Exhibit 2.1
EXECUTION COPY
THIS TERMINATION AND RELEASE AGREEMENT (the "Agreement") is
made and entered into this 1st day of April, 2001, by and
between FPL GROUP, INC., a Florida corporation ("FPL"),
ENTERGY CORPORATION, a Delaware corporation ("Entergy"),
WCB HOLDING CORP., a Delaware corporation (the "Company"),
RANGER ACQUISITION CORP., a Florida corporation ("Ranger")
and RING ACQUISITION CORP., a Delaware corporation ("Ring",
and together with FPL, Entergy, the Company and Ranger, the
"Parties" and each a "Party")
W I T N E S S E T H :
WHEREAS, FPL, Entergy, the Company, a Delaware
corporation, 50% of whose outstanding capital stock is owned
by FPL and 50% of whose outstanding capital stock is owned
by Entergy, Ranger, a wholly owned subsidiary of the
Company, and Ring, a wholly owned subsidiary of the Company,
entered into that certain Agreement and Plan of Merger,
dated as of July 30, 2000 (the "Merger Agreement", and
capitalized terms not otherwise defined herein shall have
the meaning ascribed to them in the Merger Agreement);
WHEREAS, in connection with the negotiations
surrounding the Merger Agreement, FPL and Entergy each
entered into a Confidentiality Agreement made and entered
into on June 8, 2000, which is attached hereto as Exhibit A;
WHEREAS, pursuant to Section 7.01(a) of the Merger
Agreement, the Merger Agreement may be terminated at any
time prior to the Effective Time by mutual written consent
of FPL and Entergy; and
WHEREAS, FPL and Entergy wish to terminate the
Merger Agreement and release their respective rights,
claims, obligations, and liabilities as provided in
Sections 1 and 4 hereof, and the board of directors of each
of FPL and Entergy has approved such termination and
authorized such Party to enter into this Agreement as
required by Section 7.05 of the Merger Agreement.
NOW, THEREFORE, in consideration of the covenants
and agreements herein set forth and for other good and
valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Parties agree as follows:
1. Termination of Merger Agreement. Effective
immediately, FPL and Entergy hereby abandon the Mergers and
all other transactions contemplated by the Merger Agreement
and mutually terminate the Merger Agreement pursuant to
Section 7.01(a) thereof, including, notwithstanding the
provisions of Section 7.02 thereof, Section 5.09,
Section 7.02 and Article VIII of the Merger Agreement, none
of which provisions shall survive termination of the Merger
Agreement hereunder. Notwithstanding anything to the
contrary contained in the Merger Agreement, no Released
Party (as defined herein) shall have any liability or
obligation under the Merger Agreement, including without
limitation, as a result of any action or failure to act in
connection with the Merger Agreement.
2. Publicity; Survival of Confidentiality
Agreement.
(a) The Parties shall not make any public
statement regarding this Agreement until 6:00 a.m. New York
time on April 2, 2001. At that time, FPL and Entergy shall
issue a joint press release in the form, and containing the
contents, of Exhibit B to this Agreement. Each Party shall
have the right to make such other statements as it deems
necessary or appropriate.
(b) The Confidentiality Agreement shall remain in
full force and effect in accordance with its terms, except
for Section 3 thereof which shall be deemed terminated as of
the date hereof and except as set forth in the third
sentence of this Section 2(b). In addition, all information
exchanged pursuant to Section 5.04(a) of the Merger
Agreement shall continue to be subject to the
Confidentiality Agreement. Notwithstanding any provision of
the Confidentiality Agreement or any other agreement to the
contrary, FPL and Entergy shall have the right to make
statements regarding the reasons for the termination of the
Merger Agreement; provided, however, that neither FPL nor
Entergy shall disclose material non-public information
contained in the business or financial plans or projections
of the other; but provided further, however, that a Party
may reveal the extent to which different financial
projections varied.
3. Fees and Expenses. (a) No Party shall pay a
Termination Fee to the other Party under the Merger
Agreement. Each Party shall bear its own costs and expenses
heretofore or hereafter incurred by each Party in connection
with or relating to this Agreement and the Merger Agreement
and the transactions contemplated hereby and thereby;
provided, that (i) each of FPL and Entergy shall bear and
pay one-half of the costs and expenses incurred in
connection with (1) the filing, printing and mailing of the
Form S-4 and the Joint Proxy Statement (including SEC filing
fees) and (2) the preparation of the premerger notification
and report forms under the HSR Act and (ii) each of FPL and
Entergy shall bear and pay one-half of the reasonable fees
and expenses of Deloitte & Touche Consulting, Dean &
Company, Towers Perrin, Accenture, UMS, and Skadden, Arps,
Slate, Meagher & Flom LLP (only with respect to its work
obtaining approval of the Mergers under the Federal Power
Act and the Public Utilities Holding Company Act and as
contemplated by clause (i)(2) above) incurred in connection
with their joint retention by FPL and Entergy in respect of
the transactions contemplated by the Merger Agreement.
(b) In the event that FPL enters into any letter
of intent, agreement in principle, acquisition agreement or
other similar agreement related to an FPL Transaction (as
defined below) within 9 months (or with respect to an FPL
Transaction described in clause (v) of the definition
thereof below, 6 months) after the date of this Agreement,
then, upon consummation of such FPL Transaction, FPL shall
immediately pay Entergy a fee equal to $215,000,000, payable
by wire transfer of same day funds to an account specified
in writing by Entergy for such payment. For purposes of
this Agreement, "FPL Transaction" means (i) any merger,
consolidation, share exchange, recapitalization,
liquidation, dissolution, business combination, tender
offer, exchange offer or similar transaction involving FPL
or any subsidiary of FPL owning, operating or controlling an
FPL Material Business (as defined below) which, at
consummation, results in any third party owning 35% or more
of the common stock of FPL (or, if FPL shall not survive as
the ultimate parent company, then of the ultimate parent
company resulting from such transaction) or any third party
owning, directly or indirectly, 35% or more of any class of
voting stock of any such subsidiary, (ii) any direct or
indirect acquisition or purchase by a third party of a
business (an "FPL Material Business") that constitutes 35%
or more of the net revenues, net income or the assets
(including equity securities) of FPL and its subsidiaries,
taken as a whole, (iii) any direct or indirect acquisition
or purchase by a third party of 35% or more of any class of
voting securities of FPL or any subsidiary of FPL owning,
operating or controlling an FPL Material Business, (iv) any
tender offer or exchange offer by a third party that if
consummated would result in any person beneficially owning
35% or more of any class of voting securities of FPL or any
subsidiary of FPL owning, operating or controlling an FPL
Material Business, or (v) any direct or indirect acquisition
or purchase of, or joint venture or similar transaction
involving, all or substantially all of the equity or assets
of any of FPL's independent power development business,
energy trading and marketing businesses, telecommunications
business or any other line of business that constitutes at
least 15% of the net revenues, net income or assets of FPL
and its subsidiaries, taken as a whole, by any person set
forth on Schedule A with whom FPL or its representatives
engaged in discussions between July 30, 1999 and the date of
this Agreement for which either (x) a financial advisor was
engaged by either FPL or the third party or (y) the chief
executive officer or chairman of either FPL or the third
party engaged in such discussions; provided, however, that
in each case "FPL Transaction" does not include any FPL RTO
Formation. In no event shall more than one fee be payable
under this Section 3(b).
(c) In the event that Entergy enters into any
letter of intent, agreement in principle, acquisition
agreement or other similar agreement related to an Entergy
Transaction (as defined below) within 9 months (or with
respect to an Entergy Transaction described in clause (v) of
the definition thereof below, 6 months) after the date of
this Agreement, then, upon consummation of such Entergy
Transaction, Entergy shall immediately pay FPL a fee equal
to $215,000,000, payable by wire transfer of same day funds
to an account specified in writing by FPL for such payment.
For purposes of this Agreement, "Entergy Transaction" means
any (i) merger, consolidation, share exchange,
recapitalization, liquidation, dissolution, business
combination, tender offer, exchange offer or similar
transaction involving Entergy or any subsidiary of Entergy
owning, operating or controlling an Entergy Material
Business (as defined below) which, at consummation, results
in any third party owning 35% or more of the common stock of
Entergy (or, if Entergy shall not survive as the ultimate
parent company, then of the ultimate parent company
resulting from such transaction) or any third party owning,
directly or indirectly, 35% or more of any class of voting
stock of any such subsidiary, (ii) any direct or indirect
acquisition or purchase by a third party of a business (an
"Entergy Material Business") that constitutes 35% or more of
the net revenues, net income or the assets (including equity
securities) of Entergy and its subsidiaries, taken as a
whole, (iii) any direct or indirect acquisition or purchase
by a third party of 35% or more of any class of voting
securities of Entergy or any subsidiary of Entergy owning,
operating or controlling an Entergy Material Business, (iv)
any tender offer or exchange offer that if consummated would
result in any person beneficially owning 35% or more of any
class of voting securities of Entergy or any subsidiary of
Entergy owning, operating or controlling an Entergy Material
Business, or (v) any direct or indirect acquisition or
purchase of, or joint venture or similar transaction
involving, all or substantially all of the equity or assets
of any of Entergy's independent power development
businesses, energy trading and marketing businesses,
telecommunications businesses or any other line of business
that constitutes at least 15% of the net revenues, net
income or assets of Entergy and its subsidiaries, taken as a
whole, by a third party with whom Entergy or its
representatives engaged in discussions between July 30, 1999
and the date of this Agreement for which either (x) a
financial advisor was engaged by either Entergy or the third
party or (y) the chief executive officer or chairman of
either Entergy or the third party engaged in such
discussions; provided, however, that in each case "Entergy
Transaction" does not include any Entergy RTO Formation. In
no event shall more than one fee be payable under this
Section 3(c).
4. Release. Effective immediately, each of FPL,
on the one hand, and Entergy, on the other hand, and each of
their respective predecessors, successors, subsidiaries and
assigns (and any of the present and former officers,
directors and employees of each of the foregoing) (each, a
"Releasing Party"), in their capacity as such, hereby
covenants not to sue and forever releases and discharges
Entergy and FPL, respectively (and each of their respective
present and former directors, officers, representatives,
advisors (including but not limited to financial advisors),
attorneys, accountants, employees, agents, parents,
subsidiaries, affiliated persons and entities, predecessors,
successors and assigns and heirs, executors and
administrators and all persons acting in concert with any
such party) (each, a "Released Party") from all manner of
claims, actions, causes of action or suits, at law or in
equity, known or unknown, which each now has or hereafter
can, shall or may have by reason of any matter, cause or
thing whatsoever relating to or arising out of the Merger
Agreement or the agreements or instruments ancillary thereto
or the transactions contemplated thereby, or any action or
failure to act under the Merger Agreement or in connection
therewith, or in connection with the events leading to the
abandonment of the Mergers and any other transactions
contemplated by the Merger Agreement and the mutual
termination of the Merger Agreement, excepting only any
claim, action, cause of action or suit arising (i) out of an
undertaking or promise contained in this Agreement, or
(ii) after the date of this Agreement, by virtue of
obligations under the Confidentiality Agreement or the Joint
Defense and Confidentiality Agreement dated August 11, 2000,
between Entergy and FPL and any addendum thereto, or (iii)
by virtue of the Indemnification Agreement, dated March 5,
2001, between FPL and Entergy Services, Inc., or (iv) with
respect to any statements made or actions taken after the
date of this Agreement, or (v) by virtue of transactions or
dealings undertaken in the ordinary course of business,
including without limitation leases or outstanding energy
trading and transportation transactions, and not arising out
of, or in connection with, the Merger Agreement and the
transactions contemplated thereby; provided that, unless a
present officer or director of FPL or Entergy provides
written notice to FPL and Entergy respectively within 30
days from the date of this Agreement which references this
Section 4 and states that such person elects to become a
Releasing Party, such person will not be a Released Party or
a Releasing Party; and provided further that,
notwithstanding anything to the contrary in this Agreement,
if any present or former employee or former director or
officer of FPL or Entergy, or any officer, director or
employee of any predecessor, successor, subsidiary or assign
of FPL or Entergy (each, a "Related Person") brings any
claim, action, cause of action or suit against FPL, in the
case of an Entergy Related Person, or against Entergy, in
the case of an FPL Related Person, from which a Released
Party has been released as set forth above, then the release
set forth in this Section 4 shall immediately become null
and void with respect to such Related Person, and FPL or
Entergy, as applicable, may file in its sole discretion any
counterclaims and/or suits against such Related Person. FPL
and Entergy will endeavor to obtain from their respective
officers and directors executed releases as set forth above
within 30 days of the date of this Agreement. Nothing in
this Agreement or the Merger Agreement shall in any way
constitute an agreement by any party hereto to indemnify any
other party hereto against any third party claim.
5. Representations and Warranties.
(a) Representations and Warranties of FPL. FPL
represents to Entergy that FPL has all requisite corporate
power and authority to enter into this Agreement and to take
the actions contemplated hereby. The execution and delivery
of this Agreement and the actions contemplated hereby have
been duly authorized by all necessary corporate action on
the part of FPL, including approval of the FPL Board of
Directors. This Agreement has been duly executed and
delivered by FPL and constitutes a valid and binding
agreement of FPL, enforceable against it in accordance with
its terms. During the period from July 30, 2000 to the date
of this Agreement, no FPL Takeover Proposal (as defined in
the proviso to Section 5.09(b) of the Merger Agreement) or
FPL Transaction has been solicited by or made known to FPL
or any of its subsidiaries (including any of their
respective directors or officers).
(b) Representations and Warranties of Entergy.
Entergy represents to FPL that Entergy has all requisite
corporate power and authority to enter into this Agreement
and to take the actions contemplated hereby. The execution
and delivery of this Agreement and the actions contemplated
hereby have been duly authorized by all necessary corporate
action on the part of Entergy, including approval of the
Entergy Board of Directors. This Agreement has been duly
executed and delivered by Entergy and constitutes a valid
and binding agreement of Entergy, enforceable against it in
accordance with its terms. During the period from July 30,
2000 to the date of this Agreement, no Entergy Takeover
Proposal (as defined in the proviso to Section 5.09(c) of
the Merger Agreement) or Entergy Transaction has been
solicited by or made known to Entergy or any of its
subsidiaries (including any of their respective directors or
officers).
6. Entire Agreement. This Agreement and the
Confidentiality Agreement constitute the entire agreement
between the Parties and supersede all prior agreements and
understandings, both written and oral, between the Parties,
or any of them, with respect to the subject matter hereof.
7. Liquidation. Each Party agrees to take all
action reasonably necessary to liquidate the Company,
Ranger, and Ring as soon as reasonably practicable after the
date of this Agreement. For such purpose, each Party will
bear its own costs and expenses incurred to take such
action.
8. Cooperation. The Parties shall cooperate
with each other and promptly prepare and file all necessary
documentation to withdraw all applications, notices,
petitions and filings made with, and shall use their
reasonable best efforts to terminate the proceedings before,
any governmental authority in connection with the Merger
Agreement.
9. Amendment and Modification. This Agreement
may be amended, modified, and supplemented only by a written
document executed by the Parties which specifically states
that it is an amendment, modification or supplement to this
Agreement.
10. Construction. This Agreement shall be
construed without regard to the Party or Parties responsible
for its preparation, and it shall be deemed to have been
prepared jointly by the Parties. Any ambiguity or
uncertainty arising herein shall not be interpreted or
construed against any Party hereto.
11. Incorporation by Reference. The provisions
of Article VIII of the Merger Agreement (other than
Sections 8.01, 8.03(b) and 8.06 thereof) are hereby
incorporated by reference herein, with the same force and
effect as if set forth in full herein, it being understood
that references in such Article VIII to "this Agreement"
shall be deemed only to refer to this Termination and
Release Agreement. The Parties agree that for purposes of
Section 8.05 of such Article VIII, delivery of executed
signature pages by facsimile shall be sufficient to render
this Agreement effective.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been duly
executed and delivered by the duly authorized officers of
the parties hereto as of the date first written above.
FPL GROUP, INC., for itself
and its affiliates,
by /s/ Dennis P. Coyle
Name: Dennis P. Coyle
Title: General Counsel
ENTERGY CORPORATION, for
itself and its affiliates,
by /s/ J. Wayne Leonard
Name: J. Wayne Leonard
Title: Chief Executive Officer
WCB HOLDING CORP.,
by /s/ Dennis P. Coyle
Name: Dennis P. Coyle
Title: Vice President
RANGER ACQUISITION CORP.,
by /s/ Dennis P. Coyle
Name: Dennis P. Coyle
Title: Vice President
RING ACQUISITION CORP.,
by /s/ J. Wayne Leonard
Name: J. Wayne Leonard
Title:President
EXHIBIT A
Confidentiality Agreement
EXECUTION COPY
CONFIDENTIAL
June 8, 2000
Confidentiality Agreement
Dear Sirs or Madams:
In connection with the consideration of a possible
transaction (the "Proposed Transaction") between Entergy
Corporation ("Entergy") and FPL Group, Inc. (the "Company")
or one of its subsidiaries, each party hereto may request
that the other party (the "disclosing party") or the other
party's representatives furnish to it (the "receiving
party") or its representatives certain information relating
to the disclosing party or the Proposed Transaction. All
such information (whether written (including in data form)
or oral) furnished (whether before or after the date hereof)
by the disclosing party or any of the directors, officers,
employees, affiliates, representatives (including, without
limitation, financial advisors, attorneys and accountants)
or agents (collectively, "Representatives") of the
disclosing party to the receiving party or its
Representatives and all analyses, compilations, forecasts,
studies or other documents prepared by the receiving party
or its Representatives in connection with its review of, or
interest in, the Proposed Transaction that contain or
reflect any such information is hereinafter referred to as
the "Evaluation Material". In connection with the
furnishing of the Evaluation Material and the covenants and
agreements contained herein, each party hereby agrees to the
following:
1. The term "Evaluation Material" shall not
include information that (i) is or becomes generally
available to the public other than as a result of a
disclosure by the receiving party or its Representatives in
breach of this Agreement, (ii) is developed by the receiving
party or its Representatives independently and without use
of, and does not contain or reflect, information furnished
by the disclosing party or its Representatives or (iii) is
already in the possession of the receiving party or its
Representatives or becomes subsequently available to the
receiving party or its Representatives on a nonconfidential
basis from a source (other than the disclosing party or its
Representatives) that, to the knowledge of the receiving
party after due inquiry, is not prohibited from disclosing
such information to the receiving party by a legal,
contractual or fiduciary obligation to the disclosing party.
2. The receiving party and its Representatives
(i) shall keep the Evaluation Material confidential and
shall not (except as required by applicable law, regulation
or legal process), without prior written consent of the
disclosing party, disclose any Evaluation Material in any
manner whatsoever, and (ii) shall not use any Evaluation
Material other than in connection with the Proposed
Transaction; provided, however, that the receiving party and
its Representatives may reveal the Evaluation Material to
others who are its Representatives and who (a) are acting
for the receiving party in connection with the Proposed
Transaction, (b) need to know the Evaluation Material for
the purpose of evaluating the Proposed Transaction, (c) are
informed by the receiving party of the confidential nature
of the Evaluation Material and (d) agree to act in
accordance with the terms of this Agreement. The receiving
party shall cause its Representatives to observe the terms
of this Agreement, and the receiving party shall be
responsible for any breach of this Agreement by any of its
Representatives.
3. Except as permitted by paragraph 2 above, the
receiving party and its Representatives shall not (except as
required by applicable law, regulation or legal process),
without prior written consent of the disclosing party,
disclose the fact that the Evaluation Material exists or has
been made available, that the other party is considering the
Proposed Transaction or any other transaction involving the
Company and Entergy, as applicable, or that discussions or
negotiations are taking or have taken place concerning the
Proposed Transaction or involving the Company and Entergy,
as applicable, or any term, condition or other fact relating
to the Proposed Transaction or such discussions or
negotiations, including, without limitation, the status
thereof.
4. In the event that either party or its
Representatives are requested pursuant to, or required by,
applicable law, regulation or legal process to disclose any
of the Evaluation Material, it shall notify the other party
promptly so that such other party may seek a protective
order or other appropriate remedy or waive compliance with
the terms of this Agreement, and such notifying party shall
cooperate fully with such other party in seeking such
protective order or other remedy. In the event that no such
protective order or other remedy is obtained, or that such
other party does not waive compliance with the terms of this
Agreement, such party shall furnish only that portion of the
Evaluation Material that it is advised by counsel is legally
required and shall exercise all reasonable efforts to obtain
reliable assurance that confidential treatment will be
accorded the Evaluation Material so furnished.
5. If the Proposed Transaction is not
consummated, upon the written request of the disclosing
party or any of its Representatives, the receiving party
shall either (i) promptly deliver to the disclosing party at
the receiving party's expense all copies of any written
Evaluation Material (other than any analyses, compilations,
forecasts, studies or other documents prepared by the
receiving party or its Representatives based on the use of
Evaluation Material) in the possession of the receiving
party or its Representatives or (ii) promptly destroy all
copies of any written Evaluation Material in the possession
of the receiving party or its Representatives and confirm
such destruction to the disclosing party in writing.
Regardless of any such return or destruction, all Evaluation
Material, including, without limitation, any oral Evaluation
Material, shall continue to be subject to the terms of this
Agreement.
6. Each of the parties agrees that no contract or
agreement providing for the Proposed Transaction or any
other transaction between the parties to this Agreement
shall be deemed to exist unless and until a definitive
agreement related thereto shall have been duly executed and
delivered. Each of the parties also agrees that, unless and
until such a definitive agreement shall have been duly
executed and delivered, no party nor its Representatives
shall have any liability with respect to the Proposed
Transaction, whether by virtue of this Agreement, any other
written or oral expression with respect to the Proposed
Transaction or otherwise, nor shall any such person be under
any legal obligation of any kind whatsoever with respect to
any transaction, except for the matters specifically agreed
to in this Agreement.
7. Each party agrees that, prior to the three
year anniversary of the date of this Agreement, it, its
successors and its affiliates will not (a) in any manner
acquire, agree to acquire or make any proposal to acquire,
directly or indirectly, any securities (or rights or options
to acquire same) or significant assets of the other party,
(b) propose to enter into, directly or indirectly, any
merger or other business combination or similar transaction
involving the other party, (c) make, or in any way
participate, directly or indirectly, in any "solicitation"
of "proxies" (as such terms are used in the proxy rules of
the Securities and Exchange Commission) to vote, or seek to
advise or influence any person with respect to the voting
of, any securities of the other party, (d) form, join or in
any way participate in a "group" (within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934)
with respect to any securities of the other party,
(e) otherwise act, alone or in concert with others, to seek
to control or influence the management, Board of Directors
or policies of the other party, (f) enter into any
discussions, negotiations, arrangements, understandings or
agreements (whether written or oral) with any other person
(other than bona fide financial, legal or similar
transaction advisors in their capacities as such) regarding
the Proposed Transaction or any other possible purchase or
sale of any securities or significant assets of the other
party, (g) disclose any intention, plan or arrangement
inconsistent with the foregoing or (h) advise, assist or
encourage any other persons in connection with any of the
foregoing. Each party also agrees during such period that
it, its successors and affiliates will not request the other
party or any of its Representatives, directly or indirectly,
to amend, waive or terminate any provision of this paragraph
(including this sentence).
8. Each party agrees that for a period of two
years from the date of this Agreement, neither it nor its
Representatives will directly or indirectly solicit or
direct anyone else to solicit for employment or hire any
employee of the other party or any of its affiliates;
provided, however, that this paragraph 8 shall not prevent
such party from employing any such person who contacts such
party on his or her own initiative without any direct or
indirect solicitation by such party or in response to a
general solicitation by such party.
9. Each party acknowledges that remedies at law
may be inadequate to protect the other party against any
actual or threatened breach of this Agreement by such party
or its Representatives, and, without prejudice to any other
rights and remedies otherwise available to such other party,
each party agrees to the granting of injunctive relief in
favor of the other party without proof of actual damages in
connection with any such actual or threatened breach.
10. This Agreement contains the entire agreement
between the Company and Entergy concerning the
confidentiality of the Evaluation Material and the other
matters set forth herein, and no modification of this
Agreement or waiver of the terms and conditions hereof shall
be binding upon the Company or Entergy, unless approved in
writing by each of the Company and Entergy.
11. Each party agrees that no failure or delay by
the other party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right,
power or privilege hereunder.
12. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or
enforceability of any other provisions of this Agreement,
each of which shall remain in full force and effect.
13. Except as set forth in paragraph 7 and
paragraph 8, this Agreement shall terminate five years from
the date hereof.
14. This Agreement shall be governed by and
construed in accordance with the laws of the State of
New York, without giving effect to applicable principles of
conflict of laws.
15. Each party hereby (a) consents to submit to
the personal jurisdiction of a Federal court located in the
Borough of Manhattan in the City of New York or, if such
court does not have jurisdiction, any New York State court
located in the Borough of Manhattan in the City of New York,
with respect to all actions and proceedings arising out of
or relating to this Agreement, (b) agrees not to attempt to
deny such personal jurisdiction by motion or other request
for leave from any such court, (c) agrees not to bring any
action arising out of or relating to this Agreement or of
any of the transactions contemplated by this Agreement in
any court other than a Federal court located in the Borough
of Manhattan in the City of New York or, if such court does
not have jurisdiction, in any New York State court located
in the Borough of Manhattan in the City of New York,
(d) agrees that all claims with respect to any such action
or proceeding may be heard and determined in such Federal or
New York State court, (e) agrees that service of process,
summons, notice or document by hand delivery or U.S.
registered mail at the address specified for such party in
paragraph 16 (or such other address specified by such party
from time to time pursuant to paragraph 16) shall be
effective service of process for any action, suit or
proceeding brought against such party in any such court,
(f) waives the defense of an inconvenient forum and
(g) agrees that a final judgment in any such action or
proceeding shall be conclusive (subject to any applicable
right of appeal) and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by
law.
16. All notices and other communications
hereunder shall be in writing and shall be deemed given (as
of the time of delivery or, in the case of a telecopied
communication, of confirmation) if delivered personally,
telecopied (which is confirmed) or sent by overnight courier
(providing proof of delivery) to the parties at the
following addresses (or at such other address for a party as
shall be specified by like notice):
if to the Company, to:
FPL Group, Inc.
700 Universe Blvd.
Juno Beach, FL 33408
Telecopy No.: (561) 694-4640
Attention: Dennis P. Coyle
if to Entergy, to:
Entergy Corporation
639 Loyola Ave.
New Orleans, LA 70113
Telecopy No.: (504) 576-4009
Attention: H. John Wilder
17. Although each disclosing party has endeavored
to include in the Evaluation Material information known to
it which it believes to be true and relevant for the purpose
of the receiving party's investigation, each receiving party
understands that neither the disclosing party nor any of its
Representatives has made or makes any representation or
warranty as to the accuracy or completeness of the
Evaluation Material. Each receiving party agrees that
neither the disclosing party nor any of its Representatives
shall have any liability to the receiving party or any of
its Representatives resulting from the use of the Evaluation
Material.
18. This Agreement shall be binding upon the
respective successors in interest and permitted assigns of
the parties hereto and shall inure to the benefit of, and be
enforceable by, the respective successors in interest and
permitted assigns of the parties hereto; provided, however,
that neither this Agreement nor any of the rights, interests
or obligations hereunder shall be assigned by a party hereto
without the prior written consent of the other party hereto.
19. This Agreement may be executed in one or more
counterparts. Each such counterpart shall be deemed to be
an original instrument, but all such counterparts taken
together shall constitute one and the same agreement.
Please confirm the agreement of Entergy with the foregoing
by signing and returning to the undersigned the duplicate
copy of this Agreement enclosed herewith.
Very truly yours,
FPL GROUP, INC.,
by
Name:
Title:
Confirmed and agreed as
of the date first written
above:
ENTERGY CORPORATION,
by
Name:
Title:
EXHIBIT B
Joint Press Release