Securities and Exchange Commission
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a)
The Aberdeen Australia Equity Fund, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
318652104
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(CUSIP Number)
Moritz Sell
Bankgesellschaft Berlin AG
Alexanderplatz 2
D-10178 Berlin
Germany
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(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 22, 2002
--------------------------------------------------------------------------------
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ]
Page 1 of 11 Pages
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CUSIP No.: 465395101 13D Page 2 of 11 Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. ID NO. OF ABOVE PERSON
Bankgesellschaft Berlin AG
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT [ ]
TO ITEM 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Federal Republic of Germany
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NUMBER OF SOLE VOTING POWER 5,348,149
SHARES
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BENEFICIALLY SHARED VOTING POWER
OWNED
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BY EACH SOLE DISPOSITIVE POWER 5,348,149
REPORTING
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PERSON SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
5,348,149
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12 CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.3%
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14 TYPE OF REPORTING PERSON BK
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Page 2 of 11 Pages
ITEM 1. SECURITY AND ISSUER
This Schedule 13D relates to the shares of Common Stock, par value $.01
per share (the "Common Stock"), of The Aberdeen Australia Equity Fund, Inc. (the
"Fund"), a corporation organized under the laws of Maryland and registered as an
investment company under the Investment Company Act of 1940 (the "Investment
Company Act"). The principal executive offices of the Fund are located 100
Mulberry Street, Newark, NJ 07102.
ITEM 2. IDENTITY AND BACKGROUND
(a) - (c) This Schedule 13D is being filed by Bankgesellschaft
Berlin AG (the "Bank"), a corporation formed under the laws of the Federal
Republic of Germany. The Bank is a German banking organization whose principal
offices are located at Alexanderplatz 2, D-10178 Berlin, Germany. The name,
business address and principal occupation of each director and executive officer
of the Bank are set forth on Annex A hereto, which is incorporated by reference.
Annex A also sets forth the name, address, jurisdiction of incorporation and
principal business of each shareholder of the Bank who may be deemed to be in
control of the Bank. All information in this Schedule 13D with respect to the
persons listed on Annex A is given to the knowledge of the Bank.
(d) During the past five years, neither the Bank nor any of the
persons listed on Annex A has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
(e) During the past five years, neither the Bank nor any of the
persons listed on Annex A has been a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) All of the individuals listed in Annex A are citizens of the
Federal Republic of Germany, except Zoe Shaw, who is a citizen of Great Britain.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The source of the funds used by the Bank to purchase shares of Common
Stock listed in Item 5(c) was working capital. The amount of the funds used to
purchase such shares aggregated approximately $27,508,739.20 (exclusive of
commissions).
ITEM 4. PURPOSE OF TRANSACTION
On October 22, 2002, the Bank purchased 5,348,149 shares of Common
Stock from Mira, L.P. ("Mira") in a private transaction.
Page 3 of 11 Pages
The shares of Common Stock held by the Bank were acquired for the
purpose of investment. Depending upon the Fund's business and prospects, and
upon future developments, the Bank may from time to time purchase additional
shares of Common Stock, dispose of all or a portion of the shares of Common
Stock it holds, or cease buying or selling shares of Common Stock. Factors that
may influence the Bank's decision to purchase additional shares or to sell all
or a portion of its holdings include, but are not limited to, the level of the
discount of the market price of the shares of Common Stock from their net asset
value ("NAV"), the performance of the shares of Common Stock in the market, the
availability of funds, alternative uses of funds, stock and money market
conditions, and general economic conditions. Any additional purchases or sales
of the shares of Common Stock may be in the open market, in privately negotiated
transactions, or otherwise.
The recent level of the discount from NAV at which the shares of Common
Stock have traded has been a significant factor in the Bank's decision to
purchase shares. With a view to maximizing the return on its investment in the
shares of Common Stock, the Bank is considering possible actions that it could
take if the discount from NAV remains at current levels. Such actions include,
but are not limited to, urging the board of the Fund to initiate the process of
open-ending the Fund, urging the board of the Fund to commence an issuer tender
offer or other repurchase program, or urging the board of the Fund to liquidate
the Fund. The Bank may also consider increasing its ownership of shares of
Common Stock to as much as a majority or more of the outstanding shares, seeking
representation on the Fund's board, soliciting proxies with respect to the Fund,
or other courses of action. The Bank has not determined to pursue any particular
course of action, and, depending upon the factors listed above and other
relevant circumstances, may determine not to pursue any such actions and instead
to hold or dispose at any time of all or a portion of its shares of Common
Stock.
Other than as set forth in this Item 4, the Bank has not formulated any
plans or proposals that relate to or would result in:
(a) the acquisition by any person of additional securities of the
Fund, or the disposition of securities of the Fund;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation involving the Fund;
(c) a sale or transfer of a material amount of assets of the Fund;
(d) any change in the present board or management of the Fund,
including any plans or proposals to change the number or term of directors or to
fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Fund;
Page 4 of 11 Pages
(f) any other material change in the Fund's business or corporate
structure, including, but not limited to, any plans or proposals to make any
changes in the Fund's investment policies for which a vote is required by
Section 13 of the Investment Company Act;
(g) any changes in the Fund's charter, by-laws, or instruments
corresponding thereto or other actions that may impede the acquisition of
control of the Fund by any person;
(h) causing a class of securities of the Fund to be delisted from a
national securities exchange or to cease to be authorized to be quoted in any
inter-dealer quotation system of a registered national securities association;
(i) a class of equity securities of the Fund becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or
(j) any action similar to any of those enumerated above.
The Bank will review its investment in the Fund from time to time and
reserves the right to take or not take any action it deems to be in its best
interest or to change its intention as set forth in this Item 4.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) According to the Semi-annual Report dated July 12, 2002, as of
April 30, 2002, there were 17,107,898 shares of Common Stock outstanding. The
percentage set forth in this Item 5(a) was derived using such number. The Bank
is the beneficial owner of 5,348,149 shares of Common Stock, which constitute
approximately 31.3% of the outstanding shares of Common Stock.
(b) The Bank has sole power to vote and to dispose of the shares of
Common Stock owned by it.
(c) During the last sixty days, the Bank has effected the following
sales and purchases in the shares of Common Stock through the purchase from Mira
described in Items 3 and 4 above.
Date Number of Shares Price Per Share
---- ---------------- ---------------
October 22, 2002 5,348,149 $5.1436
Page 5 of 11 Pages
(d) No person other than the Bank has the right to receive or the power
to direct the receipt of dividends from, or the proceeds from the sale of, the
shares of Common Stock owned by the Bank.
(e) Inapplicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER
The Bank does not have any contract, arrangement, understanding or
relationship (legal or otherwise) with any person with respect to any securities
of the Fund, including, but not limited to, the transfer or voting of any such
securities, finders' fees, joint ventures, loan or option arrangements, puts or
calls, guarantees of profits, division of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Exhibit B. Stock Purchase Agreement, dated October 17, 2002, by and
between Mira, L.P. and Bankgesellschaft Berlin A.G.
Page 6 of 11 Pages
SIGNATURE
After reasonable inquiry and to the best of our knowledge and
belief, we certify that the information set forth in this statement is true,
complete and correct.
Date: October 31, 2002 BANKGESELLSCHAFT BERLIN AG
By: /s/ Moritz Sell
---------------------------------------
Name: Moritz Sell
Title: Co-Head Equities Trading, London
By: /s/ Dirk Kipp
---------------------------------------
Name: Dirk Kipp
Title: Managing Director
Page 7 of 11 Pages
ANNEX A
Unless otherwise indicated, the business address for all individuals
listed in this Annex A is Bankgesellschaft Berlin AG, Alexanderplatz 2, 10178
Berlin, Federal Republic of Germany.
MEMBERS OF THE MANAGING BOARD
NAME AND ADDRESS PRINCIPAL OCCUPATION
Hans-Joerg Vetter Chairman of the Managing Board of Bankgesellschaft
Berlin AG
Serge Demoliere Member of the Managing Board of Bankgesellschaft
Berlin AG
Dr. Johannes Evers Member of the Managing Board of Bankgesellschaft
Berlin AG
Norbert Pawlowski Member of the Managing Board of Bankgesellschaft
Berlin AG
Hubert Piel Member of the Managing Board of Bankgesellschaft
Berlin AG
Dr. Thomas Veit Member of the Managing Board of Bankgesellschaft
Berlin AG
Page 8 of 11 Pages
EXECUTIVE OFFICER
NAME AND ADDRESS PRINCIPAL OCCUPATION
Dariush Ghassemi-Moghadam Managing Director of Bankgesellschaft Berlin AG
Recht
Konzernentwicklung/Zentralsekretariat/
Unternehmenskommunikation
Jochen W. Sawahn Managing Director of Bankgesellschaft Berlin AG
Personal
Juilf-Helmer Eckhard Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Revision
Hardenbergstra(beta)e 32
D-10623 Berlin
Martin Mueller Managing Director of Bankgesellschaft Berlin AG
Treasury
Dirk Kipp Managing Director of Bankgesellschaft Berlin AG
Eigenhandel
Uwe Papesch Managing Director of Bankgesellschaft Berlin AG
Equities
Bartho Schroeder Managing Director of Bankgesellschaft Berlin AG
Business Management
Zoe Shaw Managing Director of Bankgesellschaft Berlin AG and
Bankgesellschaft Berlin AG General Manager of Bankgesellschaft Berlin AG
Debt Finance London Branch
London Branch
1 Crown Court
Cheapside
GB-London EC2V 6JP
Frank-Michael Boenke General Manager of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG London Branch
London Branch
1 Crown Court
Cheapside
GB-London EC2V 6JP
Gerhard Roller Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Internationales Geschaft
Hardenbergstra(beta)e 20
D-10623 Berlin
Page 9 of 11 Pages
Beate Brummel Managing Director of Bankgesellschaft Berlin AG
Kreditanalyse/Dokumentation
Hardenbergstra(beta)e 20
D-10623 Berlin
Helmut Ramthun Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Compliance
Brunnestrasse 111
D-13355 Berlin
Dr. Karl-Friedrich Hirschhaeuser Managing Director of Bankgesellschaft Berlin AG
Risikocontrolling
Willi Boehmer Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Konzern-Finanzen
Brunnenstra(beta)e 111
D-13355 Berlin
Dr. Christian Burmester Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Kreditsekretariat
Brunnenstra(beta)e 111
D-13355 Berlin
Siegfried Schoelper Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Controlling
Brunnenstra(beta)e 111
D-13355 Berlin
Stefan Traegler Managing Director of Bankgesellschaft Berlin AG
Bankgesellschaft Berlin AG
Konzern-Organisation
Brunnestrasse 111
13355 Berlin
Hans-Werner Wilms General Manager of Bankgesellschaft Berlin Invest GmbH
Bankgesellschaft Berlin Investment GmbH
Kurfurstendamm 201
10719 Berlin
Guenter Laubner General Manager of Bankgesellschaft Berlin Invest GmbH
Bankgesellschaft Berlin Investment GmbH
Kurfurstendamm 201
10719 Berlin
Page 10 of 11 Pages
SHAREHOLDERS WHO MAY BE DEEMED TO CONTROL THE BANK
The following shareholders of the Bank may be deemed to control the Bank:
The City of Berlin
Norddeutsche Landesbank Girozentrale NORD/LB, a bank formed under the laws of
Germany, whose principal address is Georgplatz 1, D-30159, Hannover, Germany.
Page 11 of 11 Pages
EXHIBIT A
STOCK PURCHASE AGREEMENT
AGREEMENT, dated October 17, 2002 (the "Agreement"), among Mira, L.P. (the
"Seller"), and Bankgesellschaft Berlin A.G., a bank organized under the laws of
Germany (the "Purchaser").
1. Purchase and Sale. (a) The Seller agrees to sell to the Purchaser, and the
Purchaser agrees to purchase from the Seller, upon the terms and subject to the
conditions set forth herein, 5,348,149 shares (the "Shares") of common stock,
par value $.01 per share (the "Fund Common Stock"), of The Aberdeen Australia
Equity Fund, Inc., a Maryland corporation (the "Fund" or "IAF"), at an aggregate
price (the "Purchase Price") equal to $27,508,739.20 (collectively, the
"Transaction").
(b) If, after the date hereof and prior to the Closing, the number of
outstanding shares of Fund Common Stock is increased or decreased as a result of
any stock dividend, stock split, stock combination or other similar corporate
action, the number of Shares subject to this Agreement shall be equitably
adjusted to take into account such event.
2. Purchaser's Representations and Warranties. The Purchaser represents and
warrants to the Seller that:
(a) the Purchaser is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation;
(b) the Purchaser has all necessary power and authority (corporate or otherwise)
to execute and deliver this Agreement, and this Agreement has been duly and
validly authorized, executed and delivered by the Purchaser and is a valid and
binding agreement, enforceable against the Purchaser in accordance with its
terms;
(c) the Purchaser has the funds necessary to pay for the Shares;
(d) the Purchaser is a "qualified institutional buyer" within the meaning of
Rule 144A promulgated under the Securities Act of 1933, as amended (the
"Securities Act");
(e) the Purchaser has such knowledge and experience in financial and business
matters that the Purchaser is capable of evaluating the merits and risks of the
Transaction;
(f) the Purchaser is acquiring the Shares for investment for the Purchaser's own
account and not with a view to, or for resale in connection with, any
distribution thereof in violation of applicable law, and the Purchaser has no
present intention to sell, convey, dispose of or otherwise distribute any
interest in or risk related to the Shares. The Purchaser has no contract,
understanding, agreement or arrangement with any person or entity to sell or
transfer any or all of the Shares. The Purchaser understands that, because
Seller is being deemed an affiliate of the Fund (as set forth in paragraph 2(h)
below), the Shares constitute restricted securities under the
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Securities Act and have not been registered under the Securities Act by reason
of a specific exemption from the registration provisions of the Securities Act
which depends upon, among other things, the bona fide nature of the investment
intent as expressed herein, and that the representations, warranties and
acknowledgments of the Purchaser herein are made by such Purchaser with the
intent that they may be relied upon in determining the Purchaser's qualification
to purchase the Shares without registration under the Securities Act in the
Transaction;
(g) the Purchaser acknowledges that it is acquiring the Shares without being
offered or furnished any offering literature or prospectus, and that such
transaction has not been approved or reviewed by the Securities and Exchange
Commission or by any administrative agency charged with the administration of
the securities laws of any state;
(h) the Purchaser acknowledges that because the sale of the Shares pursuant to
the Transaction has not been registered under the Securities Act, such stock
must be held indefinitely unless its resale or other disposition is subsequently
registered under the Securities Act or unless an exemption from such
registration is available, and that neither Seller nor the Fund is under any
obligation to take any action to make any such registration or exemption so
available. In addition, the Purchaser acknowledges that the Seller may be, and
for the purpose of determining availability of Rule 144 for resales by the
Purchaser, the Seller shall be deemed an affiliate of the Fund, within the
meaning of Rule 405 under the Securities Act, and the Purchaser is aware of the
provisions of Rule 144 promulgated under the Securities Act. The Purchaser
acknowledges that, in the absence of the availability of Rule 144 under the
Securities Act, any disposition by the Purchaser of the Shares will require
compliance with another exemption under the Securities Act or a registration
under the Securities Act, and that neither Seller nor the Fund is under any
obligation to take any action to make any such registration or exemption so
available;
(i) Purchaser acknowledges and agrees that certificates representing the Shares
received by the Purchaser may bear, and if so will continue to bear following
consummation of the Transaction, a legend or legends identifying certain
restrictions imposed on such shares pursuant to federal and state securities
laws or regulations;
(j) immediately following Purchaser's acquisition of the Shares, Purchaser and
its affiliates, as a group, will not beneficially own in excess of Fifty Million
Dollars ($50,000,000) worth of capital stock and other securities of the Fund;
and
(k) all consents, filings, notices, approvals and authorizations of or with (1)
any court, governmental agency or body or any self regulatory authorities, or
(2) any other person or entity, in each case to the extent required for the
execution, delivery and performance by the Purchaser of this Agreement, have
been obtained or made and are in full force and effect.
3. Sellers' Representations and Warranties. The Seller represents and warrants
to the Purchaser that (a) the Seller is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its formation; (b) the
Seller has all necessary power and authority to execute and
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deliver this Agreement, and this Agreement has been duly and validly authorized,
executed and delivered by the Seller and is a valid and binding agreement,
enforceable against the Seller in accordance with its terms; and (c) the sale
and delivery of the Shares to Purchaser in accordance with the terms hereof will
vest in Purchaser legal and valid title to the Shares, free and clear of all
liens and encumbrances (other than any liens or encumbrances imposed by any
Federal or state securities laws or arising as a result of the ownership of the
Shares by the Purchaser).
4. Closing. Subject to the closing conditions set forth in Section 5, entry into
the Transaction shall occur on the date hereof. The closing of the Transaction
(the "Closing") shall take place at the offices of Seller at One Chase Manhattan
Plaza, New York, NY, at 10:00 a.m. on October 22, 2002, or as promptly as
practicable thereafter. At the Closing: (i) the Seller will sell, transfer and
deliver the Shares to Purchaser, represented by certificates duly endorsed in
blank or other instruments of transfer, to the extent the Shares are held by the
Seller in certificated form, or by book-entry transfer to Purchaser's account at
DTC, to the extent the Shares are not held by Seller in certificated form; and
(ii) the Purchaser will purchase the Shares and deliver to the Seller the
Purchase Price plus the fee amount due UBSPW from the Purchaser by a wire
transfer of immediately available funds to the following account of Seller: UBS
PaineWebber Inc. DTC Number: 221FOR ACCOUNT NAME: MIRA LP.
5. Conditions Precedent. (a) The obligations of the Purchaser to consummate the
Transaction are subject to (1) there not being in effect any injunction or other
order issued by a court of competent jurisdiction restraining or prohibiting the
consummation of the Transaction, (2) the representations and warranties of the
Seller being true and correct as of the date hereof and as of the Closing as if
made at the Closing, (3) the closing of the transactions contemplated by the
Stock Purchase Agreement, by and between Purchaser and Seller, of even date
hereof, relating to the purchase of 732,028 shares of common stock, par value
$.01 per share of The Italy Fund Inc., a Maryland corporation (the "Italy Fund
Agreement"), having occurred prior to or at the Closing, and (4) Seller having
performed in all material respects all covenants and agreements to be performed
by Seller hereunder and under the Italy Fund Agreement, in each case prior to or
at the Closing.
(b) The obligations of the Seller to consummate the Transaction are subject to
(1) there not being in effect any injunction or other order issued by a court of
competent jurisdiction restraining or prohibiting the consummation of the
Transaction, (2) the representations and warranties of the Purchaser being true
and correct as of the date hereof and as of the Closing as if made at the
Closing, (3) the closing of the transactions contemplated by the Italy Fund
Agreement having occurred prior to or at the Closing, and (4) Purchaser having
performed in all material respects all covenants and agreements to be performed
by Purchaser hereunder and under the Italy Fund Agreement, in each case prior to
or at the Closing.
6. Certain Covenants. (a) The Purchaser agrees that it will not sell or
otherwise transfer the Shares otherwise than in compliance with Rule 144 under
the Securities Act, or in a transaction that does not require registration under
the Securities Act. For purposes of this Section 6(a), the
A-3
Seller shall be deemed to be an affiliate of the Fund within the meaning of Rule
144(a)(1) and the Purchaser agrees that it will not sell or otherwise transfer
the Shares in transactions that would not be in compliance with Rule 144 based
on this deemed status unless the transaction does not otherwise require
registration under the Securities Act.
(b) At any time or times from and after the Closing, the Seller, on the one
hand, and the Purchaser, on the other hand, shall, at the request of the other
party, execute and deliver any further instruments and documents and take all
such further action as such other may reasonably request in order to evidence or
effect the consummation of the Transaction.
(c) Purchaser agrees that from and after the date hereof, it will not take any
action, directly or indirectly, to depress the market price of the IAF shares.
(d) Either party to this Agreement may make any filings that are required by law
or by obligations pursuant to any listing agreement with any national securities
exchange as a result of the Transaction.
7. Expenses. Each of the parties hereto shall pay its own expenses incurred in
connection with this Agreement.
8. Survival. All representations, warranties, covenants and agreements made by
the Seller and by the Purchaser in this Agreement shall survive the Closing
hereunder and any investigation at any time made by or on behalf of either party
hereto.
9. Notices. All notices, claims, requests, demands and other communications
hereunder will be in writing and will be deemed to have been duly given if
delivered or mailed (registered or certified mail, postage prepaid, return
receipt) as follows:
(a) If to the Seller, to:
Mira, L.P.
c/o Zurich Capital Markets Inc.
One Chase Manhattan Plaza
New York, NY 10005
Attention: General Counsel
(b) If to the Purchaser, to:
Bankgesellschaft Berlin A.G.
Alexanderplatz 2
Berlin, Germany 10178
Attention: Moritz Sell
A-4
With a copy to:
Baker & McKenzie
805 Third Avenue
New York, New York 10022
Attention: Edwin C. Laurenson
or such other address as the person to whom notice is to be given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
10. Termination. This Agreement shall terminate without liability to
any party if the Closing shall not have occurred on or prior to the date that is
thirty days after the date of this Agreement (or, if such date is not a business
day, the following business day), provided that such termination shall not
relieve any party from obligation for any breach or misrepresentation prior to
termination.
11. Miscellaneous. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written agreement
executed by the parties hereto. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other party, and any such attempted assignment without the prior written
consent of the other party shall be null and void. This Agreement may be
executed in two or more counterparts, each of which will be deemed to be an
original but all of which together will constitute one and the same instrument.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York (regardless of the laws that might otherwise govern under
applicable New York principles of conflicts of law).
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties hereto on the date first written above.
MIRA, L.P.
By: Zurich Capital Markets Inc.,
its General Partner
By: /s/ David Ho
----------------------------------------
Name: David Ho
Title: Vice President
BANKGESELLSCHAFT BERLIN A.G.
By: /s/ Moritz A. Sell
----------------------------------------
Name: Moritz A. Sell
Title: Co-head of Equity Trading, London
By: /s/ Michael Demmel
----------------------------------------
Name: Michael Demmel
Title:
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