EXHIBIT 4.11
Unofficial English Translation of:
SHARE PURCHASE AGREEMENT
between
XXXXXXXX BETEILIGUNGS-GESELLSCHAFT MBH, MUNSTER, GERMANY
- hereinafter referred to as "the Vendor" -
and
E.ON AG, DUSSELDORF, GERMANY
- hereinafter referred to as "the Purchaser" -
2
Recital
The Vendor is directly or indirectly entitled to dispose of 44,186,030 no-par
value shares [Stuckaktien], as described in SCHEDULE A, in the capital stock of
Ruhrgas-Aktiengesellschaft, with registered office in Essen (hereinafter
referred to as "Ruhrgas AG") of EURO 1,125,000,000.00, divided into 440,000,000
quasi no-par-value shares [Stuckaktien].
NOW, THEREFORE, in consideration of the foregoing, the Parties hereby agree as
follows:
Section 1
Purchase and sale of Ruhrgas shares
1. The Vendor hereby sells, with the exception of shares sold to third
parties in any first option procedure according to the provisions of
sect. 2, the Ruhrgas shares described in SCHEDULE A to the Purchaser,
which so accepts, and undertakes to transfer the shares to the
Purchaser on fulfillment of the performance conditions pursuant to
sect. 4. The Purchaser undertakes to accept such transfer.
2. The purchase price comprises a fixed component and a variable amount
(Increase Amount). The total fixed amount for the shares specified in
SCHEDULE A is EURO 1,042,774,936.27 (EURO one billion forty-two million
seven hundred and seventy-four thousand nine hundred and thirty-six and
27/100). As from July 1, 2002, the purchase price shall be increased by
4% p.a. (30/360) until settlement has occurred. If all requisite
conditions for performance of this agreement are fulfilled before
October 15, 2002, the increase in the purchase price pursuant to
sentence 3 shall end five business days after fulfillment of the final
condition.
3. Payment of the purchase price pursuant to sect. 1 par. 2, shall
constitute full settlement of all profit drawing rights. In the event
of any further dividends being paid by Ruhrgas AG to the Vendor for the
Ruhrgas shares sold pursuant to sect. 1 par. 1 subsequent to the
signing of this agreement but before its performance, such dividends
shall be
3
subtracted from the variable amount pursuant to sect. 1 par. 2, which
may become a negative amount if applicable.
4. The total purchase price pursuant to sect. 1 is payable in full as per
sect. 4 par. 2 sub-paragraph 4, sentence 1.
Section 2
Transfer restriction and first option rights
1. As of the execution of this agreement, the Purchaser has reached
contractual agreements with all members of Xxxxxxxxx GmbH and all other
Ruhrgas shareholders except Heinrich Industrie AG, BEB Erdgas und Erdol
GmbH (hereinafter referred to as "BEB"), and Xxxxxxxx KG on the
acquisition of their directly or indirectly held stakes in Ruhrgas;
those agreements are conditional upon the possibility of performance
under antitrust legislation, and, in the case of the agreement with RAG
AG, upon further approvals under antitrust provisions and official
requirements and upon the possibility of performance under the Bylaws
of Xxxxxxxxx GmbH and Ruhrgas AG. The Purchaser shall use its best
efforts to ensure that Heinrich Industrie AG and Xxxxxxxxx GmbH waive
their first option rights set down in the Investor Rights Agreements of
January 9, 1966 and March 28, 1968 between Ruhrgas shareholders and
Ruhrgas AG (hereinafter referred to as the "Investor Rights
Agreements") and to secure the consent of Xxxxxxxxx GmbH to the
transfer of the Ruhrgas shares in the General Meeting of Shareholders
of Ruhrgas AG, even before performance of the above-mentioned
agreement; after acquiring all the holdings in Xxxxxxxxx GmbH the
Purchaser shall guarantee those outcomes. The Purchaser shall exercise
its voting rights in Xxxxxxxxx GmbH accordingly. The Purchaser shall
also use its best efforts to ensure that Gelsenberg AG waives its first
option rights under the Investor Rights Agreements and to secure its
consent in the General Meeting of Shareholders to the transfer of the
Ruhrgas shares; after acquiring a majority of the shares in Gelsenberg
AG the Purchaser shall guarantee those outcomes. For the purposes of
the present agreement, the date of acquisition of the majority of
shares in Gelsenberg AG shall be no later than the 30th day after
antitrust approval. This
4
obligation with respect to Gelsenberg AG also extends to a similar
waiver and similar consent on the part of Gelsenberg AG in Xxxxxxxx KG,
and to securing the adoption of the resolution referred to in sect. 4
par. 1 letter e). Similarly, the Purchaser shall use its best efforts
to ensure that Gelsenberg AG exercises its voting rights in Xxxxxxxxx
GmbH, Xxxxxxxx KG and Ruhrgas AG accordingly, and guarantees this
outcome following acquisition of the majority of the shares in
Gelsenberg AG. The Purchaser shall keep the Vendor informed in writing
of the status and progress of its efforts in this regard.
2. The Vendor shall use its best efforts to ensure that Xxxxxxxx KG waives
its first option rights under the Investor Rights Agreement and
consents to the transfer of the Ruhrgas shares in the General Meeting
of Shareholders of Ruhrgas AG, in accordance with sect. 2 par. 3.
3. The Parties shall use their best efforts to ensure that the transfer of
all shares as described in SCHEDULE A on the basis of the present
agreement, the Shell Agreement referred to in sect. 4 par. 1 and, if
applicable, acquisition by parties with first option rights are all put
to a vote jointly at the General Meeting of Shareholders of Ruhrgas AG.
4. The Parties agree that this agreement will only be performed when the
first option procedure referred to in the Investor Rights Agreements is
no longer required (except for shares transferred under the first
option procedure), either because of acquisition by the Purchaser of
the respective stakes in Xxxxxxxxx GmbH or Ruhrgas AG and the majority
of the shares in Gelsenberg AG, or on the basis of written waivers from
entitled parties to the Investor Rights Agreements that have not
transferred their stakes to the Purchaser, and when the consent of the
General Meeting of Shareholders of Ruhrgas AG has been obtained for the
transfer of all the shares described in SCHEDULE A on the basis of this
agreement and the Shell Agreement referred to in sect. 4 par. 1.
5. In the event that a Ruhrgas shareholder, in spite of the Parties'
having used their best efforts to secure the relevant waivers,
exercises its first option rights under the Investor Rights Agreements
for any of the shares described in SCHEDULE A, the Parties hereby agree
as follows:
5
a) The transfer of the shares described in SCHEDULE A shall be
performed only if the Vendor is assured of being able to sell
and transfer all the said shares under terms and conditions no
less favorable than those specified in sect. 1 par. 2 and par.
3;
b) in the eventuality of the Vendor's selling shares pursuant to
SCHEDULE A under the first option rights procedure, the
Purchaser undertakes to acquire the remaining shares described
in SCHEDULE A that have not been sold under the first option
rights procedure at the terms and conditions specified in this
agreement (pro rata purchase price) and to consent to all
transfers of the shares described in SCHEDULE A in the General
Meeting of Shareholders of Ruhrgas AG, and to use its
influence to secure the consent of Xxxxxxxxx GmbH and
Gelsenberg AG;
c) if the prerequisites referred to in letter a) cannot be met,
the Vendor shall be entitled to withdraw from this agreement.
Following the Vendor's declaration of withdrawal, in the
General Meeting of Shareholders of Ruhrgas AG the Purchaser
shall refuse consent to share transfers to any Ruhrgas
shareholders which have exercised their first option rights,
and shall use its best efforts to ensure that Xxxxxxxxx GmbH
and Gelsenberg AG also refuse consent.
6. The Vendor undertakes, subject to assurance of performance of this
agreement, to exercise its influence according to corporate law, within
the limits of the possibilities legally available to it, to ensure that
the respective holders of voting rights on the basis of the Ruhrgas
shares sold pursuant to sect. 1 par. 1 give their consent at the
General Meeting of Shareholders of Ruhrgas AG to all other intended
transfers of Ruhrgas shares to the Purchaser by other Ruhrgas
shareholders.
7. To the extent that one or both of the Parties have undertaken in this
sect. 2 to "use their best efforts", this does not denote any
obligation to make any financial or other business concessions.
8. After acquiring or gaining control of RAG AG's stake in Xxxxxxxxx GmbH
and a majority of the shares in Gelsenberg AG, the Purchaser shall
ensure that Xxxxxxxxx
6
GmbH, Gelsenberg AG, and Heinrich Industrie AG, and also, to the extent
this is within the area of influence of the Purchaser, the other
shareholders of Xxxxxxxxx GmbH and RG immediately notify Xxxxxxxx KG
and its limited partners in writing that they are waiving the
agreements set down in Clause 3 letter (b) of the protocol notes
pertaining to the Xxxxxxxx Investor Rights Agreement of March 28, 1968.
Section 3
Merger control
1. On the signing of this agreement a procedure is already pending before
the Federal Cartel Office and the Federal Minister for the Economy and
Technology (the "Antitrust Authorities") (Gelsenberg application of
August 15, 2001 and application for ministerial approval of February
18, 2002, Xxxxxxxxx application of November 9, 2001, and application
for ministerial approval of March 5, 2002), in which the Purchaser is
seeking antitrust approval for the acquisition of majority stakes in
Xxxxxxxxx GmbH and Gelsenberg AG (indirect acquisition of a majority
stake in Ruhrgas AG).
2. If the Purchaser does not succeed in obtaining antitrust approval for
its acquisition of a majority of all shares issued by Ruhrgas AG by
means of the applications referred to in sect. 3 par. 1, in particular
the procedure before the Federal Ministry for the Economy and
Technology referred to in that paragraph which is currently pending,
the Parties shall immediately jointly state whether and by what means,
given the de jure and de facto circumstances then prevailing, the
Purchaser's merger project for the acquisition of a majority of all
shares issued by Ruhrgas, which project includes this agreement and the
Shell Agreement referred to in sect. 4 par. 1, can be performed. That
may involve changes to the prerequisites for performance of the present
agreement.
3. Immediately after receipt of ministerial approval for the merger
project referred to in paragraph 1 above, the Purchaser shall make a
submission to the Federal Cartel Office, which is based on the draft
letter set out in SCHEDULE B, (copy to the Merger Task
7
Force of the EU Commission), requesting written confirmation that
following performance of the indirect acquisition of a majority stake
in Ruhrgas AG via the acquisition of majority stakes in Xxxxxxxxx GmbH
and Gelsenberg AG (Acquisition of Control), the acquisition of the
Ruhrgas shares as per SCHEDULE A will not constitute a merger situation
which is subject to antitrust approval.
In the event that the Federal Cartel Office or the EU Commission takes
the view that the acquisition of Ruhrgas shares under the present
agreement and the Shell Agreement referred to in sect. 4 par. 1
constitutes another merger situation subject to application for
approval under antitrust provisions, the Parties shall apply to the
Federal Cartel Office or the EU Commission for such approval, and shall
support the application to the best of their ability. The Parties are
not obliged to accept any commitments given to, or requirements or
conditions imposed by, the Federal Cartel Office or the EU Commission,
or to cooperate in their practical implementation. This also applies
with respect to agreements not specifically referred to in sect. 3 par.
5.
If the Federal Cartel Office does issue a letter of caution in relation
to the merger project referred to in this paragraph 3, then,
immediately upon receipt of such a letter, the Parties shall engage in
xxxxx and constructive discussions with a view to referring the merger
project, in the event of a rejection, to the Federal Minister for the
Economy and Technology for approval. The interests of both parties
shall be given reasonable consideration in the discussions, but the
decision on such referral shall ultimately be at the sole discretion of
the Purchaser.
4. The Purchaser shall immediately inform the Vendor in writing of the
details of the procedure initiated with the application pursuant to
sect. 3 par. 2 or sect. 3 par. 3, especially where the interests of the
Vendor or its affiliated businesses may be involved, and the Vendor is
not aware of this information by virtue of itself being a party in the
procedure. The same applies to the Vendor.
5. In the event that conditions or requirements are imposed on the
Purchaser that relate to one of the procedures referred to in sect. 3
par. 1 to par. 3 and that directly affect the following contracts:
8
all natural gas supply contracts between Mobil Erdgas-Erdol GmbH -
alone or with others - and Ruhrgas AG;
all natural gas supply contracts between Esso Exploration and
Production Norway AS - alone or with others - and Ruhrgas AG; and
all natural gas supply contracts of Preussag Energie GmbH - alone or
with others - and Ruhrgas AG;
the Purchaser is obliged to notify the Vendor immediately of this
situation. The Vendor shall be entitled to withdraw from the present
agreement by notification in writing within 30 business days of being
notified in writing by the Purchaser of the imposition of the said
conditions.
Interventions in this context are deemed to have occurred, for
instance, if changes are made to the contract, if contractual rights
are exercised, or if any contractual leeway as might exist is used.
Impacts on said contracts that are merely of an indirect nature, e.g.
as a result of structure-related commitments (including in the context
of the Associations' Agreement) are not covered by this provision.
If the Vendor does not exercise its right of withdrawal, this shall not
be construed as agreement by the Vendor to the condition or requirement
so imposed, and the Vendor shall not be obliged to cooperate in the
practical implementation of the condition or requirement following
performance of this agreement.
In the event of such withdrawal, the Parties undertake to proceed
immediately to withdraw the application regarding the merger project
under the present agreement (including any application for the granting
of ministerial approval).
6. In any procedure pursuant to sect. 3 par. 2 and par. 3, the Purchaser
undertakes not to propose or accept any concessions to or conditions
imposed by the Antitrust Authorities regarding the stakes in Ruhrgas AG
without prior consultation with the Vendor. The Purchaser shall further
be obliged, in the event of any intention on its part or by the
Antitrust Authorities to suggest or propose conditions or requirements
in a procedure pursuant to sect. 3 par. 2 or par. 3 involving a direct
intervention as described
9
in paragraph 5 in the commercial gas contracts referred to in that
paragraph, to notify the Vendor immediately in writing to that effect
on each occasion.
7. The Parties each undertake to treat all information specifically marked
as confidential received from the other party regarding the status and
content of negotiations with the Antitrust Authorities in connection
with the antitrust procedure pursuant to sect. 3 par. 1 as
"confidential information" as defined in and according to the
provisions of the Confidentiality Agreement in place between the
Parties, attached as SCHEDULE C, with the proviso that the
Confidentiality Agreement shall continue to apply to this extent
following the signing of the present agreement.
Section 4
Performance
1. Performance shall take place after fulfillment of the following
conditions:
a) the purchaser has acquired a majority stake or control of a
majority stake in Ruhrgas AG by acquisition of the stake in
Xxxxxxxxx GmbH held by RAG AG and a majority stake in
Gelsenberg AG, or by other indirect means,
b) and (according to their respective areas of competence) the
Federal Cartel Office or the EU Commission has confirmed to
the Purchaser in writing that, following the indirect
acquisition of a majority stake in Ruhrgas AG, the acquisition
of further Ruhrgas shares provided for in the present
agreement does not constitute a merger situation subject to
application for approval, or the Federal Cartel Office or the
EU Commission has approved a merger project applied for by the
Purchaser pursuant to sect. 3 par. 2, or the project is deemed
to be approved by expiry of the deadline pursuant to sect. 40
par. 2 of German Antitrust Law [GWB] or Art. 10 par. 6 of the
Merger Control Regulations [FKVO], or the merger project has
been authorized by ministerial approval
10
pursuant to sect. 42 GWB and can be duly performed, or can be
performed for other reasons in keeping with antitrust
requirements,
c) and the acquisition of shares pursuant to the Shell Agreement
referred to in sect. 4 par. 1 can be performed in keeping with
antitrust requirements,
d) and, provided the prerequisites for acquisition in accordance
with the Investor Rights Agreements and the Bylaws of Ruhrgas
AG have been met, i.e. any rights to exercise the first option
rights provided for therein are waived, with the exception of
Ruhrgas shares sold in the first option procedure, and the
required approval resolutions for the transfer of all Ruhrgas
shares for sale as per SCHEDULE A are adopted by the General
Meeting of Shareholders of Ruhrgas AG,
e) and Xxxxxxxx KG and its members with voting rights have passed
the resolutions required for the performance of this
agreement, which concern the withdrawal of the Ruhrgas shares
attributable to BEB and the Vendor from Xxxxxxxx KG, and their
subsequent sale to third parties,
but in any event not before October 15, 2002. The Purchaser shall
notify the Vendor immediately in writing of the fulfillment of the
prerequisites under letters a) to d) and the Vendor shall notify the
Purchaser immediately in writing of the fulfillment of the
prerequisites under letter e).
The Parties shall be obliged to perform the agreement only if there is
also assurance of the performance of the agreement concluded by the
Purchaser with Deutsche Shell GmbH on July 1, 2002 ("Shell Agreement")
on the acquisition of the Ruhrgas shares held directly or indirectly by
that company.
Performance of the Shell Agreement shall be regarded as assured for the
purposes of this contract if all the pre-requisites for performance
pursuant to sect. 4 par. 1 of the Shell Agreement apart from assurance
of the performance of this agreement have been met.
11
Together with the notification according to letters a) to d), the
Purchaser shall also advise the Vendor that assurance of performance
has now been secured with respect to Deutsche Shell GmbH. Together with
the notification according to letter e), the Vendor shall also advise
the Purchaser whether assurance of performance has been secured for any
sale to a Ruhrgas shareholder with first option rights.
Once all the required notifications in accordance herewith have been
provided, the Vendor shall confirm to the Purchaser immediately in
writing that the performance prerequisites have been met.
2. Performance shall be carried out with the involvement of Dresdner Bank
AG as trustee in accordance with the Escrow Agreement attached as
SCHEDULE D.
Simultaneously with the confirmation of fulfillment of the performance
prerequisites pursuant to sect. 4 par. 1, last sentence, the Vendor
shall notify the trustee and the Purchaser of the purchase price amount
determined by it, enclosing a detailed calculation. Within five
business days of receipt of the aforementioned notification, the
Purchaser shall advise the Vendor and the trustee whether it is in
agreement with the price, or the extent of any deviation. In the event
of advice from the Purchaser that it is not in agreement with the
price, again with the enclosure of a detailed calculation, the lower of
the purchase prices notified to the trustee shall apply on a
provisional basis, for the purposes of the settlement transaction via
the trustee; each of the Parties is entitled to have recourse to the
arbitration tribunal pursuant to sect. 13 par. 7 for a legally binding
determination of the purchase price. Differences of opinion between the
Parties regarding the purchase price and conflicting notifications made
to the trustee shall not give rise to a right of withdrawal for either
party. If the arbitration tribunal determines a higher purchase price,
and accordingly a different purchase price, the difference shall be
payable by the debtor to the other party when the ruling of the
arbitration tribunal has legal force, with interest payable from the
due date at 2% p.a. above the rate pursuant to sect. 1 par. 2.
The performance settlement shall be carried out via the trustee in
accordance with the following provisions:
12
The purchase price pursuant to sect. 1 is payable in full by the
Purchaser ten (10) business days after receipt of the notification
pursuant to sect. 4 par. 1, last sentence. Payments made by the
Purchaser to the trustee are regarded as payments made to the Vendor
solely for the purposes of calculating the Increase Amount pursuant to
sect. 1 par. 2. The Purchaser shall pay the full purchase price
pursuant to sect. 1 by no later than five business days after receipt
of the notification pursuant to sect. 4 par. 1, last sentence, into an
escrow account designated by the Parties at Dresdner Bank AG, Hamburg.
The Vendor shall be obliged to hand over to the trustee, within five
business days of payment of the full purchase price pursuant to sect. 1
and receipt of confirmation from the trustee regarding the payment, but
in any event no earlier than ten business days after receipt of the
notification pursuant to sect. 4 par. 1, final sentence, a notarized
declaration of transfer by the owner of the shares, also identified in
the register of shareholders, and all other declarations required, for
example on the basis of and in connection with transfer of ownership of
the Ruhrgas shares, or ensure this is done.
3. The trustee's costs shall be borne by the Vendor.
4. If the Vendor has not met the above-mentioned obligation to the
Purchaser to hand over the notarized declaration from the owner of the
shares within 15 business days of receipt of the notification pursuant
to sect. 4 par. 1, last sentence, the Purchaser shall be entitled to
set a grace period of five business days. If that period expires
without result, the Purchaser shall be entitled to withdraw from this
agreement, without prejudice to any further rights it may have. If the
Purchaser has not met the above-mentioned obligation for payment of the
full purchase price pursuant to sect. 1 within 15 business days of
receipt of the notification pursuant to sect. 4 par. 1, last sentence,
the Vendor shall be entitled to set a grace period of five business
days. If that period expires without result, the Vendor shall be
entitled to withdraw from this agreement, without prejudice to any
further rights it may have.
5. Any offsets or invocation of a withholding right against the purchase
price claim, including interest, are prohibited.
13
Section 5
Warranty / liability
1. The Vendor gives a guarantee to the Purchaser, in the form of an
independent guarantee undertaking, that the Ruhrgas shares for transfer
to the Purchaser pursuant to sect. 1 par. 1, at the time of completion
pursuant to sect. 4:
a) will be owned by the Vendor, or
b) it has been authorized by the owner to dispose of the shares,
or
c) the shares will be transferred by their owners to the
Purchaser,
and that said shares are not encumbered with any third-party rights
other than those under the Ruhrgas AG Bylaws and the relevant
Investor Rights Agreements. No further guarantees are given by the
Vendor, and indeed any warranty claims for the Purchaser are precluded
to the extent permitted by law.
The Vendor's liability under this sect. 5 par. 1 is, to the extent
permitted by law, limited to the fixed amount with respect to the
Ruhrgas shares for transfer pursuant to sect. 1 par. 1 plus 4% p.a.
(30/360) as from July 1, 2002 until the date when full compensation has
been paid.
2. In any event, the liability of each of the Parties under this
agreement, irrespective of the legal basis for the claim, is limited to
an amount of EURO 1,042,774,936.27 plus 4% p.a. (30/360) as from July
1, 2002 until the date when full compensation has been paid.
14
Section 6
Right of withdrawal
1. Without prejudice to the rights of withdrawal pursuant to sect. 2 par.
5, letter c) and sect. 3 par. 5, either of the Parties may withdraw
from this agreement,
a) if the Federal Minister for the Economy and Technology denies
approval for any or all of the merger projects pursuant to sect. 3
par. 1 and (i) one or both of the Parties regards continuance with
the merger project for the acquisition by the Purchaser of a
majority stake in Ruhrgas AG pursuant to sect. 3 par. 2 as no
longer offering sufficient prospects of success, or (ii) the
competent Antitrust Authorities (including the EU Commission) have
denied approval for such a merger project and the deadline for
submission of any appeals has expired or such appeals have been
unsuccessful;
b) if (i) permission has been granted for all merger projects
pursuant to sect. 3 par. 1 and (ii) the merger projects pursuant
to sect. 3 par. 2 and sect. 3 par. 3 have been prohibited by the
Federal Cartel Office or the EU Commission and the deadline for
applying for ministerial approval has expired without any petition
having been lodged, or (ii) the Federal Minister for the Economy
and Technology has denied a petition for ministerial approval;
c) if the enforceability of an approval for merger projects pursuant
to sect. 3 par. 2 and, insofar as an application has been lodged,
sect. 3 par. 3 has been suspended and is not reinstated within two
months, and in any event by September 16, 2003 at the latest;
d) in any event, if all the prerequisite conditions for performance
of this agreement have not been met by September 16, 2003.
2. In the event of the withdrawal of one of the Parties, irrespective of
the legal reason, any obligation on the part of the Vendor for the
practical implementation of commitments given and/or imposed conditions
in connection with the procedures
15
pursuant to sect. 3 par. 1 to sect. 3 par. 3 or for its cooperation
with their practical implementation shall cease to apply.
3. Any withdrawal under this agreement must be in written form.
4. In any event, the provisions of sect. 3 par. 5, last sentence, and
sect. 3 par. 7, and of sect. 7, 10 and 13 shall still apply in the
event of a withdrawal.
5. The Vendor must be notified immediately in writing of any withdrawal
pursuant to sect. 6 par. 8 of the Shell Agreement referred to in sect.
4 par. 1. Such withdrawal shall also constitute withdrawal from the
present agreement.
Section 7
Costs
The costs and transaction duties associated with the performance of this
agreement shall be borne by the Purchaser; this applies in particular to any
realty transfer taxes. Each of the Parties shall however bear the costs of its
own advisers.
Section 8
Changes to the capital structure of Ruhrgas AG
The Purchaser undertakes to use its best efforts to ensure that the General
Meeting of Shareholders of Ruhrgas AG does not pass any resolutions on an
increase of the capital stock of the company prior to the performance of this
agreement or a withdrawal from this agreement.
16
Section 9
Positions on the Supervisory Board
To the extent permitted by law, the Vendor shall ensure that representatives of
Xxxxxxxx KG and of its members and/or affiliated businesses holding office in
executive bodies of Ruhrgas AG, and in particular the Supervisory Board, will
immediately submit the statements required for resignation from those positions
following the performance of this agreement.
Section 10
Continuance of the Investor Rights Agreement, etc.
If the Purchaser acquires a direct or indirect majority stake pursuant to sect.
16 of the Stock Corporation Law [AktG] in Ruhrgas AG or secures control of a
direct or indirect majority stake in Ruhrgas AG, but the acquisition of the
Ruhrgas shares by the Purchaser under this agreement cannot be performed, the
Parties shall enter into negotiations on an appropriate arrangement for their
future cooperation as indirect or direct shareholders in Ruhrgas AG, including a
discussion on the current first option and pre-emptive rights and the
requirement for approvals from the General Meeting of Shareholders of Ruhrgas AG
for the transfer of Ruhrgas shares.
Section 11
Gelsenberg AG
The Purchaser shall use its best efforts to ensure that Gelsensberg AG places
its legally binding signature on the agreement already signed by the Vendor, BEB
and Xx. Xxx Xxxxxxxxx, attached as SCHEDULE E, by no later than one month after
the date of acquisition of a majority of the shares in Gelsenberg AG, and
undertakes to hand the signed document to the Vendor.
17
Section 12
Alternative implementation of this acquisition transaction
The Parties agree that the implementation of the transaction for the acquisition
of the Ruhrgas shares referred to in the Recital and SCHEDULE A by the Purchaser
need not necessarily proceed in the manner described in this agreement. At the
request of one of the Parties, following the signing of this agreement the
Parties shall use their best efforts to secure agreement on a differently
structured operation for the acquisition of the Ruhrgas shares referred to in
the Recital by the Purchaser, which might for example consist in the sale of
holdings to the Vendor, on the understanding that neither party is obliged to
accept being commercially disadvantaged in this context.
Section 13
Final provisions
1. The rights and obligations under this agreement may be transferred to
third parties only with prior agreement in writing from the other
party. The other party may however deny consent for such transfer only
for good reason in the case of transfer to an affiliated company,
provided the transferor party accepts joint and several liability with
the transferee affiliated company, in particular where the other party
would be exposed to tax risks as a result.
Affiliated companies of the Vendor for the purpose of this agreement
are its shareholders, N.V. Koninklijke Nederlandse Petroleum
Maatschappij (a company under Netherlands law), Shell Transport and
Trading Company p.l.c. (a company under English law) and any companies
with capital relationships with the above firms and/or the Vendor,
where there is a direct or indirect capital relationship of at least
50%, and their affiliated companies for the purposes of sect. 15 ff of
the German Stock Corporations Act [AktG]. Affiliated companies of the
Purchaser are all its affiliated companies for the purposes of sect. 15
ff AktG.
18
The Purchaser is regarded as controlling those Ruhrgas shares for which
it and/or its affiliated companies control the exercising of voting
rights on the basis of voting agreements or similar agreements.
Business days for the purpose of this agreement are all banking days in
Frankfurt am Main.
3. Immediately after the signing of this contract the Parties shall issue
releases for the press and the stock exchanges using the language
provided here as SCHEDULE F. The Parties have agreed on the catalog of
questions and answers attached as SCHEDULE G, which each of the Parties
may use at any time with reference to the provisions of this agreement.
Prior to performance of the transactions envisaged in this document,
and for a period of 24 months thereafter, each of the Parties may only
provide answers that are consistent with SCHEDULE G, and may only issue
releases that are consistent with SCHEDULE F, or that have been agreed
on in advance in writing between the Parties. The contents of this
agreement and all agreements reached in connection with this document,
any details of the structure of the transactions required and envisaged
regarding the sale of shares pursuant to sect. 1 par. 1, and any
details of the individual steps in the performance of this agreement,
shall be barred from any releases, even after expiry of the period
referred to above.
The Parties shall agree on the releases to be issued on performance of
the agreement.
Unless otherwise explicitly permitted hereinabove, each of the Parties
agrees to keep the contents of this agreement and all agreements in
connection therewith confidential vis-a-vis third parties.
Exceptions to the above-mentioned confidentiality provisions apply in
the case of obligations to notify courts or public authorities or
obligations on the basis of legal provisions or applicable stock
exchange rules.
4. The Purchaser is entitled to designate a company in the E.ON Group as
acquiring party in its stead or for a portion of the shares to be
acquired, provided that the
19
company in question declares its unconditional willingness to join the
agreement, and accepts the obligations pursuant to the Investor Rights
Agreements, and provided that E.ON accepts joint and several liability
for all obligations of the acquiring party so designated.
5. This agreement is subject to the law of the Federal Republic of
Germany.
6. Any changes or additions to this agreement, including this clause,
shall be valid only if made in writing, unless notarial authentication
has been stipulated.
7. Any disputes arising in connection with this agreement or its validity
shall be finally resolved in accordance with the Arbitration Tribunal
Rules of the German Arbitration Institute (DIS), with exclusion of
legal actions before the ordinary Courts. The arbitration venue is
Frankfurt am Main. There shall be three arbitrators. The arbitration
proceedings shall be conducted in German.
8. The validity of this agreement, with the exception of this paragraph 8,
is conditional upon its approval by the Supervisory Board of the
Purchaser. That approval must be given by July 3, 2002 at the latest.
The Purchaser shall notify the Vendor immediately in writing of the
granting or refusal of such approval.
9. If any provisions of this agreement are or become fully or partly
legally invalid or unenforceable, this shall not affect the validity of
the other provisions of this agreement. The same applies if a gap is
found to exist in this agreement. Instead of the invalid or
unenforceable provision, or to fill the gap, a reasonable arrangement
shall be deemed to apply which, to the extent legally possible, is the
closest approximation to what the Parties intended or according to the
purpose and general tenor of this agreement would have intended if they
had given consideration to the point in question at the time of
concluding this agreement or subsequently incorporating an additional
provision. This also applies if the invalidity of a provision is based,
for example, on a scope of performance or a time (period or deadline)
specified in this agreement; in such cases the agreed provision shall
be replaced with a legal scope of performance or time (period or
deadline) which is the closest approximation to the original intention.
20
Dusseldorf, July 1, 2002
--------------------------------
Xxxxxxxx Beteiligungs-GmbH
--------------------------------
E.ON AG
