OPTION AGREEMENT
This Agreement has been made on the date set out below between Xxxxx Xxxxxxxx,
Skoldungavagen 23 X, XX-000 00 Xxxxx, Xxxxxx (the "Seller"), and Scandinavian
Energy Finance Limited with address at x/x XxXxxx Xxxxxxxxxx, 0 Xxxxxxxxxxxxx
Xxxxx, International Financial Services Centre, Dublin, Ireland, telefax number
00 353 1 829 0010 (the "Buyer"),
1. Call Option
1.1 The Seller hereby grants to the Buyer an irrevocable right to
purchase from the Seller, all shares from time to time held by the
Seller in Gigantissimo 2321 AB (initially 100,000 shares) (the
"Company").
1.2 No separate compensation shall be paid for the option granted in this
Agreement.
2. Option Period and Exercise of the Option
2.1 If the Buyer desires to exercise the option, he shall during the
period March 7 2002 - 28 February 2027 ("the Option Period") provide
the Seller with written notice thereof.
2.2 Immediately after receiving written notice as provided for in section
2.1, the Seller shall notify Lantbrukskredit AB (publ) that the
2.3 The Buyer may exercise the option in whole or in part in one or more
occasions during the Option Period.
3. Purchase Price
3.1 The purchase price for the shares purchased by the Buyer under this
Agreement shall be the aggregate nominal value of the shares.
3.2 The purchase price for the shares shall be paid on Completion upon
delivery to the Buyer of the share certificates.
4. Completion
4.1 Completion shall take place on the 10th business day following the
exercise of the option pursuant to Section 2. At Completion the
Seller (i) shall notify Lantbrukskredit that the Buyer has exercised
the option, (ii) procure that the Board of Directors acknowledge the
transfer of the Shares and (iii) make a corresponding entry in the
share register of the Company.
5. Pledge of Shares
5.1 As security for its obligations under this Agreement, the Seller
hereby pledges all shares in the Company (initially 100,000 shares)
owned by it from time to time. The Seller shall deliver the share
certificates representing the shares, duly endorsed in blank to
Lantbrukskredit in its capacity as depository. The Seller agrees that
the Buyer's right to purchase the shares in the Company as provided
for in this Agreement and the security connected therewith may be
pledged.
5.2 The Buyer shall have the right to realize the shares pledged pursuant
to this Section 5 through one or more sales, free from any claim or
right of any nature whatsoever of the Seller, in any matter permitted
by law as it deems appropriate and to act generally in such manner as
the Buyer shall determine. For the avoidance of doubt Chapter 10 of
the Swedish Commercial Code (Sw. Handelsbalken) shall not apply when
the Buyer enforces the security constituted hereby.
6. Restrictions
6.1 During the period up to the end of the Option Period or, if the
option is wholly exercised before then, until such exercise has
occurred, the Seller hereby agrees not to cause or permit the Company
or any of its direct or indirect subsidiaries to take any of the
following actions;
a) replace, amend or alter the Articles of Association applicable to
such company;
b) issue any shares, enter into or grant any options to subscribe
for shares or issue any securities convertible into shares or
entering into any agreement for the same, save for the issuance of
(i) a convertible debenture of SEK 30 millions to Lansforsakringar,
(ii) shares corresponding to 5.0 per cent of all outstanding
shares to Lansforsakringar and (iii) a convertible debenture
of SEK 470millions to the Buyer;
c) establish any bonus, profit sharing, share option or other
incentive scheme for any director or employee of the Company or
any member of the Group (as appropriate);
d) sell, transfer or dispose their assets outside the ordinary course
of business;
e) effect a merger with a third party;
f) reduce the capital by redemption of shares or any equivalent
procedure;
g) distribute profit by dividends or any other form of shareholder
benefit;
h) voluntarily liquidate or wind-up (except, for the avoidance of
doubt, any actions and measures taken in connection with mandatory
liquidation in accordance with the Swedish Companies Act, subject
to reasonable prior written notice to Lantbrukskredit, SEFL and
Lansforsakringar);
i) change the place of registered office;
j) enter into any agreement with a director, employee or shareholder
or an affiliate of such persons or effect any transaction with
such persons;
k) appropriate fees for the directors or vary the service agreements
of any directors.
l) agree or commit to do any of the foregoing.
6.2 The provisions of Section 6.1 shall not prevent (i) any actions or
measures by Ernstson or any Group Company necessary to comply with the
terms and conditions of Section 5 of the Shareholders Agreement to be
entered into between Ernstson, SEFL and Lansforsakringar regarding
their shareholding in the Company so long as such Shareholders
Agreement is in effect it being understood that it shall terminate
immediately in the event Lantbrukskredit becomes a shareholder in the
Company or (ii) any action taken by Ernstson to cause the Company to
pay Ernstson such amount as is necessary to make Ernstson whole
(including settlement costs and reasonable legal, accounting and other
expenses for investigation or defence) on an after tax basis for any
wealth tax payable by him in connection with his ownership of Shares,
provided that Ernstson advises Lantbrukskredit, SEFL and
Lansforsakringar of any such tax assessed and takes any reasonable
lawful action jointly suggested by Lantbrukskredit, SEFL and
Lansforsakringar to reduce such tax liability before paying such tax.
7. Confidentiality
7.1 The parties agree that until the end of the Option Period and for an
additional period of two years they will not disclose the existence
of this Agreement nor its content to third parties.
8. Notices
8.1 Notices shall be given by way of reputable overnight courier or
telefax to the parties' respective addresses and telefax numbers as
set out in the preamble or as to an address or telefax number
announced by any of the parties later.
A notice shall be deemed to be received by the recipient;
a) If by courier, when delivered;
b) If by telefax, when the telefax is sent, provided receipt
is duly confirmed by the transmitting telefax machine.
8.2 A notice given in accordance with clause 8.1, but received on a
non-working day or after business hours in the place of receipt will
only be deemed to be given at the opening of business on the next
working day in that place.
8.3 In case of notice to the Buyer, a copy of the notice shall be sent to
US Energy Systems, Inc. ("USE"), fax number x0 000 000 0000 and EIC
Partners AG ("EIC"), fax number x00 0 000 0000
(until 15 April 2002) and x00 00 000 00 00 (as of 15 April 2002).
8.4 All notices and communication between the parties shall be in English
unless otherwise agreed by the parties, USE and EIC.
8.5 Change of address shall be made as set out in clause 8.1.
9. Amendments
9.1 Only those amendments and additions to this Agreement that are made
in writing and signed by the parties are valid.
10. Assignment
The Buyer may wholly or partly assign its rights and obligations
under this Agreement to any third party.
11. Governing Law and Disputes
11.1 This Agreement shall be construed in accordance with and be governed
by the laws of Sweden.
11.2 Any dispute, controversy or claim arising out of or in connection
with this Agreement shall be settled by arbitration in accordance
with the Rules of the Arbitration Institute of the Stockholm Chamber
of Commerce. The arbitral tribunal shall consist of three
arbitrators. The place of arbitration shall be Stockholm, Sweden.
The language to be used in the arbitral proceedings shall be English.
________________________
This agreement has been executed in two copies of which the parties have taken
one each.
Stockholm, March , 2002
/s/ Xxxxx Xxxxxxx
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XXXXX XXXXXXXX
PRESENT when the Common Seal of SCANDINAVIAN ENERGY FINANCE LIMITED was affixed
hereto:
_____________________________________
Director
_____________________________________
Director/Secretary
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