Exhibit 4.3
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SHARE PURCHASE AGREEMENT
BETWEEN
CESKA KONSOLIDACNI AGENTURA
AS SELLER
AND
CEZ, a.s.
AS PURCHASER
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DATED JULY 22, 2002
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This Share Purchase Agreement (this "Agreement") is made on July 22, 2002
pursuant to the provisions of Sections 409 et seq. of Act No. 513/1991 Coll.,
the Commercial Code, as amended (the "Commercial Code") and the provisions of
Sections 13 et seq. of Act No. 591/1992 Coll., the Securities Act, as amended
(the "Securities Act"),
between
CEZ, a.s.
having its registered office at Duhova 2/1444, 140 53 Prague 4, Identification
No.: 45274649 registered in the Commercial Register administered by the Prague
Municipal Court, Section 8, File 1581
acting through: Ing. Jaroslav Mil, M.B.A.
Chairman of the Board of Directors
and
JUDr. Ivan Cestr
Director
(the "Purchaser")
Ceska konsolidacni agentura
having its registered office in Prague 7, Janovskeho 438/2, Postal Code: 170 06,
Identification No.: 70109966
registered in the Commercial Register administered by the Prague Municipal
Court, Section A, File 45993
acting through: Ing. Pavel Rezabek
Chairman of the Board of Directors and CEO
and
Ing. Libor Svoboda
Director and Senior Executive Officer
(the "Seller")
W I T N E S S E T H
WHEREAS, the Seller owns 31,754 book-entry registered shares of
Zapadoceska energetika, a.s., Guldenerova 19, 303 28 Plzen, Identification No.:
49790432 (the "Company"), having a nominal value of CZK 1,000 per share, SIN:
770950000818 (the "Sale Shares"), representing approximately 1.98% of the
Company registered capital; and
WHEREAS, in connection with its decision to privatize shares in the
regional distribution companies by direct sale to the Purchaser as the
predetermined transferee, made in Resolution No. 477 dated May 6, 2002 and
Resolution No. 628 dated June 12, 2002 (collectively, the "Resolution), the
Czech Republic government granted in the Resolution its consent, pursuant to
Section 28 (3) and Section 55 (4) of Act No. 219/2000 Coll., on the Property of
the Czech Republic and the Action of the Czech Republic in Legal Relationships,
as amended, and Section 13 (6) of Act No. 239/2001 Coll., on the Czech
Consolidation Agency and Amendments to Certain Acts, to the sale of the Sale
Shares to the Purchaser on the terms and subject to the conditions specified
herein;
NOW, THEREFORE, the Purchaser and the Seller have agreed as follows.
ARTICLE I
SUBJECT OF AGREEMENT
On the terms and subject to the conditions specified herein, the Seller agrees
to transfer the Sale Shares and title thereto to the Purchaser for consideration
and the Purchaser agrees to pay the Purchase Price for the Sale Shares to the
Seller in the manner described in Article III hereof.
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ARTICLE II
PURCHASE PRICE
The Purchase Price for all of the Sale Shares (the "Purchase Price") has been
determined in accordance with the purchase price set by the Resolution and
amounts to CZK 196,290,000 (one hundred ninety-six million two hundred and
ninety thousand Czech crowns), i.e., CZK 6,181.583422 per Sale Share.
ARTICLE III
SETTLEMENT OF THE TRANSFER OF THE SALE SHARES
AND PURCHASE PRICE PAYMENT
3.1 Settlement of the Transfer of the Sale Shares. The transfer of the Sale
Shares by the Seller to the Purchaser and the payment of the Purchase Price by
the Purchaser to the Seller (the "Closing") shall be made in the manner
described below in this Section 3.1:
(a) The settlement of the transfer of the Sale Shares from the Seller to
the Purchaser shall be arranged, in accordance with the Settlement
Orders, by the universal settlement center UNIVYC, a.s., having its
registered office at Rybna 14, Prague 1, Identification No.: 25081489
("UNIVYC") on the Share Settlement Date. UNIVYC shall settle the
transfer of the Sale Shares in accordance with its rules governing the
settlement of off-exchange securities transactions, unless the
Settlement Orders expressly provide otherwise.
(b) The Seller agrees to enter the Seller Settlement Order in the
settlement system of UNIVYC no later than 12:00 noon on the Business
Day immediately preceding the Share Settlement Date.
(c) The Purchaser agrees to enter the Purchaser Settlement Order in the
settlement system of UNIVYC, through the Purchaser's Securities
Dealer, no later than 12:00 noon on the Business Day immediately
preceding the Share Settlement Date.
(d) The Purchase shall ensure that an amount denominated in Czech crowns
equal to the Purchase Price, i.e., CZK 196,290,000, and the sum of the
fees charged by UNIVYC and the Securities Dealer in connection with
the Closing are deposited in account No. 71 504-011/0100 maintained
with Komercni banka, a.s. no later than 12:00 (noon) of the Business
Day immediately preceding the Share Settlement Date so that UNIVYC is
able to execute the Settlement Orders.
(e) The Securities Dealer shall act on behalf of the Purchaser vis-a-vis
UNIVYC and shall, without limitation, enter the appropriate Settlement
Order in the settlement system maintained by UNIVYC. The obligations
of the Purchaser hereunder and the Purchaser's liability for any
breach thereof shall not be affected in any respect by any act or
omission of the Securities Dealers.
3.2 Alternative Settlement Method. Should it be impossible, for any reason, to
use the settlement system of UNIVYC to effect the transfer of the Sale Shares
from the Seller to the Purchaser and the payment of the Purchase Price by the
Purchaser to the Seller, the Parties shall take action and cooperate in good
faith to effect the transfer of the Sale Shares from the Seller to the Purchaser
and the payment of the Purchase Price by the Purchaser to the Seller by
alternative means such that will satisfy the requirement for the transfer of the
Sale Shares against the payment of the Purchase Price.
ARTICLE IV
REPRESENTATIONS OF THE SELLER
The Seller hereby represents that all of the facts set forth in Sections 4.1
through 4.5 hereof are true and correct as of the date hereof and warrants that
the facts set forth in Sections 4.1 through 4.5 hereof shall be true and correct
as of the transfer date of the Sale Shares to the Purchaser.
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4.1 Organization of the Seller. The Seller is a legal entity duly and validly
established under Act No. 239/20011 Coll., on the Czech Consolidation Agency and
Amendments to Certain Acts, and under other laws and regulations of the Czech
Republic.
4.2 Authorization of Agreement. The Seller has all requisite corporate power,
authority and legal capacity to execute and deliver this Agreement and perform
its obligations hereunder. This Agreement has been duly and validly authorized
and executed and delivered by the Seller and constitutes the legal, valid and
binding obligations of the Seller in accordance with applicable law. The
Seller's obligations hereunder are enforceable against the Seller in accordance
with the terms of this Agreement.
4.3 No Violation. Neither the execution and delivery by the Seller of this
Agreement nor the performance by the Seller of any of its obligations hereunder
will violate any organizational or similar document of the Seller, or any
contractual or other obligation of the Seller, or any judgment or administrative
order by which the Seller is bound or which is applicable to the Seller's assets
or any part thereof or to which the Seller's assets are subject, or any law or
regulation applicable to the Seller.
4.4 Consents of Third Parties. Except for the consent of the Czech Republic
government to the sale of the Sale Shares, which was granted in the Resolution,
and for Antitrust State Aid Decision 2 under the State Aid Act, no consent,
waiver, approval, permit or authorization of, or declaration or filing with, or
notification to, any person is required on the part of the Seller in connection
with the execution and delivery of this Agreement, or the performance by the
Seller of any of its obligations hereunder.
4.5 Seller's Ownership of the Sale Shares. The Seller is the exclusive owner of
each of the Sale Shares, free and clear of any and all Third Party Rights.
4.6 Damages. In the event of a breach by the Seller of any of the
representations of the Seller contained in this Article IV (the "Seller's
Representations") or of any of its agreements, covenants or undertakings
contained in this Agreement (the "Seller's Covenants"), the Seller shall be
obligated to pay to the Purchaser compensation for damage incurred by the
Purchaser as a result of or in connection with such breach of the Seller's
Representations or the Seller's Covenants.
ARTICLE V
REPRESENTATIONS OF THE PURCHASER
The Purchaser hereby represents that all of the facts set forth in Sections 5.1
through 5.5 hereof are true and correct as of the date hereof and warrants that
such facts shall be true and correct as of the transfer date of the Sale Shares
to the Purchaser.
5.1 Organization of the Purchaser. The Purchaser is a joint-stock company duly
organized and existing under the laws of the Czech Republic.
5.2 Authorization of Agreement. The Purchaser has all requisite corporate power,
authority and legal capacity to execute and deliver this Agreement and perform
its obligations hereunder. This Agreement has been duly and validly authorized
and executed and delivered by the Purchaser and constitutes the legal, valid and
binding obligations of the Purchaser in accordance with applicable law. The
Purchaser's obligations hereunder are enforceable against the Purchaser in
accordance with the terms of this Agreement.
5.3 No Violation. Neither the execution and delivery by the Purchaser of this
Agreement nor the performance by the Purchaser of any of its obligations
hereunder will violate any organizational or similar document of the Purchaser,
or any contractual or other obligation of the Purchaser, or any judgment or
administrative order by which the Purchaser is bound or to which the Purchaser's
assets or any part thereof are subject, or any law or regulation applicable to
the Purchaser.
5.4 Consents of Third Parties. No consent, waiver, approval, permit or
authorization of, or declaration or filing with, or notification to, any person
is required on the part of the Purchaser in connection with the execution and
delivery of this Agreement, or the performance by the Purchaser of any of its
obligations hereunder.
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5.5 Selected Finance Documents. In relation to the Selected Finance Documents,
the Purchaser shall, within nine (9) months of the execution of the REAS Share
Purchase Agreement, (i) obtain documents from the relevant banks, pursuant to
which the banks shall waive or otherwise forfeit the rights they would have by
virtue of a breach by the Purchaser of the Selected Affirmative Covenant or (ii)
release itself, whether by prepayment of the obligations resulting from or
related to the Selected Finance Documents or otherwise, from the obligations
arising out of the Selected Finance Documents or the Selected Affirmative
Covenant. The Purchaser shall inform the Seller in writing of compliance or
non-compliance with this obligation within the same time limit.
5.6 Damages. In the event of a breach by the Purchaser of any of the
representations of the Purchaser contained in this Article V (the "Purchaser's
Representations") or of any of its agreements, covenants or undertakings
contained in this Agreement (the "Purchaser's Covenants"), the Purchaser shall
be obligated to pay to the Seller compensation for damage incurred by the Seller
as a result of or in connection with such breach of the Purchaser's
Representations or the Purchaser's Covenants.
ARTICLE VI
JOINT COVENANTS OF THE PARTIES
6.1 Antitrust State Aid Decision 2
(a) Antitrust State Aid Decision 2 means the decision of the Antitrust Office,
pursuant to which the Antitrust Office terminates the procedure in respect
of the approval of an exemption from the prohibition of State aid, which
the sale of the Sale Shares by the Seller to the Purchaser hereunder might
be considered to be, because it has found that no State aid is involved in
the sale of the Sale Shares by the Seller to the Purchaser. Antitrust State
Aid Decision 2 shall also mean the decision of the Antitrust Office,
pursuant to which the Antitrust Office approves an exemption from the
prohibition of State aid.
(b) The Seller agrees to use its reasonable best efforts to ensure that the
application for approval of an exemption from the prohibition of State aid
is filed and Antitrust State Aid Decision 2 is issued. In preparing the
application for an exemption from the prohibition of State aid and in the
course of the procedure in respect of such application, the Purchaser shall
provide all requisite assistance. Each Party shall provide all the required
information to the other Party within the shortest possible time limits or,
if required, procure such information at the request of the other Party
within the shortest possible time limits and shall act so that Antitrust
State Aid Decision 2 is issued.
(c) For the purposes of the CEPS Share Purchase Agreement and the REAS Share
Purchase Agreement, an application filed by a competent authority headed by
a member of the Czech Republic government shall be deemed to be the
Seller's application for approval of an exemption from the prohibition of
State aid.
6.2 Consummation of the Sale. The Parties shall take all actions that may be
necessary or desirable for the consummation of the sale of the Sale Shares upon
the terms and subject to the conditions contained herein.
6.3 Information Requirement. If any Party becomes aware of any fact that is
decisive for the running of any time limit determined by this Agreement, it
shall inform the other Party of such fact without delay.
ARTICLE VII
TERMINATION
7.1 Termination. The contractual relationship between the Seller and the
Purchaser hereunder shall terminate only for the following reasons:
(a) prior to the transfer of the Sale Shares to the Purchaser, by mutual
agreement of the Seller and the Purchaser as of the date provided for
herein;
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(b) if the REAS Concentration Approval or the CEPS Concentration Approval is
not granted or Antitrust State Aid Decision 1 or Antitrust State Aid
Decision 2 or Antitrust State Aid Decision 3 is not issued, as of the date
on which the time limit for filing a complaint against a final rejection by
the Antitrust Office in any of such matters has expired without such
complaint having been filed or (if such complaint against the rejection by
the Antitrust Office has been filed within the statutory time limit) as of
the date on which the decision of the competent court dismissing such
complaint becomes final and effective;
(c) the obligation of the Purchaser set forth in Section 5.5 hereof has not
been performed within the time limit specified therein;
(d) for the reasons set out in Section 9.1 and/or Section 9.2 and/or Section
9.3 hereof;
(e) rescission by the Seller or the Purchaser prior to the transfer of the Sale
Shares to the Purchaser in the event that the Antitrust Office issues,
instead of Antitrust State Aid Decision 2, a decision approving an
exemption from the prohibition of State aid "subject to specified
conditions," with effect as of the date of delivery of the notice of
rescission;
(f) rescission by the Seller prior to the transfer of the Sale Shares to the
Purchaser, if the Purchaser shall materially breach this Agreement and, if
such breach is capable of being cured, shall fail to cure such breach
within fifteen (15) days after written notice thereof from the Seller, with
effect as of the date of delivery of the notice of rescission to the
Purchaser; or
(g) rescission by the Purchaser prior to the transfer of the Sale Shares to the
Purchaser, if the Seller shall materially breach this Agreement and, if
such breach is capable of being cured, shall fail to cure such breach
within fifteen (15) days after written notice thereof from the Purchaser,
with effect as of the date of delivery of the notice of rescission to the
Seller.
7.2 Exclusion of Certain Provisions of the Commercial Code. Neither Party shall
be entitled to rescind or otherwise terminate this Agreement except as expressly
provided in Section 7.1 hereof, and the application of the provisions of Section
345 (1) and (3), Sections 346 through 350, Section 356 and Section 436(1)(d) of
the Commercial Code shall be excluded and shall not apply to this Agreement.
ARTICLE VIII
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the following
meanings:
"CEPS, a.s." means CEPS, a.s., having its registered office at Elektrarenska
774/2, 101 52 Prague 10, Identification No.: 25702556.
"Share Settlement Date" means the eighth Business Day immediately following the
later of the Availability Date of All Decisions and the date on which compliance
with the obligations described in Section 5.5 hereof is evidenced and the date
on which the Purchaser and OSINEK execute a written agreement with the
Depositary.
"Confidential Information" means any information concerning the terms and
conditions of this Agreement and, in addition, any information exchanged between
the Parties and their respective advisers in connection with the negotiation of
this Agreement. Confidential Information shall not include any information which
becomes available to the general public other than by a breach of any obligation
of the relevant Party under Section 10.4 hereof;
"FNM CR" means Fond narodniho majetku Ceske republiky (National Property Fund of
the Czech Republic), having its registered office at Rasinovo nabrezi 42, 120 00
Prague 2, Identification No.: 41692918.
"CZK" means the Czech crown, the lawful currency of the Czech Republic.
"Purchase Price" shall have the meaning ascribed to such term in Article II
hereof.
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"Ministry of Labor and Social Affairs" means the division of the executive
branch of the government acting on behalf of the Czech Republic in accordance
with Act No. 219/2000 Coll., on the Property of the Czech Republic and the
Action of the Czech Republic in Legal Relationships, as amended.
"Commercial Code" shall have the meaning ascribed to such term in the Preamble
to this Agreement.
"Purchaser's Securities Dealer" means the person having a securities dealer
license pursuant to the Securities Act and being a member of UNIVYC that shall
be designated by written notice of the Purchaser delivered to the Seller within
60 days of the execution of this Agreement.
"Availability Date of All Decisions" means the date on which the CEPS
Concentration Approval, the REAS Concentration Approval, Antitrust State Aid
Decision 1, Antitrust State Aid Decision 2 and Antitrust State Aid Decision 3
become final and enforceable. In the event that the CEPS Concentration Approval,
the REAS Concentration Approval, Antitrust State Aid Decision 1, Antitrust State
Aid Decision 2 and Antitrust State Aid Decision 3 do not become final and
enforceable on the same day, the Availability Date of All Decisions shall be the
latest of the dates on which the CEPS Concentration Approval, the REAS
Concentration Approval, Antitrust State Aid Decision 1, Antitrust State Aid
Decision 2 and Antitrust State Aid Decision 3 become final and enforceable.
"OSINEK" means OSINEK, a.s., having its registered office at Ruska 56, c.p. 397,
Ostrava-Vitkovice, Postal Code: 706 02, Identification No.: 0001 2173.
"CEPS Concentration Approval" means the decision of the Antitrust Office
approving the concentration established by the sale of shares in CEPS, a.s. by
the Purchaser to OSINEK under the CEPS Share Purchase Agreement; OSINEK shall
apply for the approval. CEPS Concentration Approval shall also mean the case
where, upon the expiration of a certain time limit, the Antitrust Office shall
be deemed, according to the Competition Act, to have approved the concentration
established by the sale of shares in CEPS, a.s. by the Purchaser to OSINEK under
the CEPS Share Purchase Agreement. Further, CEPS Concentration Approval shall
also mean a decision of the Antitrust Office to the effect that the
concentration established by the sale of shares in CEPS, a.s. by the Purchaser
to OSINEK under the CEPS Share Purchase Agreement is not subject to approval by
the Antitrust Office.
"REAS Concentration Approval" shall have the meaning similar to that of the CEPS
Concentration Approval, but with respect to the concentration which may be
established under the REAS Share Purchase Agreement and the application for
which shall be filed by the Seller.
"Business Day" means any day on which UNIVYC and banks in the Czech Republic are
open for business.
"Third Party Rights" means any encumbrance and contractual right of a third
party, including, without limitation, any pledge, mortgage, easement, right of
first refusal, lien, lease, call option or put option, suspension of rights and
restriction on transfer.
"Sale Shares" shall have the meaning ascribe to such term in the Preamble
hereto.
"Purchaser's Representations" shall have the meaning ascribed to such term in
Section 5.6 hereof.
"Seller's Representations" shall have the meaning ascribed to such term in
Section 4.6 hereof.
"Purchaser Payment Order" means the order delivered by the Purchaser's
Securities Dealer to UNIVYC and directing UNIVYC to arrange the transfer of an
amount equal to the Purchase Price from the Purchaser's account No. 71
504-011/0100 maintained with Komercni banka, a.s. to the Seller's account No.
1009373 / 3300 maintained with Ceska konsolidacni agentura on the Share
Settlement Date. The Purchaser Payment Order shall be in the form attached as
Exhibit C hereto.
"Purchaser Settlement Order" means the order entered by the Purchaser through
the Securities Dealer in the UNIVYC settlement system to arrange the
registration of the transfer of the Sale Shares from the securities account of
the Seller maintained at the Securities Center to the securities account of the
Purchaser maintained at the Securities Center on the Settlement Date. The form
of the Purchaser Settlement Order is attached hereto as Exhibit A.
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"Seller Settlement Order" means the order entered by the Seller in the UNIVYC
settlement system to arrange the registration of the transfer of the Sale Shares
from the securities account of the Seller maintained at the Securities Center to
the securities account if the Purchaser maintained at the Securities Center on
the Settlement Date. The form of the Seller Settlement Order is attached hereto
as Exhibit B; however, this form shall be used only if the Seller fails to enter
the Seller Settlement Order directly through a terminal.
"Settlement Orders" means, collectively, the Purchaser Settlement Order, the
Seller Settlement Order and the Purchaser Payment Order.
"Antitrust State Aid Decision 1" means the decision of the Antitrust Office,
pursuant to which the Antitrust Office shall terminate the procedure conducted
under the State Aid Act on the basis of an application for an exemption from the
prohibition of State Aid, filed by the FNM CR, because it has found that no
State aid is involved in the sale of shares under the REAS Share Purchase
Agreement. Antitrust State Aid Decision 1 shall also mean the decision of the
Antitrust Office, pursuant to which the Antitrust Office approves an exemption
from the prohibition of State aid.
"Antitrust State Aid Decision 2" shall have the meaning ascribed to such term in
Section 6.1 (a) hereof.
"Antitrust State Aid Decision 3" means the decision of the Antitrust Office,
pursuant to which the Antitrust Office shall terminate the procedure conducted
under the State Aid Act on the basis of an application for an exemption from the
prohibition of State aid, filed by the OSINEK, because it has found that no
State aid is involved in the sale of shares under the CEPS Share Purchase
Agreement. Antitrust State Aid Decision 3 shall also mean the decision of the
Antitrust Office, pursuant to which the Antitrust Office approves an exemption
from the prohibition of State aid.
"Depositary" means the person designated by agreement of the Purchaser and
OSINEK, with whom a draft in the amount of the purchase price of the sale shares
in CEPS as determined in the CEPS Share Purchase Agreement will be deposited
after its issuance by the Seller and acceptance by OSINEK under the CEPS Share
Purchase Agreement.
"CEPS Share Purchase Agreement" means the share purchase agreement dated June
28, 2002 entered into by and between the Purchaser and OSINEK, under which the
Purchaser shall transfer to OSINEK 91,064,240 book-entry registered common
shares of CEPS, a.s., having a nominal value of CZK 100 per share, SIN:
770000002673, representing approximately 51% of the Company's registered
capital.
"REAS Share Purchase Agreement" means the share purchase agreement dated June
28, 2002 entered into by and between the Purchaser and the FNM CR, under which
the FNM CR shall transfer to the Seller shares in the regional distribution
companies (Prazska energetika, a.s., Stredoceska energeticka, a.s., Vychodoceska
energetika, a.s., Severoceska energetika, a.s., Zapadoceska energetika, a.s.,
Jihoceska energetika, a.s., Jihomoravska energetika, a.s., and Severomoravska
energetika, a.s.) in accordance with the Resolution.
"Agreement with the Ministry of Labor and Social Affairs" means the share
purchase agreement entered into by and between the Purchaser and the Ministry of
Labor and Social Affairs, under which the Purchaser shall transfer to the
Ministry of Labor and Social Affairs 26,783,600 book-entry registered common
shares of CEPS, a.s., having a nominal value of CZK 100 per share, SIN:
770000002673, representing approximately 15% of the registered capital of CEPS,
a.s., for a purchase price of CZK 3,417,851,000, which may be adjusted in
accordance with the terms and conditions specified in the Agreement with the
Ministry of Labor and Social Affairs.
"Party" means either the Seller or the Purchaser, and "Parties" means
collectively the Seller and the Purchaser.
"Company" shall have the meaning ascribed to such term in the Preamble hereto.
"UNIVYC" shall have the meaning ascribed to such term in Section 3.1 (a) hereof.
"Antitrust Office" means the Office for the Protection of Competition.
"Resolution" shall have the meaning ascribed to such term in the Preamble
hereto.
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"Selected Finance Documents" means (i) the DEM 280 Million Multi-Currency Loan
Agreement entered into by and between the Purchaser and a syndicate of banks,
due 2003, and (ii) the EUR 85 Million Guarantee Agreement for the benefit of the
European Investment Bank entered into by and between the Purchaser and a
syndicate of banks, due 2013.
"Selected Affirmative Covenant" means the Purchaser's covenant under the
Selected Finance Documents to hold more than 50% share in the company owning the
assets of the transmission grid.
"Securities Act" shall have the meaning ascribed to such term in the Preamble
hereto.
"Competition Act" means Act No. 143/2001 Coll., on the Protection of Competition
and Amendments to Certain Acts.
"State Aid Act" means Act No. 59/2000 Coll., on State Aid, as amended.
"Purchaser's Covenants" shall have the meaning ascribed to such term in Section
5.6 hereof.
"Seller's Covenants" shall have the meaning ascribed to such term in Section 4.6
hereof.
ARTICLE IX
INTERCONNECTED AGREEMENTS
9.1 If the REAS Share Purchase Agreement shall not have been entered into
within 60 (sixty) days following the execution of this Agreement or if the
REAS Share Purchase Agreement shall be terminated, whether by agreement of
the parties thereto or by withdrawal of any of the parties thereto or
otherwise, this Agreement shall terminate as of the same date.
9.2 If the CEPS Share Purchase Agreement shall not have been entered into
within 60 (sixty) days following the execution of this Agreement or if the
CEPS Share Purchase Agreement shall be terminated, whether by agreement of
the parties thereto or by withdrawal of any of the parties thereto or
otherwise, this Agreement shall terminate as of the same date.
9.3 If the Agreement with the Ministry of Labor and Social Affairs shall not
have been entered into within 60 (sixty) days following the execution of
this Agreement or if the Agreement with the Ministry of Labor and Social
Affairs shall be terminated, whether by agreement of the parties thereto or
by withdrawal of any of the parties thereto or otherwise, this Agreement
shall terminate as of the same date.
9.4 If the Antitrust Office fails to issue Antitrust State Aid Decision 1 or
Antitrust State Aid Decision 2 or Antitrust State Aid Decision 3 and issues
instead of any (or all) of them a decision approving an exemption from the
prohibition of State aid "subject to the specified conditions" and,
consequently, any of the agreements referred to in Sections 9.1 through 9.3
hereof terminates, the other agreements referred to in Sections 9.1 through
9.3 hereof shall terminate as of the same date.
ARTICLE X
FINAL PROVISIONS
10.1 After the transfer of the Sale Shares, the Purchaser undertakes to use its
reasonable best efforts, for a period of no less than five years following the
execution of this Agreement, to ensure that a representative of the Statutory
City of Plzen is a member of the Company's Supervisory Board for the same
period.
10.2 Costs and Expenses. The Parties shall bear their own respective costs and
expenses incurred in connection with the negotiation and execution and delivery
of this Agreement and the performance of their obligations hereunder. The fees
charged by UNIVYC and the Securities Dealer in connection with the settlement of
the transfer of the Sale Shares shall be paid by the Purchaser.
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10.3 Further Assurances. The Parties agree to take such other actions not
expressly provided for herein as may be necessary or desirable for the
consummation of the sale of the Sale Shares upon the terms and subject to the
conditions contained herein.
10.4 Confidentiality and Publicity.
Each of the Parties agrees that it shall not disclose any Confidential
Information to any third party without the prior written consent of the other
Party. This obligation of confidentiality shall not apply to disclosures of
Confidential Information to employees, directors, advisers or agents of the
Parties, provided, however, that the disclosing Party shall in each case be
liable for any breach of the obligations under this Section 10.4 by such
persons. In addition, the obligation of confidentiality under this Section 10.4
shall not apply in the event that a Party is required by applicable law or a
judicial or administrative decision to provide a court or administration body
with any Confidential Information, however, in each such case only to the extent
required by such law or such judicial or administrative decision and subject to
a prompt written notice thereof to the other Party if permitted by applicable
law. Notwithstanding the above provisions of this Section 10.4, the Purchaser
shall be entitled to disclose any Confidential Information also to the FNM CR,
the Cabinet of the Czech Republic, the Ministry of Finance of the Czech
Republic, the Ministry of Industry and Trade of the Czech Republic and the
Ministry of Labor and Social Affairs of the Czech Republic.
10.5 Entire Agreement, Amendments. This Agreement represents the entire
understanding and agreement between the Parties with respect to the subject
matter hereof and can be amended only by a written instrument signed by both
Parties.
10.6 Waivers. No failure on the part of either Party to exercise, and no delay
in exercising or extension of time for the exercise of, any right hereunder
shall operate as a waiver thereof.
10.7 Governing Law. All rights and obligations of the Parties hereunder shall be
governed by the laws of the Czech Republic.
10.8 Arbitration. Any dispute that may arise out of or in connection with this
Agreement shall, to the exclusion of courts of general jurisdiction, be finally
settled by arbitration under the Rules of Arbitration of the Arbitration Court
attached to the Economic Chamber of the Czech Republic and the Agrarian Chamber
of the Czech Republic by three arbitrators appointed in accordance with the
Rules. The Parties agree to perform all obligations placed upon them in the
award within the time limits specified therein. The language of the arbitration
shall be Czech. The venue of the arbitration shall be Prague, the Czech
Republic. This arbitration clause shall be separately enforceable.
10.9 Costs of Arbitration. All costs and expenses of arbitration shall be
apportioned between the parties to the arbitration by the arbitrators on the
basis of the arbitral award.
10.10 Notices. All notices and other communications under this Agreement shall
be in writing and shall be deemed given to the relevant Party when delivered
personally or mailed by registered mail at the following address (or at such
other address as the relevant Party may have specified by notice given to the
other Party pursuant to this Section 10.10):
If to the Purchaser:
CEZ, a.s.
Duhova 2/1444
Praha 4 - Michle, PSC: 140 53
Attention: Ing. Miroslav Stehlik, Director of Equity Interest Section
If to the Seller:
Ceska konsolidacni agentura
Praha 7, Janovskeho 438/2, PSC: 170 06
Attention: Ing. Jaromir Hejda, Director of Equity Interest Division
10
10.11 Severability. If any one or more of the provisions contained in this
Agreement is for any reason held to be invalid, illegal or unenforceable in any
respect, then, to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, and the Parties shall attempt to deliver the benefits of such
provision in a manner that is not invalid, illegal or unenforceable.
10.12 Binding Effect; Assignment. This Agreement shall be binding upon the
Parties and their respective successors and permitted assigns. Neither the
Seller nor the Purchaser shall be entitled to assign its rights hereunder to any
third party without the prior written consent of the other Party.
10.13 No Unilateral Setoff. None of the Parties shall be entitled to any
unilateral setoff of any claim it may have against the other Party in respect of
any of its obligations it may have to the other Party hereunder.
10.14 Default Interest. In the event of a default in the payment of any amount
due and payable under this Agreement, the defaulting Party shall pay to the
other Party, from the default date until the date such amount shall have been
paid, default interest at a rate equal to 1.5 times the discount rate set by the
Czech National Bank and in effect on the first day of default.
10.15 Counterparts. This Agreement has been executed in four (4) counterparts.
Each of the Parties shall receive two counterparts.
11
Prague, July 22, 2002
On behalf of CEZ, a.s.:
[signature]
- -----------------------------------
Name: Ing. Jaroslav Mil, M.B.A.
Title: Chairman of the Board of Directors
[signature]
- -----------------------------------
Name: JUDr. Ivan Cestr
Title: Director
On behalf of Ceska konsolidacni agentura:
[signature]
- -----------------------------------
Name: Ing. Pavel Rezabek
Title: Chairman of the Board of Directors
and Chief Executive Officer
[signature]
- -----------------------------------
Name: Ing. Libor Svoboda
Title: Director and Senior Executiive Officer
12
Exhibit A
[Form of Purchaser Settlement Order]
The Agent, a.s., with its registered office at .............................,
represented by ....................... (name, surname, title), authorized to
represent the purchaser, .........................., with its registered office
at ............................., in procuring the settlement of the purchase of
the book-entry securities specified below, hereby requests UNIVYC, a.s., with
its registered office in Praha 1, Rybna 14, Identification No.: 25 08 14 89
("Univyc") to check the matched transfer orders regarding the sale of shares in
Zapadoceska energetika, a.s.:
Name (business name) of the Agent: . . . . . . . . . . . . . . . . . . . .
Contact Person, Tel. No.: . . . . . . . . . . . . . . . . . . . .
The Dealer's No. at Univyc: . . . . . . . . . . . . . . . . . . . .
Type of Settlement: . . . . . . . . . . . . . . . . . . . .
The owner's Registration No. at the Securities Center: . . . . . . . . . . . . . . . . . . . .
The owner's Identification No. at the Securities Center: . . . . . . . . . . . . . . . . . . . .
ISIN of the Securities: . . . . . . . . . . . . . . . . . . . .
Number of Securities Transferred: . . . . . . . . . . . . . . . . . . . .
Price per Security: . . . . . . . . . . . . . . . . . . . .
Settlement Date: . . . . . . . . . . . . . . . . . . . .
....................................................................
signature of the person authorized to act on behalf of the Dealer,
conforming to the specimen signatures kept at Univyc
13
Exhibit B
[Form of Seller Settlement Order]
The Agent, a.s., with its registered office at .............................,
represented by ....................... (name, surname, title), authorized to
represent the seller, .........................., with its registered office at
.............................., in procuring the settlement of the purchase of
the book-entry securities specified below, hereby requests UNIVYC, a.s., with
its registered office in Praha 1, Rybna 14, Identification No.: 25 08 14 89
("Univyc") to check the matched transfer orders regarding the sale of shares in
Zapadoceska energetika, a.s.:
Name of the Transferor: . . . . . . . . . . . . . . . . . . . .
Contact Person, Tel. No.: . . . . . . . . . . . . . . . . . . . .
The Transferor's No. at Univyc: . . . . . . . . . . . . . . . . . . . .
Type of Settlement: . . . . . . . . . . . . . . . . . . . .
The owner's Registration No. at the Securities Center: . . . . . . . . . . . . . . . . . . . .
The owner's Identification No. at the Securities Center: . . . . . . . . . . . . . . . . . . . .
ISIN of the Securities: . . . . . . . . . . . . . . . . . . . .
Number of Securities Transferred: . . . . . . . . . . . . . . . . . . . .
Price per Security: . . . . . . . . . . . . . . . . . . . .
Settlement Date: . . . . . . . . . . . . . . . . . . . .
.........................................................................
signature of the person authorized to act on behalf of the transferor,
conforming to with the specimen signatures kept at Univyc
14
Exhibit C
[Form of Purchaser Payment Order]
Purchaser Payment Order
The transferor of funds hereby instructs and authorizes Univyc to arrange the
transfer of CZK ......................................................... (to
wit: ............................................................ Czech crowns)
to the bank account specified below, in accordance with the following
specifications:
Bank Account No.: .......................................
Amount in CZK: .......................................
Variable Symbol: .......................................
The transferor hereby represents that all of the above data is true and
complete.
The transferor agrees to pay to Univyc, in consideration for the settlement of
the sale of securities, a fee of CZK ............................. (to wit:
................................ Czech crowns). The fee will be paid upon an
invoice issued by Univyc to the account specified in such invoice, no later than
14 days following the delivery of the invoice to the transferor.
In addition, the transferor represents that it is aware that all the other terms
and conditions of the settlement of the sale of the securities are to be
governed by the applicable rules of Univyc and Burza cennych papiru Praha, a.s.
(the Prague Stock Exchange).
..........................................................................
signature of the person authorized to act on behalf of the transferor,
conforming to with the specimen signatures kept at Univyc
15
CERTIFICATION OF FAIR AND ACCURATE TRANSLATION
The undersigned hereby certifies that to the best of my knowledge the above
English translation is a fair and accurate translation of the original Czech
language document.
Date: June 25, 2003 By: /s/ Libuse Latalova
----------------------------------------
Name: Libuse Latalova
Title: Head of Finance Administration