EXHIBIT 4.11
THIS AGREEMENT is made as of 10 May 2006
concerning Eurotrust A/S' subscription for and
purchase of the new emission of shares
in
European wind energy farms A/S
Diplomvej 377
DK-2800 Kgs. Lyngby
(hereinafter referred to as "EWP)
between
Eurotrust A/S
Xxxxxxx 0
XX-0000 Xxxxxxx
(hereinafter referred to as "ET"
&
European Energy Systems A/S
Xxxxx Rordamsvej 30
DK-2800 Kgs. Lyngby
(hereinafter referred to as "EES")
&
Xxxxxx Xxxxxxx Xxxxxxxx
Xxxxxxxxxxxxxx 00
XX-0000 Xxxx
(hereinafter referred to as "MDP")
&
Knud Xxxx Xxxxxxxx
Xxxxx Rordamsvej 30
DK-2800 Kgs. Lyngby
(hereinafter referred to as "KEA")
&
European wind energy farms A/S
Diplomvej 377
DK-2800 Kgs. Lyngby
(hereinafter referred to as "EWF"
RECITALS
WHEREAS EES is the owner of 100% of the share capital in EWF; AND
WHEREAS ET and EES (hereinafter referred to as the "Shareholders") are desirous
of jointly carrying on a development company aiming at developing wind energy
farms, and WHEREAS to achieve this objective, the Parties agree by this
Agreement that ET shall acquire a 50.25% of the share capital in EWF including
all of its subsidiaries as specified in detail below. This ownership of shares
shall be acquired by increasing the capital in EWF in consideration of ET's
subscription in cash for shares in EWF, partly by ET's purchase of shares in EWF
from EES (by non-cash contribution of a portion of EES' EWF shares in ET). NOW,
THEEFORE EES, ET, EWF, MDP
and KEA have entered into the following Agreement. The purpose of the Agreement
is to secure that EWF through the new joint ownership efficiently and quickly
can further develop the already existing project portfolio of wind energy farms
located in a range of countries. EWF will continue carrying on the activities,
EWF has previously carried on, i.e.
o Purchasing the right to land and entering into land lease agreements
o Exercising due diligence into projects offered
o Entering into development agreements with local wind energy farm
development companies
o Making wind measurements and wind analyses
o Making assessments of noise levels and shade effect
o Obtaining building permits for the construction of wind energy farms
o Securing the required rights by registration of title to roads, rights
to land for wind energy farm and cable passages/ducts to public
electricity supply network.
o Building of wind energy farm infrastructure, i.e. wind energy farm
foundations, roads and connections to public electricity supply network
o Entering into purchase agreements with wind turbine suppliers
o Entering into service agreements with service providers
o Taking out insurances for the individual wind turbines and
infrastructure constructions
o Entering into agreements concerning technical monitoring of wind
turbines in commercial operation
o Procuring first priority project financing
After commissioning and obtaining a first priority financing, EWF will transfer
the wind energy farm to the Shareholders with 50 % to each of the Shareholders.
Upon the transfer of a wind energy farm, EWF obtains development remuneration
from the Shareholders amounting to minimum 4% of the cost price of the
respective wind energy farm, unless otherwise agreed. Each of the Shareholders
shall pay a 50% portion of the remuneration, unless the wind energy farm is
taken over by the Shareholders subject to a different percentage; if so the
development remuneration shall be paid by the Shareholders according to such
other percentage. Basically, EWF does not own any (commissioned) wind turbines
in commercial operation.
The basic principle for EWF is that the day-to-day management in EWF makes the
decisions and that the Shareholders shall agree on material investments,
strategic decisions and organisational changes.
EWF & EES ADJUSTING TO THE CAPITAL INCREASE IN EWF
Prior to the capital increase and ET's purchase of shares in EWF, the following
adjustments shall be made in EWF and EES:
1. All of the wind turbines that have been commissioned/are in commercial
operation as of 01.05.2006 and are owned by EWF shall be transferred to
EES. The transfer shall take place by the individual project companies
including project rights and wind turbines in commercial operation being
transferred to EES. A list of the companies transferred is contained in
Appendix 1 (Transfers from EWF to EES).
2. All of the wind energy farm projects to which EES has the project rights
concerning the construction of the wind turbine and where the wind
turbine is not in commercial operation
as of 01.05.2006 shall be transferred to EWF. This applies to EES'
shares in the following companies:
a) Enerteq ApS (50%)
b) VMA France SAS (40%)
c) A range of German KG's containing project rights to German wind
turbines not yet in commercial operation.
A list of the companies transferred is contained in Appendix 2
(Transfers from EES to EWF). The transfer value of the individual
development projects and companies (the transfers are set forth under
Clauses 1 and 2) consists of the book cost price of the projects and
companies, respectively.
3. The payment of the transfers set forth under Clauses 1 and 2 - and
subject to transfer at the book cost price - shall be fully effected via
the existing account between EES and EWF. This account between the
Parties shall be settled not later than by 15 July 2006.
4. EES' shares in the company Enerteq Vitalba ApS (consisting of 85% of the
ownership in the wind energy farm Parco Eolico Vitalba Srl consisting of
7 Vestas V52 wind turbines, which are in the progress of construction),
shall remain the property of EES'.
5. EES' shares in European wind energy farms no. 1 A/S shall remain EES'
property, though.
6. The share capital in EWF shall be increased from DKK 500,000 to DKK
4,111,200. The capital increase shall be carried into effect as a
capitalisation issue.
7. Extraordinary dividend shall be paid from EWF to EES until the equity
capital in EWF amounts to minimum DKK 4,111,200 as of 01.05.2006
(certain reserves cannot be distributed). In calculating the equity
capital, no goodwill or internal remuneration for uncompleted projects
shall be paid.
8. MDP and KEA shall enter into contracts of employment with EWF.
Having completed Clauses from 1 to 8, EWF contains all of EWF's and EES'
previous project rights to wind energy farm projects, which are not in
commercial operation as of 01.05.2006 (with the exception of the Vitalby Project
(shares in Enerteq Vitalba ApS) which is in the progress of construction, and
the shares in European wind energy farms no. 1 A/S, both these projects shall
remain the property of EES). A complete list of the "new" EWF's wind energy farm
projects and companies is contained in Appendix 3. In addition, the company
holds a share capital of DKK 4,111,200 and an equity capital of minimum the same
size.
The company has a staff of 7 persons at the company's premises in Kgs. Lyngby,
Denmark.
CAPITAL INCREASE IN EWF
9. Prior to the capital increase, EWF has a share capital of DKK 4,111,200,
which is wholly owned by EES.
10. ET subscribes for a new emission of shares in EWF at a nominal amount of
DKK 1,918,600 at DKK 6,254.56 per share at DKK 100, which is equal to a
price of 6,254.56. The proceeds from the subscription amounts to approx.
DKK 120,000,000.
11. After this transaction, EWF holds a share capital of DKK 6,029,800.
12. After deciding the capital increase set forth under Clause 10, ET
purchases from EWF nominal DKK 1,111,400 shares in EWF from EES at DKK
70,625,500 (which is equal to a price of 6,354.64), which is paid by
issuing 915,500 shares in ET to EES. The purchase is effected by a
non-cash contribution of the aforesaid EWF shares in ET. ET shall take
care
that the said shares in ET as soon as possible will become negotiable
instruments listed at NASDAQ and shall pay all costs in that connection.
13. After registration with the Danish Commerce and Companies Agency of the
capital increase in EWS (by subscription for new shares for payment in
cash of approx. DKK 120,000,000) and final carrying into effect thereof
(including securing that EES is registered as the owner of the said ET
shares including any restrictions or third party rights of whatsoever
nature, causing that the shares cannot be freely transferred for the
payment of the full proceeds to EES, but see below concerning the
release of shares) of ET's purchase of shares in EWF from EES (by
non-cash contribution of the EWF shares in ET), ET shall be registered
as the owner of the shares in question in EWF's register of
shareholders.
14. The capital increase and the purchase of shares are set forth in tabular
form in Appendix 4. After carrying the capital increase and the purchase
of shares into effect, the share capital in EWF will amount to nominal
DKK 6,029,800 distributed on nominal DKK 3,030,000 (50.25%) to ET and
nominal DKK 2,999,800 (49.75%) to EES. Release of shares to EES
15. 375,000 ET shares as set forth under Clause 12, which are issued to EES,
shall be transferred in connection with delivering the shares placed in
escrow no. 5470ZZZZ in Forstaedernes bank. The escrow shall be opened in
EES' name.
16. Release of such shares placed in escrow to EES shall be subject to the
following rules:
a) Once the 3 conditions (see below under Clause 17) have been
complied with for projects amounting to a total project price of
DKK 1.5 billion since 01 May 2006, EES shall have 125,000 ET
shares released from the escrow as set forth under Clause 15.
b) Once the 3 conditions (see below under Clause 17) have been
complied with for projects amounting to a total project price of
DKK 2.5 billion since 01 May 2006 (i.e. projects amounting to
total DKK 1.0 billion more than the project price as set forth
under Sub Clause a), EES shall have another 125,000 ET shares
released from the escrow deposit as set forth under Clause 15.
c) Once the 3 conditions (see below under Clause 17) have been
complied with for projects amounting to total DKK 4.0 billion
since 01 May 2006 (i.e. projects amounting to total DKK 2.5
billion more than the project price as set forth under Sub
Clause a), EES shall have the remaining 125,000 ET shares, which
are placed in escrow, released as set forth under Clause 15.
All rights conferred on the shares placed in escrow, including
dividends, subscription rights, etc. shall pass to EES and shall be
released simultaneously and in proportion to the release of the shares.
THE 3 CONDITIONS
17. In order for the project to be approved according to Clause 16, the
project shall be put on the project list and be in conformance with the
following 3 conditions:
a) A building permit should have been granted for the project for
the planned type of wind turbine and the building permit must
have legal effect, i.e. any complaints must have been rejected
or must be void.
b) The project should be a Party to a sales agreement entered into
with a local utility company or a electricity distribution
company for the sale of electricity.
c) A purchase agreement should have been entered into with a wind
turbine supplier stating the time of delivery and price. The
purchase agreement should comply with the requirements of the
building permit.
TAKING OVER PROJECTS OF THE PROJECT LIST AND THE ADMINISTRATION THEREOF
18. Putting project onto the project list of projects takes place according
to the following guidelines:
a) The management in EWF presents a new project including relevant
information (see Info Catalogue in Appendix 5) for the
management in ET and EES. Following this, ET and EES have one 1
week within which to accept the project on the project list or
not to accept the project on the project list.
b) If either ET or EES does not wish to exercise its right to
acquire a developed "turnkey project" in proportion to their
shareholding in EWF, the Party exercising its right shall have
the option to acquire the shareholding of the Party who does not
wish to exercise its right. The Party, which thereby acquires
more of a project than the Party's shares entitle the Party to
acquire, shall pay remuneration to the other shareholder. The
remuneration shall be fixed from project to project. If the
Party exercising its right does not wish to take over the shares
of the Party, which does not wish to exercise its right, the
Party which does not exercise its right shall be under an
obligation to take over its proportionate portion of the shares
in the project.
19. The administration of the project list, showing the state of affairs of
the individual projects, shall be performed by EWF. EWF shall also make
quarterly statements concerning the number of projects conforming to the
3 conditions.
20. If ET and EES - via EWF - should choose to sell a wind energy farm
project to a co-operation partner or to any third party, the project
sold for this reason shall remain being included in EWF's project price
as listed on the project list.
ORGANISATION OF EWF
21. The structure of and staff of EWF shall remain unchanged and EWF shall
continue carrying on its business as an independent company with ET and
EES as shareholders.
22. The activities in EWF consist in searching new wind energy farm projects
and bringing such projects into being in conformity with the 3
conditions, i.e. obtaining building permit, entering into sales
agreement for the sale of electricity and entering into agreements for
the purpose of purchasing wind energy farms. For the purpose hereof, the
company has a basis organisation in Lyngby, Denmark, which handles the
said activities in a close working relationship with co-operation
partners in the individual countries, where wind energy farm projects
are purchased and developed. The basis organisation is comprised of 10
persons: 3 project executives, 2 project workers, 2 attorneys, 1 CFO and
1 person responsible for technical/technological aspects and 1 manager
responsible for the day-to-day business of the company. The project
executives are responsible for the various language areas. By means of
the 2 attorneys, the majority of the due diligence of the individual
projects is done as in-house activities. Moreover, the majority of the
co-operation agreements concerning development partners is done as
in-house activities too. As regards the 7 persons, who are employed as
of 01.05.2006, there are 3 newly employed persons among them: A project
executive for Italy, a German attorney and a CFO.
MANAGEMENT OF EWF AND ITS SUBSIDIARIES
23. The board of directors of EWF and its subsidiaries is comprised of two
members appointed by ET and two members appointed by EES. The chairman
is appointed by ET.
24. The management of EWF and its subsidiaries is comprised of KEA.
25. The power to bind the company shall be construed so that EWF can alone
be bound by the joint signatures of one person affiliated to EES and one
person affiliated to ET.
TERMS OF EMPLOYMENT RELATING TO THE EMPLOYEES OF EWF
26. MDP and KEA shall be employed by EWF subject to the same terms as the
other employees having similar responsibilities in ET and EES.
Furthermore, the contracts of employment shall contain the following
provisions.
27. MDP's and KEA's terminations shall be treated according to the following
model:
a) If either KEA or MDP should choose to terminate their post in
EWF, 80% (KEA) and 20% (MDP), respectively, of the ET shares,
which at the time of termination are still in escrow, cf. Clause
15, be returned to ET as a reduction of the purchase sum
according to Clause 12.
b) EWF can alone terminate MDP or KEA in case of material breach by
MDP or KEA of the employment terms and in case EWF, MDP or KEA
has suffered considerable financial losses by this breach and -
in order for the breach to be deemed material - a prior written
notice stating unambiguously the specific employment term of
which the employee has been in breach shall be served upon the
Party in breach. If the breach remains unremedied or
discontinued by KEA or MDP 30 days after the service of written
notice upon KEA or MDP or if this is not possible, then KEA or
MDP shall pay compensation to EWF to the extent of any damage
EWF might have suffered. If the Party in breach accepts having
committed breach, the remaining part of this Sub Clause b. shall
apply. If the breach is not discontinued or if compensation is
not paid, the contract of employment shall be deem terminated at
the expiry of the said period of 30 days. That either MDP or KEA
shall be terminated as said forth under this Sub Clause causes
that the shares, which at the time of termination are still
placed in escrow, cf. Clause 15, shall be released to ET as set
forth above with 80% (KEA's notice of termination) or 20% (MDP's
notice of termination).
c) If the breach cannot be accepted and the dispute concerning the
notice of termination cannot be settled amicably and therefore
results in a judgment, the co-operation between EES and ET shall
terminate. The losing Party (i.e. EES if EWF is the prevailing
Party and ET if EWF is the losing Party) shall within 30 days
after a final judgment has been delivered advance an offer to
purchase the prevailing Party's shares in EWF. After that, the
prevailing Party has 30 days to either accept the losing Party's
offer or itself purchase the losing Party's shares in EWF at the
same price.
d) MDP and KEA are subject to a con-competition clause and cannot
develop wind energy farms in EWF framework (under the auspices
of EWF).
e) The terms of the other employees' employments shall remain
unchanged.
FINANCING OF PROJECT
28. EWF shall finance all of the development activities in EWF and its
subsidiaries. This includes, e.g., the financing of development
activities, the construction of infrastructure, the purchase of wind
turbines and the payment to development partners. In a close working
relationship with the management of ET and EES, EWF obtains a first
priority bank
financing of the projects, contained on the project list. The financing
sum for 2006 is expected to amount to approx. DKK 1 billion and DKK 2-3
billion for 2007.
29. Upon the completion of the development and commissioning of the wind
energy farm, the wind energy farm is taken over by the Shareholders with
50% to each shareholder at cost plus the development remuneration set
forth under the recitals. It is of essential importance to the Parties
that this is structured so that the shares can be consolidated both at
ET and at EES. It is for the Shareholders to raise sufficient equity
capital or other financing of their portion of a given project.
30. If a shareholder cannot raise equity capital or other financing for a
wind energy farm, the project portion shall be transferred to another
shareholder in EWF.
31. If another shareholder cannot or will not procure equity capital or
other financing of a developed wind energy farm, EWF shall have the
right to sell the wind energy farm to any external investors.
SHAREHOLDERS' MUTUAL OPTION TO PURCHASE WIND TURBINES AND SHARES IN EWF
32. Reserving the option to purchase in force from time to time for the
employees of EWF, EES grants to ET an option to purchase the wind
turbines, which EES have in commercial operation as of 01.05.2006. Thus,
perhaps by he sale of one or several wind turbines first, but see
immediately below concerning the employees' option to purchase, EES will
offer ET an option to purchase the wind turbines in question.
33. EES and ET grants each other a mutual option to purchase in case either
Party should wish to sell its shares in EWF.
34. EES grants ET an option to purchase the shares in the Italian projects,
which EES expects to take over from a development partner (i.e. 50% of
the share capital in Enerteq Vitalba ApS). By such transaction, ET will
take over half of the Italian projects at the amount realized, which
EWF's partner achieves.
35. For a period of three years from the exchange of the shares in EWF with
shares in ET, ET shall not be entitled to dispose of his shares in EWF,
because EES' expected permission of tax-free exchange of shares will
then lapse.
36. In case of material breach by either Party of its obligations as a
shareholder in EWF, including material breach of any provisions entered
into by means of a shareholders' agreement, the aggrieved Party may
demand that the co-operation between EES and ET be terminated, unless
the breach is redressed within 30 days after the service of default
notice upon the Party in breach by the aggrieved Party. If the breach
has not been redressed or cannot be redressed, the Party in breach shall
within 60 days after service of default notice by the aggrieved Party as
set forth above, advance an offer to purchase the shares in EWF owned by
the aggrieved Party. After that, the aggrieved Party has 180 days for
either acceptance the offer advanced by the Party in breach or itself
purchase of the shares of the Party in breach in EWF at the same price.
APPROVAL OF THE AGREEMENT AND CLOSING
37. This Agreement is subject to approval by the boards of directors of the
two companies, which approval must be submitted not later than as of 1
July 2006 and that ET exercises a satisfactory due diligence into EWF to
be completed by 21 June 2006.
38. ET's subscription for shares in EWF shall be carried into effect at the
extraordinary general meeting to be held on 03 July 2006 and ET's
purchase of shares in EWF is carried into effect as of 05 July 2006,
both transactions are subject to the aforesaid terms and conditions
being complied with within the said deadlines.
39. The Shareholders agree that in connection with the implementation of
this Agreement, a normal shareholders' agreement shall be entered into
to regulate the future co-operation between the Parties as shareholders
in EWF.
ARBITRATION
40. Any disputes pertaining to this Agreement shall be settled by
arbitration in Copenhagen.
APPENDICES
41. The following Appendices form an integral part of this Agreement:
Appendix 1 Transfer of companies from EWF to EES
Appendix 2 Transfer of companies from EES to EWF
Appendix 3 Ongoing companies in EWF
Appendix 4 Capital increase and purchase of shares in tabular form
Appendix 5 Project info catalogue
(Signed in ) Lyngby 10.05.2006
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For Eurotrust A/S: For European Energy Steems A/S:
----------------------------------- -----------------------------------
Xxxxx Xxxx Knud Xxxx Xxxxxxxx
-----------------------------------
Xxxxx Xxxx
For European wind energy farms A/S:
-----------------------------------
Knud Xxxx Xxxxxxxx
On behalf of Knud Xxxx Xxxxxxxx: On behalf of Xxxxxx X. Xxxxxxxx
----------------------------------- -----------------------------------
