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 | 2004 |
Acquisition Agreement
Acquisition Agreement (130K)
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COUNTRYSIDE POWER INCOME FUND
- and -
COUNTRYSIDE CANADA ACQUISITION INC.
- and -
U.S. ENERGY SYSTEMS, INC.
- and -
US CANADA HOLDINGS CORP.
- and -
USE CANADA ENERGY CORP.
================================================================================
ACQUISITION AGREEMENT
================================================================================
April 8, 2004
-----------------------------------
GOODMANS GOODMANS LLP
BARRISTERS & SOLICITORS
-----------------------------------
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
{S} {C}
Article 1 INTERPRETATION .................................................................... 2
1.1 Definitions ............................................................... 2
1.2 Schedules ................................................................. 6
1.3 Headings .................................................................. 7
1.4 Gender and Number ......................................................... 7
1.5 Currency .................................................................. 7
1.6 Day Not a Business Day .................................................... 7
1.7 Accounting Principles ..................................................... 7
1.8 Waiver, Amendment ......................................................... 7
1.9 Construction .............................................................. 7
Article 2 PURCHASE AND SALE OF THE PURCHASED SECURITIES ..................................... 8
2.1 Purchase and Sale ......................................................... 8
2.2 Satisfaction of Sale Price ................................................ 8
Article 3 REPRESENTATIONS AND WARRANTIES .................................................... 8
3.1 Representations and Warranties of the Fund ................................ 8
3.2 Representations and Warranties of Countryside Acquisition ................. 9
3.3 Representations and Warranties of USE Canada Holdings ..................... 9
3.4 Representations and Warranties of USE Canada .............................. 10
3.5 Representations and Warranties of USEY, USE Canada Holdings and USE Canada 11
3.6 No Finders' Fee ........................................................... 18
3.7 Survival of Representations and Warranties ................................ 18
Article 4 CLOSING CONDITIONS ................................................................ 19
4.1 Conditions Precedent to Closing ........................................... 19
Article 5 COVENANTS OF THE PARTIES .......................................................... 21
5.1 Covenant Regarding Representations, Warranties and Conditions ............. 21
5.2 Conduct of Business Prior to Closing ...................................... 21
5.3 Transfer of the Purchased Shares .......................................... 21
5.4 Filings and Authorizations ................................................ 21
5.5 Cooperation ............................................................... 21
5.6 Section 116 Certificate ................................................... 21
5.7 U.S. Energy Agreements .................................................... 22
Article 6 REMEDIES 22
6.1 Indemnification ........................................................... 22
6.2 Indemnified Persons ....................................................... 23
6.3 Limitations of Liability .................................................. 23
6.4 Notice of Claim ........................................................... 24
6.5 Procedure for Indemnification ............................................. 24
6.6 Injunctive Relief ......................................................... 25
6.7 No Requirement to Exhaust Claims .......................................... 25
6.8 Claims .................................................................... 25
Article 7 TERMINATION ....................................................................... 25
{/TABLE}
- i -
{PAGE}
{TABLE}
{S} {C}
7.1 Termination ............................................................... 25
Article 8 CLOSING 26
8.1 Location and Time of the Closing .......................................... 26
8.2 Closing Procedures ........................................................ 26
Article 9 GENERAL MATTERS ................................................................... 27
9.1 Severability .............................................................. 27
9.2 Enurement ................................................................. 27
9.3 Assignment ................................................................ 27
9.4 Notices ................................................................... 28
9.5 Non-Merger ................................................................ 29
9.6 Governing Law ............................................................. 29
9.7 Attornment ................................................................ 29
9.8 Limitation of Liability in Respect of the Fund ............................ 29
9.9 Time of Essence ........................................................... 29
9.10 Entire Agreement .......................................................... 30
9.11 Counterparts .............................................................. 30
9.12 Further Assurances ........................................................ 30
9.13 Corporate Name ............................................................ 30
9.14 Public Announcements ...................................................... 30
9.15 Cooperation with Respect to Government Filings and Reports ................ 30
Schedule "A" - Form Of Undertaking To Release Security ...................................... 33
{/TABLE}
- ii -
{PAGE}
ACQUISITION AGREEMENT
THIS AGREEMENT is made as of the 8th day of April, 2004.
B E T W E E N:
COUNTRYSIDE POWER INCOME FUND, a trust formed
under the laws of the Province of Ontario,
(the "Fund")
- and -
COUNTRYSIDE CANADA ACQUISITION INC., a corporation
existing under the laws of Canada,
("Countryside Acquisition")
- and -
U.S. ENERGY SYSTEMS, INC., a corporation existing
under the laws of the State of Delaware,
("USEY")
- and -
USE CANADA HOLDINGS CORP., a corporation existing
under the laws of Canada,
("USE Canada Holdings")
- and -
USE CANADA ENERGY CORP., a corporation existing
under the laws of Canada.
("USE Canada")
RECITALS:
A. The Fund intends to complete an offering (the "Offering") of its trust units
(the "Units") to the public under the Prospectus (as defined herein) filed with
the securities regulatory authorities in each of the provinces and territories
of Canada.
B. The Fund will use a portion of the net proceeds of the Offering (after
deducting certain fees and expenses of the Offering payable by the Fund) to
subscribe for notes of Countryside Canada Power Inc. ("Countryside Canada").
C. The Fund will use the remaining net proceeds of the Offering to subscribe for
common shares of Countryside Canada, representing all of the outstanding shares
of Countryside Canada.
{PAGE}
D. Countryside Canada will use a portion of the net proceeds from the Offering
($21,678,522) to subscribe for shares of Countryside Acquisition.
E. Countryside Acquisition will borrow $30 million from third party lenders
under a $35 million senior secured credit facility (the "New Credit Facility").
F. Countryside Acquisition will use $17,635,090 of the proceeds from the New
Credit Facility and the share issuance to Countryside Canada to purchase all of
the outstanding shares of USE Canada Holdings.
G. Countryside Acquisition will use the balance of the proceeds from the New
Credit Facility and the share issuance to Countryside Canada ($29,343,432) to
subscribe for additional shares of USE Canada Holdings which USE Canada Holdings
will, in turn, use to subscribe for additional shares of USE Canada. USE Canada
will use a portion of the proceeds from the subscription by USE Canada Holdings
to repay in full debt owing to The Toronto-Dominion Bank under its current
credit facility (the "Current Credit Facility") and a portion to repay
intercompany loans from USEY.
H. Immediately following the completion of the transaction of purchase and sale
described in Article 2 below (the "Closing"), the Fund will, indirectly through
Countryside Canada, hold 100% of the shares of Countryside Acquisition,
Countryside Acquisition will own 100% of the shares of USE Canada Holdings and
USE Canada Holdings will own 100% of the shares of USE Canada which owns the
Business (as defined below).
I. The Underwriting Agreement provides that, as a condition to the completion of
the Offering, the Fund, Countryside Acquisition, and USEY enter into this
Agreement.
NOW THEREFORE in consideration of the mutual covenants and agreements
contained in this Agreement and other good and valuable consideration (the
receipt and sufficiency of which are hereby acknowledged by each of the
parties), the parties hereto agree as follows:
ARTICLE 1
INTERPRETATION
1.1 Definitions
In this Agreement:
(a) "Affiliate" has the meaning attributed to such term in s. 2(1) and
2(2) of the Canada Business Corporations Act, as the same may be
amended from time-to-time and any successor legislation thereto;
(b) "Agreement", "hereto", "herein", "hereby", "hereunder", "hereof",
and similar expressions refer to this Acquisition Agreement and not
to any particular Article, Section, subsection, clause, subdivision
or other portion hereof and include any and every instrument
supplemental or ancillary hereto;
(c) "Ancillary Agreements" means the Countryside Canada Note Indenture,
the New Credit Facility, the Underwriting Agreement, the Development
Agreement and the Improvement Agreement;
(d) "Business" means the business currently owned and operated by USE
Canada which consists of owning, operating and managing district
energy systems and cogeneration and renewable energy facilities in
London, Ontario and Charlottetown, Prince Edward Island;
- 2 -
{PAGE}
(e) "Business Day" means any day except Saturdays, Sundays and statutory
holidays in the Province of Ontario as specified in s. 29(1) of the
Interpretation Act (Ontario), as the same may be amended from
time-to-time and any successor legislation thereto;
(f) "Claim" has the meaning attributed to such term in Section 6.4;
(g) "Closing" means the completion of the transaction of purchase and
sale contemplated in Article 2;
(h) "Closing Time" means 8:30 a.m. (Toronto time) on the Date of Closing
or such other time on such date as may be agreed upon in writing by
the parties;
(i) "Code" means the United States Internal Revenue Code of 1986, as the
same may be amended from time-to-time and any successor legislation
thereto;
(j) "Collective Bargaining Agreement" means the collective agreement
between USE Canada (doing business as Core Energy London) and the
Canadian Union of Operating Engineers and General Workers effective
August 1, 2002, as amended;
(k) "Current Credit Facility" shall mean the loans currently outstanding
from The Toronto-Dominion Bank to USE Canada and all agreements,
guarantees and Liens relating thereto;
(l) "Damages" means any damages, losses, expenses or claims suffered by,
imposed upon or asserted against an Indemnified Party under the
Securities Laws, other Laws, at common law or otherwise, together
with the expenses incurred in defence of same, such amount being
correspondingly reduced by: (i) any insurance proceeds actually
received by the Indemnified Party in respect of the same claim; or
(ii) the present value of the net benefit, if any, that will be
received by such party in the current or any future tax period as a
result of the payment of Damages;
(m) "Date of Closing" means the date on which the completion of the
Offering occurs;
(n) "Declaration of Trust" means the declaration of trust of the Fund
made as of the 16th day of February, 2004, as amended and restated
from time-to-time;
(o) "Disclosure Letter" means the letter dated the date of this
Agreement from USEY and Countryside Acquisition to the applicable
parties hereto in respect of the representations and warranties
related to the Business, in a form satisfactory to such other
parties;
(p) "Environmental Laws" means all Laws relating to environmental, human
health or worker health and safety matters, including Laws governing
the labelling, use and storage of Hazardous Substances;
(q) "Equipment" means the assets and tangible personal or movable
property used in connection with the Business including all
machinery and equipment whether affixed to, situate in, on or about,
or normally situate in, on or about or forming part of the Project
Land or buildings ordered but not delivered or warehoused, and all
tools, handling equipment, spare parts and accessories;
(r) "Governmental Charges" means all taxes, duties, levies, assessments,
reassessments and other charges together with all related penalties,
interest and fines, payable in respect of periods ending on or
before the Date of Closing to any domestic or foreign
- 3 -
{PAGE}
government (federal, provincial, state, municipal or otherwise) or
to any regulatory authority, agency, commission or board of any
domestic or foreign government, or imposed by any court or any other
law, regulation or rule-making entity having jurisdiction in the
relevant circumstances;
(s) "Governmental Entity" means any: (i) multinational, federal,
provincial, state, municipal, local or other governmental or public
department, regulatory authority, central bank, court, commission,
board, bureau, agency or instrumentality, domestic or foreign; (ii)
any subdivision or authority of any of the foregoing; (iii) any
quasi-governmental, self-regulatory organization or private body
exercising any regulatory, expropriation or taxing authority under
or for the account of its members or any of the above; or (iv) any
arbitrator exercising jurisdiction over the affairs of the
applicable Person, asset, obligation or other matter;
(t) "Governmental Order" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by, or with, any
Governmental Entity;
(u) "Hazardous Substance" means any substance or material which is
defined or regulated pursuant to Environmental Laws, including those
defined or listed as "hazardous", "toxic", "deleterious", "caustic",
"dangerous", a "contaminant", a "pollutant", a "dangerous good" or a
"waste";
(v) "Indemnifying Party" means a party to this Agreement providing
indemnification to its Indemnified Persons pursuant to Article 6;
(w) "Indemnified Persons" has the meaning attributed to such term in
Section 6.2;
(x) "Intellectual Property" means trademarks (including common law
trademarks), trade names, certification marks, patents and patent
applications, copyrights, confidential information, know-how,
formulae, processes, inventions, technical expertise, research data,
trade secrets, industrial designs and other similar property and all
294680
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U.S. Energy
As referenced in this Acquisition Agreement:
U.S. ENERGY SYSTEMS, – SEQUENCE}3
{FILENAME}d59356_ex2-19.txt
{DESCRIPTION}ACQUISITION AGREEMENT
{TEXT}
Exhibit 2.19
COUNTRYSIDE POWER INCOME FUND
- and -
COUNTRYSIDE CANADA ACQUISITION INC.
- and -
U.S. ENERGY SYSTEMS, INC.
- and -
US CANADA HOLDINGS CORP.
- and -
USE CANADA ENERGY CORP.
================================================================================
ACQUISITION AGREEMENT
================================================================================
April 8, 2004
-----------------------------------
GOODMANS GOODMANS LLP
BARRISTERS & SOLICITORS
-----------------------------------
{PAGE}
_____________
U.S. ENERGY SYSTEMS, – of the Province of Ontario,
(the "Fund")
- and -
COUNTRYSIDE CANADA ACQUISITION INC., a corporation
existing under the laws of Canada,
("Countryside Acquisition")
- and -
U.S. ENERGY SYSTEMS, INC., a corporation existing
under the laws of the State of Delaware,
("USEY")
- and -
USE CANADA HOLDINGS CORP., a corporation existing
under
_____________
U.S. ENERGY SYSTEMS, – date first written above.
COUNTRYSIDE POWER INCOME FUND, by
its attorney, COUNTRYSIDE CANADA POWER
INC.
By: ____________________________________
COUNTRYSIDE CANADA ACQUISITION INC.
By: ____________________________________
U.S. ENERGY SYSTEMS, INC.
By: ____________________________________
USE CANADA HOLDINGS CORP.
By: ____________________________________
USE CANADA ENERGY CORP.
By: ____________________________________
- 32 -
{PAGE}
SCHEDULE "A"
FORM OF UNDERTAKING
_____________
dt 253055
;
 Royal Bank
As referenced in this Acquisition Agreement:
Royal Bank of Canada; – in the
Prospectus;
(gg) "New Credit Facility" means the senior secured credit facility to be
established pursuant to an agreement between Countryside Acquisition
and The Toronto-Dominion Bank and the Royal Bank of Canada;
(hh) "Ordinary Course" means, with respect to an action taken by a
Person, that such action constitutes an ordinary day-to-day business
activity of the Person conducted in
_____________
dt 1454241
;
Toronto-Dominion
As referenced in this Acquisition Agreement:
Toronto-Dominion Bank – for additional shares of USE Canada. USE Canada
will use a portion of the proceeds from the subscription by USE Canada Holdings
to repay in full debt owing to The Toronto-Dominion Bank under its current
credit facility (the "Current Credit Facility") and a portion to repay
intercompany loans from USEY.
H. Immediately following the completion of the transaction of purchase and sale
_____________
Toronto-Dominion Bank – Energy London) and the
Canadian Union of Operating Engineers and General Workers effective
August 1, 2002, as amended;
(k) "Current Credit Facility" shall mean the loans currently outstanding
from The Toronto-Dominion Bank to USE Canada and all agreements,
guarantees and Liens relating thereto;
(l) "Damages" means any damages, losses, expenses or claims suffered by,
imposed upon or asserted against an Indemnified Party
_____________
Toronto-Dominion Bank – or consolidation; and others, described in the
Prospectus;
(gg) "New Credit Facility" means the senior secured credit facility to be
established pursuant to an agreement between Countryside Acquisition
and The Toronto-Dominion Bank and the Royal Bank of Canada;
(hh) "Ordinary Course" means, with respect to an action taken by a
Person, that such action constitutes an ordinary day-to-day business
activity
_____________
dt 1447728
;
| Countryside Power Income Fund;
Countryside Canada Acquisition Inc.;
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| 2005 |
Acquisition Agreement
Acquisition Agreement (363K)
Doc #851808: Click preview link for longer preview.
ACQUISITION AGREEMENT
among
TEXAS GENCO LLC
NRG ENERGY, INC.
and
THE DIRECT AND INDIRECT OWNERS OF
TEXAS GENCO LLC PARTY HERETO
Dated as of September 30, 2005
Table of Contents
Page
ARTICLE I PURCHASE AND SALE OF THE EQUITY INTERESTS
2
Section 1.1 Time and Place of Closing
2
Section 1.2 Purchase and . . .
851808
|
CenterPoint Energy, Inc.
As referenced in this Acquisition Agreement:
CenterPoint Energy, Inc – the transportation of coal for which delivery is required on or after January 1, 2006;
(i) Contracts for the purchase, sale and lease of railcars;
(j) the Transaction Agreement, among CenterPoint Energy, Inc . and Genco (formerly known as GC Power Acquisition LLC), among others, dated as of July 21, 2004 (the Transaction Agreement); and
(k) Contracts otherwise material to the Companies.
Notwithstanding
_____________
dt 1422242
;
NRG Energy
As referenced in this Acquisition Agreement:
NRG ENERGY, INC. – EX-2.1
EX-2.1 2 y13218exv2w1.htm EX-2.1: ACQUISITION AGREEMENT
Exhibit 2.1
Execution Copy
ACQUISITION AGREEMENT
among
TEXAS GENCO LLC
NRG ENERGY, INC.
and
THE DIRECT AND INDIRECT OWNERS OF
TEXAS GENCO LLC PARTY HERETO
Dated as of September 30, 2005
Table of Contents
Page
ARTICLE I PURCHASE AND SALE OF THE
_____________
NRG Energy, Inc. – Unit Consideration
5
Units
1
ix
ACQUISITION AGREEMENT
ACQUISITION AGREEMENT, dated as of September 30, 2005 (this Agreement), by and among Texas Genco LLC, a Delaware limited liability company (Genco), NRG Energy, Inc. , a Delaware corporation (Buyer), the direct holders of Units listed on Annex A hereto (each a Genco Seller, and collectively the Genco Sellers) and those sellers executing this Agreement
_____________
NRG ENERGY, INC. – Miller
with a copy to
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017
Telecopy: (212) 455-2502
Attention: David J. Sorkin
(b)
if to Buyer, to
NRG ENERGY, INC.
211 Carnegie Center
Princeton, NJ 08540
Telecopy: (609) 524-4591
Attention: Tim OBrien
with a copy to
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
Seventh Floor
_____________
NRG ENERGY, INC. – caused this Agreement to be duly signed as of the date first above written.
TEXAS GENCO LLC
By:
/s/ Jack A. Fusco
Name:
Jack A. Fusco
Title:
Chief Executive Officer
NRG ENERGY, INC.
By:
/s/ David Crane
Name:
David Crane
Title:
Chief Executive Officer
SIGNATURE PAGE TO THE
ACQUISITION AGREEMENT
SELLERS:
BLACKSTONE TG CAPITAL PARTNERS IV L.P.
By: Blackstone Management Associates
_____________
NRG ENERGY, INC. – L.P.
By:
TPG GenPar IV, L.P., its General Partner
By:
TPG Advisors IV, Inc., its General Partner
By:
/s/ Michael MacDougall
Name: Michael MacDougall
Title:
3
Exhibit B
NRG ENERGY, INC.
CERTIFICATE OF DESIGNATIONS
establishing the
Voting Powers, Designations, Preferences, Limitations,
Restrictions and Relative Rights of
Cumulative Redeemable Preferred Stock
Pursuant to Section 151 of the
General Corporation Law of
_____________
dt 1333495
;
Texas Genco
As referenced in this Acquisition Agreement:
Texas Genco Holdings, Inc – herein as the Companies, and, individually, each as a Company), (a) owns 11 electric power generation facilities, all of which are located in Texas, and, through its wholly owned subsidiary, Texas Genco Holdings, Inc . (Holdings), an indirect 44% undivided interest in South Texas Project Nuclear Electric Generating Station (the South Texas Project or STP), and (b) sells wholesale electric generation capacity, energy and
_____________
dt 1338211
;
|
Citigroup Global
As referenced in this Acquisition Agreement:
Citigroup Global Markets, Inc – Section 5.8 of the Buyer Disclosure Letter is a true and complete copy of an executed commitment letter (the Debt Commitment Letter) from Morgan Stanley Senior Funding, Inc. and Citigroup Global Markets, Inc . to provide Buyer with (A) $4,800,000,000 in senior secured debt financing (the Senior Secured Financing), and (B) $5,100,000,000 in bridge financing to fund
_____________
Citigroup Global Markets, Inc – 8, or any successor or other forms promulgated for similar purposes or any registration statement filed pursuant to the Registration Rights Agreement dated December 27, 2004 among the Company and Citigroup Global Markets, Inc . and Deutsche Bank Securities Inc. with respect to the Companys 4% Convertible Perpetual Preferred Stock, whether or not for sale for its own account, in a manner which would
_____________
dt 1369423
;
Deutsche Bank
As referenced in this Acquisition Agreement:
Deutsche Bank Securities Inc – other forms promulgated for similar purposes or any registration statement filed pursuant to the Registration Rights Agreement dated December 27, 2004 among the Company and Citigroup Global Markets, Inc. and Deutsche Bank Securities Inc . with respect to the Companys 4% Convertible Perpetual Preferred Stock, whether or not for sale for its own account, in a manner which would permit registration of Registrable Securities
_____________
dt 1376255
;
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| 2001 |
Acquisition Agreement
Acquisition Agreement (223K)
Doc #897714: Click preview link for longer preview.
ACQUISITION AGREEMENT
AMONG
NORTHERN BORDER PARTNERS, L.P.
NORTHERN BORDER INTERMEDIATE LIMITED PARTNERSHIP
BEAR PAW INVESTMENTS, LLC
BEAR PAW ENERGY, LLC
AND
SELLERS
DATED AS OF MARCH 14, 2001
--------------------------------------------------------------------------------
<PAGE> . . .
897714
|
Enron
As referenced in this Acquisition Agreement:
Enron Corp. – and
the Exchange Act.
"NBILP" has the meaning set forth in the introductory paragraph.
"NBP" has the meaning set forth in the introductory paragraph.
"NBPS" means NBP Services Corporation, an Enron Corp. subsidiary.
"NBP SEC Reports" has the meaning set forth in Section 6.5(a).
"Net Purchase Price" has the meaning set forth in Section 4.2.
"Net Working Capital"
_____________
Enron Corp. – of and assume all responsibility with respect to the Savings Plan. As
soon as practicable following the Closing Date, Thomas J. Edelman will cause
Lodgepole to, and NBP will cause Enron Corp. to (i) afford each Continuing
Employee a one-time election right to direct that his or her account under the
Savings Plan be transferred to the Enron Corp. Savings
_____________
Enron Corp. – will cause Enron Corp. to (i) afford each Continuing
Employee a one-time election right to direct that his or her account under the
Savings Plan be transferred to the Enron Corp. Savings Plan and (ii) effect a
transfer from the Savings Plan to the Enron Corp. Savings Plan of the accounts
of the Continuing Employees electing that such transfer be
_____________
Enron Corp. – to direct that his or her account under the
Savings Plan be transferred to the Enron Corp. Savings Plan and (ii) effect a
transfer from the Savings Plan to the Enron Corp. Savings Plan of the accounts
of the Continuing Employees electing that such transfer be made. Such transfers
shall be made in cash, no loans shall be transferred, and such
_____________
Enron Corp. – Such transfers
shall be made in cash, no loans shall be transferred, and such transfers shall
be conditioned upon and subject to such approvals by the Internal Revenue
Service as Enron Corp. deems appropriate or necessary.
5.12 Brokerage Fees. Each Seller shall pay and indemnify NBP and NBILP
from and against any commission, finder's fee, investment banking fee or
_____________
dt 1698968
| |
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| 2003 |
Acquisition Agreement
Acquisition Agreement (187K)
Doc #924079: Click preview link for longer preview.
ACQUISITION AGREEMENT
BY AND AMONG
U.S. PROPANE, L.P.,
U.S. PROPANE, L.L.C.,
AGL PROPANE SERVICES, INC., AGL ENERGY CORPORATION,
UNITED CITIES PROPANE GAS, INC.,
TECO PROPANE VENTURES, LLC,
PIEDMONT PROPANE COMPANY,
AND
LA GRANGE ENERGY, L.P.
NOVEMBER 6, . . .
924079
|
TECO Energy
As referenced in this Acquisition Agreement:
TECO Energy, Inc. – are or were employed by any of them.
"Noncompetition Agreement" means the Noncompetition Agreement to be
entered into at the Closing among AGL Resources Inc., AGL, Atmos Energy
Corporation, Atmos, TECO Energy, Inc. , TECO, Piedmont Natural Gas Company, Inc.,
Piedmont and U.S. Propane, in substantially the form attached as Exhibit 1.1(c).
"Operative Documents" means this Agreement, the Contribution Agreement,
_____________
Teco Energy, Inc. – Restated
Formation Agreement, dated effective as of June 15, 2000 (the "Formation
Agreement"), by and among AGL Resources Inc., AGL Investments, Inc., AGL, Atmos
Energy Corporation, Atmos Propane, Inc., Atmos, Teco Energy, Inc. , TECO,
Piedmont Natural Gas Company, Inc., PNG Energy Company, Piedmont, U.S. Propane
and the GP, (ii) the GP LLC Agreement, (iii) the U.S. Propane Agreement, (iv)
the
_____________
TECO Energy, Inc. – Inc.
c/o Atmos Energy Corporation
5430 LBJ Freeway
1800 Three Lincoln Centre
Dallas, Texas 75240
Attention: J. Patrick Reddy
Facsimile: (972) 855-3793
TECO Propane Ventures, LLC
c/o TECO Energy, Inc.
702 N. Franklin Street
Tampa, Florida 33602
Attention: General Counsel
Facsimile: (813) 228-4811
46
Piedmont Propane Company
1915 Rexford Road
Charlotte, North Carolina 28211
Attention: David Dzuricky
_____________
dt 1698911
| |
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Full Doc
| 2001 |
Acquisition Agreement
Acquisition Agreement (171K)
Doc #1101320: Click preview link for longer preview.
<DESCRIPTION>ACQUISITION AGREEMENT
<TEXT>
ACQUISITION AGREEMENT
This Acquisition Agreement (the "Agreement") is entered into
as of May 29, 2001, by and among Allegheny Ventures, Inc., a
Delaware corporation, or its designee (the "Buyer"), Allegheny
Energy, Inc., a Maryland corporation ("Allegheny"), Conoco Inc.,
a Delaware corporation ("Conoco"), Alliance Gas Services, Inc., a
Kentucky corporation ("AGS"), John C. McCord, an individual
("McCord"), and Andrew R. Fellon, an individual (" . . .
1101320
|
Allegheny Energy
As referenced in this Acquisition Agreement:
Allegheny
Energy, Inc – TEXT>
ACQUISITION AGREEMENT
This Acquisition Agreement (the "Agreement") is entered into
as of May 29, 2001, by and among Allegheny Ventures, Inc., a
Delaware corporation, or its designee (the "Buyer"), Allegheny
Energy, Inc ., a Maryland corporation ("Allegheny"), Conoco Inc.,
a Delaware corporation ("Conoco"), Alliance Gas Services, Inc., a
Kentucky corporation ("AGS"), John C. McCord, an individual
("McCord"), and Andrew R. Fellon, an
_____________
Allegheny Energy, Inc – CONOCO, INC.
___________________________ By:___________________________
J. Mike Stice
President
Conoco Gas & Power Marketing,
a division of Conoco, Inc.
ATTEST: BUYER:
ALLEGHENY VENTURES, INC.
___________________________ By:____________________________
Paul M. Barbas
President
Allegheny Energy, Inc . is party to this Agreement solely
with respect to its obligations set forth in Sections 2(a), (b)
and (c).
ATTEST: ALLEGHENY ENERGY, INC.
___________________________ By:_____________________________
Paul M.
_____________
ALLEGHENY ENERGY, INC – By:____________________________
Paul M. Barbas
President
Allegheny Energy, Inc. is party to this Agreement solely
with respect to its obligations set forth in Sections 2(a), (b)
and (c).
ATTEST: ALLEGHENY ENERGY, INC .
___________________________ By:_____________________________
Paul M. Barbas
Corporate Vice President
EXHIBITS, ANNEXES AND SCHEDULES
Schedule A - EBITDA Forecast
Exhibit A - Permitted Revenues for EBITDA Calculation
Exhibit B-1 - FMA Financial
_____________
dt 1558606
;
Target
As referenced in this Acquisition Agreement:
"Target Corp – and McCord in the aggregate own all of the
outstanding shares of stock of both AGS and Fellon-McCord
Associates, Inc., a Kentucky corporation ("FMA" and together with
AGS, the "Target Corp orations"); and
WHEREAS, each of AGS and Conoco owns a 50% partnership
interest in Alliance Energy Services Partnership, a Kentucky
general partnership ("AES" or the "Target Partnership" and
together with
_____________
Target Corp – and
WHEREAS, each of AGS and Conoco owns a 50% partnership
interest in Alliance Energy Services Partnership, a Kentucky
general partnership ("AES" or the "Target Partnership" and
together with the Target Corp orations, the "Targets").
This Agreement contemplates a transaction in which (1) the
Buyer will purchase from Fellon and McCord, and Fellon and McCord
will sell to the Buyer, all of
_____________
Target Corp – a transaction in which (1) the
Buyer will purchase from Fellon and McCord, and Fellon and McCord
will sell to the Buyer, all of the outstanding capital stock of
the Target Corp orations in return for notes and performance
payments and (2) the Buyer will purchase from Conoco, and Conoco
will sell to the Buyer, its 50% partnership interest in the
Target
_____________
"Target Corp – owns a majority of the
outstanding shares of common stock or has the power to vote or
direct the voting of sufficient securities to elect a majority of
the directors.
"Target Corp orations" has the meaning set forth in the
preface above.
"Target Partnership" has the meaning set forth in the
preface above.
"Targets" has the meaning set forth in the preface
_____________
Target Corp – and
conditions of this Agreement, (1) the Buyer will purchase from
Fellon and McCord, and Fellon and McCord will sell to the Buyer,
all the outstanding capital stock of the Target Corp orations,
free and clear of all claims, liens, encumbrances, pledges or
charges of any nature whatsoever and (2) the Buyer will purchase
from Conoco, and Conoco will sell to the
_____________
dt 1522893
;
|
ISDA
As referenced in this Acquisition Agreement:
ISDA – plans and proposals), (f) all computer
software (including data and related documentation), (g) all
other proprietary rights and (h) all copies and tangible
embodiments thereof (in whatever form or medium).
"ISDA " means the International Swaps Dealers Association,
Inc.
"Knowledge" means actual, not implied or imputed, then
present knowledge after reasonable investigation.
"Liability" means any liability (whether known or unknown,
whether
_____________
ISDA – which any of the Targets is a party.
(i) any master agreement, purchase agreement or order
form pursuant to which individual purchase orders or
confirmations may be issued;
(ii) any ISDA agreement;
(iii) any form agreement for services performed, or
gas or electricity sold, by any of the Targets;
(iv) any agreement for the lease of personal property
to or
_____________
ISDA – to effect the
transactions contemplated hereby will be reasonably
satisfactory in form and substance to the Buyer.
(xiv) AES will have entered into a long term supply
contract and an ISDA Agreement with Conoco.
The Buyer may waive any condition specified in this Section
7(a) if it executes a writing so stating at or prior to the
Closing.
(b)
_____________
dt 1603708
;
 Stites
As referenced in this Acquisition Agreement:
Stites & Harbison, – of the Auditing
Firm's determination of Unresolved Changes.
(e) The Closing. The closing of the transactions
contemplated by this Agreement (the "Closing") shall take place
at the offices of Stites & Harbison, 400 West Market Street,
Louisville, Kentucky 40202 commencing at 9:00 a.m. local time on
the last business day of the month in which the satisfaction or
waiver
_____________
Stites & Harbison, – requested,
postage prepaid, and addressed to the intended recipient as set
forth below:
If to the Sellers: Copy to:
Andrew R. Fellon Ralston W. Steenrod, Esq.
3161 Chickering Woods Dr. Stites & Harbison, PLLC, Ste. 1800
Louisville, KY 40241 400 W. Market Street
Louisville, KY 40202-3352
John C. McCord Facsimile: (502) 587-6391
8 Woodhill Rd.
Louisville, KY 40207
Alliance Gas
_____________
dt 1318134
|
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| 2003 |
Acquisition Agreement
Acquisition Agreement (69K)
Doc #1376806: Click preview link for longer preview.
<DESCRIPTION>SALE AGREEMENT
<TEXT>
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is made and entered into as of
September 20, 2002, by and between Ridgewood Electric Power Trust II, a Delaware
business trust ("Seller") and EAC Operations, Inc., a New York corporation
("Buyer"), with reference to the following recitals:
RECITALS
A. B-3 Limited . . .
1376806
| | |
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| 2004 |
Acquisition Agreement
Acquisition Agreement (248K)
Doc #1406570: Click preview link for longer preview.
ACQUISITION AGREEMENT
BY AND BETWEEN
MONONGAHELA POWER COMPANY
AND
MOUNTAINEER GAS HOLDINGS LIMITED PARTNERSHIP
DATED AS OF AUGUST 4, 2004
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
1.1.
Definitions
1
ARTICLE II
. . .
1406570
|
Allegheny Energy
As referenced in this Acquisition Agreement:
Allegheny Energy, Inc – 31, 2009, and 8.09% Senior Notes, Class B, due October 31, 2019 (the 1999 Notes).
(21) Confidentiality Agreement means the Confidentiality Agreement, dated January 28, 2003, by and between Allegheny Energy, Inc . and IGS Utilities Corp., a Delaware corporation.
(22) Current Assets means all current assets, excluding deferred Taxes established to reflect temporary differences between book basis and Tax basis of
_____________
Allegheny Energy Inc – tariffs or arrangements approved or authorized by the Public Service Commission.
5.13. Insurance. All policies of fire, liability, workers compensation and other forms of insurance owned or held by Allegheny Energy Inc ., of which the Seller is a wholly owned subsidiary (Parent), that insure the Related Assets or the assets, properties or operations of the Company or the Companys Subsidiaries are
_____________
Allegheny Energy, Inc – of information which is first available after the Closing Date, the parties will promptly agree on such changes.
(i) All Tax allocation, Tax sharing, Tax indemnity or similar agreements between Allegheny Energy, Inc . or any of its Subsidiaries (other than the Company and its Subsidiaries), on the one hand, and the Company or its Subsidiaries, on the other hand, shall be terminated
_____________
Allegheny Energy, Inc – Company or its Subsidiaries, on the other hand, shall be terminated with respect to the Company and its Subsidiaries prior to the Closing Date, and, after the Closing Date, neither Allegheny Energy, Inc . or any of its Subsidiaries (other than the Company and its Subsidiaries), on the one hand, nor the Company or its Subsidiaries, on the other hand, shall be bound
_____________
dt 1558616
;
Citibank
As referenced in this Acquisition Agreement:
Citibank N.A. – Section 3.2(c) (i) shall be paid with interest for the period commencing on the Closing Date through the date of payment, calculated at the published prime rate of Citibank N.A. as in effect on the Closing Date (the Applicable Rate) and (ii) shall, to the maximum extent permitted by applicable law, constitute an adjustment to the Purchase Price.
(d)
_____________
dt 1479855
;
|
J.P. Morgan
As referenced in this Acquisition Agreement:
J.P. Morgan Securities Inc – in order to accommodate a third Persons Intellectual Property rights, or (C) permit any third party to use any Gas Distribution Intellectual Property.
5.27. Fees and Commissions. Except for J.P. Morgan Securities Inc ., whose fees will be paid by Seller, there is no investment banker, broker, finder or other intermediary that has been retained by or is authorized to act on behalf
_____________
J.P. Morgan Securities Inc – the Confidentiality Agreement (including the Information Memorandum, dated February 20, 2003, or the Request for Proposal, dated February 13, 2003, previously made available to the Buyer by the Seller and J.P. Morgan Securities Inc .). This Agreement supersedes all prior agreements and understandings, whether written or oral, between the parties with respect to such transactions other than the Confidentiality Agreement.
11.12. Bulk Sales
_____________
dt 1494019
|
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| 2007 |
Acquisition Agreement
Acquisition Agreement (173K)
Doc #2734368: Click preview link for longer preview.
ACQUISITION AGREEMENT
between
3211953 NOVA SCOTIA COMPANY
and
KINDER MORGAN, INC.
and
FORTIS INC.
Dated February 26, 2007
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1
Defined Terms
1.2
Interpretation and Construction
. . .
2734368
|
Kinder Morgan
As referenced in this Acquisition Agreement:
KINDER MORGAN, INC. –
EX-1.01 2 a07-6859_1ex1d01.htm EX-1.01
Exhibit 1.01
ACQUISITION AGREEMENT
between
3211953 NOVA SCOTIA COMPANY
and
KINDER MORGAN, INC.
and
FORTIS INC.
Dated February 26, 2007
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS
1.1
Defined Terms
1.2
Interpretation and Construction
ARTICLE 2
THE TRANSACTION; PURCHASE PRICE
_____________
KINDER MORGAN, INC. – Schedule
14.11
Guarantee of Performance
14.12
Counterparts
iv
ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT is entered into on the 26th day of February, 2007, between 3211953 NOVA SCOTIA COMPANY, KINDER MORGAN, INC. and FORTIS INC.
WHEREAS, subject to the terms and conditions set forth herein, Seller desires to sell to Buyer, and Buyer desires to purchase from Seller the Acquired Entities,
_____________
Kinder Morgan, Inc. – any of the foregoing, or (iii) quasi-governmental or private body exercising any regulatory, expropriation or taxing authority under, or for the account of, any of the foregoing.
Guarantor means Kinder Morgan, Inc. , a Kansas corporation.
Indemnifying Party has the meaning assigned to such term in Section 13.2(a).
3
Indemnitee means any of Buyer Indemnitees or Seller Indemnitees, as the
_____________
Kinder Morgan, Inc. – Ronald W. McCabe
Fax:(416) 863-0871
Fax:(709) 737-5307
If to Seller:
with copies to (if provided no more than two years following the Closing Date):
c/o Kinder Morgan, Inc.
Blake, Cassels & Graydon LLP
500 Dallas Street, Suite 1000
3500, 855 - 2nd Street S.W.
Houston, TX 77002
Calgary, Alberta
Attention:Joseph Listengart Esq.
T2P 4J8
Fax:(713)
_____________
KINDER MORGAN, INC. – Marshall
Name:Joseph Listengart
Title:President and Chief Executive Officer
Title:Vice President
by
/s/ Barry V. Perry
Name:Barry V. Perry
Title:Vice President, Finance and Chief Financial Officer
KINDER MORGAN, INC.
by
/s/ David D. Kinder
Name:David D. Kinder
Title:Vice President, Corporate Development and Treasurer
_____________
dt 1699014
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| 2001 |
Articles of Merger
Articles of Merger (7K)
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1418376
| | |
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Articles of Merger
Articles of Merger (5K)
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3344264
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| 2000 |
Asset Allocation and Separation Agreement
Asset Allocation and Separation Agreement (117K)
Doc #263571: Click preview link for longer preview.
ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc.
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01. DEFINITIONS...................................................2
ARTICLE II CONTRIBUTIONS AND ASSUMPTION OF LIABILITIES........................12
SECTION 2.01. TRANSFERS OF CERTAIN ASSETS TO WESTAR GROUP..................12
SECTION 2.02. INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT...12
SECTION 2.03. AGREEMENT RELATING TO CONSENTS NECESSARY TO TRANSFER ASSETS..13
SECTION 2.04. CERTAIN OFFICER LOANS........................................14
SECTION 2.05. SHARED SERVICES..............................................14
SECTION 2.06. SUBLEASE.....................................................14
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................15
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF WESTAR.....................15
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF WESTERN....................15
ARTICLE IV THE SPLIT-OFF......................................................16
SECTION 4.01. COOPERATION PRIOR TO THE SPLIT-OFF...........................16
SECTION 4.02. WESTERN BOARD ACTION; CONDITIONS PRECEDENT TO THE SPLIT-OFF..17
SECTION 4.03. THE SPLIT-OFF................................................18
SECTION 4.04. FRACTIONAL SHARES............................................18
ARTICLE V INDEMNIFICATION AND OTHER MATTERS...................................18
SECTION 5.01. WESTAR INDEMNIFICATION OF WESTERN GROUP......................18
SECTION 5.02. WESTERN INDEMNIFICATION OF WESTAR GROUP......................20
SECTION 5.03. INSURANCE AND THIRD PARTY OBLIGATIONS; LIMITATION ON
LIABILITY..................................................20
SECTION 5.04. NOTICE AND PAYMENT OF CLAIMS.................................21
SECTION 5.05. NOTICE AND DEFENSE OF THIRD-PARTY CLAIMS.....................21
SECTION 5.06. EXCLUSIVITY OF REMEDIES......................................24
ARTICLE VI EMPLOYEE MATTERS AND TRANSITION SERVICES...........................24
SECTION 6.01. EMPLOYEE MATTERS GENERALLY...................................24
SECTION 6.02. SHARED SERVICES MATTERS GENERALLY............................24
ARTICLE VII ACCESS TO INFORMATION.............................................24
SECTION 7.01. PROVISION OF CORPORATE RECORDS...............................24
SECTION 7.02. ACCESS TO INFORMATION........................................24
SECTION 7.03. LITIGATION COOPERATION.......................................25
SECTION 7.04. REIMBURSEMENT................................................25
SECTION 7.05. RETENTION OF RECORDS.........................................26
SECTION 7.06. CONFIDENTIALITY..............................................26
SECTION 7.07. PRESERVATION OF PRIVILEGE....................................27
SECTION 7.08. INAPPLICABILITY OF ARTICLE VII TO TAX MATTERS................27
ARTICLE VIII CERTAIN OTHER AGREEMENTS.........................................27
SECTION 8.01. USE OF PROCEEDS AND INTERCOMPANY MATTERS.....................27
SECTION 8.02. TRADEMARKS; TRADE NAMES......................................28
SECTION 8.03. FURTHER ASSURANCES AND CONSENTS..............................28
SECTION 8.04. THIRD PARTY BENEFICIARIES....................................28
SECTION 8.05. INTELLECTUAL PROPERTY RIGHTS AND LICENSES....................29
SECTION 8.06. INSURANCE CLAIMS.............................................29
ARTICLE IX MISCELLANEOUS......................................................29
SECTION 9.01. NOTICES......................................................29
SECTION 9.02. AMENDMENTS; NO WAIVERS.......................................30
SECTION 9.03. EXPENSES.....................................................31
SECTION 9.04. SUCCESSORS AND ASSIGNS.......................................31
SECTION 9.05. GOVERNING LAW................................................31
SECTION 9.06. COUNTERPARTS; EFFECTIVENESS..................................32
SECTION 9.07. ENTIRE AGREEMENT.............................................32
SECTION 9.08. TAX DISAFFILIATION AGREEMENT; SET-OFF; PAYMENT OF AFTER-TAX
TAXES......................................................32
SECTION 9.09. JURISDICTION.................................................33
SECTION 9.10. PRE-LITIGATION DISPUTE RESOLUTION............................33
SECTION 9.11. SEVERABILITY.................................................33
SECTION 9.12. SURVIVAL.....................................................33
SECTION 9.13. CAPTIONS.....................................................33
SECTION 9.14. SPECIFIC PERFORMANCE.........................................33
Schedules and Exhibits
Schedule 1.01(a) Group Insurance Policies
Schedule 1.01(b) Westar Trademark Rights
Schedule 1.01(c) Westar Litigation
Schedule 1.01(d) Western Balance Sheet
Schedule 1.01(e) Westar Balance Sheet
Schedule 1.01(g) Western Subsidiaries
Schedule 1.01(h) Westar Subsidiaries
Schedule 2.01 Transferred Assets
Schedule 3.02(c) Required Western Consents
Schedule 3.02(d) Required Western Government Authorizations
Schedule 4.02 Schedule of Split Dollar Life Insurance
Schedule 8.01(b) Intercompany Agreements Not to Survive Closing
Schedule 8.05 Software Licenses
Exhibit A Shared Services Agreement between Western and Westar
Exhibit B Option Agreement between Westar and Western
Exhibit C Sublease Term Sheet
Exhibit D Tax Disaffiliation Agreement between Western and Westar
Exhibit E Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
WHEREAS, Westar is presently a wholly owned subsidiary of Western;
WHEREAS, the Board of Directors of Western has approved (i) the issuance of
non-transferable rights (the "Rights") to purchase up to 9.9% of the outstanding
shares of Westar Common Stock (as defined herein) issuable pursuant to the
Rights (the "Rights Offering Shares") and (ii) the terms and conditions of the
distribution and exercise of Rights as provided by the registration statement
filed by Westar under the Securities Act in connection therewith (the "Rights
Offering");
WHEREAS, the Board of Directors of Western has determined that it is in the
best interests of Western, its shareholders and Westar that all outstanding
shares of Westar Common Stock then held by Western be distributed to Western's
shareholders in exchange for a portion of the shares of Western common stock
held by such shareholders (provided that all conditions precedent to the
Split-Off (as defined herein) have been satisfied) and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("Merger Sub-1") and HVNM, Inc., a New Mexico
corporation ("Merger Sub-2"), Merger Sub-1 be merged with and into Western, as a
result of which Western will become a wholly owned subsidiary of Parent (the
"Merger");
WHEREAS, for United States federal income Tax (as defined below) purposes,
it is intended that (i) the Split-Off will be treated as a taxable exchange of
the Split-Off Portion (as defined below) of the Western Common Stock for Westar
Common Stock, and (ii) the Mergers taken together will be treated as a
transaction described in Section 351 of the Internal Revenue Code of 1986, as
amended (the "Code");
WHEREAS, Western and Westar are concurrently herewith entering into, or
propose to enter into prior to or on the Separation Date (as defined below), the
Ancillary Agreements (as defined below); and
WHEREAS, the parties hereto desire to set forth herein the principal
corporate transactions to be effected in connection with the Rights Offering and
the Split-Off and certain other matters relating to the relationship and the
respective rights and obligations of the parties following the completion of the
Rights Offering and, subsequently, following the Split-Off.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Action" means any claim, suit, action, arbitration, inquiry, investigation
or other proceeding of any nature (whether criminal, civil, legislative,
administrative, regulatory, prosecutorial or otherwise) by or before any
arbitrator or Governmental Entity or similar Person or body.
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of
the Exchange Act as of the date hereof, provided, however, that except when
referred to as an "Existing Affiliate," for purposes of this Agreement, no
member of one Group shall be treated as an Affiliate of any member of the other
Group.
"Agreement" has the meaning set forth in the recitals.
"Ancillary Agreements" means each of the Registration Rights Agreement, the
Tax Disaffiliation Agreement, the Shared Services Agreement, the Westar Option,
the Trademark Assignment Agreement and the Sublease Agreement.
"Average Trading Price" means the average of the daily volume-weighted
trading price per share of Western Common Stock or Westar Common Stock, as
applicable, on the New York Stock Exchange, as applicable, as reported by
Bloomberg Financial Markets, or if not reported thereby, another reasonably
agreed authoritative source.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by law to close in New York, New York.
"Commission" means the Securities and Exchange Commission.
"Company Disclosure Letter" shall have the meaning specified in the Merger
Agreement.
"Confidential Information" has the meaning set forth in Section 7.06.
"Confidentiality Agreements" means the Confidentiality Agreement, dated as
of July 25, 2000, between PNM and Western and the Confidentiality Letter between
Western and PNM dated October 20, 2000.
"Contracts" means any agreement, lease, license, contract, treaty, note,
mortgage, indenture, franchise, permit, concession, arrangement or other
obligation.
263571
|
HVOLT
As referenced in this Asset Allocation and Separation Agreement:
HVOLT Enterprises, – merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("
_____________
dt 143350
;
Public Service
As referenced in this Asset Allocation and Separation Agreement:
Public Service Company of New Mexico – and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico , a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation
_____________
Public Service Company of New Mexico – New York, New York 10019
Telecopy: (212) 424-8500
Attention: William S. Lamb, Esq. and Benjamin G. Clark, Esq.
If to PNM, to:
Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Telecopy: (505) 241-2368
Attention: Chief Financial Officer
With a copy to:
Winthrop, Stimson, Putnam & Roberts
_____________
dt 169991
;
|
Western
As referenced in this Asset Allocation and Separation Agreement:
Western Resources, Inc – 99.2
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}ASSET ALLOCATION AND SEPARATION AGREEMENT
{TEXT}
Exhibit 99.2
ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc .
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01.
_____________
WESTERN RESOURCES, INC – Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC ., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
_____________
WESTERN RESOURCES, INC – the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
WESTERN RESOURCES, INC .
By: /s/ David C. Wittig
----------------------------------------
David C. Wittig
Chairman of the Board, President and
Chief Executive Officer
WESTAR INDUSTRIES, INC.
By: /s/
_____________
dt 143341
;
|
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| 2001 |
Asset Allocation and Separation Agreement
Asset Allocation and Separation Agreement (117K)
Doc #295860: Click preview link for longer preview.
ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc.
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01. DEFINITIONS...................................................2
ARTICLE II CONTRIBUTIONS AND ASSUMPTION OF LIABILITIES........................12
SECTION 2.01. TRANSFERS OF CERTAIN ASSETS TO WESTAR GROUP..................12
SECTION 2.02. INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT...12
SECTION 2.03. AGREEMENT RELATING TO CONSENTS NECESSARY TO TRANSFER ASSETS..13
SECTION 2.04. CERTAIN OFFICER LOANS........................................14
SECTION 2.05. SHARED SERVICES..............................................14
SECTION 2.06. SUBLEASE.....................................................14
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................15
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF WESTAR.....................15
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF WESTERN....................15
ARTICLE IV THE SPLIT-OFF......................................................16
SECTION 4.01. COOPERATION PRIOR TO THE SPLIT-OFF...........................16
SECTION 4.02. WESTERN BOARD ACTION; CONDITIONS PRECEDENT TO THE SPLIT-OFF..17
SECTION 4.03. THE SPLIT-OFF................................................18
SECTION 4.04. FRACTIONAL SHARES............................................18
ARTICLE V INDEMNIFICATION AND OTHER MATTERS...................................18
{PAGE}
SECTION 5.01. WESTAR INDEMNIFICATION OF WESTERN GROUP......................18
SECTION 5.02. WESTERN INDEMNIFICATION OF WESTAR GROUP......................20
SECTION 5.03. INSURANCE AND THIRD PARTY OBLIGATIONS; LIMITATION ON
LIABILITY..................................................20
SECTION 5.04. NOTICE AND PAYMENT OF CLAIMS.................................21
SECTION 5.05. NOTICE AND DEFENSE OF THIRD-PARTY CLAIMS.....................21
SECTION 5.06. EXCLUSIVITY OF REMEDIES......................................24
ARTICLE VI EMPLOYEE MATTERS AND TRANSITION SERVICES...........................24
SECTION 6.01. EMPLOYEE MATTERS GENERALLY...................................24
SECTION 6.02. SHARED SERVICES MATTERS GENERALLY............................24
ARTICLE VII ACCESS TO INFORMATION.............................................24
SECTION 7.01. PROVISION OF CORPORATE RECORDS...............................24
SECTION 7.02. ACCESS TO INFORMATION........................................24
SECTION 7.03. LITIGATION COOPERATION.......................................25
SECTION 7.04. REIMBURSEMENT................................................25
SECTION 7.05. RETENTION OF RECORDS.........................................26
SECTION 7.06. CONFIDENTIALITY..............................................26
SECTION 7.07. PRESERVATION OF PRIVILEGE....................................27
SECTION 7.08. INAPPLICABILITY OF ARTICLE VII TO TAX MATTERS................27
ARTICLE VIII CERTAIN OTHER AGREEMENTS.........................................27
SECTION 8.01. USE OF PROCEEDS AND INTERCOMPANY MATTERS.....................27
SECTION 8.02. TRADEMARKS; TRADE NAMES......................................28
SECTION 8.03. FURTHER ASSURANCES AND CONSENTS..............................28
SECTION 8.04. THIRD PARTY BENEFICIARIES....................................28
SECTION 8.05. INTELLECTUAL PROPERTY RIGHTS AND LICENSES....................29
SECTION 8.06. INSURANCE CLAIMS.............................................29
ARTICLE IX MISCELLANEOUS......................................................29
SECTION 9.01. NOTICES......................................................29
SECTION 9.02. AMENDMENTS; NO WAIVERS.......................................30
SECTION 9.03. EXPENSES.....................................................31
SECTION 9.04. SUCCESSORS AND ASSIGNS.......................................31
SECTION 9.05. GOVERNING LAW................................................31
SECTION 9.06. COUNTERPARTS; EFFECTIVENESS..................................32
SECTION 9.07. ENTIRE AGREEMENT.............................................32
SECTION 9.08. TAX DISAFFILIATION AGREEMENT; SET-OFF; PAYMENT OF AFTER-TAX
TAXES......................................................32
SECTION 9.09. JURISDICTION.................................................33
SECTION 9.10. PRE-LITIGATION DISPUTE RESOLUTION............................33
SECTION 9.11. SEVERABILITY.................................................33
SECTION 9.12. SURVIVAL.....................................................33
SECTION 9.13. CAPTIONS.....................................................33
SECTION 9.14. SPECIFIC PERFORMANCE.........................................33
Schedules and Exhibits
Schedule 1.01(a) Group Insurance Policies
Schedule 1.01(b) Westar Trademark Rights
Schedule 1.01(c) Westar Litigation
Schedule 1.01(d) Western Balance Sheet
Schedule 1.01(e) Westar Balance Sheet
Schedule 1.01(g) Western Subsidiaries
Schedule 1.01(h) Westar Subsidiaries
Schedule 2.01 Transferred Assets
Schedule 3.02(c) Required Western Consents
Schedule 3.02(d) Required Western Government Authorizations
Schedule 4.02 Schedule of Split Dollar Life Insurance
Schedule 8.01(b) Intercompany Agreements Not to Survive Closing
Schedule 8.05 Software Licenses
Exhibit A Shared Services Agreement between Western and Westar
Exhibit B Option Agreement between Westar and Western
Exhibit C Sublease Term Sheet
Exhibit D Tax Disaffiliation Agreement between Western and Westar
Exhibit E Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
WHEREAS, Westar is presently a wholly owned subsidiary of Western;
WHEREAS, the Board of Directors of Western has approved (i) the issuance of
non-transferable rights (the "Rights") to purchase up to 9.9% of the outstanding
shares of Westar Common Stock (as defined herein) issuable pursuant to the
Rights (the "Rights Offering Shares") and (ii) the terms and conditions of the
distribution and exercise of Rights as provided by the registration statement
filed by Westar under the Securities Act in connection therewith (the "Rights
Offering");
WHEREAS, the Board of Directors of Western has determined that it is in the
best interests of Western, its shareholders and Westar that all outstanding
shares of Westar Common Stock then held by Western be distributed to Western's
shareholders in exchange for a portion of the shares of Western common stock
held by such shareholders (provided that all conditions precedent to the
Split-Off (as defined herein) have been satisfied) and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("Merger Sub-1") and HVNM, Inc., a New Mexico
corporation ("Merger Sub-2"), Merger Sub-1 be merged with and into Western, as a
result of which Western will become a wholly owned subsidiary of Parent (the
"Merger");
WHEREAS, for United States federal income Tax (as defined below) purposes,
it is intended that (i) the Split-Off will be treated as a taxable exchange of
the Split-Off Portion (as defined below) of the Western Common Stock for Westar
Common Stock, and (ii) the Mergers taken together will be treated as a
transaction described in Section 351 of the Internal Revenue Code of 1986, as
amended (the "Code");
WHEREAS, Western and Westar are concurrently herewith entering into, or
propose to enter into prior to or on the Separation Date (as defined below), the
Ancillary Agreements (as defined below); and
WHEREAS, the parties hereto desire to set forth herein the principal
corporate transactions to be effected in connection with the Rights Offering and
the Split-Off and certain other matters relating to the relationship and the
respective rights and obligations of the parties following the completion of the
Rights Offering and, subsequently, following the Split-Off.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
{PAGE}
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Action" means any claim, suit, action, arbitration, inquiry, investigation
or other proceeding of any nature (whether criminal, civil, legislative,
administrative, regulatory, prosecutorial or otherwise) by or before any
arbitrator or Governmental Entity or similar Person or body.
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of
the Exchange Act as of the date hereof, provided, however, that except when
referred to as an "Existing Affiliate," for purposes of this Agreement, no
member of one Group shall be treated as an Affiliate of any member of the other
Group.
"Agreement" has the meaning set forth in the recitals.
"Ancillary Agreements" means each of the Registration Rights Agreement, the
Tax Disaffiliation Agreement, the Shared Services Agreement, the Westar Option,
the Trademark Assignment Agreement and the Sublease Agreement.
"Average Trading Price" means the average of the daily volume-weighted
trading price per share of Western Common Stock or Westar Common Stock, as
applicable, on the New York Stock Exchange, as applicable, as reported by
Bloomberg Financial Markets, or if not reported thereby, another reasonably
agreed authoritative source.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by law to close in New York, New York.
"Commission" means the Securities and Exchange Commission.
"Company Disclosure Letter" shall have the meaning specified in the Merger
Agreement.
"Confidential Information" has the meaning set forth in Section 7.06.
"Confidentiality Agreements" means the Confidentiality Agreement, dated as
of July 25, 2000, between PNM and Western and the Confidentiality Letter between
Western and PNM dated October 20, 2000.
"Contracts" means any agreement, lease, license, contract, treaty, note,
mortgage, indenture, franchise, permit, concession, arrangement or other
obligation.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Convertible Preference Stock" means convertible preference stock of
Western, with the terms specified in Exhibit B to the Merger Agreement.
"CPI Western Power Holdings" means CPI Western Power Holdings, Inc., a
Bermuda limited liability company.
"Cut Off Date" means 15 Business Days prior to the Closing Date (as defined
in the Merger Agreement).
"Damages" means, with respect to any Person, any and all damages (including
punitive and consequential damages), losses, Liabilities and expenses incurred
or suffered by such Person (including, but not limited to, all expenses of
investigation, all attorneys' and expert witnesses' fees and all other
out-of-pocket expenses incurred in connection with any Action or threatened
Action).
"Employment Agreements" means the employment agreements listed in Item 10
{PAGE}
of Section 7.9 of the Company Disclosure Letter for the Merger Agreement.
"Environmental Law" means any federal, state or local laws (including,
without limitation, common law), regulations, codes, rules, ordinances, permits,
authorizations, decrees, orders, injunctions or judgments and any binding
administrative or judicial interpretations thereof relating to: (a) pollution;
(b) the protection of the environment (including air, water, soil, subsurface
strata and natural resources) or human health and safety from exposure to
Hazardous Substances and (c) the regulation of the generation, use, storage,
handling, transportation, treatment, release, remediation or disposal of
Hazardous Substances.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Existing Affiliate" means any Affiliate of Western as of the date hereof
and not giving effect to this Agreement, the Restructuring or the Merger.
"Finally Determined" means, with respect to any Action, threatened Action
or other matter, that the outcome or resolution of that Action, threatened
Action or other matter either (i) has been decided through binding arbitration
or by a Governmental Entity of competent jurisdiction by judgment, order, award,
or other ruling or (ii) has been settled or voluntarily dismissed by the parties
pursuant to the dispute resolution procedure set forth in Section 9.10 or
otherwise and, in the case of each of clauses (i) and (ii), the claimants'
rights to maintain that Action, threatened Action or other matter have been
finally adjudicated, waived, discharged or extinguished, and that judgment,
order, ruling, award, settlement or dismissal (whether mandatory or voluntary,
but if voluntary that dismissal must be final, binding and with prejudice as to
all claims specifically pleaded in that Action) is subject to no further appeal,
vacatur proceeding or discretionary review.
"Former Affiliate" means any Person (as defined below) that was, at any
time prior to the date hereof and without giving effect to this Agreement, but
has ceased to be, an Affiliate of Western.
"Governmental Entity" means any U.S. or non-U.S. governmental or regulatory
authority, agency, commission, tribunal, body or other governmental,
quasi-governmental or self-regulatory entity.
"Group" means, as the context requires, the Westar Group (as defined below)
or the Western Group (as defined below).
"Group Policies" means all Policies, current or past, which prior to the
Split-Off Time are or at any time were maintained by or on behalf of or for the
benefit or protection of Western, any Existing Affiliate or any Former Affiliate
(or any of their predecessors) and/or one or more of the current or past
295860
|
HVOLT
As referenced in this Asset Allocation and Separation Agreement:
HVOLT Enterprises, – merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("
_____________
dt 263877
;
Public Service
As referenced in this Asset Allocation and Separation Agreement:
Public Service Company of New Mexico – and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico , a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation
_____________
Public Service Company of New Mexico – New York, New York 10019
Telecopy: (212) 424-8500
Attention: William S. Lamb, Esq. and Benjamin G. Clark, Esq.
If to PNM, to:
Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Telecopy: (505) 241-2368
Attention: Chief Financial Officer
With a copy to:
Winthrop, Stimson, Putnam & Roberts
_____________
dt 254253
;
|
Western
As referenced in this Asset Allocation and Separation Agreement:
Western Resources, Inc – 99.2
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}ASSET ALLOCATION AND SEPARATION AGREEMENT
{TEXT}
{PAGE}
Exhibit 2
ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc .
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01.
_____________
WESTERN RESOURCES, INC – Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC ., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
_____________
WESTERN RESOURCES, INC – the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
WESTERN RESOURCES, INC .
{PAGE}
By: /s/ David C. Wittig
----------------------------------------
David C. Wittig
Chairman of the Board, President and
Chief Executive Officer
WESTAR INDUSTRIES, INC.
By: /
_____________
dt 263856
;
Westar Industries, Inc.
|
Preview
Full Doc
| 2000 |
Asset Allocation and Separation Agreement
Asset Allocation and Separation Agreement (117K)
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ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc.
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01. DEFINITIONS...................................................2
ARTICLE II CONTRIBUTIONS AND ASSUMPTION OF LIABILITIES........................12
SECTION 2.01. TRANSFERS OF CERTAIN ASSETS TO WESTAR GROUP..................12
SECTION 2.02. INTERCOMPANY TRANSFERS AND SETTLEMENT OF INTERCOMPANY DEBT...12
SECTION 2.03. AGREEMENT RELATING TO CONSENTS NECESSARY TO TRANSFER ASSETS..13
SECTION 2.04. CERTAIN OFFICER LOANS........................................14
SECTION 2.05. SHARED SERVICES..............................................14
SECTION 2.06. SUBLEASE.....................................................14
ARTICLE III REPRESENTATIONS AND WARRANTIES....................................15
SECTION 3.01. REPRESENTATIONS AND WARRANTIES OF WESTAR.....................15
SECTION 3.02. REPRESENTATIONS AND WARRANTIES OF WESTERN....................15
ARTICLE IV THE SPLIT-OFF......................................................16
SECTION 4.01. COOPERATION PRIOR TO THE SPLIT-OFF...........................16
SECTION 4.02. WESTERN BOARD ACTION; CONDITIONS PRECEDENT TO THE SPLIT-OFF..17
SECTION 4.03. THE SPLIT-OFF................................................18
SECTION 4.04. FRACTIONAL SHARES............................................18
ARTICLE V INDEMNIFICATION AND OTHER MATTERS...................................18
SECTION 5.01. WESTAR INDEMNIFICATION OF WESTERN GROUP......................18
SECTION 5.02. WESTERN INDEMNIFICATION OF WESTAR GROUP......................20
SECTION 5.03. INSURANCE AND THIRD PARTY OBLIGATIONS; LIMITATION ON
LIABILITY..................................................20
SECTION 5.04. NOTICE AND PAYMENT OF CLAIMS.................................21
SECTION 5.05. NOTICE AND DEFENSE OF THIRD-PARTY CLAIMS.....................21
SECTION 5.06. EXCLUSIVITY OF REMEDIES......................................24
ARTICLE VI EMPLOYEE MATTERS AND TRANSITION SERVICES...........................24
SECTION 6.01. EMPLOYEE MATTERS GENERALLY...................................24
SECTION 6.02. SHARED SERVICES MATTERS GENERALLY............................24
ARTICLE VII ACCESS TO INFORMATION.............................................24
SECTION 7.01. PROVISION OF CORPORATE RECORDS...............................24
SECTION 7.02. ACCESS TO INFORMATION........................................24
SECTION 7.03. LITIGATION COOPERATION.......................................25
SECTION 7.04. REIMBURSEMENT................................................25
SECTION 7.05. RETENTION OF RECORDS.........................................26
SECTION 7.06. CONFIDENTIALITY..............................................26
SECTION 7.07. PRESERVATION OF PRIVILEGE....................................27
SECTION 7.08. INAPPLICABILITY OF ARTICLE VII TO TAX MATTERS................27
ARTICLE VIII CERTAIN OTHER AGREEMENTS.........................................27
SECTION 8.01. USE OF PROCEEDS AND INTERCOMPANY MATTERS.....................27
SECTION 8.02. TRADEMARKS; TRADE NAMES......................................28
SECTION 8.03. FURTHER ASSURANCES AND CONSENTS..............................28
SECTION 8.04. THIRD PARTY BENEFICIARIES....................................28
SECTION 8.05. INTELLECTUAL PROPERTY RIGHTS AND LICENSES....................29
SECTION 8.06. INSURANCE CLAIMS.............................................29
ARTICLE IX MISCELLANEOUS......................................................29
SECTION 9.01. NOTICES......................................................29
SECTION 9.02. AMENDMENTS; NO WAIVERS.......................................30
SECTION 9.03. EXPENSES.....................................................31
SECTION 9.04. SUCCESSORS AND ASSIGNS.......................................31
SECTION 9.05. GOVERNING LAW................................................31
SECTION 9.06. COUNTERPARTS; EFFECTIVENESS..................................32
SECTION 9.07. ENTIRE AGREEMENT.............................................32
SECTION 9.08. TAX DISAFFILIATION AGREEMENT; SET-OFF; PAYMENT OF AFTER-TAX
TAXES......................................................32
SECTION 9.09. JURISDICTION.................................................33
SECTION 9.10. PRE-LITIGATION DISPUTE RESOLUTION............................33
SECTION 9.11. SEVERABILITY.................................................33
SECTION 9.12. SURVIVAL.....................................................33
SECTION 9.13. CAPTIONS.....................................................33
SECTION 9.14. SPECIFIC PERFORMANCE.........................................33
Schedules and Exhibits
Schedule 1.01(a) Group Insurance Policies
Schedule 1.01(b) Westar Trademark Rights
Schedule 1.01(c) Westar Litigation
Schedule 1.01(d) Western Balance Sheet
Schedule 1.01(e) Westar Balance Sheet
Schedule 1.01(g) Western Subsidiaries
Schedule 1.01(h) Westar Subsidiaries
Schedule 2.01 Transferred Assets
Schedule 3.02(c) Required Western Consents
Schedule 3.02(d) Required Western Government Authorizations
Schedule 4.02 Schedule of Split Dollar Life Insurance
Schedule 8.01(b) Intercompany Agreements Not to Survive Closing
Schedule 8.05 Software Licenses
Exhibit A Shared Services Agreement between Western and Westar
Exhibit B Option Agreement between Westar and Western
Exhibit C Sublease Term Sheet
Exhibit D Tax Disaffiliation Agreement between Western and Westar
Exhibit E Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
WHEREAS, Westar is presently a wholly owned subsidiary of Western;
WHEREAS, the Board of Directors of Western has approved (i) the issuance of
non-transferable rights (the "Rights") to purchase up to 9.9% of the outstanding
shares of Westar Common Stock (as defined herein) issuable pursuant to the
Rights (the "Rights Offering Shares") and (ii) the terms and conditions of the
distribution and exercise of Rights as provided by the registration statement
filed by Westar under the Securities Act in connection therewith (the "Rights
Offering");
WHEREAS, the Board of Directors of Western has determined that it is in the
best interests of Western, its shareholders and Westar that all outstanding
shares of Westar Common Stock then held by Western be distributed to Western's
shareholders in exchange for a portion of the shares of Western common stock
held by such shareholders (provided that all conditions precedent to the
Split-Off (as defined herein) have been satisfied) and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("Merger Sub-1") and HVNM, Inc., a New Mexico
corporation ("Merger Sub-2"), Merger Sub-1 be merged with and into Western, as a
result of which Western will become a wholly owned subsidiary of Parent (the
"Merger");
WHEREAS, for United States federal income Tax (as defined below) purposes,
it is intended that (i) the Split-Off will be treated as a taxable exchange of
the Split-Off Portion (as defined below) of the Western Common Stock for Westar
Common Stock, and (ii) the Mergers taken together will be treated as a
transaction described in Section 351 of the Internal Revenue Code of 1986, as
amended (the "Code");
WHEREAS, Western and Westar are concurrently herewith entering into, or
propose to enter into prior to or on the Separation Date (as defined below), the
Ancillary Agreements (as defined below); and
WHEREAS, the parties hereto desire to set forth herein the principal
corporate transactions to be effected in connection with the Rights Offering and
the Split-Off and certain other matters relating to the relationship and the
respective rights and obligations of the parties following the completion of the
Rights Offering and, subsequently, following the Split-Off.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. The following terms, as used herein, have the
following meanings:
"Action" means any claim, suit, action, arbitration, inquiry, investigation
or other proceeding of any nature (whether criminal, civil, legislative,
administrative, regulatory, prosecutorial or otherwise) by or before any
arbitrator or Governmental Entity or similar Person or body.
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of
the Exchange Act as of the date hereof, provided, however, that except when
referred to as an "Existing Affiliate," for purposes of this Agreement, no
member of one Group shall be treated as an Affiliate of any member of the other
Group.
"Agreement" has the meaning set forth in the recitals.
"Ancillary Agreements" means each of the Registration Rights Agreement, the
Tax Disaffiliation Agreement, the Shared Services Agreement, the Westar Option,
the Trademark Assignment Agreement and the Sublease Agreement.
"Average Trading Price" means the average of the daily volume-weighted
trading price per share of Western Common Stock or Westar Common Stock, as
applicable, on the New York Stock Exchange, as applicable, as reported by
Bloomberg Financial Markets, or if not reported thereby, another reasonably
agreed authoritative source.
"Business Day" means any day other than a Saturday, Sunday or one on which
banks are authorized or required by law to close in New York, New York.
"Commission" means the Securities and Exchange Commission.
"Company Disclosure Letter" shall have the meaning specified in the Merger
Agreement.
"Confidential Information" has the meaning set forth in Section 7.06.
"Confidentiality Agreements" means the Confidentiality Agreement, dated as
of July 25, 2000, between PNM and Western and the Confidentiality Letter between
Western and PNM dated October 20, 2000.
"Contracts" means any agreement, lease, license, contract, treaty, note,
mortgage, indenture, franchise, permit, concession, arrangement or other
obligation.
"Control" means the possession, directly or indirectly, of the power to
direct or cause the direction of the management and policies of a Person,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Convertible Preference Stock" means convertible preference stock of
Western, with the terms specified in Exhibit B to the Merger Agreement.
"CPI Western Power Holdings" means CPI Western Power Holdings, Inc., a
Bermuda limited liability company.
"Cut Off Date" means 15 Business Days prior to the Closing Date (as defined
in the Merger Agreement).
"Damages" means, with respect to any Person, any and all damages (including
punitive and consequential damages), losses, Liabilities and expenses incurred
or suffered by such Person (including, but not limited to, all expenses of
investigation, all attorneys' and expert witnesses' fees and all other
out-of-pocket expenses incurred in connection with any Action or threatened
Action).
"Employment Agreements" means the employment agreements listed in Item 10
of Section 7.9 of the Company Disclosure Letter for the Merger Agreement.
"Environmental Law" means any federal, state or local laws (including,
without limitation, common law), regulations, codes, rules, ordinances, permits,
authorizations, decrees, orders, injunctions or judgments and any binding
administrative or judicial interpretations thereof relating to: (a) pollution;
(b) the protection of the environment (including air, water, soil, subsurface
strata and natural resources) or human health and safety from exposure to
Hazardous Substances and (c) the regulation of the generation, use, storage,
handling, transportation, treatment, release, remediation or disposal of
Hazardous Substances.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder.
"Existing Affiliate" means any Affiliate of Western as of the date hereof
and not giving effect to this Agreement, the Restructuring or the Merger.
"Finally Determined" means, with respect to any Action, threatened Action
or other matter, that the outcome or resolution of that Action, threatened
Action or other matter either (i) has been decided through binding arbitration
or by a Governmental Entity of competent jurisdiction by judgment, order, award,
or other ruling or (ii) has been settled or voluntarily dismissed by the parties
pursuant to the dispute resolution procedure set forth in Section 9.10 or
otherwise and, in the case of each of clauses (i) and (ii), the claimants'
rights to maintain that Action, threatened Action or other matter have been
finally adjudicated, waived, discharged or extinguished, and that judgment,
order, ruling, award, settlement or dismissal (whether mandatory or voluntary,
but if voluntary that dismissal must be final, binding and with prejudice as to
all claims specifically pleaded in that Action) is subject to no further appeal,
vacatur proceeding or discretionary review.
"Former Affiliate" means any Person (as defined below) that was, at any
time prior to the date hereof and without giving effect to this Agreement, but
has ceased to be, an Affiliate of Western.
"Governmental Entity" means any U.S. or non-U.S. governmental or regulatory
authority, agency, commission, tribunal, body or other governmental,
quasi-governmental or self-regulatory entity.
"Group" means, as the context requires, the Westar Group (as defined below)
or the Western Group (as defined below).
"Group Policies" means all Policies, current or past, which prior to the
Split-Off Time are or at any time were maintained by or on behalf of or for the
benefit or protection of Western, any Existing Affiliate or any Former Affiliate
(or any of their predecessors) and/or one or more of the current or past
directors, officers, employees or agents of any of the foregoing including,
295871
|
HVOLT
As referenced in this Asset Allocation and Separation Agreement:
HVOLT Enterprises, – merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico, a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation and a
wholly owned subsidiary of Parent ("
_____________
dt 263880
;
Public Service
As referenced in this Asset Allocation and Separation Agreement:
Public Service Company of New Mexico – and that, pursuant to an
agreement and plan of restructuring and merger, dated as of November 8, 2000
(the "Merger Agreement"), among Western, Public Service Company of New Mexico , a
New Mexico corporation ("PNM"), HVOLT Enterprises, Inc., a corporation organized
under the laws of Delaware ("Parent"), HVK, Inc.,. a Kansas corporation
_____________
Public Service Company of New Mexico – New York, New York 10019
Telecopy: (212) 424-8500
Attention: William S. Lamb, Esq. and Benjamin G. Clark, Esq.
If to PNM, to:
Public Service Company of New Mexico
Alvarado Square
Albuquerque, New Mexico 87158
Telecopy: (505) 241-2368
Attention: Chief Financial Officer
With a copy to:
Winthrop, Stimson, Putnam & Roberts
_____________
dt 254256
;
|
Western
As referenced in this Asset Allocation and Separation Agreement:
Western Resources, Inc – 99.2
{SEQUENCE}3
{FILENAME}0003.txt
{DESCRIPTION}ASSET ALLOCATION AND SEPARATION AGREEMENT
{TEXT}
Exhibit 99.2
ASSET ALLOCATION AND
SEPARATION AGREEMENT
between
Western Resources, Inc .
and
Westar Industries, Inc.
-----------------------
Dated as of November 8, 2000
{PAGE}
TABLE OF CONTENTS
-----------------
PAGE
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.01.
_____________
WESTERN RESOURCES, INC – Trademark Assignment Agreement
{PAGE}
ASSET ALLOCATION AND SEPARATION AGREEMENT
ASSET ALLOCATION AND SEPARATION AGREEMENT, dated as of November 8, 2000
(this "Agreement"), between WESTERN RESOURCES, INC ., a Kansas corporation
("Western"), and WESTAR INDUSTRIES, INC., a Kansas corporation ("Westar").
W I T N E S S E T H:
_____________
WESTERN RESOURCES, INC – the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date first above
written.
WESTERN RESOURCES, INC .
By: /s/ David C. Wittig
----------------------------------------
David C. Wittig
Chairman of the Board, President and
Chief Executive Officer
WESTAR INDUSTRIES, INC.
By: /s/
_____________
dt 263863
;
|