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EXHIBIT 10.3
SHARE PURCHASE AGREEMENT
This Share Purchase Agreement, hereinafter referred to as the "Share Purchase
Agreement", is entered into on this 29th day of March 1999
by and between
1. RELIANT ENERGY WHOLESALE HOLDING (EUROPE) INC.
having its principal offices at 1111 Louisiana, Houston, Texas,
United States of America herein represented by R. Steve Letbetter,
hereinafter referred to, together with any successors and permitted
assignors, as the "New Partner";
and
2. PROVINCIE NOORD HOLLAND
having its seat at Haarlem, the Netherlands, herein represented by
J.P.J. Lagrand, hereinafter referred to as the "Province of North
Holland";
and
3. GEMEENTE AMSTERDAM
having its seat at Amsterdam, the Netherlands, herein represented
by G. ter Horst, hereinafter referred to as the "Municipality of
Amsterdam";
and
4. PROVINCIE UTRECHT
having its seat in Utrecht, the Netherlands, herein represented
by D.H. Kok, hereinafter referred to as the "Province of Utrecht";
and
5. GEMEENTE UTRECHT
having its seat in Utrecht, the Netherlands, herein represented
by H.H.W. Kernkamp, hereinafter referred to as the "Municipality
of Utrecht";
and
6. N.V. PROVINCIAAL EN GEMEENTELIJK UTRECHTS
STROOMLEVERINGSBEDRIJF
having its registered office at Utrecht, the Netherlands,
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herein represented by M. ten Klooster,
hereinafter referred to as "Pegus";
and
7. RELIANT ENERGY POWER GENERATION, INC., a company
incorporated under the laws of the State of Delaware, United States
of America, with its principal offices at 1111 Louisiana, Houston,
Texas United States of America
herein represented by R. Steve Letbetter,
hereinafter referred to as the "Ultimate Parent 2";
and
8. N.V. ENERGIEPRODUKTIEBEDRIJIF UNA
having its registered office at Utrecht, the Netherlands,
herein represented by P. Koppen cle Neve,
hereinafter referred to as the "Company".
(The New Partner, Province of North Holland, Municipality of Amsterdam, Pegus,
the Ultimate Parent 2 and the Company hereinafter collectively referred to as
the "Parties" and each individually as a "Party").
WHEREAS:
A. The Existing Partners are the legal and beneficial owners of the
entire issued and outstanding share capital of the Company whereby:
(i) the Province of North Holland is the legal and beneficial owner of
850 (in words: eight hundred and fifty) Shares;
(ii) the Municipality of Amsterdam is the legal and beneficial owner of
850 (in words: eight hundred and fifty) Shares;
(iii) Pegus is the legal and beneficial owner of 850 (in words: eight
hundred and fifty) Shares;
B. Pursuant to the Partnership Documentation concluded between Parties
on the Signing Date, (i) the New Partner will subscribe for the
Subscription Shares and, in respect of such subscription, contribute
the Subscription Price on the terms and conditions set out in the
Share Subscription Agreement and (ii) the Existing Partners wish to
sell and transfer their Shares to the New Partner and the New
Partner wishes to purchase and accept such Shares on the terms and
conditions set out in this Share Purchase Agreement.
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IT IS HEREBY AGREED AS FOLLOWS:
ARTICLE 1 DEFINITIONS AND INTERPRETATION
1.1. Capitalized terms used in this Share Purchase Agreement shall have
the meanings ascribed to them in schedule 1.1 to the Partnership
Agreement, which Schedule is attached hereto as SCHEDULE 1.1, except
as the context may otherwise require.
1.2. All Schedules and Annexes to this Share Purchase Agreement shall form
an integral part hereof.
1.3. References to Articles, Schedules or Annexes shall be references to
Articles of and Schedules and Annexes to this Share Purchase
Agreement.
1.4. Headings are inserted for convenience only and shall not affect the
interpretation of this Share Purchase Agreement.
1.5. Nouns, pronouns and verbs of the singular number shall be deemed to
include the plural, and vice versa, and pronouns of the masculine
gender shall be deemed to include the feminine and neuter, and vice
versa, all as the context may require.
1.6. The words "include", "includes" and "including" shall be deemed to be
followed by the phrase "without limitation".
1.7. Whenever used in this Share Purchase Agreement the words "hereof",
"herein" and similar words shall be construed as references to this
Share Purchase Agreement as a whole and not limited to the particular
Article or subsection in which the reference appears.
1.8. The words "best knowledge" shall mean such knowledge as the relevant
entities, officials, directors or members of the management board,
municipal executive board or provincial executive body, as the case
may be, have or may reasonably be expected to have.
ARTICLE 2 SALE, PURCHASE AND PURCHASE PRICE
2.1. Subject to the terms and conditions of this Share Purchase Agreement:
2.1.1. Each of the Existing Partners hereby sells to the New
Partner and the New Partner hereby purchases from
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each of the Existing Partners such number of its
Shares as set forth in SCHEDULE 2.1.1 (the "First
Tranche Shares");
2.1.2. Subject to the Second Completion Conditions, the
Existing Partners hereby sell to the New Partner and
the New Partner hereby purchases from the Existing
Partners such number of Shares as is required to
provide the New Partner with a majority interest of
52% (in words: fifty two percent), in the issued and
outstanding share capital of the Company, whereby
each Existing Partner sells to the New Partner at
least one third of such number of Shares provided,
however that the New Partner shall, if requested by
an Existing Partner, purchase and accept such
additional number of Shares as shall be determined
by each of the Existing Partners at its sole
discretion and notified to the New Partner in the
Request (the "Second Tranche Shares");
2.1.3. Subject to the Third Completion Conditions, each of
the Existing Partners hereby sells to the New Partner
and the New Partner hereby purchases from each of the
Existing Partners all the Shares, if any, which such
Existing Partner shall hold after Completion of the
Second Tranche Shares (the "Third Tranche Shares").
2.2. The aggregate purchase price (the "Purchase Price") to be paid by the
New Partner to the Existing Partners shall be:
2.2.1. for the First Tranche Shares, the First Purchase
Price which shall be determined and allocated to the
respective Existing Partners in the amounts set
forth in Schedule 2.1.1;
2.2.2. for the Second Tranche Shares the price (the "Second
Purchase Price") shall be calculated, determined and
allocated amongst the Existing Partners in accordance
with the formula set forth in SCHEDULE 2.2.2;
2.2.3. for the Third Tranche Shares the price (the "Third
Purchase Price") shall be calculated, determined and
allocated amongst the Existing Partners in accordance
with the formula set forth in Schedule 2.2.2;
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2.3. As security for due performance by the Ultimate Parent 2 of its
obligation to guarantee payment of the Second Purchase Price and the
Third Purchase Price to the Existing Partners, the Ultimate Parent 2
shall pledge on the First Completion Date 65% of its ownership
interest in Reliant Energy Wholesale Holdings (Europe) Inc. to the
Existing Partners by means of a pledge agreement, in accordance with
the form attached hereto as SCHEDULE 2.3.
ARTICLE 3 SIGNING
3.1. The Signing Actions shall take place on the Signing Date and shall be
deemed to take place simultaneously, with each such action being
conditional upon all such actions being effected.
ARTICLE 4 CONDITIONS TO COMPLETION
4.1. The obligations of the Parties under this Share Purchase Agreement
shall be:
4.1.1. with respect to the transfer of the First Tranche
Shares subject to and conditional upon the First
Completion Conditions being satisfied or waived by
the Party to whose benefit these conditions inure;
4.1.2. with respect to the sale and transfer of the
Second Tranche Shares subject to and
conditional upon the completion conditions
attached hereto as SCHEDULE 4.1.2. (the
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"Second Completion Conditions") being satisfied
or waived by the Party to whose benefit these
conditions inure;
4.1.3. with respect to the sale and transfer of the Third
Tranche Shares subject to and conditional upon the
completion conditions attached hereto as SCHEDULE
4.1.3. (the "Third Completion Conditions") being
satisfied or waived by the Party to whose benefit
these conditions inure.
4.2. Each of the Parties shall make all reasonable efforts to ensure that
each of the Completion Conditions is satisfied as early as possible
before the related Completion Date. If at any time a Party becomes
aware of anything that may prevent any Completion Condition being
satisfied, it
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shall immediately inform the other Parties and the Parties shall
cooperate to make all reasonable efforts to ensure the Completion
Conditions are satisfied.
ARTICLE 5 COVENANTS PRIOR TO THE FIRST COMPLETION DATE
5.1. The Existing Partners and the Company shall procure that, from the
Signing Date until the First Completion Date, the Pre-Completion
Covenants shall be complied with.
ARTICLE 6 COMPLETION AND PAYMENT REGARDING THE SOLD SHARES
6.1. The Completion of the Sold Shares shall take place at the Amsterdam
offices of Loeff Claeys Verbeke whereby:
6.1.1. the Completion of the First Tranche Shares shall
take place on a Business Day within 15 (in
words: fifteen) Business Days, as mutually
agreed between the New Partner and Existing
Partners after the date on which any and all First
Completion Conditions shall have been fulfilled
or waived by the Party to whose benefit these
First Completion Conditions inure (the "First
Completion Date");
6.1.2. the Completion of the Second Tranche Shares
shall take place pursuant to a Request subject to
Article 6.1.4 by one of the Existing Partners to
the New Partner on a Business Day (the
"Second Completion Date") within 60 (in words:
sixty) Business Days after such Request, as
mutually agreed between the New Partner and
the Existing Partners, but in no event later than
31 December 2002;
6.1.3. the Completion of the Third Tranche Shares, if
any, shall take place pursuant to a Request
subject to Article 6.1.4 by each respective
Existing Partner within 60 (in words: sixty)
Business Days, after such Request as mutually
agreed between the New Partner and the
Existing Partners, but in no event later than 31
December 2006 (the "Third Completion Date");
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6.1.4. the Requests referred to in Articles 6.1.2. and
Articles 6.1.3, respectively, shall set forth the
number of Shares to be transferred to the New
Partner on the respective Completion Date, and
be submitted to the New Partner at least 120 (in
words: hundred twenty) days prior to such
Completion Date or 60 (in words: sixty) days
after the respective Completion Conditions have
been fulfilled or waived by the Party to whose
benefit these Completion Conditions inure which
ever date is later;
6.2. Notwithstanding any provision in the Partnership Documentation to the
contrary, the Existing Partners will remain obligated under this
Share Purchase Agreement to sell, and the New Partner will remain
obligated to purchase, Second Tranche Shares and Third Tranche Shares
even if, for any reason whatsoever, the Second Tranche Shares and
Third Tranche Shares are not sold to New Partner by the Second
Completion Date and the Third Completion Date, respectively.
6.3. The respective transfers of the Sold Shares shall be carried out
through execution of a notarial deed, in form attached hereto as
SCHEDULE 6.3 before the Notary. The Notary shall be a civil law
notary of Loeff Claeys Verbeke, the firm of the external legal
advisors of the Company. The other Parties hereby acknowledge that
they are aware of the provisions of articles 8, 9, 10 and 14.2 of
the "Guidelines" concerning associations between civil law notaries
(notarissen) and associations between civil law notaries (notarissen)
and barristers/solicitors ("advocaten")" as established by the
Board of the Royal Regulatory Body of Civil Law Notaries
("Koninklijke Notariele Beroepsorganisatie"). The other Parties
hereby explicitly agree that Loeff Claeys Verbeke shall advise and
act on behalf of the Company with respect to this Share Purchase
Agreement, any agreements resulting from this Share Purchase
Agreement or any disputes resulting therefrom. To this end the other
Parties hereby approve the exchange of essential information,
relating to the transfer of the Sold Shares, between the barristers/
solicitors ("advocaten"), tax advisors ("fiscalisten") and civil
law notaries ("notarissen") of Loeff Claeys Verbeke.
6.4. The New Partner shall pay the First Purchase Price, which shall be
estimated and allocated in accordance with Schedule 2.2.1, the Second
Purchase Price and the Third Purchase Price on the respective
Completion Dates in accordance with the respective Completion
Actions.
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ARTICLE 7 COMPLETION
7.1. At the Completion of the First Tranche Shares, the First Completion
Actions shall take place, which actions shall be deemed to take place
as described in Schedule 18.2 to the Partnership Agreement, with each
such action being conditional upon all such actions being effected;
7.2. At the Completion of the Second Tranche Shares and Third Tranche
Shares, respectively, the actions referred to in SCHEDULE 7.2A (the
"Second Completion Actions") and the actions referred to in SCHEDULE
7.2B (the "Third Completion Actions"), respectively, shall take
place, which actions shall be deemed to take place simultaneously,
with each such action being conditional upon all such actions being
effected.
7.3. Each Party shall at the reasonable request of another Party execute
all documents and do all other acts and things as may reasonably be
deemed necessary to give full effect to this Share Purchase Agreement
and all agreements pursuant hereto.
7.4. After the First Completion Date, the New Partner and the Existing
Partners shall determine, allocate and settle the actual First
Purchase Price in accordance with Schedule 2.2.1.
ARTICLE 8 WAIVER
8.1. The New Partner and each of the Existing Partners unconditionally and
irrevocably waive all of their respective rights under the Articles
of Association in respect of the sale and transfer of the Sold
Shares.
ARTICLE 9 STRANDED COSTS
9.1. For the purpose of determination of the Purchase Price, the Parties
have estimated that the Stranded Costs for the account of the Company
shall be NLG 500,000,000 (in words: five hundred million Dutch
Guilders) (the "Estimated Stranded Costs"), which estimate is based
on the expected allocation of the Stranded Costs between each of the
Dutch electricity generators and the Ministry of Economic Affairs as
set forth in SCHEDULE 9.1 (the "Expected Allocation").
9.2. In the event that either (i) the Company and the other Dutch energy
generating companies in the Netherlands (EPON, EPZ and EZH and the
naamloze vennootschap Samenwerkendle Electriciteits Produktie
Bedrijven (SEP)) shall enter into a definitive settlement agreement,
which shall have become final and binding, with respect to the
allocation of the Stranded Costs, or (ii) the Ministry of Economic
Affairs or a competent court or arbitral tribunal shall issue a
ruling with respect to the allocation
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of the Stranded Costs that is subsequently approved, in as far as
required by all governmental authorities, including those of the
European Union, which shall be final and binding on the Company, the
Company shall as soon as possible after such definitive settlement
agreement or final ruling submit a statement (the "Statement") to the
Shareholders providing for the calculation of the Stranded Costs by
adjusting the Estimated Stranded Costs and the Expected Allocation as
set forth in Schedule 9.1 in accordance with the following principles
(the "Adjustment Principles"):
9.2.1. the allocation of the Stranded Costs reflected in
the Expected Allocation between the Dutch
electricity generators and the Ministry of
Economic Affairs shall be adjusted if necessary
so as to conform to the contributions of the
Ministry of Economic Affairs at the 7ct/KWh
basic load price level in either the settlement
agreement or the ruling referred to in this Article
9.2 under (i) and (ii), as the case may be;
9.2.2. the allocation of the Stranded Costs reflected in
the Expected Allocation between the Dutch
electricity generators shall be adjusted if
necessary so as to conform to the allocation
determined in either the settlement agreement or
the ruling referred to in this Article 9.2 under (i)
and (ii), as the case may be;
9.2.3. the amounts mentioned in Schedule 9.1 under
the column "Total" shall remain unchanged.
9.3. The Existing Partners and the New Partner shall review the Statement
and shall consult with each other and with the Company with a view to
agreeing in good faith on the definitive amount of the Stranded Costs
calculated in accordance with the Adjustment Principles (the
"Definitive Stranded Costs"). The provisions made in Article 9.6 and
Article 9.8 shall apply if the Existing Partners, the New Partner and
the Company reach agreement on the Definitive Stranded Costs.
9.4. If the Existing Partners, the New Partner and the Company shall fail
to agree on the application of the Adjustment Principles and the
corresponding Definitive Stranded Costs within 60 (in words: sixty)
days of the date on which the Company sent out the Statement, each of
the Existing Partners, the Company or the New Partner may serve
written notice on the others and may refer the dispute for resolution
to an
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independent chartered accountant acting as an expert (bindend
adviseur) and not as an arbitrator to be appointed by agreement
between the Existing Partners, the Company and the New Partner or,
failing agreement as to nomination within 10 (in words: ten) Business
Days of such written notice, to be nominated by the president for the
time being of the "Nederlands Instituut Van Register Accountants".
The independent chartered accountant shall be instructed to use
reasonable efforts to deliver his opinion within 20 (in words:
twenty) Business Days of the referral to him or so soon thereafter as
is practicable and his decision on the application of the Adjustment
Principles and the corresponding Definitive Stranded Costs shall, in
the absence of manifest error, be final and binding on the Parties.
The costs of an independent chartered accountant shall be borne in
the way that he sees fit.
9.5. The Parties shall procure that the New Partner's Accountants, the
Existing Partners' Accountants and any independent chartered
accountant shall have reasonable access during business hours to all
relevant books, records, accounts, personnel and other information of
the Companies for the purpose of reviewing the Statement. The costs
of the New Partner's Accountants and the Existing Partners'
Accountants shall be borne by the New Partner and by the Existing
Partner respectively.
9.6. The Purchase Price shall be increased, if the sum of (i) the amount
of the Definitive Stranded Costs (as agreed or determined under the
provisions of this Article 9) and (ii) the aggregate amount of Legal
Action Stranded Costs is less than the amount of the Estimated
Stranded Costs. The Purchase Price shall be reduced if the sum of
(i) the amount of the Definitive Stranded Costs (as agreed or
determined under the provisions of this Article 9 and (ii) the
aggregate amount of Legal Action Stranded Costs exceeds the
Estimated Stranded Costs. The increase or reduction of the Purchase
Price as the case may be, shall be calculated, determined and
applied in the manner set forth in Schedule 9.
9.7. The Existing Partners shall repay to the New Partner the amount of
any reduction in the Purchase Price and the New Partner shall repay
to the Existing Partners the amount of any increase in the Purchase
Price, calculated and determined under the provisions of this
Article 9 on the later of the Second Completion Date or the 30th day
(or if that day is not a Business Day, the next succeeding Business
Day) following the date on which the Definitive Stranded Costs are
agreed or determined under the provisions of this Article 9 (the
"Date of Payment") by wire transfer to such account or accounts as
the New Partner or the Existing Partners, as the case may be, may
specify in writing, or by such other method as the Existing Partners
and the New Partner may agree.
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9.8. The Company shall keep the New Partner and the Existing Partners
fully informed of the Stranded Costs and actions taken by the Company
and the Existing Partners with respect to such Stranded Costs.
9.9. The obligation of the Existing Partners and the New Partner to pay in
accordance with Article 9.6 the difference between the Definitive
Stranded Costs over the amount of Estimated Stranded Costs shall
expire at the later of 31 December 2004 or the last Third Completion
Date unless (i) there has been a settlement agreement or ruling
referred to in Article 9.2 under (i) and(ii) for which no Purchase
Price adjustment has yet been made under Article 9.6 or (ii) there
is outstanding on such date an action that could result in Legal
Action Stranded Costs.
9.10. At the option of the New Partner, New Partner may reduce the Second
Purchase Price and Third Purchase Price with respect to any amounts
it is entitled to receive (and has not received) from the Existing
Partners under this Article 9.
ARTICLE 10 DUE DILIGENCE INVESTIGATION
10.1. The New Partner and the Ultimate Parent 2 acknowledge and agree that
they have performed, with the assistance of professional legal,
accountancy, financial technical and tax advisors, a due diligence
investigation (the "Due Diligence Investigation") and furthermore;
10.1.1. that for the purposes of the Due Diligence
Investigation they have had (and that their advisors
have had), opportunity to review the information
including the data room information set out in
SCHEDULE 10.1.1 made available to them and their
advisors;
10.1.2. that they have obtained (and their advisors have
obtained) other information that they (and their
advisors) deemed proper and necessary for the
purposes of entering into this Share Purchase
Agreement, through management interviews,
management presentations, site visits and
questions submitted to the Existing Partners and
the Companies and their advisors; and
10.1.3. that they have raised with the Existing Partners and
the Companies any and all specific issues which they
considered relevant in connection with the
transactions contemplated hereby.
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10.2. The New Partner and the Ultimate Parent 2 acknowledge that the
representations and warranties contained in this Share Purchase
Agreement are the only representations, warranties or other
assurances of any kind given by or on behalf of the Existing Partners
and the Companies on which the New Partner and the Ultimate Parent 2
may rely (and have relied upon) in entering into this Share Purchase
Agreement.
10.3. The New Partner and the Ultimate Parent 2 hereby declare that they
are not aware as of the Signing Date of any matter or anything which
is inconsistent with the representations and warranties of the
Existing Partners contained in this Share Purchase Agreement.
ARTICLE 11 REPRESENTATIONS AND WARRANTIES OF EXISTING PARTNERS
11.1. Subject to the provisions of Article 10 and Article 13, the Existing
Partners jointly ("niet-hoofdelijk") represent and warrant to the New
Partner that at the Signing Date each and every statement (the
"Warranties") set out in SCHEDULE 11.1 is, and that at the First
Completion Date each and every Warranty shall be, true and correct.
The Existing Partners also represent and warrant to the New Partner
that at the Second Completion Date and Third Completion Date, the
Warranties set out in articles 2.1 and 2.2 with respect to the
Second Tranche Shares and the Third Tranch Shares, respectively,
shall be true and correct.
ARTICLE 12 REPRESENTATIONS AND WARRANTIES OF THE NEW PARTNER
AND ULTIMATE PARENT
12.1. The New Partner and the Ultimate Parent 2 represent and warrant to
the Existing Partners that each and every statement made by them in
article 19 of the Partnership Agreement is, and at the First
Completion Date shall be true and correct.
ARTICLE 13 BREACH OF WARRANTIES, NON-FULFILLMENT, DAMAGES
13.1. In the event of a breach of any of the Warranties by the Existing
Partners or the New Partner or the Ultimate Parent 2 ("Breach") or
Non-Fulfillment by the Existing Partners, the New Partner or the
Ultimate Parent 2 of any other obligation contemplated by this Share
Purchase Agreement ("Nonfulfillment"), the Existing Partners, the
New Partner or the Ultimate Parent 2, (the "Notifying Party"), as
the case may be, shall upon obtaining knowledge thereof notify the
other Party (the "Notified Party") of such Breach or Nonfulfillment
promptly and in writing, and under no circumstances later than 30
(in words: thirty) days after obtaining knowledge of the Breach or
Nonfulfillment, setting out in reasonable detail the events or facts
giving rise to the Breach or Non-Fulfillment, and
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specifying the amount of Damages claimed as a result of any Breach or
Non-Fulfillment.
13.2. If the Notified Party fails to take appropriate measures to remedy
the Breach or Non-Fulfillment within 30 (thirty) days of such
notification and a dispute arises, the Notifying Party shall be
entitled to institute arbitration proceedings with a view of
resolving the dispute pursuant to article 40 of the Partnership
Agreement.
13.3. Subject to the other provisions of this Article 13, the Existing
Partners shall indemnify the New Partner for all Damages incurred by
the New Partner, resulting from any Breach or any Non-Fulfillment, as
the case may be.
13.4. The Existing Partners shall not owe Damages to the New Partner by
virtue of this Article 13 or otherwise have obligations towards the
New Partner if and to the extent that the Damage ensuing from a
Breach or Non-Fulfillment:
13.4.1. has been paid to the New Partner or to the
Company or Companies by virtue of any
insurance policy;
13.4.2. has been paid to the New Partner or to the
Company or Companies by a third party other
than an insurance company;
13.4.3. has not been reported in writing with a statement of
nature, cause and scope of the loss or damage to the
Existing Partners within 60 (in words: sixty) days
after the day the New Partner has become aware of the
Breach or Non- Fulfillment arose;
13.4.4. is specifically, fairly and fully disclosed in
writing to the New Partner before the Signing Date;
13.4.5. is covered by means of a reserve in the 1998 Annual
Accounts, on the understanding that, for the
application of this Article 13.4.5, reserves which
are (or should be) released after the First
Completion Date shall be added to reserves which at
that instance are found to be insufficient for the
underlying Damage; or if there is not definitive
insight concerning the sufficiency of the other
reserves, shall be included in a new general reserve
that
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shall be created for the purpose of supplementing
reserves found at a later instance to be insufficient
to cover the underlying Damage, whereby cases of
Damage for which reserves are nonexistent or
insufficient at the instance of liability and which
occurred prior to release within the meaning of this
Article 13.4.5, shall be set-off retroactive against
a released reserve;
13.4.6. are solely due to changes in legislation, regulations
or case law that had taken effect after the First
Completion Date and except as specifically provided
for in this Share Purchase Agreement;
13.4.7. is a consequence of a change after the First
Completion Date of the corporate or tax structure
or the accounting policies of the Companies;
13.4.8. would not have occurred without an action or omission
after the First Completion Date by the New Partner,
the Companies or any person whose action or omission
is attributable to the New Partner and/or the
Companies which bear a material connection to the
Damage;
13.4.9. if and to the extent it reduces the tax obligations
of the New Partner relating to its investment in the
Company or of the Companies after the First
Completion Date and except as specifically provided
for in this Share Purchase Agreement;
13.4.10. and furthermore, if and to the extent that the
alleged Breach or Nonfulfillment is not submitted by
the New Partner to the arbitral body referred to in
article 40 of the Partnership Agreement within a
period of three months after the written notification
by the New Partner to Existing Partners of the Breach
or Non-Fulfillment.
13.5. The Existing Partners and the Company shall ensure that reasonable
steps are taken to prevent or mitigate Damages, which could give rise
to a claim by virtue of this Article 13. If the Damages concerned
are a consequence of or bears connection to a claim from or
liability towards a third party neither the Existing Partner nor
the Company shall in the matter of such claim or liability agree
to any term with the third party without prior written permission
from the New Partner. In addition, the Company shall not agree to
any such terms without prior permission from the Existing Partners.
The Company shall keep the New Partner and the
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Existing Partners fully informed of such Damages and of the defense
to be conducted by the Company.
13.6. A Damage claim against the Existing Partners in connection with a
Breach or Non-Fulfillment shall not be permitted for any individual
claims for an amount below NLG 1,000,000 (in words: one million Dutch
Guilders), and in any event the aggregate amount of all claims (as
finally determined or agreed) in excess of NLG 1,000,000 (in words:
one million Dutch Guilders) must total more than NLG 150,000,000
(in words: one hundred and fifty million Dutch Guilders) before a
claim may be lodged, in which case the excess over NLG 150,000,000
(in words: one hundred and fifty million Dutch Guilders) shall be
payable.
13.7. Under no circumstances shall the aggregate amount of (i) all awards
or Damages awarded or agreed against the Existing Partners, (ii) a
reduction of the Purchase Price pursuant to Article 9.6, if any, and
(iii) any other payment obligation of the Existing Partners under
this Share Purchase Agreement other than (x) any payments to adjust
the estimated First Purchase Price to the actual First Purchase Price
to reflect changes in net debt and dividend payments as provided in
Schedule 2.1.1, (y) any requirements of an Existing Partner to pay
expenses under the provisions of the Partnership Documentation
including, but not limited to, articles 33.1 and 40.7 of the
Partnership Agreement and articles 9.4 and 9.8 and (z) any
obligation to pay interest in respect of an adjustment of the
Purchase Price as contemplated by Schedule 9.6, exceed an amount
equal to 40% (in words: forty percent) of the Purchase Price.
13.8. The New Partner shall not be entitled to make any claim against the
Existing Partners for any Breach or Non-Fulfillment unless notice in
writing of such claim is given prior to 1 May immediately following
the first full Fiscal Year of the Company after the First Completion
Date except for (i) a claim for a Breach of article 4.5 of Schedule
11.1 for which the New Partner shall not be entitled to make any
claim against the Existing Partners unless written notice of such
claim is given prior to the day 30 (in words: thirty) months after
the First Completion Date and (ii) a claim for a Breach relating to
tax, for which the New Partner shall not be entitled to make any
claim against the Existing Partners unless written notice of such
claim is given prior to the end of the period during which the
relevant Dutch tax authorities are competent, according to the laws
of the Netherlands, to impose an additional tax assessment
("navorderingsaanslag" or "naheffingsaanslag") concerning events,
omissions, acts or behaviors that have taken place prior to the First
Completion Date increased by a period of six months.
16
13.9. Any Damages and any other amount payable by each respective Existing
Partner under Article 13 shall only be payable at 1/3 (in words: one
third) of the amount otherwise due under the subsections of this
Article 13.
13.10. Without prejudice to the provisions of Article 9, the Existing
Partners shall not owe Damages to the New Partner by virtue of this
Article 13 or otherwise have obligations towards the New Partner if
and to the extent that the Damages ensue from or are related to
Stranded Costs.
13.11. The amount of any award or Damages owed by the Existing Partners to
the New Partner shall at the option of the Existing Partners be
either paid directly to the New Partner or subtracted from the
amount, if any, of the Second Purchase Price and the Third Purchase
Price if necessary, owed by the New Partner to the Existing Partners.
Any such obligation to make payment by the Existing Partners or
subtraction from the Purchase Price shall be allocated among the
Existing Partners in proportion to the numbers of First Tranche
Shares sold by the Existing Partners being 1/3 (in words: one third).
At the option of the New Partner, the New Partner may reduce the
Second Purchase Price and Third Purchase Price with respect to any
amounts it is entitled to receive (and has not received) from the
Existing Partners under this Article 13.
13.12. The Province of Utrecht and the Municipality of Utrecht jointly
("niet hoofdelijk"), irrevocably and unconditionally guarantee to the
New Partner as guarantor for Pegus prompt performance by Pegus of all
its obligations under or in connection with the Share Purchase
Agreement.
ARTICLE 14 TERMINATION
14.1. If the Partnership Agreement is terminated in accordance with Article
22 of the Partnership Agreement, this Share Purchase Agreement shall
terminate in accordance with its terms.
ARTICLE 15 MISCELLANEOUS
15.1. Articles 19 and 22 through 40 of the Partnership Agreement shall
govern this Share Purchase Agreement.
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IN WITNESS WHEREOF this Share Purchase Agreement has been executed by the
Parties hereof in eightfold on the date set out on page one.
SIGNED by
- --------------------------------------------
for and on behalf of Provincie Noord Holland
By: J.P.J. Lagrand
SIGNED by
- --------------------------------------------
for and on behalf of Gemeente Utrecht
By: H.H.W. Kernkamp
SIGNED by
- --------------------------------------------
for and on behalf of Gemeente Amsterdam
By: G. ter Horst
SIGNED by
- --------------------------------------------
for and on behalf of Provincie Utrecht
By: D.H. Kok
SIGNED by
- --------------------------------------------
for and on behalf of N.V. Provinciaal en
Gemeentelijk Utrechts Stroomleveringsbedrijf
By: M. ten Klooster
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SIGNED by
- --------------------------------------------
Reliant Energy Wholesale Holdings (Europe) Inc.
By: R. Steve Letbetter
SIGNED by
- --------------------------------------------
for and on behalf of Reliant Energy Power Generation, Inc.
By: R. Steve Letbetter
SIGNED by
- --------------------------------------------
for and on behalf of N.V. Energieproduktiebedrijf UNA
By: P. Koppen de Neve
19
Schedules to the Share Purchase Agreement
Schedule 1.1 : Definitions
Schedule 2.1.1 : First Tranche Shares
Schedule 2.2.2 : Second Tranche Shares and Third Tranche Shares
Schedule 2.3 : Principal Terms of Pledge Agreement
Schedule 4.1.2 : Second Completion Conditions
Schedule 4.1.3 : Third Completion Conditions
Schedule 6.3 : Draft Deed of Transfer
Schedule 7.2a : Second Completion Actions
Schedule 7.2b : Third Completion Actions
Schedule 9.1 : Expected Allocation
Schedule 9.6 : Adjustment Purchase Price
Schedule 10.1.1 : Data room Information
Schedule 11.1 : Warranties