EXHIBIT 4.6
Unofficial English Translation of:
Register of Notarial Instr., Rec. No. 2002/___
May 20, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇, Notary Public
Basel, Switzerland
E.ON AG
RAG AG
RAG BETEILIGUNGS-GMBH
EBV AKTIENGESELLSCHAFT
----------------------------------------------------
RUHRGAS PURCHASE AGREEMENT
----------------------------------------------------
Register of Notarial Instr., Rec. No. 2002/___
NOTARIZED INSTRUMENT
AGREEMENT
Heard in Basel, Switzerland, this day, May 20, 2002 (May the twentieth,
two-thousand-and-two).
The persons below appeared before me, the undersigned Notary Public,
▇▇▇▇▇▇▇ ▇▇▇▇▇,
at my ▇▇▇▇▇▇▇▇ in Basel, Switzerland:
1. ▇▇. ▇▇▇▇▇▇▇▇ Perlitt, born August 29, 1962, Attorney-at-Law, German
citizen, having his principal place of business at Mainzer ▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, and residing
at____________________________________________________, and identified
to the undersigned Notary Public by means of a valid national identity
card, and
according to his own declaration, acting not on his own behalf, but
rather, with all personal liability excluded, as the duly authorized
representative of
RAG Aktiengesellschaft, having its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, and being registered under
Registration No. HRB 1712 in the Commercial Register of the District
Court (Amtsgericht), Essen, Germany,
as evidenced by a power of attorney dated May 16, 2002, the original of
which was submitted to the undersigned Notary Public, and of which a
copy, duly authorized by the undersigned Notary Public, is annexed
hereto, said power of attorney being supported by an attested specimen
of the holder's signature and a notarized instrument certifying the
holder as a duly authorized representative,
- hereinafter also referred to as "RAG" -;
2
2. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (lic.iur.), born February 20, 1975, lawyer, Swiss
citizen, residing at ▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇-▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, of
identity established to the satisfaction of the undersigned Notary
Public, and
according to her own declaration, acting not on her own behalf, but
rather, with all personal liability excluded, as the duly authorized
representative of
RAG Beteiligungs-GmbH, having its registered office at ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇-▇▇, ▇-▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, and being registered under
Registration No. HRB 5398 in the Commercial Register of the District
Court (Amtsgericht), Essen, Germany,
as evidenced by a power of attorney dated May 16, 2002, the original of
which was submitted to the undersigned Notary Public, and of which a
copy, duly authorized by the undersigned Notary Public, is annexed
hereto, said power of attorney being supported by an attested specimen
of the holder's signature and a notarized instrument certifying the
holder as a duly authorized representative,
- hereinafter also referred to as "BG" -;
3. ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇ (lic.iur.), born June 10, 1970, lawyer, Swiss citizen,
residing at ▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇, of identity
established to the satisfaction of the undersigned Notary Public, and
according to his own declaration, acting not on his own behalf, but
rather, with all personal liability excluded, as the duly authorized
representative of
EBV Aktiengesellschaft, having its registered office in ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and being registered under Registration No. HRB
293 in the Commercial Register of the District Court (Amtsgericht), at
Aachen, Germany,
as evidenced by a power of attorney dated _____________, the original of
which was submitted to the undersigned Notary Public, and of which a
copy, duly authorized by the undersigned Notary Public, is annexed
hereto, said power of attorney being supported by an attested specimen
of the holder's signature and a notarized instrument certifying the
holder as a duly authorized representative,
- hereinafter also referred to as "EBV" -;
Register of Notarial Instr., Rec. No. 2002/____Cu
3
4. ▇▇. ▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇, born January 27, 1967, Attorney-at-Law, German
citizen, having his principal place of business at ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇,
▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and residing at ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇-▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and identified to the undersigned Notary Public by
means of a valid national identity card, and,
according to his own declaration, acting not on his own behalf, but
rather, with all personal liability excluded, as the duly authorized
representative of
E.ON AG, a stock corporation having its registered office at ▇.▇▇-▇▇▇▇▇
▇, ▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, and being registered under Registration
No. HRB 22315 in the Commercial Register of the District Court
(Amtsgericht), Dusseldorf, Germany,
as evidenced by a power of attorney dated May 17, 2002, the original of
which was submitted to the undersigned Notary Public, and of which a
copy, duly authorized by the undersigned Notary Public, is annexed
hereto, said power of attorney being supported by an attested specimen
of the holder's signature and a notarized instrument certifying the
holder as a duly authorized representative,
- hereinafter also referred to as "E.ON" -.
- Hereinafter, RAG, BG, EBV and E.ON are also referred to collectively as "the
Parties" -.
The Notary Public explained to the persons appearing the prohibition on
conflicts of interest imposed on Notaries Public by the Notaries Public
legislation of the City of Basel (EG ZGB Section 233(1)(4)) and by the German
Notarization and Authentication Act (Beurkundungsgesetz, Section 3(1)(7)).
Accordingly, the Parties and the Notary Public confirmed that neither the Notary
Public, his practice partners, nor any person with whom the Notary public works
in a professional capacity or with whom the Notary Public shares ▇▇▇▇▇▇▇▇ within
the meaning of said legislation had had any prior dealings with the matter
herein notarized. The persons appearing, acting in the capacities as defined
herein above, made the following declarations and requested that said
declarations be notarized and entered in the Register of Notarial Instruments:
Register of Notarial Instr., Rec. No. 2002/____Cu
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Recital:
A. RAG holds a stake in Ruhrgas AG, Essen, ("Ruhrgas") equivalent to
approximately 18.3949% ("stake in Ruhrgas"), made up as follows:
- a direct interest of approximately 0.1480 %; that is, of the
Euro 1,125,000,000 capital stock in Ruhrgas, which is divided
into 440,000,000 non-certificated quasi no-par-value shares
(Stuckaktien), RAG directly owns 651,200 shares ("Ruhrgas
shares"),
- an indirect interest equivalent to approximately 18.0377432 %
(the equivalent of a Euro 202,924,611 stake in the capital
stock of Ruhrgas) via its subsidiary, BG, which holds a stake
with a nominal value of Euro 83,002,970.61 ("eighty-three
million, two-thousand, nine-hundred-and-seventy euro and
sixty-one euro cents") in ▇▇▇▇▇▇▇▇▇ GmbH, Essen,
("▇▇▇▇▇▇▇▇▇"), a company registered under Registration No. HRB
5963 in the Commercial Register held at the District Court,
Essen, and which in turn holds a stake in Ruhrgas equal to
approximately 34.7558 %, and
- an indirect interest equivalent to approximately
0.20920906666667 % (the equivalent of a Euro 2,353,602 stake
in the capital stock of Ruhrgas) via EBV, an affiliate in
which RAG indirectly holds approximately 99% of the stock,
which holds a stake with a nominal value of Euro 962,711.48
("nine-hundred-and-sixty-two thousand seven-hundred-and-eleven
euro and forty-eight euro cents") in ▇▇▇▇▇▇▇▇▇ (the stakes in
▇▇▇▇▇▇▇▇▇ held by BG and EBV will, in the following, be
referred to collectively as "RAG's holdings in ▇▇▇▇▇▇▇▇▇").
▇. ▇▇▇▇▇▇▇▇▇'▇ company Bylaws (hereinafter also referred to as
"▇▇▇▇▇▇▇▇▇'▇ Bylaws") provides that any shareholder wishing to
sell its shares in ▇▇▇▇▇▇▇▇▇ must first offer the same for sale to the
other shareholders (hereinafter this right of the other shareholders to
be offered shares for sale will also be referred to as the "right of
first option"). The shareholders in ▇▇▇▇▇▇▇▇▇ are the Parties and the
following:
- Vodafone Aktiengesellschaft, Dusseldorf, Germany
- Thyssen ▇▇▇▇▇ ▇▇, Essen and Duisburg, Germany
Register of Notarial Instr., Rec. No. 2002/____Cu
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- RWE-DEA Aktiengesellschaft fur Mineraloel und Chemie, Hamburg,
Germany
- Gelsenberg Aktiengesellschaft, Hamburg, Germany
- Harpen Aktiengesellschaft, Dortmund, Germany
- Hydro Gas and Chemicals GmbH, Bad Honningen, Germany
- RWE Systems AG, Essen, Germany
- Preussag Energie GmbH, ▇▇▇▇▇▇ (Ems), Germany
For various reasons, most notably the agreements reached by E.ON and
▇▇▇▇▇▇▇▇▇'▇ shareholders, the Parties are proceeding on the basis that
the ▇▇▇▇▇▇▇▇▇ shareholders will not make use of their rights of first
option.
C. Under the Investor Rights Agreements between the Ruhrgas shareholders
and the Ruhrgas company dated January 9, 1966 and March 28, 1968
(hereinafter also referred to collectively as the "Investor Rights
Agreements"), shareholders wishing to sell Ruhrgas shares are required
to offer those shares for sale to the other shareholders first; however,
this obligation does not apply to transfers of Ruhrgas shares between
existing shareholders, as is the case here. Apart from this, Section 3
of the Ruhrgas company Bylaws states that any transfer of Ruhrgas
shares requires the approval of the Ruhrgas shareholders at a general
meeting (Hauptversammlung).
D. RAG is willing to sell its stake in Ruhrgas, and E.ON is willing to
acquire this stake. To this end, E.ON and RAG on March 1 and March 5,
2003, signed a Heads of Agreement for the sale and purchase of RAG's
stake in Ruhrgas ("Heads of Agreement"). In the Heads of Agreement, E.ON
and RAG agreed that RAG would sell its stake in Ruhrgas only if RAG, by
using the purchase money from the sale of the stake in Ruhrgas as well
as other sources of finance, were able to acquire and finance a majority
holding in another company that, from RAG's viewpoint, is suitable and
comparable to the stake in Ruhrgas.
E. RAG, BG, BG's wholly-owned subsidiary RAG Projektgesellschaft mbH ("the
Offerer"), EBV, E.ON, and E.ON's wholly-owned subsidiaries Chemie
Verwaltungs AG ("CVAG") and E.ON Vermogensanlage GmbH ("E.ON VG") have
on this day in the presence of the authenticating Notary Public entered
into a "Framework Agreement"
Register of Notarial Instr., Rec. No. 2002/____Cu
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(Register of Notarial Instr., Rec. No 2002/213), to which the present
agreement refers. The Framework Agreement provides for the conclusion of
the present agreement (the "Ruhrgas Purchase Agreement") and bundles the
same with various other transactions.
NOW, THEREFORE, in consideration of the above provisions, the Parties hereby
agree as follows:
I. RAG'S HOLDINGS IN ▇▇▇▇▇▇▇▇▇
1. Acquisition of RAG's holdings in ▇▇▇▇▇▇▇▇▇
1.1 BG and EBV hereby offer RAG's holdings in ▇▇▇▇▇▇▇▇▇ for sale to E.ON,
and E.ON accepts this offer. BG and EBV hereby transfer RAG's holdings
in ▇▇▇▇▇▇▇▇▇ to E.ON, and E.ON accepts this transfer, provided, however,
that the transfer shall not take effect unless and until the conditions
precedent described in clause 2 hereof have been met and unless and
until the acquisition price and the finalized or provisional increase
amount (as the case may be) for RAG's holdings in ▇▇▇▇▇▇▇▇▇ plus
interest ("completion of the sale of RAG's holdings in ▇▇▇▇▇▇▇▇▇") as
described in clauses 1.2 and 1.4 hereof have been paid.
1.2 The price for RAG's holdings in ▇▇▇▇▇▇▇▇▇ is Euro 1,894,733,848
(one-billion eight-hundred-and-ninety-four million
seven-hundred-and-thirty-three-thousand eight-hundred-and-forty-eight
euro, which hereinafter will also be referred to as the "acquisition
price for RAG's holdings in ▇▇▇▇▇▇▇▇▇"). The acquisition price for RAG's
holdings in ▇▇▇▇▇▇▇▇▇ shall be increased by the amount of money that
would be allotted to RAG's holdings in ▇▇▇▇▇▇▇▇▇ if ▇▇▇▇▇▇▇▇▇'▇ entire
net income for the 2001 financial year were distributed to its
shareholders, provided, however, the amount of this increase
(hereinafter also referred to as the "Increase Amount") shall not be
less than Euro 78,018,453 (seventy-eight million eighteen-thousand
four-hundred-and-fifty-three euro). The acquisition price for RAG's
holdings in ▇▇▇▇▇▇▇▇▇ including the Increase Amount will hereinafter
also be referred to as the "purchase price for RAG's holdings in
▇▇▇▇▇▇▇▇▇." The purchase price for RAG's holdings in ▇▇▇▇▇▇▇▇▇ shall
bear interest at the rate of 4% per
Register of Notarial Instr., Rec. No. 2002/____Cu
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annum (30/360 day-count) as from January 1, 2002. The purchase price for
RAG's holdings in ▇▇▇▇▇▇▇▇▇ plus interest thereon shall be allotted
between BG and EBV pro rata the nominal values of their respective
holdings in ▇▇▇▇▇▇▇▇▇.
1.3 The sale of RAG's holdings in ▇▇▇▇▇▇▇▇▇ shall take commercial effect at
midnight (00:00) on January 1, 2002 (hereinafter also referred to as the
"Effective Date"). From the Effective Date forward, E.ON shall be
entitled to all such rights to share in ▇▇▇▇▇▇▇▇▇'▇ profits as attach to
RAG's holdings in ▇▇▇▇▇▇▇▇▇. All dividend payments that are allotted to
RAG's holdings in ▇▇▇▇▇▇▇▇▇ after the conclusion of this Ruhrgas
Purchase Agreement but prior to the date when the transfer to E.ON of
RAG's holdings in ▇▇▇▇▇▇▇▇▇ becomes effective shall have the effect of
reducing the interest-inclusive purchase price for RAG's holdings in
▇▇▇▇▇▇▇▇▇ by the amount of said dividend payments.
1.4 The purchase price for RAG's holdings in ▇▇▇▇▇▇▇▇▇ together with
interest thereon shall be due five bank working days after all the
conditions precedent, as described in clause 2 hereof, for the transfer
of RAG's holdings have been met (hereinafter this due date for payment
is also referred to as the "Closing"). If, at the time of Closing, the
Increase Amount has not yet been finalized, then the price due shall be
the acquisition price plus a preliminary increase amount of Euro
78,018,543 plus interest thereon as per clause 1.2 hereof.
1.5 That portion of the interest-inclusive purchase price for RAG's holdings
in ▇▇▇▇▇▇▇▇▇ which is payable to EBV shall be remitted to a bank account
which EBV shall designate in writing sufficiently in advance of Closing.
Similarly, that portion of the interest-inclusive purchase price for
RAG's holdings in ▇▇▇▇▇▇▇▇▇ which is payable to BG shall be remitted to
a bank account which BG shall designate in writing sufficiently in
advance of Closing. Pursuant to clause 15.1 of the Framework Agreement,
BG is entitled to transfer and pledge to the Settlement Bank (as defined
in the Framework Agreement) its share of the interest-inclusive purchase
price for RAG's holdings in ▇▇▇▇▇▇▇▇▇.
1.6 E.ON shall neither by right of retention withhold payment of the
interest-inclusive purchase price for RAG's holdings in ▇▇▇▇▇▇▇▇▇, nor
offset the same against any claim unless the claim forming the basis of
the right of retention or offsetting is a finally and unappealably
proven E.ON claim against BG.
Register of Notarial Instr., Rec. No. 2002/____Cu
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1.7 If E.ON fails to pay on the due date, then the interest-inclusive
purchase price for RAG's holdings in ▇▇▇▇▇▇▇▇▇ shall as from the due
date attract penalty interest at a rate equal to the EURIBOR three-month
rate for the due date plus 2.5% p.a.
2. Conditions precedent and Closing
2.1 The transfer of RAG's holdings in ▇▇▇▇▇▇▇▇▇ shall not take effect unless
and until:
2.1.1 in response to its applications, dated February 18 and March 5, 2002,
for ministerial approval, pursuant to Section 42 of the German Antitrust
Act (GWB), for the merger proposals (as per the Gelsenberg notification
dated August 15, 2001 and the ▇▇▇▇▇▇▇▇▇ notification dated November 9,
2001) that were vetoed by the German Federal Cartel Office, E.ON has
been granted ministerial approval that is either unconditional or that
is subject only to conditions of such a nature that E.ON has been able
to communicate its agreement thereto in writing to RAG within four weeks
after the special ministerial approval was granted,
and either
as of the time when all the other conditions precedent are met, no
competent court has issued any ruling overturning or barring either the
ministerial approval or its enforcement,
or,
approval has been obtained for the above-stated merger proposals by
means of appeal proceedings, providing that the approval so obtained is
enforceable; and
2.1.2 each of the other shareholders in ▇▇▇▇▇▇▇▇▇ has expressly waived its
right of first option or, in response to the offer for the sale of RAG's
holdings in ▇▇▇▇▇▇▇▇▇ made by BG and EBV to their co-shareholders in
▇▇▇▇▇▇▇▇▇ as per clause 5.1 hereof, has, in accordance with Section
21(1) of ▇▇▇▇▇▇▇▇▇'▇ Bylaws, given written notice that it does not
intend to take up said offer, or, while wishing to take up said offer
has nonetheless not within two months reached agreement with BG and EBV
as to the purchase price for the holdings offered, and has not, within
three months of receipt of the offer by ▇▇▇▇▇▇▇▇▇, demanded that the
purchase price for the holdings offered be determined by an arbitrator's
opinion; and
Register of Notarial Instr., Rec. No. 2002/____Cu
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2.1.3 either the EU Commission and the competent antitrust authorities in the
USA and Canada have expressly given their permission for the acquisition
of the stake in Degussa and the Shareholders' Agreement (as defined in
the Framework Agreement) with E.ON to proceed, or all applicable
deadline periods for the imposition of prohibitions by the EU Commission
and the aforementioned antitrust authorities have elapsed without any
prohibitions being imposed on the above-stated transactions; and
2.1.4 the government of the Federal Republic of Germany and the government of
the federal state (Land) of North Rhine-Westphalia have unconditionally
approved both the RAG Projektgesellschaft mbH's Tender Offer for Degussa
AG and the Ruhrgas Purchase Agreement.
2.2 As regards the condition precedent stated in clause 2.1.4 hereof, BG has
the right (but not the obligation) at any time to unilaterally waive the
requirement that the government approvals be unconditional.
2.3 Closing in the sense intended by this Ruhrgas Purchase Agreement shall
take place five bank working days after the last of the conditions
precedent has been met.
2.4 The condition precedent specified in clause 2.1.3 hereof must be met by
March 31, 2003 at the very latest, and the other conditions precedent by
January 31, 2003 at the very latest, otherwise the sale of the stake in
Ruhrgas shall be deemed to have irrevocably failed.
3. Purchase price adjustment
If the finalized Increase Amount should turn out to be greater than the
preliminary increase amount paid at the time of Closing, then E.ON shall
remit the difference to the accounts defined in clause 1.5 hereof within
10 (ten) working days following finalization of the Increase Amount.
4. Warranty
Subject to the exclusion of all warranty claims provided by statute, BG
and EBV hereby warrant and represent that those of RAG's holdings in
▇▇▇▇▇▇▇▇▇ that each of them sells to E.ON are fully paid-up, are their
property, and, except for the rights detailed in the Investor Rights
Agreements and ▇▇▇▇▇▇▇▇▇'▇ Bylaws, are not
Register of Notarial Instr., Rec. No. 2002/____Cu
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encumbered by third-party rights. BG and EBV give no other warranties
and make no other representations.
5. Rights of first option
5.1 RAG and BG have by declaration to ▇▇▇▇▇▇▇▇▇ on this day offered RAG's
stakes in ▇▇▇▇▇▇▇▇▇ for sale to their fellow ▇▇▇▇▇▇▇▇▇ shareholders as
required by Section 21(1) of ▇▇▇▇▇▇▇▇▇'▇ Bylaws.
5.2 E.ON intends to acquire all the shares in ▇▇▇▇▇▇▇▇▇. To this end, the
Parties shall exercise their best endeavors to avoid delays in the
process of acquisition by E.ON, to expedite the first-option process
mandated by ▇▇▇▇▇▇▇▇▇'▇ Bylaws, and to ensure that all ▇▇▇▇▇▇▇▇▇
shareholders refrain from exercising the rights of first option accorded
them by ▇▇▇▇▇▇▇▇▇'▇ Bylaws.
5.3 E.ON hereby irrevocably waives its right to require that the purchase
price for RAG's holdings in ▇▇▇▇▇▇▇▇▇ be determined in accordance with
Section 22(2) of ▇▇▇▇▇▇▇▇▇'▇ Bylaws by an arbitrator's opinion. E.ON, BG
and EBV shall to the extent permitted by law use their influence in such
a way that the other ▇▇▇▇▇▇▇▇▇ shareholders likewise refrain from
insisting that the purchase price be determined by an arbitrator's
opinion in accordance with Section 22(2) of ▇▇▇▇▇▇▇▇▇'▇ Bylaws.
5.4 If a ▇▇▇▇▇▇▇▇▇ shareholder nonetheless insists that the purchase price
be determined by an arbitrator's opinion in accordance with Section
22(2) of ▇▇▇▇▇▇▇▇▇'▇ Bylaws, then the purchase price agreed upon in this
Ruhrgas Purchase Agreement shall nonetheless remain binding as between
E.ON for one part, and BG and EBV for the other.
5.5 BG and EBV hereby irrevocably undertake and agree to waive any and all
first-option duties they may be owed and any and all rights of first
option they may have on the basis of ▇▇▇▇▇▇▇▇▇'▇ Bylaws and the Investor
Rights Agreements.
Register of Notarial Instr., Rec. No. 2002/____Cu
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II. RUHRGAS SHARES
6. Acquisition of the Ruhrgas shares
6.1 RAG hereby offers the 651,200 quasi no-par-value shares (Stuckaktien) it
holds in Ruhrgas for sale to E.ON, and E.ON accepts this offer. RAG
hereby transfers the 651,200 quasi no-par-value shares (Stuckaktien) it
holds in Ruhrgas to E.ON, and E.ON accepts this transfer, provided,
however, that the transfer shall not take effect unless and until (i)
all the conditions precedent defined in clause 2 hereof have been met,
(ii) the acquisition price and the finalized or provisional increase
amount (as the case may be) for the Ruhrgas shares plus interest as
described in clauses 6.3 and 6.5 hereof have been paid, (iii) the
acquisition price and the finalized or provisional increase amount (as
the case may be) for RAG's holdings in ▇▇▇▇▇▇▇▇▇ plus interest as
described in clauses 1.2 and 1.4 hereof have been paid, and (iv) the
share transfer has been approved in accordance with clause 8 hereof by
Ruhrgas via a general meeting of its shareholders.
6.2 If requested by E.ON, RAG shall at the time of Closing, as defined in
clause 6.5 hereof, give all such further declarations and perform all
such further measures as may still be necessary as a result of and in
relation to the transfer of property in the Ruhrgas shares to E.ON.
6.3 The total price for the Ruhrgas shares is Euro 15,368,095
(fifteen-million three-hundred-and-sixty-eight-thousand and ninety-five
euro, hereinafter also referred to as the "acquisition price for the
Ruhrgas shares"). The acquisition price for the Ruhrgas shares shall be
increased by the amount of money that would be allotted to Ruhrgas
shares sold pursuant to clause 6.1 hereof if Ruhrgas' entire net income
for the 2001 financial year were distributed to its shareholders,
provided, however, that the amount of this increase (hereinafter also
referred to as the "Increase Amount for the Ruhrgas shares") shall not
be less than Euro 632,804 (six-hundred-and-thirty-two-thousand
eight-hundred-and-four euro). The acquisition price for the Ruhrgas
shares including the Increase Amount for the Ruhrgas shares will
hereinafter also be referred to as the "purchase price for the Ruhrgas
shares." The purchase price for the Ruhrgas shares shall bear interest
at the rate of 4% per annum (30/360 day-count) as from January 1, 2002.
Register of Notarial Instr., Rec. No. 2002/____Cu
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6.4 The purchase price for the Ruhrgas shares includes full and final
payment for all rights to share in the profits of Ruhrgas. Any dividend
payments that Ruhrgas may make to RAG after this Ruhrgas Purchase
Agreement is concluded but before the transfer of the Ruhrgas shares to
E.ON takes effect shall have the effect of reducing the
interest-inclusive purchase price for the Ruhrgas shares by the amount
of said dividend payments.
6.5 The purchase price for the Ruhrgas shares together with interest thereon
shall be due five bank working days after all the conditions precedent,
as described in clause 2 hereof, have been met and after Ruhrgas has by
general meeting of its shareholders approved the share transfer pursuant
to clause 8 hereof (hereinafter this due date for payment is also
referred to as the "Closing for the Ruhrgas shares"). If, at the time of
Closing for the Ruhrgas shares, the Increase Amount for the Ruhrgas
shares has not yet been finalized, then the price due shall be the
acquisition price for the Ruhrgas shares plus a preliminary increase
amount of Euro 632,804 plus interest thereon as per clause 6.3 hereof.
6.6 If the finalized Increase Amount for the Ruhrgas shares should turn out
to be greater than the preliminary increase amount paid at the time of
Closing for the Ruhrgas shares, then E.ON shall pay the difference
within 10 (ten) working days following finalization of the Increase
Amount for the Ruhrgas shares.
6.7 E.ON shall remit the interest-inclusive purchase price for the
Ruhrgas shares to a bank account which RAG shall nominate in writing
sufficiently in advance of Closing for the Ruhrgas shares.
6.8 E.ON shall neither by right of retention withhold payment of the
interest-inclusive purchase price for the Ruhrgas shares, nor offset the
same against any claim unless the claim forming the basis of the right
of retention or offsetting is a finally and unappealably proven E.ON
claim against RAG.
6.9 If E.ON fails to pay on the due date, then the interest-inclusive
purchase price for the Ruhrgas shares shall as from the due date attract
penalty interest at a rate equal to the EURIBOR three-month rate for the
due date plus 2.5% p.a.
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7. Warranty
Subject to the exclusion of all warranty claims provided by statute, RAG
hereby warrants and represents that the Ruhrgas shares it sells to E.ON
are fully paid-up, are RAG's property, and, except for the rights
described in Ruhrgas' Bylaws, are not encumbered by third-party rights.
RAG gives no other warranties and makes no other representations.
8. Share transfer subject to Ruhrgas consent
8.1 The Parties agree and accept that the share transfer forming the subject
of this Ruhrgas Purchase Agreement requires the prior approval of
Ruhrgas via a general meeting of its shareholders. The Parties further
agree that the seeking of Ruhrgas approval is subject to E.ON consent.
The Parties shall in their capacities as direct and indirect
shareholders in Ruhrgas endeavor to secure Ruhrgas approval for the
share transfer.
8.2 RAG hereby gives an irrevocable undertaking to refrain from exercising
the right of first option (to be offered shares for sale) that accrues
to RAG pursuant to the Investor Rights Agreements whenever other parties
to said Investor Rights Agreements intends to sell Ruhrgas shares.
8.3 If Ruhrgas via a general meeting of its shareholders fails to give its
approval for the share transfer on or before January 31, 2003, then the
following provisions shall apply in lieu of the share purchase
agreement:
8.3.1 The offer for sale of RAG's holdings in ▇▇▇▇▇▇▇▇▇ and completion of said
sale provided for by Part I of this Ruhrgas Purchase Agreement shall be
unaffected.
8.3.2 RAG shall have the right, valid for a period of ten years as from the
conclusion of this Ruhrgas Purchase Agreement, to offer for sale to E.ON
the 651,200 Ruhrgas shares RAG holds for a price of Euro 15,368,095
(fifteen-million three-hundred-and-sixty-eight-thousand and ninety-five
euro) plus interest at the rate of 4% per annum (30/360 day-count)
calculated as from the start of the financial year in which the transfer
of the shares takes place. In addition, RAG shall be entitled to any
Ruhrgas dividends for the preceding Ruhrgas financial year, provided
that said dividends are paid out of the net profit for said preceding
financial year. If necessary, the dividends
Register of Notarial Instr., Rec. No. 2002/____Cu
14
for the financial year preceding the year of the transfer shall be paid
by way of an increase in the purchase price.
8.3.3 For a validity period of ten years from the conclusion of this Ruhrgas
Purchase Agreement E.ON shall have a right of first option to buy RAG's
shares in Ruhrgas, said right ranking behind any such third-party rights
of first option as already exist at the time when this Ruhrgas Purchase
Agreement is concluded, as prescribed by the relevant statutes. E.ON
shall be required to exercise its right of first option before the
expiry of a period of two months from the time when RAG gives notice
offering the shares for sale to E.ON.
III. MISCELLANEOUS
9. Rescission
9.1 Each of the Parties shall have the right to rescind this Ruhrgas
Purchase Agreement if the preconditions for completion of the sale of
RAG's holdings in ▇▇▇▇▇▇▇▇▇, as defined in clause 2.1 hereof, are not
met by January 31, 2003 at the latest (notwithstanding the deadline
provisions, defined in clause 2.4, for the precondition in clause
2.1.3). In particular, they shall have this right of rescission if the
sale of RAG's holdings in ▇▇▇▇▇▇▇▇▇ to E.ON is prevented by the other
▇▇▇▇▇▇▇▇▇ shareholders' rights of first option.
9.2 BG and EBV must act in concert and jointly as one party when exercising
the right of rescission and any other statutory or contractual rights of
rescission they may have. To this end, BG and EBV hereby grant each
other an irrevocable power of attorney to act on each other's behalf if
and when giving notice of rescission; notice of rescission issued by one
of these two parties will automatically extend to and bind the other.
9.3 If this Ruhrgas Purchase Agreement is rescinded, then, notwithstanding
anything in clauses 8.3, 11, 12, and 13 hereof, none of the Parties to
this agreement shall have any claims against any of the other Parties.
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10. RAG's duty to ensure performance by BG and EBV
RAG shall ensure that BG and EBV perform their obligations under this
Ruhrgas Purchase Agreement.
11. Costs
E.ON and BG shall each pay half the costs of notarizing and performing
this Ruhrgas Purchase Agreement. Each party shall pay the costs of their
own consultants and advisors.
12. Arbitration clause
All disputes arising out of or in connection with this contract or
relating to its validity shall be settled in accordance with the Rules
of Arbitration of the German Institution of Arbitration (DIS), Such
settlement shall be final, binding and without recourse to the ordinary
courts of law. The venue for arbitration proceedings is Dusseldorf,
Germany. Each dispute shall be heard by a panel of three arbitrators. If
the Parties are unable to agree on the appointment of the presiding
arbitrator, the presiding arbitrator shall be appointed by the President
of the ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇), ▇▇▇▇▇▇▇▇▇▇.
▇▇. Final provisions
13.1 This agreement supersedes and replaces all prior oral or written
agreements between the Parties that deal with the subject matter of this
agreement; the Heads of Agreement is the sole exception to this. There
are no collateral agreements.
13.2 Any additions and amendments to this agreement must be in writing unless
notarization is required. The same applies to any changes to this
clause.
13.3 If any provision of this agreement should be or becomes invalid or
unenforceable, whether wholly or in part, then that provision shall be
severed, and the remaining provisions of the this agreement shall remain
valid and enforceable. The same shall apply if this agreement is found
to contain a gap or gaps. The Parties shall cure the invalid or
unenforceable provision or gap by substituting a valid and enforceable
provision which as nearly as permissible by law approximates that which
the Parties intended or, judging by the spirit and intent of the
Framework Agreement, would have intended if they had considered the
point at issue when entering into the Framework
Register of Notarial Instr., Rec. No. 2002/____Cu
16
Agreement or, subsequently thereto, when adding a provision to the
Framework Agreement. This shall apply even if the invalidity of a
provision relates to a scope of service or a time parameter (deadline
period or deadline date); in such cases, the Parties shall cure the
invalid scope of service or time parameter by substituting a valid scope
of service or time parameter which as nearly as possible approximates
the intended scope of service or time parameter.
13.4 If there are any conflicts between this agreement and the Framework
Agreement, or if there are any uncertainties as to construction and
interpretation, then the Framework Agreement shall take precedence.
(continued on next page)
Register of Notarial Instr., Rec. No. 2002/____Cu
IN WITNESS WHEREOF, I, the undersigned Notary Public, read this written record
to the persons appearing, who then indicated their approval and acceptance of
this written record by signing the same in their own hand, whereupon I signed
the same in my own hand and affixed my official seal.
Done in Basel, on this day, May 20 (twentieth), 2002 (two-thousand-and-two)
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▇▇▇▇▇▇▇ ▇▇▇▇▇, Notary Public
Register of Notarial Instr., Rec. No. 2002/____