EXHIBIT 10.6
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AGREEMENT
ON THE OBLIGATION TO ACCEPT
A PUBLIC OFFER
between
Adsero Corp., 0000 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx, X0X 0X0 and or its
designates, collectively the "Buyer",
and
Xxxxxxx Xxxxxxxxxxxxxxxxxx XX, Xxxxxxxxxxxxx(xxxx)x 00, X-00000, Xxxxxx, the
"VENDOR".
In the following, Buyer and Vendor are individually referred to as the "PARTY",
and jointly as the "PARTIES".
PREAMBLE
Turbon AG is a stock corporation established in accordance with German law with
seat in Hattingen, registered in the commercial register of the local court of
Essen under HRB 15780. The total share capital of AG amounts to EURO
10,299,974.95, divided into 4,029,000, shares (the "SHARES"). The shares are
listed and traded on the Frankfurt stock exchange.
The Vendor holds 400,000 shares in AG the "VENDOR SHARES". It intends to sell
the Vendor Shares to the Buyer if the Buyer should decide to submit a public
offer ("OFFER") for the acquisition of the shares according to the terms of the
Securities Acquisition and Takeover Act (Wertpapiererwerbs- und Ubernahmegesetz,
"WPUG"). The Buyer has not yet taken a decision concerning the submission of
such an Offer. Having said this, the Parties conclude the following Agreement
("AGREEMENT"):
1. OBLIGATION TO ACCEPT AN OFFER
1.1 If the Buyer, or a person designated by the Buyer, submits an Offer,
the Vendor is obliged to immediately accept the Offer in accordance
with the terms of the Offer and to transfer the Vendor Shares to the
Buyer, or the person designated by the Buyer, provided that the price
offered for the Shares amounts to, or its value corresponds to, at
least US$14 per share payable in cash.
1.2 Under no circumstances is the Buyer obliged to submit an Offer.
2. PERIOD OF VALIDITY
The obligations arising out of this Agreement - with the exception of
those listed in Clause 6 - will automatically end if the Buyer has not
published an Offer document in accordance with the WpUG concerning the
acquisition of Shares in AG and approved
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by the German Financial Supervisory Authority (Bundesanstalt fur
Finanzdienstleistungsaufsicht) by September 30, 2005, 12 p.m. If it is
noticeable during the period of validity that the buyer will not submit
an offer pursuant to clause 1 of this agreement, the vendor is not
longer obliged to the terms of this agreement. The Parties may extend
the period of validity at any time by mutual agreement in writing.
3. VENDOR WARRANTIES
3.1 With effect as per today and as per the day of transfer of the Vendor
Shares to the Buyer, the Vendor warrants the following:
3.1.1 The Vendor has sole, unencumbered and unrestricted title to the Vendor
Shares and the Vendor Shares are not encumbered with any rights of
third parties
3.1.2 the Vendor Shares are not subject to any rights of first refusal by
other shareholders or third parties and
3.1.3 the Vendor may freely dispose over the Vendor Shares.
3.2 The Vendor does not give any warranties extending beyond the warranties
in sub-clause 0.
4. NOTIFICATIONS
All notifications and statements under or in connection with this
Agreement require written form to be effective. They must be faxed to
the following numbers:
4.1 for the Buyer to:
Adsero Corp., 0000 Xxxxx Xxxxxx, Xxxxxx Xxxxx, Xxxxxx, Xxxxxx, X0X 0X0,
Fax # 000-000-0000
Attention: Xxxxxxx Xxxxx, CFO, Adsero Corp.
4.2 for the proxy of the Vendor to:
Xxxxxxx XX, Xxxxxxxxxxxxx(xxxx)x 00, X-00000, Xxxxxx
Fax # 00(00) 00 00 00 00
Attention: Xxxxxx Xxxxx, Senior Partner
or to other persons or addresses which have previously been
communicated by the respective Party.
5. COSTS
Each Party bears its own costs in connection with the preparation,
assessment or conclusion of the Agreement, including the costs for
legal, commercial, financial or tax advice.
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6. FINAL PROVISIONS
6.1 This Agreement contains the entire agreement reached between the
Parties on the subject of this Agreement. There are no side agreements.
6.2 Amendments and supplements to this Agreement as well as the waiver of
any rights under this Agreement must be in writing in order to be
valid. This also applies to any amendment to, or cancellation of, this
written form clause.
6.3 Exclusive place of jurisdiction is Frankfurt.
6.4 This Agreement is governed by German law.
6.5 Should a provision of this Agreement or a provision later on included
in this Agreement be or become null and void as a whole or in part, or
should a gap in this Agreement become evident, this does not affect the
validity of the remaining provisions. Instead of the null and void
provision, or in order to fill the gap, such valid and practicable
regulation is deemed to be agreed with effect ex tunc that in legal and
economic terms comes closest to what the Parties intended or would have
intended in accordance with the purpose of this Agreement if they had
considered the point at the time of conclusion of this Agreement. If
the nullity of a provision is due to a degree of performance or time
(period or deadline) laid down in this provision, then the provision is
deemed to be agreed with a legally permissible degree that comes
closest to the original degree. [The Parties are aware of the decision
of the Federal Supreme Court (Bundesgerichtshof) of 24 September 2002.
However, it is the express intention of the Parties that this
sub-clause 1.6 does not merely result in a reversal of the burden of
proof but that section 139 Civil Code is contracted out as a whole.]
Date: June 21, 2005 Date: June 21, 2005
For: Adsero Corp. For: Gothaer Lebensversicherung AG
/s/ Xxxxxxx Xxxxx /s/ Xxxxxx Xxxxx /s/ Xx. Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxx Xxxxxx Xxxxx Xxxxxxx Xxxxxx
Board of Directors
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