Exhibit 10
STOCK PURCHASE AGREEMENT
by and among
CEMAS CORPORATION,
LA PLATA I, INC.,
PSEG AMERICAS OPERATING COMPANY,
PSEG AMERICAS INC.,
PSEG AMERICAS LTD.,
and
PSEG CAYMAN AMERICAS V COMPANY
(as Sellers)
and
AES ARGENTINA INVESTMENTS, LTD.,
and
LA PLATA III, INC.
(as Buyers)
and
AES ARGENTINA OPERATIONS LTD.
Dated as of August 24, 2001
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINED TERMS
1.1 DEFINED TERMS.........................................................1
1.2 REFERENCES AND TITLES.................................................1
ARTICLE 2
SALE AND PURCHASE OF THE INTERESTS
2.1 AGREEMENT TO SELL AND BUY.............................................2
2.2 PURCHASE PRICE........................................................2
2.3 FIRST CLOSING.........................................................2
2.4 ACTIONS TO OCCUR AT FIRST CLOSING.....................................3
2.5 SECOND CLOSING........................................................5
2.6 ACTIONS TO OCCUR AT SECOND CLOSING....................................6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS.........................7
3.2 REPRESENTATIONS AND WARRANTIES OF THE BUYERS..........................9
3.3 REPRESENTATIONS AND WARRANTIES OF AES OPERATIONS.....................10
ARTICLE 4
ADDITIONAL AGREEMENTS OF THE SELLERS
4.1 REASONABLE EFFORTS; DUTY TO COOPERATE................................11
4.2 ANTITRUST FILING.....................................................12
4.3 ADDITIONAL INTERESTS.................................................12
4.4 TERMINATION OF CERTAIN AGREEMENTS....................................12
4.5 CERTAIN DIVIDENDS AND OTHER DISTRIBUTIONS............................12
ARTICLE 5
ADDITIONAL AGREEMENTS OF THE BUYERS
5.1 REASONABLE EFFORTS; DUTY TO COOPERATE................................12
5.2 SURETY BONDS, LETTERS OF CREDIT, GUARANTEES, ETC.....................13
5.3 DIRECTORS' AND OFFICERS' INDEMNIFICATION.............................13
i
5.4 CORPORATE REORGANIZATION.............................................14
5.5 PAYMENT OF AMOUNTS OWED TO THE SELLERS...............................14
5.6 POST-FIRST CLOSING PAYMENT...........................................14
5.7 TRANSFER OF OPERATORSHIP.............................................14
5.8 SHAREHOLDERS' AND QUOTAHOLDERS MEETINGS; AMENDMENT OF BY-LAWS........14
5.9 ANTITRUST FILING.....................................................14
5.10 TERMINATION OF CERTAIN AGREEMENTS....................................15
ARTICLE 6
CONDITIONS PRECEDENT TO FIRST CLOSING
6.1 CONDITIONS TO EACH PARTY'S OBLIGATIONS...............................15
6.2 CONDITIONS TO OBLIGATIONS OF THE BUYERS..............................16
6.3 CONDITIONS TO OBLIGATIONS OF THE SELLERS.............................16
ARTICLE 7
CONDITIONS PRECEDENT TO SECOND CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF AES CAYMAN, CEMAS AND
PSEG AMERICAS OPERATING.............................................17
7.2 CONDITIONS TO OBLIGATIONS OF AES CAYMAN..............................17
7.3 CONDITIONS TO OBLIGATIONS OF CEMAS AND PSEG AMERICAS OPERATING.......17
ARTICLE 8
TERMINATION
8.1 TERMINATION..........................................................18
8.2 EFFECT OF TERMINATION................................................19
ARTICLE 9
INDEMNIFICATION
9.1 INDEMNIFICATION OF THE BUYERS........................................19
9.2 INDEMNIFICATION OF THE SELLERS.......................................19
9.3 DEFENSE OF THIRD-PARTY CLAIMS........................................19
9.4 NO DUPLICATION.......................................................20
9.5 CONTRIBUTORY OBLIGATIONS.............................................20
ii
ARTICLE 10
GENERAL PROVISIONS
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES...........................21
10.2 FURTHER ACTIONS......................................................21
10.3 AMENDMENT, MODIFICATION AND WAIVER...................................22
10.4 SEVERABILITY.........................................................22
10.5 EXPENSES AND OBLIGATIONS.............................................22
10.6 PARTIES IN INTEREST..................................................22
10.7 NOTICES..............................................................22
10.8 COUNTERPARTS.........................................................24
10.9 ENTIRE AGREEMENT.....................................................24
10.10 GOVERNING LAW; CHOICE OF FORUM.......................................24
10.11 JURY TRIAL WAIVER....................................................24
10.12 PUBLIC ANNOUNCEMENTS.................................................24
10.13 ASSIGNMENT...........................................................25
10.14 INTERPRETATION.......................................................25
iii
ANNEX I COMPANIES AND INTERESTS
ANNEX II DEFINITIONS
EXHIBITS:
- ---------
Exhibit A FORM OF NOTE PURCHASE AGREEMENT
Exhibit B-1 FORM OF OPINION OF LATHAM & WATKINS
Exhibit B-2 FORM OF OPINION OF GENERAL COUNSEL OF THE AES CORPORATION
Exhibit B-3 FORM OF OPINION OF MAPLES AND CALDER
Exhibit B-4 FORM OF OPINION OF ESTUDIO O'FARRELL
Exhibit C FORM OF AES FIRST CLOSING WAIVER
Exhibit D FORM OF AMENDED AND RESTATED EDEN/EDES
SHAREHOLDERS AGREEMENT
Exhibit E FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Exhibit F FORM OF STOCK USUFRUCT AGREEMENT
Exhibit G FORM OF RESIGNATION LETTER AND WAIVER OF DIRECTORS AND
OFFICERS OF THE COMPANIES
Exhibit H-1 FORM OF OPINION OF VINSON & ELKINS L.L.P.
Exhibit H-2 FORM OF OPINION OF CONYERS DILL & PEARMAN
Exhibit H-3 FORM OF OPINION OF MAPLES AND CALDER
Exhibit H-4 FORM OF OPINION OF BERETTA KAHALE GODOY
Exhibit H-5 FORM OF OPINION OF DAVID R. GARCIA
Exhibit I FORM OF PSEG FIRST CLOSING WAIVER
Exhibit J FORM OF PSEG SECOND CLOSING WAIVER
Exhibit K FORM OF AES SECOND CLOSING WAIVER
Exhibit L FORM OF AES SHARES AGREEMENT
SCHEDULES:
- ----------
Schedule 2.2(a) CERTAIN AMOUNTS TO BE INCLUDED IN AES SHARES AMOUNT
Schedule 2.2(b) ALLOCATION OF PURCHASE PRICE
Schedule 2.4(b)(ii) DIRECTORS, OFFICERS, ETC. OF THE COMPANIES TO RESIGN AT
FIRST CLOSING
Schedule 2.6(b) DIRECTORS, OFFICERS, ETC. OF THE COMPANIES TO RESIGN AT
SECOND CLOSING
Schedule 3.1(c) SELLERS CONSENTS
Schedule 3.1(d) LIENS ON INTERESTS
Schedule 3.1(g) LIENS ON CAMILLE, LTD. SHARES
Schedule 3.1(h) LIENS ON EDEN/EDES SHARES
Schedule 3.2(c) BUYERS CONSENTS
Schedule 3.3(c) AES OPERATIONS CONSENTS
Schedule 3.3(d) LIENS ON PSEG AMERICAS OPERATING SHARES
Schedule 5.2 SELLER AGREEMENTS
Schedule 5.4 CORPORATE REORGANIZATION
Schedule 5.5 AMOUNTS OWED TO SELLERS
Schedule 9.2 CERTAIN INDEMNIFIED MATTERS
iv
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") dated as of August 24,
2001, by and among CEMAS Corporation, a Delaware corporation ("CEMAS"), La Plata
I, Inc., a Delaware corporation ("La Plata I"), PSEG Americas Operating Company,
a Cayman Islands exempted company ("PSEG Americas Operating"), PSEG Americas
Inc., a Delaware corporation ("PSEG Americas Inc."), PSEG Americas Ltd., a
Bermuda limited liability company ("PSEG Americas"), and PSEG Cayman Americas V
Company, a Cayman Islands exempted company ("PSEG Cayman V") and, together with
CEMAS, La Plata I, PSEG Americas Operating, PSEG Americas Inc., PSEG Americas
Ltd. and PSEG Cayman V, the "Sellers"), and AES Argentina Investments, Ltd., a
Cayman Islands exempted company ("AES Cayman"), and La Plata III, Inc., a
Delaware corporation ("La Plata III" and, together with AES Cayman, the
"Buyers"), and AES Argentina Operations, Ltd., a Cayman Islands exempted company
("AES Operations"). Sellers, Buyers and AES Operations are referred to
individually as a "Party" and collectively as the "Parties."
R E C I T A L S
A. The Sellers own the issued and outstanding interests listed on
Annex I (the "Interests") in the Companies (as hereinafter defined).
B. The Sellers desire to sell and the Buyers desire to buy all the
Interests upon the terms and conditions set forth in this Agreement.
C. AES Operations owns 10,057,589 participating shares (9.999%) of
PSEG Americas Operating (the "PSEG Americas Operating Shares") and PSEG
Americas Operating desires to repurchase such shares and AES Operations
desires to sell such shares upon the terms and conditions set forth in
this Agreement.
A G R E E M E N T S
NOW, THEREFORE, in consideration of the respective representations,
warranties, agreements, and conditions hereinafter set forth, and other good and
valuable consideration, the sufficiency of which is hereby acknowledged, the
Parties hereto hereby agree as follows:
ARTICLE 1
DEFINED TERMS
1.1 Defined Terms. Capitalized terms used but not otherwise defined herein
shall have the meanings given such terms in Annex II.
1.2 References and Titles. Titles appearing at the beginning of any
Articles, Sections, subsections, or other subdivisions of this Agreement are for
convenience only, do not constitute any part of the Articles, Sections,
subsections, or other subdivisions, and shall be disregarded in construing the
language contained therein. The words "this Agreement," "hereby," "herein,"
"hereof," and "hereunder," and words of similar import, refer to this Agreement
as a whole and not to any particular subdivision unless expressly so limited.
The words "this Section," "this subsection," and words of similar import, refer
only to the Sections or subsections hereof in which such words occur. The word
"or" is not exclusive, and the word
including" (in its various forms) means "including without limitation." Pronouns
in masculine, feminine, or neuter genders shall be construed to state and
include any other gender and words, terms, and titles (including terms defined
herein) in the singular form shall be construed to include the plural and vice
versa, unless the context otherwise expressly requires. Unless the context
otherwise requires, all defined terms contained herein shall include the
singular and plural and the conjunctive and disjunctive forms of such defined
terms.
ARTICLE 2
SALE AND PURCHASE OF THE INTERESTS
2.1 Agreement to Sell and Buy. Upon the terms and subject to the
conditions set forth in this Agreement, (i) the Sellers shall sell, assign,
transfer and deliver to the Buyers on the First Closing Date, and the Buyers
shall purchase on the First Closing Date, all of the Interests set forth
opposite their names on Annex I, excluding the Additional Interests, for the
consideration set forth in Section 2.2(a) and (ii) CEMAS and PSEG Americas
Operating shall assign, transfer and deliver to AES Cayman on the Second Closing
Date, and AES Cayman shall receive on the Second Closing Date, all of the
Additional Interests.
2.2 Purchase Price.
(a) The Purchase Price for the Interests and the other rights
transferred to the Buyers and their Affiliates as contemplated by this Agreement
and the Stock USUFRUCT Agreement, which shall be paid as provided in Section
2.4(a)(i), shall consist of the following consideration:
(i) the AES Shares or, at the Buyers' option, immediately available
Dollars in an amount equal to the AES Shares Amount; and
(ii) the AES Cayman Notes.
(b) The Purchase Price shall be paid by the Buyers and allocated
among the Sellers as provided in Schedule 2.2(b). Each of the Sellers and the
Buyers agree that it will not take, nor permit any of its Affiliates to take, a
position on any Tax return, before any Governmental Authority charged with the
collection of Taxes, or in any judicial proceeding that is inconsistent with the
allocations set forth in Schedule 2.2(b).
2.3 First Closing. Subject to the satisfaction or waiver of the conditions
set forth in Article 6, the First Closing will take place (a) at the offices of
Vinson & Elkins L.L.P., Houston, Texas, at 10:00 a.m., local time on the third
Business Day following the date on which the conditions specified in Article 6
(other than the conditions specified in Sections 6.2(c) and 6.3(d) which shall
be satisfied on the First Closing Date) have been satisfied or waived, but in no
event later than August 24, 2002 or (b) at such other place and time as the
Sellers and the Buyers may agree (the "First Closing Date").
2
2.4 Actions to Occur at First Closing.
(a) Buyers' Deliveries. At the First Closing, the Buyers shall
deliver or cause to be delivered to the Sellers the following:
(i) Purchase Price. The Purchase Price by:
(A) delivery of stock certificates representing the AES
Shares allocated among and duly registered in the names of the
Sellers as set forth in Schedule 2.2(b) or, at the Buyers'
option, immediately available Dollars in an amount equal to
the AES Shares Amount; and
(B) delivery of the AES Cayman Notes allocated among and
payable to the Sellers as set forth in Schedule 2.2(b).
(ii) Note Purchase Agreement. A counterpart of the Note
Purchase Agreement in the form attached hereto as Exhibit A executed by
AES Cayman;
(iii) Pledge Agreements. A counterpart of the Pledge
Agreements executed by each of the Pledgors;
(iv) Buyers' Opinions of Counsel. The opinion of Latham &
Watkins, dated the First Closing Date in the form attached hereto as
Exhibit B-1, the opinion of William R. Luraschi, General Counsel of The
AES Corporation, dated the First Closing Date in the form attached hereto
as Exhibit B-2, the opinion of Maples and Calder, dated the First Closing
Date in the form attached hereto as Exhibit B-3, and the opinion of
Estudio O'Farrell, dated the First Closing Date in the form attached
hereto as Exhibit B-4;
(v) Certificates. The certificates referred to in Sections
6.3(a) and 6.3(b);
(vi) Authorization and Good Standing. A copy of each Buyer's
and AES Operations' corporate resolutions regarding the transactions
contemplated hereby and in the Transaction Documents, certified by its
secretary or assistant secretary, and a certificate of good standing for
each Buyer and AES Operations from the Secretary of State of the state of
its incorporation;
(vii) Waiver. A waiver from The AES Corporation, on behalf of
itself and its Affiliates, in the form attached hereto as Exhibit C;
(viii) Amended and Restated EDEN/EDES Shareholders Agreement.
A counterpart of the Amended and Restated Shareholders Agreement (the
"Amended and Restated EDEN/EDES Shareholders Agreement") in the form
attached hereto as Exhibit D executed by AES Ocean Springs Ltd., AES Rio
Diamante Inc., and AESEBA S.A.;
3
(ix) Assignment and Assumption Agreement. A counterpart of the
Assignment and Assumption Agreement in the form attached hereto as Exhibit
E, executed by AES Argentina Operations Ltd.;
(x) Stock USUFRUCT Agreement. A counterpart of the Stock
USUFRUCT Agreement (the "Stock USUFRUCT Agreement"), in the form attached
hereto as Exhibit F, executed by AES Cayman; and
(xi) AES Shares Agreement. A counterpart of the AES Shares
Agreement, in the form attached hereto as Exhibit L, executed by The AES
Corporation.
(b) Sellers' Deliveries. At the First Closing, the Sellers shall
deliver or cause to be delivered to the Buyers the following:
(i) Certificates. Certificates representing the Interests
(other than the Additional Interests (which shall be delivered at the
Second Closing) and the Interests in the Quota Companies), endorsed in
blank or accompanied by duly executed assignment documents;
(ii) Resignations. The resignations, effective as of the First
Closing Date, of each of the directors, managers, syndics and officers of
the Companies and other entities identified on Schedule 2.4(b)(ii), or
their respective successors, including a waiver from each such director,
manager, syndic and officer in the form attached hereto as Exhibit G;
(iii) Sellers' Opinions of Counsel. The opinion of Vinson &
Elkins L.L.P., dated the First Closing Date in the form attached hereto as
Exhibit H-1, the opinion of Conyers Dill & Pearman, dated the First
Closing Date in the form attached hereto as Exhibit H-2, the opinion of
Maples and Calder, dated the First Closing Date in the form attached
hereto as Exhibit H-3, the opinion of Beretta Kahale Godoy, dated the
First Closing Date in the form attached hereto as Exhibit H-4 and the
opinion of David R. Garcia, dated the First Closing Date in the form
attached hereto as Exhibit H-5;
(iv) Certificates. The certificates referred to in Sections
6.2(a) and 6.2(b);
(v) Authorization and Good Standing. A copy of each Seller's
corporate resolutions regarding the transactions contemplated hereby and
in the Transaction Documents, certified by its secretary or assistant
secretary, and a certificate of good standing for each Seller from the
Secretary of State or other appropriate officer of the state or other
jurisdiction of its incorporation;
(vi) Waiver. A waiver from PSEG Global Inc., on behalf of
itself and its Affiliates, in the form attached hereto as Exhibit I;
(vii) Amended and Restated EDEN/EDES Shareholders Agreement. A
counterpart of the Amended and Restated EDEN/EDES Shareholders Agreement
in the
4
form attached hereto as Exhibit D executed by PSEG Americas Operating,
CEMAS, and PSEG Operating Argentina S.A.;
(viii) Assignment and Assumption Agreement. A counterpart of
the Assignment and Assumption Agreement, in the form attached hereto as
Exhibit E, executed by PSEG Americas Ltd.;
(ix) Stock USUFRUCT Agreement. A counterpart of the Stock
USUFRUCT Agreement, in the form attached hereto as Exhibit F, executed by
CEMAS and PSEG Americas Operating; and
(x) AES Shares Agreement. A counterpart of the AES Shares
Agreement, in the form attached hereto as Exhibit L, executed by CEMAS, La
Plata I and PSEG Americas Inc.
(c) Quotaholders Meetings. At or prior to the First Closing, the
Parties shall cause the Quota Companies to hold quotaholders meetings to approve
the transfer of the quotas on the First Closing Date, to amend the by-laws of
the Quota Companies to reflect the transfer of the quotas, to change the name of
any Quota Companies bearing the PSEG name and to duly register the amended
by-laws in the Public Registry of Commerce.
(d) Shareholders Meetings. At or prior to the First Closing, the
Parties shall cause the Companies and their respective Affiliates to hold
shareholders meetings to approve the resignations and performance of the
resigning directors, managers, syndics and officers of the Companies and the
other entities identified on Schedule 2.4(b)(ii), or their respective successors
and to change the name of any Companies bearing the PSEG name.
(e) Repurchase.
(i) At the First Closing, AES Operations shall sell, assign,
transfer and deliver to PSEG Americas Operating, and PSEG Americas
Operating shall repurchase, the PSEG Americas Operating Shares. As
consideration for the repurchase of the PSEG Americas Operating Shares,
PSEG Americas Operating shall transfer to AES Operations 210,834 shares
(9.9982%) of PSEG Operating Argentina (the "PSEG Operating Argentina
Shares") and AES Operations shall either cancel or convert to capital of
PSEG Americas Operating all indebtedness owed to AES Operations by PSEG
Americas Operating, as directed by PSEG Americas Operating.
(ii) At the First Closing, AES Operations and PSEG Americas
Operating shall deliver to the other certificates representing the shares
transferred to each other as provided under Section 2.4(e)(i), endorsed in
blank or accompanied by duly executed assignment documents.
2.5 Second Closing. Subject to the satisfaction or waiver of the
conditions set forth in Article 7, the Second Closing will take place (a) at the
offices of Vinson & Elkins L.L.P., Houston, Texas, at 10:00 a.m., local time on
the Business Day on which the conditions specified
5
in Article 7 have been satisfied or waived or (b) at such other place and time
as Sellers and Buyers may agree (the "Second Closing Date").
2.6 Actions to Occur at Second Closing.
(a) Deliveries of CEMAS and PSEG Americas Operating. At the Second
Closing, CEMAS and PSEG Americas Operating shall deliver or cause to be
delivered to AES Cayman the following:
(i) Certificates. Certificates representing the Additional
Interests, endorsed in blank or accompanied by duly executed assignment
documents.
(ii) Resignations. The resignations, effective as of the
Second Closing Date, of each of the directors, managers, syndics and
officers of the Companies and the other entities identified on Schedule
2.6(b), or their respective successors, including a waiver from each such
director, manager, syndic and officer in the form attached hereto as
Exhibit G.
(iii) Opinions of Counsel. The opinions of (A) Vinson & Elkins
L.L.P., (B) David R. Garcia, and (C) Maples and Calder, each dated the
Second Closing Date and confirming as of the Second Closing Date the
opinions delivered by such counsel delivered at the First Closing.
(iv) Waiver. A waiver from PSEG Global Inc., on behalf of
itself and its Affiliates, in the form attached hereto as Exhibit J.
(b) Deliveries of AES Cayman. At the Second Closing, AES Cayman
shall deliver or cause to be delivered to the Sellers the following:
(i) Opinions of Counsel. The opinions of (A) Latham & Watkins,
(B) William R. Luraschi, General Counsel of The AES Corporation, and (C)
Maples and Calder, each dated the Second Closing Date and confirming as of
the Second Closing Date the opinions delivered by such counsel at the
First Closing; and
(ii) Waiver. A waiver from The AES Corporation, on behalf of
itself and its Affiliates, in the form attached hereto as Exhibit K.
(c) Shareholders Meetings. At or prior to the Second Closing, the
Parties shall cause the Companies and their respective Affiliates to hold
shareholders meetings to approve the resignations and performance of the
resigning directors, managers, syndics and officers of the Companies and the
other entities identified on Schedule 2.6(b).
6
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
3.1 Representations and Warranties of the Sellers. Each Seller represents
and warrants to the Buyers as follows:
(a) Organization, Good Standing, Etc. Such Seller is a corporation
or company, as the case may be, duly incorporated, validly existing and in good
standing under the laws of the state or other jurisdiction of its incorporation
and has all requisite corporate power and authority to own, lease and operate
its properties and to carry on its business as now being conducted.
(b) Authority. Such Seller has all requisite corporate power and
authority to enter into this Agreement, and each other agreement, document, and
instrument required to be executed in accordance herewith (collectively, the
"Transaction Documents") to which it is a party and to consummate the
transactions contemplated hereby and thereby. The execution and delivery by such
Seller of this Agreement and the Transaction Documents to which it is a party
and the consummation by it of the transactions contemplated hereby and thereby
have been duly authorized by all necessary corporate action on the part of such
Seller. This Agreement has been duly executed and delivered by such Seller, and
upon the execution and delivery by it of the Transaction Documents to which it
is a party, such Transaction Documents will be duly executed and delivered by
such Seller, and (assuming due authorization, execution and delivery by the
Buyers) constitute, or upon execution and delivery by it will constitute, the
valid and binding obligations of such Seller, enforceable against it in
accordance with their terms, subject as to enforceability to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in
equity).
(c) No Conflict; Required Filings and Consents. The execution and
delivery by such Seller of this Agreement and the Transaction Documents to which
it is a party do not, and the performance by such Seller of the transactions
contemplated hereby and thereby will not (i) violate, conflict with, or result
in any breach of any provision of its Certificate or Articles of Incorporation,
Bylaws or other organizational documents, (ii) violate, conflict with, or result
in a violation or breach of, or constitute a default (with or without due notice
or lapse of time or both) under, or permit the termination of, or result in the
acceleration of, or entitle any party to accelerate any obligation, or result in
the loss of any benefit, or give any Person the right to require any security to
be repurchased, or give rise to the creation of any Lien upon any of the
Interests, or affect its rights under any of the terms, conditions, or
provisions of any loan or credit agreement, note, bond, mortgage, indenture, or
deed of trust, or any license, lease, agreement, or other instrument or
obligation to which it is a party or by which or to which it or the Interests
may be bound or subject, or (iii) violate any Applicable Law; except in the case
of clauses (ii) and (iii) of this Section 3.1(c) for any such violations,
conflicts, breaches, defaults, rights of termination, cancellation or
acceleration, benefits, repurchase rights, Liens or effects that are disclosed
on Schedule 3.1(c). Except as disclosed on Schedule 3.1(c), no Consent of any
Governmental Authority or other third party is required by or with respect to
such Seller or any
7
of its Affiliates in connection with the execution and delivery by such Seller
of this Agreement or any of the other Transaction Documents to which such Seller
is a party or the consummation by such Seller of the transactions contemplated
hereby or thereby.
(d) Interests. Such Seller owns the Interests in the Companies set
forth opposite its name on Annex I free and clear of any Liens, other than the
Liens disclosed on Schedule 3.1(d).
(e) Litigation. As of the date hereof, there is no claim, action,
suit, inquiry, judicial or administrative proceeding, grievance, or arbitration
pending or, to the knowledge of such Seller, threatened against any of the
Sellers or any of their Affiliates relating to the transactions contemplated by
this Agreement or the Transaction Documents.
(f) Broker's Fees. Neither such Seller nor any of its Affiliates has
engaged any agent, broker, investment banker, or other Person that will be
entitled to any broker's or finder's fee or any other commission or fee payable
by the Buyers, the Companies or any of their Affiliates in connection with any
of the transactions contemplated by this Agreement or the Transaction Documents.
(g) Wildwood I. (i) Wildwood I, Ltd, ("Wildwood I") is a Cayman
Islands exempted company and was duly incorporated and is validly existing and
in good standing under the laws of the Cayman Islands, (ii) Wildwood I has all
requisite corporate power and authority to own, lease and operate its properties
and to carry on its business as now being conducted; (iii) since the date of
Wildwood I's incorporation, Wildwood I has conducted no operations other than in
connection with its ownership of 333.4 shares (33.34%) of Class B Common Stock
of Camille, Ltd. (the "Camille, Ltd. Shares"), (iv) Wildwood I owns the Camille
Ltd. Shares free and clear of any Liens, other than the Liens disclosed on
Schedule 3.1(g), and (v) Wildwood I has filed all tax returns that are required
to have been filed by it pursuant to applicable foreign, state, local or other
law, and has paid all taxes due for the periods covered by such returns.
(h) PSEG Operating Argentina (i) PSEG Operating Argentina is an
Argentine sociedad anonima and was duly incorporated and is validly existing and
in good standing under the laws of Argentina, (ii) PSEG Operating Argentina has
all requisite corporate power and authority to own, lease and operate its
properties and to carry on its business as now being conducted; (iii) since the
date of PSEG Operating Argentina's incorporation, PSEG Operating Argentina has
conducted no operations other than in connection with its ownership of
92,130,330 Class A Shares and 46,044,433 Class B Shares of EDEN and 33,503,278
Class A Shares and 16,744,103 Class B Shares of EDES (collectively, the
"EDEN/EDES Shares"), (iv) PSEG Operating Argentina owns the EDEN/EDES Shares
free and clear of any Liens, other than the Liens disclosed on Schedule 3.1(h),
and (v) PSEG Operating Argentina has filed all tax returns that are required to
have been filed by it pursuant to applicable foreign, state, local or other law,
and has paid all taxes due for the periods covered by such returns.
8
3.2 Representations and Warranties of the Buyers. Each Buyer represents
and warrants to the Sellers as follows:
(a) Organization; Good Standing; Etc. Such Buyer is a corporation
duly incorporated, validly existing, and in good standing under the laws of the
state or other jurisdiction of its incorporation and has all requisite corporate
power and authority to own, lease, and operate its properties and to carry on
its business as now being conducted.
(b) Authority. Such Buyer has all requisite power and authority to
enter into this Agreement and the other Transaction Documents to which it is a
party and to consummate the transactions contemplated hereby and thereby. The
execution and delivery of this Agreement by such Buyer and the Transaction
Documents to which it is a party and the consummation by it of the transactions
contemplated hereby and thereby have been duly authorized by all necessary
corporate action on the part of such Buyer. This Agreement has been duly
executed and delivered by such Buyer, and upon execution and delivery by it of
the Transaction Documents to which it is a party, such Transaction Documents
will be duly executed and delivered by such Buyer, and (assuming due
authorization, execution and delivery by the Sellers) constitute, or upon
execution and delivery by it will constitute, the valid and binding obligations
of such Buyer, enforceable against it in accordance with their terms, subject as
to enforceability to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium, and similar laws affecting creditors' rights and
remedies generally and to general principles of equity (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(c) No Conflict; Required Filings and Consents. The execution and
delivery by such Buyer of this Agreement and the Transaction Documents to which
it is a party do not, and the performance by such Buyer of the transactions
contemplated hereby and thereby will not (i) violate, conflict with, or result
in any breach of any provisions of its Certificate of Incorporation or Bylaws,
(ii) violate, conflict with, or result in a violation or breach of, or
constitute a default (with or without due notice or lapse of time or both)
under, or permit the termination of, or result in the acceleration of, or
entitle any party to accelerate any obligation, or result in the loss of any
benefit, or give any Person the right to require any security to be repurchased,
or give rise to the creation of any Lien upon any of the AES Shares, or affect
its rights under any of the terms, conditions, or provisions of any loan or
credit agreement, note, bond, mortgage, indenture, or deed of trust, or any
license, lease, agreement, or other instrument or obligation to which it is a
party or by which or to which it or any of its assets may be bound or subject,
or (iii) violate any Applicable Law; except in the case of clauses (ii) and
(iii) of this Section 3.2(c) for any such violations, conflicts, breaches,
defaults, rights of termination, cancellation or acceleration, benefits,
repurchase rights, Liens or effects that are disclosed on Schedule 3.2(c).
Except as disclosed on Schedule 3.2(c), no Consent of any Governmental Authority
or other third party is required by or with respect to such Buyer or any of its
Affiliates in connection with the execution and delivery by such Buyer of this
Agreement or any of the other Transaction Documents to which such Buyer is a
party or the consummation by such Buyer of the transactions contemplated hereby
or thereby, including the corporate reorganization of it and its Affiliates
contemplated under Section 5.4.
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(d) Litigation. As of the date hereof, there is no claim, action,
suit, inquiry, judicial or administrative proceeding, grievance, or arbitration
pending or, to the knowledge of such Buyer, threatened against any of the Buyers
or their Affiliates relating to the transactions contemplated by this Agreement
or the Transaction Documents.
(e) Broker's Fee. Neither such Buyer nor any of its Affiliates has
engaged any agent, broker, investment banker or other Person that will be
entitled to any broker's or finder's fee or any other commission or fee from any
of the Sellers or any of their Affiliates in connection with any of the
transactions contemplated by this Agreement or the Transaction Documents.
(f) Investment. Such Buyer is acquiring the Interests solely for its
own beneficial account, for investment purposes only, and not with a view to, or
for resale in connection with, any distribution of the Interests.
3.3 Representations and Warranties of AES Operations. AES Operations
represents and warrants to the Sellers as follows:
(a) Organization; Good Standing; Etc. AES Operations is a
corporation duly incorporated, validly existing, and in good standing
under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease, and operate its
properties and to carry on its business as now being conducted.
(b) Authority. AES Operations has all requisite power and authority
to enter into this Agreement and the other Transaction Documents to which
it is a party and to consummate the transactions contemplated hereby and
thereby. The execution and delivery of this Agreement by AES Operations
and the Transaction Documents to which it is a party and the consummation
by it of the transactions contemplated hereby and thereby have been duly
authorized by all necessary corporate action on the part of AES
Operations. This Agreement has been duly executed and delivered by AES
Operations, and upon execution and delivery by it of the Transaction
Documents to which it is a party, such Transaction Documents will be duly
executed and delivered by AES Operations, and (assuming due authorization,
execution and delivery by the Sellers) constitute, or upon execution and
delivery by it will constitute, the valid and binding obligations of AES
Operations, enforceable against it in accordance with their terms, subject
as to enforceability to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium, and similar laws affecting
creditors' rights and remedies generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law
or in equity).
(c) No Conflict; Required Filings and Consents. The execution and
delivery by AES Operations of this Agreement and the Transaction Documents
to which it is a party do not, and the performance by AES Operations of
the transactions contemplated hereby and thereby will not (i) violate,
conflict with, or result in any breach of any provisions of its
Certificate of Incorporation or Bylaws, (ii) violate, conflict with, or
result in a violation or breach of, or constitute a default (with or
without due notice or
10
lapse of time or both) under, or permit the termination of, or result in
the acceleration of, or entitle any party to accelerate any obligation, or
result in the loss of any benefit, or give any Person the right to require
any security to be repurchased, or give rise to the creation of any Lien
upon any of the shares to be redeemed by it, or affect its rights under
any of the terms, conditions, or provisions of any loan or credit
agreement, note, bond, mortgage, indenture, or deed of trust, or any
license, lease, agreement, or other instrument or obligation to which it
is a party or by which or to which it or any of its assets may be bound or
subject, or (iii) violate any Applicable Law. Except as disclosed on
Schedule 3.3(c), no Consent of any Governmental Authority or other third
party is required by or with respect to AES Operations or any of its
Affiliates in connection with the execution and delivery by AES Operations
of this Agreement or any of the other Transaction Documents to which AES
Operations is a party or the consummation by AES Operations of the
transactions contemplated hereby or thereby, including the corporate
reorganization of it and its Affiliates contemplated under Section 5.5.
(d) Interests. AES Operations owns the PSEG Americas Operating
Shares free and clear of any Liens, other than the Liens disclosed on
Schedule 3.3(d).
ARTICLE 4
ADDITIONAL AGREEMENTS OF THE SELLERS
4.1 Reasonable Efforts; Duty to Cooperate. Each of the Sellers shall use
its reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary or advisable to consummate the
transactions contemplated by this Agreement, including obtaining all Consents
that are required to permit the consummation of the transactions contemplated by
this Agreement. In addition, each Seller shall use its reasonable efforts to
cooperate with the Buyers in causing the conditions precedent set forth in
Articles 6 and 7 to occur on or prior to August 24, 2002. In the event that the
Parties do not receive all of the Consents necessary or advisable to consummate
the transactions contemplated by this Agreement, upon the request of the Buyers,
the Sellers shall negotiate in good faith with the Buyers to restructure the
transactions contemplated by this Agreement in such a manner as to enable the
transactions contemplated hereby to be consummated without the receipt of such
Consents, provided that the Sellers shall have no obligation to agree to any
such restructured transactions that have or could reasonably be expected to have
an adverse impact on the Sellers or on the economics of the transactions to the
Sellers taken as a whole as compared to the economics of the transactions to the
Sellers taken as a whole prior to such restructuring. If the Buyers desire to
restructure the corporate reorganization of the Buyers and their Affiliates
prior to the First Closing in a manner different than is set forth on Schedule
5.4, then, upon the request of the Buyers, the Sellers shall negotiate in good
faith with the Buyers to accommodate such restructuring, provided that the
Sellers shall have no obligation to agree to any such restructuring that has or
could reasonably be expected to have an adverse impact on the Sellers or on the
economics of the transactions to the Sellers taken as a whole as compared to the
economics of the transactions to the Sellers taken as a whole prior to such
restructuring.
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4.2 Antitrust Filing. Within 15 Business Days of the date of this
Agreement, the Sellers shall prepare and file or cause to be prepared and filed
jointly with the Sellers a consultative opinion with the appropriate
Governmental Authority relating to compliance with Argentine antitrust law
number 25.156 and related regulations in connection with the transactions
contemplated by this Agreement. The Sellers shall also prepare and file or cause
to be prepared and filed any other documents or materials that may be required
or requested by any Governmental Authority relating to compliance with Argentine
antitrust law number 25.156 and related regulations.
4.3 Additional Interests. Other than the Liens disclosed on Schedule
3.1(d), the Sellers shall maintain the Additional Interests free and clear of
any Liens arising by, through or under the Sellers during the period beginning
on the First Closing Date and ending on the Second Closing Date.
4.4 Termination of Certain Agreements. (a) On the First Closing Date, the
Sellers shall or shall cause their Affiliates to enter into agreements (i)
terminating the Shareholder Agreements that do not terminate by their terms on
the First Closing Date, other than the Amended and Restated EDEN/EDES
Shareholders Agreement, and (ii) confirming in writing the termination of the
Shareholder Agreements that terminate by their terms on the First Closing Date.
(b) On the Second Closing Date, the Sellers shall or shall cause their
Affiliates to enter into agreements terminating the Amended and Restated
EDEN/EDES Shareholders Agreement and terminating or, if permitted by the
Ministry, assigning to the operator of EDEN and EDES appointed by the Buyers,
the Technical Assistance Agreements and the Operating Support Agreements.
4.5 Certain Dividends and Other Distributions. The Buyers shall be
entitled to receive all dividends, distributions, returns and reductions of
capital by or with respect to the Companies and/or the Operating Subsidiaries
(as such term is defined in the Note Purchase Agreement) accrued or payable
after December 31, 2000 and prior to July 1, 2001, other than the PSEG Amounts
(as such term is defined in the Payment Agreement of even date herewith by and
between The AES Corporation and PSEG Global Inc.). The Buyers' right to receive
the amounts provided for under this Section 4.5 is absolute, irrevocable and
unconditional irrespective of: (a) the occurrence (or failure to occur) of the
First Closing; (b) the cause underlying any termination of this Agreement; (c)
the value, genuineness, validity, regularity or enforceability of the
Transaction Documents; or (d) any obligation or liability of the Buyers (or any
of their Affiliates) to the Sellers (or any of their Affiliates).
ARTICLE 5
ADDITIONAL AGREEMENTS OF THE BUYERS
5.1 Reasonable Efforts; Duty to Cooperate. Each of the Buyers shall use
its reasonable efforts to take, or cause to be taken, all action, and to do, or
cause to be done, all things necessary or advisable to consummate the
transactions contemplated by this Agreement,
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including obtaining all Consents that are required to permit the consummation of
the transactions contemplated by this Agreement. In addition, each Buyer shall
use its reasonable efforts to cooperate with the Sellers in causing the
conditions precedent set forth in Articles 6 and 7 to occur on or prior to
August 24, 2002. In the event that the Parties do not receive all of the
Consents necessary or advisable to consummate the transactions contemplated by
this Agreement, upon the request of the Sellers, the Buyers shall negotiate in
good faith with the Sellers to restructure the transactions contemplated by this
Agreement in such a manner as to enable the transactions contemplated hereby to
be consummated without the receipt of such Consents, provided that the Buyers
shall have no obligation to agree to any such restructured transactions that
have or could reasonably be expected to have an adverse impact on the Buyers or
on the economics of the transactions to the Buyers taken as a whole as compared
to the economics of the transactions to the Buyers taken as a whole prior to
such restructuring.
5.2 Surety Bonds, Letters of Credit, Guarantees, Etc. AES Cayman shall
cause all surety bonds, letters of credit, guarantees, equity contribution
agreements, support agreements, comfort letters and other similar agreements and
arrangements that the Sellers or their Affiliates have entered into or provided
on behalf of any of the Companies or their Affiliates and that remain
outstanding on the First Closing Date (collectively, the "Seller Agreements") to
be replaced or terminated as of the First Closing Date with no further
obligation or liability to the Sellers or their Affiliates. Schedule 5.2 lists
all of the Seller Agreements known to the Sellers.
5.3 Directors' and Officers' Indemnification.
(a) Survival of Indemnification. To the fullest extent not
prohibited by Applicable Law, from and after the First Closing Date, AES Cayman
shall cause all rights to indemnification now existing in favor of the
directors, officers, managers and syndics of the Companies identified on
Schedule 2.4(b)(ii) and Schedule 2.6(b) and any former directors, officers,
managers and syndics of the Companies that were nominees of the Sellers or their
Affiliates with respect to their activities as such prior to or on the First
Closing Date, as provided in their respective articles of incorporation, bylaws,
other organizational documents or indemnification agreements in effect on the
date of such activities or otherwise in effect on the date of this Agreement, to
survive the First Closing and to continue in full force and effect for a period
of not less than six years from the First 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.
(b) Successors. In the event that any of the Companies or any of
their respective successors or assigns (i) consolidates with or merges into any
other Person and is not the continuing or surviving corporation or entity of
such consolidation or merger or (ii) transfers all or substantially all of its
assets to any Person, then AES Cayman shall cause proper provision to be made so
that the successors and assigns of the Companies shall assume the obligations
set forth in this Section 5.3.
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5.4 Corporate Reorganization. The Buyers and their Affiliates shall take
the actions necessary in order to complete the corporate reorganization of the
Buyers and their Affiliates prior to the First Closing as set forth on Schedule
5.4.
5.5 Payment of Amounts Owed to the Sellers.
(a) Within five Business Days of the date of this Agreement, AES
Cayman shall pay or cause its Affiliates to pay, as the case may be, to the
Sellers or their Affiliates, as the case may be, in Dollars, the amounts listed
on Schedule 5.5 that are owed to the Sellers or their Affiliates.
(b) Between the date of this Agreement and the First Closing Date,
AES Cayman shall pay or cause its Affiliates to pay, as the case may be, to the
Sellers and their Affiliates, in Dollars, any amounts due or that become due to
the Sellers and their Affiliates in connection with the Companies during such
period, if any.
5.6 Post-First Closing Payment. If the net proceeds received by the
Sellers from the sale of the AES shares after the payment of all expenses
related to the sale of the AES Shares (including sales or brokerage commissions)
shall be less than the AES Shares Amount, AES Cayman shall, within three
Business Days of the Sellers' written request, pay to the Sellers by wire
transfer of immediately available funds the difference between the AES Shares
Amount and the net proceeds received by the Sellers from such sale; provided
that if the Sellers do not sell all of the AES Shares during the period
commencing on and including the First Closing Date and ending on and including
the third Trading Day after the First Closing Date, AES Cayman's obligation
under this Section 5.6 shall be calculated as if the AES Shares that were not
sold by the Sellers during such period had been sold at the AES Weighted Average
Sales Price.
5.7 Transfer of Operatorship. Within 30 days of the date of this
Agreement, the Buyers shall apply to the Ministry of Public Works and Services
(the "Ministry") of the Province of Buenos Aires or any other entity that might
replace the Ministry in the future as the Province's energy regulator for the
approval of the appointment effective as of the Second Closing of an Affiliate
of The AES Corporation as the operator of EDEN and EDES and the removal
effective as of the Second Closing of PSEG Americas Operating as the operator of
EDEN and EDES.
5.8 Shareholders' and Quotaholders Meetings; Amendment of By-laws. The
Buyers shall cause to be called shareholders' or quotaholders' meetings, as the
case may be, of the Companies to approve the actions of directors or managers
appointed by the Sellers and, with respect to the Quota Companies, to amend the
by-laws of the Quota Companies to reflect the transfer of the quotas, to change
the name of any Companies and Quota Companies bearing the PSEG name and to duly
register the amended by-laws with the Public Registry of Commerce.
5.9 Antitrust Filing. Within 15 Business Days of the date of this
Agreement, the Buyers shall prepare and file or cause to be prepared and filed
jointly with the Sellers a consultative opinion with the appropriate
Governmental Authority relating to compliance with Argentine antitrust law
number 25.156 and related regulations in connection with the transactions
contemplated by this Agreement. The Buyers shall also prepare and file or cause
to be prepared and filed any other documents or materials that may be required
or requested by any
14
Governmental Authority relating to compliance with Argentine antitrust law
number 25.156 and related regulations.
5.10 Termination of Certain Agreements. (a) On the First Closing Date, the
Buyers and AES Operations shall or shall cause their Affiliates to enter into
agreements (i) terminating the Shareholder Agreements that do not terminate by
their terms on the First Closing Date, other than the Amended and Restated
EDEN/EDES Shareholders Agreement, and (ii) confirming in writing the termination
of the Shareholder Agreements that terminate by their terms on the First Closing
Date. (b) On the Second Closing Date, the Buyers shall or shall cause their
Affiliates to enter into agreements terminating the Amended and Restated
EDEN/EDES Shareholders Agreement and terminating or, if permitted by the
Ministry, assigning to the operator of EDEN and EDES appointed by the Buyers,
the Technical Assistance Agreements and the Operating Support Agreements.
ARTICLE 6
CONDITIONS PRECEDENT TO FIRST CLOSING
6.1 Conditions to Each Party's Obligations. The respective obligations of
the Parties to consummate the transactions contemplated to occur at the First
Closing are subject to the satisfaction at or prior to the First Closing of the
following conditions unless waived in writing, in whole or in part, by the
Parties:
(a) Consents. All Consents by, or declarations or filings with, or
expirations of waiting periods imposed by, any Governmental Authority or other
third party necessary for the consummation of the transactions contemplated by
this Agreement to occur on or prior to the First Closing (including the Consents
listed on Schedule 3.1(c) and Schedule 3.2(c) that are required prior to the
First Closing) shall have been obtained, filed, or occurred, as the case may be;
provided, however, if the Buyers are unable to obtain the Consents required to
complete the corporate reorganization of the Buyers and their Affiliates prior
to the First Closing as set forth on Schedule 5.4 on or before December 31,
2001, the Buyers will either abandon such corporate reorganization and acquire
the Interests pursuant to the terms of this Agreement or restructure the
corporate reorganization of the Buyers and their Affiliates in a manner that
allows the Buyers to obtain the required Consents, provided that the Sellers
shall have no obligation to agree to any such restructuring that has or could
reasonably be expected to have an adverse impact on the Sellers or on the
economics of the transactions to the Sellers taken as a whole as compared to the
economics of the transactions to the Sellers taken as a whole prior to such
restructuring.
(b) No Injunctions or Restraints. No temporary restraining order,
preliminary or permanent injunction, or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated hereby shall be in effect.
(c) No Action. No action shall have been taken nor any statute,
rule, or regulation shall have been enacted by any Governmental Authority that
makes the consummation of the transactions contemplated hereby illegal.
15
(d) Antitrust Approval. If required by the appropriate Governmental
Authority, the Argentina Antitrust Approval shall have been obtained.
6.2 Conditions to Obligations of the Buyers. The obligation of the Buyers
to consummate the transactions contemplated to occur at the First Closing is
subject to the satisfaction at or prior to the First Closing of the following
conditions unless waived in writing, in whole or in part, by the Buyers:
(a) Representations and Warranties. The representations and
warranties of the Sellers set forth in this Agreement shall be true and correct
in all material respects (provided that any representation or warranty of the
Sellers contained herein that is qualified by a materiality standard shall not
be further qualified hereby) as of the date of this Agreement and as of the
First Closing as though made at and as of the First Closing, and the Buyers
shall have received a certificate to that effect signed on behalf of each Seller
by an officer of that Seller.
(b) Performance of Obligations. The Sellers shall have performed in
all material respects (provided that any covenant or agreement of the Sellers
contained herein that is qualified by a materiality standard shall not be
further qualified hereby) all obligations required to be performed by them under
this Agreement at or prior to the First Closing, and the Buyers shall have
received a certificate to that effect signed on behalf of each Seller by an
officer of that Seller.
(c) Closing Deliveries. All documents, instruments, certificates or
other items required to be delivered to the Buyers and AES Operations pursuant
to Section 2.4 shall have been delivered.
(d) Political Risk Event. A Political Risk Event shall not have
occurred and be continuing.
6.3 Conditions to Obligations of the Sellers. The obligation of the
Sellers to consummate the transactions contemplated to occur at the First
Closing is subject to the satisfaction at or prior to the First Closing of the
following conditions unless waived in writing, in whole or in part, by the
Sellers.
(a) Representations and Warranties. The representations and
warranties of the Buyers and AES Operations set forth in this Agreement shall be
true and correct in all material respects (provided that any representation or
warranty of the Buyers or AES Operations contained herein that is qualified by a
materiality standard shall not be further qualified hereby) as of the date of
this Agreement and as of the First Closing as though made at and as of the First
Closing, and the Sellers shall have received a certificate to that effect signed
on behalf of each Buyer and AES Operations by an officer of that Buyer and AES
Operations, respectively.
(b) Performance of Obligations. The Buyers and AES Operations shall
have performed in all material respects (provided that any covenant or agreement
of the Buyers or AES Operations contained herein that is qualified by a
materiality standard shall not be further qualified hereby) the obligations
required to be performed by it under this Agreement at or prior to the First
Closing, and the Sellers shall have received a certificate to that effect signed
on
16
behalf of each Buyer and AES Operations by an officer of that Buyer and AES
Operations, respectively.
(c) Closing Deliveries. All documents, instruments, certificates or
other items required to be delivered to the Sellers pursuant to Section 2.4
shall have been delivered.
(d) Note Purchase Agreement. All of the conditions to closing under
Article 4 of the Note Purchase Agreement shall have been satisfied or waived in
writing by the Sellers.
ARTICLE 7
CONDITIONS PRECEDENT TO SECOND CLOSING
7.1 Conditions to Obligations of AES Cayman, CEMAS and PSEG Americas
Operating. The respective obligations of AES Cayman, CEMAS and PSEG Americas
Operating to consummate the transactions contemplated to occur at the Second
Closing are subject to the satisfaction at or prior to the Second Closing of the
following conditions unless waived in writing, in whole or in part, by AES
Cayman, CEMAS and PSEG Americas Operating:
(a) First Closing. The First Closing shall have occurred.
(b) Ministry Approval. CEMAS, PSEG Americas Operating, PSEG
Operating Argentina, EDEN and EDES shall have received the approval of the
Ministry for the transfer and assignment of the Additional Interests to AES
Cayman.
7.2 Conditions to Obligations of AES Cayman. The obligation of AES Cayman
to consummate the transactions contemplated to occur at the Second Closing is
subject to the satisfaction at or prior to the Second Closing of the following
conditions unless waived in writing, in whole or in part, by AES Cayman:
(a) Additional Interests. CEMAS and PSEG Americas Operating shall
own the Additional Interests free and clear of any Liens, other than the Liens
disclosed on Schedule 3.1(d).
(b) Closing Deliveries. All documents, instruments, certificates or
other items required to be delivered to AES Cayman pursuant to Section 2.6 shall
have been delivered.
7.3 Conditions to Obligations of CEMAS and PSEG Americas Operating. The
obligations of CEMAS and PSEG Americas Operating to consummate the transactions
contemplated to occur at the Second Closing are subject to the satisfaction at
or prior to the Second Closing of the following conditions unless waived in
writing, in whole or in part, by CEMAS and PSEG Americas Operating:
(a) Transfer of Operatorship. PSEG Americas Operating shall have
been removed as the operator of EDEN and EDES and an Affiliate of The AES
Corporation shall have been approved by the Ministry as the operator of EDEN and
EDES.
17
(b) All documents, instruments, certificates or other items required
to be delivered to CEMAS and PSEG Americas Operating pursuant to Section 2.6
shall have been delivered.
ARTICLE 8
TERMINATION
8.1 Termination. This Agreement may be terminated prior to the First
Closing:
(a) by mutual written consent of the Sellers and the Buyers;
(b) by either the Sellers, on the one hand, or the Buyers, on the
other hand, by delivering written notice to the other Party;
(i) if a court of competent jurisdiction or other Governmental
Authority shall have issued an order, decree, or ruling or taken any other
action (which order, decree or ruling the parties hereto shall use their
reasonable efforts to lift), in each case permanently restraining,
enjoining, or otherwise prohibiting the transactions contemplated by this
Agreement and the other Transaction Documents, and such order, decree,
ruling, or other action shall have become final and nonappealable; or
(ii) if the First Closing shall not have occurred on or before
August 24, 2002; provided, however, that the right to terminate this
Agreement under this clause (iii) shall not be available to any Party
whose breach of this Agreement has been the cause of, or resulted in, the
failure of the First Closing to occur on or before such date;
(c) by the Buyers, upon written notice to the Sellers, if either (i)
there has been a violation or breach by the Sellers of any of the agreements,
representations or warranties of the Sellers contained in this Agreement which,
if not cured, would cause the conditions set forth in Sections 6.1 and 6.2 not
to be satisfied and such breach is not cured by the earlier of the First Closing
Date or the date 30 days after receipt by the Sellers of notice specifying in
reasonable detail the nature of such breach, unless the Buyers shall have
previously waived such breach in writing or (ii) a Political Risk Event shall
have occurred; and
(d) by the Sellers, upon written notice to the Buyers, if there has
been a violation or breach by the Buyers of any of the agreements,
representations or warranties of the Buyers contained in this Agreement, which,
if not cured, would cause the conditions set forth in Sections 6.1 and 6.3 not
to be satisfied and such breach is not cured by the earlier of the First Closing
Date or the date 30 days after receipt by the Buyers of notice specifying in
reasonable detail the nature of such breach, unless the Sellers shall have
previously waived such breach in writing.
The right of any Party hereto to terminate this Agreement pursuant to this
Section 8.1 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any Party hereto, any Person
controlling any such party or any of their respective
18
officers, directors, employees, accountants, consultants, legal counsel, agents,
or other representatives whether prior to or after the execution of this
Agreement. Notwithstanding anything in the foregoing to the contrary, no Party
that is in material breach of this Agreement shall be entitled to terminate this
Agreement except with the consent of the other Party.
8.2 Effect of Termination. In the event of termination of this Agreement
pursuant to Section 8.1, this Agreement shall become null and void and of no
further effect and there shall be no liability or obligation hereunder on the
part of the Sellers or the Buyers or any of their respective directors,
officers, employees, Affiliates, controlling Persons, agents or representatives,
except that the Sellers, on the one hand, or the Buyers, on the other hand, as
the case may be, may have liability to the other Party if the basis of
termination is on account of a material breach by any of such Parties of one or
more of the provisions of this Agreement. Notwithstanding the foregoing, in the
event of any termination of this Agreement, the provisions of Sections 4.5, 8.2
and 10.5 shall survive any such termination.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification of the Buyers. From and after the First Closing, each
of the Sellers agree, jointly and severally, to indemnify, defend and hold
harmless the Buyer Indemnified Parties from and against any and all Buyer
Indemnified Costs.
9.2 Indemnification of the Sellers. From and after the First Closing, AES
Cayman agrees to indemnify, defend and hold harmless the Seller Indemnified
Parties from and against any and all Seller Indemnified Costs.
9.3 Defense of Third-Party Claims. A Person who is entitled to
indemnification under this Article 9 (an "Indemnified Party") shall give written
notice to any Person who is obligated to provide indemnification under this
Article 9 (an "Indemnifying Party"), within 30 days after it has actual
knowledge of commencement or assertion of any action, proceeding, demand, or
claim by a third party (collectively, a "third-party action") in respect of
which such Indemnified Party shall seek indemnification hereunder. Any failure
so to notify an Indemnifying Party shall not relieve such Indemnifying Party
from any liability that it, he, or she may have to such Indemnified Party under
this Article 9 unless the failure to give such notice materially and adversely
prejudices such Indemnifying Party. The Indemnifying Party shall have the right
to assume control of the defense of, settle, or otherwise dispose of such
third-party action on such terms as it deems appropriate consistent with
Applicable Laws and its obligations hereunder; provided, however, that:
(a) The Indemnified Party shall be entitled, at its own expense, to
participate in the defense of such third-party action (provided, however, that
the Indemnifying Party shall pay the reasonable attorneys' fees of the
Indemnified Party if (i) the employment of separate counsel shall have been
authorized in writing by such Indemnifying Party in connection with the defense
of such third-party action, or (ii) the Indemnified Party's counsel shall have
advised the Indemnified Party in writing, with a copy delivered to the
Indemnifying Party, that there is a
19
conflict of interest that could make it inappropriate under applicable standards
of professional conduct to have common counsel).
(b) The Indemnifying Party shall obtain the prior written approval
of the Indemnified Party before entering into or making any settlement,
compromise, admission, or acknowledgment of the validity of such third-party
action or any liability in respect thereof if, pursuant to or as a result of
such settlement, compromise, admission, or acknowledgment, injunctive or other
equitable relief would be imposed against the Indemnified Party or if, in the
reasonable opinion of the Indemnified Party, such settlement, compromise,
admission, or acknowledgment could have a material adverse effect on its
business;
(c) No Indemnifying Party shall consent to the entry of any judgment
or enter into any settlement that does not include as an unconditional term
thereof the giving by each claimant or plaintiff to each Indemnified Party of a
release from all liability in respect of such third-party action; and
(d) The Indemnifying Party shall not be entitled to control (but
shall be entitled to participate at its own expense in the defense of), and the
Indemnified Party shall be entitled to have sole control over, the defense or
settlement, compromise, admission, or acknowledgment of any third-party action
(i) as to which the Indemnifying Party fails to assume the defense within a
reasonable length of time or (ii) to the extent the third-party action seeks an
order, injunction, or other equitable relief against the Indemnified Party
which, if successful, would materially adversely affect the business,
operations, assets, or financial condition of the Indemnified Party; provided,
however, that the Indemnified Party shall make no settlement, compromise,
admission, or acknowledgment that would give rise to liability on the part of
any Indemnifying Party without the prior written consent of such Indemnifying
Party, such consent not to be unreasonably withheld.
The Parties hereto shall extend reasonable cooperation in connection with
the defense of any third-party action pursuant to this Article 9 and, in
connection therewith, shall furnish such records, information, and testimony and
attend such conferences, discovery proceedings, hearings, trials, and appeals as
may be reasonably requested.
9.4 No Duplication. Any liability for indemnification hereunder shall be
determined without duplication of recovery by reason of the state of facts
giving rise to such liability constituting a breach of more than one
representation, warranty, covenant or agreement.
9.5 Contributory Obligations.
(a) Notwithstanding anything to the contrary in this Agreement, (i)
the Indemnifying Party shall only indemnify the Indemnified Party for damages to
the extent not covered by insurance, and (ii) the Indemnifying Party's
indemnification obligations shall be subject to and reduced (or eliminated, as
the case may be) to the extent any court of competent jurisdiction determines
that an Indemnified Party was partially or wholly at fault due to its negligence
or other wrongful act or to the extent that strict liability is imposed upon an
Indemnified Party as a matter of law.
20
(b) In the event that both the Buyers and the Sellers are
adjudicated negligent or otherwise at fault or strictly liable without fault
with respect to damage or injuries sustained by the third party claimant, the
contractual obligation of indemnification under this Agreement shall continue
but the Buyers and the Sellers shall indemnify the other only for the percentage
of responsibility for the damage or injuries adjudicated to be attributed to it.
In such a situation, it is intended that, to the extent either the Buyers or the
Sellers pay such third party claimant for its costs, losses, liabilities,
expenses and/or judgments attributed to the percentage of negligence, fault or
liability of the other, these obligations of indemnification shall function as a
contractual arrangement of contribution. This contractual arrangement of
contribution shall survive settlement of the underlying third party claim and
shall apply to voluntary settlements made by either the Buyers or the Sellers
with the third party.
ARTICLE 10
GENERAL PROVISIONS
10.1 Survival of Representations and Warranties. Regardless of any
investigation at any time made by or on behalf of any Party hereto or of any
information any Party may have in respect thereof, each of the representations
and warranties made hereunder or pursuant hereto or in connection with the
transactions contemplated hereby shall survive the First Closing but, except as
provided in Section 8.2, shall not survive any termination of this Agreement.
Except as otherwise provided in this Section 10.1, the representations and
warranties set forth in this Agreement shall terminate as of the close of
business on the second anniversary of the First Closing Date, except that this
time limitation shall not apply to any claims for fraud or the representation of
the Sellers under Sections 3.1(d), 3.1(g)(v) and 3.1(h)(v), which shall survive
for the applicable statute of limitations period. Following the date of
termination of a representation or warranty, no claim can be brought with
respect to a breach of such representation or warranty, but such termination
shall not affect any claim for a breach of a representation or warranty that was
asserted before the date of termination.
10.2 Further Actions.
(a) After the First Closing Date, each of the Sellers and the Buyers
shall execute and deliver such other certificates, agreements, conveyances, and
other documents, and take such other action, as may be reasonably requested by
the other Party in order to consummate more effectively the transactions
contemplated to occur at the First Closing, including to transfer and assign to,
and vest in (i) the Buyers, the Interests, excluding the Additional Interests,
and (ii) the Sellers, the AES Shares under the terms of this Agreement.
(b) After the Second Closing Date, each of the Sellers and AES
Cayman shall execute and deliver such other certificates, agreements,
conveyances, and other documents, and take such other action, as may be
reasonably requested by the other Party in order to consummate more effectively
the transactions contemplated to occur at the Second Closing, including to
transfer and assign to, and vest in AES Cayman, the Additional Interests under
the terms of this Agreement.
21
10.3 Amendment, Modification and Waiver. This Agreement may not be amended
except by an instrument in writing signed by the Parties hereto. Any failure of
the Sellers on the one hand, or the Buyers, on the other hand, to comply with
any obligation, covenant, agreement, or condition contained herein may be waived
only if set forth in an instrument in writing signed by the Party or Parties to
be bound thereby, but such waiver or failure to insist upon strict compliance
with such obligation, covenant, agreement or condition shall not operate as a
waiver of, or estoppel with respect to, any other failure.
10.4 Severability. If any term or other provision of this Agreement is
invalid, illegal, or incapable of being enforced by any rule of Applicable Law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein are not affected in any manner
materially adverse to any Party. Upon such determination that any term or other
provision is invalid, illegal, or incapable of being enforced, the Parties
hereto shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the Parties as closely as possible in a mutually
acceptable manner in order that the transactions contemplated herein are
consummated as originally contemplated to the fullest extent possible.
10.5 Expenses and Obligations. Except as otherwise expressly provided in
this Agreement, all costs and expenses incurred by, or on behalf of, the Parties
hereto in connection with, or in anticipation of, this Agreement and the
consummation of the transactions contemplated hereby shall be borne solely and
entirely by the Party which has incurred such expenses. Any transfer tax, sales
tax, withholding tax, use tax, stamp tax, stock transfer tax or other similar
tax, including any penalties, interest and additions to tax imposed by reason of
the transactions contemplated by this Agreement shall be borne by the Buyers;
provided, however, that the Buyers shall have no liability with respect to any
such amounts attributable to any taxable gain of the Sellers in connection with
the sale, disposition or conveyance of any of the Interests pursuant to this
Agreement as determined by a court of competent jurisdiction pursuant to a final
non-appealable judgment.
10.6 Parties in Interest. This Agreement shall be binding upon and, except
as provided below, inure solely to the benefit of each Party hereto and their
successors and permitted, assigns, and nothing in this Agreement, express or
implied, is intended to confer upon any other Person (other than the Buyer
Indemnified Parties and Seller Indemnified Parties as provided in Article 9) any
rights or remedies of any nature whatsoever under or by reason of this
Agreement).
10.7 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or mailed by
registered or certified mail (return receipt requested) to the parties at the
following addresses (or at such other address for a party as shall be specified
by like notice):
22
(a) If to the Sellers:
c/o PSEG Americas 220 Alhambra Circle, Suite 800
Coral Gables, FL 33134 U.S.A.
Attn.: President
Attn.: Regional General Counsel
Fax No.: (305) 913-3035
with a copy to:
PSEG Americas - Argentina
Cerrito 1050, Piso 4
1010 Capital Federal
Buenos Aires, Argentina
Attn.: Business Manager - Argentina
Fax No.: 5411-4816-4403
(b) If to the Buyers:
c/o AES Andes
AV. Libertador 602, 13th Floor
C1001 ABT - Bs. - As. - Argentina
Attn.: Joseph C. Brandt
Fax No.: 54-11-4816-6605
with a copy to:
The AES Corporation
1001 N. 19th Street
Arlington, Virginia 22209
Attn.: Joseph C. Brandt
Fax No.: (703) 528-4510
Latham & Watkins
233 S. Wacker Drive, Suite 5800
Chicago, IL 60606-6401
Attn.: David K. Rathgeber
Fax No.: (312) 993-9767
Estudio O'Farrell
Av. de Mayo 645/651
Buenos Aires, Argentina 1084
Attn.: Uriel F. O'Farrell
Fax No.: 54-11-4331-1659
23
All notices, requests or instructions given in accordance herewith shall be
deemed given (i) on the date of delivery, if hand delivered, (ii) on the date of
receipt, if telecopied, (iii) three business days after the date of mailing, if
mailed by registered or certified mail, return receipt requested, and (iv) one
Business Day after the date of sending, if sent by Federal Express or other
recognized overnight courier.
10.8 Counterparts. This Agreement may be executed and delivered (including
by facsimile transmission) in one or more counterparts, all of which shall be
considered one and the same agreement and shall become effective when one or
more counterparts have been signed by each of the Parties and delivered to the
other Parties, it being understood that all Parties need not sign the same
counterpart.
10.9 Entire Agreement. This Agreement (which term shall be deemed to
include the exhibits and schedules hereto and the other certificates, documents
and instruments delivered hereunder) constitutes the entire agreement of the
Parties hereto and supersedes all prior agreements, letters of intent and
understandings, both written and oral, among the Parties with respect to the
subject matter hereof. There are no representations or warranties, agreements,
or covenants other than those expressly set forth in this Agreement.
10.10 Governing Law; Choice of Forum. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION
5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK WITH
RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT. THE PARTIES HEREBY IRREVOCABLY AGREE THAT ALL CLAIMS IN RESPECT OF
SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED IN THE COURTS OF THE
STATE OF NEW YORK IN THE COUNTY OF NEW YORK OR OF THE UNITED STATES FOR THE
SOUTHERN DISTRICT OF NEW YORK.
10.11 Jury Trial Waiver. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH
OF THE PARTIES IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
OR ANY MATTER ARISING HEREUNDER.
10.12 Public Announcements. Except as otherwise agreed to by the Parties,
no Party shall issue any statement or press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated
hereby, except as in the reasonable judgment of such Party may be required by
(a) the Securities Act, the Exchange Act or other Applicable Law or (b) any
listing agreement with any national securities exchange or the National
Association of Securities Dealers, Inc., in which case the Parties shall consult
with each other before issuing any press release or otherwise making any public
statement with respect to this Agreement or the
24
transactions contemplated hereby as to the language of any such press release or
public statement.
10.13 Assignment. Neither this Agreement nor any of the rights, interests,
or obligations hereunder shall be assigned by any of the Parties hereto, whether
by operation of law or otherwise, except that prior to the First Closing the
Buyers may assign their rights, interests, and obligations hereunder to a wholly
owned subsidiary of The AES Corporation so long as such assignment does not have
and could not reasonably be expected to have an adverse impact on the Sellers or
on the economics of the transactions contemplated hereby to the Sellers taken as
a whole as compared to the economics of the transactions contemplated hereby to
the Sellers taken as a whole prior to such assignment and after the First
Closing the Buyers may assign their rights, interests, and obligations hereunder
in connection with a transaction permitted under Section 10.2 of the Note
Purchase Agreement.
10.14 Interpretation. References herein to the knowledge of any Party, or
matters or information known to any such Party mean the actual knowledge or
conscious awareness, after reasonable investigation and due inquiry, of such
Party.
[Remainder of page intentionally left blank]
25
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
signed as of the date first written above.
CEMAS CORPORATION
By: _________________________________
Name: _________________________________
Title: _________________________________
LA PLATA I, INC.
By: _________________________________
Name: _________________________________
Title: _________________________________
PSEG AMERICAS OPERATING COMPANY
By: _________________________________
Name: _________________________________
Title: _________________________________
PSEG AMERICAS INC.
By: _________________________________
Name: _________________________________
Title: _________________________________
PSEG AMERICAS LTD.
By: _________________________________
Name: _________________________________
Title: _________________________________
PSEG CAYMAN AMERICAS V COMPANY
By: _________________________________
Name: _________________________________
Title: _________________________________
AES ARGENTINA INVESTMENTS, LTD.
By: _________________________________
Name: _________________________________
Title: _________________________________
LA PLATA III, INC.
By: _________________________________
Name: _________________________________
Title: _________________________________
AES ARGENTINA OPERATIONS LTD.
By: _________________________________
Name: _________________________________
Title: _________________________________
ANNEX I
COMPANIES AND INTERESTS
SELLER BUYER COMPANY INTERESTS
------ ----- ------- ---------
[CTSN]
CEMAS AES Cayman Inversora de San Nicolas, 3,726,386 shares of Class C Stock
S.A.
[EDELAP]
La Plata I La Plata III La Plata Partners LP 33.33% limited partner interest
PSEG Americas Inc. La Plata III La Plata II, Inc. 3.4 shares of common stock, par value
$1.00 per share;
0.34 shares of preferred stock, par
value $10.00 per share(1)
PSEG Americas Ltd. AES Cayman Wildwood I, Ltd. 50,000 shares
[EDEN/EDES]
PSEG Americas Operating AES Cayman PSEG Operating Argentina S.A. 2,108,545 ordinary shares(2)
CEMAS AES Cayman PSEG Operating Argentina S.A. 176 ordinary shares(3)
- ----------
(1) Pursuant to the Trust Agreement, dated as of June 24, 1998, as amended on
November 6, 1998, PSEG Americas Inc. transferred to the Wilmington Trust
Company, as Trustee of a Delaware Trust (the "Trustee") certificates
representing one share of preferred stock of La Plata I owned by it and
0.34 of a share of preferred stock of La Plata II owned by it, thereby
conveying legal title in such preferred stock to the Trustee. PSEG
Americas Inc. retains its beneficial interest in such preferred stock, and
will transfer this beneficial interest to AES.
(2) Of these shares, 210,834 shares (9.9982%) will be transferred to AES
Operations at the First Closing as consideration for the repurchase by
PSEG Americas Operating of 10,057,589 participating shares held by AES
Operations. The beneficial ownership in the remaining 1,893,711 shares
(89.9935%) will be transferred by usufruct on the First Closing Date. The
legal title to the remaining shares will be transferred on the Second
Closing Date.
(3) All of the beneficial ownership in these shares will be transferred by
usufruct on the First Closing Date. The legal title to these shares will
be transferred on the Second Closing Date.
I-1
SELLER BUYER COMPANY INTERESTS
------ ----- ------- ---------
[PARANA]
PSEG Cayman V AES Cayman Shazia S.R.L. 166 Quotas; an undivided 33.33% in one
Quota(4)
PSEG Cayman V AES Cayman AES Parana Operations S.R.L. 166 Quotas; an undivided 33.33%
interest in one Quota(4)
PSEG Cayman V AES Cayman AES Parana S.C.A. 3,960 shares
PSEG Cayman V AES Cayman AES Parana Gas S.A. 39,996 shares
PSEG Cayman V AES Cayman AES Parana Propiedades S.A. 39,996 shares
- ----------
(4) The other undivided 66.67% interest in the one Quota is owned by AES
Parana I Ltd
I-2
ANNEX II
DEFINITIONS
The following terms shall have the following meanings in this Agreement:
"Additional Interests" means the (i) 1,893,711 ordinary shares
(89.9935%) of PSEG Operating Argentina S.A., an Argentine sociedad anonima,
owned by PSEG Americas Operating, (ii) the 176 ordinary shares in PSEG Operating
Argentina S.A., an Argentine sociedad anonima, owned by CEMAS.
"AES Argentina" has the meaning set forth in the first paragraph of
this Agreement.
"AES Cayman Notes" means the promissory notes of AES Cayman in the
aggregate principal amount of $338,800,000 issued under the Note Purchase
Agreement.
"AES Common Stock" means the common stock, par value $0.01 per
share, of The AES Corporation.
"AES Shares" means the number of shares of AES Common Stock equal to
(a) the AES Shares Amount divided by (b) the Closing Price.
"AES Shares Amount" means the sum of (a) $37,200,000 and (b) an
amount equal to any contributions that the Sellers or any of their Affiliates
have made, or will make, to the capital of any of the Companies during the
period commencing on January 1, 2001 and ending on the First Closing Date (all
contributions made by the Sellers as of the date hereof are listed on Schedule
2.2(a)).
"AES Weighted Average Sales Price" means the weighted average sales
price of the AES Common Stock on the New York Stock Exchange during the period
commencing on and including the First Closing Date and ending on and including
the third Trading Day after the First Closing Date.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with such Person. As used in
this definition, "control" (and correlative terms) means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"Agreement" has the meaning set forth in the first paragraph.
"Amended and Restated EDEN/EDES Shareholders Agreement" has the
meaning set forth in Section 2.4(a)(viii).
"Annexes" means the Annexes attached to this Agreement.
"Applicable Laws" means all laws, statutes, rules, regulations,
ordinances, judgments, settlements, orders, decrees, injunctions, privatization
bidding rules (pliegos),
II-1
concessions and writs of any Governmental Authority having jurisdiction over any
of the Parties or the Companies or any of their operations or assets.
"Argentina Antitrust Approval" shall mean the resolution secured
from the Argentina Antitrust Commission or any equivalent Governmental Authority
as may be required: (i) responding to a consultative opinion filed by the Buyers
and Sellers stating that no filing or approval from such Governmental
Authorities is required; (ii) if filing is ordered, such filing is approved
without any conditions that require the Buyers, the Sellers, the Companies, or
their respective Affiliates to dispose of a material portion of their assets or
otherwise materially adversely affect the Buyers, the Sellers, the Companies, or
their respective Affiliates or (iii) if the filing is ordered, the statutory
term set forth by Law 25,156, as amended, expires without the issuance of any
resolution.
"Business Day" means any day other than (i) a Saturday or Sunday or
(ii) a day on which commercial banks in New York, New York or Buenos Aires,
Argentina are authorized or required to be closed.
"Buyers" has the meaning set forth in the first paragraph of this
Agreement.
"Buyer Indemnified Costs" means any and all Losses that any of the
Buyer Indemnified Parties incurs and that arise out of or relate to any breach
or default by the Sellers or any of their Affiliates under any of the
Shareholder Agreements; provided, however, that any Losses that arise out of or
relate to the matters described above shall only be Buyer Indemnified Costs if
they arise from third-party actions.
"Buyer Indemnified Parties" means the Buyers and each of their
Affiliates, including the Company, and each officer, director, employee, agent,
or consultant of such Persons.
"Camille, Ltd." means Camille, Ltd., a Cayman Islands exempted
company.
"Camille, Ltd. Shares" has the meaning set forth in Section 3.1(g).
"CEMAS" has the meaning set forth in the first paragraph of this
Agreement.
"Closing Price" means the closing sales price per share of the AES
Common Stock for the Trading Day immediately prior to the First Closing Date as
reported on the New York Stock Exchange.
"Code" means the United States Internal Revenue Code of 1986, as
amended. All references to the Code, U.S. Treasury regulations or other
governmental pronouncements shall be deemed to include references to any
applicable successor regulations or amending pronouncement.
"Companies" means Inversora de San Nicolas, S.A., an Argentine
sociedad anonima, La Plata Partners L.P., a Delaware limited partnership, La
Plata II, Inc., a Delaware corporation, Wildwood I, Ltd., a Cayman Islands
exempted company, PSEG Operating Argentina S.A., an Argentine sociedad anonima,
Shazia S.R.L., an Argentine sociedad de
II-2
responsabilidad limitada, AES Parana S.C.A., an Argentine sociedad en comandita
por acciones, AES Parana Operations S.R.L., an Argentine sociedad de
responsabilidad limitada, AES Parana Gas S.A., an Argentine sociedad anonima,
and AES Parana Propiedades S.A., an Argentine sociedad anonima, and "Company"
means any one of the Companies.
"Consents" means all governmental consents and approvals, and all
consents and approvals of third parties, in each case that are necessary in
order to transfer the Interests to the Buyers and otherwise to consummate the
transactions contemplated by this Agreement.
"Contracts" means all agreements, contracts, or other binding
commitments or arrangements (including any amendments and other modifications
thereto), to which any of the Companies is a party or by which any of their
assets are bound.
"Dollar," "Dollars" and "US$" each mean freely transferable lawful
money of the United States, or any successor currency.
"EDEN" means Empresa Distribuidora de Energia Norte S.A., an
Argentine sociedad anonima.
"EDES" means Empresa Distribuidora de Energia Sur S.A., an Argentine
sociedad anonima.
"EDEN/EDES Shares" has the meaning set forth in Section 3.1(h).
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Exhibits" means the Exhibits attached to this Agreement.
"First Closing" means the consummation of the transactions
contemplated by this Agreement on the First Closing Date in accordance with the
provisions of Article 2.
"First Closing Date" means the date of the First Closing specified
in Section 2.3.
"Governmental Authority" means any governmental department,
commission, board, bureau, agency, court or other instrumentality of any country
or any province, state, county, parish or municipality, jurisdiction, or other
political subdivision thereof.
"Indemnified Costs" means Buyer Indemnified Costs or Seller
Indemnified Costs, as applicable.
"Indemnified Party" has the meaning set forth in Section 9.3.
"Indemnifying Party" has the meaning set forth in Section 9.3.
"Interests" has the meaning set forth in the Recitals to this
Agreement. Except where specifically stated otherwise in this Agreement, the
Interests shall include the Additional Interests.
II-3
"Liens" means all liens, pledges, claims, security interests,
restrictions, mortgages, deeds of trust, tenancies, and other possessory
interests, conditional sale or other title retention agreements, restrictions,
rights of first refusal, defects in title, and other burdens, options or
encumbrances of any kind.
"Losses" means any and all damages, losses, claims, liabilities,
demands, charges, suits, penalties, costs and expenses (including court costs
and reasonable attorneys' fees and expenses).
"Ministry" has the meaning set forth in Section 5.7.
"Note Purchase Agreement" means the Note Purchase Agreement in the
form attached hereto as Exhibit A to be entered into on the First Closing Date
between AES Cayman and the Sellers.
"Operating Support Agreements" means the Operating Support
Agreement, dated May 27, 1999, by and between AES Ocean Springs, Ltd. and PSEG
Americas Operating; the Operating Support Agreement, dated May 27, 1999, by and
between AES Argentina and PSEG Americas Operating and the Operating Support
Agreement, dated May 27, 1999, by and between PSEG Americas and PSEG Americas
Operating.
"Party" and "Parties" have the meanings set forth in the first
paragraph of this Agreement.
"Person" means an individual, corporation, partnership, limited
liability company, association, trust, unincorporated organization, or other
entity.
"Pledge Agreements" has the meaning set forth in the Note Purchase
Agreement.
"Pledgors" means AES Cayman and any other Affiliate of The AES
Corporation that holds an interest in the Person that is the subject of the
Pledge Agreement executed by AES Cayman and owns directly or indirectly the
Interests.
"Political Risk Event" means any Governmental Authority shall
have condemned, nationalized, seized, attached, compulsorily acquired or
otherwise expropriated all of or any substantial part of the Interests or the
property of a Company, or shall have assumed custody or control, of such
property or of the business or operations of such Company, or shall have taken
any action for the dissolution or disestablishment of the Company or any other
action that would prevent the Company or its respective officers from carrying
on its business or operations or a substantial part thereof.
"PSEG Americas Inc." has the meaning set forth in the first
paragraph of this Agreement.
"PSEG Americas Ltd." has the meaning set forth in the first
paragraph of this Agreement.
II-4
"PSEG Americas Operating" has the meaning set forth in the first
paragraph of this Agreement.
"PSEG Americas Operating Shares" has the meaning set forth in the
recitals to this Agreement.
"PSEG Cayman V" has the meaning set forth in the first paragraph of
this Agreement.
"PSEG Operating Argentina" means PSEG Operating Argentina S.A., an
Argentine sociedad anonima.
"PSEG Operating Argentina Shares" has the meaning set forth in
Section 2.4(e).
"Purchase Price" means the consideration payable by the Buyers to
the Sellers as provided in Section 2.2.
"Quota Companies" means Shazia S.R.L., a sociedad de responsabilidad
limitada, and AES Parana Operations S.R.L., a sociedad de responsabilidad
limitada.
"Schedules" means the Schedules attached to this Agreement.
"Second Closing" means the consummation of the transactions
contemplated by this Agreement on the Second Closing Date in accordance with the
provisions of Article 2.
"Second Closing Date" means the date of the Second Closing specified
in Section 2.5.
"Securities Act" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"Sellers" has the meaning set forth in the first paragraph of this
Agreement.
"Seller Agreements" has the meaning set forth in Section 5.2.
"Seller Indemnified Costs" means any and all Losses incurred by any
of the Seller Indemnified Parties that arise out of or relate to (a) the matters
set forth on Schedule 9.2 or (b) any breach or default by The AES Corporation or
any of its Affiliates under any of the Shareholder Agreements; provided,
however, that any Losses that arise out of or relate to the matters described
above shall only be Seller Indemnified Costs if they arise from third-party
actions.
"Seller Indemnified Parties" means the Sellers and each of their
Affiliates and each officer, director, employee, agent or consultant of such
Persons.
II-5
"Shareholder Agreements" means
(i) the CTSN Shareholders Agreement dated March 31, 1993, as amended
May 20, 1993, by and among AES San Nicolas, Inc., Ormas S.A.I.C.I.C., CEMAS and
Inversora de San Nicolas, S.A.;
(ii) the Operating Company Shareholders Agreement dated May 27,
1997, as amended on June 18, 1999 and on June 16, 2000, by and among PSEG
Americas Operating Company, CEMAS, PSEG Operating Argentina, AES Ocean Springs
Ltd., AES Argentina Operations, Ltd. and AESEBA S.A.;
(iii) the PSEG Cayman Shareholders Agreement dated May 27, 1997, as
amended on June 18, 1999 and June 16, 2000, by and among PSEG Americas Ltd., AES
Argentina Operations, Ltd., PSEG Americas Inc. and PSEG Americas Operating
Company;
(iv) the Shareholders Agreement dated November 6, 1998 by and among
The AES Corporation, PSEG Americas Inc., PSEG Global Inc. and PSEG Americas
Ltd.;
(v) the Quotaholders Agreement of AES Parana Operations S.R.L. dated
as of June 25, 1999 by and among PSEG Cayman V and AES Parana I Ltd.
Partnership;
(vi) the Quotaholders Agreement of Shazia S.R.L. dated as of June
25, 1999 by and among PSEG Cayman V and AES Parana I Ltd. Partnership;
(vii) the Shareholders Agreement of AES Parana Gas S.A. dated as of
June 25, 1999 by and among PSEG Cayman V and AES Parana I Ltd. Partnership;
(viii) the Shareholders Agreement of AES Parana Propiedades S.A.
dated as of June 25, 1999 by and among PSEG Cayman V and AES Parana I Ltd.
Partnership;
(ix) the Partners Agreement of AES Parana S.C.A. dated as of June
25, 1999 by and among PSEG Cayman V, AES Parana I Ltd. Partnership interest and
Shazia S.R.L; and
(x) the Shareholders Agreement dated as of November 6, 1998 by and
between Wildwood I, Ltd. and Wildwood II, Ltd.
"Stock USUFRUCT Agreement" has the meaning set forth in Section
2.4(b)(x).
"Tax" or "Taxes" means any taxes, assessments, fees and other
governmental charges imposed by any Governmental Authority, including without
limitation income, profits, gross receipts, net proceeds, alternative or add-on
minimum, ad valorem, value added, turnover, sales, use, property, personal
property (tangible and intangible), environmental, stamp, leasing, lease, user,
excise, duty, franchise, capital stock, transfer, registration, license,
withholding, social security (or similar), unemployment, disability, payroll,
employment, fuel, excess profits, occupational, premium, windfall profit,
severance, estimated, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not.
II-6
"Technical Assistance Agreements" means the Technical Assistance,
Know How and Operation Agreement between PSEG Americas Operating and EDEN and
the Technical Assistance, Know How and Operation Agreement between PSEG Americas
Operating and EDES.
"The AES Corporation" means The AES Corporation, a Delaware
corporation.
"third-party action" has the meaning set forth in Section 9.3.
"Trading Day" means a day on which the principal national securities
exchange or Nasdaq National Market, or any successor thereto, on which the AES
Common Stock is listed or admitted to trading is open for the transaction of
business.
"Transaction Documents" has the meaning set forth in Section 3.1(b).
"Wildwood I" has the meaning set forth in Section 3.1(g).
II-7
EXHIBIT A
FORM OF NOTE PURCHASE AGREEMENT
A-1
EXHIBIT B-1
FORM OF OPINION OF LATHAM & WATKINS
B-1-1
EXHIBIT B-2
FORM OF OPINION OF THE
GENERAL COUNSEL OF THE AES CORPORATION
B-2-1
EXHIBIT B-3
FORM OF OPINION OF MAPLES AND CALDER
B-3-1
EXHIBIT B-4
FORM OF OPINION OF ESTUDIO O'FARRELL
B-4-1
EXHIBIT C
FORM OF AES FIRST CLOSING WAIVER
C-1
EXHIBIT D
FORM OF AMENDED AND RESTATED EDEN/EDES SHAREHOLDERS
AGREEMENT
D-1
EXHIBIT E
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
E-1
EXHIBIT F
FORM OF STOCK USUFRUCT AGREEMENT
F-1
EXHIBIT G
FORM OF RESIGNATION LETTER AND WAIVER OF
DIRECTORS AND OFFICERS OF THE COMPANIES
G-1
EXHIBIT H-1
FORM OF OPINION OF VINSON & ELKINS L.L.P.
H-1-1
EXHIBIT H-2
FORM OF OPINION OF CONYERS DILL & PEARMAN
H-2-1
EXHIBIT H-3
FORM OF OPINION OF MAPLES AND CALDER
H-3-1
EXHIBIT H-4
FORM OF OPINION OF BERETTA KAHALE GODOY
H-4-1
EXHIBIT H-5
FORM OF OPINION OF DAVID R. GARCIA
H-5-1
EXHIBIT I
FORM OF PSEG FIRST CLOSING WAIVER
I-1
EXHIBIT J
FORM OF PSEG SECOND CLOSING WAIVER
J-1
EXHIBIT K
FORM OF AES SECOND CLOSING WAIVER
K-1
EXHIBIT L
FORM OF AES SHARES AGREEMENT
L-1