TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement"), dated as of February 22,
2002, is by and among Centrica plc, a limited company organized under the laws
of England and Wales ("Buyer") and DLJ Merchant Banking Partners II, L.P., a
Delaware limited partnership and the other stockholders of NewPower Holdings,
Inc., a Delaware corporation ("NewPower"), named on the signature pages hereto
(each, an "Equity Holder" and collectively, the "Equity Holders").
R E C I T A L S:
WHEREAS, concurrently with the execution and delivery of this
Agreement, Buyer, NewPower and Windsor Acquisition Corporation, a Delaware
corporation ("Acquisition Sub"), are entering into that certain Agreement and
Plan of Merger of even date herewith (the "Merger Agreement") providing for,
among other things, (i) promptly following the execution and delivery of the
Merger Agreement, the commencement by Buyer and Acquisition Sub of a tender
offer to purchase any and all outstanding shares of common stock, par value
$0.01 per share ("Common Stock") of NewPower, at a price of $1.05 per share
(subject to adjustment as provided in the Merger Agreement), net to the seller
in cash, which tender may also be made by delivery of Class A Warrants to
purchase Common Stock (the "Class A Warrants"), and Buyer or Acquisition Sub may
withhold from the payment made with respect to any Class A Warrant the exercise
price payable pursuant to such Class A Warrant so delivered, such tender offer
(such offer, as it may be extended and including any subsequent offering period
with respect thereto, the "Tender Offer") to be on the terms and subject to the
conditions set forth in the Merger Agreement and (ii) following the purchase of
Common Stock pursuant to the Tender Offer, a merger of Acquisition Sub into
NewPower (the "Merger"), as a result of which NewPower will be the surviving
corporation and will be a wholly owned subsidiary of Buyer (capitalized terms
used but not defined herein have the meanings assigned to such terms in the
Merger Agreement); and
WHEREAS, as of the date hereof, each Equity Holder beneficially owns
and has the power to dispose of the number of shares of Common Stock set forth
under the column entitled "Shares" in SCHEDULE I hereto (the "Owned Shares") and
beneficially owns the number of Class A Warrants set forth under the column
entitled "Class A Warrants" in SCHEDULE I hereto (the "Owned Class A Warrants");
and
WHEREAS, the Equity Holders are parties to the Voting Trust Agreement,
dated as of October 11, 2000 (the "Voting Trust Agreement"), among the Equity
Holders, Donaldson, Lufkin & Jenrette, Inc. and Christiana Bank & Trust Company,
as voting trustee (the "Voting Trustee"), pursuant to which the Equity Holders
have transferred to the Voting Trustee the record ownership of the Owned Shares
and the Owned Class A Warrants;
WHEREAS, the tender of at least a majority of NewPower's fully diluted
shares (as referenced in the Merger Agreement) of Common Stock in the Tender
Offer is a condition precedent to Buyer's and Acquisition Sub's obligation to
consummate the Tender Offer and any tender of Common Stock by the tender of
Class A Warrants shall be deemed to represent the tender of the Common Stock
underlying the Class A Warrants (as if the Class A Warrants so
tendered had been exercised and the cash exercise price for the Class A Warrants
had been paid pursuant to their terms) for purposes of satisfying such minimum
conditions; and
WHEREAS, as an inducement and a condition to its willingness to enter
into the Merger Agreement, Buyer has required that the Equity Holders enter
into, and the Equity Holders have agreed to enter into, this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants, conditions
and agreements contained herein the parties hereto agree as follows:
1. AGREEMENT TO TENDER; EXERCISE OF CLASS A WARRANTS. Each Equity
Holder hereby agrees that, prior to the closing of the Tender Offer, it shall
tender (or cause the record holder to tender) for purchase pursuant to the
Tender Offer, its Owned Shares and its Common Stock covered by the Owned Class A
Warrants (by tender of such Owned Class A Warrants) in the Tender Offer,
together with any shares of Common Stock acquired by such Equity Holder after
the date of this Agreement, whether upon the exercise of such Equity Holder's
Owned Class A Warrants, if any, or of options, conversion of convertible
securities or otherwise (such acquired shares and the Common Stock covered by
the Owned Class A Warrants, together with the Owned Shares, are referred to
herein collectively as the "Covered Shares"). Subject to applicable law, each
Equity Holder hereby further agrees that during the time this Agreement is in
effect, it shall not withdraw any Covered Shares tendered for purchase pursuant
to the Tender Offer. In connection with the tender of Covered Shares, each
Equity Holder shall deliver (or cause the record holder to deliver) to the
Exchange Agent designated in the Tender Offer (i) a letter of transmittal with
respect to such securities complying with the terms of the Tender Offer, (ii)
certificates representing such Covered Shares (including the documents
representing the Owned Class A Warrants) and (iii) all other documents or
instruments required to be delivered pursuant to the Tender Offer.
2. ACTIONS WITH RESPECT TO ANY TAKEOVER PROPOSAL. During the term of
this Agreement, each Equity Holder shall not, nor shall it permit any investment
banker, financial adviser, attorney, accountant or other representative or agent
engaged or employed by or on its behalf to, directly or indirectly (x) initiate,
solicit or encourage, directly or indirectly, any inquiries or the making of any
takeover proposal or (y) engage in any negotiations concerning, or provide any
confidential information or data to, or have any discussions with, any person
relating to, any takeover proposal, or otherwise facilitate any effort or
attempt to make or implement any takeover proposal.
3. DISPOSITION OF SHARES; INCONSISTENT ACTION. During the time this
Agreement is in effect, each Equity Holder hereby agrees that, except as
contemplated pursuant to this Agreement, after the date hereof, it will not
directly or indirectly sell, pledge, assign, encumber, grant any proxy or enter
into any voting or similar agreement with respect to, transfer or otherwise
dispose of (collectively, "Transfer"), or agree or contract to Transfer, any
Covered Shares (or any interest with respect thereto) or any Owned Class A
Warrants or take any other action that would restrict, limit or interfere with
the performance of such Equity Holder's obligations hereunder or the
transactions contemplated hereby.
2
4. COVENANTS
Each Equity Holder shall execute and deliver such additional
instruments and other documents and shall take such further actions as may be
reasonably necessary or appropriate to effectuate, carry out and comply with all
its obligations under this Agreement. None of the Equity Holders shall enter
into any agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) or take any other action (or fail to take any other
action) if such action (or failure) would materially impair the ability of any
party to effectuate, carry out or comply with all the terms of this Agreement.
Buyer hereby agrees to reasonably cooperate with the Equity Holders in
connection with any action required to be taken by the Equity Holders in
connection with the tender of Covered Shares pursuant to the Tender Offer or the
Merger and the transactions contemplated thereby.
5. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to the Equity Holders as follows:
(a) ORGANIZATION; DUE AUTHORIZATION; ENFORCEABILITY. Buyer and
Acquisition Sub are corporations duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and the State of
Delaware, respectively. Buyer has full corporate power and authority to execute
and deliver this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Buyer, and no other corporate proceeding
on the part of Buyer or Acquisition Sub is necessary to authorize this Agreement
or the Merger Agreement or to consummate the transactions contemplated hereby or
thereby. This Agreement has been duly and validly executed and delivered by
Buyer and constitutes a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally and to general principles of equity.
6. REPRESENTATIONS AND WARRANTIES OF THE EQUITY HOLDERS. Each Equity
Holder hereby represents and warrants, severally and not jointly with other
Equity Holders, to Buyer as follows:
(a) ORGANIZATION; DUE AUTHORIZATION; ENFORCEABILITY. Such Equity Holder
has full power and authority to execute and deliver this Agreement. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
necessary action on the part of such Equity Holder and no other proceeding on
the part of such Equity Holder is necessary to authorize this Agreement or to
consummate the transactions contemplated hereby. This Agreement has been duly
and validly executed and delivered by such Equity Holder, and constitutes a
valid and binding agreement of such Equity Holder, enforceable against such
Equity Holder in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally and to general principles of equity.
(b) OWNERSHIP OF SHARES. Such Equity Holder beneficially owns the Owned
Shares or Owned Class A Warrants set forth opposite such Equity Holder's name in
SCHEDULE I hereto free and clear of any liens, claims or encumbrances (other
than in connection with the Voting
3
Trust Agreement and the Stockholders Agreement (as defined below)), which Owned
Shares or Owned Class A Warrants constitute the only capital stock, or equity
interests of NewPower or its Subsidiaries owned, beneficially or of record, by
such Equity Holder. SCHEDULE I contains a true and complete number of Class A
Warrants of NewPower beneficially owned by each Equity Holder, and there are no
other options, warrants, calls, subscriptions or other rights or other
agreements or commitments of any character of or with such Equity Holder or its
affiliates or to which such Equity Holder or its affiliates is a party relating
to the issued or unissued shares of Common Stock or other capital stock or
treasury stock of NewPower or any of its Subsidiaries (other than the Voting
Trust Agreement and the Stockholders Agreement, dated as of January 6, 2000, as
amended (the "Stockholders Agreement"), among the stockholders parties thereto).
Except for this Agreement, the Stockholders Agreement and the Voting Trust
Agreement, the Owned Shares are not subject to any voting trust agreement or
other contract, agreement, arrangement, commitment or understanding restricting
or otherwise relating to the voting or disposition of such Owned Shares. The
representations in this Section 6(b) shall be deemed to be re-made as of the
closing of the Tender Offer and Schedule I hereto shall be appropriately
modified by each Equity Holder to the extent required.
(c) NO BREACH, ETC.; NO FEES. Except for any filings that may be
required under Section 13(d) or Section 16 of the Securities Exchange Act of
1934, as amended, no authorization, consent or approval of, or filing with, any
court, agency, commission, or any public body or authority, domestic or foreign,
is necessary for the consummation by such Equity Holder of the transactions
contemplated by this Agreement. The execution, delivery and performance of this
Agreement by such Equity Holder will not constitute a breach, violation or
default (or any event which, with notice or lapse of time or both, would
constitute a breach, violation or default) under, or result in the termination
of, or accelerate the performance required by, or result in a right of
termination or acceleration under, or result in the creation of any lien or
encumbrance upon any of the properties or assets of such Equity Holder under any
provision of applicable law or regulation or judgment, injunction, order or
decree binding on such Equity Holder, or any note, bond, mortgage, indenture,
deed of trust, license, lease, agreement or other instrument to which such
Equity Holder is a party or by which its properties or assets are bound, as the
case may be, other than breaches, violations, defaults, terminations,
accelerations or creation of liens and encumbrances which, in the aggregate,
would not impair the ability of such Equity Holder to perform its obligations
hereunder in any material respect. No investment banker, broker or finder is
entitled to a commission or fee from Buyer, Acquisition Sub, NewPower or any of
their respective affiliates (other than the Equity Holders) in respect of this
Agreement based upon any arrangement or agreement made by or on behalf of such
Equity Holder.
7. TERMINATION. This Agreement shall terminate and cease to be of any
force or effect on the earliest to occur of (A) the purchase of the Covered
Shares pursuant to the Tender Offer, (B) the Effective Time, and (C) the
termination of the Merger Agreement in accordance with its terms prior to the
purchase of any Covered Shares validly tendered and not withdrawn pursuant to
the Tender Offer.
4
8. MISCELLANEOUS
(a) NOTICES, ETC. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or three days after being mailed by
first class mail, postage prepaid, in each case to the applicable addresses set
forth below:
If to the Equity Holders:
DLJ Merchant Banking II, Inc.
11 Madison Avenue
New York, NY 10130
Attention: Ivy Dodes
Facsimile: (212) 892-7272
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attention: Stephen M. Besen
Facsimile: (212) 848-7179
if to Buyer:
Centrica plc
Millstream, Maidenhead Road
Windsor, Berkshire SL4 5GD
United Kingdom
Attention: Grant Dawson
Facsimile: 44 (1753) 494-602
with copies to:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Attention: Joseph B. Frumkin
Facsimile: (212) 558-3588
or to such other address as such party shall have designated by notice so given
to each other party.
(b) AMENDMENTS, WAIVERS, ETC. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by
instrument in writing signed by each of the parties hereto.
(c) SUCCESSORS AND ASSIGNS. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of
5
the other parties, except that Buyer may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to any direct or indirect
wholly owned U.S. subsidiary of Buyer (it being understood that no such
assignment shall relieve Buyer of its obligations hereunder). Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by, the parties and their respective successors and assigns.
The Equity Holders agree that this Agreement and the obligations of the Equity
Holders hereunder shall attach to the Covered Shares and the Owned Class A
Warrants, if any, and shall be binding upon any person or entity to which Equity
Holders' beneficial ownership of such Covered Shares and Owned Class A Warrants,
if any, shall pass after the date hereof, whether by operation of law or
otherwise, including the Equity Holders' administrators or successors.
(d) ENTIRE AGREEMENT. This Agreement and the Merger Agreement embody
the entire agreement and understanding among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings with
respect to such subject matter. There are no representations, warranties or
covenants by the parties hereto with respect to such subject matter other than
those expressly set forth in this Agreement and the Merger Agreement.
(e) SEVERABILITY. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that the
parties shall negotiate in good faith in an attempt to agree upon another
provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder to the fullest extent possible.
(f) SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the courts of the State of
Delaware and the federal courts of the United States of America located in the
State of Delaware, this being in addition to any other remedy to which they are
entitled at law or in equity.
(g) STOP TRANSFER RESTRICTION. In furtherance of this Agreement, the
Equity Holders shall, and hereby do authorize Acquisition Sub's counsel to
notify NewPower's transfer agent, that a stop transfer restriction is imposed
with respect to all of the Covered Shares and the Owned Class A Warrants (and
that this Agreement places limits on the transfer of the Covered Shares and
Owned the Class A Warrants). Notwithstanding the foregoing sentence, if such a
stop transfer is imposed and this Agreement is terminated, the Equity Holders
may notify the transfer agent that the stop transfer is terminated and Buyer
shall provide any and all notices or instructions to reflect such termination.
(h) REMEDIES CUMULATIVE. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
6
(i) NO WAIVER. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereto at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) THIRD PARTY BENEFICIARIES. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto. Notwithstanding the foregoing, the Equity Holders and the
Buyer agree and acknowledge that NewPower, shall be entitled to rely on, as a
third party beneficiary, the covenants and agreements set forth in this
Agreement
(k) GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL. (i) This Agreement
shall be deemed to be made in and in all respects shall be interpreted,
construed and governed by and in accordance with the law of the State of
Delaware applicable to contracts to be performed wholly in such state. The
parties hereby irrevocably submit to the jurisdiction of the courts of the State
of Delaware and the Federal courts of the United States of America located in
the State of Delaware solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in SECTION
8 or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(ii) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY
ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 8(k).
7
(l) NAME, CAPTIONS, GENDER; INTERPRETATION. The name assigned this
Agreement and the section captions used herein are for convenience of reference
only and shall not affect the interpretation or construction hereof. Whenever
the context may require, any pronoun used herein shall include the corresponding
masculine, feminine or neuter forms.
(m) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies of each signed by less than all, but together signed by all,
the parties hereto.
(n) EXPENSES. Each party hereto shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties have duly executed this Tender
Agreement as of the date first above written.
CENTRICA PLC
By: /s/ Grant Dawson
------------------------------------
Name: Grant Dawson
Title: General Counsel & Secretary
DLJ MERCHANT BANKING PARTNERS II, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Authorized Representative
DLJ MERCHANT BANKING
PARTNERS II-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Authorized Representative
DLJ DIVERSIFIED PARTNERS, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Vice President
9
DLJ DIVERSIFIED PARTNERS-A, L.P.
By: DLJ Diversified Partners, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ MILLENNIUM PARTNERS, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Authorized Representative
DLJ MILLENNIUM PARTNERS-A, L.P.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Authorized Representative
DLJ FIRST ESC L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Vice President
10
DLJ OFFSHORE PARTNERS II, C.V.
By: DLJ Merchant Banking II, Inc.
Managing General Partner
By: /s/ Ivy Dodes
------------------------------------
Name: Ivy Dodes
Title: Authorized Representative
DLJ EAB PARTNERS, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Vice President
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
General Partner
By: /s/ Ivy Dodes
-------------------------------------
Name: Ivy Dodes
Title: Vice President
DLJMB FUNDING II, INC.
By: /s/ Ivy Dodes
-----------------------------------
Name: Ivy Dodes
Title: Vice President
11
SCHEDULE I
CLASS A
EQUITY HOLDER SHARES WARRANTS
- ------------- ------ --------
DLJ Merchant Banking Partners II, L.P. 2,328,459 3,746,800
DLJ Merchant Banking Partners II-A, L.P. 92,805 149,400
DLJ Offshore Partners II, C.V. 114,533 184,200
DLJ Diversified Partners, L.P. 136,045 219,000
DLJ Diversified Partners-A, L.P. 50,611 81,400
DLJMB Funding II, Inc. 270,960 436,140
DLJ Millennium Partners, L.P. 37,623 60,600
DLJ Millennium Partners-A, L.P. 7,278 11,800
DLJ EAB Partners, L.P. 10,494 16,800
DLJ ESC II, L.P. 642,905 1,034,460
DLJ FIRST ESC L.P. 4,570 7,200
- ------------------ ----- -----
TOTAL FOR ALL EQUITY HOLDERS 3,696,283 5,947,800
12