EXHIBIT 10.5
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of May 19, 2003 (this
"Agreement"), between MEHC Investment, Inc., a South Dakota corporation (the
"Seller"), MidAmerican Energy Holdings Company, an Iowa corporation
("MidAmerican"), and The Williams Companies, Inc., a Delaware corporation (the
"Purchaser").
W I T N E S S E T H:
WHEREAS, the Seller is the owner of 1,466,667 shares (the
"Shares") of 9-7/8% Cumulative Convertible Preferred Stock, par value $1.00 per
share, of the Purchaser (the "Preferred Stock"), purchased pursuant to the Stock
Purchase Agreement, dated as of March 7, 2002 (the "Purchase Agreement"), by and
among the Purchaser, the Seller and MidAmerican;
WHEREAS, the Purchaser desires to repurchase the Shares from
the Seller and the Seller desires to sell the Shares to the Purchaser; and
WHEREAS, the Seller is a wholly owned subsidiary of
MidAmerican.
NOW, THEREFORE, in consideration of the foregoing premises and
the representations, warranties, covenants and agreements set forth herein, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and subject to the terms and conditions set forth herein,
the parties hereto hereby agree as follows:
SECTION 1. PURCHASE AND SALE
(a) Subject to the terms and conditions set forth in this
Agreement and in reliance upon the Purchaser's and Seller's respective
representations and warranties set forth below, on the Closing Date, the Seller
shall sell to the Purchaser, and the Purchaser shall purchase from the Seller,
the Shares for an aggregate purchase price of $288,750,000 (the "Purchase
Price"). Such sale and purchase shall be effected on the Closing Date by the
Seller delivering to the Purchaser the stock certificate evidencing the Shares
together with a duly executed stock power, against delivery by the Purchaser to
the Seller of the Purchase Price by wire transfer of immediately available
United States dollars to such account as the Seller shall designate prior to the
Closing Date.
(b) The closing of such sale and purchase (the "Closing")
shall take place at 10:00 a.m. on the first business day after the satisfaction
or waiver of the conditions set forth in Sections 5(c) and 6(c) (provided that
if, on the first date that such conditions are satisfied, all necessary
consents, waivers, authorizations and approvals are by their express terms
irrevocable, then the Closing shall be on such business day thereafter as may be
specified by Purchaser to Seller in a notice delivered at least two business
days prior to such closing date but in no event
shall such closing date be later than July 15, 2003), or at such other time as
the Purchaser and the Seller shall agree in writing (the "Closing Date"), at the
offices of Willkie Farr & Gallagher, 787 Seventh Avenue, New York, New York
10019, or such other location as the Purchaser and the Seller shall mutually
select.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND MIDAMERICAN
The Seller and MidAmerican represent and warrant to the
Purchaser that:
2.1. Organization, Good Standing, Qualification, Etc.
(a) The Seller is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of South
Dakota, and it has the requisite corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement. MidAmerican
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Iowa, and it has the requisite corporate power and
authority to execute and deliver this Agreement, to perform its obligations
hereunder and to consummate the transactions contemplated hereby, and has taken
all necessary action to authorize the execution, delivery and performance of
this Agreement. No other action on the part of the Seller or MidAmerican is
necessary to authorize the execution, delivery and performance of this Agreement
by the Seller or MidAmerican and each of the transactions contemplated hereby.
(b) This Agreement constitutes a valid and binding
obligation of the Seller and MidAmerican, enforceable against the Seller and
MidAmerican in accordance with its terms, except as such enforceability may be
limited by general principles of equity or applicable bankruptcy, insolvency,
reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally, the enforcement of creditors' rights and remedies.
(c) The execution and delivery by the Seller and
MidAmerican of this Agreement do not, and the fulfillment of the terms hereof by
the Seller and MidAmerican will not:
(i) require the Seller or MidAmerican or any of their
Affiliates to obtain any consent, approval or action
of, or make any filing with or give any notice to,
any Person the failure of which to obtain, make or
give would, individually or in the aggregate,
reasonably be expected to delay or prevent the
fulfillment of the terms of this Agreement or have a
material adverse effect on the assets, properties,
business, net income or financial condition of the
Seller and its subsidiaries, taken as a whole; or
(ii) result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, or
permit the acceleration of rights under or
termination of, the Seller's or MidAmerican's
organizational documents, any agreement, lease,
contract, note, mortgage, indenture, arrangement or
other obligations to which the Seller or MidAmerican
or any of their
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Affiliates is a party, or any order, judgment, rule
or regulation of any Governmental Entity having
jurisdiction over the Seller or MidAmerican or any of
their Affiliates or over their respective assets,
properties or businesses, except for such breaches,
defaults, accelerations and terminations that would
not, individually or in the aggregate, reasonably be
expected to delay or prevent the fulfillment of terms
of this Agreement or have a material adverse effect
on the assets, properties, business, net income or
financial condition of MidAmerican and its
subsidiaries, taken as a whole.
2.2. Shares
The Seller is the sole beneficial owner of the Shares and owns
the Shares free and clear of adverse claims, liens or restrictions on transfer,
except as set forth in Section 5.3 of the Purchase Agreement, and, upon delivery
of the Shares and payment therefore pursuant hereto, the Purchaser will have
acquired all legal and beneficial ownership of the Shares, free and clear of
such adverse claims, liens or restrictions on transfer (except as set forth in
Section 5.3 of the Purchase Agreement).
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser represent and warrant to the Seller as follows:
(a) The Purchaser is a corporation duly incorporated,
validly existing and in good standing under the laws of the State of Delaware,
and it has the requisite corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby, and has taken all necessary action to
authorize the execution, delivery and performance of this Agreement. No other
action on the part of the Purchaser is necessary to authorize the execution,
delivery and performance of this Agreement by the Purchaser and each of the
transactions contemplated hereby.
(b) This Agreement constitutes a valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms, except as such enforceability may be limited by general
principles of equity or applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally, the
enforcement of creditors' rights and remedies.
(c) Except as set forth on Schedule 3(c), the execution
and delivery by the Purchaser of this Agreement do not, and the fulfillment of
the terms hereof by the Purchaser will not:
(i) require the Purchaser or any of its Affiliates to
obtain any consent, approval or action of, or make
any filing with or give any notice to, any Person the
failure of which to obtain, make or give would,
individually or in the aggregate, reasonably be
expected to delay or prevent the fulfillment of the
terms of this Agreement or have a material adverse
effect on the assets, properties, business, net
income or financial condition of the Purchaser and
its subsidiaries, taken as a whole; or
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(ii) result in a breach of any of the terms, conditions or
provisions of, or constitute a default under, or
permit the acceleration of rights under or
termination of, the Purchaser's organizational
documents, any agreement, lease, contract, note,
mortgage, indenture, arrangement or other obligation
to which the Purchaser or any of its Affiliates, is a
party, or any order, judgment, rule or regulation of
any Governmental Entity having jurisdiction over the
Purchaser or any of its Affiliates or over their
respective assets, properties or businesses, except
for such breaches, defaults, accelerations and
terminations that would not, individually or in the
aggregate, reasonably be expected to delay or prevent
the fulfillment of the terms of this Agreement or
have a material adverse effect on the assets,
properties, business, net income or financial
condition of the Purchaser and its subsidiaries,
taken as a whole.
(d) The Purchaser has accumulated "earning and profits"
as of the taxable year ended December 31, 2002 which, when added to the current
"earnings and profits" for the taxable year ended December 31, 2003, will be
sufficient in the aggregate to qualify any dividends declared on the Shares
through the Closing Date as a "dividend" within the meaning of Section 316(a) of
the Internal Revenue Code of 1986, as amended.
(e) The Purchaser is and, after giving effect to the
purchase of the Shares and the other obligations being incurred in connection
with this Agreement, will be "Solvent". As used herein, the term "Solvent"
means, as of any date of determination, that (a) the amount of the "present fair
saleable value" of the assets of the Purchaser will, as of such date, exceed the
amount of all "liabilities" of the Purchaser, "contingent or otherwise", as of
such date, as such quoted terms are determined in accordance with applicable
federal and state laws governing determinations of the insolvency of debtors of
debtors, (b) the Purchaser will not have, as of such date, an unreasonably small
amount of capital with which to conduct its business, (c) the Purchaser will be
able to pay its debts as they mature, and (d) the Purchaser is not insolvent
within the meaning of any applicable requirements of law in the jurisdictions
where Purchaser is located or where the transactions contemplated by this
Agreement are occurring. For purposes of this definition, (i) "debt" means
liability on a "claim", and (ii) "claim" means any (x) right to payment, whether
or not such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
(f) The Purchaser currently has sufficient immediately
available funds in cash or cash equivalents and will on the Closing Date have
sufficient immediately available funds, in cash, to pay the Purchase Price and
to pay any other amounts payable pursuant to this Agreement and to effect the
transactions contemplated hereby.
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SECTION 4. COVENANTS
4.1. Covenants of the Seller and the Purchaser
Subject to the terms and conditions of this Agreement, each of
the parties shall use reasonable best efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary or desirable under
applicable legal requirements, to consummate and make effective the transactions
contemplated by this Agreement. If at any time after the Closing Date, any
further action is necessary or desirable to carry out the purposes of this
Agreement, the parties hereto shall use their reasonable best efforts to take or
cause to be taken all such necessary or desirable action and execute, deliver
and file, or cause to be executed, delivered and filed, all necessary or
desirable documentation.
4.2. Covenants of the Seller
After the date hereof and prior to the Closing Date, except as
(i) expressly provided for in this Agreement, or (ii) consented to in writing by
the Purchaser, the Seller will not:
(i) take any action, or knowingly omit to take any
action, that would, or that would reasonably be
expected to, result in (A) any of the representations
and warranties of the Seller set forth in Section 2
becoming untrue, or (B) any of the conditions to the
obligations of the Purchaser set forth in Section 5
not being satisfied; or
(ii) enter into any agreement or commitment to do any of
the foregoing.
4.3. Covenants of the Purchaser
(a) After the date hereof and prior to the Closing Date,
except as (i) expressly provided for in this Agreement, or (ii) consented to in
writing by the Seller, the Purchaser will not:
(i) take any action, or knowingly omit to take any
action, that would, or that would reasonably be
expected to, result in (A) any of the representations
and warranties of the Purchaser set forth in Section
3 becoming untrue, or (B) any of the conditions to
the obligations of the Seller set forth in Section 6
not being satisfied; or
(ii) enter into any agreement or commitment to do any of
the foregoing.
(b) The Purchaser shall use its commercially reasonable
efforts to validly obtain all consents, authorizations, waivers and approvals
required to be obtained by the Purchaser or its Affiliates to perform its
obligations under this Agreement. The Purchaser shall provide the Seller with
such current and full updates with respect to the status of such consents,
authorizations, waivers and approvals as the Seller may reasonably request from
time to time.
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SECTION 5. CLOSING CONDITIONS OF THE PURCHASER
The obligations of the Purchaser to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction on or prior
to the Closing Date of the following conditions, any one or more of which may be
waived by the Purchaser in accordance with Section 7.4:
(a) All representations and warranties made by the Seller
in this Agreement shall be true and correct in all material respects (except
that the representations and warranties made in Section 2.1(c) and Section 2.2
shall be true and correct in all respects) on and as of the Closing Date as if
again made by the Seller on and as of such date.
(b) The Seller shall have performed in all material
respects all obligations required under this Agreement to be performed by it on
or before the Closing Date.
(c) The Purchaser shall have received a certificate,
dated the Closing Date, signed by the Chief Executive Officer or the Chief
Financial Officer of the Seller, certifying that the conditions specified in the
foregoing paragraphs (a) and (b) of this Section 5 have been satisfied.
(d) The consents, waivers, authorizations and approvals
set forth on Schedule 3(c) shall have been obtained and shall be in full force
and effect on the Closing Date.
(e) No preliminary or permanent injunction or other order
issued by any Governmental Entity, nor any statute, rule, regulation, decree or
executive order promulgated or enacted by any Governmental Entity, which
declares this Agreement or the Preferred Stock invalid or unenforceable in any
respect or which prevents the consummation of the transactions contemplated
hereby or thereby, shall be in effect; and no action or proceeding before any
Governmental Entity shall have been instituted by a Governmental Entity or
threatened by any Governmental Entity which seeks to prevent or delay the
consummation of the transactions contemplated by this Agreement or which
challenges the validity or enforceability of this Agreement or the Preferred
Stock.
SECTION 6. CLOSING CONDITIONS OF THE SELLER
The obligations of the Seller to effect the transactions
contemplated by this Agreement shall be subject to the satisfaction on or prior
to the Closing Date of the following conditions, any one or more of which may be
waived by the Seller in accordance with Section 7.4:
(a) All representations and warranties made by the
Purchaser in this Agreement shall be true and correct in all material respects
(except that the representations and warranties made in Sections 3(c), 3(d) and
3(e) shall be true and correct in all respects and the representations and
warranties made in Section 3(f) shall be true and correct in all respects as of
the Closing Date) on and as of the Closing Date as if again made by the
Purchaser on and as of such date.
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(b) The Purchaser shall have performed in all material
respects all obligations required under this Agreement to be performed by it on
or before the Closing Date.
(c) To the extent that the agreements set forth on
Schedule 3(c) have not been terminated and have no further force and effect as
of the Closing Date (as demonstrated by evidence reasonably satisfactory to
Seller and MidAmerican), the consents, waivers, authorizations and approvals set
forth on Schedule 3(c), except for the consent required under the transaction
described in paragraph 6 of such Schedule, shall have been validly obtained and
shall be in full force and effect on the Closing Date.
(d) The Seller shall have received a certificate, dated
the Closing Date, signed by the Chief Executive Officer or the Chief Financial
Officer of the Purchaser, certifying that the conditions specified in the
foregoing paragraphs (a), (b) and (c) of this Section 6 have been satisfied.
(e) The Seller shall have received the opinion of White &
Case, LLP, dated the Closing Date and addressed to the Seller, in form and
substance reasonably satisfactory to the Seller, that, to the extent that the
agreements set forth in Schedule 3(c) have not been terminated and have no
further force and effect as of the Closing Date, the execution, delivery and
performance by the Purchaser of this Agreement does not violate the agreements
set forth on Schedule 3(c), with the exception of the agreement listed in
paragraph 6 of Schedule 3(c).
(f) (A) If the Closing Date occurs on or prior to July 1,
2003, then (i) at least ten days prior to the dividend payment date and before
seeking any of the third party consents required to consummate the transactions
contemplated hereby, the Purchaser shall have declared the regular quarterly
dividend on the Preferred Stock for the period ending June 30, 2003 and it shall
be payable on the earlier of the Closing Date or July 1, 2003 to holders of
record of the Shares on May 19, 2003 and (ii) such dividend shall have been paid
to such record holder on or prior to the Closing Date; provided that, if the
Closing Date occurs before July 1, 2003, then the Purchaser shall only be
required to have paid a dividend on the Shares in an aggregate amount equal to
the product of the regular quarterly dividend amount of $6,789,062.50 multiplied
by a fraction the numerator of which is the number of days elapsed in the second
quarter of 2003 from and including April 1, 2003 through the day preceding the
Closing Date and the denominator of which is 90; or (B) if the Closing Date
occurs after July 1, 2003, then (i) the Purchaser shall have declared and paid
the regular quarterly dividend on the Preferred Stock for the period ended June
30, 2003, (ii) at least ten days prior to the Closing Date the Purchaser shall
have declared the regular quarterly dividend on the Preferred Stock for the
period ending September 30, 2003 and it shall be payable on the Closing Date to
holders of record of the Shares on May 19, 2003 and (iii) such dividend shall
have been paid to such record holder on or prior to the Closing Date; provided
that the Purchaser shall only be required to have paid a dividend on the Shares
in an amount equal to the product of the regular quarterly dividend amount of
$6,789,062.50 multiplied by a fraction the numerator of which is the number of
days elapsed in the third quarter of 2003 from and including July 1, 2003
through the day preceding the Closing Date and the denominator of which is 90.
(g) No preliminary or permanent injunction or other order
issued by any Governmental Entity, nor any statute, rule, regulation, decree or
executive order promulgated or
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enacted by any Governmental Entity, which declares this Agreement or the
Preferred Stock invalid or unenforceable in any respect or which prevents the
consummation of the transactions contemplated hereby or thereby, shall be in
effect; and no action or proceeding before any Governmental Entity shall have
been instituted by a Governmental Entity or threatened by any Governmental
Entity which seeks to prevent or delay the consummation of the transactions
contemplated by this Agreement or which challenges the validity or
enforceability of the Transaction Documents or the Preferred Stock.
SECTION 7. TERMINATION, AMENDMENT AND WAIVER
7.1. Termination
(a) This Agreement may be terminated and the transactions
contemplated hereby may be abandoned at any time prior to the Closing:
(i) by mutual written consent of the Seller and the
Purchaser;
(ii) by the Seller, in the event that the Purchaser fails
to comply with any of its covenants or agreements
contained herein, or breaches its representations and
warranties contained herein, such failure to comply
or breach, if curable, is not cured within five
business days after receipt by the Purchaser of
notice specifying particularly such failure to comply
or breach, and such failure to comply or breach would
result in the failure to satisfy the conditions set
forth in Sections 6(a), 6(b), 6(c) and/or 6(f) on or
before July 15, 2003;
(iii) by the Purchaser, in the event that the Seller fails
to comply with any of its covenants or agreements
contained herein, or breaches its representations and
warranties contained herein, such failure to comply
or breach, if curable, is not cured within five
business days after receipt by the Seller of notice
specifying particularly such failure to comply or
breach, and such failure to comply or breach would
result in a failure to satisfy the conditions set
forth in Section 5(a) and/or 5(b) on or before July
15, 2003;
(iv) by the Seller or the Purchaser, in the event that a
Governmental Entity 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 best efforts to lift), which
permanently restrains, enjoins or otherwise prohibits
the transactions contemplated by this Agreement and
which is not subject to appeal;
(b) This Agreement shall terminate automatically if the
Closing Date has not occurred by July 15, 2003.
7.2. Effect of Termination
In the event of termination and abandonment of this Agreement
pursuant to Section 7.1(a), written notice thereof shall forthwith be given to
the other party hereto and this
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Agreement shall terminate and the transactions contemplated hereby shall be
abandoned, without further action by the Seller or the Purchaser. If (x) this
Agreement is terminated as provided herein by the Seller pursuant to Section
7.1(a)(ii) or (y) this Agreement is terminated pursuant to Section 7.1(b) and,
on July 15, 2003, all consents, waivers, authorizations and approvals set forth
on Schedule 3(c) have not been obtained or are not in full force and effect or
the failure to consummate the transaction on or prior to July 15, 2003 was
otherwise not due solely to a failure of the conditions set forth in Section
5(a), Section 5(b) or Section 5(c) to be satisfied, then the Purchaser shall pay
the Seller a cash termination fee (the "Termination Fee") of $13,750,000,
payable within three business days of the date of the termination of this
Agreement. If (x) this Agreement is terminated as provided herein by the
Purchaser pursuant to Section 7.1(a)(iii) or (y) this Agreement is terminated
pursuant to Section 7.1(b) and, on July 15, 2003, all consents, waivers,
authorizations and approvals set forth on Schedule 3(c) have been validly
obtained and are in full force and effect and the failure to consummate the
closing on or prior to July 15, 2003 was due solely to a failure of the
conditions set forth in Section 5(a), 5(b) or 5(c), then the Seller shall pay
the Purchaser a cash termination fee (the "Seller Fee") of $13,750,000, payable
within three business days of the date of such termination of this Agreement. If
this Agreement is otherwise terminated as provided herein, no party to this
Agreement shall have any liability or further obligation to any other party to
this Agreement. Notwithstanding the foregoing, no termination of this Agreement
pursuant to this Section 7 shall relieve any party of liability for
misrepresentation or breach of any provision of this Agreement occurring before
such termination, provided that (x) the sole liability of the Purchaser for any
breach or misrepresentation by it hereunder upon termination of this Agreement
shall be the payment of the Termination Fee and (y) the sole liability of the
Seller or the Guarantor for any breach or misrepresentation hereunder upon
termination of this Agreement shall be the payment of the Seller Fee.
7.3. Amendment
This Agreement may be amended, modified or supplemented only
by a written instrument executed by the parties hereto.
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7.4. Waiver
The Purchaser or the Seller may, by written notice to the
other party (i) extend the time for the performance of any of the obligations or
other actions of the other party hereto, (ii) waive any inaccuracies in the
representations and warranties of the other party contained in this Agreement or
in any documents delivered pursuant to this Agreement by the other party, (iii)
waive compliance with any of the covenants of the other party contained in this
Agreement, (iv) waive performance of any of the obligations of the other party
or (v) waive fulfillment of any of the conditions to its own obligations under
this Agreement or in any documents delivered pursuant to this Agreement by the
other party. The waiver by either party hereto of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach, whether or not similar, unless such waiver specifically states that it
is to be construed as a continuing waiver.
SECTION 8. INTERPRETATION OF THIS AGREEMENT
8.1. Certain Terms Defined
As used in this Agreement, the following terms have the
respective meanings set forth below:
Affiliate: shall mean a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, the first mentioned Person.
Governmental Entity: shall mean any U.S. or non-U.S. (a)
federal, state, county, local or municipal governmental, administrative or
regulatory authority, agency, commission, tribunal, body or political
subdivision thereof, (b) other governmental, quasi-governmental, regulatory or
self-regulatory entity, (c) court or administrative tribunal, or (d) arbitration
tribunal or other non-Governmental Entity with applicable jurisdiction.
Person: shall mean an individual, corporation, association,
trust, limited liability company, limited partnership, limited liability
partnership, partnership, incorporated organization, other entity or group (as
defined in Section 13(d)(3) of the Securities Exchange Act of 1934), and a
Governmental Entity.
8.2. Governing Law
This Agreement shall be governed by and construed in
accordance with the internal and substantive laws of New York and without regard
to any conflicts of laws concepts, which would apply the substantive law of some
other jurisdiction.
8.3. Paragraph and Section Headings
The headings of the sections and subsections and any table of
contents of this Agreement are solely for convenience of reference and shall not
affect the meaning or interpretation of this Agreement or any term or provision
hereof.
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SECTION 9. SURVIVAL
The respective representations and warranties of the parties
hereto contained herein or in any certificates or other documents delivered
pursuant to this Agreement on the Closing shall survive the Closing.
SECTION 10. MISCELLANEOUS
10.1. Notices
(a) All notices and other communications given or made
pursuant to this Agreement shall be in writing and shall be deemed to have been
duly made or delivered, if delivered personally or sent by overnight courier or
facsimile (with evidence of confirmation of receipt), in each case to the
parties at the following addresses:
(1) if to the Seller:
MEHC Investment, Inc.
C/o MidAmerican Capital
335 Sioux Point Road
Suite 100
Dakota Dunes, SD 57049
Attention: Dennis Melstad
Facsimile: (605) 232-5925
With a copy to:
MidAmerican Energy Holdings Company
320 South 36th St.
Suite 400
Omaha, NE 68131
Attention: Douglas L. Anderson, Esq.
Facsimile: (402) 231-1658
With a copy to:
Willkie Farr & Gallagher
787 Seventh Avenue
New York, New York 10019-6009
Attention: Peter J. Hanlon, Esq. / William N. Dye, Esq.
Facsimile: (212) 728-8111
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(2) if to the Purchaser:
The Williams Companies, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Attention: Debbie Fleming
Facsimile: (918) 573-2065
With a copy to:
The Williams Companies, Inc.
One Williams Center
Tulsa, Oklahoma 74172
Attention: James J. Bender, Esq.
Facsimile: (918) 573-5942
With a copy to:
White & Case LLP
1155 Avenue of the Americas
New York, New York 10036
Attention: David E. Joyce
Facsimile: (212) 354-8113
or such other persons or at such other addresses as shall be furnished by either
party by like notice to the other, and such notice or communication shall be
deemed to have been given or made as of the date so delivered or mailed. No
change in any of such addresses shall be effective insofar as notices under this
Section 10.1 are concerned unless such changed address is located in the United
States of America and notice of such change shall have been given to such other
party hereto as provided in this Section 10.1.
10.2. Expenses
All legal, accounting, financial advisory and other fees,
costs and expenses of a party hereto incurred in connection with this Agreement
and the performance of the transactions contemplated hereby shall be paid by the
party incurring such fees, costs and expenses.
10.3. Publicity
On or prior to the Closing Date, neither party shall, nor
shall it permit its Affiliates to, issue or cause the publication of any press
release or other announcement with respect to this Agreement or the transactions
contemplated hereby without the consent of the other party hereto.
Notwithstanding the foregoing, in the event any such press release or
announcement is required (in the reasonable judgment of either party after
consulting with outside counsel experienced in such matters) by law or stock
exchange rule to be made by the
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party proposing to issue the same, such party shall use its reasonable best
efforts to consult in good faith with the other party prior to the issuance of
any such press release or announcement.
10.4. Confidentiality
The Seller and MidAmerican agree to keep the material
non-public information with respect to the Purchaser and its subsidiaries
provided to Seller or MidAmerican in connection with the transactions
contemplated by this Agreement (the "Confidential Information") strictly
confidential and not to disclose any of it to anyone without the prior written
consent of the Purchaser, provided that the Seller and MidAmerican may disclose
such information to (a) the Seller's or MidAmerican's auditors, accountants,
attorneys and other professional advisors in connection with such auditors',
accountants', attorneys' and advisors' performance of professional services for
the Seller, if the Seller or MidAmerican (i) advises such auditors, accountants,
attorneys and advisors, as the case may be, of the confidential nature of such
Confidential Information and (ii) imposes on such auditors, accountants,
attorneys and advisors (or they are otherwise subject to) confidentiality
obligations in respect of the Confidential Information comparable to those which
MidAmerican ordinarily imposes with respect to its own confidential information,
and (b) to any regulatory authorities or examiners or any rating agencies in
connection with their supervision, examination or ratings of the Seller or
MidAmerican or any affiliate thereof or as required in any reports filed by the
Seller or such affiliate with such regulatory authorities or as may otherwise be
required by applicable laws. The confidentiality obligations imposed by the
foregoing sentence shall not apply, or shall cease to apply, to any such
information (a) which was or becomes generally available to the public other
than as a result of a disclosure by the Seller or MidAmerican (or any of their
respective employees, officers, directors, representatives, agents or advisors)
in violation of the terms of this Agreement, (b) which was available, or becomes
available, to the Seller or MidAmerican on a non-confidential basis prior to its
disclosure by the Purchaser or (c) becomes known to the Seller or MidAmerican
from a source other than the Purchaser under circumstances not involving a
breach known to the Seller or MidAmerican of a confidentiality obligation of
such source to the Purchaser. The obligations of Seller and MidAmerican under
this Section 10.4 shall terminate on, and be of no further effect from and
after, the first anniversary of the date of this Agreement.
10.5. Submission to Jurisdiction
With respect to any suit, action or proceeding initiated by a
party to this Agreement arising out of, under or in connection with this
Agreement or the transactions contemplated hereby, the Seller and the Purchaser
each hereby submit to the exclusive jurisdiction of any state or federal court
sitting in the State of New York and irrevocably waive, to the fullest extent
permitted by law, any objection that they may now have or hereafter obtain to
the laying of venue in any such court in any such suit, action or proceeding.
10.6. Successors and Assigns
The rights and obligations of the parties hereto shall inure
to the benefit of and shall be binding upon the authorized successors and
permitted assigns of each party. Neither party hereto may assign its rights or
obligations under this Agreement or designate another
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person (i) to perform all or part of its obligations under this Agreement or
(ii) to have all or part of its rights and benefits under this Agreement, in
each case without the prior written consent of the other party.
10.7. Entire Agreement
This Agreement represents the entire agreement and
understanding of the parties with reference to the transactions set forth herein
and therein and no representations or warranties have been made in connection
with this Agreement other than those expressly set forth herein or in the
certificates and other documents delivered in accordance herewith. This
Agreement supersedes all prior negotiations, discussions, correspondence,
communications, understandings and agreements between the parties relating to
the subject matter of this Agreement and all prior drafts of this Agreement, all
of which are merged into the final executed versions of this Agreement.
10.8. Severability
This Agreement shall be deemed severable, and the invalidity
or unenforceability of any term or provision hereof shall not affect the
validity or enforceability of this Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or
provision, the parties hereto intend that there shall be added as a part of this
Agreement a provision as similar in terms to such invalid or unenforceable
provision as may be possible and be valid and enforceable.
10.9. Counterparts
Facsimile transmission of any signed original document and/or
retransmission of any signed facsimile transmission shall be the same as
delivery of an original. At the request of the Seller or the Purchaser, the
parties will confirm facsimile transmission by signing a duplicate original
document. This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same agreement.
10.10. Guarantee
MidAmerican guarantees performance by the Seller of the
Seller's obligations under this Agreement.
10.11. Indemnity.
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From and after the Closing Date, notwithstanding the Closing
or the delivery of the Shares and regardless of any investigation at any time
made by or on behalf of the Seller or MidAmerican or of any knowledge or
information that the Seller or MidAmerican may have, the Purchaser shall
indemnify and agree to defend, save and hold the Seller and MidAmerican and
their officers, directors, employees, agents and affiliates (collectively, the
"INDEMNIFIED PARTIES") harmless if any such Indemnified Party shall at any time
or from time to time suffer any damage, judgment, fine, penalty, demand,
settlement, liability, loss, cost, Tax, expense (including reasonable
attorneys', consultants' and experts' fees), claim or cause of action (each, a
"LOSS") arising out of, relating to, or resulting from any failure by Purchaser
to obtain or maintain in full force and effect any consent, waiver,
authorization or approval relating to the agreements described in paragraph 6 of
Schedule 3(c) and/or any related cross-defaults. Without limiting the foregoing,
the Indemnified Parties shall have the right, but not the obligation, to
participate at Purchaser's expense in the defense of any claim or action by
counsel of the Indemnified Party's choice and to have their reasonable expenses
in connection therewith promptly reimbursed by Purchaser and shall in any event
use their reasonable best efforts to cooperate with and assist the Purchaser. If
the Purchaser fails timely to defend, contest or otherwise protect against such
suit, action, investigation, claim or proceeding, the Indemnified Parties shall
have the right to do so, including, without limitation, the right to make any
compromise or settlement thereof, and the Indemnified Parties shall be entitled
to recover the entire cost thereof from the Purchaser, including, without
limitation, reasonable attorneys' fees, disbursements and amounts paid as the
result of such suit, action, investigation, claim or proceeding.
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IN WITNESS WHEREOF, the Seller, the Purchaser and MidAmerican
have caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
THE WILLIAMS COMPANIES, INC.
By: /s/ Donald R. Chappell
------------------------------------
Name: Donald R. Chappell
Title: Senior Vice President and CFO
MEHC INVESTMENT, INC.
By: /s/Douglas L. Anderson
------------------------------------
Name: Douglas L. Anderson
Title: Vice President
MIDAMERICAN ENERGY HOLDINGS COMPANY.
By: /s/ Douglas L. Anderson
------------------------------------
Name: Douglas L. Anderson
Title: Senior Vice President
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