OFFERING MEMORANDUM Global Offering of up to ... - Nordex

10.8 million). Ekter disputes the claim with respect to its legal basis and amount. The claim is split into
an amount of GRD 1,584 million, (representing approximately DM 9.1 million) for lost subsidies and
GRD 299.7 million, (representing approximately DM 1.7 million) for commissions lost because of the
use of Nordex wind turbines instead of the wind turbines of a certain other manufacturer as initially
stipulated. Although they were obliged by the arbitral award to reassign all the rights in the wind
power project, ITA asserts that both claims arose because the defendants had taken control of the wind
power project fraudulently and had obtained an authorization for the wind power project by fraud. In
respect of the damages claim relating to the lost subsidies, ITA alleges that it would have received these
subsidies if it had developed the project. Ekter, however, is of the opinion that Greek subsidy law only
provides for the granting of subsidies to investors in a project and not to a project developer such as
ITA. In respect of the lost commissions, ITA argues that it would have been paid by the other wind
turbine manufacturer, if its wind turbines had been erected instead of Nordex wind turbines, as is now
envisaged. In addition, ITA bases its claim for damages, inter alia, on alleged criminal conduct by
members of the board of Ekter. However, the department of the state prosecutor of Athens has rejected
criminal proceedings initiated by ITA against these board members.
In a second action, ITA claims damages in an aggregate amount of GRD 3,883.7 million (approximately
DM 22.3 million) from seven defendants, including Ekter and Nordex Energy GmbH, as joint debtors. A
proportion of the damages claimed (GRD 1,883.7 million) covers the same claims as the first action.
With respect to the claim of GRD 1,883.7 million, ITA asserts that the defendants had moved ahead
with the project despite the arbitral award and ITA thereby suffered a loss of commissions and profits
that it could otherwise have expected to have received for performance of the project. The defendants
are of the opinion that the arbitral award in respect of the assignment of the authorization to erect
wind turbines in particular is unenforceable and Ekter may therefore continue with the project.
Furthermore, ITA claims a further GRD 2 billion (approximately DM 11.5 million), asserting that the
defendants had sought to obtain an advantage by way of unfair competition by erecting their wind
turbines. ITA has not yet substantiated the damage with respect to the amount of GRD 2 billion.
However, no Nordex wind turbines have been erected.
In a provisional injunction proceeding, ITA tried to prevent Ekter as well as four other defendants from
beginning construction work on the site in Tourla. However, ITA’s motion was dismissed by the district
court of Chalkida, Greece, in a court order dated September 13, 2000. The court stated that Ekter had
no other obligation than to pay to ITA the contractual compensation and to erect wind turbines of a
certain manufacturer. Furthermore, the authorization to erect wind turbines, which was addressed to
Ekter, was not assignable.
Meanwhile, Ekter itself has brought claims for damages of GRD 299.985 million (approximately DM 1.7
million) against ITA, asserting that ITA unjustly obtained the arbitral award by deceiving the arbitrator
in Athens with misstatements and by inducing the witnesses to give misstatements. The damages
claimed by Ekter relate to the damage to its reputation.
In the meantime, the conflicts described above have as of March 27, 2001 been fully resolved pursuant
to an out-of-court settlement between (i) Nordex Energy GmbH and Ekter and (ii) ITA and other
companies contractually related to ITA to which certain claims had been transferred. The out-of-court
settlement was validly entered into, however, in order to ensure its continued effectiveness under
Greek law, it needs to be registered with the Greek tax authorities. This can be effected by Ekter and will
be done shortly. In this settlement, Nordex Energy GmbH has agreed to make a compensatory payment
of a mid-seven-digit million Deutsche Mark amount to ITA and the companies that are contractually
related to ITA, which has already partly been paid. This compensatory payment is in line with the
amount which the Company calculated as representing the potential risk involved in this conflict. Ekter
also agreed to withdraw it lawsuit against ITA. In return, ITA and the companies that are contractually
related to it have agreed, with Ekter and Nordex Energy GmbH, to waive their rights under the arbitral
award of May 31, 2000 and all claims under the contract dated October 23, 1997 between Ekter and
ITA. ITA has also agreed to withdraw the pending lawsuits, and the formal withdrawal of the lawsuits
has been initiated. Finally, ITA and the companies contractually related to it have agreed to recognize
Ekter as being solely entitled to the Tourla wind energy project and not to assert any claims in
connection with the project in the future.
62