EXHIBIT 10.2
EXECUTION COPY
MEMBERSHIP INTEREST PURCHASE AGREEMENT
BY AND BETWEEN
THE AES CORPORATION,
AND
AMEREN CORPORATION
DATED AS OF APRIL 28, 2002
TABLE OF CONTENTS
ARTICLE I PURCHASE AND SALE OF UNITS...............................................................1
SECTION 1.1 SALE AND TRANSFER OF UNITS....................................................1
SECTION 1.2 THE PURCHASE PRICE............................................................1
ARTICLE II THE CLOSING.............................................................................4
SECTION 2.1 CLOSING.......................................................................4
SECTION 2.2 DELIVERIES BY THE SELLER......................................................4
SECTION 2.3 DELIVERIES BY THE PURCHASER...................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE SELLER...........................................5
SECTION 3.1 ORGANIZATION AND QUALIFICATION................................................5
SECTION 3.2 SUBSIDIARIES; CAPITALIZATION..................................................6
SECTION 3.3 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS; COMPLIANCE.................6
SECTION 3.4 FINANCIAL STATEMENTS..........................................................8
SECTION 3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS; ABSENCE OF UNDISCLOSED LIABILITIES......8
SECTION 3.6 LITIGATION....................................................................9
SECTION 3.7 TAX MATTERS...................................................................9
SECTION 3.8 EMPLOYEE BENEFITS; ERISA.....................................................10
SECTION 3.9 LABOR AND EMPLOYEE RELATIONS.................................................12
SECTION 3.10 ENVIRONMENTAL PROTECTION....................................................12
SECTION 3.11 REGULATION AS AN EWG........................................................13
SECTION 3.12 INSURANCE...................................................................13
SECTION 3.13 REAL PROPERTY...............................................................14
SECTION 3.14 AFFILIATE CONTRACTS.........................................................14
SECTION 3.15 BROKERS OR FINDERS..........................................................14
SECTION 3.16 CONTRACTS...................................................................14
SECTION 3.17 REGULATORY PROCEEDINGS......................................................15
SECTION 3.18 LIMITATION ON REPRESENTATIONS AND WARRANTIES................................15
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASER........................................15
SECTION 4.1 ORGANIZATION AND QUALIFICATION...............................................15
SECTION 4.2 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS; COMPLIANCE................16
SECTION 4.3 PURCHASER SEC REPORTS; FINANCIAL STATEMENTS..................................17
SECTION 4.4 LITIGATION...................................................................18
SECTION 4.5 INVESTIGATION BY THE PURCHASER; THE SELLER'S LIABILITY.......................18
SECTION 4.6 ACQUISITION OF UNITS FOR INVESTMENT; ABILITY TO EVALUATE AND BEAR RISK.......19
SECTION 4.7 FINANCING....................................................................19
SECTION 4.8 BROKERS OR FINDERS...........................................................19
ARTICLE V CONDUCT OF BUSINESS PENDING THE CLOSING.................................................19
SECTION 5.1 COVENANTS OF THE SELLER......................................................19
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SECTION 5.2 NO SOLICITATION AND CONFIDENTIALITY..........................................22
ARTICLE VI ADDITIONAL AGREEMENTS..................................................................22
SECTION 6.1 ACCESS TO COMPANY INFORMATION................................................22
SECTION 6.2 REGULATORY MATTERS...........................................................23
SECTION 6.3 CONSENTS.....................................................................24
SECTION 6.4 MANAGERS' AND OFFICERS' INDEMNIFICATION......................................24
SECTION 6.5 PUBLIC ANNOUNCEMENTS.........................................................25
SECTION 6.6 WORKFORCE MATTERS............................................................26
SECTION 6.7 TAX MATTERS..................................................................26
SECTION 6.8 FINANCIAL INFORMATION........................................................34
SECTION 6.9 TERMINATION OF AFFILIATE CONTRACTS...........................................34
SECTION 6.10 SELLER'S NAME...............................................................34
SECTION 6.11 FURTHER ASSURANCES..........................................................34
ARTICLE VII CONDITIONS............................................................................35
SECTION 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE CLOSING..................35
SECTION 7.2 CONDITIONS TO OBLIGATION OF THE PURCHASER TO EFFECT THE CLOSING..............35
SECTION 7.3 CONDITIONS TO OBLIGATION OF THE SELLER TO EFFECT THE CLOSING.................36
ARTICLE VIII TERMINATION..........................................................................37
SECTION 8.1 TERMINATION..................................................................37
SECTION 8.2 EFFECT OF TERMINATION........................................................38
ARTICLE IX GENERAL PROVISIONS.....................................................................38
SECTION 9.1 SURVIVAL OF OBLIGATIONS......................................................38
SECTION 9.2 AMENDMENT AND MODIFICATION...................................................39
SECTION 9.3 EXTENSION; WAIVER............................................................39
SECTION 9.4 EXPENSES.....................................................................39
SECTION 9.5 NOTICES......................................................................39
SECTION 9.6 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES...............................40
SECTION 9.7 SEVERABILITY.................................................................41
SECTION 9.8 GOVERNING LAW................................................................41
SECTION 9.9 VENUE........................................................................41
SECTION 9.10 WAIVER OF JURY TRIAL AND CERTAIN DAMAGES....................................41
SECTION 9.11 SPECIFIC PERFORMANCE........................................................41
SECTION 9.12 ASSIGNMENT..................................................................41
SECTION 9.13 INTERPRETATION..............................................................42
SECTION 9.14 COUNTERPARTS; EFFECT........................................................42
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INDEX OF DEFINED TERMS
TERM PAGE
Action............................................................................................26
ADSP..............................................................................................32
Affected Employee.................................................................................27
Affiliate Contracts...............................................................................14
Agreement..........................................................................................1
AGUB..............................................................................................32
Allocation........................................................................................32
Assumed Obligations................................................................................2
Audit.............................................................................................10
Available Amount...................................................................................2
Base Working Capital...............................................................................2
Closing............................................................................................4
Closing Date.......................................................................................4
COBRA.............................................................................................27
Code...............................................................................................4
Collateral Account Agreement.......................................................................2
Company............................................................................................1
Company Financial Statements.......................................................................8
Company Material Adverse Effect....................................................................5
Company Plan Schedule.............................................................................10
Company Plans.....................................................................................10
Company Properties................................................................................14
Company Subsidiary.................................................................................6
Confidentiality Agreement.........................................................................24
DOJ...............................................................................................24
Encumbrances.......................................................................................6
Environmental Laws................................................................................13
ERISA.............................................................................................10
ERISA Affiliate...................................................................................10
Estimated Purchase Price...........................................................................3
Exchange Act.......................................................................................7
FERC...............................................................................................7
Final Order.......................................................................................37
Final Purchase Price...............................................................................3
FTC...............................................................................................24
GAAP...............................................................................................8
Governmental Authority.............................................................................7
Hazardous Substances..............................................................................13
HSR Act...........................................................................................24
ICC................................................................................................7
Income Taxes.......................................................................................2
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TERM PAGE
Indemnified Parties...............................................................................25
Indemnified Party.................................................................................25
Initial Termination Date..........................................................................39
Material Contracts................................................................................15
▇▇▇▇▇▇.............................................................................................1
Membership Interest................................................................................1
Non-Income Taxes..................................................................................28
Objection Letter...................................................................................3
Operations.........................................................................................1
PBGC..............................................................................................11
Person............................................................................................13
Proposed Acquisition Transaction..................................................................23
Proposed Final Purchase Price Statement............................................................3
PUHCA..............................................................................................6
Purchase Price.....................................................................................2
Purchaser..........................................................................................1
Purchaser Disclosure Schedule.....................................................................16
Purchaser Material Adverse Effect.................................................................16
Purchaser Required Consents.......................................................................17
Purchaser Required Statutory Approvals............................................................17
Purchaser SEC Reports.............................................................................16
Purchaser Subsidiary..............................................................................16
Representatives...................................................................................23
Restraints........................................................................................37
Restricted Amount..................................................................................2
Section 338(h)(10) Election.......................................................................32
Seller.............................................................................................1
Seller Disclosure Schedule.........................................................................5
Seller Required Consents...........................................................................7
Seller Required Statutory Approvals................................................................7
Straddle Period...................................................................................28
Subsidiary.........................................................................................6
Subsidiary Schedule................................................................................6
Tax...............................................................................................10
Tax Benefit.......................................................................................30
Tax Indemnitee....................................................................................34
Tax Indemnitor....................................................................................34
Tax Return........................................................................................10
Termination Date..................................................................................39
Title IV Company Plan.............................................................................11
Transaction Price..................................................................................2
Units..............................................................................................1
Violation..........................................................................................7
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TERM PAGE
WARN Act..........................................................................................27
Working Capital....................................................................................2
MEMBERSHIP INTEREST PURCHASE AGREEMENT
THIS
MEMBERSHIP INTEREST PURCHASE AGREEMENT, dated as of April 28,
2002 (this "AGREEMENT"), is entered into by and between The
AES Corporation, a
Delaware corporation (the "SELLER"), and Ameren Corporation, a Missouri
corporation (the "PURCHASER").
W I T N E S S E T H :
WHEREAS, the Seller owns all of the issued and outstanding units (the
"UNITS") of the membership interest (the "MEMBERSHIP INTERESTS") of AES ▇▇▇▇▇▇
Valley (No. 4), L.L.C., an Illinois limited liability company (the "COMPANY"),
which is the parent company of AES ▇▇▇▇▇▇ Valley (No. 2), L.L.C., an Illinois
limited liability company, which in turn is the parent company of AES ▇▇▇▇▇▇
Valley Cogen, L.L.C., an Illinois limited liability company ("▇▇▇▇▇▇"), and the
Company is the parent company of AES ▇▇▇▇▇▇ Valley Operations, L.L.C., an
Illinois limited liability company ("OPERATIONS"); and
WHEREAS, each of the Boards of Directors of the Purchaser and the
Seller has approved the acquisition of the Company by the Purchaser, which
acquisition is to be effected by the purchase of all the Units by the Purchaser
upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
PURCHASE AND SALE OF UNITS
Section 1.1 SALE AND TRANSFER OF UNITS. Subject to the terms and
conditions of this Agreement, at the Closing (as defined below), the Seller
agrees to sell, convey, assign, transfer and deliver to the Purchaser, and the
Purchaser agrees to purchase and accept from the Seller, all of the Seller's
rights, title and interest in and to the Units. Subject to the terms and
conditions of this Agreement, the Purchaser agrees to deliver to the Seller, and
the Seller agrees to accept, the Purchase Price (as defined below), in cash,
without deduction or setoff of any kind (other than any transfer Taxes described
in Section 6.7(m)), which delivery will be made by wire transfer in immediately
available funds to the bank account or accounts designated by the Seller prior
to the Closing.
Section 1.2 THE PURCHASE PRICE.
(a) Subject to the terms and conditions of this Agreement, in
consideration of the aforesaid sale, conveyance, assignment, transfer and
delivery to the Purchaser of the Units, the Purchaser shall pay to the Seller in
cash the sum of (w) $60,000,000 (the "TRANSACTION PRICE"); (x) less an amount
equal to Assumed Obligations (as defined below);
(y) increased by the amount, if any, by which Working Capital (as defined below)
as of the Closing Date exceeds the Base Working Capital (as defined below) and
(z) decreased by the amount, if any, which Working Capital as of the Closing
Date is less than the Base Working Capital (the net of such amounts (w) through
(z) being, the "PURCHASE PRICE"). An example of the Purchase Price calculation
is set forth in Section 1.2(a) of the Seller Disclosure Schedule (as defined
below).
(b) The term "ASSUMED OBLIGATIONS" as used herein shall mean
amounts required to be included on the consolidated balance sheets of the
Company in accordance with GAAP (as defined in Section 3.4) as of the Closing
Date for long-term indebtedness (including current portion), short-term
indebtedness, capital lease obligations, preferred stock of subsidiaries and any
other obligation for borrowed money less any Restricted Amounts. Assumed
Obligations shall be determined on a basis consistent with past practice and
consistent with the items outstanding as of December 31, 2001, set forth on
Section 1.2(a) of the Seller Disclosure Schedule but including any other
outstanding obligation meeting the definition of the preceding sentence at the
applicable date set forth herein.
(c) The term "WORKING CAPITAL" as used herein shall mean current
assets less current liabilities (not counting in current liabilities any
short-term indebtedness or current maturity of long-term debt included in
Assumed Obligations) of the Company as of the applicable date set forth herein
determined in accordance with GAAP plus any Available Amount. "Working Capital"
shall be determined on a basis consistent with past practice and consistent with
the calculation on Section 1.2(a) of the Seller Disclosure Schedule, PROVIDED,
HOWEVER, that for the purposes of this definition, current liabilities as of any
date shall not include any Income Taxes payable, and current assets shall not
include receivables from any Income Tax assets. "INCOME TAXES"shall mean any
federal, state, local, or foreign Tax (as defined below) determined by reference
to net income, net worth, or any Tax imposed in lieu of such a Tax.
(d) The term "BASE WORKING CAPITAL" as used herein means the
amount shown on Section 1.2(a) of the Seller Disclosure Schedule. The Working
Capital as of the Closing Date shall be calculated in the same manner as the
Working Capital was calculated as set out on Section 1.2(a) of the Seller
Disclosure Schedule.
(e) The term "RESTRICTED AMOUNT" as used herein means any monies
held in the following accounts maintained pursuant to the Collateral Account
Agreement dated as of June 1, 2001 (the "COLLATERAL ACCOUNT AGREEMENT"), by and
among ▇▇▇▇▇▇, Landesbank Hessen-Thuringen Girozentrale, New York Branch as
Collateral Agent, and The Bank of New York as Depositary Agent and Securities
Intermediary: Debt Service Reserve and Related Payments Account, Prepayment
Account, Debt Service Reserve Account, Loss Proceeds Account, and Project
Document Claims Account.
(f) The term "AVAILABLE AMOUNT" as used herein means any monies
held in the following accounts maintained pursuant to the Collateral Account
Agreement: Punch List Account, Project Revenues Collection Account, Operating
Account, Major Maintenance Reserve Account, Distribution Account, and Payment
Account.
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(g) At the Closing, the Purchaser shall pay to the Seller a cash
amount (the "ESTIMATED PURCHASE PRICE") consisting of the sum of (i) the
Transaction Price, (ii) less the estimated Assumed Obligations, (iii) increased
by the amount, if any, by which the estimated Working Capital exceeds the Base
Working Capital and (iv) decreased by the amount, if any, by which the estimated
Working Capital is less than the Base Working Capital, all determined in good
faith by the Seller on the basis hereinabove set forth using the unaudited
consolidated balance sheets of the Company as of the last day of the month which
precedes the month of the Closing Date by no more than 45 days. The Seller shall
provide to the Purchaser a written calculation in reasonable detail of the
Estimated Purchase Price on or prior to the fifth business day preceding the
Closing Date.
(h) As promptly as practical, but in no event more than sixty
(60) days after the Closing, the Purchaser shall cause the Company to prepare
and deliver to the Seller and the Purchaser a draft of a statement prepared in
good faith setting forth the relevant calculations resulting in the final
Purchase Price (the "PROPOSED FINAL PURCHASE PRICE STATEMENT") which shall show,
as of the Closing Date, the actual Assumed Obligations and variance, if any,
from the Base Working Capital. During the thirty (30) day period following the
delivery by the Company of the Proposed Final Purchase Price Statement, the
Seller and its auditors may review such statement and the working papers of the
Company's auditors relating to the Proposed Final Purchase Price Statement and
shall have such access to the Purchaser's and the Company's personnel as may be
reasonably necessary to permit the Seller and its auditors to review in detail
the manner in which the Proposed Final Purchase Price Statement was prepared.
The Purchaser shall and shall cause the Company, as well as their advisors, to
cooperate with the Seller and the Seller's auditors in facilitating such review.
Upon completion of such review, the Seller shall give any comments or objections
it has with respect to the Proposed Final Purchase Price Statement to the
Purchaser and the Company in writing within such thirty (30) day period (the
"OBJECTION LETTER"). The Purchaser and the Seller shall attempt in good faith to
resolve any differences and issues as set forth in the Objection Letter. If no
Objection Letter is delivered or the matters set forth in the Objection Letter
are so resolved, then the Proposed Final Purchase Price Statement, as adjusted
for any changes as are agreed upon by the Seller and the Purchaser, shall be
final and binding upon the Seller and the Purchaser and shall constitute the
final Purchase Price (the "FINAL PURCHASE PRICE"). If the matters raised by the
Seller in the Objection Letter cannot be resolved between the Purchaser and the
Seller within ten (10) days of the date of the Objection Letter, the question or
questions in dispute shall then be promptly submitted to any "big five"
accounting firm mutually agreeable to the Seller and the Purchaser (other than
the Seller's auditors, the Purchaser's auditors and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP), or if
such accounting firm cannot or refuses to serve in such capacity, a mutually
acceptable firm of independent public accountants of recognized standing, the
decision of which as to such question or questions in dispute shall be final and
binding upon the Seller and the Purchaser and the determination of the purchase
price pursuant thereto shall be considered to be the Final Purchase Price. The
accounting firm shall be instructed to resolve solely the question or questions
in dispute within twenty (20) days of submission.
(i) In the event the Final Purchase Price is greater than the
Estimated Purchase Price paid at the Closing by the Purchaser, then the
Purchaser shall promptly (within five (5) business days of the determination of
the Final Purchase Price) pay to the Seller an amount equal to the difference
between the Final Purchase Price and the Estimated Purchase
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Price. In the event the Final Purchase Price is less than the Estimated Purchase
Price paid at the Closing by the Purchaser, then the Seller shall promptly
(within five (5) business days of the determination of the Final Purchase Price)
pay to the Purchaser an amount equal to the difference between the Estimated
Purchase Price and the Final Purchase Price.
(j) The fees of the Company's auditors incurred in connection
with the preparation of the Proposed Final Purchase Price Statement shall be
borne by the Purchaser, and the fees of the Seller's auditors incurred in
connection with their review of the Proposed Final Purchase Price Statement
shall be borne by the Seller. The fees of any independent accounting firm
appointed pursuant to this Section 1.2 shall be borne equally by the Seller and
the Purchaser.
ARTICLE II
THE CLOSING
Section 2.1 CLOSING. The consummation of the sale and transfer of the
Units by the Seller to the Purchaser (the "CLOSING") shall take place at the
offices of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ at 10:00 a.m., local time, on the second business day
immediately following the date on which the last of the conditions set forth in
Article VII hereof is fulfilled or waived (except for those conditions which by
their nature can only be fulfilled at the Closing) or at such other time, date
and place as the Seller and the Purchaser shall mutually agree (the "CLOSING
DATE").
Section 2.2 DELIVERIES BY THE SELLER. At the Closing, the Seller shall
deliver to the Purchaser:
(a) An assignment of the Membership Interests, duly and validly
executed by the Seller and otherwise sufficient to vest in the Purchaser good
title to the Units;
(b) The resignations of the members of the Board of Managers of
the Company and each Company Subsidiary (as hereinafter defined);
(c) The limited liability company books, Unit ledgers and minute
books of the Company and each Company Subsidiary; PROVIDED that any of the
foregoing items shall be deemed to have been delivered pursuant to this Section
2.2(c) if such item has been delivered to, or is otherwise located at, the
offices of the Company;
(d) A certificate of the Seller's non-foreign status for purposes
of Section 1445 of the Internal Revenue Code of 1986, as amended (the "CODE");
and
(e) Any other documents, instruments and writings required to be
delivered by the Seller to the Purchaser pursuant to this Agreement.
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Section 2.3 DELIVERIES BY THE PURCHASER. At the Closing, the Purchaser
shall deliver to the Seller:
(a) The Estimated Purchase Price, in cash, which will be made by
wire transfer in immediately available funds to the bank account or accounts
designated by the Seller, in writing prior to the Closing; and
(b) Any other documents, instruments and writings required to be
delivered by the Purchaser to the Seller pursuant to this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SELLER
The Seller represents and warrants to the Purchaser that except as set
forth in the schedule delivered by the Seller on the date hereof (the "SELLER
DISCLOSURE SCHEDULE"):
Section 3.1 ORGANIZATION AND QUALIFICATION. The Seller is a
corporation duly organized, validly existing and in good standing under the laws
of the State of
Delaware. The Company and each Company Subsidiary (as defined in
Section 3.2) is a limited liability company duly organized and validly existing
under the laws of Illinois, has all requisite power and authority to own, lease
and operate its assets and properties to the extent owned, leased and operated
and to carry on its business as it is now being conducted and is duly qualified
and in good standing to do business in each jurisdiction in which the nature of
its business or the ownership or leasing of its assets and properties makes such
qualification necessary other than in such jurisdictions where the failure to be
so qualified or in good standing would not have a Company Material Adverse
Effect (as defined below). As used in this Agreement, the term "COMPANY MATERIAL
ADVERSE EFFECT" shall mean any material adverse effect on the business, assets,
financial condition or results of operations of the Company and the Company
Subsidiaries, taken as a whole; PROVIDED, HOWEVER, that the term "Company
Material Adverse Effect" shall not include effects that result from or are
consequences of (i) any such effect resulting from any change in law, rule, or
regulation of any Governmental Authority (as defined in Section 3.3(c)) that
applies generally to similarly situated Persons (as defined in Section
3.10(a)(ii)), (ii) changes or developments in international, national, regional,
state or local wholesale or retail markets for electric power or fuel or related
products, including those due to actions by competitors, (iii) changes or
developments in national, regional, state or local electric transmission or
distribution systems, (iv) changes or developments in financial or securities
markets or the economy in general or effects of weather or meteorological
events, (v) events or changes that are consequences of terrorist activity, acts
of war or acts of public enemies (other than any such event or consequence
affecting only the Company or a Company Subsidiary) or (vi) the negotiation,
announcement, execution, delivery, consummation or anticipation of the
transactions contemplated by, or in compliance with, this Agreement. As used in
this Agreement, the term "knowledge" (i) when referring to the knowledge of the
Seller shall mean the actual knowledge of an executive officer of the Seller,
and (ii) when referring to the knowledge of the Company shall mean the actual
knowledge after reasonable due inquiry of an executive officer of the Company or
a Company Subsidiary, as applicable.
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Section 3.2 SUBSIDIARIES; CAPITALIZATION.
(a) Section 3.2(a) of the Seller Disclosure Schedule (the
"SUBSIDIARY SCHEDULE") sets forth a complete list, as of the date hereof, of all
of the Company Subsidiaries and their respective jurisdictions of organization.
All of the issued and outstanding units of the membership interest of each
Company Subsidiary have been duly authorized and are validly issued, fully paid
and nonassessable, and are owned, directly or indirectly, by the Company free
and clear of any liens, claims, security interests and other encumbrances of any
nature whatsoever ("ENCUMBRANCES"). As used in this Agreement, the term
"SUBSIDIARY" of a Person shall mean any corporation or other entity (including
partnerships and other business associations and joint ventures) of which at
least a majority of the voting power represented by the outstanding capital
stock or other voting securities or interests having voting power under ordinary
circumstances to elect managers or similar members of the governing body of such
corporation or entity (or, if there are no such voting interests, 50% or more of
the equity interests in such corporation or entity) shall at the time be held,
directly or indirectly, by such Person. The term "COMPANY SUBSIDIARY" shall mean
a Subsidiary of the Company. Neither the Company nor any Company Subsidiary is a
"holding company" or a "public utility company" within the meaning of Sections
2(a)(7) and 2(a)(5) of the Public Utility Holding Company Act of 1935, as
amended ("PUHCA"), respectively.
(b) All Units have been duly authorized and are validly issued,
fully paid and nonassessable and free of preemptive rights. There are no
options, warrants, calls, rights, commitments or agreements of any character to
which the Seller, the Company or any Company Subsidiary is a party or by which
it is bound obligating the Seller, the Company or any Company Subsidiary to
issue, deliver or sell, pledge, grant a security interest on or encumber or
cause to be issued, delivered or sold, pledged or encumbered or a security
interest to be granted on, any units of the membership interest of the Company
or any Company Subsidiary or obligating the Company or the Seller to grant,
extend or enter into any such option, warrant, call, right, commitment or
agreement.
Section 3.3 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS;
COMPLIANCE.
(a) AUTHORITY. The Seller has all requisite corporate power and
authority to enter into this Agreement and, subject to the receipt of the
applicable Seller Required Statutory Approvals (as defined in Section 3.3(c)),
to consummate the transactions contemplated hereby. The execution and delivery
of this Agreement and the consummation by the Seller of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of the Seller. No vote of, or consent by, the holders of any class
or series of stock issued by the Seller is necessary to authorize the execution
and delivery by the Seller of this Agreement or the consummation by it of the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by the Seller and, assuming the due authorization, execution and
delivery hereof by the Purchaser, constitutes the valid and binding obligation
of the Seller enforceable against it in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
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(b) NON-CONTRAVENTION. The execution and delivery of this
Agreement by the Seller does not, and the consummation of the transactions
contemplated hereby will not, violate or result in a breach of any provision of,
constitute a default (with or without notice or lapse of time or both) under,
result in the termination or modification of, accelerate the performance
required by, result in a right of termination, cancellation or acceleration of
any obligation or the loss of a benefit under, or result in the creation of any
Encumbrance upon any of the properties or assets of the Company or any Company
Subsidiary (any such violation, breach, default, right of termination,
modification, cancellation or acceleration, loss or creation, is referred to
herein as a "VIOLATION" with respect to the Seller and the Company and such term
when used in Article IV has a correlative meaning with respect to the Purchaser)
pursuant to any provisions of (i) the articles of incorporation, by-laws or
similar governing documents of the Seller, the Operating Agreement of the
Company or the limited liability company agreement or operating agreement of any
Company Subsidiary, (ii) subject to obtaining the Seller Required Statutory
Approvals, any statute, law, ordinance, rule, regulation, judgment, decree,
order, injunction, writ, permit or license of any Governmental Authority (as
defined in Section 3.3(c)) applicable to the Seller, the Company or any Company
Subsidiary or any of their respective properties or assets, or (iii) subject to
obtaining the third-party consents set forth in Section 3.3(b)(iii) of the
Seller Disclosure Schedule (the "SELLER REQUIRED CONSENTS"), any note, bond,
mortgage, indenture, deed of trust, pledge, license, franchise, permit,
concession, contract, lease or other instrument, obligation or agreement of any
kind to which the Seller, the Company or any Company Subsidiary is a party or by
which they or any of their respective properties or assets may be bound or
affected, except in the case of clause (ii) or (iii) for any such Violation
which would not have a Company Material Adverse Effect or prevent, materially
delay or materially impair the Seller's ability to consummate the transactions
contemplated by this Agreement.
(c) STATUTORY APPROVALS. Except for (i) the filings by the
Seller, the Company and/or the Purchaser, as applicable, required under the HSR
Act (as defined in Section 6.2(a)), (ii) the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and the rules
and regulations promulgated thereunder, (iii) any filings with or approvals from
(w) the Federal Energy Regulatory Commission (the "FERC"), (x) the Illinois
Commerce Commission (the "ICC"), (y) the Federal Communications Commission, and
(z) the other Governmental Authorities set forth on Section 3.3(c) of the Seller
Disclosure Schedule (the filings and approvals referred to in clauses (i)
through (iii) collectively referred to as the "SELLER REQUIRED STATUTORY
APPROVALS"), no declaration, filing or registration with, or notice to or
authorization, consent or approval of, any court, federal, state, local or
foreign governmental or regulatory body (including a national securities
exchange or other self-regulatory body) or authority (each, a "GOVERNMENTAL
AUTHORITY") is necessary for the execution and delivery of this Agreement by the
Seller or the consummation by the Seller of the transactions contemplated
hereby, except those which the failure to obtain would not result in a Company
Material Adverse Effect or would not prevent, materially delay or materially
impair the Seller's ability to consummate the transactions contemplated by this
Agreement (it being understood that references in this Agreement to "obtaining"
such Seller Required Statutory Approvals shall mean making such declarations,
filings or registrations; giving such notices; obtaining such authorizations,
consents or approvals; and having such waiting periods expire as are necessary
to avoid a violation of law).
7
(d) COMPLIANCE. To the knowledge of the Seller or the Company,
neither the Company nor any Company Subsidiary is in violation of, is under
investigation with respect to any violation of, or has been given notice of or
been charged with any violation of, any law, statute, order, rule, regulation,
ordinance or judgment of any Governmental Authority, except for possible
violations which would not have a Company Material Adverse Effect or would not
prevent, materially delay or materially impair the ability of the Seller to
consummate the transactions contemplated by this Agreement. To the knowledge of
the Seller and the Company, the Company and each Company Subsidiary have all
material permits, licenses, franchises and other governmental authorizations,
consents and approvals (collectively, "Permits") necessary to conduct their
businesses as presently conducted except those that the absence of which would
not have a Company Material Adverse Effect or would not prevent, materially
delay or materially impair the ability of the Seller to consummate the
transactions contemplated by this Agreement. Except as would not have a Company
Material Adverse Effect, (i) each Permit is in full force and effect in
accordance with its terms, (ii) there is no outstanding written nor, to the
knowledge of the Seller or the Company, any other notice of revocation, and
there are no proceedings pending or, to the knowledge of the Seller or the
Company, threatened that seek revocation, cancellation or termination of any
Permit. Neither the Company nor any Company Subsidiary is in breach or violation
of or in default in the performance or observance of any term or provision of,
and no event has occurred which, with lapse of time or action by a third party,
could result in a default by the Company or any Company Subsidiary under, (i)
their respective operating agreements or limited liability company agreements or
(ii) to the knowledge of the Seller and the Company, any contract, commitment,
agreement, indenture, mortgage, loan agreement, note, lease, bond, license,
approval or other instrument to which it is a party or by which it is bound or
to which any of its property is subject, except in the case of clause (ii) for
possible violations, breaches or defaults which would not have a Company
Material Adverse Effect or would not prevent, materially delay or materially
impair the ability of the Seller to consummate the transactions contemplated by
this Agreement.
Section 3.4 FINANCIAL STATEMENTS. The audited consolidated financial
statements and unaudited interim financial statements of the Company (the
"COMPANY FINANCIAL STATEMENTS") have been prepared in accordance with United
States generally accepted accounting principles ("GAAP") applied on a consistent
basis during the period involved (except as may be stated in the notes thereto)
and fairly present the consolidated financial position and the consolidated
results of operations and cash flows (and changes in financial position, if any)
of the Company and the Company Subsidiaries as of the time and for the period
referred to therein, subject, in the case of unaudited interim financial
statements, to normal, recurring audit adjustments.
Section 3.5 ABSENCE OF CERTAIN CHANGES OR EVENTS; ABSENCE OF
UNDISCLOSED LIABILITIES.
(a) Since December 31, 2001 through the date hereof, the Company
and each of the Company Subsidiaries has conducted its businesses only in the
ordinary course of business consistent with past practice and there has not been
any development or combination of developments affecting the Company or any
Company Subsidiary, of which the Seller and the Company has knowledge, that
would have a Company Material Adverse Effect.
8
(b) Neither the Company nor any of the Company Subsidiaries has
any liabilities or obligations (whether absolute, accrued, contingent or
otherwise) of any nature, except those which (i) are accrued or reserved against
in the Company Financial Statements or reflected in the notes thereto, (ii) were
incurred in the ordinary course of business and would not have a Company
Material Adverse Effect, (iii) have been discharged or paid in full prior to the
date hereof, or (iv) are of a nature not required to be reflected in the
consolidated financial statements of the Company and the Company Subsidiaries
prepared in accordance with GAAP consistently applied.
Section 3.6 LITIGATION. There are no claims, suits, actions or
proceedings before any court, governmental department, commission, agency,
instrumentality or authority or any arbitrator pending or, to the knowledge of
the Seller or the Company, threatened against, relating to or affecting the
Company or any Company Subsidiary which would have a Company Material Adverse
Effect or would prevent, materially delay or materially impair the Purchaser's
ability to consummate the transactions contemplated by this Agreement. There are
no judgments, decrees, injunctions, rules or orders of any court, governmental
department, commission, agency, instrumentality or authority or any arbitrator
applicable to the Company or any Company Subsidiary except for such that would
not have a Company Material Adverse Effect or would not prevent, materially
delay or materially impair the Purchaser's ability to consummate the
transactions contemplated by this Agreement.
Section 3.7 TAX MATTERS.
(a) (i) The Company and each Company Subsidiary has timely filed
(or has had filed on its behalf) with appropriate taxing authorities all
material Tax Returns required to be filed by it, such Tax Returns are correct,
complete and accurate in all material respects, and all Taxes shown as due on
such Tax Returns have been paid; (ii) all material Tax withholding and deposit
requirements imposed on or with respect to the Company and each Company
Subsidiary (including any withholding with respect to wages or other amounts
paid to employees) have been satisfied in full in all material respects; (iii)
there are no outstanding requests, agreements, consents or waivers to extend the
statutory period of limitations applicable to the assessment or collection of
any material Taxes or deficiencies against the Company or any Company
Subsidiary; (iv) no federal, state, local, or foreign Audit for which the
Company, or any Company Subsidiary has received written notification are
presently pending with regard to any material Taxes or material Tax Returns
filed by or on behalf of the Seller, the Company or any Company Subsidiary; (v)
neither the Company nor any Company Subsidiary is a party to any agreement
providing for the allocation or sharing of Taxes; and (vi) neither the Company
nor any Company Subsidiary has been a member of any affiliated group filing a
consolidated federal income Tax Return (other than a group the common parent of
which is the Seller and the Company).
(b) As used in this Agreement: (i) the term "TAX" means all
federal, state, local and foreign income, profits, franchise, gross receipts,
environmental, customs duty, capital stock, severance, stamp, payroll, sales,
employment, unemployment, disability, use, property, withholding, excise,
production, value added, occupancy and other taxes, duties or assessments of any
nature whatsoever, together with all interest, penalties and additions imposed
with respect thereto; (ii) the term "TAX RETURN" means all returns and reports
(including elections,
9
declarations, disclosures, schedules, estimates, information returns, and
amended returns and reports) required to be supplied to a Tax authority relating
to Taxes; and (iii) the term "AUDIT" means any audit, assessment of Taxes,
reassessment of Taxes, or other examination by any Governmental Authority or any
judicial or administrative proceedings or appeal of such proceedings.
(c) The Company has elected under federal income tax law to be
taxed as a corporation for federal income tax purposes and has filed the
appropriate documentation with all applicable Governmental Authorities.
Section 3.8 EMPLOYEE BENEFITS; ERISA.
(a) COMPANY PLANS. Section 3.8(a) of the Seller Disclosure
Schedule (the "COMPANY PLAN SCHEDULE") contains a true and complete list of each
deferred compensation and each bonus or other incentive compensation, stock
purchase, stock option and other equity compensation plan, program, agreement or
arrangement; each severance or termination pay, medical, surgical,
hospitalization, life insurance and other "welfare" plan, fund or program
(within the meaning of Section 3(1) of the Employee Retirement Income Security
Act of 1974, as amended ("ERISA")); each profit-sharing, stock bonus or other
"pension" plan, fund or program (within the meaning of Section 3(2) of ERISA);
each employment, termination, change-of-control or severance agreement; and each
other employee benefit plan, fund, program, agreement or arrangement, in each
case, that is sponsored, maintained or contributed to or required to be
contributed to by the Company, a Company Subsidiary, or by any trade or
business, whether or not incorporated, that together with the Company, or a
Company Subsidiary, would be deemed a "single employer" within the meaning of
Section 414(b), (c), (m) or (o) of the Code (an "ERISA AFFILIATE"), or to which
the Company, a Company Subsidiary or an ERISA Affiliate is a party in each case
for the benefit of any current or former employee, officer or director of the
Company or a Company Subsidiary (the "COMPANY PLANS").
(b) DELIVERIES. With respect to each Company Plan, the Seller has
heretofore delivered or made available to the Purchaser true and complete copies
of, as applicable, (i) the Company Plan and any amendments thereto; (ii) if the
Company Plan is funded through a trust or any third party funding vehicle, a
copy of the trust or other funding agreement; and (iii) the most recent
determination letter received from the Internal Revenue Service with respect to
each Company Plan intended to qualify under Section 401 of the Code and the most
recent letter of recognition of exemption with respect to any Company Plan or
related trust that is intended to meet the requirements of Section 501(c)(9) of
the Code; (iv) the most recent summary plan description and subsequent summaries
of material modifications; (v) the most recently filed Form 5500; and (vi) the
most recently prepared actuarial valuation report.
(c) ABSENCE OF LIABILITY. No material liability under Title IV of
ERISA has arisen with respect to the Company, a Company Subsidiary or any ERISA
Affiliate that has not been satisfied in full and which would cause the Company
or any Company Subsidiary to incur any material liability, and, to the knowledge
of the Seller or the Company, no condition exists that presents a material risk
to the Company or any Company Subsidiary of incurring any such liability, other
than liability for premiums due the Pension Benefit Guaranty Corporation
("PBGC") (which premiums have been paid when due).
10
(d) FUNDING. No Company Plan subject to Title IV of ERISA (a
"TITLE IV COMPANY PLAN"), Section 302 of ERISA or Section 412 of the Code, or
any trust established thereunder and no other plan subject to Title IV of ERISA,
Section 302 of ERISA or Section 412 of the Code maintained or contributed to by
any ERISA Affiliate has incurred any "accumulated funding deficiency" (as
defined in Section 302 of ERISA and Section 412 of the Code), whether or not
waived, as of the last day of the most recent fiscal year of such plan ended
prior to the Closing Date which deficiency could cause the Company or any
Company Subsidiary to incur any material liability. All contributions or
payments required to be made by the Company, any Company Subsidiary or any ERISA
Affiliate with respect to any Company Plan have been timely made. The aggregate
accumulated benefit obligations of Title IV Company Plan (as of the most recent
actuarial valuation date) do not exceed the fair market value of the assets of
such plan (as of the date of such valuation).
(e) MULTIEMPLOYER PLAN. No Title IV Company Plan is a
"multiemployer plan," as defined in Section 4001(a)(3) of ERISA, nor is any
Title IV Company Plan a plan described in Section 4063(a) of ERISA.
(f) NO VIOLATIONS. Each Company Plan has been operated and
administered in all material respects in accordance with its terms and
applicable law, including but not limited to ERISA and the Code. No
investigation, audit or dispute relating to any Company Plan is pending or, to
the knowledge of the Seller and the Company, threatened before any governmental
agency. None of the Seller, the Company, the Company Subsidiaries nor, to the
knowledge of the Seller or the Company, any other "disqualified person" (within
the meaning of Section 4975 of the Code) or "party in interest" (within the
meaning of Section 3(14) of ERISA) has taken or omitted to take any action with
respect to any Company Plan which would subject any such plan (or its related
trust), the Company or any Company Subsidiary or any officer, director or
employee of any of the foregoing to any penalty or tax under Section 502(i) of
ERISA or Section 4975 of the Code or material liability for breach of fiduciary
responsibility under ERISA. Neither the Company nor any Company Subsidiary has
agreed to indemnify any other party for any liabilities or expenses which have
been or may in the future be incurred by or asserted against such person with
respect to any Company Plan, which indemnification would have a Company Material
Adverse Effect.
(g) SECTION 401(A) QUALIFICATION; EXEMPTION. Each Company Plan
intended to be "qualified" within the meaning of Section 401(a) of the Code is
so qualified except where the failure to be so qualified would not have a
Company Material Adverse Effect and has received a determination letter from the
Internal Revenue Service to the effect that it is so qualified. To the knowledge
of the Seller and the Company, nothing has occurred since the issuance of such
letter which would affect such Company Plan's qualification. Each Company Plan
or related trust intended to meet the requirements of Section 501(c)(9) of the
Code meets such requirements and has received a letter of recognition of
exemption from the Internal Revenue Service to that effect. To the knowledge of
the Seller and the Company, nothing has occurred since the issuance of such
letter which could affect such Company Plan's or related trust's exemption under
Section 501(a) of the Code by reason of Section 501(c)(9) of the Code.
(h) POST-EMPLOYMENT BENEFITS. No Company Plan provides medical,
surgical, hospitalization, death or similar benefits (whether or not insured)
for employees or
11
former employees of the Company or any Company Subsidiary for periods extending
beyond their respective dates of retirement or other termination of service,
other than (i) coverage mandated by applicable law, (ii) death benefits under
any "pension plan," or (iii) benefits the full cost of which is borne by the
current or former employee (or his beneficiary).
(i) DEDUCTIBILITY. No amounts payable under the Company Plan will
fail to be deductible for federal income tax purposes by virtue of Section 280G
of the Code.
(j) EFFECT OF CHANGE OF CONTROL. The consummation of the
transactions contemplated by this Agreement will not, either alone or in
combination with another related event, (i) entitle any current or former
employee, officer or limited liability company manager of the Company to
severance pay, unemployment compensation or any other payment, except as
expressly provided in this Agreement, or (ii) accelerate the time of payment or
vesting, or increase the amount of compensation due any such employee, officer
or limited liability company manager.
(k) CLAIMS. There are no pending or, to the knowledge of the
Seller and the Company, threatened claims by or on behalf of any Company Plan,
by any current or former employee, officer or limited liability company manager
or beneficiary thereof covered under any such Company Plan, or otherwise
involving any such Company Plan (other than routine claims for benefits), and
neither the Seller nor the Company has knowledge of facts which would form a
reasonable basis for any such claim.
Section 3.9 LABOR AND EMPLOYEE RELATIONS. Neither the Company nor the
Company Subsidiaries are party to any collective bargaining agreement or other
labor agreement with any union or labor organization. Except to the extent as
would not have a Company Material Adverse Effect, as of the date hereof, there
is no strike, lockout, slowdown or work stoppage pending or, to the knowledge of
the Seller or the Company, threatened against the Company or any of the Company
Subsidiaries.
Section 3.10 ENVIRONMENTAL PROTECTION.
(a) (i) To the knowledge of the Seller or the Company, the
Company and each Company Subsidiary are in compliance with all applicable
Environmental Laws, including, but not limited to, possessing all permits and
other governmental authorizations required for their operations under applicable
Environmental Laws, except for such noncompliance that would not have a Company
Material Adverse Effect.
(ii) To the knowledge of the Seller or the Company, there is
no pending or threatened written claim, lawsuit, or administrative
proceeding against the Company or any Company Subsidiary under or pursuant
to any Environmental Law that would have a Company Material Adverse Effect.
Neither the Company nor any Company Subsidiary is subject to any
administrative or judicial consent order or decree in connection with any
Environmental Laws or the release of Hazardous Substances that is having or
would have a Company Material Adverse Effect. Neither the Company nor any
Company Subsidiary has received written notice from any Person, including
but
12
not limited to any Governmental Authority, alleging that the Company or any
Company Subsidiary is in violation or potentially in violation of any
applicable Environmental Law or otherwise may be liable under any
applicable Environmental Law, which violation or liability is unresolved
and which would have a Company Material Adverse Effect. As used in this
Agreement, the term "PERSON" shall mean any natural person, corporation,
general or limited partnership, limited liability company, joint venture,
trust, association or entity of any kind.
(iii) To the knowledge of the Seller or the Company, with
respect to the real property that was formerly or is currently owned or
leased by the Company or any Company Subsidiary, there have been no spills
or discharges of Hazardous Substances on or underneath any of such real
property that would result in a Company Material Adverse Effect.
(b) For purposes of this Agreement:
(i) "ENVIRONMENTAL LAWS" shall mean all foreign, federal,
state and local laws, regulations, rules and ordinances relating to
pollution or protection of the environment, including, without limitation,
laws relating to releases or threatened releases of Hazardous Substances
into the environment (including, without limitation, ambient air, surface
water, groundwater, land, surface and subsurface strata). Such laws include
the common law to the extent that it relates to injuries caused by the
release or presence of Hazardous Substances.
(ii) "HAZARDOUS SUBSTANCES" shall mean any chemicals,
materials or substances defined as or included in the definition of
"hazardous substances", "hazardous wastes", "hazardous materials",
"hazardous constituents", "restricted hazardous materials", "extremely
hazardous substances", "toxic substances", "contaminants", "pollutants",
"toxic pollutants", or words of similar meaning and regulatory effect under
any applicable Environmental Law including, without limitation, petroleum
and asbestos.
(c) The representations and warranties set forth in this Section
3.10 are the sole and exclusive representations and warranties relating to
environmental matters made by the Company or the Seller in this Agreement.
Section 3.11 REGULATION AS AN EWG. ▇▇▇▇▇▇ is an exempt wholesale
generator regulated by the FERC. Neither the Company nor any "subsidiary
company" or "affiliate" (as each such term is defined in PUHCA) of the Company
(other than Central Illinois Light Company and Central Illinois Generation,
Inc.) is subject to regulation as a public utility or public service company (or
similar designation) by the FERC or any municipality, locality or state in the
United States or any foreign country.
Section 3.12 INSURANCE. Each of the Company and the Company
Subsidiaries is insured and has been continuously insured since their respective
dates of organization with
13
financially responsible or nationally recognized insurers in such amounts and
against such types of risks as is customary and appropriate in its industry or
otherwise deemed reasonable by the Seller except as would not have a Company
Material Adverse Effect. The Seller has not received any written notice of
cancellation or termination with respect to any insurance policy of the Company
or the Company Subsidiaries except as would not have a Company Material Adverse
Effect.
Section 3.13 REAL PROPERTY. Except as would not have a Company
Material Adverse Effect: (a) the Company and the Company Subsidiaries have good
and valid title to, or a valid leasehold interest in all of the real property
used by the Company or the Company Subsidiaries, respectively (collectively, the
"COMPANY PROPERTIES"), in each case free and clear of any Encumbrances and (b)
the Company Properties (taking into account, without limitation, all
Encumbrances related thereto, all zoning and other restrictions applicable
thereto and the condition thereof) are suitable and adequate for the conduct of
the businesses of the Company and the Company Subsidiaries as currently
conducted.
Section 3.14 AFFILIATE CONTRACTS. Section 3.14 of the Seller
Disclosure Schedule contains a true and complete list of each agreement or
contract as of the date hereof between (i) the Company and its Subsidiaries, on
one hand, and (ii) the Seller and any affiliate thereof (other than the Company
and its Subsidiaries) on the other (collectively, the "AFFILIATE CONTRACTS").
Section 3.15 BROKERS OR FINDERS. Neither the Seller nor the Company
has entered into any agreement or arrangement entitling any agent, broker,
investment banker, financial advisor or other firm or Person to any broker's or
finder's fee or any other commission or similar fee in connection with any of
the transactions contemplated by this Agreement, except ▇▇▇▇▇▇ Brothers Inc.,
whose fees and expenses will be paid by the Seller in accordance with the
Seller's agreements with such firm.
Section 3.16 CONTRACTS.
(a) Section 3.16(a) of the Seller Disclosure Schedule contains a
complete and correct list of all contracts relating to the business of the
Company and the Company Subsidiaries as of the date hereof which (i) have a term
in excess of one year and (ii) provide for aggregate consideration in an amount
in excess of $2 million (the "MATERIAL CONTRACTS"). There are no defaults under
any Material Contracts which have or would have a Company Material Adverse
Effect. As of the date hereof, the Seller has not received any written notice of
cancellation relating to a Material Contract and has no knowledge of facts that
a Material Contract is likely to be cancelled, except for such cancellations
which would not have a Company Material Adverse Effect. The Seller has provided
or made available to the Purchaser true, correct and complete copies of all
Material Contracts, including all amendments thereto except for such contracts
that by their terms prohibit disclosure to third parties.
(b) Each Material Contract is a valid and binding agreement and is in
full force and effect except to the extent such contract has expired by its own
terms without penalty, and enforceable by the Company or any of the Company
Subsidiaries in accordance with its terms, and none of the Company and the
Company Subsidiaries or, to the knowledge of the Seller or the Company, any
other party thereto is in default or breach under the terms of any such
14
contracts and, to the knowledge of the Seller or the Company, no event or
circumstance has occurred that, with notice or lapse of time or both, would
constitute any event of default thereunder other than in each case defaults or
breaches that would not have a Company Material Adverse Effect.
Section 3.17 REGULATORY PROCEEDINGS. Neither the Company nor any of
the Company Subsidiaries all or part of whose rates or services are regulated by
a Governmental Authority (a) has rates that have been or are being collected
subject to refund pending a final resolution of any rate proceeding pending
before a Governmental Authority or on appeal to the courts, or (b) is a party to
any rate proceeding before a Governmental Authority that in each case would
result in orders having a Company Material Adverse Effect.
Section 3.18 LIMITATION ON REPRESENTATIONS AND WARRANTIES. Except for
the representations and warranties contained in this Article III, neither the
Seller nor any other Person or entity acting on behalf of the Seller makes any
representation or warranty, express or implied, concerning the Units or the
business, finances, operations, assets, liabilities, prospects or any other
aspect of the Company and the Company Subsidiaries.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represents and warrants to the Seller that except as set
forth in the reports, schedules, registration statements and definitive proxy
and all amendments thereto filed publicly not earlier than January 1, 2001 and
not later than the close of business on the day prior to the date of this
Agreement with the SEC by the Purchaser or any Purchaser Subsidiary (or their
predecessors) pursuant to the requirements of the Securities Act or the Exchange
Act (as such documents have since the time of their filing been amended publicly
not earlier than January 1, 2001 and not later than the close of business on the
day prior to the date of this Agreement, the "PURCHASER SEC REPORTS") or in the
schedule delivered by the Purchaser on the date hereof (the "PURCHASER
DISCLOSURE SCHEDULE"):
Section 4.1 ORGANIZATION AND QUALIFICATION. The Purchaser and each of
the Purchaser Subsidiaries (as defined below) is a corporation or other entity
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, has all requisite power and
authority to own, lease and operate its assets and properties to the extent
owned, leased and operated and to carry on its business as it is now being
conducted and is duly qualified and in good standing to do business in each
jurisdiction in which the nature of its business or the ownership or leasing of
its assets and properties makes such qualification necessary other than in such
jurisdictions where the failure to be so qualified or in good standing would not
have a Purchaser Material Adverse Effect (as defined below) or prevent,
materially delay or materially impair the Purchaser's ability to consummate the
transactions contemplated by this Agreement. As used in this Agreement, the term
"PURCHASER MATERIAL ADVERSE EFFECT" shall mean any material adverse effect on
the business, assets, financial condition or results of operations of the
Purchaser and the Purchaser Subsidiaries, taken as a whole; PROVIDED, HOWEVER,
that the term "Purchaser Material Adverse Effect" shall not include effects that
result from or are consequences of (i) any such effect resulting from any change
in law, rule or regulation of any Governmental Authority (as defined in Section
3.3(c)), that applies generally to similarly situated
15
Persons (as defined in Section 3.10(a)(ii)), (ii) changes or developments in
international, national, regional, state or local wholesale or retail markets
for electric power or fuel or related products, including those due to actions
by competitors, (iii) changes or developments in national, regional, state or
local electric transmission or distribution systems, (iv) changes or
developments in financial or securities markets or the economy in general or
effects of weather or meteorological events, (v) events or changes that are
consequences of terrorist activity, acts of war or acts of public enemies (other
than any such event or consequence affecting only the Purchaser or a Purchaser
Subsidiary) or (vi) the negotiation, announcement, execution, delivery,
consummation or anticipation of the transactions contemplated by, or in
compliance with, this Agreement. The term "PURCHASER SUBSIDIARY" shall mean a
Subsidiary of the Purchaser.
Section 4.2 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS;
COMPLIANCE.
(a) AUTHORITY. The Purchaser has all requisite corporate power
and authority to enter into this Agreement and, subject to the receipt of the
applicable Purchaser Required Statutory Approvals (as defined in Section
4.2(c)), to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Purchaser. No vote of, or consent by, the
holders of any class or series of stock issued by the Purchaser is necessary to
authorize the execution and delivery by the Purchaser of this Agreement or the
consummation by it of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Purchaser and, assuming the due
authorization, execution and delivery hereof by the Seller, constitutes the
valid and binding obligation of the Purchaser enforceable against it in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles.
(b) NON-CONTRAVENTION. The execution and delivery of this
Agreement by the Purchaser does not, and the consummation of the transactions
contemplated hereby will not, result in a Violation pursuant to any provisions
of (i) the certificate of incorporation, by-laws or similar governing documents
of the Purchaser or any of the Purchaser Subsidiaries, (ii) subject to obtaining
the Purchaser Required Statutory Approvals, any statute, law, ordinance, rule,
regulation, judgment, decree, order, injunction, writ, permit or license of any
Governmental Authority applicable to the Purchaser or any of the Purchaser
Subsidiaries or any of their respective properties or assets, or (iii) subject
to obtaining the third-party consents set forth in Section 4.2(b)(iii) of the
Purchaser Disclosure Schedule (the "PURCHASER REQUIRED CONSENTS"), any material
note, bond, mortgage, indenture, deed of trust, license, franchise, permit,
concession, contract, lease or other instrument, obligation or agreement of any
kind to which the Purchaser or any of the Purchaser Subsidiaries is a party or
by which they or any of their respective properties or assets may be bound or
affected, except in the case of clause (ii) or (iii) for any such Violation
which would not prevent, materially delay or materially impair the Purchaser's
ability to consummate the transactions contemplated by this Agreement.
(c) STATUTORY APPROVALS. Except for (i) the filings by the
Seller, the Company, and/or the Purchaser, as applicable, required under the HSR
Act (as defined below), (ii) the applicable requirements of the Exchange Act and
the rules and regulations promulgated
16
thereunder, and (iii) any filings with or approvals from (x) the FERC, (y) the
Federal Communications Commission and (z) the other Governmental Authorities set
forth on Section 4.2(c) of the Purchaser Disclosure Schedule (the filings and
approvals referred to in clauses (i) through (iii) collectively referred to as
the "PURCHASER REQUIRED STATUTORY APPROVALS"), no declaration, filing or
registration with, or notice to or authorization, consent or approval of, any
Governmental Authority is necessary for the execution and delivery of this
Agreement by the Purchaser or the consummation by the Purchaser of the
transactions contemplated hereby, except those which the failure to obtain would
not prevent, materially delay or materially impair the Purchaser's ability to
consummate the transactions contemplated by this Agreement (it being understood
that references in this Agreement to "obtaining" such Purchaser Required
Statutory Approvals shall mean making such declarations, filings or
registrations; giving such notices; obtaining such authorizations, consents or
approvals; and having such waiting periods expire as are necessary to avoid a
violation of law).
(d) COMPLIANCE. Neither the Purchaser nor any of the Purchaser
Subsidiaries is under investigation with respect to any violation of, or has
been given notice of or been charged with any violation of, any law, statute,
order, rule, regulation, ordinance or judgment of any Governmental Authority,
except for possible violations which would not prevent, materially delay or
materially impair the Purchaser's ability to consummate the transactions
contemplated by this Agreement. The Purchaser and the Purchaser Subsidiaries
have all permits, licenses, franchises and other governmental authorizations,
consents and approvals necessary to conduct their businesses as presently
conducted except those that the absence of which would not prevent, materially
delay or materially impair the Purchaser's ability to consummate the
transactions contemplated by this Agreement. Neither the Purchaser nor any of
the Purchaser Subsidiaries is in breach or violation of or in default in the
performance or observance of any term or provision of, and no event has occurred
which, with lapse of time or action by a third party, could result in a default
by the Purchaser or any Purchaser Subsidiary under (i) their respective
certificates of incorporation or by-laws or (ii) any contract, commitment,
agreement, indenture, mortgage, loan agreement, note, lease, bond, license,
approval or other instrument to which they are a party or by which the Purchaser
or any Purchaser Subsidiary is bound or to which any of their property is
subject, except for possible violations, breaches or defaults which would not
prevent, materially delay or materially impair the Purchaser's ability to
consummate the transactions contemplated by this Agreement.
Section 4.3 PURCHASER SEC REPORTS; FINANCIAL STATEMENTS. The filings
required to be made by the Purchaser under the Securities Act and the Exchange
Act have been filed with the SEC and complied, as of their respective dates, in
all material respects with all applicable requirements of the appropriate
statutes and the rules and regulations thereunder. As of their respective dates,
none of the Purchaser SEC Reports contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The audited consolidated financial
statements and unaudited interim financial statements of the Purchaser included
in the Purchaser SEC Reports have been prepared in accordance with GAAP applied
on a consistent basis during the period involved (except as may be stated in the
notes thereto) and fairly present the consolidated financial position and the
consolidated results of operations and cash flows (and changes in financial
position, if any) of
17
the Purchaser as of the time and for the period referred to therein, subject, in
the case of unaudited interim financial statements, to normal, recurring audit
adjustments.
Section 4.4 LITIGATION. There are no claims, suits, actions or
proceedings by any court, governmental department, commission, agency,
instrumentality or authority or any arbitrator, pending or, to the knowledge of
the Purchaser, threatened against, relating to or affecting the Purchaser or any
Purchaser Subsidiaries which would prevent, materially delay or materially
impair the Purchaser's ability to consummate the transactions contemplated by
this Agreement. There are no judgments, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency, instrumentality or
authority or any arbitrator applicable to the Purchaser or any Purchaser
Subsidiaries except for such that would not prevent, materially delay or
materially impair the Purchaser's ability to consummate the transactions
contemplated by this Agreement.
Section 4.5 INVESTIGATION BY THE PURCHASER; THE SELLER'S LIABILITY.
The Purchaser has conducted its own independent investigation, review and
analysis of the business, operations, assets, liabilities, results of
operations, financial condition, software, technology and prospects of the
Company and the Company Subsidiaries, which investigation, review and analysis
were done by the Purchaser and its affiliates and, to the extent the Purchaser
deemed appropriate, by the Purchaser's representatives. The Purchaser
acknowledges that it and its representatives have been provided adequate access
to the personnel, properties, premises and records of the Company and the
Company Subsidiaries for such purpose. In entering into this Agreement, the
Purchaser acknowledges that it has relied solely upon the aforementioned
investigation, review and analysis and not on any factual representations of the
Seller or its representatives (except the specific representations and
warranties of the Seller set forth in Article III of this Agreement), and the
Purchaser:
(a) acknowledges that none of the Seller, the Company, the
Company Subsidiaries or any of their respective directors, managers, officers,
shareholders, employees, affiliates, controlling Persons, agents, advisors or
representatives makes or has made any representation or warranty, either express
or implied, as to the accuracy or completeness of any of the information
(including materials furnished in the Company's data room, presentations by the
Company's management, financial projections or otherwise) provided or made
available to the Purchaser or its directors, officers, employees, affiliates,
controlling Persons, agents or representatives, and
(b) agrees, to the fullest extent permitted by law, that none of
the Seller, the Company, the Company Subsidiaries or any of their respective
directors, managers, officers, employees, shareholders, affiliates, controlling
Persons, agents, advisors or representatives shall have any liability or
responsibility whatsoever to the Purchaser or its directors, officers,
employees, affiliates, controlling Persons, agents or representatives on any
basis (including in contract or tort, under federal or state securities laws or
otherwise) based upon any information provided or made available, or statements
made (including materials furnished in the Company's data room, presentations by
the Company's management, financial projections or otherwise) to the Purchaser
or its directors, officers, employees, affiliates, controlling Persons,
advisors, agents or representatives (or any omissions therefrom), including in
respect of the specific representations and warranties of the Seller set forth
in this Agreement, except that the foregoing
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limitations shall not apply to the Seller insofar as the Seller makes the
specific representations and warranties set forth in Article III of this
Agreement, but always subject to the limitations and restrictions contained in
Article IX.
Section 4.6 ACQUISITION OF UNITS FOR INVESTMENT; ABILITY TO EVALUATE
AND BEAR RISK.
(a) The Purchaser is an "accredited investor" as such term is
defined in Regulation D promulgated under the Securities Act. The Purchaser is
acquiring the Units for investment and not with a view toward, or for sale in
connection with, any distribution thereof, nor with any present intention of
distributing or selling the Units. The Purchaser agrees that the Units may not
be sold, transferred, offered for sale, pledged, hypothecated or otherwise
disposed of without registration under the Securities Act and any applicable
state securities laws, except pursuant to an exemption from such registration
under such Act and such laws.
(b) The Purchaser is able to bear the economic risk of holding
the Units for an indefinite period, and has knowledge and experience in
financial and business matters such that it is capable of evaluating the risks
of the investment in the Units.
Section 4.7 FINANCING. The Purchaser will have as of the Closing,
sufficient cash in immediately available funds to pay the Estimated Purchase
Price pursuant to Article I hereof and to consummate the transactions
contemplated hereby.
Section 4.8 BROKERS OR FINDERS. The Purchaser has not entered into any
agreement or arrangement entitling any agent, broker, investment banker,
financial advisor or other firm or Person to any broker's or finder's fee or any
other commission or similar fee in connection with any of the transactions
contemplated by this Agreement, except ▇▇▇▇▇▇▇, Sachs & Co., whose fees and
expenses will be paid by the Purchaser in accordance with the Purchaser's
agreement with such firm.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE CLOSING
Section 5.1 COVENANTS OF THE SELLER. After the date hereof and prior
to the Closing or earlier termination of this Agreement, the Seller agrees that,
except as set forth in Section 5.1 of the Seller Disclosure Schedule and except
(i) as contemplated in or permitted by this Agreement, (ii) as provided for in
the annual budgets or capital budgets (copies of which, in their current form,
have been made available to the Purchaser and included in the Seller Disclosure
Schedule) for the Company and each Company Subsidiary, (iii) in connection with
necessary repairs due to breakdown or casualty, or other actions taken in
response to a business emergency or other unforeseen operational matters, (iv)
as required by law, rule or regulation, or (v) to the extent the Purchaser shall
otherwise consent, which decision regarding consent shall be made promptly, and
which consent shall not be unreasonably withheld, conditioned or delayed:
(a) the business of the Company and each Company Subsidiary shall
be conducted in the ordinary and usual course in substantially the same manner
as heretofore conducted and, to the extent consistent therewith, the Company and
each Company Subsidiary shall use its respective commercially reasonable efforts
to preserve its business organization
19
intact and maintain its existing relations and goodwill with customers,
suppliers, creditors, lessors and business associates;
(b) the Company shall not, nor shall the Company permit any of
the Company Subsidiaries to, (i) amend their operating agreements or limited
liability company agreements other than amendments which are ministerial in
nature or otherwise immaterial; (ii) split, combine or reclassify their
outstanding Units of Membership Interests; (iii) declare, set aside or pay any
distribution payable in cash, stock or property in respect of any Units other
than (A) distributions paid to the Company or its wholly-owned Subsidiaries or
(B) dividends in respect of earnings of the Company for the period between March
31, 2002 and the Closing Date not in excess of 100% of the net income for such
period; or (iv) repurchase, redeem or otherwise acquire any of its Units of
Membership Interests or any securities convertible into or exchangeable or
exercisable for any of its Units of Membership Interests;
(c) neither the Company nor any Company Subsidiary shall issue,
sell, or dispose of any Units of, or securities convertible into or exchangeable
or exercisable for, or options, warrants, calls, commitments or rights of any
kind to acquire, any Units of its Membership Interests or any other property or
assets;
(d) neither the Company nor any Company Subsidiary shall incur
any indebtedness except for indebtedness that is incurred in the ordinary and
usual course of business and complies with the restrictions of Section 5.1(d) of
the Seller Disclosure Schedule;
(e) neither the Company nor any Company Subsidiary shall repay
principal on existing indebtedness except in accordance with the amortization
schedule of such debt;
(f) neither the Company nor any Company Subsidiary shall make any
acquisition of, or investment in, assets or stock of any other Person or entity,
other than in the ordinary and usual course of business and not to exceed
singularly or in the aggregate $2 million in any calendar year and no
acquisition or investment shall be of any public utility company (as defined in
PUHCA) or in a business or any interest in a business which would not be
retainable by the Purchaser under PUHCA following the Closing;
(g) neither the Company nor any Company Subsidiary shall sell,
lease, license, encumber or otherwise dispose of any of its assets, other than
in the ordinary and usual course of business, and in an amount not to exceed
singularly or in the aggregate $2 million in any calendar year;
(h) neither the Company nor any Company Subsidiary shall
terminate, establish, adopt, enter into, make any new grants or awards of
unit-based compensation or other benefits under, amend or otherwise materially
modify any Company Plan or increase the salary, wage, bonus or other
compensation of any managers, officers or employees except (i) for grants or
awards to managers, officers and employees under any existing Company Plan in
such amounts and on such terms as are consistent with past practice, (ii) in the
normal and usual course of business (which shall include normal periodic
performance reviews and related plans and the provision of any individual
Company Plan consistent with past practice for newly hired,
20
appointed or promoted officers and employees), or (iii) for actions necessary to
satisfy existing contractual obligations under any Company Plan existing as of
the date hereof or to comply with applicable law;
(i) the Company and each Company Subsidiary shall maintain
insurance with financially responsible or nationally recognized insurers in such
amounts and against such risks and losses as are consistent with the insurance
maintained by the Company and each Company Subsidiary, respectively, in the
ordinary and usual course of business;
(j) the Company shall not, nor shall it permit any of the Company
Subsidiaries to, change any material financial or Tax accounting method,
policies, practices or election, except as required by GAAP or SEC accounting
regulations or guidelines or applicable law;
(k) the Seller and the Company shall promptly provide the
Purchaser with copies of all filings made by the Seller, the Company or any
Company Subsidiary with, and inform the Purchaser of any communications received
from, any state or federal court, administrative agency, commission or other
Governmental Authority in connection with this Agreement and the transactions
contemplated hereby;
(l) the Seller, the Company and each Company Subsidiary shall use
their respective best efforts to promptly obtain all of the Seller Required
Consents and the Seller Required Statutory Approvals. The Seller shall promptly
notify the Purchaser of any failure or prospective failure to obtain any such
consents or approvals and, if requested by the Purchaser, shall provide copies
of all of the Seller Required Consents and the Seller Required Statutory
Approvals obtained by the Seller, the Company and each Company Subsidiary to the
Purchaser;
(m) the Company shall not, nor shall it permit any of the Company
Subsidiaries to, enter into any material agreement or arrangement with any other
person that, directly or indirectly, controls or is under common control with or
is controlled by the Seller, or any of its respective subsidiaries on terms to
the Company or the Company Subsidiaries materially less favorable than could be
reasonably expected to have been obtained with an unaffiliated third party on an
arm's-length basis;
(n) the Company shall, and shall cause the Company Subsidiaries
to, use commercially reasonable efforts to maintain in effect or renew all
existing material Permits pursuant to which the Company or any of the Company
Subsidiaries operate;
(o) the Seller shall not, nor shall it permit any Subsidiary of
the Seller to, directly or indirectly, solicit for employment by such persons
any of the current officers, managers or employees of the Company or any Company
Subsidiary except for those persons specified on Section 5.1(o) of the Seller
Disclosure Schedule; PROVIDED that the Seller and the Subsidiaries of the Seller
shall not be prohibited from employing any such person who contacts the Seller
or any Subsidiary of the Seller on his or her own initiative or who responds to
a general solicitation through the use of media advertisements, the Internet or
professional search firms; and
21
(p) the Company shall not, nor shall it permit any Company
Subsidiary to, transfer or assign any contracts to which the Company or any of
the Company Subsidiaries is a party, to any of the Company's affiliates (other
than the Company Subsidiaries) or to CILCORP Inc., or any of its Subsidiaries.
Section 5.2 NO SOLICITATION AND CONFIDENTIALITY.
(a) From the date hereof through the Closing, none of the parties
nor their representatives (including, without limitation, investment bankers,
attorneys and accountants) shall, directly or indirectly, enter into, solicit,
initiate or continue any discussions or negotiations with, or encourage or
respond to any inquiries or proposals by, or participate in any negotiations
with, or provide any information to, or otherwise cooperate in any other way
with, any person or other entity or group, concerning any sale of all or a
portion of the Company, or of any membership units of the Company or any Company
Subsidiary or any merger, consolidation, liquidation, dissolution or similar
transaction involving the Company or any Company Subsidiary (each such
transaction being referred to herein as a "PROPOSED ACQUISITION TRANSACTION")
other than with (i) the Purchaser and its representatives, or (ii) as required
by law. Neither the Seller nor the Company shall, directly or indirectly,
through any officer, director, employee, representative, agent or otherwise,
solicit, initiate or encourage the submission of any proposal or offer from any
person (including, without limitation, a "person" as defined in Section 13(d)(3)
of the Exchange Act) or entity relating to any Proposed Acquisition Transaction.
The Seller and the Company represent that they are not now engaged in
discussions or negotiations with any party other than the Purchaser with respect
to any of the foregoing.
(b) NOTIFICATION. The Seller and the Company shall promptly
notify the Purchaser if any discussions or negotiations are sought to be
initiated, any inquiry or proposal is made, or any information is requested with
respect to any Proposed Acquisition Transaction and notify the Purchaser of the
identity of the prospective purchaser or soliciting party and any other
information relating to such inquiry or proposal known to the Seller, the
Company or any Company Subsidiary.
ARTICLE VI
ADDITIONAL AGREEMENTS
Section 6.1 ACCESS TO COMPANY INFORMATION. Upon reasonable notice, the
Seller shall, and shall cause the Company and each Company Subsidiary to, afford
to the officers, directors, managers, employees, accountants, counsel,
investment bankers, financial advisors and other representatives (collectively,
"REPRESENTATIVES") of the Purchaser reasonable access, during normal business
hours throughout the period prior to the Closing Date, to all of the Company's
and the Company Subsidiaries' properties, books, contracts, commitments and
records and, during such period, the Seller shall, and shall cause the Company
and each Company Subsidiary to, furnish promptly to the Purchaser and its
Representatives, (i) access to each report, schedule and other document filed or
received by the Company, each Company Subsidiary pursuant to the requirements of
federal or state securities laws or filed with or sent to any federal or state
regulatory agency or commission and (ii) access to all information concerning
the Company, each Company Subsidiary and its respective managers and officers
and such other matters as may be reasonably requested by the Purchaser or its
Representatives in
22
connection with any filings, applications or approvals required or contemplated
by this Agreement or for any other reason related to the transactions
contemplated by this Agreement. The Purchaser agrees to indemnify and hold the
Seller, the Company and the Company Subsidiaries harmless from any and all
claims and liabilities, including costs and expenses for loss, injury to or
death of any Representative of the Purchaser, and any loss, damage to or
destruction of any property owned by the Seller, the Company or the Company
Subsidiaries or others (including claims or liabilities for loss of use of any
property) resulting directly or indirectly from the action or inaction of any of
the Representatives of the Purchaser during any visit to the business or
property sites of the Company or the Company Subsidiaries prior to the Closing
Date, whether pursuant to this Section 6.1 or otherwise. None of the Purchaser
nor any of its Representatives shall conduct any environmental testing or
sampling on any of the business or property sites of the Company or the Company
Subsidiaries prior to the Closing Date. Each party shall, and shall cause its
Subsidiaries and Representatives to, hold in strict confidence all documents and
information concerning the other furnished to it in connection with the
transactions contemplated by this Agreement in accordance with the
Confidentiality Agreement, dated November 15, 2001, as amended, entered into by
and between the Seller and the Purchaser (the "CONFIDENTIALITY AGREEMENT").
Section 6.2 REGULATORY MATTERS.
(a) HSR FILINGS. Each party hereto shall, as soon as practicable
as mutually agreed by the parties, file or cause to be filed with the Federal
Trade Commission (the "FTC") and the Department of Justice (the "DOJ") any
notifications required to be filed under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR ACT"), and the rules and
regulations promulgated thereunder with respect to the transactions contemplated
hereby. Such parties shall use all best efforts to respond on a timely basis to
any requests for additional information made by either of such agencies.
(b) OTHER REGULATORY APPROVALS. Each party hereto shall cooperate
and use best efforts to prepare and file as soon as practicable all necessary
documentation, to effect all necessary applications, notices, petitions, filings
and other documents, and to use best efforts to obtain all necessary permits,
consents, approvals and authorizations of all Governmental Authorities necessary
or advisable to obtain the Seller Required Statutory Approvals and the Purchaser
Required Statutory Approvals. The parties further agree to use best efforts (i)
to take any act, make any undertaking or receive any clearance or approval
required by any Governmental Authority or applicable law and (ii) to satisfy any
conditions imposed by any Governmental Authority in all Final Orders (as defined
in and for purposes of Section 7.1(b)). Each of the parties shall (i) respond as
promptly as practicable to any inquiries or requests received from any
Governmental Authority for additional information or documentation, and (ii) not
enter into any agreement with any Governmental Authority not to consummate the
transactions contemplated by this Agreement, except with the prior consent of
the other party hereto (which shall not be unreasonably withheld or delayed).
Each of the parties shall make best efforts to avoid or eliminate each and every
impediment under any antitrust, competition, or trade or energy regulation law
(including the Federal Power Act, as amended, and the FERC's regulations
thereunder) that may be asserted by any Governmental Authority with respect to
the transactions contemplated hereby so as to enable the Closing Date to occur
as soon as reasonably possible. The steps involved in the preceding sentence
shall include proposing, negotiating,
23
committing to and effecting, by consent decree, hold separate order or
otherwise, the sale, divestiture or disposition of such assets or businesses of
the Purchaser or its affiliates (including their respective Subsidiaries) or
agreeing to such limitations on its or their conduct or actions as may be
required in order to obtain the Seller Required Statutory Approvals and the
Purchaser Required Statutory Approvals as soon as reasonably possible, to avoid
the entry of, or to effect the dissolution of, any injunction, temporary
restraining order or other order in any suit or proceeding, which would
otherwise have the effect of preventing or delaying the Closing Date, and
defending through litigation on the merits, including appeals, any claim
asserted in any court by any party.
(c) EXCEPTION. Notwithstanding anything to the contrary in
Section 6.2, neither party shall be required to take any actions that would have
a Company Material Adverse Effect or a Purchaser Material Adverse Effect, and,
further, any terms or conditions imposed by the FERC, the FTC or the Antitrust
Division of the DOJ relating to market power, including but not limited to,
divestiture of generation or transmission improvements, shall not constitute a
Company Material Adverse Effect or a Purchaser Material Adverse Effect.
(d) RESPONSIBILITIES. The Seller and the Purchaser agree that (i)
the Purchaser shall have primary responsibility for the preparation and filing
of any applications with or notifications to the FERC, the FTC and/or the DOJ
and the SEC under PUHCA and (ii) the Seller and the Purchaser shall have joint
responsibility for the preparation and filing of any applications with or
notifications to the ICC. Each party shall have the right to review and approve
in advance drafts of all such necessary applications, notices, petitions,
filings and other documents made or prepared in connection with the transactions
contemplated by this Agreement, which approval shall not be unreasonably
withheld or delayed.
Section 6.3 CONSENTS. The Seller and the Purchaser agree to use
reasonable best efforts to obtain the Seller Required Consents and the Purchaser
Required Consents, respectively, and to cooperate with each other in connection
with the foregoing.
Section 6.4 MANAGERS' AND OFFICERS' INDEMNIFICATION.
(a) INDEMNIFICATION. From and after the Closing Date, the
Purchaser shall cause the Company, to the fullest extent permitted under
applicable law, to indemnify and hold harmless (and advance funds in respect of
each of the foregoing) each present and former employee, agent, manager or
officer of the Company and the Company Subsidiaries (each, together with such
person's heirs, executors or administrators, an "INDEMNIFIED PARTY" and
collectively, the "INDEMNIFIED PARTIES") against any costs or expenses
(including advancing attorneys' fees and expenses in advance of the final
disposition of any claim, suit, proceeding or investigation to each Indemnified
Party to the fullest extent permitted by law), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement in connection with any
actual or threatened claim, action, suit, proceeding or investigation, whether
civil, criminal, administrative or investigative (an "ACTION"), arising out of,
relating to or in connection with any action or omission by such Indemnified
Party in his or her capacity as an employee, agent, manager or officer occurring
or alleged to have occurred whether before or after the Closing Date (including
acts or omissions in connection with such person's service as an officer,
manager or other fiduciary in any entity if such service was at the request or
for the benefit of the
24
Company or any of the Company Subsidiaries) or this Agreement or the
transactions contemplated hereby. In the event of any such Action, the Purchaser
shall cooperate with the Indemnified Party in the defense of any such Action.
(b) SURVIVAL OF INDEMNIFICATION. To the fullest extent not
prohibited by law, from and after the Closing Date, all rights to
indemnification now existing in favor of the Company Indemnified Parties with
respect to their activities as such prior to or on the Closing Date, as provided
in the Company's and each Company Subsidiary's respective articles of
incorporation, by-laws, other organizational documents or indemnification
agreements in effect on the date of such activities or otherwise in effect on
the date hereof, shall survive the Closing and shall continue in full force and
effect for a period of not less than six years from the Closing Date, PROVIDED
that, in the event any claim or claims are asserted or made within such six-year
period, all such rights to indemnification in respect of any claim or claims
shall continue until final disposition of such claim or claims.
(c) INSURANCE. For a period of six years after the Closing Date,
the Purchaser shall or the Purchaser shall cause the Company to maintain in
effect policies of directors' and officers' liability insurance equivalent to
those maintained by the Seller on behalf of the Company prior to the Closing
Date for the benefit of those persons who are currently covered by such policies
on terms no less favorable than the terms of such current insurance coverage;
PROVIDED, HOWEVER, that the Purchaser will not be required to expend in any year
an amount in excess of 200% of the annual aggregate premiums currently paid by
the Seller or the Company, as the case may be, for such insurance; PROVIDED,
FURTHER, that if the annual premiums of such insurance coverage exceed such
amount, the Purchaser shall cause the Company to obtain a policy with the best
coverage available, in the reasonable judgment of the board of directors of the
Purchaser for a cost not exceeding such amount.
(d) SUCCESSORS. In the event that, after the Closing Date, the
Company or the Purchaser or any of their respective successors or assigns (i)
consolidates with or merges into any other Person or entity and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or a substantial portion of its properties and assets to any
Person or entity, then and in either such case, proper provisions shall be made
so that the successors and assigns of the Company or the Purchaser, as the case
may be, shall assume the obligations set forth in this Section 6.4.
(e) BENEFIT. The provisions of this Section 6.4 are intended to
be for the benefit of, and shall be enforceable by, each Company Indemnified
Party, his or her heirs, executors or administrators and his or her other
representatives.
Section 6.5 PUBLIC ANNOUNCEMENTS. Except as may be required by law or
by obligations pursuant to any listing agreement with or rules of any national
securities exchange, the Seller and the Purchaser shall use reasonable efforts
to consult with each other prior to issuing any press releases or otherwise
making public announcements with respect to this Agreement and the transactions
contemplated hereby and the parties shall consult with each other regarding any
press releases initially announcing the execution of this Agreement.
25
Section 6.6 WORKFORCE MATTERS. If any employee of the Company or any
Company Subsidiary who was an employee immediately prior to the Closing (an
"AFFECTED EMPLOYEE") is discharged by the Company or any Company Subsidiary as
of or after the Closing, then the Purchaser shall be responsible for any and all
severance costs for such Affected Employee, including payments owing under those
agreements, plans or arrangements listed in Section 3.8(a) of the Seller
Disclosure Schedule. The Purchaser shall be responsible for providing any
continuation coverage required under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA") in respect of Affected
Employees who experience or have experienced a qualifying event (within the
meaning of COBRA) prior to, on or after the Closing Date including, without
limitation, all other employees of the Company or any Company Subsidiary who
experience such a qualifying event before the Closing Date but who do not
provide notice of the qualifying event until on or after the Closing Date. The
Purchaser shall be responsible and assume all liability for all notices or
payments due to any Affected Employees under the Worker Adjustment and
Retraining Notification Act and regulations promulgated thereunder (the "WARN
ACT") or to any employee of the Company or any Company Subsidiary who becomes
entitled to receive notice as required under the WARN Act on account of the
aggregation of "employment losses" in accordance with the WARN Act, and all
notices, payments, fines or assessments due to any Governmental Authority,
pursuant to any applicable foreign, federal, state or local law, common law,
statute, rule or regulation with respect to the employment, discharge or layoff
of employees by the Company or any Company Subsidiary after the Closing Date,
including the WARN Act, and any comparable state or local law.
Section 6.7 TAX MATTERS.
(a) TAX RETURNS.
(i) The Seller shall file or cause to be filed when due all
Tax Returns that are required to be filed by or with respect to the Company
and each Company Subsidiary for taxable years or periods ending on or
before the Closing Date. The Seller shall include the income of the Company
and each Company Subsidiary (including any deferred intercompany income
triggered under Treasury Regulation Section 1.1502-13 or its predecessors
and any excess loss account taken into income under Treasury Regulation
Section 1.1502-19) on the AES Consolidated U.S. federal Tax Returns for all
periods ending on or before the Closing Date.
(ii) The Purchaser shall file or cause to be filed when due
all Tax Returns that are required to be filed by or with respect to the
Company and each Company Subsidiary for taxable years or periods ending
after the Closing Date.
(iii) Any Tax Return required to be filed by the Purchaser
relating to any taxable year or period that includes but does not end on
the Closing Date (a "STRADDLE PERIOD") shall be prepared in accordance with
past practice (to the extent permitted under applicable law) and submitted
(with copies of any relevant schedules, work papers and other documentation
then available) to
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the Seller for the Seller's approval not less than forty-five (45) days
prior to the due date (including extensions) for the filing of such Tax
Return. The Seller's approval shall not be unreasonably withheld.
(iv) Upon the written request of the Purchaser setting forth
in detail the computation of the amount owed, the Seller shall pay to the
Purchaser, no later than two (2) days prior to the due date for the
applicable Tax Return, the Taxes for which the Seller is liable pursuant to
Section 6.7(b) and that are payable with any Tax Return to be filed by the
Purchaser with respect to any Straddle Period.
(v) Within thirty (30) days after the Closing Date (and from
time to time thereafter if the Seller reasonably requests), the Seller
shall provide to the Purchaser a list of the specific Tax information
materials required to enable the Seller to prepare and file all Tax Returns
required to be prepared and filed by the Seller pursuant to Section
6.7(a)(i). Within sixty (60) days after receiving any list, the Purchaser
shall cause the Company and each Company Subsidiary to prepare and provide
to the Seller a package containing the Tax information materials identified
in any list. The Purchaser shall prepare such package in good faith in a
manner substantially consistent with the Seller's past practice.
(b) LIABILITY FOR TAXES.
(i) The Seller shall be liable for all Taxes with respect to
Tax Returns described in Section 6.7(a)(i), for all Taxes apportioned to
the Seller under Section 6.7(b)(iii), and for 50% of the Taxes described in
Section 6.7(m). Notwithstanding the foregoing, the Seller shall not be
liable for Taxes other than Income Taxes ("NON-INCOME TAXES") with respect
to Tax Returns described in Section 6.7(a)(i) and for all Taxes apportioned
to the Seller under Section 6.7(b)(iii) to the extent that Non-Income Taxes
reduce Working Capital.
(ii) The Purchaser shall be liable for all Taxes with
respect to Tax Returns described in Section 6.7(a)(ii), for all Taxes
apportioned to the Purchaser under Section 6.7(b)(iii), for 50% of the
Taxes described in Section 6.7(m) and for Non-Income Taxes to the extent
that Non-Income Taxes reduce Working Capital.
(iii) For purposes of this Section 6.7, where it is
necessary to apportion between the Seller and the Purchaser the Tax
liability of an entity for a Straddle Period (which is not treated under
Treasury Regulation Section 1.1502-76(b) or similar provisions of state,
local, or other law as closing on the Closing Date), such liability shall
be apportioned between the period deemed to end at the close of the Closing
Date, and the period deemed to begin at the beginning of the day following
the Closing Date on the basis of an interim closing of the books, except
that Taxes (such as real property Taxes) imposed on a periodic basis shall
be allocated or a daily basis.
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(iv) In determining the Seller's liability for Taxes
pursuant to this Agreement, the Seller shall be credited with the amount of
estimated Taxes and any Taxes under the United States Federal Unemployment
Tax Act or the United States Federal Insurance Contributions Act that are
paid by or on behalf of the Company or any Company Subsidiary prior to the
Closing. To the extent that the Seller's liability for Taxes for a taxable
year or period is less than the amount of such Taxes previously paid by or
on behalf of the Company or any Company Subsidiary with respect to all or a
portion of such taxable year or period, the Purchaser shall pay the Seller
the difference within two (2) days of filing the Tax Return relating to
such Taxes. To the extent that Non-Income Taxes paid by the Company or any
Company Subsidiary with respect to any pre-Closing period are less than the
amount of such Non-Income Taxes that reduce Working Capital, the Purchaser
shall pay the Seller the difference within two (2) days of filing each Tax
Return relating to such Non-Income Taxes.
(c) REFUNDS.
(i) Any Tax refund (including any interest in respect
thereof) received by the Purchaser, the Company, or any Company Subsidiary,
and any amounts credited against Taxes to which the Purchaser or a
Purchaser Subsidiary (including the Company, or any Company Subsidiary)
becomes entitled (including by way of any amended Tax Returns but excluding
Tax Returns from a carryback filing), that relate to any taxable period, or
portion thereof of the Company or a Company Subsidiary ending on or before
the Closing Date, shall be for the account of the Seller, and the Purchaser
shall pay over to the Seller any such refund or the amount of any such
credit within fifteen (15) days after receipt of such refund or utilization
of such credit. Any Tax refund from a carryback filing not prohibited under
Section 6.7(e)(iii) shall be for the account of the Purchaser.
(ii) The Purchaser shall pay the Seller interest at the rate
prescribed under Section 6621(a)(1) of the Code, compounded daily, on any
amount not paid when due under this Section 6.7(c). For purposes of this
Section 6.7(c), where it is necessary to apportion a refund or credit
between the Purchaser and the Seller for a Straddle Period, such refund or
credit shall be apportioned between the period deemed to end at the close
of the Closing Date and the period deemed to begin at the beginning of the
day following the Closing Date on the basis of an interim closing of the
books of the Company and any Company Subsidiary, except that Taxes (such as
real property Taxes) imposed on a periodic basis shall be allocated on a
daily basis.
(iii) The Purchaser shall cooperate, and shall cause the
Company and any Company Subsidiary to cooperate, in obtaining, at the
Seller's expense, any Tax refund (other than a refund based on a carryback
from a taxable year or period beginning after the Closing Date) that the
Seller reasonably believes is available based on substantial authority,
including through filing appropriate forms with the applicable Tax
authority.
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(d) CERTAIN POST-CLOSING SETTLEMENT PAYMENTS.
(i) If the examination of any federal, state, local or other
Tax Return of the Seller for any taxable period ending on or before the
Closing Date shall result (by settlement or otherwise) in any adjustment
that permits the Purchaser, the Company, or any Company Subsidiary to
increase deductions, losses or tax credits or decrease the income, gains or
recapture of tax credits which would otherwise (but for such adjustments)
have been reported or taken into account (including by way of any increase
in basis) by the Purchaser, the Company, or any Company Subsidiary for one
or more periods beginning and ending within ten (10) years after the
Closing Date, the Seller shall notify the Purchaser and provide it with
adequate information so that the Purchaser can reflect on its, the
Company's, or Company Subsidiary's Tax Returns such increases in
deductions, losses or tax credits or decreases in income, gains or
recapture of tax credits. The Purchaser shall pay to the Seller, within
thirty (30) days of the filing of the Tax Returns for the taxable year in
which the Tax Benefit was realized, the amount of any resulting Tax
Benefit. "TAX BENEFIT" shall mean the amount of any refund, credit or
reduction in otherwise required Tax payments, including any interest
payable thereon, actually realized, PROVIDED, that, for these purposes, Tax
items shall be taken into account in accordance with the ordering
principles of the Code or other applicable law. For purposes of this
Section 6.7(d)(i), estimated Tax payments shall not be considered Tax
Returns and Tax Benefits shall be based on Tax Returns as filed.
(ii) If the examination of any federal, state, local or
other Tax Return of the Purchaser, the Company, or any Company Subsidiary
for any taxable period ending after the Closing Date shall result (by
settlement or otherwise) in any adjustment that permits the Seller to
increase deductions, losses or tax credits or decrease the income, gains or
recapture of tax credits which would otherwise (but for such adjustments)
have been reported or taken into account (including by way of any increase
in basis) by the Seller for one or more periods ending on or before the
Closing Date, the Purchaser shall notify the Seller and provide it with
adequate information so that the Seller can reflect on its Tax Returns such
increases in deductions, losses or tax credits or decreases in income,
gains or recapture of tax credits. The Seller shall pay to the Purchaser,
within thirty (30) days of the receipt of such information, fifty percent
(50%) of the amount of any resulting Tax Benefits.
(e) POST-CLOSING ACTIONS THAT AFFECT THE SELLER'S LIABILITY FOR
TAXES.
(i) The Purchaser shall not take, or cause or permit the
Company or any Company Subsidiary (or any of their affiliates) to take, any
action, with respect to the taxable year or period of the Purchaser, the
Company, any Company Subsidiary, or affiliate, as applicable, which
includes the Closing Date, which would be reasonably likely to increase the
Seller's or any of its affiliates' liability for Taxes (including any
liability of the Seller to indemnify the Purchaser for Taxes pursuant to
this Agreement) including, for example, any
29
action that would be reasonably likely to, result in, or change the
character of, any income or gain that the Seller or any Seller affiliate
must report on any Tax Return.
(ii) None of the Purchaser or any affiliate of the Purchaser
shall (or shall cause or permit the Company or any of the Company
Subsidiaries to) amend, refile or otherwise modify any Tax Return relating
in whole or in part to the Company or any of the Company Subsidiaries with
respect to any taxable year or period ending on or before the Closing Date
(or with respect to any Straddle Period) without the prior written consent
of the Seller, which consent may be withheld in the sole discretion of the
Seller; PROVIDED, that the Seller's consent shall not be required for
modifications that relate exclusively to the post-Closing Date portion of a
Straddle Period and that would not be reasonably likely to increase the
Seller's liability for Taxes under Section 6.7(i) of this Agreement.
(iii) Except to the extent otherwise required by law, none
of the Purchaser or any affiliate of the Purchaser shall (or shall cause or
permit the Company or any of the Company Subsidiaries to) carry back for
federal, state, local or foreign tax purposes to any taxable period, or
portion thereof, of the Company or any of the Company Subsidiaries or the
Seller or any affiliate of the Seller ending on or before, or which
includes, the Closing Date any operating losses, net operating losses,
capital losses, tax credits or similar items arising in, resulting from, or
generated in connection with a taxable year of the Purchaser or any
affiliate of the Purchaser, or portion thereof, ending after the Closing
Date.
(f) TAX PAYMENTS. The Purchaser agrees that, pursuant to any Tax
sharing, Tax allocation, or Tax indemnity agreements between the Seller or any
Seller affiliate on the one hand and the Company or any Company Subsidiary on
the other hand, the Company or any Company Subsidiary may make tax sharing
payments to the Seller on any date or dates up to and including the Closing
Date. Any payment made pursuant to this Section 6.7(f) shall comply with the
terms of the agreement to which it relates (other than terms requiring payment
on a specified date or dates). Payments to the Seller pursuant to this Section
6.7(f) shall reduce the cash component of Working Capital as of the Closing
Date.
(g) ASSISTANCE AND COOPERATION. After the Closing Date, each of
the Seller and the Purchaser shall, and shall cause their respective affiliates
to, execute any forms necessary to filing a Tax Return and provide information
to the other party regarding the Company or any Company Subsidiary in connection
with (i) the other party preparing any Tax Returns that such other party is
responsible for preparing and filing and (ii) the other party preparing for any
audits of, or disputes with any Tax authority regarding, any Tax Returns of the
Company or any Company Subsidiary. In connection therewith, the Seller and the
Purchaser shall not dispose of any Tax work papers, books or records relating to
the Company or any Company Subsidiary during the six-year period following the
Closing Date, and thereafter shall give the other parties reasonable written
notice before disposing of such items.
(h) SECTION 338 ELECTIONS. The Purchaser agrees that if the
Seller notifies the Purchaser in writing, on or prior to the 120th day following
the Closing Date, of its
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intention to make an election under Section 338(h)(10) of the Code, and any
corresponding elections under state and local law, with respect to the purchase
and sale of Units hereunder (such elections collectively the "SECTION 338(h)(10)
ELECTION"), the Purchaser shall join with the Seller in timely making such joint
Section 338(h)(10) Election. If the Seller elects to make a Section 338(h)(10)
Election, prior to the 120th day following the Closing Date, the Seller shall
(i) determine the aggregate deemed sale price ("ADSP") (within the meaning of
Treasury Regulations Section 1.338-4T) of the Company and the adjusted
grossed-up basis ("AGUB") (within the meaning of Treasury Regulations Section
1.338-5T) of the Company's assets for Tax purposes; (ii) determine the proper
allocation ("ALLOCATION") (in accordance with Treasury Regulations Section
1.338-6T and 1.338-7T) of the ADSP and AGUB among the assets of the Company for
Tax purposes; and (iii) deliver the Allocation to Purchaser. If the Purchaser
notifies the Seller in writing of a disagreement with respect to an Allocation,
the Seller and the Purchaser shall attempt to resolve their differences within
thirty (30) days of the Seller's receipt of such notice from the Purchaser. If
no agreement can be reached within sixty (60) days of the Seller's receipt of
such notice from Purchaser, the Seller and the Purchaser shall agree to an
Allocation based on an appraisal of the assets performed by an accounting firm
with national standing agreed upon by the Seller and the Purchaser. In the
absence of a notice from the Purchaser, or in the event that the Seller and the
Purchaser agree to an Allocation, the Seller and the Purchaser shall (i) be
bound by such Allocation for purposes of determining any Taxes, (ii) prepare and
file their Tax Returns consistent with such Allocations, and (iii) take no
position inconsistent with such Allocation on any Tax Return, in any proceeding
before any Taxing authority or otherwise. If a Section 338(h)(10) Election is
not made, for purposes of all Tax Returns and other applicable filings, the
Seller and the Purchaser will each report the Units purchase as a sale and
purchase, respectively, of the Units.
(i) INDEMNIFICATION BY THE SELLER. Notwithstanding any other
provision of this Agreement other than Section 6.7(b)(iv), the Seller shall
indemnify the Purchaser from and against and in respect of:
(i) any liability for Taxes imposed on the Company or any
Company Subsidiary as members of the "affiliated group" (within the meaning
of Section 1504(a) of the Code) of which the Seller (or any predecessor or
successor) is the common parent that arises under Treasury Regulation
Section 1.1502-6(a) or any comparable provision of foreign, state or local
law;
(ii) any liability for Taxes imposed on the Company or any
Company Subsidiary for any taxable year or period that ends on or before
the Closing Date and, with respect to any Straddle Period, the portion of
such Straddle Period deemed to end on and include the Closing Date;
PROVIDED, that any indemnification for Non-Income Tax liabilities under
this Section 6.7(i)(ii) shall apply only to the extent such Non-Income Tax
liabilities exceed the amount by which Non-Income Taxes reduce Working
Capital; and
(iii) any liability for Taxes for which the Seller is
responsible under Section 6.7(m).
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Any indemnification under this Section 6.7(i) shall give effect to any related
Tax Benefit and be net of any reserves and amounts recovered from third parties,
including amounts recovered through utility rate increases. The indemnification
pursuant to this Section 6.7(i) shall be the sole and exclusive remedy of the
Purchaser against the Seller with respect to any liability for Taxes in
connection with this Agreement.
(j) INDEMNIFICATION BY THE PURCHASER. Notwithstanding any other
provision of this Agreement, the Purchaser shall indemnify the Seller from and
against and in respect of:
(i) any liability for Taxes imposed on any of the Company or
any Company Subsidiary for any taxable year or period that begins after the
Closing Date and, with respect to any Straddle Period, the portion of such
Straddle Period beginning the day after the Closing Date; and
(ii) any liability for Taxes for which the Purchaser is
responsible under Section 6.7(m).
Any indemnification under this Section 6.7(j) shall give effect to any related
Tax Benefit and be net of any reserves and amounts recovered from third parties,
including amounts recovered through utility rate increases. The indemnification
pursuant to this Section 6.7(j) shall be the sole and exclusive remedy of the
Seller against the Purchaser with respect to any liability for Taxes in
connection with this Agreement.
(k) CONTESTS.
(i) NOTICE. After the Closing Date, the Seller and the
Purchaser each shall notify the other party in writing within fifteen (15)
days of the commencement of any Tax audit or administrative or judicial
proceeding affecting the Taxes of any of the Company or any Company
Subsidiary that, if determined adversely to the taxpayer (the "TAX
INDEMNITEE") or after the lapse of time would be grounds for
indemnification under this Section 6.7 by the other party (the "TAX
INDEMNITOR"). Such notice shall contain factual information describing any
asserted Tax liability in reasonable detail and shall include copies of any
notice or other document received from any Tax authority in respect of any
such asserted Tax liability. If either the Seller or the Purchaser fails to
give the other party prompt notice of an asserted Tax liability as required
under this Agreement, then (A) if the Tax Indemnitor is precluded by the
failure to give prompt notice from contesting the asserted Tax liability in
any judicial forum, then such party shall not have any obligation to
indemnify the other party for any losses arising out of such asserted Tax
liability and (B) if the Tax Indemnitor is not so precluded from
contesting, if such failure to give prompt notice results in a detriment to
the Tax Indemnitor, then any amount which the Tax Indemnitor is otherwise
required to pay pursuant to this Section 6.7 with respect to such liability
shall be reduced by the amount of such detriment.
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(ii) CONTROL OF CONTESTS INVOLVING PRE-CLOSING PERIODS OR
STRADDLE PERIODS. In the case of an audit or administrative or judicial
proceeding involving any asserted liability for Taxes relating to any
taxable years or periods ending on or before the Closing Date or any
Straddle Period of the Company or any Company Subsidiary, the Seller shall
have the right, at its expense, to control the conduct of such audit or
proceeding; PROVIDED, HOWEVER, that (i) the Seller shall keep the Purchaser
reasonably informed with respect to the status of such audit or proceeding
and provide the Purchaser with copies of all written correspondence with
respect to such audit or proceeding in a timely manner and (ii) if such
audit or proceeding would be reasonably expected to result in a material
increase in Tax liability of the Company or any Company Subsidiary for
which the Purchaser would be liable under this Section 6.7, (A) the
Purchaser may participate in the conduct of such audit or proceeding at its
own expense and (B) the Seller shall not settle any such audit or
proceeding without the consent of Purchaser, which consent shall not be
unreasonably withheld.
(iii) CONTROL OF CONTESTS INVOLVING POST-CLOSING PERIODS. In
the case of an audit or administrative or judicial proceeding involving any
asserted liability for Taxes relating to any taxable years or periods
beginning after the Closing Date, the Purchaser shall have the right, at
its expense, to control the conduct of such audit or proceeding; PROVIDED,
HOWEVER, that if such audit or proceeding would be reasonably expected to
result in a material increase in Tax liability of the Company or any
Company Subsidiary for which the Seller would be liable under this Section
6.7, (A) the Seller may participate in the conduct of such audit or
proceeding at its own expense and (B) the Purchaser shall not settle any
such audit or proceeding without the consent of the Seller, which consent
shall not be unreasonably withheld.
(l) TERMINATION TAX SHARING AGREEMENTS. On or before the Closing
Date, the Seller shall cause all Tax sharing, Tax allocation, or Tax indemnity
agreements between the Seller or any Seller affiliate on the one hand, and the
Company or any Company Subsidiary on the other hand, to be terminated as of the
Closing Date (or any earlier date) and the agreements will have no further
effect for any taxable year (current, future, or past).
(m) TRANSFER TAXES. Notwithstanding any other provision of this
Agreement to the contrary, the Purchaser and the Seller shall each pay 50% of
(i) all transfer (including real property transfer and documentary transfer)
Taxes and fees imposed with respect to the sale and transfer of Shares
contemplated hereby and (ii) all sales, use, gains (including state and local
transfer gains), excise and other transfer or similar Taxes imposed with respect
to the sale and transfer of Shares contemplated hereby. The Seller shall execute
and deliver to the Purchaser at the Closing any certificates or other documents
as the Purchaser may reasonably request to perfect any exemption from any such
transfer, documentary, sales, use, gains, excise or other Taxes, or to otherwise
comply with any applicable reporting requirements with respect to any such
Taxes.
(n) RETENTION OF TAX ATTRIBUTES. The Seller may elect to retain
the Tax attributes of the Company or any Company Subsidiary, including net
operating losses and capital
33
loss carryovers of such entities, to the extent permitted under the Code,
Treasury Regulations, other pronouncements of the Internal Revenue Service, or
other applicable law. At the Seller's request, the Purchaser will, and will
cause any Purchaser Subsidiary, the Company, and any Company Subsidiary to, take
any actions necessary to effect such elections of the Seller.
(o) TREATMENT OF PURCHASE PRICE. The Seller, the Purchaser and
their respective Subsidiaries shall treat the Final Purchase Price as the
purchase price for the sale, conveyance, assignment, transfer and delivery to
the Purchaser of the Shares in preparing and filing their Tax Returns and shall
take no position inconsistent therewith in any proceeding before any taxing
authority or otherwise unless otherwise required pursuant to a final resolution
of any Tax for a taxable year that, under applicable law, is not subject to
further appeal, review or modification through proceedings or otherwise.
Section 6.8 FINANCIAL INFORMATION.
(a) After the Closing, upon reasonable written notice, the
Purchaser and the Seller shall furnish or cause to be furnished to each other
and their respective accountants, counsel and other representatives, during
normal business hours, such information (including records pertinent to the
Company) as is reasonably necessary for financial reporting and accounting
matters.
(b) The Purchaser shall retain all of the books and records of
the Company and the Company Subsidiaries after the Closing Date for so long as
required by law. After the end of such period, before disposing of such books or
records, the Purchaser shall give notice to such effect to the Seller and give
the Seller an opportunity to remove and retain all or any part of such books or
records as the Seller may select.
Section 6.9 TERMINATION OF AFFILIATE CONTRACTS. Except as set forth on
Section 6.9 of the Seller Disclosure Schedule and except as agreed to in writing
by the Seller and the Purchaser, all Affiliate Contracts, including any
agreements or understandings (written or oral) with respect thereto, shall
terminate simultaneously with the Closing without any further action or
liability on the part of the parties thereto. Notwithstanding the foregoing, in
the absence of a written agreement, the provision of any services (similar to
those contemplated by the preceding sentence) by the Seller to the Company or
any Company Subsidiary from and after the Closing, which services may be
provided by the Seller in its sole discretion, shall be for the convenience, and
at the expense, of the Purchaser, upon mutually agreed terms.
Section 6.10 SELLER'S NAME. The Purchaser shall not acquire, nor shall
the Company and its Subsidiaries retain, any rights to the name "AES" (or any
derivation thereof) or any trademark, trade name or symbol related thereto. As
soon as reasonably practicable after the Closing but not later than sixty (60)
days after the Closing Date, the Purchaser shall cause the Company and its
Subsidiaries to remove the name "AES" (or any derivation thereof) and all
trademarks, trade names or symbols related thereto from the properties and
assets of the Company and its Subsidiaries.
Section 6.11 FURTHER ASSURANCES. Each party will, and will cause its
Subsidiaries to, execute such further documents or instruments and take such
further actions as
34
may reasonably be requested by the other party in order to consummate the
transaction in accordance with the terms hereof.
Section 6.12 PREPAYMENT ALTERNATIVE. Notwithstanding anything
contained in this Agreement to the contrary, the Purchaser shall waive the
condition set forth in Section 7.2(d) if so requested by the Seller in which
event Seller shall cause the Company and the Company Subsidiaries to pay off the
indebtedness pertaining to the Seller Required Consents and such indebtedness
shall not constitute Assumed Obligations for purposes of this Agreement
(including Section 1.2(b)).
ARTICLE VII
CONDITIONS
Section 7.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
CLOSING. The respective obligations of each party to effect the Closing shall be
subject to the satisfaction on or prior to the Closing Date of the following
conditions, except, to the extent permitted by applicable law, that such
conditions may be waived in writing pursuant to Section 9.3 by the joint action
of the parties hereto:
(a) NO INJUNCTION. No temporary restraining order or preliminary
or permanent injunction or other order by any federal or state court preventing
consummation of the transactions contemplated hereby shall have been issued and
be continuing in effect, and the transactions contemplated hereby shall not have
been prohibited under any applicable federal or state law or regulation
(collectively, "RESTRAINTS"); PROVIDED, HOWEVER, that each of the parties shall
have used all reasonable efforts to prevent the entry of any such Restraints and
to appeal as promptly as possible any such Restraints that may be entered.
(b) STATUTORY APPROVALS. The Seller Required Statutory Approvals
and the Purchaser Required Statutory Approvals shall have been obtained at or
prior to the Closing Date by a Final Order. A "FINAL ORDER" shall mean action by
the relevant regulatory authority which has not been reversed, stayed, enjoined,
set aside, annulled or suspended, with respect to which any waiting period
prescribed by law before the transactions contemplated thereby may be
consummated has expired (but without the requirement for expiration of any
applicable rehearing or appeal period), and as to which all conditions to the
consummation of such transactions prescribed by law, regulation or order have
been satisfied.
(c) HSR ACT. All applicable waiting periods under the HSR Act
shall have expired or been terminated.
(d) STOCK PURCHASE AGREEMENT. The Stock Purchase Agreement
between the Seller and the Purchaser of even date herewith regarding the sale of
all of the issued and outstanding shares of CILCORP Inc. shall have been
consummated in accordance with its terms.
Section 7.2 CONDITIONS TO OBLIGATION OF THE PURCHASER TO EFFECT THE
CLOSING. The obligation of the Purchaser to effect the Closing shall be further
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, except as may be waived by the Purchaser in writing pursuant to
Section 9.3:
35
(a) PERFORMANCE OF OBLIGATIONS OF THE SELLER. The Seller will
have performed in all material respects its agreements and covenants contained
in or contemplated by this Agreement which are required to be performed by it at
or prior to the Closing.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Seller set forth in this Agreement shall be true and correct
(i) on and as of the date hereof and (ii) on and as of the Closing Date with the
same effect as though such representations and warranties had been made on and
as of the Closing Date (except for representations and warranties that expressly
speak only as of a specific date or time which need only be true and correct as
of such date or time) except in each of cases (i) and (ii) for such failures of
representations or warranties to be true and correct (without giving effect to
any materiality qualification or standard contained in any such representations
and warranties) which would not result in a Company Material Adverse Effect.
(c) CLOSING CERTIFICATES. The Purchaser shall have received a
certificate signed by the Seller, dated the Closing Date, to the effect that the
conditions set forth in Section 7.2(a) and Section 7.2(b) have been satisfied
and to the further effect that there has not been any development or combination
of developments affecting the Company or any Company Subsidiary, of which the
Seller or the Company has knowledge, that would have a Company Material Adverse
Effect.
(d) SELLER REQUIRED CONSENTS. The Seller Required Consents, the
failure of which to obtain would have a Company Material Adverse Effect, shall
have been obtained.
(e) REGULATORY APPROVALS. The Final Orders of any Governmental
Authority having authority over the transactions contemplated by this Agreement
shall not impose terms or conditions (which are in addition to terms and
conditions due to existing laws, rules or regulations), which would have a
Company Material Adverse Effect or a Purchaser Material Adverse Effect,
PROVIDED, HOWEVER, that any terms or conditions imposed by the FERC, the FTC or
the Antitrust Division of the DOJ relating to market power, including but not
limited to, divestiture of generation or transmission improvements, will not
constitute a Company Material Adverse Effect or a Purchaser Material Adverse
Effect.
(f) ESTOPPEL LETTER. The Purchaser shall have received a letter
from Caterpillar waiving its termination rights pursuant to Section 4 of
Appendix E of the Service Agreement dated as of December 29, 1999 and amended as
of February 15, 2001 between Central Illinois Light Company and Caterpillar with
respect to the transactions contemplated by this Agreement.
Section 7.3 CONDITIONS TO OBLIGATION OF THE SELLER TO EFFECT THE
CLOSING. The obligation of the Seller to effect the Closing shall be further
subject to the satisfaction, on or prior to the Closing Date, of the following
conditions, except as may be waived by the Seller in writing pursuant to Section
9.3:
(a) PERFORMANCE OF OBLIGATIONS OF THE PURCHASER. The Purchaser
(and/or its appropriate Subsidiaries) will have performed in all material
respects its agreements and
36
covenants contained in or contemplated by this Agreement which are required to
be performed by it at or prior to the Closing Date.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchaser set forth in this Agreement shall be true and
correct (i) on and as of the date hereof and (ii) on and as of the Closing Date
with the same effect as though such representations and warranties had been made
on and as of the Closing Date (except for representations and warranties that
expressly speak only as of a specific date or time which need only be true and
correct as of such date or time) except in each of cases (i) and (ii) for such
failures of representations or warranties to be true and correct (without giving
effect to any materiality qualification or standard contained in any such
representations and warranties) which would not prevent, materially delay or
materially impair the Purchaser's ability to consummate the transaction
contemplated by this Agreement.
(c) CLOSING CERTIFICATES. The Seller shall have received a
certificate signed by the Purchaser, dated the Closing Date, to the effect that
the conditions set forth in Section 7.3(a) and Section 7.3(b) have been
satisfied and to the further effect that, as of the respective dates of reports
filed with the SEC by the Purchaser under the Securities Act and Exchange Act
since January 1, 2001, and as of the Closing Date, such reports did not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) PURCHASER REQUIRED CONSENTS. The Purchaser Required Consents,
the failure of which to obtain would prevent, materially delay or materially
impair the Purchaser's ability to consummate the transactions contemplated by
this Agreement, shall have been obtained.
ARTICLE VIII
TERMINATION
Section 8.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date (the "TERMINATION DATE"):
(a) by mutual written consent of the Seller and the Purchaser;
(b) by the Purchaser or the Seller, if any state or federal law,
order, rule or regulation is adopted or issued, which has the effect, as
supported by the written opinion of outside counsel for such party, of
prohibiting the Closing, or by any party hereto if any court of competent
jurisdiction in the United States or any state shall have issued an order,
judgment or decree permanently restraining, enjoining or otherwise prohibiting
the Closing, and such order, judgment or decree shall have become final and
nonappealable;
(c) by the Purchaser or the Seller, by written notice to the
other party, if the Closing Date shall not have occurred on or before March 27,
2003 (the "INITIAL TERMINATION DATE"); PROVIDED, HOWEVER, that the right to
terminate the Agreement under this Section 8.1(c) shall not be available to any
party whose failure to fulfill any obligation under this Agreement shall have
proximately contributed to the failure of the Closing Date to occur on or before
such
37
date; and PROVIDED, FURTHER, that if on the Initial Termination Date the
conditions to the Closing set forth in Sections 7.1(b), 7.1(c), 7.1.(d), 7.2(e)
and/or 7.2(f) shall not have been fulfilled but all other conditions to the
Closing shall be fulfilled or shall be capable of being fulfilled, then the
Initial Termination Date shall be extended for a twelve-month period;
(d) by the Purchaser, by written notice to the Seller, if there
shall have been a material breach of any representation or warranty, or a
material breach of any covenant or agreement of the Seller hereunder, which
breaches would result in a Company Material Adverse Effect, and such breach
shall not have been remedied within thirty (30) days after receipt by the Seller
of notice in writing from the Purchaser, specifying the nature of such breach
and requesting that it be remedied or the Purchaser shall not have received
adequate assurance of a cure of such breach within such thirty (30) day period
or the Seller shall not have made a capital contribution to the Company in an
amount equal to the expected damages from such breach;
(e) by the Seller, by written notice to the Purchaser, if there
shall have been a material breach of any representation or warranty, or a
material breach of any covenant or agreement of the Purchaser hereunder, which
breaches would prevent, materially delay or materially impair the Purchaser's
ability to consummate the transactions contemplated by this Agreement, and such
breach shall not have been remedied within thirty (30) days after receipt by the
Purchaser of notice in writing from the Seller, specifying the nature of such
breach and requesting that it be remedied or the Seller shall not have received
adequate assurance of a cure of such breach within such thirty (30) day period;
(f) by the Purchaser or the Seller, by written notice to the
other party, if the condition to each party's obligation to effect the Closing
contained in Section 7.1(d) cannot be met; or
(g) by the Purchaser, by written notice to the Seller, to the
extent the Purchaser is not in breach of this Agreement, if the condition to the
Purchaser's obligation to effect the Closing contained in Section 7.2(e) cannot
be met in spite of the Purchaser's use of its best efforts to obtain such Seller
Required Regulatory Approvals and Purchaser Required Regulatory Approvals,
including seeking to exhaust any rehearing or refiling opportunities relating to
such approvals.
Section 8.2 EFFECT OF TERMINATION. In the event of termination of this
Agreement by either the Seller or the Purchaser pursuant to Section 8.1, there
shall be no liability on the part of either the Seller or the Purchaser or their
respective officers or directors hereunder, EXCEPT (a) that nothing herein shall
relieve any party from liability for any breach of any representation, warranty,
covenant or agreement of such party contained in this Agreement and (b) that
Sections 8.2, 9.2, 9.4, 9.6, 9.8, 9.9, 9.10, 9.11, 9.12, 9.13, and the agreement
contained in the last sentence of Section 6.1 shall survive the termination.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 SURVIVAL OF OBLIGATIONS. All representations, warranties,
covenants, obligations and agreements of the parties contained in this Agreement
or in any instrument,
38
certificate, opinion or other writing provided for herein, shall not survive the
Closing; PROVIDED, HOWEVER, that the representation and warranty of the Seller
contained in Section 3.2(b) and the covenants of the Seller and the Purchaser
contained in Sections 6.4, 6.5, 6.6, 6.7, 6.8, 6.9, 6.10, 6.11 and the second
sentence of Section 6.1 shall survive the Closing and PROVIDED FURTHER, that the
prohibition on solicitation for employment contained in Section 5.1(o) shall
continue in full force and effect for 12 months following the Closing Date.
Section 9.2 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified and supplemented in any and all respects, but only by a written
instrument signed by each of the parties hereto expressly stating that such
instrument is intended to amend, modify or supplement this Agreement.
Section 9.3 EXTENSION; WAIVER. At any time prior to the Closing Date,
a party hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other party hereto, (b) waive any inaccuracies
in the representations and warranties contained herein or in any document
delivered pursuant hereto and (c) waive compliance with any of the agreements or
conditions contained herein, to the extent permitted by applicable law. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
Section 9.4 EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses except that the fee payable in connection with
the filing required by the HSR Act shall be shared one-half by Seller and
one-half by Purchaser. Notwithstanding the foregoing, in any action or
proceeding brought to enforce any provisions of this Agreement, or where any
provision hereof is validly asserted as a defense, the successful party shall be
entitled to recover reasonable attorneys' fees and disbursements in addition to
its costs and expenses and any other available remedy.
Section 9.5 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given (a) when delivered personally, (b)
when sent by reputable overnight courier service, or (c) when telecopied (which
is confirmed by copy sent within one business day by a reputable overnight
courier service) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) If to the Seller, to
The
AES Corporation
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
39
with a copy to
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and with a copy to
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
One Prudential Plaza
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇'▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
and
(ii) if to the Purchaser, to
Ameren Corporation
One Ameren Plaza
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Vice President/General Counsel and Secretary
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to
▇▇▇▇▇, Day, ▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Section 9.6 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This
Agreement, the Confidentiality Agreement, the Side Agreement Relating to
CILCO/ENRON Contract of even date herewith among the Seller, CILCORP Inc. and
the Purchaser, and the Stock Purchase Agreement between the Seller and the
Purchaser of even date herewith (a) constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof and thereof and (b) are
not intended to
40
confer, and shall not confer, upon any Person other than the parties hereto and
thereto and Company Indemnified Parties as set forth in Section 6.4 any
remedies, claims of liability or reimbursement, causes of action or any other
rights whatsoever.
Section 9.7 SEVERABILITY. Any term or provision of this Agreement that
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction or other authority declares that any term or provision
hereof is invalid, void or unenforceable, the parties agree that the court
making such determination shall have the power to reduce the scope, duration,
area or applicability of the term or provision, to delete specific words or
phrases, or to replace any invalid, void or unenforceable term or provision with
a term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision.
Section 9.8 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of
Delaware without giving
effect to the principles of conflicts of law thereof.
Section 9.9 VENUE. Each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located in the State of
Delaware or any
Delaware state court in the event any dispute arises out of this
Agreement, (b) agrees that it shall not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court and (c)
agrees that it shall not bring any action relating to this Agreement in any
court other than a federal or state court sitting in the State of
Delaware.
Section 9.10 WAIVER OF JURY TRIAL AND CERTAIN DAMAGES. Each party to
this Agreement waives, to the fullest extent permitted by applicable law, (a)
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement and (b) any right it may
have to receive damages from any other party based on any theory of liability
for any special, indirect, consequential (including lost profits) or punitive
damages.
Section 9.11 SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any of the provisions of this
Agreement were not to be performed in accordance with the terms hereof and that
the parties shall be entitled to specific performance of the terms hereof in
addition to any other remedies at law or in equity.
Section 9.12 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party hereto
(whether by operation of law or otherwise) without the prior written consent of
the other party; PROVIDED, HOWEVER, that the Seller may transfer the Units to a
wholly owned Subsidiary of the Seller as long as such Subsidiary agrees in
writing to be bound by the applicable terms of this Agreement and no such
assignment shall relieve the Seller from its obligations hereunder.
41
Section 9.13 INTERPRETATION. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement,
respectively, unless otherwise indicated. The table of contents and headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Whenever the words
"INCLUDE," "INCLUDES" or "INCLUDING" are used in this Agreement, they shall be
deemed to be followed by the words "WITHOUT LIMITATION." Any item or other
matter referenced or disclosed in one section of the Seller Disclosure Schedule
or the Purchaser Disclosure Schedule, as the case may be, shall be deemed to
have been referenced or disclosed in all sections of such Disclosure Schedule
where such reference or disclosure is required. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement.
Section 9.14 COUNTERPARTS; EFFECT. This Agreement may be executed and
delivered (including via facsimile) in one or more counterparts, each of which
shall be deemed to be an original, but all of which shall constitute one and the
same agreement.
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IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
THE
AES CORPORATION
By: /s/▇▇▇▇▇ ▇. ▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇
Title: Vice President
AMEREN CORPORATION
By: /s/▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President & General Counsel
43