Exhibit 2
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
DENNIS P. COYLE
-----------------------------------------------
Name:
Dennis P. Coyle
-----------------------------------------------
Title:
General Counsel
-----------------------------------------------
ENTERGY CORPORATION, for itself and its affiliates,
by
J. WAYNE LEONARD
-----------------------------------------------
Name:
J. Wayne Leonard
-----------------------------------------------
Title:
Chief Executive Officerl
-----------------------------------------------
WCB HOLDING CORP.,
by
DENNIS P. COYLE
----------------------------------------------
Name:
Dennis P. Coyle
----------------------------------------------
Title:
Vice President
----------------------------------------------
RANGER ACQUISITION CORP.,
by
Dennis P. COYLE
----------------------------------------------
Name:
Dennis P. Coyle
----------------------------------------------
Title:
Vice President
----------------------------------------------
RING ACQUISITION CORP.,
by
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
DENNIS P. COYLE
--------------------------
Name: Dennis P. Coyle
--------------------------
Title: General Counsel
Confirmed and agreed as of the date first
written above:
ENTERGY CORPORATION,
by
C. J. WILDER
----------------------------------
Name: C. J. Wilder
Title: CFO
Exhibit B
[Logo of FPL Group] [Logo of Entergy]
For Release: Immediate
Contacts for FPL Group: Contacts for Entergy:
Mary Lou Kromer Horace Webb (Media)
Contact person (Media) 504-576-4360
561-694-6464 hwebb2@entergy.com
Lisa Kuzel Nancy Morovich
(Investor Relations) (Investor Relations)
561-694-4697 504-576-5506
lisa_kuzel@fpl.com nmorovi@entergy.com
FPL GROUP AND ENTERGY TERMINATE MERGER AGREEMENT
Juno Beach, FL and New Orleans, LA (April 2, 2001) - FPL Group, Inc. (NYSE:
FPL) and Entergy Corporation (NYSE: ETR) today announced the termination,
by mutual decision, of the merger agreement they signed last July.
Both companies agreed that no termination fee is payable under the
terms of the merger agreement as a result of this termination. A fee will
be payable if within nine months of the termination one party agrees to a
substantially comparable transaction with another party. Each company will
bear its own merger-related expenses. The companies said that they would
withdraw merger-related filings currently pending before federal, state,
and local regulatory agencies.
FPL Group, with annual revenues of more than $7 billion, is one of
the nation's largest providers of electricity-related services with a
generating capacity of more than 23,000 megawatts. Its principal
subsidiary, Florida Power & Light, serves 3.9 million customer accounts in
Florida. FPL Group employs 11,350 employees and operates in 17 states. FPL
Energy, LLC, FPL Group's independent power production subsidiary, is a
leader in generating electricity from clean and renewable fuels.
Entergy Corporation, with annual revenues of more than $10
billion, is a major global energy company engaged in power production,
distribution operations, and related diversified services, with more than
13,800 employees. Entergy owns, manages or invests in power plants
generating more than 30,000 megawatts of electricity domestically and
internationally and delivers electricity to about 2.6 million customers in
portions of Arkansas, Louisiana, Mississippi and Texas. Through Entergy-
Koch, L.P., it is also a leading provider of wholesale energy marketing and
trading services.
Safe Harbor Statement under the Private Securities Litigation Reform Act of
1995
This press release contains forward looking statements within the
meaning of the "safe harbor" provisions of the United States Private
Securities Litigation Reform Act of 1995. Investors are cautioned that such
forward-looking statements with respect to revenues, earnings, performance,
strategies, prospects and other aspects of the businesses of FPL Group,
Inc. and Entergy Corporation are based on current expectations that are
subject to risk and uncertainties. A number of factors could cause actual
results or outcomes to differ materially from those indicated by such
forward looking statements. These factors include, but are not limited to,
risks and uncertainties relating to: changes in laws or regulations,
changing governmental policies and regulatory actions with respect to
allowed rates of return including but not limited to return on equity and
equity ratio limits, industry and rate structure, operation of nuclear
power facilities, acquisition, disposal, depreciation and amortization of
assets and facilities, operation and construction of plant facilities,
recovery of fuel and purchased power costs, decommissioning costs, present
or prospective wholesale and retail competition (included but not limited
to retail wheeling and transmission costs), political and economic risks,
changes in and compliance with environmental and safety laws and policies,
weather conditions (including natural disasters such as hurricanes),
population growth rates and demographic patterns, competition for retail
and wholesale customers, availability, pricing and transportation of fuel
and other energy commodities, market demand for energy from plants or
facilities, changes in tax rates or policies or in rates of inflation or in
accounting standards, unanticipated delays or changes in costs for capital
projects, unanticipated changes in operating expenses and capital
expenditures, capital market conditions, competition for new energy
development opportunities and legal and administrative proceedings (whether
civil, such as environmental, or criminal) and settlements and other
factors. Readers are referred to FPL Group, Inc.'s and Entergy
Corporation's most recent reports filed with the Securities and Exchange
Commission.