EXHIBIT 4.7
Unofficial English Translation of:
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OPTION CONTRACT
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concluded on
___________________ 2002
between
E.ON AG
DEUTSCHE BANK LUXEMBOURG S.A.
and
MORGAN STANLEY SENIOR FUNDING, INC.
Option Contract between
1. E.ON AG, having its registered office in Dusseldorf, Germany, and being
registered under Registration No. HRB 22315 in the Commercial Register
of the District Court (Amtsgericht), Dusseldorf, Germany,
- hereinafter referred as the "E.ON" -
2. DEUTSCHE BANK LUXEMBOURG S.A.,
- hereinafter also referred to as the "SECURITIES MANAGER" or the "AGENT" -
and
3. MORGAN STANLEY SENIOR FUNDING, INC.,
the parties named in paragraphs 2 and 3 above, and the financial service
providers who, subsequent to the conclusion of the Loan Agreement and this
Option Contract, will join said Loan Agreement and Option Contract by concluding
a Transfer and Assumption Agreement as per Schedule 9 of the Loan Agreement,
hereinafter referred to collectively as the "BANKS" -
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A. RAG Projektgesellschaft mbH, registered in the Commercial Register in
Essen, Germany, under Registration No. HRB 16415 (hereinafter referred
to as the "OFFERER") intends to acquire 50.1% of the shares in Degussa
AG, registered in the Commercial Register in Dusseldorf, Germany, under
Registration No. HRB 39635 (hereinafter referred to as "DEGUSSA"). The
share acquisition will take place in two phases. In the initial phase,
the Offerer will present a public tender to Degussa's shareholders
(which include E.ON) in accordance with Section 29 of the German
Securities Acquisition and Takeover Act (WpUG). E.ON undertakes to
accept the tender offer, but only to the extent necessary (i) to top
up the Degussa shares acquired from free-float shareholders and thereby
ensure that 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 (at least 30% of the voting rights) and
(ii) to ensure that E.ON and the Offerer have equal stakes in Degussa.
Once the tender offer has been completed, E.ON and the Offerer will, if
necessary, adjust their respective holdings in Degussa to ensure that
E.ON and the Offerer have equal stakes Degussa. In the second phase,
the Offerer will acquire from E.ON the number of Degussa shares
necessary to bring its stake in Degussa up to 50.1%.
B. The Offerer will finance the acquisition of the Degussa shares partly
via the sale to E.ON, for a total purchase price of approximately E.1.9
billion, of all the shares that RAG Aktiengesellschaft, registered in
the Commercial Register in Essen, Germany, under Registration No. HRB
1712 (hereinafter referred to a "RAG"), holds directly and indirectly
in Ruhrgas Aktiengesellschaft, registered in the Commercial Register in
Essen, Germany, under Registration No. HRB 83 (hereinafter referred to
as "RUHRGAS"), and in companies that hold Ruhrgas shares. Part of the
remainder of the purchase price for the Degussa shares will be financed
by a loan of up to E.2 billion granted to RAG Beteiligungs-GmbH,
registered in the Commercial Register in Essen, Germany, under
Registration No. HRB 5398 (hereinafter referred to as "BG"), by a
banking syndicate headed by Deutsche Bank AG and Party No. "3" as per
page two of this contract. BG will deposit into the Offerer's reserves
the loan funds and the funds that BG receives
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from selling to E.ON BG's holding in Bergemann GmbH, registered in the
Commercial Register in Essen, Germany, under Registration No. HRB 5963.
C. To secure the debts owed to the Banks under the Loan Agreement, the
Offerer will transfer by way of mortgage to the Securities Manager
those Degussa shares which the Offerer acquires using the loan funds.
D. To secure the Banks' claims under the Loan Agreement, BG will pledge to
the Banks its right to receive payment of the credit balance in its
Account No. [ ] (hereinafter referred to as the "PLEDGED ACCOUNT") held
at Deutsche Bank AG, Essen, Germany. The purpose of the credit balance
in the Pledged Account is to cover any decrease in the value of the
mortgaged Degussa shares and accrued interest. To this end, the credit
balance is adjusted monthly. BG has the right to have additional
Degussa shares transferred as security to the Securities Manager in
lieu of an increase in the credit balance in the Pledged Account.
E. As loan funds are repaid to the banks, the Securities Manager is
required to release mortgaged Degussa shares pro rata the loan
repayments thus received.
NOW, THEREFORE, in consideration of the above provisions, E.ON and the Banks
agree as follows:
1. DEFINITIONS
In this Option Contract, the words listed hereunder on the left shall have the
meanings opposite them on the right unless some other meaning is apparent from
the context of this contract:
"Bank working day" means each day on which financial institutions in
Frankfurt/Main, Germany, and Luxembourg are generally
open for banking business.
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"Loan Agreement" means the loan agreement entered into on
___________2002, as mentioned in Paragraph B of the
Recital.
"Security Transfer Agreement"
means the agreement, entered into by the Offerer
and the Securities Manager on ____________ 2002, by
whichthe Offerer transfers to the Securities Manager
as security for the Banks' claims arising from the
Loan Agreement the Degussa shares which the Offerer
acquires using the loan funds.
"Realization Event" refers to the time at which the Banks, in accordance
with the Security Transfer Agreement, become
entitled to realize the Collateral Shares held by the
Securities Manager.
2. PUT-OPTION GRANTED TO SECURITIES MANAGER
2.1. Offer. E.ON hereby grants to the Securities Manager a put option,
pursuant to which E.ON makes the Securities Manager an unconditional
and irrevocable offer to buy from the Securities Manager on the terms
and conditions set out below all the Degussa shares that the Securities
Manager holds as security as at the time when the Banks become entitled
to realize them (the "COLLATERAL SHARES"), in accordance with the
Security Transfer Agreement and clause 10.2.7 of the Loan Agreement:
(a) Exercise period. If the Securities Manager wishes to exercise
this option and accept E.ON's offer, then it can only do so
within three months following the Realization Event.
(b) Purchase price. The price payable for each Collateral Share
shall be calculated in accordance with clause 10.2.3 or clause
10.2.4. of the Loan Agreement.
(c) Exercise. Acceptance of the offer is via written notice issued
by the Securities Manager to E.ON. Acceptance can be given
only in respect of
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all of the Collateral Shares. If, however, the purchase
price for the Collateral Shares as calculated in accordance
with paragraph (b) above exceeds the value of the debts
owed to the Banks as at the time of the Realization Event,
then E.ON can require that the Banks accept the offer
only to the extent that the purchase price is
equal to the debts owed to the Banks.
(d) Settlement. E.ON shall pay the purchase price within five bank
working days following receipt of the Security Manager's
notice of acceptance. The Securities Manager shall transfer
the Collateral Shares to E.ON as and when E.ON pays the
purchase price (delivery-versus-payment settlement).
(e) Dividends, etc. All such dividend rights and other rights
(including subscription rights) attaching to the
Collateral Shares that have not yet been extinguished by the
time the purchase price is paid shall pass to E.ON.
2.2. E.ON may appoint a third party to make an offer to the Securities
Manager on the same terms and conditions. If the Securities Manager
accepts this offer, then E.ON shall guarantee that the third party will
perform its obligations under the resulting contract of sale.
3. SPECIAL DUTIES IMPOSED ON THE BANKS AND THE SECURITIES MANAGER
3.1. Once the tender offer has been completed, the Banks must, if requested
by E.ON, call the loan if a reason for calling the loan, as
defined in clause 14.1 of the Loan Agreement, exists. If requested by
E.ON, the Banks shall send to BG the demands and payment requests
provided for by clause 14.1 of the Loan Agreement. The Agent shall, in
accordance with clause 18.7 of the Loan Agreement, notify E.ON if there
is reason to call the loan.
3.2. E.ON shall indemnify the Banks and the Securities Manager against all
claims for damages issued by BG as a result of the loan having been
called at E.ON's
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request and in accordance with E.ON's instructions. BG will then be
able to enforce these claims directly against E.ON (Section 328(1) of
the German Civil Code (BGB)).
3.3. The Banks and the Securities Manager may make amendments to the
Security Transfer Agreement and clauses 1.1.3 (Conditions for
disbursement of loan funds), 7 (Term), 8.2 (Mandatory unscheduled
payments), 10.2 (Duty to provide balance amount), 14 (Termination), and
18.7 of the Loan Agreement only with E.ON's consent.
3.4. The Banks and the Securities Manager may release Collateral Shares to
the Offerer only if they are required to do so by the Security Transfer
Agreement or if they have obtained E.ON's prior consent to the release.
4. E.ON'S RIGHT OF FIRST REFUSAL
If the Securities Manager does not accept the offer defined in clause 2
hereof and proceeds to sell the Collateral Shares to one or more third
parties, then E.ON has a right of first refusal on each contract of
sale pursuant to Sections 463 ff. of the German Civil Code (BGB).
5. E.ON'S CALL OPTION
5.1. The Banks hereby grant to E.ON a call option, pursuant to which they
make E.ON an offer to transfer to E.ON all their rights and obligations
under the Loan Agreement and the Security Contracts against payment
by E.ON to the Agent of a purchase price equal to the total of all
outstanding debts owed at that time to the Banks on the basis of the
Loan Agreement, irrespective of their due date.
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5.2. E.ON may accept this offer at any time by giving the Securities Manager
at least five bank working days' notice in writing, effective at the
end of a loan interest period.
6. DUTIES TO PROVIDE INFORMATION AND OTHER OBLIGATIONS
6.1. On the sixth bank working day of each month the Securities Manager
shall provide E.ON with a statement of the balance of the Pledged
Account, including a calculation of the amount.
6.2. E.ON shall furnish the Securities Manager with copies of its published
annual reports, quarterly reports and annual financial statements as
soon as these are available.
6.3. E.ON shall provide the bank with an extract from its register of
authorized signatories before tranche A under the Loan Agreement is
drawn.
7. COSTS
E.ON shall pay any costs associated with this offer and its acceptance
plus any asset-transfer taxes.
8. TRANSFERS OF THE BANKS' RIGHTS AND OBLIGATIONS
The Banks may transfer to a third party their rights and obligations
under the Loan Agreement and the Security Transfer Agreement only if
said third party at the same time also assumes the transferring bank's
rights and obligations under this Option Contract by written
declaration to E.ON. All parties to this Option Contract apart from the
Securities Manager hereby authorize the Securities Manager to consent
on their behalf to this transfer and assumption of contractual
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rights and obligations. To this end, the Securities Manager is exempt
from the restrictions imposed by Section 181 of the German Civil Code
(BGB).
9. NOTIFICATIONS
All notifications relating to this Option Contract shall be in writing.
To this end, the Banks hereby appoint the Securities Manager as their
common authorized receiving agent. Notifications must be delivered in
person, or sent via mail or fax either to the addresses listed below or
to such alternative addresses as the Parties subsequently indicate by
written notice:
E.ON: - Rechtsbereich -
E.ON-Platz 1
40479 Dusseldorf, Germany
Fax: +49-211-[45 79 588]
The Securities Manager: Deutsche Bank Luxembourg S.A. - International
Loans and Agency Services -
2, Boulevard Konrad Adenauer
L-1115 Luxembourg
Fax: +352-4 21 22-287
10. FINAL PROVISIONS
10.1. If any provision of this Option Contract should be or become invalid or
unenforceable, then it shall be severed and the remaining provisions
shall remain valid and enforceable. The parties shall cure any invalid
or unenforceable provision by substituting in its place a valid and
enforceable provision which as nearly as possible approximates the
spirit and intent underlying the invalid or unenforceable provision.
The same shall apply mutatis mutandis in respect of gaps in this Option
Contract.
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10.2. Any amendments or additions to this Option Contract--including
amendments and changes to this clause--must be in writing
10.3. This Option Contract is governed by the laws of the Federal Republic of
Germany. The non-exclusive legal venue is Dusseldorf, Germany.
For E.ON AG:
Done at_____________, on this day________________ 2002
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(Name)
For DEUTSCHE BANK LUXEMBOURG S.A.:
Done at_____________, on this day________________ 2002
- -------------------------------------
(Name)
For MORGAN STANLEY SENIOR FUNDING, INC.:
Done at_____________, on this day________________ 2002
- -------------------------------------
(Name)
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