EXHIBIT 10.4
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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
XXX Xxxxxxxxxxx, 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx, XXX, 00000,
acting not in its own name but in the name and on behalf of
NCR GmbH, Xxxxx Xxxxxxx 000, 00000 Xxxxxxxx, Xxxxxxx, 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 Turbon 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 am Main stock exchange.
The Vendor holds 1,050,000 shares in Turbon 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"):
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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 (a) the price offered for the Shares is
at least US$14 per share payable in cash, (b) the Vendor has received any
dividends related to the Vendor Shares declared prior to the sale of the Vendor
Shares to Buyer, (c) Xxxxxx Xxxxxxxxxx-Turbon has waived any rights of first
refusal he may have related to the shareholders agreement referenced in Section
3.1.2 hereof and (d) Turbon AG, on behalf of itself and its affiliate
corporations and entities, including without limitation Turbon International
GmbH, and their officers, directors and employees, in a form acceptable to XXX
Xxxxxxxxxxx, release XXX Xxxxxxxxxxx and its affiliate companies and its
officers, directors and employees from, and waive all known claims, liabilities,
demands and expenses against XXX Xxxxxxxxxxx, in consideration of which NCR
shall provide an equivalent release in favor of the Turbon entities.
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 a
Takeover Offer document (Angebotsunterlage) in accordance with the WpUG
concerning the acquisition of Shares in Turbon AG and approved by the German
Supervisory Authority for Financial Services (Bundesanstalt fur
Finanzdienstleistungsaufsicht) by September 30, 2005, 12 p.m. The Buyer and
Vendor 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 except as contained in a
shareholders agreement between the Vendor and Xxxxxx Xxxxxxxxxx-Turbon
related to a first right of refusal. The Vendor represents that this
Agreement has been discussed with Xxxxxx Xxxxxxxxxx-Turbon, and
3.1.3 the Vendor may freely dispose of the Vendor Shares.
3.2 The Vendor does not give any warranties extending beyond the warranties
in sub-clause 0.
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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 Vendor to:
NCR Corp., 0000 X. Xxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxx, XXX, 00000
Fax # 000-000-0000
Attention: Xx. Xxxxx Xxxxxxxx
or to other persons or addresses which are communicated by the
respective Party in writing.
5. COSTS
Each Party bears its own costs in connection with the preparation,
assessment or conclusion of this Agreement, including the costs for
legal, commercial, financial or tax advice.
6. FINAL PROVISIONS
6.1 This Agreement contains the entire agreement reached between the
Parties on the subject of this Agreement, subject to such changes as
may be necessary in order to comply with German laws and regulations.
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 am Main.
6.4 This Agreement is governed by German law.
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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 6.5 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 22, 2005 Date: June 22, 2005
For: Adsero Corp. For: NCR Corp.
/s/ Xxxxxxx Xxxxx /s/ Xxxxx Xxxxxxxx
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Xxxxxxx Xxxxx Xxxxx Xxxxxxxx
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