EXHIBIT 4.5
Unofficial English Translation of:
Register of Notarial Instr., Rec. No. 2002/213
May 20, 2002
Xxxxxxx Xxxxx, Notary Public
Basel, Switzerland Executed Copy
RAG AG
RAG BETEILIGUNGS-GMBH
RAG PROJEKTGESELLSCHAFT MBH
EBV AKTIENGESELLSCHAFT
E.ON AG
CHEMIE VERWALTUNGS AG
E.ON VERMOGENSANLAGE GMBH
----------
FRAMEWORK AGREEMENT
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Register of Notarial Instr., Rec. No. 2002/213
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,
XXXXXXX XXXXX,
at my xxxxxxxx in Basel, Switzerland:
1. Xx. Xxxxxxxx Xxxxxxx, born August 29, 1962, Attorney-at-Law, German
citizen, having his principal place of business at Xxxxxxx Xxxxxxxxxxx
00, XX-00000 Xxxxxxxxx xx Xxxx, Xxxxxxx, and residing at Xxxxxxxxxxxx
0, XX-00000 Xxxxxxxxxx xx Xxxxxx, Xxxxxxx, 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 Xxxxxxxxxxxxx
Xxxxxxx 0-00, X-00000 Xxxxx, Xxxxxxx, and being registered under
Registration No. HRB 1712 in the Commercial Register of the Essen
District Court (Amtsgericht) in 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. Xx. Xxxxxxx Xxxxxxxx (lic.iur.), born February 20, 1975, lawyer, Swiss
citizen, residing at Xxxxxxxxxx 00, XX-0000 Xxxx-Xxxxxx, Xxxxxxxxxxx,
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 Xxxxxxxxxxxxx
Xxxxxxx 0-00, X-00000 Xxxxx, Xxxxxxx, and being registered under
Registration No. HRB 5398 in the Commercial Register of the Essen
District Court (Amtsgericht) in 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. Xx. Xxxxxx Xxxxxx (lic.iur.), born August 16, 1973, lawyer, Swiss
citizen, residing at Xxxxxxxx 00, XX-0000 Xxxxxxxxx, Xxxxxxxxxxx, 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
RAG Projektgesellschaft mbH, having its registered office at
Xxxxxxxxxxxxx Xxxxxxx 0-00, X-00000 Xxxxx, Xxxxxxx, and being
registered under Registration No. HRB 16415 in the Commercial Register
of the Essen District Court (Amtsgericht) in 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 "the Offerer" -;
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4. Xx. Xxxxxxx Xxxx (lic.iur.), born June 10, 1970, lawyer, Swiss citizen,
residing at Xxxxxxxx 00, XX-0000 Xxxxx, Xxxxxxxxxxx, 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 D-52134
Herzogenrath, Germany, and being registered under Registration No. HRB
293 in the Commercial Register of the Aachen District Court
(Amtsgericht) in 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 "EBV" -;
5. Xx. Xxxx Xxxxxx-Xxxxxxxx, born January 27, 1967, Attorney-at-Law,
German citizen, having his principal place of business at Xxxxxx
Xxxxxxx 00, XX-00000 Xxxxxxxxxx, Xxxxxxx, and residing at Xxxxxxxxxxxxx
00, XX-00000 Xxxxxxxxxx, Xxxxxxx, 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
a) E.ON AG, a stock corporation having its registered office at
E.XX-Xxxxx 0, X-00000 Xxxxxxxxxx, Xxxxxxx, and being
registered under Registration No. HRB 22315 in the Commercial
Register of the Dusseldorf District Court (Amtsgericht) in
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,
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- hereinafter also referred to as "E.ON" -,
and as the duly authorized representative of
b) Chemie Verwaltungs AG, having its registered office at
X.XX-Xxxxx 0, X-00000 Xxxxxxxxxx, Xxxxxxx, and being
registered under Registration No. HRB 15722 in the Commercial
Register of the Dusseldorf District Court (Amtsgericht) in
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 "CVAG" -,
and as the duly authorized representative of
c) E.ON Vermogensanlage GmbH, having its registered office at
X.XX-Xxxxx 0, X-00000 Xxxxxxxxxx, Xxxxxxx, and being
registered under Registration No. HRB 34226 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 VG" -.
- Hereinafter, RAG, BG, the Offerer, EBV, E.ON, CVAG and E.ON VG 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
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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 xxxxxxxx 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:
RECITAL:
A. RAG holds a stake in Ruhrgas AG, Essen, ("Ruhrgas") equivalent to
approximately 18.3948% ("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,
- 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 Xxxxxxxxx GmbH, Essen,
("Xxxxxxxxx"), a company registered under Registration No. HRB
5963 in the Commercial Register of 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 Xxxxxxxxx (the stakes in
Xxxxxxxxx held by BG and EBV will, in the following, be
referred to collectively as "RAG's holdings in Xxxxxxxxx").
B. 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
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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.
RAG, BG, EBV and E.ON will today implement the Heads of Agreement by
entering into a notarized purchase agreement (the "Ruhrgas Purchase
Agreement").
C. The Parties are in agreement that the reinvestment referred to in
paragraph B above will take the form of a step-by-step acquisition of a
total stake of 50.1% of the shares in Degussa AG, Dusseldorf
(hereinafter referred to as "Degussa", and said 50.1% stake therein as
"the stake in Degussa"), by RAG Projektgesellschaft mbH, a wholly-owned
affiliate of BG, hereinafter also referred to as "the Offerer".
X. Xxxxxxx has a capital stock of Euro 205,623,590, which is divided into
205,623,590 quasi no-par-value bearer shares (auf den Inhaber lautende
Stuckaktien). Via direct and indirect interests, E.ON holds the
equivalent of 132,752,610 shares (the equivalent, approximately, of a
64.56% stake) in Degussa, made up as follows:
- a direct holding of 96,467,040 shares (approximately 46.914%),
- an indirect holding of 32,805,570 shares (approximately
15.954%) via its wholly-owned subsidiary, CVAG, and
- an indirect holding of 3,480,000 shares (approximately 1.692%)
via its wholly-owned subsidiary, E.ON VG.
E. It is intended that the stake in Degussa be acquired in two stages. The
objective of the first stage, to be completed in 2002, is to give RAG
and E.ON equal stakes in Degussa by means of a public tender offer
("Tender Offer") submitted by the Offerer in which E.ON, CVAG, and E.ON
VG will participate to an extent specified herein; in the second stage,
the objective of which is to give the Offerer a majority stake in
Degussa, the Offerer will acquire additional shares in Degussa from
E.ON, CVAG or E.ON VG by means of a forward purchase contract ("Forward
Purchase Contract") which will be concluded today between RAG, BG, the
Offerer, and E.ON and which will take effect on May 31, 2004.
F. RAG will finance its indirect acquisition of the stake in Degussa
partly from the proceeds of the sale of the stake in Ruhrgas, including
the increase amounts and interest stipulated in the Ruhrgas Purchase
Agreement (the "purchase price for the
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stake in Ruhrgas"). Most of the remainder of the purchase price for the
stake in Degussa will be financed via a bridge loan granted to BG by
the banks ("the Banks") as per the loan agreement (the "Loan
Agreement") and collateralized via the security contracts ("Security
Contracts") indicated in the Loan Agreement. BG intends to repay this
loan using the proceeds of other stake sell-offs.
G. The Security Contracts include the creation of a security interest in
those Degussa shares acquired by the Offerer in the first and second
acquisition phases that are financed by loan funds. In contexts
relating to Degussa shares financed by loan funds during the
loan-financing phase, references in the Transaction Contracts (as
defined below), the Loan Agreement, and the Security Contracts to the
acquisition of Degussa shares by the Offerer refer to the acquisition
of the voting rights and rights to dividend payments.
H. RAG, the Offerer, E.ON, CVAG, and E.ON VG will today enter into a
shareholders' agreement ("Shareholders' Agreement"), effective as from
the time when the Degussa shares submitted for sale to the Offerer on
the basis of acceptance of the Tender Offer are actually acquired by
the Offerer ("Completion of the Tender Offer"). By said Shareholders'
Agreement, RAG, the Offerer, E.ON, CVAG, and E.ON VG will bundle their
interests as shareholders of Degussa.
I. The purpose of this Framework Agreement is to record the individual
steps required for completing the transactions intended by the Parties
(acquisition of the stake in Ruhrgas by E.ON, loan to BG, acquisition
of the stake in Degussa by the Offerer, and Shareholders' Agreement by
the shareholders in Degussa) and put in place the required legal
framework. The Ruhrgas Purchase Agreement, the Forward Purchase
Contract, and the Shareholders' Agreement will be referred to
collectively as the "Other Transaction Contracts", and the term "the
Transaction Contracts" will be used to refer collectively to said
contracts/agreements and this Framework Agreement. A list of the
definitions used in the Transaction Agreements is provided in Schedule
1 hereto.
J. The transactions (including the Tender Offer) framed by this Framework
Agreement and draw-downs under to the Loan Agreement are, as per the
relevant provisions in the Transaction Contracts, the Loan Agreement
and the Tender Offer, subject, among other things, to the condition
precedent that the government of the Federal Republic
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of Germany and the government of the federal state (Land) of North
Rhine-Westphalia shall have approved the overall transaction as
described herein above.
NOW, THEREFORE, in consideration of the above provisions, the Parties hereby
agree as follows:
I. RUHRGAS PURCHASE AGREEMENT
1. SALE OF STAKE IN RUHRGAS BY RAG, BG AND EBV TO E.ON
1.1 RAG, BG and EBV for their part, and E.ON for its part shall on this day
conclude the Ruhrgas Purchase Agreement, a contract in notarized form
which gives effect to the sale to E.ON of the stake in Ruhrgas subject
to the conditions precedent stated in said Ruhrgas Purchase Agreement,
and which transfers the stake in Ruhrgas to E.ON subject to certain
conditions precedent being met, as per the draft attached hereto as
Schedule 1.1.
1.2 RAG shall apply the purchase price received for the stake in Ruhrgas to
the acquisition of the stake in Degussa.
II. TENDER OFFER
2. TENDER OFFER
2.1 The Offerer, a wholly-owned affiliate of BG, shall submit a tender
offer for Degussa which shall be subject to the conditions precedent
stated in this Framework Agreement.
2.2 Immediately after this Framework Agreement has been duly executed and
notarized, the Offerer shall notify the organizations specified in
Section 10(2) of the German Securities Acquisition and Takeover Act
(WpUG) of its decision to submit a tender offer for Degussa, and,
following this, publish the details of its decision, including details
of the offer price, as required by Section 10(1) of the German
Securities Acquisition and Takeover Act (WpUG).
2.3 The tender-offer documentation which the Offerer is required by Section
11 of the German Securities Acquisition and Takeover Act (WpUG) to
publish shall contain a description of the main provisions of the
Transaction Contracts, the Loan Agreement, and the Security Contracts.
The Offerer shall obtain the approval of E.ON and
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Degussa for this description. The Offerer and E.ON shall endeavor to
ensure that the positions of the Degussa Board of Management,
Supervisory Board and Works Council are made known in the offer
documentation.
2.4 RAG need not name the "Offerer", that is, RAG Projektgesellschaft mbH,
as being the offerer, but, rather, shall have the right instead to
identify itself, BG or any other subsidiary that it wholly owns as
being the offerer.
3. CONDITIONS PRECEDENT TO BE CONTAINED IN THE TENDER OFFER
3.1 The Tender Offer shall contain provisions stating that it will not take
effect unless and until:
3.1.1 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
with E.ON to proceed, or all applicable deadline periods for the
imposition of prohibitions by the EU Commission and the antitrust
authorities have elapsed without any prohibitions being imposed on the
above-stated transactions;
3.1.2 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 Tender Offer for Degussa
AG and the Ruhrgas Purchase Agreement; and
3.1.3 the sale of RAG's holdings in Xxxxxxxxx (which RAG owns indirectly via
BG and EBV) to E.ON is completed in accordance with the provisions of
the Ruhrgas Purchase Agreement.
3.2 The parties shall take all reasonable steps to ensure that the
conditions precedent stated in clause 3.1 hereof are met.
3.3 The Tender Offer shall expressly provide that the condition precedent
stated in clause 3.1.1 hereof must be met by March 31, 2003 at the
latest, and the other conditions precedent by January 1, 2003; and
that, failing this, the Tender Offer will not be completed.
3.4 The inclusion in the Tender Offer of additional conditions or the
waiver of the conditions listed in clause 3.1 hereof requires the prior
approval of E.ON; however,
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as regards the condition precedent stated in clause 3.1.2 hereof, the
Offerer has the right (but not the obligation) at any time to
unilaterally waive the requirement that the government approvals be
unconditional.
4. SUBSTANTIVE CONTENT OF THE TENDER OFFER
4.1 The Tender Offer shall name as the consideration for the Degussa shares
a money amount of Euro 38 (thirty-eight euro) per Degussa share (the
"Offer Price").
4.2 The Offerer shall decide on the time limit for acceptance of the offer
when drawing up the offer documents.
4.3 The earliest at which the Tender Offer can be completed is 10 bank
working days following the date on which all the conditions precedent
for the Tender Offer have been met.
5. FINANCING FOR THE ACQUISITION OF THE STAKE IN DEGUSSA BY THE OFFERER
5.1 To secure financing for the Offerer's acquisition of the stake in
Degussa, BG shall to the required extent deposit into the Offerer's
reserves funds which BG receives on the basis of payment claims against
E.ON (as its share of the purchase money from the sale of the stake in
Ruhrgas) and on the basis of the Loan Agreement, as well as any
additional funds that may be necessary.
5.2 The funds payable pursuant to BG's right to disbursement under the Loan
Agreement and pursuant to BG's right to its share of the purchase price
under the Ruhrgas Purchase Agreement shall be remitted directly to a
separate account, which BG must nominate in good time, at Xxxxxx
Xxxxxxx Bank AG (the "Settlement Bank"), the Receiving and Exchange
Agent for the technical settlement of the Tender Offer; said account
must be pledged to the Settlement Bank as collateral to secure the
financing of the Tender Offer. As soon as the funds are deposited, BG
shall direct the Settlement Bank to transfer them to another separate
account which the Offerer holds at the Settlement Bank, which the
Offerer must nominate in sufficient time, and which must also be
pledged as collateral to the Settlement Bank.
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6. CONFIRMATION OF FINANCING PURSUANT TO SECTION 13 WPUG; RECOURSE
AGREEMENT
6.1 BG, the Offerer, and Xxxxxx Xxxxxxx Bank AG (the "Finance-Confirmation
Bank") have entered into a settlement agreement, pursuant to which the
Finance-Confirmation Bank undertakes, among other things, to give the
confirmation of financing mandated by Section 13 of the German
Securities Acquisition and Takeover Act (WpUG), on the basis of a
recourse agreement ("Recourse Agreement"), a draft of which is attached
hereto as Schedule 6.1. E.ON and BG shall sign the Recourse Agreement
as soon as this Framework Agreement has been duly signed and notarized.
6.2 BG shall pay the costs of the confirmation of financing.
7. NATURE AND EXTENT OF ACCEPTANCE OF THE TENDER OFFER BY X.ON
7.1 Notwithstanding anything in clause 7.2 hereof, E.ON, CVAG and E.ON VG
are entitled and obligated to accept the Tender Offer within the
extended acceptance period provided by Section 16(2) of the German
Securities Acquisition and Takeover Act (WpUG) to the extent necessary
to enable them to sell to the Offerer as many Degussa shares at the
Offer Price as are necessary to ensure that
- when taken together with the Degussa shares already sold by
minority shareholders who have accepted the Tender Offer, the
Tender Offer gives the Offerer a controlling interest in
Degussa within the meaning of Section 29(2) of the German
Securities Acquisition and Takeover Act (WpUG) (at least 30%
of the Degussa voting rights), and
- the Offerer and E.ON (including CVAG and E.ON VG), at the end
of the first acquisition phase, each have equal stakes in
Degussa.
7.2 E.ON, CVAG and E.ON VG hereby irrevocably waive acceptance of the
Tender Offer if and to the extent that the number of shares transferred
by their acceptance would exceed the parameters defined in clause 7.1
hereof. Prior to any acceptance, E.ON, CVAG and E.ON VG shall reach
agreement among themselves as to the internal distribution of the
shares to be sold.
7.3 E.ON, CVAG and E.ON VG shall be entitled to payment from the Offerer
for the shares they have sold to the Offerer on the basis of their
acceptance of the Tender
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Offer only once E.ON has met its payment obligations to BG arising out
of the Ruhrgas Purchase Agreement.
7.4 RAG shall ensure that, 36 hours prior to the end of the extended
acceptance period provided by Section 16(2) of the German Securities
Acquisition and Takeover Act (WpUG), the Offerer informs E.ON of the
number of Degussa shares sold as of that time by minority shareholders
who have accepted the Tender Offer. E.ON, or in lieu of E.ON a bank to
whom E.ON has issued irrevocable instructions, and the Settlement Bank
shall determine the number of shares that E.ON, CVAG and E.ON VG must
sell by means of acceptance of the Tender Offer and the time at which
said shares must be sold. E.ON, CVAG and E.ON VG shall not submit their
Degussa shares for sale via Clearstream Banking AG, but rather shall
deposit them separately with the Settlement Bank, provided that this is
permitted by law, is technically feasible and accords with the wishes
of the Settlement Bank, and provided that the Settlement Bank is able
to perform delivery-versus-payment settlement with or without the
involvement of Clearstream Banking AG.
8. ADJUSTMENT TO ENSURE EQUAL STAKES
Immediately after expiration of the extended acceptance period, the
Offerer and E.ON shall, as between themselves, adjust their respective
holdings in Degussa to the extent necessary, first, to give the Offerer
control over Degussa within the meaning of Section 29 of the German
Securities Acquisition and Takeover Act (WpUG) and, secondly, to ensure
that the Offerer and E.ON have equal stakes in Degussa.
9. WARRANTY
Subject to the exclusion of all warranty claims provided by statute,
E.ON, CVAG and E.ON VG hereby warrant and represent that the Degussa
shares they sell the Offerer are fully paid-up, are their property,
and, except for the rights described in Degussa's Bylaws, are not
encumbered by third-party rights. E.ON, CVAG and E.ON VG give no other
warranties and make no other representations.
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III. FORWARD PURCHASE CONTRACT
10. FORWARD PURCHASE CONTRACT
RAG, BG, the Offerer and E.ON shall on this day enter into a Forward
Purchase Contract as per the draft agreement attached hereto as
Schedule 10. By this agreement the Offerer will on May 31, 2004,
acquire from E.ON additional Degussa shares at the Offer Price and
thereby increase the Offerer's stake in Degussa.
IV. LOAN AGREEMENT AND SECURITY CONTRACTS
11. LOAN AGREEMENT AND SECURITY CONTRACTS
11.1 BG shall no later than May 21, 2002, sign a Loan Agreement
worded largely as per the draft attached hereto as Schedule
11.1 (but, if necessary, with clarification of clause 3.1.2,
"Completion of the sale of RAG's holdings in Xxxxxxxxx"), by
means of which the Banks will xxxxx XX a loan of up to Euro 2
(two) billion by way of bridging finance for the acquisition
of the stake in Degussa, and which the Banks named therein
have already signed.
11.1.1 The provisions of the Loan Agreement relating to collateral stipulate
that a percentage of the Degussa shares must remain available to the
public (free float). Therefore, in order to give effect to the Loan
Agreement, the Offerer and E.ON shall keep each other informed as to
the number of voting rights in Degussa each of them hold at any given
time; E.ON's part of this obligation extends to CVAG and E.ON VG. In
addition, if either the Offerer or E.ON becomes aware that shareholders
other than those named above in this clause have, in accordance with
the German Securities Trading Act (WpHG), given notice that they hold
5% of the voting rights in Degussa, or that they have reached,
exceeded, or fallen below this 5% threshold (hereinafter referred to as
"Material Shareholders"), then that party (the Offerer or E.ON) shall
notify the other.
11.1.2 If, during the term of the Loan Agreement, the proportion of voting
rights held by free-float shareholders (all shareholders apart from the
E.ON shareholders and the RAG shareholders--as defined in the
Shareholders' Agreement--and the Material Shareholders) should fall
below 10% of total voting rights in Degussa, then, as between the
Offerer and E.ON, the free float in Degussa shall be deemed to have
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fallen below 10% and the Offerer and E.ON shall be required to
immediately and jointly issue written instructions to the Agent (as
defined in the Loan Agreement), directing said Agent to apply a
notional market value for the Degussa shares--in lieu of the then
current stock-exchange price stipulated by clause 10.2.3 of the Loan
Agreement--when calculating the amount required to equalize the
difference in prices (as defined by the Loan Agreement).
11.1.3 In all other respects BG and E.ON shall cooperate in good faith in
order to give effect to the Loan Agreement. The mechanism created by
clauses 11.1.1 and 11.1.2 hereof shall lapse once all sums owed to the
Banks under the Loan Agreement have been repaid.
11.2 RAG, BG, the Offerer and E.ON shall without delay as soon as this
Framework Agreement has been duly signed and notarized sign the
Security Contracts attached hereto as Schedule 11.2 and listed herein
below, provided in each case that they are parties to the contracts in
question:
- the option contract (the "Option Contract") between E.ON,
Deutsche Bank Luxembourg S.A. and Xxxxxx Xxxxxxx Senior
Funding, Inc.;
- the Security Transfer Agreement (over shares) between the
Offerer and Deutsche Bank Luxembourg S.A.;
- the Bank-Account Pledge Contract between BG, the Offerer,
Deutsche Bank Luxembourg S.A., Xxxxxx Xxxxxxx Senior Funding,
Inc. and other banks;
- the Guarantee Agreement between E.ON, Deutsche Bank Luxembourg
S.A. and Xxxxxx Xxxxxxx Senior Funding, Inc., and a written
guarantee request from BG and the Offerer to E.ON.
11.3 If the Banks exercise their rights under the Option Contract to sell to
E.ON the Degussa shares described in said Option Contract, then E.ON
shall have the right to acquire from RAG, BG and the Offerer the
Degussa shares that they hold (including any Degussa shares released
pursuant to the Security Contracts) at the Offer Price stated in clause
4.1 hereof plus interest at the rate of 5% p.a. accrued as from the
date when the Tender Offer was implemented, and less dividends paid by
Degussa to RAG, BG or the Offerer. RAG will ensure that this right can
be exercised against other RAG Group companies who hold Degussa shares.
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15
V. SHAREHOLDERS' AGREEMENT
12. SHAREHOLDERS' AGREEMENT
RAG, the Offerer, E.ON, CVAG and E.ON VG shall on this day enter into a
Shareholders' Agreement as per the draft attached hereto as Schedule
12. The Shareholders' Agreement will not be effective until the Tender
Offer has been completed.
VI. MISCELLANEOUS
13. PROVISIONS TO BE APPLIED IN THE EVENT THAT THE RUHRGAS PURCHASE
AGREEMENT IS RESCINDED
13.1 If the Ruhrgas Purchase Agreement is rescinded, then the Offerer shall
be entitled and obligated to sell back to E.ON or a third party named
by E.ON the Degussa shares that the Offerer had acquired from E.ON,
CVAG and E.ON VG; in which case, said shares shall be sold back at the
Offer Price plus interest at the rate of 5% p.a., calculated as from
the time when said shares were acquired by the Offerer, less the amount
of any dividends paid by Degussa to the Offerer.
13.2 If the Ruhrgas Purchase Agreement is rescinded, E.ON shall then
endeavor to help RAG obtain the remaining Degussa shares.
13.3 If the Ruhrgas Purchase Agreement is rescinded, then E.ON, or the third
party nominated by E.ON, shall be obligated to remit to the Agent
defined in the Loan Agreement in accordance with the special-repayment
provisions contained in the Loan Agreement the amount that E.ON, or the
third party nominated by E.ON, owes on the basis of the buy-back
arising from the rescission. If E.ON has nominated a third party, then
E.ON shall be liable for ensuring that said third party performs E.ON's
obligations as defined in the preceding sentence. The Offerer hereby
gives its approval for this remittance by X.ON or by the third party
nominated by E.ON (Section 362(2) German Civil Code (BGB).
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16
14. DUTIES OF THE PARTIES TO SUPPORT THE TENDER OFFER
14.1 The Parties undertake to do everything within their power to facilitate
all the processes and procedures imposed by competition and anti-trust
laws in respect of the transactions governed by the Transaction
Contracts. In particular, the Parties shall take all reasonable steps
to ensure that said transactions are approved by the competition and
anti-trust authorities.
14.2 E.ON shall not take any measures that may jeopardize the success of the
Tender Offer.
15. CHANGE OF PARTIES
15.1 Unless already provided in this Framework Agreement or in one of the
contracts in the Schedules hereto, or agreed upon with the Settlement
Bank in connection with the assignment of individual claims and rights
owned by RAG, BG or the Offerer, the transfer of status as a party to
this Framework Agreement or to one of the Other Transaction Contracts,
and the assignment of individual claims or rights under the Transaction
Contracts shall require the prior written approval of the other
Parties, notwithstanding any provisions to the contrary in the
Transaction Agreements. This requirement for approval shall also apply
to transfers and assignments to affiliated companies except in cases
where the transfer or assignment does not impair the legal or
commercial position of the other parties.
15.2 The immediate and any subsequent successors in title shall likewise be
required to accept the duties and obligation hereby imposed.
16. PUBLICATIONS AND DUTIES OF NON-DISCLOSURE
16.1 Unless there is as a duty of disclosure imposed by statute or
capital-market rules, each party to the Transaction Contracts shall
keep secret from third parties all confidential matters of which it
gains knowledge in its capacity as a party to the Transaction
Contracts, particularly the negotiations undertaken in relation to
these matters and the resolutions adopted by the shareholders of the
Parties in relation to these matters.
16.2 E.ON and RAG shall coordinate all press statements and other public
announcements regarding the transactions governed by the Transaction
Contracts, the Loan
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17
Agreement, the Recourse Agreement, and the Security Contracts in such a
way that each of these two parties affords the other sufficient
opportunity to review each such public announcement and put forward
counterproposals. The Parties shall endeavor to reach agreement on the
content of all public announcements. Wherever permissible by law, the
same shall apply, mutatis mutandis, in respect of ad-hoc disclosure
notices (ad-hoc-Mitteilungen) issued by E.ON pursuant to its duties of
ongoing disclosure under the German Securities Trading Act (WpHG).
17. COSTS
With the exception of the costs of the Tender Offer procedures, and
notwithstanding any separate provisions in the Other Transaction
Contracts, E.ON and BG shall each pay half the costs of notarizing and
implementing the Transaction Contracts. Each party shall pay the costs
of their own consultants and advisors.
18. ARBITRATION CLAUSE
All disputes arising out of or in connection with the Transaction
Contracts or relating to their validity shall be settled finally and
bindingly in accordance with the Rules of Arbitration of the German
Institution of Arbitration (DIS) 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 Upper Regional Court (OLG), Dusseldorf.
19. APPLICABLE LAW
The Transaction Contracts shall be governed by the laws of the Federal
Republic of Germany.
20. FINAL PROVISIONS
20.1 The Transaction Contracts supersede and replace all prior oral or
written agreements between the Parties that deal with subject matter of
this Framework Agreement; the Heads of Agreement is the sole exception
to this. There are no collateral agreements.
20.2 RAG is liable for the performance of all the obligations owed by BG,
EBV, the Offerer, and their successors in title under the Transaction
Contracts as if RAG itself
Register of Notarial Instr., Rec. No. 2002/213 Cu
18
were (the sole) party to said contracts. Dispositions of Degussa shares
within the RAG Group are subject to clause 6.2 of the Shareholders'
Agreement.
20.3 E.ON is liable for the performance of all the obligations owed by CVAG,
E.ON VG, and their successors in title under the Transaction Contracts
as if E.ON itself were (the sole) party to said contracts. Dispositions
of Degussa shares within the E.ON Group are subject to clause 6.2 of
the Shareholders' Agreement.
20.4 If there are any conflicts between this Framework Agreement and the
Other Transaction Contracts or the Heads of Agreement, or if there are
any uncertainties as to construction and interpretation, then this
Framework Agreement shall take precedence.
20.5 Any additions and amendments to this Framework Agreement must be in
writing unless notarization is required. The same applies to any
changes to this clause.
20.6 If any provision of the Transaction Contracts should be or become
invalid or unenforceable, whether wholly or in part, then that
provision shall be severed, and the remaining provisions of the
Transaction Contracts shall remain valid and enforceable. The same
shall apply if any of the Transaction Contracts contains 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 Transaction Contracts, would
have intended if they had turned their minds to the point at issue when
entering into the Transaction Contracts or, subsequently thereto, when
adding a provision to the Transaction Contracts. 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.
Register of Notarial Instr., Rec. No. 2002/213 Cu
IN WITNESS WHEREOF, I, the undersigned Notary Public, read this written record
and the attached Schedules 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 the twentieth, two-thousand-and-two.
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Xxxxxxx Xxxxx, Notary Public
REGISTER OF NOTARIAL INSTR., REC. NO. 2002/213 CU
Register of Notarial Instr., Rec. No. 2002/213
REGISTER OF NOTARIAL INSTR., REC. NO. 2002/213 CU
