case comp/b-1/39.315 – eni commitments submitted to...
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Rome, February 4, 2010
Case COMP/B-1/39.315 – ENI
COMMITMENTS SUBMITTED TO THE EUROPEAN COMMISSION
In accordance with Article 9 of Regulation (EC) No. 1/2003 (the “Regulation 1/2003”), Eni
S.p.A. hereby offers the following Commitments (the “Commitments”) to address the
competition concerns identified by the European Commission (the “Commission”) in the
Decision that formally opened proceeding COMP/B-1/39.315-ENI of April 20, 2007 (the
“Opening Decision”) and, subsequently, in the Statement of Objections of March 6, 2009 (the
“Statement of Objections”), enabling the Commission to adopt a decision confirming that the
Commitments meet its concerns (the “Decision”).
In compliance with Article 9 of Regulation 1/2003, the Commitments cannot in anyway be
regarded as an admission by Eni S.p.A. of any liability for alleged competition law
infringements.
Eni S.p.A. acts on the assumption that, by accepting the Commitments, the Commission will
confirm that there are no longer grounds for action by the Commission without concluding
whether or not there has been any infringement of EC competition rules.
This document shall be interpreted in light of the Opening Decision, the Statement of
Objections and the Decision, as well as within the general framework of European law and,
in particular, of Articles 101 and 102 TFEU and Regulation 1/2003.
Section A. Definitions
For the purpose of the Commitments, the following terms shall have the following meaning:
Affiliated Undertakings: the undertakings controlled by Eni S.p.A., whereby the notion of
control shall be interpreted pursuant to Article 3 of Council Regulation (EC) no. 139/2004 in
the light of the Commission Consolidated Jurisdictional Notice under Council Regulation
(EC) no. 139/2004 (“Merger Regulation”).
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Cassa Depositi e Prestiti S.p.A.: Cassa Depositi e Prestiti S.p.A., a company incorporated
under the laws of Italy, with registered office in Rome, Via Goito 4, and registered with the
Company Register of Rome under number 80199230584.
Closing: the transfer of the legal title of each of the Divestment Businesses to the
Purchaser(s).
Divestment Businesses: jointly, (i) the “Divestment Business Austria”, consisting of eni’s
89% participation in TAG GmbH, as further defined in Section B and Schedule 1 (A), (ii) the
“Divestment Business Germany”, consisting of eni’s 100% participation in Eni GmbH and
the 100% participation in Eni D, as further defined in Section B and Schedule 1 (B), and (iii)
the “Divestment Business Switzerland”, consisting of: (i) eni’s 46% participation in
Transitgas AG and (ii) eni’s 100% participation in Eni GTI, as further defined in Section B
and in Schedule 1 (C), that eni commits to divest.
Divestiture Trustee: a natural or legal person, independent from eni, who is approved by the
Commission and appointed by eni and who has received from eni the exclusive Trustee
Mandate to sell the Divestment Businesses to one or more Purchaser(s) at no minimum price.
Effective Date: the date of the notification of the Decision to eni.
eni: Eni S.p.A. and its Affiliated Undertakings.
Eni S.p.A.: Eni S.p.A., a company incorporated under the laws of Italy, with registered office
in Rome, Piazzale Mattei 1, and registered with the Company Register of Rome under
number 00484960588.
Eni D: Eni Gas Transport Deutschland S.p.A., a company incorporated under the laws of
Italy, with registered office in Via dell’Unione Europea 3a, San Donato Milanese, Italy, and
registered with the Company Register of Milan under number 08104960011.
Eni GmbH: Eni GmbH, a company incorporated under the laws of Germany, with registered
office in Martin-Luther Platz 28, Dusseldorf, Germany, and registered with the Company
Register of Dusseldorf under number HRB 60917, holding a 49% participation in Trans
Europa Naturgas Pipeline GmbH & Co. KG, a company incorporated under the laws of
Germany, with registered office in Ruhrallee 74, Essen, Germany, and registered with the
Company Register of Essen under number HRA 8548 and a 50% participation in Trans
Europa Naturgas Pipeline Verwaltungs GmbH, a company incorporated under the laws of
Germany, with registered office in Ruhrallee 74, Essen, Germany, and registered with the
Company Register of Essen under number HRB 18708.
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Eni GTI: Eni Gas Transport International SA, a company incorporated under the laws of
Switzerland, with registered office in via Guglielmo Marconi 4, Lugano, Switzerland, and
registered with the Company Register of Lugano under number CH-020.3.924.300-0.
First Divestiture Period: the period of […]* from the Effective Date.
Hold Separate Manager: the persons appointed by eni for the Divestment Businesses to
manage the day-to-day business under the supervision of the Monitoring Trustee.
Key Personnel: all personnel necessary to maintain the viability, marketability and reliability
of the Divestment Businesses, as listed in Schedule 1 (A-C).
Monitoring Trustee: a natural or legal person, independent from eni, who is approved by the
Commission and appointed by eni, and who has the duty to monitor eni’s compliance with
the conditions and obligations attached to the Decision.
Personnel: all personnel currently employed by the Divestment Businesses, including Key
Personnel, staff seconded to the Divestment Businesses, shared personnel and the additional
personnel listed in the Schedule 1.
Purchaser(s): one or more legal entities approved by the Commission as acquiror(s) of the
Divestment Businesses in accordance with the criteria set out in Section D.
TAG GmbH: Trans Austria Gasleitung GmbH, a company incorporated under the law of
Austria, with registered office in Wiedner Hauptstrasse 120-124, Wien, Austria, and
registered with the Company Register of Wien under number FN 122567 x.
Transitgas AG: Transitgas AG, a company incorporated under the laws of Switzerland, with
registered office in Baumackerstrasse 46, Zurich, Switzerland, and registered with the
Company Register of Zurich under number CH-020.3.926.636.5.
* Business secret
Trustee(s): the Monitoring Trustee and the Divestiture Trustee.
Trustee Divestiture Period: the period of […]* from the end of the First Divestiture Period.
Section B. The Divestment Businesses
Commitment to divest
1. In order to meet the concerns of the Commission as expressed in the Opening Decision
and in the Statement of Objections, eni commits to divest, or procure the divestiture of
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the Divestment Businesses by the end of Trustee Divestiture Period to one or more
Purchaser(s) and on terms of sale approved by the Commission in accordance with the
procedure described in paragraph 22. To carry out the divestiture, eni commits to find the
Purchaser(s) and to enter into one or more final binding sale and purchase agreements for
the sale of the Divestment Businesses within the First Divestiture Period.
2. With specific respect to the Divestment Business Austria, within the First Divestiture
Period, eni commits to enter into a binding sale and purchase agreement for the sale of
the Divestment Business Austria with a public administration belonging to the Italian
Government or a public entity or joint-stock company directly or indirectly controlled by
the Italian Government, meeting the requirements set forth in paragraph 21 below.
3. If eni has not entered into such agreement(s) at the end of the First Divestiture Period, eni
shall grant the Divestiture Trustee one or more exclusive mandate(s) to sell the
Divestment Businesses in accordance with the procedure described in paragraph 31 in the
Trustee Divestiture Period. With specific respect to the Divestment Business Austria, the
Divestiture Trustee shall be free to sell it to a purchaser other than a public administration
belonging to the Italian Government or a public entity or joint-stock company directly or
indirectly controlled by the Italian Government, subject to the relevant shareholders’
agreement.
4. eni shall be deemed to have complied with the Commitments if, by the end of the Trustee
Divestiture Period, eni has entered into final binding sale and purchase agreement(s), if
the Commission approves the Purchaser(s) and the terms of sale in accordance with the
procedure described in paragraph 22 and if the closing of the sale of each of the
Divestment Businesses takes place within a period not exceeding 3 months after the
approval of the relevant purchaser and the terms of sale by the Commission.
5. In order to maintain the structural effect of the Commitments, eni shall, for a period of 10
years after the Effective Date, not acquire direct or indirect influence over the whole or
part of the Divestment Businesses, unless the Commission has previously found that the
structure of the market has changed to such an extent that the absence of influence over
the Divestment Businesses is no longer necessary.
Structure and definition of the Divestment Businesses
6. The Divestment Business Austria consists of: eni’s 89% participation in TAG GmbH as
specified in Schedule 1 (A).
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7. The Divestment Business Germany consists of: (i) eni’s 100% participation in Eni GmbH
and (ii) eni’s100% participation in Eni D as specified in Schedule 1 (B).
8. The Divestment Business Switzerland consists of: (i) eni’s 46% participation in
Transitgas AG and (ii) eni’s 100% participation in Eni GTI as specified in Schedule 1
(C).
9. The present legal and functional structure of the Divestment Businesses as operated to
date is described in Schedule 1 (A-C). The Divestment Businesses, described in more
detail in Schedule 1 (A-C), include:
a. all tangible and intangible assets (including intellectual
property rights), which contribute to the current operation or
are necessary to ensure the viability and reliability of the
Divestment Businesses;
b. all licences, permits and authorisations issued by any
governmental organisation for the benefit of the Divestment
Businesses;
c. all contracts, leases, commitments and customer orders of the
Divestment Businesses; all customers, credits and other records
of the Divestment Businesses (items referred to under (a)-(c)
hereinafter collectively referred to as “Assets”);
d. the Personnel.
Section C. Related Commitments
Preservation of Viability, Marketability and Reliability
10. From the Effective Date until Closing, eni shall preserve the economic viability,
marketability and reliability of the Divestment Businesses, in accordance with good
business practice, and shall minimise as far as possible any risk of loss of competitive
potential of the Divestment Businesses. In particular eni undertakes:
(a) not to carry out any act upon its own authority that might have a significant adverse
impact on the value, management or reliability of the Divestment Businesses or that
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might alter the nature and scope of activity, or the industrial or commercial strategy or the
investment policy of the Divestment Businesses;
(b) to make available sufficient resources for the development of the Divestment
Businesses, on the basis and continuation of the existing business plans;
(c) to take all reasonable steps, including appropriate incentive schemes (based on
industry practice), to encourage all Key Personnel to remain with the Divestment
Business.
Hold-separate obligations of eni
11. eni commits, from the Effective Date until Closing, to keep the Divestment Businesses
separate from the businesses it is retaining and to ensure that Key Personnel of the
Divestment Businesses – including the Hold Separate Manager – have no involvement in
any business retained and vice versa. eni shall also ensure that the Personnel does not
report to any individual outside the Divestment Businesses.
12. Until Closing, eni shall assist the Monitoring Trustee in ensuring that the Divestment
Businesses are managed as distinct and saleable entities separate from the businesses
retained by eni. eni shall appoint one or more Hold Separate Manager(s) who shall be
responsible for the management of the Divestment Businesses, under the supervision of
the Monitoring Trustee. The Hold Separate Manager(s) shall manage the Divestment
Businesses independently and in the best interest of the businesses with a view to
ensuring their continued economic viability, marketability and reliability and their
independence from the businesses retained by eni.
13. To ensure that each Divestment Business is held and managed as a separate entity, the
Monitoring Trustee shall exercise eni’s rights as shareholder in each Divestment Business
(except for its rights for dividends that are due before Closing), with the aim of acting in
the best interest of the business, determined on a stand-alone basis, as an independent
financial investor, and with a view to fulfilling eni’s obligations under the Commitments.
Furthermore, the Monitoring Trustee shall have the power to replace members of the
supervisory board or non-executive directors of the board of directors, who have been
appointed on behalf of eni. Upon request of the Monitoring Trustee, eni shall cause its
nominees in the boards to resign.
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Ring-fencing
14. eni shall implement all necessary measures to ensure that it does not after the Effective
Date obtain any business secrets, know-how, commercial information, or any other
information of a confidential or proprietary nature relating to the Divestment Businesses.
In particular, the participation of the companies involved in the Divestment Businesses in
a central information technology network shall be severed to the extent possible, without
compromising the viability of same companies. eni may obtain information relating to the
Divestment Businesses which is reasonably necessary for the divestiture of the
Divestment Businesses or whose disclosure to eni is required by law.
Non-solicitation clause
15. eni undertakes, subject to customary limitations, not to solicit, and to procure that
Affiliated Undertakings do not solicit, the Key Personnel transferred with and employed
by the Divestment Businesses for a period of 5 years after Closing. As to the Key
Personnel seconded by eni to the Divestment Businesses at the date of Closing, eni
undertakes to take all reasonable steps, including appropriate incentive schemes: (i) to
allow the Purchaser(s) of the Divestment Businesses to hire such Key Personnel and (ii) if
so required by the Purchaser(s) of the Divestment Businesses, to keep in place the
secondment of such Key Personnel for a period of […]* after Closing, it being
understood that, in such case, the Purchaser(s) will reimburse eni for the salary of such
Key Personnel.
Due Diligence
16. In order to enable potential purchasers to carry out a reasonable due diligence of the
Divestment Businesses, eni shall, subject to customary confidentiality assurances and
dependent on the stage of the divestiture process:
(a) provide to potential purchasers sufficient information as regards the Divestment
Businesses; and
(b) provide to potential purchasers sufficient information relating to the Personnel and
allow them reasonable access to the Personnel.
Reporting
17. eni shall submit written reports in Italian on potential purchasers of the Divestment
Businesses and developments in the negotiations with such potential purchasers to the
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Commission and the Monitoring Trustee no later than 10 days after the end of every
month following the Effective Date (or otherwise at the Commission’s request).
18. eni shall inform the Commission and the Monitoring Trustee on the preparation of the
data room documentation and the due diligence procedure and shall submit a copy of an
information memorandum to the Commission and the Monitoring Trustee before sending
the memorandum out to potential purchasers.
Section D. The Purchaser(s)
19. The Purchaser(s) of the Divestiture Business Germany and Divestiture Business
Switzerland, in order to be approved by the Commission, must fulfill all the following
requirements:
- be independent of and unconnected to eni;
- have the financial resources, proven expertise and incentive to maintain and
develop the Divestment Business as a viable and reliable facility; and
- neither be likely to create, in the light of the information available to the
Commission, prima facie competition concerns nor give rise to a risk that the
implementation of the Commitments will be delayed and must, in particular,
reasonably be expected to obtain all necessary approvals from the relevant
regulatory authorities for the acquisition of the Divestment Business.
20. The Purchaser of the Divestment Business Austria will be either Cassa Depositi e Prestiti
S.p.A.1 or, alternatively, another entity that, in order to be approved by the Commission,
must fulfill all the following requirements:
- be independent of and unconnected to eni;
- have the financial resources, proven expertise and incentive to maintain and
develop the Divestment Business Austria as a viable and reliable facility; and
- neither be likely to create, in the light of the information available to the
Commission, prima facie competition concerns nor give rise to a risk that the
implementation of the Commitments will be delayed, and must, in particular,
1 In this case eni’s 89% participation in TAG GmbH, once acquired by Cassa Depositi e Prestiti S.p.A., will be subject to the latter’s ordinary regime for accounting and organizational purpose (as opposed to the “separate management” regime established pursuant to Article 5, paragraph 8, of the Law decree No. 269 dated 30 September 2003, as subsequently amended and converted into law by Law No. 326 dated 24 November 2003 as subsequently amended).
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reasonably be expected to obtain all necessary approvals from the relevant
regulatory authorities for the acquisition of the Divestment Business Austria.
In the First Divestiture Period, the Purchaser of the Divestment Business Austria must be
either a public administration belonging to the Italian Government (e.g., a Ministry) or a
public entity or joint-stock company directly or indirectly controlled by the Italian
Government.
21. In this case, in addition to the requirements set out above, the Purchaser on the one hand
and eni on the other hand shall have an independent power of decision. In order to
comply with this requirement, both eni and the Purchaser shall set independently their
respective business plans, budgets, and strategies, in their own commercial interests
[…]*. Relevant factors that may be taken into account when assessing the independent
power of decision of the two entities, include, but are not necessarily limited to: (a) the
lack of interlocking directorships between eni and the Purchaser; and (b) the existence of
adequate safeguards ensuring that commercially sensitive information is not shared
between them. […]*.
22. The final binding sale and purchase agreement(s) shall be conditional on the
Commission’s approval. When eni has reached an agreement with a purchaser, it shall
submit a fully documented and reasoned proposal, including a copy of the final
agreement(s), to the Commission and the Monitoring Trustee. eni must be able to
demonstrate to the Commission that the purchaser meets the purchaser requirements set
out in, as the case may be, paragraphs 19, 20 and, if applicable, 21 above and that the
Divestment Businesses are being sold in a manner consistent with the Commitments. For
the approval, the Commission shall verify that the purchaser fulfils said purchaser
requirements and that the Divestment Businesses are being sold in a manner consistent
with the Commitments. The Commission may approve the sale of each Divestment
Business without parts of the Personnel, if this does not affect the viability and reliability
of the Divestment Business after the sale, taking account of the proposed purchaser.
Section E. Trustee
I. Appointment Procedure
23. eni shall appoint one Monitoring Trustee to carry out the functions specified in the
Commitments for the Monitoring Trustee. If eni has not entered into a binding sale and
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purchase agreement one month before the end of the First Divestiture Period or if the
Commission has rejected a purchaser proposed by eni at that time or thereafter, eni shall
appoint one Divestiture Trustee to carry out the functions specified in the Commitments
for a Divestiture Trustee. The appointment of the Divestiture Trustee shall take effect
upon the commencement of the Trustee Divestment Period.
24. The Trustee shall be independent of eni, possess the necessary qualifications to carry out
its mandate, for example as an investment bank or consultant or auditor, and shall neither
have nor become exposed to a conflict of interest. The Trustee shall be remunerated by
eni in a way that does not impede the independent and effective fulfilment of its mandate.
In particular, where the remuneration package of the Divestiture Trustee includes a
success premium linked to the final sale value of the Divestment Businesses, the fee shall
also be linked to a divestiture within the Trustee Divestiture Period.
Proposal by eni
25. No later than one week after the Effective Date, eni shall submit a list of one or more
persons whom eni proposes to appoint as Monitoring Trustee to the Commission for
approval. No later than one month before the end of the First Divestiture Period, eni shall
submit a list of one or more persons whom eni proposes to appoint as Divestiture Trustee
to the Commission for approval. The proposal shall contain sufficient information for the
Commission to verify that the proposed Trustee fulfil the requirements set out in
paragraph 24 and shall include:
(a) the full terms of the proposed mandate, which shall include all provisions necessary to
enable the Trustee to fulfil its duties under these Commitments;
(b) the outline of a work plan which describes how the Trustee intends to carry out its
assigned tasks;
(c) an indication whether the proposed Trustee is to act as both Monitoring Trustee and
Divestiture Trustee for the Divestment Businesses or whether different trustees are
proposed for the two functions.
Approval or rejection by the Commission
26. The Commission shall have the discretion to approve or reject the proposed Trustee and
to approve the proposed mandate subject to any modification it deems necessary for the
Trustee to fulfil its obligations. If only one name is approved, eni shall appoint or cause to
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be appointed, the individual or institution concerned as Trustee, in accordance with the
mandate approved by the Commission. If more than one name is approved, eni shall be
free to choose the Trustee to be appointed from among the names approved. The Trustee
shall be appointed within one week of the Commission’s approval, in accordance with the
mandate approved by the Commission.
New proposal by eni
27. If all the proposed Trustees are rejected, eni shall submit the names of at least two more
individuals or institutions within one week of being informed of the rejection, in
accordance with the requirements and the procedure set out in paragraphs 23 and 26.
Trustee nominated by the Commission
28. If all further proposed Trustees are rejected by the Commission, the Commission shall
nominate a Trustee, whom eni shall appoint, or cause to be appointed, in accordance with
a Trustee mandate approved by the Commission.
II. Functions of the Trustee
29. The Trustee shall assume its specified duties in order to ensure compliance with the
Commitments. The Commission may, on its own initiative or at the request of the Trustee
or eni, give any order or instruction to the Trustee in order to ensure compliance with the
conditions and obligations attached to the Decision.
Duties and obligations of the Monitoring Trustee
30. The Monitoring Trustee shall:
(i) propose in its first report to the Commission a detailed work plan describing how it
intends to monitor compliance with the obligations and conditions attached to the
Decision.
(ii) oversee the on-going management of the Divestment Businesses with a view to
ensuring their continued economic viability, marketability and reliability and monitor
compliance by eni with the conditions and obligations attached to the Decision. To
that end the Monitoring Trustee shall:
(a) monitor the preservation of the economic viability, marketability and
reliability of the Divestment Businesses, and the keeping separate of the
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Divestment Businesses from the business retained by eni, in accordance with
paragraphs 10 and 11 of the Commitments;
(b) supervise the management of the Divestment Businesses as distinct and
saleable entities, in accordance with paragraph 12 of the Commitments;
(c) (i) in consultation with eni, determine all necessary measures to ensure that
eni does not after the Effective Date obtain any business secrets, know-how,
commercial information, or any other information of a confidential or
proprietary nature relating to the companies involved in the Divestment
Businesses, in particular strive for the severing of such company’s
participation in a central information technology network to the extent
possible, without compromising the viability of the Divestment Businesses,
and (ii) decide whether such information may be disclosed to eni as the
disclosure is reasonably necessary to allow eni to carry out the divestiture or
as the disclosure is required by law;
(d) monitor the allocation of Personnel between the Divestment Businesses and
eni;
(iii) assume the other functions assigned to the Monitoring Trustee under the conditions
and obligations attached to the Decision;
(iv) propose to eni such measures as the Monitoring Trustee considers necessary to
ensure eni’s compliance with the conditions and obligations attached to the Decision,
in particular the maintenance of the full economic viability, marketability and
reliability of the Divestment Businesses, the holding separate of the Divestment
Businesses and the non-disclosure of competitively sensitive information;
(v) review and assess potential purchasers as well as the progress of the divestiture
process and verify that, dependent on the stage of the divestiture process, (a) potential
purchasers receive sufficient information relating to the Divestment Businesses and
the Personnel in particular by reviewing, if available, the data room documentation,
the information memorandum and the due diligence process, and (b) potential
purchasers are granted reasonable access to the Personnel;
(vi) provide to the Commission, sending eni a non-confidential copy at the same time, a
written report within 15 days after the end of every month. The report shall cover the
operation and management of the Divestment Businesses so that the Commission can
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assess whether the businesses are held in a manner consistent with the Commitments
and the progress of the divestiture process as well as potential purchasers. In addition
to these reports, the Monitoring Trustee shall promptly report in writing to the
Commission, sending eni a non-confidential copy at the same time, if it concludes on
reasonable grounds that eni is failing to comply with these Commitments;
(vii) within one week after receipt of the documented proposal referred to in paragraph
22, submit to the Commission a reasoned opinion as to the suitability and
independence of the proposed purchaser and the viability of the relevant Divestment
Business after the sale and as to whether the Divestment Business is sold in a manner
consistent with the conditions and obligations attached to the Decision, in particular,
if relevant, whether the sale of the Divestment Business without part of the Personnel
affects the viability of the relevant Divestment Business after the sale, taking account
of the proposed purchaser.
Duties and obligations of the Divestiture Trustee
31. Within the Trustee Divestiture Period, the Divestiture Trustee shall sell at no minimum
price the Divestment Businesses to one or more purchaser(s), provided that the
Commission has approved the purchaser(s) and the final binding sale and purchase
agreement(s) in accordance with the procedure laid down in paragraph 22. As already
indicated in paragraph 3 above, with specific respect to the Divestment Business Austria,
the Divestiture Trustee shall be free to sell it to a purchaser other than a public
administration belonging to the Italian Government or a public entity or joint-stock
company directly or indirectly controlled by the Italian Government. […]*.
32. The Divestiture Trustee shall include in the sale and purchase agreement(s) such terms
and conditions as considered appropriate for an expedient sale in the Trustee Divestiture
Period. In particular, the Divestiture Trustee may include in the sale and purchase
agreement such customary representations and warranties and indemnities as are
reasonably required to effect the sale. The Divestiture Trustee shall protect the legitimate
financial interests of eni, subject to eni’s unconditional obligation to divest at no
minimum price in the Trustee Divestiture Period.
33. In the Trustee Divestiture Period (or otherwise at the Commission’s request), the
Divestiture Trustee shall provide the Commission with a comprehensive monthly report
written in Italian on the progress of the divestiture process. Such reports shall be
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submitted within 15 days after the end of every month with a simultaneous copy to the
Monitoring Trustee and a non-confidential copy to eni.
III. Duties and obligations of eni
34. eni shall provide and shall cause its advisors to provide the Trustee with all such
cooperation, assistance and information as the Trustee may reasonably require to perform
its tasks. The Trustee shall have full and complete access to any of eni’s or the
Divestment Businesses’ books, records, documents, management or other personnel,
facilities, sites and technical information necessary for fulfilling its duties under the
Commitments and eni and the Divestment Businesses shall provide the Trustee upon
request with copies of any document. eni and the Divestment Businesses shall make
available to the Trustee one or more offices on their premises and shall be available for
meetings in order to provide the Trustee with all information necessary for the
performance of its tasks.
35. eni shall provide the Monitoring Trustee with all managerial and administrative support
that it may reasonably request on behalf of the management of the Divestment
Businesses. This shall include all administrative support functions relating to the
Divestment Businesses which are currently carried out at headquarters level. eni shall
provide and shall cause its advisors to provide the Monitoring Trustee, on request, with
the information submitted to potential purchasers, in particular give the Monitoring
Trustee access to the data room documentation and all other information granted to
potential purchasers in the due diligence procedure. eni shall inform the Monitoring
Trustee on possible purchasers, submit a list of potential purchasers, and keep the
Monitoring Trustee informed of all developments in the divestiture process.
36. eni shall grant or procure Affiliated Undertakings to grant comprehensive powers of
attorney, duly executed, to the Divestiture Trustee to effect the sale, the Closing and all
actions and declarations which the Divestiture Trustee considers necessary or appropriate
to achieve the sale and the Closing, including the appointment of advisors to assist with
the sale process […]*. Upon request of the Divestiture Trustee, eni shall cause the
documents required for effecting the sale and the Closing to be duly executed.
37. eni shall indemnify the Trustee and its employees and agents (each an “Indemnified
Party”) and hold each Indemnified Party harmless against, and hereby agrees that an
Indemnified Party shall have no liability to eni for any liabilities arising out of the
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performance of the Trustee’s duties under the Commitments, except to the extent that
such liabilities result from the wilful default, recklessness, gross negligence or bad faith
of the Trustee, its employees, agents or advisors.
38. At the expense of eni, the Trustee may appoint advisors (in particular for corporate
finance or legal advice), subject to eni’s approval (this approval not to be unreasonably
withheld or delayed) if the Trustee considers the appointment of such advisors necessary
or appropriate for the performance of its duties and obligations under the Mandate,
provided that any fees and other expenses incurred by the Trustee are reasonable. Should
eni refuse to approve the advisors proposed by the Trustee the Commission may approve
the appointment of such advisors instead, after having heard eni. Only the Trustee shall
be entitled to issue instructions to the advisors. Paragraph 37 shall apply mutatis
mutandis. In the Trustee Divestiture Period, the Divestiture Trustee may use advisors who
served eni during the Divestiture Period if the Divestiture Trustee considers this in the
best interest of an expedient sale.
IV. Replacement, discharge and reappointment of the Trustee
39. If a Trustee ceases to perform its functions under the Commitments or for any other good
cause, including the exposure of the Trustee to a conflict of interest:
(a) the Commission may, after hearing the Trustee, require eni to replace the Trustee; or
(b) eni, with the prior approval of the Commission, may replace the Trustee.
40. If the Trustee is removed according to paragraph 39, the Trustee may be required to
continue in its function until a new Trustee is in place to whom the Trustee has effected a
full hand over of all relevant information. The new Trustee shall be appointed in
accordance with the procedure referred to in paragraphs 23-28.
41. Beside the removal according to paragraph 39, the Trustee shall cease to act as Trustee
only after the Commission has discharged it from its duties after all the Commitments
with which the Trustee has been entrusted have been implemented. However, the
Commission may at any time require the reappointment of the Monitoring Trustee if it
subsequently appears that the relevant remedies might not have been fully and properly
implemented.
Section F. The Review Clause
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42. Pursuant to Article 9 (2) (a) of Regulation 1/2003, eni may request the Commission to
reopen the proceedings with a view to modifying the Commitments where there has been
a material change in any of the facts on which the Decision pursuant to Article 9 (1) of
Regulation 1/2003 is based.
43. Without prejudice to Article 9 (2) of Regulation 1/2003, the Commission may, should
difficulties with implementation occur, in response to a request from eni showing good
cause and accompanied by a report from the Monitoring Trustee:
(i) grant an extension of the time periods foreseen in the Commitments, or
(ii) waive, modify or substitute, in exceptional circumstances, one or more of the
undertakings in these Commitments.
44. Where eni seeks an extension of a time period, it shall submit a request to the
Commission no later than one month before the expiry of that period, showing good
cause. Only in exceptional circumstances shall eni be entitled to request an extension
within the last month of any period.
Section G. Final Provisions
45. The Commitments shall take effect upon the date of notification of a decision pursuant to
Article 9 of Regulation 1/2003 by which the Commission makes the Commitments
binding.
46. eni will publish and keep updated the non-confidential version of these Commitments in a
prominent way on its website. The non-confidential version has to be approved by the
Commission.
……………………………………
duly authorised for and on behalf of eni
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Schedule 1 (A): Divestment Business Austria
1. The Divestment Business Austria consists of eni’s 89% participation in TAG GmbH.
Eni
Trans Austria Gas GmbH(Austria)
89%
Eni International BV
100%
1. TAG GmbH, as operated to date, has the following legal and functional structure: • Legal structure:
TAG GmbH is a joint venture between Eni International BV (89%) and OMV Gas GmbH (11%). TAG GmbH’s corporate governance rules confer joint control to the two shareholders. Shareholders’ Agreements also regulate the transferability of the shares in TAG. In addition to the Board of Directors composed by two directors […]*, TAG GmbH operates through the following committees and corporate bodies: • […]*.
• […]*. • […]*.
• Functional structure: TAG GmbH holds 100% of the capacity rights for the transport of natural gas on the TAG pipeline system pursuant to a lease agreement valid […]*. The TAG pipeline system consists of three lines, five compressor stations, auxiliary equipment and several intake and offtake points and leads from the Slovakian/Austrian border to the Austrian/Italian border covering a length of about 380 km. OMV Gas GmbH (100% OMV AG) is the owner of such pipeline.
• Organizational chart: See Attachment A.1.
2. Following paragraphs 6 and 9 of the Commitments, the Divestment Business Austria includes eni’s participation in TAG GmbH. TAG GmbH’s relevant assets and liabilities, unless otherwise specified here below, include but are not limited to:
a. The following main tangible assets:
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Not applicable.
b. The following main intangible assets: […]*
c. The following main licenses, permits and authorizations: Not applicable.
d. The following main contracts, agreements, leases, commitments and understandings: • The Shareholders’ Agreement signed between Snam S.p.A (henceforth Eni
S.p.A.) and OMV Gas GmbH on […]*. The agreement defines the governance rules which establish the competences of TAG GmbH’s bodies.
• The Lease agreement, signed between TAG GmbH and OMV Gas GmbH on […]*, which grants TAG GmbH the right to use, operate and benefit from the pipeline system and any expansion thereof, by means of dedicated amendments. […]*.
• Operating and Maintenance Contract entered into between TAG GmbH and […]* and the subsequent amendments, pursuant to which […]*, shall perform the needed operating and maintenance activities on the pipeline system.
• […]*. • Several other technical and commercial agreements entered into with the
interconnected transmission system operators or other trading parties, in order to perform all day-to-day activities at the interconnection points.
e. The following customer, credit and other records: • All transportation contracts. Transportation rights are assigned to shippers
mainly through ship-or-pay long-term contracts.
Trans Austria Gasleitung
CAPACITY Reserved [Nm3/h]
Duration Type Entry Point Exit Point
4.702.495 LT Firm S/A-Border A/I-Border 535.029 LT Firm S/A-Border Austrian market 35.000 ST Firm S/A-Border A/I-Border 14.280 ST Firm S/A-Border Austrian market
It is understood that the divestiture of the participation in TAG GmbH shall not affect the effectiveness of the transport contracts in force at the time of Closing between TAG GmbH, on the one side, and shippers, on the other side. eni confirms that between December 22, 2009 and Closing it shall not prolong or renew any transport contract or enter into any new transport contract for the benefit of eni as shipper on the TAG pipeline system, except for possible future
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auctions and other public allocation procedures for reverse flow transportation capacity towards markets other than the Italian one.2
f. The following Personnel: TAG GmbH’s personnel is composed of seventeen employees […]*. For the breakdown by function and details on personnel to be potentially transferred please refer to the organizational chart (Attachment A.1).
g. The following Key Personnel: Name Position Status […]* Managing Director Eni […]* […]* Regulatory Affairs […]* […]* Administration & Finance Manager […]* […]* Operation & Maintenance Manager […]* […]* Contracts Management Manager […]*
Please see Attachment A.1
h. The arrangements for the supply with the following products or services by eni or Affiliated Undertakings for a transitional period after Closing: eni may provide up to a limited period of time agreed with the qualified Purchaser some services necessary to guarantee the viability of the Divestment Business Austria and which are currently provided by Eni GTI as shared functions (please refer to Schedule 1 (C)). .
3. The Divestment Business shall not include: Not applicable.
2 Under a technical standpoint, such reverse flow transportation capacity would not lower the capacity
available on the TAG pipeline system towards the Italian gas market.
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Attachment A.1.
COMPANY SECRETARY POOL
HUMAN RESOURCES
SHARED FUNCTIONS
KEY FUNCTIONSTrans Austria Gasleitung GmbH FUNCTIONS NOT INCLUDED IN
THE DIVESTEMENT BUSINESS
REGULATORY AFFAIRS
CONTRACTS MANAGEMENT
OPERATIONS & MAINTENANCE
MANAGING DIRECTORS
ADMINISTRATION & FINANCE
OPERATORS OPERATORSOPERATORS
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Schedule 1 (B): Divestment Business Germany The Divestment Business Germany consists of eni’s 100% participation in Eni GmbH and eni’s 100% participation in Eni D.
TENP VerwaltungsGmbH
(Germany)
Eni
Eni Gas Transport GmbH (Germany)
Eni Gas Transport Deutschland SpA
(Germany) B.1: Eni GmbH
3. Eni GmbH, as operated to date, has the following legal and functional structure: • Legal structure:
Eni GmbH (100% controlled by eni) is a company incorporated under the laws of Germany, with registered office in Martin-Luther Platz 28, Dusseldorf, Germany, and registered with the Company Register of Dusseldorf under number HRB 60917.
• Functional structure: Consists only of the Board of Directors.
• Organisational chart: Eni GmbH has […]*.
4. Following paragraphs 7 and 9 of these Commitments, the Divestment Business
Germanyincludes, but is not limited to: a. The following main tangible assets:
Eni GmbH holds a 49% participation in Trans Europa Naturgas Pipeline GmbH & Co. KG, a company incorporated under the laws of Germany, with registered
100% 100%
TENP GmbH & Co. KG(Germany)
49%
50%
0,001%
100%
Eni International BV
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office in Ruhrallee 74, Essen, Germany, and registered with the Company Register of Essen under number HRA 8548 and a 50% participation in Trans Europa Naturgas Pipeline Verwaltungs GmbH, a company incorporated under the laws of Germany, with registered office in Ruhrallee 74, Essen, Germany, and registered with the Company Register of Essen under number HRB 18708.
b. The following main intangible assets: Not applicable.
c. The following main licenses, permits and: Not applicable.
d. The following main contracts, agreements, leases, commitments and understandings: Not applicable.
e. The following customer, credit and other records: Not applicable.
f. The following Personnel: Eni GmbH has only one employee.
g. The following Key Personnel: Not applicable
h. The arrangements for the supply with the following products or services by eni for a transitional period after Closing:
Not applicable.
3. The Divestment BusinessGermany shall not include: eni’s logo and related trademarks.
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B.2: Trans Europa Naturgas Pipeline Verwaltung GmbH (“TENP VW”) 1. TENP VW as operated to date has the following legal structure:
TENP VW is a company incorporated under the laws of Germany, with registered office in Ruhrallee 74, Essen, Germany, and registered with the Company Register of Essen under number HRB 18708.
TENP VW is controlled by the following companies: o Eni GmbH, which holds a 50% participation. o E.On Gastransport GmbH, which holds a 50% participation and is in
turn 100% controlled by E.On. TENP VW has no other business than to act as general partner of Trans Europa Naturgas Pipeline GmbH & Co. KG and to hold a 0.001% participation therein. B.3: Trans Europa Naturgas Pipeline GmbH & Co. KG (“TENP”) 1. TENP, as operated to date, has the following legal and functional structure:
• Legal structure: TENP is a company incorporated under the laws of Germany, with
registered office in Ruhrallee 74, Essen, Germany, and registered with the Company Register of Essen under number HRA 8548.
TENP is controlled by the following companies: o Eni GmbH, which holds a 49% participation. o TENP VW, which holds a 0.001% participation and is in turn 50/50
controlled by Eni GmbH and E.On Gastransport GmbH. o E.On Gastransport GmbH, which holds a 51% participation and is in
turn 100% controlled by E-On. TENP corporate governance rules substantially envisage a 50/50 joint
control by the two shareholders. TENP operates through the following corporate bodies and
committees: o Annual General Meeting: adoption of the annual financial
statements; amendments to the Articles of Association; transformation or dissolution of the partnership.
o […]* o […]* o […]*
• Functional structure:
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TENP directly owns and manages the Trans Europa Naturgas Pipeline while the entire capacity rights of the pipeline are assigned to the two carriers: Eni Gas Transport Deutschland S.p.A. (ca. […]*% of capacity rights); E.On Gas Transport (ca. […]*% of capacity rights).
• Organizational chart: See Attachment B.3.a.
• TENP pipeline system: The TENP pipeline system consists of two lines (36"-38"). The pipeline runs across the German territory for about 500 kilometres, from Bocholtz, at the Dutch border, where the TENP pipeline system is connected to the Dutch network operated by Gas Transport Services b.v., to the Swiss border, close to Wallbach, where the TENP pipeline system is interconnected with the Transitgas pipeline system. The system includes four compression stations located at Stolberg, Mittelbrunn, Schwarzach and Hügelheim. The TENP pipeline system includes a portion of the pipeline running from Stolberg to the Belgian border at Raeren/Eynatten, where the TENP system is connected to the Belgian network operated by Fluxys. More detailed information can be found in Attachment B.3.b.
• Real estate / property: The main real estate and property are those directly related to the TENP pipeline system. • The following main contracts, agreements, leases, commitments and
understandings: […]* Consortium Agreement: agreement between Eni S.p.A. and E.On
Gastransport GmbH, which are directly or indirectly the sole shareholders of TENP; it defines the governance rules of TENP and the provisions for the Beneficial Use Agreements with the carriers and the related ancillary agreements.
[…]* for the maintenance and inspection and safe operation and technical and commercial administration of the pipeline system and the relevant right of ways.
• TENP does not directly manage transportation rights and only leases the pipeline system to the carriers Eni Gas Transport Deutschland S.p.A. and E.On Gastransport GmbH, […]*.
• Personnel: TENP counts on a total of four employees: […]*.
• Key Personnel: Name Position Status […]* Managing Director TENP GmbH &Co. KG […]*
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(See Attachment B.3.a.) • The arrangements for the supply with the following products or services by eni
for a transitional period after Closing: eni may provide up to a limited period of time agreed with qualified Purchaser some services necessary to guarantee the viability of the Divestment Business Germany and which are currently provided by Eni GTI as shared functions (please refer to Schedule 1 (C)).
B.4 Eni D
1. Eni D, as operated to date, has the following legal and functional structure: • Legal structure:
Eni D (100% owned by Eni S.p.A) is a company incorporated under the laws of Italy, with registered office in Via dell’Unione Europea 3a, San Donato Milanese, Italy, and registered with the Company Register of Milan under number 08104960011. Eni D operates through a German Branch with registered offices in Martin-Luther-Platz 28, Düsseldorf, Germany enrolled in the Register of Companies of Düsseldorf, under HRB 54483.
• Functional structure: Eni D provides natural gas transportation services through its ca. […]*% capacity rights of TENP, with the remaining (ca. […]*%) capacity managed by the other carrier E.On Gastransport GmbH.
• Organisational chart: See Attachment B.4.a.
2. Following paragraphs 7 and 9 of the Commitments, the Divestment Business Germany includes, but is not limited to:
a. The following main tangible assets: Not applicable. The owner of the pipeline is TENP while Eni D directly manages the capacity rights for the transportation of the gas under a lease agreement expiring in […]*.
b. The following main intangible assets: Not applicable.
c. The following main licenses, permits and: License to act as transmission system operator in Germany (“Genehmigung nach par. $ Abs. 1 Energiewirtschaftsgesetz (EnWG) zur Aufnahme des Betriebs eines Energieversorgungsnetzes von 08 Dezember 2005”).
d. The following main contracts, agreements, leases, commitments and understandings:
• […]*
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• […]* • Memorandum of Understanding signed on May 29, 2009 among the partners
of the market area Net Connect Germany (Net Connect Germany GmbH, E.On Gastransport GmbH, GRTgaz Deutschland GmbH, GVS Netz GmbH and bayernetz GmbH).
• Interconnection Agreement in relation to Wallbach. Operational agreement for the management of the interconnection point Wallbach connecting the TENP and the Transitgas pipeline systems. […]*.
e. The following customer, credit and other records: • Transportation services are sold to shippers mainly through long term (>5
years) contracts (ca. 95%) with a ship-or-pay structure. The capacity contracts (entry and exit) concluded as of today are summarized in the table below:
CAPACITY Reserved [Nm3/h]
Duration Type Point Entry/Exit
1.346.226 LT Firm Wallbach Exit 48.663 ST Firm Wallbach Exit 1.346.226 LT Firm Bocholtz Entry 48.663 ST Firm Bocholtz Entry
It is understood that the divestiture of the participation in Eni D shall not affect the effectiveness of the transport contracts in force at the time of Closing between Eni D, on the one side, and shippers, on the other side. eni confirms that between December 12, 2009 and Closing it shall not prolong or renew any transport contract or enter into any new transport contract for the benefit of eni as shipper on the TENP pipeline system, except for possible future auctions and other public allocation procedures for reverse flow transportation capacity towards markets other than the Italian one.3
f. The following Personnel Eni D counts on a total of eight employees, […]*. For the breakdown by function and details on personnel to be potentially transferred please refer to the organizational chart (Attachment B.4.a).
g. The following Key Personnel
3 Under a technical standpoint, such reverse flow transportation capacity would not lower the capacity
available on the TENP pipeline system towards the Italian gas market.
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h. The arrangements for the supply with the following products or services by eni for a transitional period after Closing
Name Position Status […]* Branch Manager […]* […]* Commercial Operation Manager […]* […]* Contract & Tariffs Manager […]* […]* Metering Specialist […]*
• Fuel gas sale and purchase contract with […]*. • Service agreement for temporary swap concluded on […]*. eni may provide up to a limited period of time agreed with qualified Purchaser some services necessary to guarantee the viability of the Divestment Business Germany which are currently provided by Eni GTI as shared functions (please refer to Schedule 1 (C)). .
3. The Divestment Business Germany shall not include: i. eni’s logo and related trademarks.
Attachment B.3.a.
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ACCOUNTING SECRETARY
TENP GmbH & Co. KG FUNCTIONS NOT INCLUDED IN THE DIVESTEMENT BUSINESS
MANAGING DIRECTORS SHARED FUNCTIONS
KEY FUNCTIONS
Attachment B.3.b. […]*
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Attachment B. 4.a.
Commercial dispatching h24 operated by ENI GTI
OPERATOR COMMERCIAL OPERATOR
COMMERCIAL OPERATION CONTRACT & TARIFFS
BRANCH MANAGER
SECRETARY ACCOUNTING
Eni Gas Transport Deutschland S.p.A. KEY FUNCTIONS
CHAIRMAN
FUNCTIONS NOT INCLUDED IN THE DIVESTEMENT BUSINESS
SHARED FUNCTIONS
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Schedule 1 (C): Divestment Business Switzerland The Divestment Business Switzerland consists of: (i) eni’s 46% participation in Transitgas AG and (ii) eni’s 100% participation in Eni GTI after spinning-off of the activities different from those described below under letter B in point C.1.1 Functional structure).
Eni
Transitgas AG(Switzerland)
Eni Gas Transport International SA
(Switzerland)
46% 100%
Eni International BV
100%
C.1 Eni Eni GTI
5. Eni GTI, as operated to date, has the following legal and functional structure: • Legal structure:
Eni GTI is a company incorporated under the laws of Switzerland, with registered office in via Guglielmo Marconi 4, Lugano, Switzerland, and registered with the Company Register of Lugano under number CH-020.3.924.300-0.
• Functional structure: Eni GTI’s functions consist of the following main activities: A) Coordination, assistance and provision of services (e.g., legal, financial, administration, contracting, commercial operations, IT and communications, engineering, hydraulics, metering, operation and maintenance, materials, etc.) to the activities of the Divestment Businesses (Austria, Germany and Switzerland) and to other carriers as Greenstream, and Transmediterranean pipeline systems (“Shared Functions” highlighted in yellow in attachment C1.1.a): approximately 50% for the Divestment Businesses and 50% to other carriers business. The current organizational structure of Eni GTI is therefore optimised in terms of numbers and competences of the personnel. As a consequence, the Shared Functions of Eni GTI are concentrated in a few people - in most cases just one employee for each Shared Function - and it is therefore not possible to assign these people (mainly employees seconded by eni to Eni GTI) to each of the three Divestment Businesses.
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The activities under A) also fulfil all the tasks requested for complying with the activities that are specific to one sole shareholder in several infrastructures, i.e., eni. In brief, the main activities under A) are:
1. Management of rights and obligations deriving from the existing shareholders’ agreements and related agreements (i.e., participation in the Board of Directors, committees and other management bodies);
2. Definition of guidelines for the management and development of infrastructures and commercialization of the transport services;
3. Assistance in relation to market surveys and analysis of economic and operational implication of regulation developments;
4. Assistance to the definition and management of operational agreements;
5. Technical support for operations, maintenance and engineering of gas pipeline systems;
6. Legal support; 7. Planning, control, financial and administrative assistance; 8. Support for maintenance and developments of IT and
communications; 9. Management of human resources.
B) Marketing of approximately […]*% of the capacity of the Transitgas pipeline system under a lease agreement expiring in […]*. The main activities under B) are:
1. Management of transportation contracts including day by day relationships with transportation customers (nominations, confirmation, allocations etc.);
2. Definition and management of capacity allocation procedures; 3. Definition and management of operational agreements with the
interconnected transmission system operators; 4. Management of day-by-day relationships with transportation
customers (nominations, confirmation, allocations, etc.) for Eni D.
• Organizational chart: See Attachment C.1.a.
6. Following paragraphs 8 and 9 of these Commitments, the Divestment Business Switzerland includes:
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a. The following main tangible assets: Not applicable. The owner of the pipeline is Transitgas AG while Eni GTI directly manages the capacity rights for the transportation of the gas under a lease agreement expiring in […]*.
b. The following main intangible assets: Not applicable.
c. The following main licenses, permits and authorizations: Not applicable.
d. The following main contracts, agreements, leases, commitments and understandings: • Lease agreement: capacity rights are assigned to carriers (i.e., Eni GTI and
Swissgas AG) under a lease agreement expiring in […]* and signed by Eni S.p.A. and Swissgas AG. […]*.
• Shareholders’ Agreement in relation to Transitgas AG: it defines the object and the governance rules of the company (Transitgas AG) and the provisions related to the lease agreement. […]*.
• […]*. • […]*. • […]*. • Service contract between Eni GTI and Eni D (“Contratto di Servizi tra Eni
Gas Transport International SA e Eni Gas Transport Deutschland S.p.A.”). Pursuant to this contract, […]*, Eni GTI carries out the operational activities, as the processing of the nominations and renominations, on behalf of Eni D.
e. The following customer, credit and other records: Transportation services are sold to shippers mainly (i.e., […]*%) through long term contracts. The remaining […]*% is sold on the market on a short term basis (1-year and 3-year contracts). All contracts have a ship-or-pay structure. The capacity presently assigned through long and short term contracts is reported in the following table:
CAPACITY
Reserved [Nm3/h]
Duration Type Delivery Redelivery
[…]* LT Firm Oltingue Gries Pass […]* ST Firm Oltingue Gries Pass […]* LT Firm Wallbach Gries Pass […]* ST Firm Wallbach Gries Pass
It is understood that the divestiture of the participation in Eni GTI shall not affect the effectiveness of the transport contracts in force at the time of Closing between Eni GTI, on the one side, and shippers, on the other side. eni confirms that
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between Decemebr 22,2009 and Closing it shall not prolong or renew any transport contract or enter into any new transport contract for the benefit of eni as shipper on the Transitgas pipeline system, except for possible future auctions and other public allocation procedures for reverse flow transportation capacity towards markets other than the Italian one.4
f. The following Personnel: Eni GTI counts on a total of thirty employees, […]*. For the breakdown by function and details on personnel to be potentially transferred please refer to the organizational chart (Attachment C.1.a.).
g. The following Key Personnel: Name Position Status […]* Manager of Business Unit Switzerland […]* […]* Administration Finance & Planning Manager […]* […]* Senior Accountant […]* […]* Contracts Management Manager […]* […]* Commercial Operations Officer […]* […]* Dispatching Coordinator […]*
h. The main arrangements for the supply with the following products or services by eni for a transitional period after Closing: • Fuel gas and gas supply contract for balancing services (“Contratto di
fornitura di Fuel Gas e Gas per Servizi di Bilanciamento”). Object of the contract, […]*, is the selling of gas, from Eni S.p.A. to Eni GTI, to be used in the compressor station (fuel gas), as well as the selling and the purchasing of gas to balance the variation of line pack, the unaccounted gas and to balance the difference between the nominated quantities and the measured quantities at Gries Pass.
• eni may provide up to a limited period of time agreed with qualified Purchaser some services necessary to guarantee the viability of the Divestment Businesses (Austria, Germany and Switzerland) and which are currently provided by Eni GTI as Shared Functions as specified in points 1.A.3.-1.A.9. of the present Schedule.
3. The Divestment Business Switzerland shall not include:
eni’s logo and related trademarks as well other coordination, assistance and service activities (Shared Functions) which Eni GTI currently carries out for the Divestment Businesses (Austria, Germany and Switzerland) and for other carriers businesses mainly in North Africa (for the avoidance of doubt, these activities shall not be part of the Divestment Business Switzerland). In fact, it would be impossible - in reason of the limited number of employees dedicated to such Shared Functions, as explained in point 1 above - to transfer the Shared Functions to the Purchasers of each Divestment Business.
4 Under a technical standpoint, such reverse flow transportation capacity would not lower the capacity
available on the Transitgas pipeline system towards the Italian gas market.
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For this purpose the Shared Functions and relevant personnel shall be transferred to a New Service Company which might provide services also to the Purchaser(s), if so requested, at market terms and conditions (see point h above). The following personnel shall not be transferred with the Divestment Businesses:
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C.2:
Transitgas AG
Name Position Status […]* Chairman & CEO […]* […]* Legal Manager […]* […]* HR & General Services Manager […]* […]* HR & General Services Professional […]* […]* HR & General Services Professional […]* […]* ICT Manager […]* […]* Budget & Planning Manager […]* […]* Planning Manager […]* […]* Asset Manager North Africa […]* […]* Administrative Coordination Manager […]* […]* Commercial Operations North Africa […]* […]* Operation & Maintenance Manager […]* […]* Metering Manager […]* […]* Commercial Department Manager […]* […]* Economic Analysis & Tariff Model Manager […]* […]* Asset Manager Europe […]*
1. Transitgas, AG as operated to date, has the following legal and functional structure:
• Legal structure: TransitgasAG is controlled by the following companies:
i. Eni International BV (100% owned by Eni S.p.A.) – 46% ii. Swissgas (controlled by Swissgas) – 51%
iii. E-On Ruhrgas (controlled by E-On) – 3% Transitgas AG corporate governance rules envisage a 50/50 joint control by the two main shareholders. Shareholders’ Agreements also rule on the transferability of the shares in Transitgas AG. Transitgas AG operates through the following corporate bodies and committees:
• General Meeting: adoption of the annual financial statements; amendments to the Articles of Association and/or to the object of the Company.
• Board: […]*. Duties of the Board are set forth under Article 716a of the Swiss Code of Obligations. Furthermore, the Board shall appoint the Board Committee and the Technical Committee.
• Board Committee (“BC”): consisting of five members, […]*. • […]*.
• Functional structure:
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Transitgas AG directly owns and manages the pipeline while the carrier business is operated by both Eni GTI (i.e., […]*% transportation rights) and Swissgas AG (i.e., […]*% transportation rights).
• Organizational chart: See Attachment C.1.b.
2. Following paragraphs 8 and 9 of the Commitments, the Divestment Business Switzerland includes, but is not limited to: a. The following main tangible assets:
• Pipelines The Transitgas Pipeline System consists of a 292 km natural gas pipeline including several tunnels, a compressor station with waste heat recovery units, a metering station and various valve stations. A detailed description of the Transitgas pipeline system is reported under Attachment C.1.c.
• Real estate / property The main real estate and property are those directly related to the Transitgas pipeline system.
b. The following main intangible assets: All those directly related to the Transitgas pipeline system (right of ways etc.).
c. The following main licenses, permits and authorizations; All those directly related to the operation and property of the Transitgas pipeline system.
d. The following main contracts, agreements, leases, commitments and understandings: • Lease agreement: capacity rights are assigned to carriers (i.e., Eni GTI and
Swissgas AG) under a lease agreement expiring in […]*. • Shareholders’ Agreement in relation to Transitgas AG: it defines the object
and the governance rules of the company (Transitgas AG) and the provisions related to the lease. […]*.
e. The following customer, credit and other records; Not applicable. Transitgas AG does not directly manage transportation rights and only lease the pipeline system to the carriers Eni GTI and Swissgas which are the only customers of Transitgas AG.
f. The following Personnel: Transitgas AG counts on a total of forty-nine employees, […]*. For the breakdown by function and details on personnel to be potentially transferred please refer to the organizational chart (Attachment C1.b.).
g. The following Key Personnel; Name Position Status
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[…]* Director […]* […]* Operations &Technical Manager […]* […]* Administration & HR Manager […]*
h. The arrangements for the supply with the following products or services by eni for a transitional period after Closing. Not applicable. eni may provide up to a limited period of time agreed with qualified Purchaser some services necessary to guarantee the viability of the Divestment Business and which are currently provided by Eni GTI.
3. The Divestment Business Switzerland shall not include:
Not applicable.
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Attachment C.1.a.
** *
*
*
Provided by shared pool
*
Commercial dispatching h24 provided to Eni GTD
KEY FUNCTIONS
FUNCTIONS NOT INCLUDED IN THE DIVESTEMENT BUSINESS
SHARED FUNCTIONS
SECRETARY
COMMERCIAL DEPARTMENT
ECONOMIC ANALYSIS & TARIFF MODELS
DISPATCHINGCOMMERCIAL OPERATION
COMMERCIAL COORDINATION EUROPE
ASSET MANAGER NORTH AFRICA
ASSET MANAGER EUROPA
TECHNICAL DEPARTMENT
LEGAL HR & GENERAL SERVICES
OPERATION & MAINTENANCE METERING
INFORMATION COMMUNICATION
TECNOLOGYBUDGET &PLANNING
Eni GTI CHAIRMAN & CEO
SECRETERY
BUSINESS UNIT SWITZERLAND
ADMINISTRATION & PLANNING
CONTRACTS MANAGEMENT
ADMINISTRATION
*The two managers […]* will be moved from their current position in Eni GTI and included in the Key Personnel in order to guarantee the viability and reliability of the Divestment Business Switzerland stand alone. **[…]*is seconded since February 1th, 2009 to SCOGAT S.A. (Carrier Business North Africa) as Head of Personnel & General Services Department.
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Attachment C.1.b.
ADMINISTRATION & HUMAN RESOURCES
HSE and SAFETY are operated by Operations & technical Department
OPERATIONS & TECHNICAL
HSE SAFETY
FUNCTIONS NOT INCLUDED IN THE DIVESTEMENT BUSINESS
Transitgas AGKEY FUNCTIONSMANAGING DIRECTOR
SHARED FUNCTIONS
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Attachment C.1.c.
Pipeline System
The Pipeline System at the date hereof consists of the following:
1 Main Line
− Line:
• pipeline running from the German-Swiss border near Wallbach to the Ruswil compressor station, diameter 36 inches, approximate length 70.9 km, start-up in 1974 […]*;
• loop of the pipeline running from the Rhein river to the Wallbach metering station, diameter 36 inches, approximate length 1.4 km, start-up in 2003 […]*;
• loop of the pipeline running from the Wallbach meterig station to the outlet point of Daniken, diameter 36 inches, approximate length 33 km, start-up in 1994 […]*;
• loop of the pipeline running from the outlet point of Daniken to the Ruswil compressor station, diameter 48 inches, approximate length 38 km, start-up in 2001/2002 […]*;
• pipeline running from the Ruswil compressor station to Grimsel South, diameter 48 inches, approximate length 70.5 km, start-up in 1999/2002 […]*; and
• pipeline running from Grimsel South to the Swiss-Italian border at the Gries Pass, diameter 48 inches, approximate length 23.2 km, start-up in 1998/1999 […]*.
− Compressor station of Ruswil, with:
• […]*and
• […]*
− Metering station of Wallbach; […]*.
− Inlet Point Wallbach (at the German-Swiss border in the area of Wallbach).
− Connecting point with the Branch Line at Lostorf.
− Outlet Points:
• Zeiningen;
• Zuzgen;
• Däniken;
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NON CONFIDENTIAL
• Staffelbach;
• Ruswil;
• Obergesteln; and
• Gries Pass (at the Swiss-Italian border near Gries Pass).
2 Branch Line
− Pipeline running from the French-Swiss border at Rodersdorf to the connecting point with the Main Line at Lostorf, diameter 36 inches, length 54.845 km, start-up in 2001 […]*.
− Inlet Point Rodersdorf (at the French-Swiss border in the area of Rodersdorf).
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