EXHIBIT 2.2
EXECUTION COPY
PURCHASE AND SALE AGREEMENT
by and between
MIRANT INVESTMENTS EUROPE UK, INC.
and
MIRANT HOLDINGS EUROPE UK, INC.
as Sellers
and
TOWERWEAVE LIMITED
as Purchaser
for the Sale of Shares of WPD Investment Holdings Limited
Dated as of September 6, 2002
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TABLE OF CONTENTS
Page
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ARTICLE 1 DEFINITIONS............................................ 2
SECTION 1.1 CERTAIN DEFINED TERMS............................ 2
SECTION 1.2 CERTAIN INTERPRETIVE MATTERS..................... 5
ARTICLE 2 PURCHASE AND SALE...................................... 6
SECTION 2.1 PURCHASE AND SALE................................ 6
ARTICLE 3 CLOSING; PURCHASE PRICE................................ 6
SECTION 3.1 CLOSING.......................................... 6
SECTION 3.2 PURCHASE PRICE................................... 8
SECTION 3.3 WPDI SHARES HELD IN TRUST........................ 8
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF SELLER............... 9
SECTION 4.1 ORGANIZATION AND EXISTENCE....................... 9
SECTION 4.2 EXECUTION AND DELIVERY........................... 9
SECTION 4.3 OWNERSHIP AND ENFORCEABILITY..................... 9
SECTION 4.4 NO VIOLATION..................................... 9
SECTION 4.5 LITIGATION.......................................10
SECTION 4.6 BROKERS..........................................10
SECTION 4.7 CONSENTS AND APPROVALS...........................10
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF PURCHASER............11
SECTION 5.1 ORGANIZATION AND EXISTENCE.......................11
SECTION 5.2 EXECUTION, DELIVERY AND ENFORCEABILITY...........11
SECTION 5.3 NO VIOLATION.....................................11
SECTION 5.4 LITIGATION.......................................12
SECTION 5.5 BROKERS..........................................12
SECTION 5.6 FINANCING........................................12
SECTION 5.7 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.....12
SECTION 5.8 CHARACTERISTICS OF PURCHASER; NO DISTRIBUTION....12
SECTION 5.9 CONSENTS AND APPROVALS...........................13
ARTICLE 6 COVENANTS OF EACH PARTY................................13
SECTION 6.1 EXPENSES.........................................13
SECTION 6.2 FURTHER ASSURANCES...............................13
SECTION 6.3 TAX MATTERS......................................14
SECTION 6.4 ANNOUNCEMENTS....................................15
ARTICLE 7 OTHER AGREEMENTS.......................................15
SECTION 7.1 SHAREHOLDERS' AGREEMENT..........................15
SECTION 7.2 ARTICLES OF ASSOCIATION..........................15
SECTION 7.3 OTHER AGREEMENTS.................................15
ARTICLE 8 GENERAL PROVISIONS.....................................15
SECTION 8.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES,
COVENANTS AND AGREEMENTS........................15
SECTION 8.2 ENTIRE DOCUMENT; MODIFICATION OR AMENDMENT.......16
SECTION 8.3 SCHEDULES AND EXHIBITS...........................16
SECTION 8.4 COUNTERPARTS.....................................16
SECTION 8.5 SEVERABILITY.....................................16
SECTION 8.6 ASSIGNABILITY....................................16
SECTION 8.7 CAPTIONS.........................................17
SECTION 8.8 GOVERNING LAW AND FORUM..........................17
SECTION 8.9 NOTICES..........................................17
SECTION 8.10 NO THIRD PARTY BENEFICIARIES.....................18
SECTION 8.11 NO RELATIONSHIP..................................18
SECTION 8.12 CONSTRUCTION OF AGREEMENT........................18
SECTION 8.13 WAIVER OF COMPLIANCE.............................19
SECTION 8.14 CONSENTS NOT UNREASONABLY WITHHELD...............19
SECTION 8.15 TIME OF ESSENCE..................................19
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EXHIBITS AND SCHEDULES
ITEM DESCRIPTION
Schedule 1.1A Knowledge of Seller
Schedule 1.1B Knowledge of Purchaser
Schedule 1.1C WPDI Shares
Schedule 3.1(a)(vi) Officer and Director Resignations
Exhibit A Purchaser Guaranty
Exhibit B Seller Guaranty
Exhibit C Consent and Agreement
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT, dated as of September 6, 2002, is made
and entered into by and between MIRANT INVESTMENTS EUROPE UK, INC., a Delaware
corporation formerly known as Southern Electric International - Europe, Inc.
("Mirant Investments"), MIRANT HOLDINGS EUROPE UK, INC., a Delaware corporation
formerly known as Southern Energy Europe Investments, Ltd. ("Mirant Holdings"),
and TOWERWEAVE LIMITED, a corporation formed under the laws of England and Wales
("Purchaser") (each of Mirant Investments, Mirant Holdings, and Purchaser a
"Party" and, collectively, the "Parties").
RECITALS
A. Mirant Investments and Mirant Holdings (each a "Seller" and,
collectively, the "Sellers") are the legal and beneficial owners, and registered
holders, of the WPDI Shares (as defined below).
B. Sellers desire to sell to Purchaser, and Purchaser desires to
purchase and acquire from Sellers, all of the WPDI Shares on the terms and
subject to the conditions hereinafter set forth.
C. Sellers and Purchaser are entering into this Agreement to evidence
their respective duties, obligations and responsibilities in respect of the
purchase and sale of the WPDI Shares contemplated hereby (the "Transactions").
D. Simultaneously with the execution and delivery by the Parties of
this Agreement, Mirant Investments UK, Ltd., a corporation formed under the laws
of England and Wales, and Purchaser are executing and delivering a Purchase and
Sale Agreement in a form that is substantially the same as this Agreement (the
"WPDH Purchase Agreement") and that provides for the sale by Mirant Investments
UK, Ltd. of all of the shares in Western Power Distribution Holdings Limited
owned by it (the "WPDH Shares") to Purchaser.
E. PMDC International Holdings, Inc., a Delaware corporation ("PMDC"),
is an Affiliate of Purchaser and owns capital shares of the Company.
F. Simultaneously with the execution and delivery by the Parties of
this Agreement, the Parties, PMDC and the Company are executing and delivering
the Consent and Agreement (as defined below) terminating the Shareholders'
Agreement (as defined below) and all other agreements relating to the Company
between Sellers and PMDC and Sellers and the Company.
G. Simultaneously with the execution and delivery by the Parties of
this Agreement, the Purchaser Guarantor (as defined below) is executing and
delivering the Purchaser Guaranty (as defined below) for the benefit of Seller,
and the Seller Guarantor (as defined below) is executing and delivering the
Seller Guaranty (as defined below) for the benefit of Purchaser.
NOW, THEREFORE, in consideration of the foregoing recitals and the
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Parties, intending
to be legally bound, do hereby agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.1. CERTAIN DEFINED TERMS. The following terms when used in this
Agreement (or in the Schedules and Exhibits to this Agreement) with initial
letters capitalized have the meanings set forth below:
"Affiliate" of a specified Person means any other Person (other than the
Company and its subsidiaries) that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with the
specified Person. For the purposes of this definition, "control," when used with
respect to any specified Person, means the possession of the power to direct the
management or policies of the specified Person, directly or indirectly, whether
through the ownership of voting securities, partnership or limited liability
company interests, by contract or otherwise.
"Agreement" means this Purchase and Sale Agreement, together with the
Schedules and Exhibits hereto.
"Applicable Laws" means all statutes, rules, regulations, ordinances,
orders and codes of any Governmental Authorities.
"Business Day" means a day other than Saturday, Sunday or a day on which
banks are authorized to be closed for business in New York, New York.
"Closing" has the meaning set forth in Section 3.1.
"Code" means the Internal Revenue Code of 1986, as amended and interpreted
as of the date hereof, and all references to Treasury Regulations shall mean
such regulations as they exist and are interpreted as of the date hereof.
"Company" means WPD Investment Holdings Limited, a corporation formed under
the laws of England and Wales.
"Consent and Agreement" means that certain Consent and Agreement of even
date herewith substantially in the form of Exhibit C attached hereto among the
Company, Seller, Purchaser and PMDC that is being executed and delivered by the
parties thereto simultaneously with the execution and delivery of this
Agreement.
"Encumbrances" means any and all pledges, claims, liens, security
interests, options, warrants, purchase rights, conditional and installment sales
agreements, other third party rights or interests, encumbrances and charges of
any kind.
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"Governmental Authority" means: (a) any federal, state, local, foreign or
other government; (b) any governmental, regulatory or administrative agency,
commission, body or other authority exercising or entitled to exercise any
administrative, executive, judicial, legislative, police, regulatory custodial,
or authority or power with respect to Taxes; and (c) any court or governmental
tribunal; provided, however, that it does not include Purchaser, Sellers, any
Affiliate thereof, or any of their respective successors in interest (if
otherwise a Governmental Authority).
"IRS" means the Internal Revenue Service.
"Knowledge" or similar terms used in this Agreement with respect to a Party
means: (a) in the case of Sellers, the extent of the actual knowledge and the
knowledge that would have been obtained after reasonable investigation or
inquiry of the Persons listed in Schedule 1.1A, as applicable; and (b) in the
case of Purchaser, the extent of the actual knowledge and the knowledge that
would have been obtained after reasonable investigation or inquiry of the
Persons listed in Schedule 1.1B.
"Material Adverse Effect" means any event, circumstance or condition
materially impairing a Party's authority, right, or ability to consummate the
Transactions, or otherwise having a material adverse effect on the business,
assets, liabilities (contingent or otherwise) or condition (financial or
otherwise) of such Party, but excluding:
(1) any change (or changes taken together) or effect generally
affecting the international or any national, regional or local electric
generating, transmission or distribution industry as a whole and not adversely
affecting the Company in any manner or degree materially different than other
companies like the Company;
(2) any change (or changes taken together) or effect resulting from
changes in the international or any national, regional or local wholesale or
retail markets for electric power; or
(3) any order or act of any Governmental Authority applicable to
providers of generation, transmission or distribution of electricity generally
that imposes restrictions, regulations or other requirements thereon.
Any determination as to whether any condition or other matter has a
Material Adverse Effect shall be made only after taking into account all
effective insurance coverages and effective indemnifications with respect to
such condition or matter.
"Person" means an individual, partnership, joint venture, corporation,
limited liability company, trust, association or unincorporated organization,
any Governmental Authority, or any other entity.
"PMDC" has the meaning set forth in the Recitals to this Agreement.
"Purchase Price" has the meaning set forth in Section 3.2.
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"Purchaser" has the meaning set forth in the introductory paragraph of this
Agreement.
"Purchaser Guarantor" means PPL Energy Supply, LLC, an Affiliate of
Purchaser.
"Purchaser Guaranty" means that certain Guaranty, substantially in the form
of Exhibit A, that is being executed and delivered by Purchaser Guarantor
simultaneously with the execution and delivery of this Agreement.
"Securities Act" has the meaning set forth in Section 5.8.
"Seller" and "Sellers" have the meaning set forth in the Recitals to this
Agreement.
"Seller Guarantor" means Mirant Corporation, an Affiliate of Sellers.
"Seller Guaranty" means that certain Guaranty, substantially in the form of
Exhibit B, that is being executed and delivered by Seller Guarantor
simultaneously with the execution and delivery of this Agreement.
"Shareholders' Agreement" means that certain Shareholders' Agreement, dated
March 15, 2001, among Sellers, PMDC and the Company, as amended from time to
time.
"Tax" or "Taxes" means any federal, state, local or foreign income, gross
receipts, license, payroll, employment, excise, severance, stamp, occupation,
premium, windfall profits, environmental (including taxes under Code
Section 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property (including
assessments, fees or other charges based on the use or ownership of real
property), personal property, transactional, sales, use, transfer, registration,
value added, alternative or add-on minimum, estimated tax, or other tax of any
kind whatsoever, or any liability for unclaimed property or escheatment under
common law principles, including any interest, penalty or addition thereto,
whether disputed or not, including, without limitation, any item for which
liability arises as a transferee or successor-in-interest.
"Tax Proceeding" has the meaning set forth in Section 6.3(c).
"Tax Return" means any return, report, information return, declaration,
claim for refund, or other document, together with all amendments and
supplements thereto (including all related or supporting information), required
to be filed with any Governmental Authority responsible for the administration
of Applicable Laws governing Taxes.
"Transactions" has the meaning set forth in the Recitals to this Agreement.
"Transfer Tax" means any sales Tax, transfer Tax, transaction Tax,
conveyance fee, recording fee, use Tax, stamp Tax, stock transfer Tax or other
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similar Tax, including without limitation, any liability or obligation arising
as a result of the Transactions, including any related penalties, interest and
additions thereto.
"WPDH Purchase Agreement" has the meaning set forth in the Recitals to this
Agreement.
"WPDH Shares" has the meaning set forth in the Recitals to this Agreement.
"WPDI Group" has the meaning set forth in Section 3.1(a)(vi).
"WPDI Shares" means, collectively, the capital shares of the Company
described in Schedule 1.1C.
SECTION 1.2. CERTAIN INTERPRETIVE MATTERS. In this Agreement, unless the
context otherwise requires:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors and
assigns but, if applicable, only if such successors and assigns are permitted by
this Agreement, and reference to a Person in a particular capacity excludes such
Person in any other capacity;
(c) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended or modified
and in effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof;
(d) reference to any Article, Section, Schedule or Exhibit means such
Article, Section, Schedule or Exhibit of or to this Agreement, and references in
any Article, Section, Schedule, Exhibit or definition to any clause means such
clause of such Article, Section, Schedule, Exhibit or definition;
(e) any accounting term used and not otherwise defined in this
Agreement has the meaning assigned to such term in accordance with U.S.
generally accepted accounting principles;
(f) "hereunder," "hereof," "hereto" and words of similar import are
references to this Agreement as a whole and not to any particular Section or
other provision hereof or thereof;
(g) "including" (and with correlative meaning "include") means
including without limiting the generality of any description preceding or
succeeding such term;
(h) relative to the determination of any period of time, "from" means
"from and including," "to" means "to but excluding" and "through" means "through
and including;"
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(i) reference to any law (including statutes and ordinances) means such
law as amended, modified codified or reenacted, in whole or in part, and in
effect from time to time, including rules and regulations promulgated
thereunder; and
(j) any agreement, instrument, insurance policy, statute, regulation,
rule or order defined or referred to herein or in any agreement or instrument
that is referred to herein means such agreement, instrument, insurance policy,
statute, regulation, rule or order as from time to time amended, modified, or
supplemented, including (in the case of agreements or instruments) by waiver or
consent and (in the case of statutes, regulations, rules or orders) by
succession of comparable successor statutes, regulations, rules or orders and
references to all attachments thereto and instruments incorporated therein.
ARTICLE 2
PURCHASE AND SALE
SECTION 2.1. PURCHASE AND SALE. Upon the terms contained in this
Agreement, Sellers as legal and beneficial owners and with full title guarantee
hereby sell, convey, assign, transfer and deliver to Purchaser, and Purchaser
hereby purchases and accepts from Sellers, all of the WPDI Shares with effect as
of the Closing free from any Encumbrance and together with all accrued benefits
and rights attached thereto. Sellers waive or agree to procure the waiver of any
rights or restrictions conferred upon them or any other person which may exist
in relation to the WPDI Shares under the articles of association of the Company
or otherwise.
ARTICLE 3
CLOSING; PURCHASE PRICE
SECTION 3.1. CLOSING. The Parties shall cause the consummation of the
Transactions (the "Closing") to occur concurrently with the execution of this
Agreement. Each of Sellers' obligations and Purchaser's obligation to make the
deliveries set forth in this Section 3.1 is conditioned upon receipt by such
Party of the other Party's closing deliveries set forth in this Section 3.1.
Each of the closing deliveries are deemed to occur concurrently with each other.
(a) DELIVERIES BY SELLER. Concurrently with the execution of this
Agreement, Sellers shall execute and deliver, or cause to be executed and
delivered, to Purchaser the following:
(i) Certificates, evidencing all of the WPDI Shares together with
such other duly executed instruments as may be necessary in order to effect the
valid transfer of full title to the WPDI Shares free and clear of all
Encumbrances;
(ii) Copies, certified as of the date hereof, by the Secretary or an
Assistant Secretary of each Seller of (A) the certificate of incorporation and
by-laws of each Seller, and (B) resolutions of the governing board of each
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Seller authorizing the execution and delivery by such Seller of this Agreement,
and authorizing or ratifying all of the other agreements and instruments to be
executed and delivered by such Seller in connection herewith;
(iii) Copies, certified as of the date hereof, by the Secretary or an
Assistant Secretary of the Seller Guarantor, of (A) the certificate of
incorporation and by-laws of the Seller Guarantor and (B) resolutions of the
board of directors or committee thereof of the Seller Guarantor authorizing the
execution and delivery by the Seller Guarantor of the Seller Guaranty (which
resolution need not specifically identify the Transaction);
(iv) A certificate, dated as of the date hereof, of the Secretary or
an Assistant Secretary of each Seller identifying the name and title and bearing
the signatures of the individuals authorized by such Seller to execute and
deliver this Agreement and the other agreements and instruments contemplated
hereby;
(v) A certificate, dated as of the date hereof, of the Secretary or
an Assistant Secretary of the Seller Guarantor identifying the name and title
and bearing the signature of the individual authorized by the Seller Guarantor
to execute and deliver the Seller Guaranty;
(vi) Written resignations or terminations duly executed as deeds of
each of the directors and officers of the Company and its subsidiaries (the
"WPDI Group") set forth on Schedule 3.1(a)(vi), effective as of the Closing
containing a confirmation that they have no claims (whether statutory,
contractual or otherwise, but excluding any claims for indemnification under the
Articles of Association of the Company or any other instrument, agreement or
document in effect prior to the Closing) against any member of the WPDI Group
for compensation for loss of office or termination of employment or for unpaid
remuneration or otherwise together with delivery to Purchaser of all property of
any member of the WPDI Group in their possession or under their control;
(vii) A receipt, dated as of the date hereof, duly executed by
Sellers and acknowledging receipt by Sellers of the Purchase Price;
(viii) The Seller Guaranty, duly executed by the Seller Guarantor;
(ix) The Consent and Agreement, duly executed by Sellers; and
(x) Any other documents or instruments reasonably required by
Purchaser to transfer to Purchaser full title to the WPDI Shares and reasonably
requested of Sellers prior to the date hereof.
(b) DELIVERIES BY PURCHASER. Concurrently with the execution of this
Agreement, Purchaser shall deliver, or cause to be delivered, to Sellers the
following:
(i) The Purchase Price, by wire transfer of immediately available
funds to an account or accounts previously designated in writing by Sellers or
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by the delivery of a check payable to the Sellers jointly in the amount of the
Purchase Price;
(ii) Copies, certified as of the date hereof, by the Secretary or an
Assistant Secretary or Director of Purchaser, of (A) the Memorandum and Articles
of Association of Purchaser and (B) resolutions of the governing board of
Purchaser or its Affiliate PPL Global, LLC authorizing the execution and
delivery by Purchaser of this Agreement, and authorizing or ratifying all of the
other agreements and instruments to be executed and delivered by Purchaser in
connection herewith;
(iii) Copies, certified as of the date hereof, by the Secretary or an
Assistant Secretary of the Purchaser Guarantor, of (A) the certificate of
formation and limited liability company agreement of the Purchaser Guarantor and
(B) resolutions of the board of directors or committee thereof of the Purchaser
Guarantor authorizing the execution and delivery by the Purchaser Guarantor of
the Purchaser Guaranty (which resolution need not specifically identify the
Transaction);
(iv) A certificate, dated as of the date hereof, of the Secretary or
an Assistant Secretary or Director of Purchaser identifying the name and title
and bearing the signatures of the individuals authorized by Purchaser to execute
and deliver this Agreement and the other agreements and instruments contemplated
hereby;
(v) A certificate, dated as of the date hereof, of the Secretary or
an Assistant Secretary of the Purchaser Guarantor identifying the name and title
and bearing the signature of the individual authorized by the Purchaser
Guarantor to execute and deliver the Purchaser Guaranty;
(vi) The Purchaser Guaranty, duly executed by the Purchaser
Guarantor;
(vii) The Consent and Agreement, duly executed by the Company,
Purchaser and PMDC; and
(viii) Any other documents or instruments reasonably required by
Sellers to consummate the Transactions and reasonably requested of Purchaser
prior to the date hereof.
SECTION 3.2. PURCHASE PRICE. The purchase price for the WPDI Shares shall
be ONE U.S. DOLLAR (U.S.$1.00) (the "Purchase Price").
SECTION 3.3. WPDI SHARES HELD IN TRUST. Sellers acknowledge that,
immediately following the Closing until such time as the transfer of the WPDI
Shares has been registered in the register of members of the Company, Sellers
will hold those WPDI Shares registered in its name in trust for and as nominee
for Purchaser or its nominees and undertakes to hold all dividends and
distributions and exercise all voting rights available in respect of those WPDI
Shares in accordance with the directions of Purchaser or its nominees, and if
Sellers are in breach of the undertakings contained in this Section 3.3, Sellers
irrevocably authorize Purchaser to appoint some person or persons to execute all
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instruments or proxies (including consents to short notice) or other documents
which Purchaser or its nominees may reasonably require and which may be
necessary to enable Purchaser or its nominees to attend and vote at general
meetings of the Company and to do any thing or things necessary to give effect
to the rights contained in this Section 3.3.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF SELLER
Sellers represent and warrant to Purchaser as follows:
SECTION 4.1. ORGANIZATION AND EXISTENCE. Each Seller is a corporation duly
formed and validly existing under the laws of the State of Delaware.
SECTION 4.2. EXECUTION AND DELIVERY. Each Seller has all requisite power
and authority to execute and deliver, and to perform its obligations under, this
Agreement and to consummate the Transactions. The execution, delivery and
performance by each Seller of this Agreement and the consummation of the
Transactions have been duly and validly authorized by all necessary action
required on the part of such Seller, and no other proceedings on the part of
either Seller is necessary to authorize this Agreement or to consummate the
Transactions.
SECTION 4.3. OWNERSHIP AND ENFORCEABILITY. Mirant Investments owns, as
legal and beneficial owner, 50% of the WPDI Shares, and Mirant Holdings owns, as
legal and beneficial owner, 50% of the WPDI Shares, in each case free and clear
of any Encumbrances. Upon consummation of the Transactions, Sellers shall have
transferred to Purchaser all of Sellers' outstanding legal and beneficial
interests in and to the capital stock of the Company (including all such
interests in the unissued share capital of the Company). Since the date of
issuance by the Company to Sellers, or transfer to Sellers, of shares of capital
stock in the Company, neither Mirant Investments nor Mirant Holdings has
transferred any shares of capital stock in the Company to any Person other than
to Purchaser, and to Sellers' Knowledge, no person has claimed to be entitled to
an Encumbrance in relation to any of the WPDI Shares. Assuming Purchaser's due
authorization, execution and delivery of this Agreement, this Agreement
constitutes the valid and legally binding obligation of each Seller, enforceable
against each Seller in accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws of general application relating to or affecting the enforcement of
creditors' rights and by general equitable principles.
SECTION 4.4. NO VIOLATION. Neither the execution or delivery by Sellers of
this Agreement, nor Sellers' compliance with any provision hereof, nor Sellers'
consummation of the Transactions:
(a) violates, or conflicts with, or results in a breach of any
provisions of the certificate of incorporation or by-laws of either Seller;
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(b) results in a default (or gives rise to any right of termination,
cancellation or acceleration) under, or conflicts with any of the terms,
conditions or provisions of, any note, bond, mortgage, indenture, license, or
agreement or other instrument or obligation to which either Seller is a party or
by which either Seller may be bound, except for such defaults (or rights of
termination or acceleration) as to which requisite waivers or consents have been
obtained, or which would not, individually or in the aggregate, result in a
Material Adverse Effect on either Seller;
(c) violates any law, rule, regulation, order, writ, injunction, or
decree, applicable to either Seller, except where such violations, individually
or in the aggregate, would not result in a Material Adverse Effect on Sellers
and will not affect the validity or enforceability of this Agreement or the
validity of the Transactions; or
(d) requires the consent or approval of, filing with, or notice to any
Person which, if not obtained, would prevent either Seller from performing its
obligations hereunder.
SECTION 4.5. LITIGATION. There is no claim, action, proceeding or
investigation pending or to Sellers' Knowledge, threatened against or relating
to either Seller or their Affiliates before any court, arbitrator or
Governmental Authority, or any judgment, decree or order of any court,
arbitrator or Governmental Authority, which would, individually or in the
aggregate, reasonably be expected to result, or has resulted, in:
(a) the institution of legal proceedings to prohibit or restrain the
performance of this Agreement or the consummation of the Transactions by either
Seller;
(b) a claim against Purchaser or its Affiliates for damages as a result
of Sellers' entering into this Agreement or the consummation by Sellers of the
Transactions;
(c) a material impairment of Sellers' abilities to perform their
obligations under this Agreement; or
(d) a Material Adverse Effect on Sellers.
SECTION 4.6. BROKERS. All negotiations relating to this Agreement or the
Transactions for the benefit of Sellers have been carried on by Sellers or their
Affiliates in such a manner as not to give rise to any valid claim against
Purchaser or the Company (by reason of Sellers' actions) for any brokerage
commission, finder's fee, financial advisory fee or other like payment to any
Person.
SECTION 4.7. CONSENTS AND APPROVALS. No consent, approval, authorization,
or permit of, or filing with or notification to, any Person is required for or
in connection with the execution and delivery of this Agreement by Sellers or
for or in connection with the consummation of the Transactions and performance
of the terms and conditions contemplated hereby by Sellers.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Sellers as follows:
SECTION 5.1. ORGANIZATION AND EXISTENCE. Purchaser is a corporation duly
formed and validly existing under the laws of England and Wales.
SECTION 5.2. EXECUTION, DELIVERY AND ENFORCEABILITY. Purchaser has all
requisite power and authority to execute and deliver, and to perform its
obligations under, this Agreement and to consummate the Transactions. The
execution, delivery and performance by Purchaser of this Agreement and the
consummation of the Transactions have been duly and validly authorized by all
necessary action required on the part of Purchaser, and no other proceedings on
the part of Purchaser are necessary to authorize this Agreement or to consummate
the Transactions. Assuming Sellers' due authorization, execution and delivery of
this Agreement, this Agreement constitutes the valid and legally binding
obligations of Purchaser, enforceable against Purchaser in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general application relating
to or affecting the enforcement of creditors' rights and by general equitable
principles.
SECTION 5.3. NO VIOLATION. Neither the execution or delivery by Purchaser
of this Agreement, nor Purchaser's compliance with any provision hereof, nor
Purchaser's consummation of the Transactions:
(a) violates, or conflicts with, or results in a breach of any
provisions of the Memorandum and Articles of Association of Purchaser;
(b) results in a default (or gives rise to any right of termination,
cancellation or acceleration) under or conflicts with any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license, or
agreement or other instrument or obligation to which Purchaser is a party or by
which Purchaser may be bound, except for such defaults (or rights of termination
or acceleration) as to which requisite waivers or consents have been obtained,
or which would not, individually or in the aggregate, result in a Material
Adverse Effect on Purchaser;
(c) violates any law, rule, regulation, order, writ, injunction, or
decree, applicable to Purchaser or any of its assets, except where such
violations, individually or in the aggregate, would not result in a Material
Adverse Effect on Purchase and will not affect the validity or enforceability of
this Agreement or the validity of the Transactions; or
(d) requires the consent or approval of, filing with, or notice to any
Person which, if not obtained, would prevent Purchaser from performing its
obligations hereunder.
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SECTION 5.4. LITIGATION. To Purchaser's Knowledge, there is no claim,
action, proceeding or investigation pending or, to Purchaser's Knowledge,
threatened against or relating to Purchaser or its Affiliates before any court,
arbitrator or Governmental Authority, or any judgment, decree or order of any
court, arbitrator or Governmental Authority, which would, individually or in the
aggregate, reasonably be expected to result, or has resulted, in:
(a) the institution of legal proceedings to prohibit or restrain the
performance of this Agreement or the consummation of the Transactions by
Purchaser;
(b) a claim against Sellers or their Affiliates for damages as a result
of Purchaser entering into this Agreement or the consummation by Purchaser of
the Transactions;
(c) a material impairment of Purchaser's ability to perform its
obligations under this Agreement; or
(d) a Material Adverse Effect on Purchaser.
SECTION 5.5. BROKERS. All negotiations relating to this Agreement or the
Transactions for the benefit of Purchaser have been carried on by Purchaser or
its Affiliates in such a manner as not to give rise to any valid claim against
Sellers (by reason of Purchaser's actions) for any brokerage commission,
finder's fee or other like payment to any Person.
SECTION 5.6. FINANCING. Purchaser has access to liquid capital or
committed sources therefor sufficient to permit Purchaser to pay the Purchase
Price at the Closing.
SECTION 5.7. DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS
AGREEMENT, PURCHASER UNDERSTANDS AND AGREES THAT SELLERS EXPRESSLY DISCLAIM AND
NEGATE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AT COMMON LAW,
STATUTORY, OR OTHERWISE AS TO (A) LIABILITIES, OR (B) THE OPERATION OR CONDITION
OF, OR ANY OTHER MATTER OF ANY KIND WHATSOEVER RELATING TO, THE ASSETS OF THE
COMPANY. PURCHASER FURTHER AGREES THAT NO INFORMATION OR MATERIAL PROVIDED BY OR
COMMUNICATION MADE BY SELLERS OR ANY REPRESENTATIVE OF SELLERS WILL CONSTITUTE,
CREATE OR OTHERWISE CAUSE TO EXIST ANY REPRESENTATION OR WARRANTY DISCLAIMED BY
THE FOREGOING.
SECTION 5.8. CHARACTERISTICS OF PURCHASER; NO DISTRIBUTION. Purchaser is
an experienced and knowledgeable investor in the business in which the Company
and its subsidiaries are or have been engaged. Prior to entering into this
Agreement, Purchaser was advised by its counsel, accountants, financial
advisors, and such other Persons it has deemed appropriate concerning this
Agreement and has relied solely on Sellers' representations and warranties
12
expressly contained herein and an independent investigation and evaluation of,
and appraisal and judgment with respect to the assets, liabilities, results of
operations, condition (financial or otherwise), and prospects of the Company,
and the revenue, price, and expense assumptions applicable thereto. Purchaser
hereby acknowledges that the WPDI Shares are not registered under the United
States Securities Act of 1933, as amended (the "Securities Act"), or registered
or qualified for sale under any state securities laws and cannot be resold
without registration thereunder or exemption therefrom. Purchaser is an
"accredited investor," as such term is defined in Regulation D of the Securities
Act and will acquire the WPDI Shares for its own account and not with a view to
a sale or distribution thereof in violation of the Securities Act, and the rules
and regulations thereunder, any applicable state "blue sky" laws or any other
applicable securities laws. Purchaser has sufficient knowledge and experience in
financial and business matters to enable it to evaluate the risks of investment
in the WPDI Shares and has the ability to bear the economic risk of this
investment.
SECTION 5.9. CONSENTS AND APPROVALS. No consent, approval,
authorization, or permit of, or filing with or notification to, any Person is
required for or in connection with the execution and delivery of this Agreement
by Purchaser or for or in connection with the consummation of the Transactions
and performance of the terms and conditions contemplated hereby by Purchaser.
ARTICLE 6
COVENANTS OF EACH PARTY
SECTION 6.1. EXPENSES. Except as otherwise provided in any other provision
of this Agreement, all costs and expenses incurred in connection with this
Agreement and the Transactions shall be paid by the Party incurring such
expenses. Notwithstanding the foregoing, all Transfer Taxes incurred in
connection with this Agreement and the Transactions shall be shared equally by
Sellers, on the one hand, and Purchaser, on the other.
SECTION 6.2. FURTHER ASSURANCES. Subject to the terms and conditions of
this Agreement, each of the Parties hereto will use its reasonable best efforts
to take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under Applicable Laws to consummate and
make effective the sale of WPDI Shares pursuant to this Agreement. From time to
time after the date hereof, without further consideration, Sellers will execute
and deliver such documents to Purchaser as Purchaser may reasonably request in
order to vest more effectively in Purchaser title to the WPDI Shares. From time
to time after the date hereof, Purchaser will execute and deliver such documents
to Sellers as Sellers may reasonably request in order to consummate more
effectively the sale of the WPDI Shares pursuant to this Agreement. For a period
of three years from the date hereof, upon the written request of Seller and
subject to the confidentiality provision set forth in the Consent and Agreement,
Purchaser agrees to make reasonably available, and to cause its Affiliates to
make reasonably available, at the sole cost and expense of Seller, such Company
accounting records and information relating to the period prior to the Closing
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as may be necessary for audits and internal compliance matters for Seller and
its Affiliates (other than the Company).
SECTION 6.3. TAX MATTERS.
(a) All Transfer Taxes incurred in connection with this Agreement and
the Transactions shall be paid as provided in Section 6.1. Purchaser will file,
to the extent required by Applicable Laws, all necessary Tax Returns and other
documentation with respect to all such Transfer Taxes, and Seller will be
entitled to review such returns in advance and such Tax Returns shall be subject
to Seller's approval (which shall not be unreasonably withheld or delayed). To
the extent required by Applicable Laws, but subject to such review and approval,
Seller or any of its Affiliates will join in the execution of any such Tax
Returns or other documentation. Any refund of Transfer Taxes paid by Seller
shall be for the benefit of Seller. Purchaser shall promptly notify Seller of
any refund of such Transfer Taxes.
(b) Any Tax Return to be prepared pursuant to the provisions of this
Section 6.3(b) shall be prepared in a manner consistent with practices followed
in prior years with respect to similar Tax Returns, except for changes required
by changes in Applicable Laws or fact. Purchaser shall not file an amended Tax
Return for the Company, or any subsidiary thereof, for any period ending on or
prior to the date hereof without the consent of Seller, which shall not be
unreasonably withheld or delayed. The parties, agree, however, that Seller, in
its sole discretion, may refuse to consent to the filing of such an amended Tax
Return which would have the effect of increasing the Taxes owed by Seller or any
of its Affiliates. The filing of any Tax Returns, or the payment of any Taxes
described in this Section 6.3(b) shall be made on a timely basis in accordance
with Applicable Laws.
(c) Each Party shall provide the other Party with such assistance as
may reasonably be requested by the other Party in connection with the
preparation of any Tax Return, or any audit or other examination by any taxing
authority, or any judicial or administrative proceedings relating to any
liability for Taxes (a "Tax Proceeding"), and each will retain and provide the
requesting Party with any records or information which may be relevant to such
Tax Return, or Tax Proceeding. Any reasonable and documented third party costs
and out-of-pocket expenses incurred in providing such assistance shall be borne
by the requesting party. Any information obtained pursuant to this Section 6.3
or pursuant to any other Section hereof providing for the sharing of information
relating to or review of any Tax Return or other schedule relating to Taxes
shall be kept confidential by the Parties.
(d) Purchaser agrees that, in the event Purchaser or the Company
receives a notice in writing of any examination, claim, settlement, proposed
adjustment, administrative or judicial proceeding, or other matter related to
any Taxes for any year prior to or including December 31, 2002, Purchaser will
notify Seller in writing promptly after receipt of such notice. Purchaser shall
be entitled to control any tax contest, but Seller shall have the opportunity to
attend meetings with tax officials and to comment on any written submissions
before they are submitted. Suggestions by the Seller about the conduct of the
14
contest shall be considered in good faith by the Purchaser, but the Purchaser
shall make the final decision on whether, how long and in what manner to contest
the disputed tax liability.
SECTION 6.4. ANNOUNCEMENTS. The Parties shall consult each other prior to
issuing any press releases with respect to this Agreement or the Transaction and
shall not issue any such press releases prior to such consultation, except as
may be required by Applicable Law or stock exchange rules. The obligations set
forth in this Section 6.4 shall survive for a period of 10 Business Days
following the date hereof.
ARTICLE 7
OTHER AGREEMENTS
SECTION 7.1. SHAREHOLDERS' AGREEMENT. The Parties hereby acknowledge that
the Shareholders' Agreement has been terminated in accordance with the Consent
and Agreement.
SECTION 7.2. ARTICLES OF ASSOCIATION. By execution and delivery of the
Consent and Agreement, Sellers, Purchaser and PMDC approve in writing this
transfer of ordinary shares of the Company and agree that such transfer is to be
treated as satisfying all requirements regarding the transfer of such shares set
forth in the Articles of Association of the Company.
SECTION 7.3. OTHER AGREEMENTS. The Parties hereby agree that (a) any and
all agreements between the Company and either or both Sellers or their
respective Affiliates, as applicable, and (b) any and all agreements by and
among either or both Sellers and Purchaser or their respective Affiliates
relating to the Company, excluding this Agreement, the Purchaser Guaranty, the
Seller Guaranty and the Consent and Agreement, are hereby terminated and shall
be of no further effect.
ARTICLE 8
GENERAL PROVISIONS
SECTION 8.1. SURVIVAL OF REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS. Except as otherwise provided in this Agreement, the representations,
warranties, covenants, and agreements of Sellers and Purchaser contained in this
Agreement shall survive the Closing for a period of one year after the date
hereof and thereafter shall terminate and be of no further force or effect;
provided, however, that any claims first asserted in writing within the
applicable period (whether or not the amount of any such claim has become
ascertainable within such period) shall not thereafter be time barred other than
by any applicable statute of limitations. Notwithstanding the foregoing, the
representations and warranties set forth in Section 4.3 shall survive the
Closing indefinitely.
15
SECTION 8.2. ENTIRE DOCUMENT; MODIFICATION OR AMENDMENT. This Agreement
(including the Exhibits and Schedules to this Agreement), the Seller Guaranty,
the Purchaser Guaranty, and the Consent and Agreement contain the entire
agreement between the Parties with respect to the Transactions, and supersede
all negotiations, representations, warranties, commitments, offers, contracts
and writings prior to the execution date of this Agreement, written or oral. No
modification or amendment of any provision of this Agreement shall be effective
unless made in writing and duly signed by the Parties referring specifically to
this Agreement.
SECTION 8.3. SCHEDULES AND EXHIBITS. All Schedules and Exhibits hereto
which are referred to herein are hereby made a part hereof and incorporated
herein by such reference. Each Schedule to this Agreement shall be deemed to
include and incorporate all disclosures made on the other Schedules to this
Agreement. Certain information set forth in the Schedules is included solely for
informational purposes, is not an admission of liability with respect to the
matters covered by the information, and may not be required to be disclosed
pursuant to this Agreement. The specification of any dollar amount in the
representations and warranties contained in this Agreement or the inclusion of
any specific item in the Schedules is not intended to imply that such amounts
(or higher or lower amounts) are or are not material, and no Party shall use the
fact of the setting of such amounts or the fact of the inclusion of any such
item in the Schedules in any dispute or controversy between the Parties as to
whether any obligation, item, or matter not described herein or included in a
Schedule is or is not material for purposes of this Agreement.
SECTION 8.4. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which is an original, but all of which together constitute
one and the same instrument.
SECTION 8.5. SEVERABILITY. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be valid, binding and
enforceable under Applicable Laws, but if any provision of this Agreement is
held to be invalid, void (or voidable) or unenforceable under Applicable Laws,
such provision shall be ineffective only to the extent held to be invalid, void
(or voidable) or unenforceable, without affecting the remainder of such
provision or the remaining provisions of this Agreement. Upon such determination
that any term or other provision is invalid, illegal, or incapable of being
enforced, the Parties shall negotiate in good faith to modify this Agreement so
as to effect the original intent of the Parties as closely as possible in an
acceptable manner to the end that the Transactions are fulfilled to the extent
possible. To the extent permitted by Applicable Laws, the Parties waive any
provision of Applicable Law that renders any provision hereof prohibited or
unenforceable in any respect.
SECTION 8.6. ASSIGNABILITY. The rights under this Agreement shall not be
assignable or transferable nor the duties delegable by either Party without the
prior written consent of the other Party, which consent may be granted or
withheld in such other Party's sole discretion; provided, however, that this
Agreement may be assigned or transferred by Purchaser to any of its Affiliates
without the prior consent of Sellers.
16
SECTION 8.7. CAPTIONS. The captions of the various Articles, Sections,
Exhibits and Schedules of this Agreement have been inserted only for convenience
of reference and do not modify, explain, enlarge or restrict any of the
provisions of this Agreement.
SECTION 8.8. GOVERNING LAW AND FORUM. Except with respect to matters
specifically relating to the transfer of the WPDI Shares, which shall be
governed by, and construed in accordance with, the law of England and Wales,
this Agreement shall be governed by, and construed in accordance with, the law
of the State of New York without regard to principles of conflicts of law, other
than New York General Obligations Law Section 5-1401. Each of the Parties hereby
irrevocably and unconditionally submits to the jurisdiction of any court of the
State of New York and any federal court located in New York County, New York,
with respect to any proceeding relating to this Agreement.
SECTION 8.9. NOTICES. All notices, requests, demands and other
communications under this Agreement must be in writing and must be delivered in
person or sent by certified mail, postage prepaid, by overnight delivery, or by
telefacsimile and properly addressed as follows:
If to Mirant Investments:
Mirant Investments Europe UK, Inc.
c/o Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: General Counsel
Facsimile: (678) 579-5771
If to Mirant Holdings:
Mirant Holdings Europe UK, Inc.
c/o Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: General Counsel
Facsimile: (678) 579-5771
In the case of either Seller, with a copy to:
Mirant Corporation
1155 Perimeter Center West
Atlanta, Georgia 30338
Attention: Bruce Davis, Esq.
Fax: (678) 579-5889
17
If to Purchaser:
Towerweave Limited
c/o PPL Global, LLC
11350 Random Hills Road, Suite 400
Fairfax, VA 22030
Facsimile: (703) 293-2659
Attention: Roger L. Petersen
With a copy to:
PPL Global, LLC
11350 Random Hills Road, Suite 400
Fairfax, VA 22030
Facsimile: (703) 293-2659
Attention: Robert W. Burke Jr., Esq.
Any Party may from time to time change its address for the purpose of notices to
that Party by a similar notice specifying a new address, but no such change is
effective until it is actually received by the Party sought to be charged with
its contents. Notices which are addressed as provided in this Section 8.9 given
by overnight delivery or mail shall be effective (a) upon delivery, if delivered
personally or by overnight delivery, (b) five days following deposit in the
United States mail, postage prepaid, if delivered by mail, or (c) at such time
as delivery is refused by the addressee upon presentation. Notices which are
addressed as provided in this Section 8.9 given by telefacsimile shall be
effective upon actual receipt if received during the recipient's normal business
hours, or at the beginning of the recipient's next business day after receipt if
not received during the recipient's normal business hours. All notices by
telefacsimile shall be confirmed promptly by the sender after transmission in
writing by certified mail or overnight delivery.
SECTION 8.10 NO THIRD PARTY BENEFICIARIES. Except as may be specifically
set forth in this Agreement, nothing in this Agreement, whether express or
implied, is intended to confer any rights or remedies under or by reason of this
Agreement on any Persons other than the Parties and their respective permitted
successors and assigns, nor is anything in this Agreement intended to relieve or
discharge the obligation or liability of any third Persons to any Party, nor
give any third Persons any right of subrogation or action against any Party.
SECTION 8.11 NO RELATIONSHIP. Nothing in this Agreement creates or is
intended to create an association, trust, partnership, joint venture or any
other entity or similar legal relationship between the Parties, or impose a
trust, partnership or fiduciary duty, obligation, or liability on or with
respect to either Party. Neither Party is or shall act as or be the agent or
representative of the other Party.
SECTION 8.12 CONSTRUCTION OF AGREEMENT. This Agreement and any documents
or instruments delivered pursuant hereto shall be construed without regard to
the identity of the Person who drafted the various provisions of the same. Each
18
and every provision of this Agreement and such other documents and instruments
shall be construed as though the Parties participated equally in the drafting of
the same. Consequently, the Parties acknowledge and agree that any rule of
construction that a document is to be construed against the drafting party shall
not be applicable either to this Agreement or such other documents and
instruments.
SECTION 8.13 WAIVER OF COMPLIANCE. To the extent permitted by Applicable
Laws, any failure of any of the Parties to comply with any obligation, covenant,
agreement or condition set forth herein may be waived by the Party entitled to
the benefit thereof only by a written instrument signed by such Party, but any
such waiver shall not operate as a waiver of, or estoppel with respect to, any
prior or subsequent failure to comply therewith. The failure of a Party to this
Agreement to assert any of its rights under this Agreement or otherwise shall
not constitute a waiver of such rights.
SECTION 8.14 CONSENTS NOT UNREASONABLY WITHHELD. Wherever the consent or
approval of any Party is required under this Agreement, such consent or approval
shall not be unreasonably withheld, delayed or conditioned unless such consent
or approval is to be given by such Party at the sole or absolute discretion of
such Party or is otherwise similarly qualified.
SECTION 8.15 TIME OF ESSENCE. Time is of the essence in this Agreement. If
the date specified in this Agreement for giving any notice or taking any action
is not a Business Day (or if the period during which any notice is required to
be given or any action taken expires on a date which is not a Business Day),
then the date for giving such notice or taking such action (and the expiration
date of such period during which notice is required to be given or action taken)
shall be the next day which is a Business Day.
[SIGNATURE PAGE FOLLOWS]
19
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
MIRANT INVESTMENTS EUROPE UK, INC.
By /s/ William R. Bechstein
-------------------------------------
Name: William R. Bechstein
Title: Vice President
MIRANT HOLDINGS EUROPE UK, INC.
By /s/ William R. Bechstein
-------------------------------------
Name: William R. Bechstein
Title: Vice President
TOWERWEAVE LIMITED
By /s/ Robert W. Burke
-------------------------------------
Name: Robert W. Burke
Title: Director
20
SCHEDULE 1.1A
KNOWLEDGE OF SELLER
Richard F. Owen
Brian Kramschuster
21
SCHEDULE 1.1B
KNOWLEDGE OF PURCHASER
Rick Klingensmith
John Yardley
22
SCHEDULE 1.1C
WPDI SHARES
MIRANT INVESTMENTS EUROPE UK, INC.
- ----------------------------------
245 "A" Shares of(pound)1.00 each of WPD Investment Holdings Limited
MIRANT HOLDINGS EUROPE UK, INC.
- -------------------------------
245 "A" Shares of(pound)1.00 each of WPD Investment Holdings Limited
23
SCHEDULE 3.1(A)(VI)
OFFICER AND DIRECTOR RESIGNATIONS
1. Richard F. Owen
---------------
Director, WPD Investment Holdings Limited
Director, WPD Limited
Director, Hyder Limited
2. Christopher J. Edwards
----------------------
Director, WPD Investment Holdings Limited
Director, WPD Limited
24