EXHIBIT 4.9
Unofficial English Translation of:
Framework Agreement
This agreement was concluded on July 1, 2002 between ESSO Deutschland GmbH
("EDG"), Deutsche Shell GmbH ("DSG") and E.ON AG ("E.ON"). EDG, DSGH and E.ON
are hereinafter each referred to individually as a "Party", and collectively as
"the Parties".
(a) EDG and DSG are the shareholders of BEB Erdgas und Erdol GmbH ("BEB"),
which holds shares in Ruhrgas AG ("RG").
(b) BEB holds a stake in Schubert KG, which in turn holds shares in RG.
(c) E.ON has informed EDG and DSG of its interest in purchasing the RG
shares owned by BEB, and in the RG shares which are attributable to BEB
but owned by Schubert KG (hereinafter collectively referred to as "the
RG shares").
(d) EDG is not prepared to accept the sale or transfer of the RG shares by
EDG, BEB or Schubert KG to E.ON.
(e) EDG will agree to a transfer of the RG shares to DSG by way of an
agreement to be reached between EDG and DSG, to enable DSG to sell the
RG shares in accordance with the above-mentioned interest in their
purchase, subject to appropriate safeguarding of EDG's interests with
respect to BEB.
(f) EDG further wishes ensure that there will be no detrimental impact on
its rights and the rights of its affiliated companies (including BEB)
with respect to current commercial relationships and agreements with
RG.
(g) EDG will continue to cooperate with DSG to ensure that DSG is able to
complete such sale of the RG shares.
(h) EDG, DSG and E.ON have agreed to set down the necessary and appropriate
measures required for performance of the above-mentioned transaction in
this agreement.
NOW THEREFORE, IN CONSIDERATION OF THE ABOVE, THE PARTIES HEREBY AGREE AS
FOLLOWS:
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1. DSG is free to sell the RG shares to E.ON according to the terms and
conditions set down in the share purchase agreement ("Share Purchase
Agreement") attached to the present agreement as SCHEDULE A. However,
in order to safeguard the interests of EDG as described in the Preamble
under letter (e) and letter (f), E.ON and DSG undertake not to make any
significant changes to the Share Purchase Agreement or enter into any
other significant agreements regarding the sale of the RG shares to
E.ON or a third party designated by E.ON without prior consent in
writing from EDG.
2. So that the transfer of RG shares from DSG to E.ON can take place,
(a) EDG shall allow the transfer of the RG shares to DSG prior to
the transfer of the RG shares to E.ON or any other
shareholders exercising their first option and pre-emptive
rights for the RG shares, and shall cooperate to the best of
its ability in implementing such transfer;
(b) EDG shall use its best efforts to ensure that Schubert KG
waives the first option rights set down in the Investor Rights
Agreements of January 9, 1966 and March 28, 1968 between the
RG shareholders and RG (hereinafter referred to as the
"Investor Rights Agreements") and that it approves the
transfer of the RG shares in the General Meeting of
Shareholders of RG;
(c) the Parties shall use their best efforts to ensure that the
transfer of all the shares pursuant to Schedule A of the Share
Purchase Agreement, the Schubert Agreement referred to in
Section 4 par. 1 of the Share Purchase Agreement and, if
applicable, acquisition under first option rights are all put
to a vote at the same time in the General Meeting of
Shareholders of Ruhrgas AG;
d) EDG and DSG undertake, each on condition of assurance that
the performance of the Share Purchase Agreement by E.ON and
DSG will be able to proceed, to exert their influence under
company law, and within the possibilities legally available to
them, to ensure that the parties with voting rights on the
basis of the RG shares sold pursuant to Section 1 par. 1 of
the Share Purchase Agreement give their approval at general
meetings of shareholders of RG for all other intended sales of
RG shares to E.ON by other RG shareholders. The extent of the
obligation incumbent on EDG and DSG under the present
agreement shall in no circumstances exceed the extent of the
obligation incumbent on DSG under the Share Purchase
Agreement;
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(e) EDG and DSG undertake to guarantee in the case of BEB, and
each to use their best efforts in the case of Schubert KG, to
ensure that BEB and Schubert KG each gives its approval to a
transfer of the RG shares held by Heinrich Industrie AG
(based in Essen, Germany) to E.ON. Each company also hereby
waives its first option and pre-emptive rights with respect
to those shares;
(f) to the extent that EDG has undertaken under this Clause 2 to
"use its best efforts", this does not denote any obligation to
make any financial or other business concessions.
3. (a) If E.ON does not succeed in obtaining antitrust approval for
the acquisition by E.ON of a majority of all shares issued by
Ruhrgas AG by means of the applications referred to in Clause
3 letter (c), in particular the procedure currently pending
before the Federal Minister for the Economy and Technology
referred to in that paragraph, DSG and E.ON shall immediately
jointly state whether and by what means, under the de facto
and de jure conditions then prevailing, E.ON's merger project
for the acquisition of a majority of all shares issued by
Ruhrgas AG, which includes the Share Purchase Agreement and
the Schubert Agreement referred to in Section 4 par. 1 of the
Share Purchase Agreement, can be realized. That may involve
changes to the prerequisites for performance of the Share
Purchase Agreement.
(b) Immediately after receipt of a ministerial approval for the
merger project referred to in Clause 3 letter (c), E.ON shall
approach the Federal Cartel Office, using language according
to the draft letter provided as SCHEDULE B (with carbon copy
to the Merger Task Force of the EU Commission), requesting
written confirmation that following performance of the
indirect acquisition of a majority stake in Ruhrgas AG via the
acquisition of majority stakes in Bergemann GmbH and
Gelsenberg AG (Acquisition of Control), the acquisition of the
RG shares will not constitute a merger situation subject to
application for approval. In the event that the Federal Cartel
Office or the EU Commission takes the view that the
acquisition of RG shares envisaged in the Share Purchase
Agreement and the acquisition of RG shares envisaged in the
Schubert Agreement referred to in Section 4 par. 1 of the
Share Purchase Agreement will constitute another merger
situation subject to application for approval under antitrust
provisions, DSG and E.ON shall forward an application to the
Federal Cartel Office or the EU Commission seeking such
approval, and shall support the application to the best of
their ability. The Parties are not obliged to accept any
commitments given to, or requirements and conditions imposed
by, the Federal Cartel Office or the EU Commission, or to
cooperate in their practical implementation. This also applies
with respect to agreements not specifically referred to in
Clause 3 letter (e).
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If the Federal Cartel Office does issue a letter of caution in
relation to the merger project referred to in this paragraph
(b), immediately upon receiving the document the Parties shall
engage in frank and constructive discussions with a view to
referring the project described in the application, in the
event of a rejection, to the Federal Minister for the Economy
and Technology for approval. The interests of both Parties
shall be given reasonable consideration in the discussions,
but the decision on such referral shall ultimately be at the
sole discretion of E.ON.
(c) At the time of the signing of the Share Purchase Agreement, a
procedure is already pending before the Federal Cartel Office
and the Federal Minister for the Economy and Technology ("the
Minister"; the Minister and the Federal Cartel Office are
hereinafter collectively referred to as "the Antitrust
Authorities") (Gelsenberg application of August 15, 2001 and
petition for ministerial approval of February 18, 2002;
Bergemann application of November 9, 2001 and petition for
ministerial approval of March 5, 2002), in which E.ON is
seeking antitrust approval for the acquisition of majority
stakes in Bergemann GmbH and Gelsenberg AG (indirect
acquisition of a majority stake in Ruhrgas AG).
(d) E.ON shall immediately inform EDG in writing of the details of
the procedure initiated pursuant to Clause 3 letter (a) or
letter (b) of this agreement, especially where the interests
of EDG or its affiliated businesses may be involved, and EDG
is not aware of this information by virtue of itself being a
party in the procedure. The same applies to EDG.
(e) In the event of conditions or requirements being imposed on
E.ON in one of the procedures referred to in Clause 3, letters
(a) to (c) involving direct intervention in the natural gas
supply contracts between BEB - alone or with others - and
Ruhrgas AG, E.ON is obliged to notify EDG immediately of this
situation. EDG shall be entitled to withdraw from the present
agreement by notification in writing within 30 business days
of being notified by E.ON in writing of the imposition of the
said conditions. An intervention in this sense is deemed to
have occurred, for example, if changes are made in the
contract, if contractual rights are exercised, or if any legal
leeway as might exist is used. Impacts on the said contracts
that are merely of an indirect nature, e.g. as a result of
structure-related commitments (including in the context of the
Association Agreement) are not covered by this provision. If
EDG does not exercise its right of withdrawal, this shall not
be construed as agreement by EDG to the condition or
requirement so imposed, and it shall not be obliged to
cooperate in the practical implementation of the condition or
requirement following performance of the agreement.
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In the event of such withdrawal, E.ON and EDG undertake to
proceed immediately to withdraw the application regarding the
merger project under this agreement (including any application
for the granting of ministerial approval).
(f) In any procedure pursuant to Clause 3 letter (a) or letter
(b), E.ON undertakes not to propose or accept any commitments
to or conditions imposed by the Antitrust Authorities
regarding the stakes in RG without prior consultation with DEG
and EDG. E.ON shall further be obliged, in the event of any
intention on its part or by the Antitrust Authorities to
suggest or propose conditions or requirements in a procedure
pursuant to Clause 3 letter (a) or letter (b) involving a
direct intervention as described in Clause 3 letter (e) in the
commercial gas contracts referred to in that paragraph, to
notify EDG immediately on each occasion by way of a detailed
report.
(g) Without prejudice to the obligations incumbent on E.ON and DSG
under the Share Purchase Agreement, the Parties each undertake
to treat all information specifically marked as confidential
received from the other party regarding the status and content
of negotiations with the Antitrust Authorities in connection
with the antitrust procedures pursuant to Clause 3 letter (c)
above as "confidential information" as defined in and
according to the provisions of the Confidentiality Agreement
in place between the Parties, attached as Schedule C, with the
proviso that the Confidentiality Agreement shall continue to
apply to this extent following the signing of this agreement.
4. (a) EDG and DSG give a guarantee to E.ON, in the form of an
independent guarantee undertaking, that as of the transfer of
the RG shares to DSG, (i) the RG shares will be owned by BEB
or a 100% subsidiary company of BEB; (ii) BEB or a 100%
subsidiary company of BEB has been authorized to transfer the
RG shares to DSG; and (iii) the RG shares are not encumbered
with any third-party rights other than those under the
Bylaws of RG and the Investor Rights Agreements.
(b) No further guarantees are given by EDG and DSG (in the case of
DSG without prejudice to Section 5 of the Share Purchase
Agreement); without prejudice to the foregoing provisions, any
warranty claims by E.ON against EDG and/or DSG are precluded
to the extent permitted by law.
(c) E.ON hereby accepts that, without prejudice to Section 5 of
the Share Purchase Agreement, any claims invoked by E.ON
against DSG and/or EDG under this
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agreement will be combined with any claims invoked by E.ON
against DSG under the Share Purchase Agreement, and the joint
liability of EDG and DSG under this agreement, irrespective of
the legal reason, may not exceed the amount specified in
Section 5 of the Share Purchase Agreement.
(d) Any amounts paid to E.ON as a result of claims invoked by E.ON
with respect to a breach of the warranties under Clause 4
letter (a) above (the "Share Purchase Agreement Warranties")
shall be borne in equal proportions by EDG and DSG; if the
breach relates solely to an action or omission by EDG or DSG,
the party in question shall be liable for the amount
concerned. The same apportionment of liability between DSG and
EDG as described in the preceding sentence of this letter (d)
shall apply in the eventuality of E.ON successfully invoking
claims against DSG with respect to a breach of the warranties
pursuant to Section 5 of the Share Purchase Agreement (the
"Share Purchase Agreement Warranties"), if E.ON would be
entitled on the basis of such breach of the Share Purchase
Agreement Warranties to invoke claims against DSG and EDG for
a breach of the Share Purchase Agreement Warranties.
5. If E.ON acquires a direct or indirect majority stake for the purposes
of Section 15 of the German Stock Corporation Law [AktG.] in RG or
secures control of a direct or indirect majority stake in RG, but the
acquisition of the RG shares by E.ON under the Share Purchase Agreement
cannot be performed, the Parties shall enter into negotiations on an
appropriate arrangement for their future cooperation as direct or
indirect shareholders in RG, including a discussion of the current
first option and pre-emptive rights and the requirements for approval
from the General Meeting of Shareholders of RG for the transfer of
Ruhrgas shares.
6. To the extent permitted by law, EDG shall ensure that representatives
of BEB and its shareholders holding office in executive bodies of RG,
and in particular the Supervisory Board, will immediately submit the
statements required for resignation from those positions following the
performance of the transfer of the RG shares to DSG.
7. E.ON undertakes to EDG to use its best efforts to ensure that the
General Meeting of Shareholders of RG does not pass any resolutions on
an increase of the capital stock of the company prior to the
performance of the Share Purchase Agreement or a withdrawal from the
Share Purchase Agreement.
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8. Without prejudice to the rights of withdrawal pursuant to Clause 3
letter (e) of this agreement, either of the Parties may withdraw from
this agreement:
(a) if the Federal Minister for the Economy and Technology has
denied approval for any or all of the merger projects pursuant
to Clause 3 letter (c) above, and (i) one or several of the
Parties, or all the Parties, regard continuance with the
merger project for the acquisition by E.ON of a majority stake
in Ruhrgas AG pursuant to Clause 3 letter (a) as no longer
offering sufficient prospects of success, or (ii) the
competent Antitrust Authorities (including the ED Commission)
have denied approval for such a merger project and the
deadline for submission of any appeals has expired or such
appeals have been unsuccessful;
(b) if (i) permission has been granted for all merger projects
pursuant to Clause 3 letter (c) and (ii) the merger projects
pursuant to Clause 3 letter (a) and letter (b) have been
prohibited by the Federal Cartel Office or the EU Commission
and the deadlines for applying for ministerial approval have
expired without any petition having been lodged, or in the
case of (ii) if the Federal Minister for the Economy and
Technology has denied a petition for ministerial approval;
(c) if the enforceability of an approval for merger projects
pursuant to Clause 3 letter (a) and - if an application has
been lodged - Clause 3 letter (b) has been suspended and is
not reinstated within two months, and in any event by
September 16, 2003 at the latest;
(d) in any event, if all the prerequisite conditions for
performance of the Share Purchase Agreement have not been met
by September 16, 2003.
In the event of the withdrawal of one of the Parties, irrespective of
the legal reason, any obligation on the part of the Vendor for the
practical implementation of commitments given and/or conditions imposed
in connection with the procedures pursuant to Clause 3 letter (a) to
letter (c) above or their cooperation with their practical
implementation shall cease to apply.
Any withdrawal under this agreement must be in written form.
The cancellation of the Share Purchase Agreement shall automatically
lead to the termination of the present agreement.
The Parties agree that Clause 3 letters (e) and (g), Clause 5 and
Clauses 8 to 19 of this agreement shall continue to apply following
termination.
9. (a) Immediately after the signing of this agreement and the
signing of the Share Purchase Agreement, whichever date is
later,
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the Parties shall issue releases for the press and the stock
exchanges using the language of the drafts provided here as
SCHEDULE D. The Parties have agreed on the catalog of
questions and answers attached as SCHEDULE E, which any of the
Parties may use at any time with reference to the provisions
of this agreement.
(b) Prior to performance of the transactions envisaged in the
Share Purchase Agreement, and for a period of 24 months
thereafter, each of the Parties may only provide answers that
are consistent with SCHEDULE E, and may only issue releases
that are consistent with SCHEDULE D, or that have been agreed
on in advance in writing between the Parties. The contents of
this agreement and all other agreements reached in connection
with this document, all details of the structure of the
transactions required and envisaged regarding the RG shares to
be sold pursuant to Share Purchase Agreement, and all details
of the individual steps in the performance of that agreement
shall be barred from public release, even after expiry of the
abovementioned period.
(c) The Parties shall agree on the releases to be issued on the
performance of this agreement.
(d) Unless otherwise explicitly permitted hereinabove, each of the
Parties agrees to keep the contents of this agreement and all
agreements reached in connection thereto confidential
vis-a-vis third parties.
(e) Exceptions to the above-mentioned confidentiality provisions
apply in the case of obligations to notify Courts or public
authorities on the basis of legal provisions or applicable
stock exchange rules.
10. E.ON is entitled to designate a company in the E.ON group as acquiring
party in its stead or for a portion of the RG shares to be acquired,
provided that the company in question declares its unconditional
willingness to join this agreement and the Share Purchase Agreement,
and accepts the obligations pursuant to the Investor Rights Agreements,
and provided that E.ON accepts joint and several liability for all
obligations of the acquiring party so designated.
11. The rights and obligations under this agreement may be transferred to
third parties only with prior agreement in writing from the respective
other Parties. The other Parties may however deny consent for such a
transfer only for good cause in the case of transfer to an affiliated
company, provided that the transferor party accepts joint and several
liability with the transferee affiliated company, particularly where
they would be exposed to tax risks as a result.
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12. The following are regarded as affiliated companies:
(a) in the case of DSG, N.V. Koninklijke Nederlandse Petroleum
Maatschappij (a company organized under Netherlands law), The
Shell Transport and Trading Company p.l.c. (a company
organized under English law), and any other company
(irrespective of its place of registration) which at the time
has direct or indirect capital relationships with one or both
of the above companies. For the purposes of this paragraph:
(i) a company has a direct capital relationship with
another company or companies if such company or
companies are beneficial owners of shares in the
first company, representing 50% or more of the voting
rights in its General Meeting of Shareholders. A
company has an indirect capital relationship with
another company or companies ("parent company" or
"parent companies") if there is a chain of companies
beginning with the parent company / parent companies
and ending with the company in question, so that each
of the companies apart from the parent company /
parent companies has a direct capital relationship
with one or more companies in the chain as defined
above.
(ii) Affiliated companies of DSG for the purposes of this
agreement also include BEB and all companies with
capital relationships with BEB and/or DSG, if the
direct or indirect capital link is at least 50%, and
companies affiliated with them pursuant to Sections
15 ff. of the German Stock Corporation Law [AktG].
(b) in the case of EDG, ExxonMobil Corporation and any other
company in which ExxonMobil Corporation holds or controls,
directly or indirectly (i.e., via a capital link with a chain
of companies beginning with ExxonMobil Corporation as parent
company and ending with the company in question), 50% or more
of the shares giving voting rights, or other form of stake in
the equity capital associated with voting rights in the
General Meeting of Shareholders of the company in question.
(c) in the case of E.ON, each affiliated company of E.ON for the
purposes of Sections 15 ff. of the German Stock Corporation
Law [AktG]. RG shares controlled by E.ON are those shares for
which E.ON and/or its affiliated companies control the
exercise of voting rights on the basis of voting agreements or
similar agreements.
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13. This agreement is subject to the law of the Federal Republic of
Germany.
14. Any changes or additions to this agreement, including this clause,
shall be valid only if made in writing, unless notarial authentication
has been stipulated.
15. Any disputes arising in connection with this agreement or its validity
shall be finally resolved in accordance with the Arbitration Tribunal
Rules of the German Arbitration Institute (DIS), with exclusion of
legal actions before the ordinary Courts. The arbitration venue is
Frankfurt am Main. The arbitration proceedings shall be conducted in
German.
The inclusion of the Parties to this agreement in an arbitration
procedure pursuant to the Share Purchase Agreement, by joining the
procedure or by way of third party notification of dispute or providing
assistance to one of the parties in the procedure, is permitted. The
effect of a third party notification of dispute or provision of
assistance shall be as set down in Section 74 par. 3 and Section 68 of
the German Code of Civil Procedure [ZPO].
16. If any provisions of this agreement are or become fully or partly
legally invalid or unenforceable, this shall not affect the validity of
the other provisions of this agreement. The same applies if a gap is
found in this agreement. Instead of the invalid or unenforceable
provision, or to fill the gap, a reasonable arrangement shall be deemed
to apply which to the extent legally possible is the closest
approximation to what the Parties intended or according to the purpose
and general tenor of this agreement would have intended if they had
given consideration to the point in question at the time of concluding
this agreement or subsequently incorporating an addition provision.
This also applies if the invalidity of a provision is based, for
example, on a scope of performance or a time (period or deadline)
specified in this agreement; in such cases the agreed provision shall
be replaced with a legal scope of performance or time (period or
deadline) which is the closest approximation to the original intention.
17. This agreement contains all the understandings reached between the
three Parties regarding the subject-matter of this Framework Agreement,
and replaces any prior agreements between the Parties, whether verbal
or in writing, explicit or tacit, on the subject-matter of this
agreement.
18. Failure to invoke or a delay in invoking a right or claim flowing from
or based on this agreement or connected with this agreement does not
denote a waiver of the said right or claim or other rights or claims.
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Nor shall the invocation or partial invocation of a right or claim
arising from this agreement or connected therewith impede the
subsequent invocation of the said right or claim or other rights or
claims.
19. Business days for the purposes of this agreement are all banking days
in Frankfurt am Main, Germany.
Dusseldorf, July 1, 2002
ESSO Deutschland GmbH
Deutsche Shell GmbH
E.ON AG