.000,01 to 7.500.000 10,00% of the sales volume
--------------------------------------------------------------------------------
from DM 7.500.000,01 to 9.000.000 12,00% of the sales volume
--------------------------------------------------------------------------------
from DM 9.000.000,01 14,00% of the sales volume
--------------------------------------------------------------------------------
SALES VOLUME WITHIN THE MEANING OF THIS REGULATION SHALL BE THE SALES VOLUME
INVOICED BY THE CORPORATION IN THE PERIOD FROM 1 JULY 1998 TO 31 DECEMBER 1998.
THE DIVIDEND SHALL AMOUNT TO 56% OF THE BASE VARIABLE.
THE VENDEE EXPRESSLY AGREES TO ADOPT A SHAREHOLDERS RESOLUTION UP TO 30 DECEMBER
1998 TO THE EFFECT THAT THE AFORESAID DIVIDEND SHALL BE ENTERED IN THE BOOKS AS
A LIABILITY OF THE CORPORATION VIS-A-VIS THE VENDOR AS AT 31 DECEMBER 1998, BUT
SHALL NOT BE DUE FOR PAYMENT TO THE VENDOR UNTIL 10 MARCH 1999. DUE TO THIS
ALLOWANCE OF TIME, THE PAYMENT OF THE DIVIDENDS
FOR THE PERIOD FROM 10 JANUARY 1999 TO 10 MARCH 1999 WILL BE CHARGED INTEREST AT
A RATE OF 4 % YEARLY. IF THE DIVIDEND IS NOT EXECUTED BY 10 MARCH 1999, THEN THE
DIVIDEND, AS LONG AS IT IS OUTSTANDING, WILL BE CHARGED INTEREST AT A RATE OF 8%
YEARLY. IN THE EVENT THAT THE DIVIDEND EXCEEDS THE ANNUAL NET PROFIT FOR 1998
WHICH CAN BE DISTRIBUTED, THE VENDEE UNDERTAKES TO EXEMPT THE VENDOR FROM ANY
REPAYMENT OBLIGATION VIS-A-VIS THE CORPORATION."
4. B. OPTION RIGHT
The headline and wording under "B. Option right" shall read as follows:
"B.
OPTION RIGHT, PAYMENT OF THE PURCHASE PRICE
1) THE VENDEE SHALL BE ENTITLED TO ACCEPT THE OFFER WITHIN THE OPTION PERIOD BY
NOTARIAL DECLARATION OF ACCEPTANCE, PREFERABLY FOR THE ATTENTION OF THE NOTARY
PUBLIC ACTING IN AN OFFICIAL CAPACITY OR HIS DEPUTY OR ANY OTHER NOTARY PUBLIC
OF AUGSBURG, IN THE LATTER CASE FOLLOWING PRIOR WRITTEN NOTICE OF THE VENDOR BY
THE NOTARY PUBLIC WHO RECORDS THE DECLARATION IN A NOTARIAL DEED. THE NOTARY
PUBLIC IN ACCORDANCE WITH THE AFORESAID SENTENCE 1 SHALL BE AUTHORISED TO ACCEPT
THE DECLARATION OF ACCEPTANCE OF THE VENDEE.
2) IN CASE THE OFFER PURSUANT TO THE AFORESAID SUB-PARAGRAPH (1) WILL BE
ACCEPTED, A PARTIAL PAYMENT TO THE AMOUNT OF DM 15.222.725,00 SHALL BE
TRANSFERRED TO THE VENDOR'S ACCOUNT IN THE XXXXX-XXXXXX-BANK AUGSBURG, ACCOUNT
NO.:000 1000 140, BANK CODE 720 300 14 BY 28 FEBRUARY 1999 AT THE LATEST. THE
PURCHASE PRICE TO THE REMAINING AMOUNT OF DM 1.000.000,00, AT THE OPTION OF
THE VENDOR, SHALL EITHER BE TRANSFERRED TO THE AFOREMENTIONED VENDOR'S ACCOUNT
ON OR BEFORE 15 MARCH 1999, OR IF THE VENDOR DECLARES THIS IN WRITING VIS-A-VIS
THE VENDEE ON OR BEFORE 1 MARCH 1999, PAID BY SHARES OF SBS TECHNOLOGIES INC,
0000 XXXXXXXXX XXXX, 0-000 XXXXXXXXXXX, XX 00000, WITH A NUMBER OF SHARES BEING
DETERMINED BY THE CLOSING PRICE IN EFFECT ON 26 FEBRUARY 1999. IF TRANSFER BY
SHARES IS CHOSEN, THE PROCEDURE DESCRIBED IN SUB-SECTION 3 (3) OF THE DEED OF
THE NOTARY PUBLIC ACTING FROM 1 JULY 1998 (DEED REGISTRATION NO. K 1453/98)
SHALL APPLY MUTATIS MUTANDIS WITH RESPECT TO THE IMPLEMENTATION.
3) THE PURCHASE PRICE AMOUNTS ARE CHARGED WITH A YEARLY RATE OF 4 % INTEREST
FROM THE DAY AFTER THE TRANSFER DATE UP TO THE DUE DATE STATED IN THE
AFOREMENTIONED SECTION (2). IF THE PURCHASE PRICE AMOUNTS ARE NOT EXECUTED BY
THE DUE DATE SET IN SECTION (2), THEN THE PURCHASE PRICE, AS LONG AS IT IS
OUTSTANDING, WILL BE CHARGED INTEREST AT A RATE OF 8 % YEARLY.
4) IF THE RIGHT TO ACCEPT THIS OFFER IN ACCORDANCE WITH THE ABOVE PARAGRAPH 1
("OPTION") IS NOT EXERCISED BY THE VENDEE ON OR BEFORE 31 DECEMBER 1998, IT
SHALL EXPIRE."
5. C. REPURCHASING OPTION
a) The wording under "C. Repurchasing option", Sentence 1, shall read as
follows:
"SHOULD THE VENDEE FAIL TO EXERCISE THE RIGHT TO ACCEPT THE OFFER PURSUANT TO
THE AFORESAID SECTIONS A AND B WITHIN THE OPTION PERIOD OR SHOULD THE
RESOLUTORY CONDITION PURSUANT TO SECTION A, PART I, SUB-SECTION 1 (3)
MATERIALISE, THE VENDEE -- SUBJECT TO A CONDITION PRECEDENT DUE TO THE FAILURE
TO EXERCISE THE OPTION GRANTED TO THE VENDEE UNDER THE ABOVE SECTION B WITHIN
THE OPTION PERIOD OR DUE TO THE MATERIALISATION OF THE RESOLUTORY CONDITION
PURSUANT TO SECTION A, PART I, SUB-SECTION 1 (3) -- NOW OFFERS THE DIVISION OF
THE SHARE IN THE NOMINAL AMOUNT OF DM 50.100,00 TRANSFERRED TO IT BY THE DEED
URNr. K 1453/98 INTO TWO PARTIAL SHARES IN THE NOMINAL AMOUNT OF DM 49.400,00
AND DM 700,00 AND THE ASSIGNMENT OF THE PARTIAL SHARE LAST MENTIONED FOR DM
700,00 IN A CONCURRENT MANNER AGAINST ASSIGNMENT OF A PARTIAL SHARE IN THE
CORPORATION TO THE AMOUNT OF DM 500,00 WHICH IS TO BE CREATED BY DIVISION."
b) The wording under "C. Repurchasing option", Sentence 3, concerning the period
within which the Vendor will be entitled to accept the offer of the repurchasing
option shall read as follows:
"THE VENDOR SHALL BE ENTITLED TO ACCEPT THIS OFFER WITHIN A PERIOD OF FOUR
MONTHS FOLLOWING EXPIRATION OF THE OPTION PERIOD. "
II.
The Vendee declares that they have knowledge of the alteration contract pursuant
to section I) above.
The Vendee hereby accepts the Vendor's offer given in the preliminary deed in
the form of this alteration contract.
III.
1) In any case of discrepancies in the interpretation between the German and
English text of this deed, the German text will take precedence.
2) The costs of this deed shall be borne by the Vendee.
3) Each party to the contract shall receive one copy of this deed. Other
certified copies of this deed shall be submitted to
- the Corporation;
- the local tax office of Augsburg (Stadt) for bodies corporate for tax No.
386/11073;
- the lawyer Xxxxxx Xxxxxxxxxxx, KPMG Deutsche Treuhandgesellschaft,
Kurfurstendamm 207 -- 208, 10719 Berlin;
- the lawyers Xxxxx, Xxxxxxxx, Fent, for the attention of Xx. Xxxxxxx Xxxxx,
Xxxxxxxxxxxxxxxxxxxx 00, 00000 Xxxxxxxx.
The above record was read out by the notary public, approved by the persons
appearing and signed in their own hands.
Vorstehende Niederschrift wurde vom Notar vorgelesen, von den Erschienenen
genehmigt und eigenhandig unterschrieben.
/s/ Xxxxx Xxxxxx
/s/ Xxxxxxxxxxx X. Xxxxxxx
/s/ Xxxx Xxxx
[SEAL]
