Exhibit 99.3 EXECUTION COPY
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STOCK PURCHASE AGREEMENT
by and among
THE WILLIAMS COMPANIES, INC.,
MEHC INVESTMENT, INC.
and
MIDAMERICAN ENERGY HOLDINGS COMPANY
March 7, 2002
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TABLE OF CONTENTS
PAGE
SECTION 1. AUTHORIZATION OF PREFERRED AND COMMON STOCK............1
SECTION 2. PURCHASE AND SALE......................................2
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........2
3.1. Organization, Good Standing and Qualification......2
3.2. Significant Subsidiaries...........................3
3.3. Capitalization.....................................3
3.4. Authorization......................................4
3.5. Consents and Approvals; No Conflict................5
3.6. Company Reports; Financial Statements; Undisclosed
Liabilities; Statutory Statements................5
3.7. Absence of Certain Developments....................6
3.8. Litigation.........................................7
3.9. Compliance with Law; Permits.......................7
3.10. Material Contracts.................................7
3.11. Employee Benefits..................................8
3.12. Environmental Matters..............................8
3.13. Intellectual Property..............................9
3.14. Regulatory Matters................................10
3.15. Tax Matters.......................................10
3.16. Insurance.........................................11
3.17. Offering of Shares................................11
3.18. Investment Company................................11
3.19. Accuracy of Information...........................11
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.......11
SECTION 5. COVENANTS.............................................13
5.1. Covenants of the Company and the Purchaser........13
5.2. Covenants of the Company..........................13
5.3. Covenants of the Purchaser........................14
SECTION 6. CLOSING CONDITIONS OF THE PURCHASER...................15
SECTION 7. CLOSING CONDITIONS OF THE COMPANY.....................16
SECTION 8. TERMINATION, AMENDMENT AND WAIVER.....................17
8.1. Termination.......................................17
8.2. Effect of Termination.............................17
8.3. Amendment.........................................18
8.4. Waiver............................................18
SECTION 9. INTERPRETATION OF THIS AGREEMENT......................18
9.1. Certain Terms Defined.............................18
9.2. Schedules.........................................19
9.3. Governing Law.....................................19
9.4. Paragraph and Section Headings....................19
SECTION 10. SURVIVAL..............................................19
SECTION 11. MISCELLANEOUS.........................................19
11.1. Notices...........................................19
11.2. Expenses..........................................21
11.3. Publicity.........................................21
11.4. Submission to Jurisdiction........................21
11.5. Successors and Assigns............................21
11.6. Entire Agreement; Amendment and Waiver............21
11.7. Severability......................................22
11.8. Counterparts......................................22
11.9. Third Party Beneficiaries.........................22
11.10. Guarantee.........................................22
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated as of March 7, 2002 (this
"Agreement"), by and among The Williams Companies, Inc., a Delaware corporation
(the "Company"), MEHC Investment, Inc., a South Dakota corporation (the
"Purchaser") and MidAmerican Energy Holdings Company, an Iowa corporation
("MidAmerican").
W I T N E S S E T H:
WHEREAS, the Company has authorized the issuance of up to
1,466,667 shares of its 9-7/8% Cumulative Convertible Preferred Stock, which
shares will be upon issuance convertible into authorized but unissued shares of
common stock, par value $1.00 per share, of the Company; and
WHEREAS, the Company desires to issue and sell to the
Purchaser, and the Purchaser desires to purchase from the Company, 1,466,667
shares of 9-7/8% Cumulative Convertible Preferred Stock referred to herein, in
each case upon the terms and subject to conditions set forth in this Agreement;
and
WHEREAS, the Purchaser is a wholly owned subsidiary of
MidAmerican; and
WHEREAS, the Company and MidAmerican are, concurrently with
the execution of this Agreement, entering into a Purchase Agreement for the sale
and purchase of 100% of the partnership interests of Williams Gas Transmission
Company (the "Purchase Agreement").
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.........AUTHORIZATION OF PREFERRED AND COMMON STOCK
(a) The Company has authorized and created a series of its preferred stock,
consisting of 1,466,667 shares, par value $1.00 per share, designated as its
"9-7/8% Cumulative Convertible Preferred Stock" (the "Preferred Stock"). The
terms, limitations and relative rights and preferences of the Preferred Stock
are set forth in the Certificate of Designation of the 9-7/8% Cumulative
Convertible Preferred Stock of the Company, which the Company will file on or
before the Closing Date (as defined below) with the Secretary of State of the
State of Delaware and a copy of which is attached hereto as Exhibit A (the
"Certificate of Designation").
The Company has duly authorized and reserved for issuance the
shares of its common stock, par value $1.00 per share (the "Common Stock"),
issuable upon conversion of the Shares (as defined below).
SECTION 2.........PURCHASE AND SALE
(a) Subject to the terms and conditions set forth in this Agreement and in
reliance upon the Company's and the Purchaser's respective representations and
warranties set forth below, on the Closing Date, the Company shall issue and
sell to the Purchaser, and the Purchaser shall purchase from the Company,
1,466,667 shares of Preferred Stock (the "Shares"), at a purchase price of
$187.50 per share (the aggregate consideration to be paid by the Purchaser for
the Shares is referred to herein as the "Purchase Price"). Such sale and
purchase shall be effected on the Closing Date by the Company executing and
delivering to the Purchaser, duly registered in the name of the Purchaser (or
such other name as the Purchaser may instruct), a duly executed stock
certificate evidencing the Shares, against delivery by the Purchaser to the
Company of the Purchase Price (net of the fee referred to in Section 2(c) below)
by wire transfer of immediately available United States dollars to such account
as the Company shall designate prior to the Closing Date.
(b) The closing of such sale and purchase (the "Closing") shall take place
concurrently with the closing of the transactions contemplated by the Purchase
Agreement, after satisfaction or waiver of the conditions set forth in Sections
6 and 7, or at such other time as the Purchaser and the Company 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 Company shall mutually select.
(c) At the Closing, the Company shall pay the Purchaser a fee of $2,750,000 for
the purchase of the Shares contemplated herein, which fee the Purchaser shall
deduct from the Purchase Price payment.
SECTION 3.........REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser that:
3.1. Organization, Good Standing and Qualification
(a) The Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The Company has provided to
the Purchaser a complete and correct copy of the Company's Restated Certificate
of Incorporation and By-laws, each as amended to date (collectively, the
"Organizational Documents"), which are in full force and effect.
(b) The Company has all requisite power and authority to own and lease its
properties and assets and to carry on its business as now conducted.
(c) The Company is qualified to do business as a foreign corporation in, and the
Company is in good standing under the laws of, each jurisdiction in which the
conduct of the Company's business or the ownership, operation or leasing of its
assets or properties requires such qualification, except where the failure to so
qualify, or to be so in good standing, would not reasonably be expected to have
a Material Adverse Effect.
3.2. Significant Subsidiaries
Each significant subsidiary of the Company (as defined in Rule 1-02 of
Regulation S-X under the Securities Act of 1933, as amended (the "Securities
Act")) (a "Significant Subsidiary") has been duly organized or formed, is
validly existing and in good standing under the laws of the jurisdiction of its
organization or formation, has all requisite power and authority to own and
lease its properties and assets and to carry on its business as now conducted
and is duly registered, qualified and authorized to transact business and is in
good standing in each jurisdiction in which the conduct of its business or the
nature of its properties requires such registration, qualification or
authorization, except where the failure to be so qualified would not reasonably
be expected to have a Material Adverse Effect. All of the issued and outstanding
equity or other participating interests of each Significant Subsidiary have been
duly authorized and validly issued, to the extent such subsidiary is a
corporation, are fully paid and non-assessable, and, to the extent owned by the
Company, are owned free and clear of any Liens (as defined in Section 9.1),
other than such Liens (i) relating to any debt financing described in the
Company Reports (as defined herein), (ii) listed on Schedule 3.2, or (iii) that
do not materially detract from the value of such equity or participation
interest.
3.3. Capitalization
(a) The authorized capital stock of the Company consists of 960,000,000 shares
of Common Stock and 30,000,000 shares of preferred stock, par value $1.00 per
share. As of February 25, 2002, (i) 543,086,004 shares of Common Stock were
issued and outstanding, (ii) 356,000 shares of preferred stock were issued and
outstanding, consisting of 342,000 shares of December 2000 Cumulative
Convertible Preferred Stock, par value $1.00 per share (the "December Preferred
Stock"), and 14,000 shares of March 2001 Mandatorily Convertible Single Reset
Preferred Stock, par value $1.00 per share (the "March Preferred Stock"), (iii)
11,918,129 shares of Common Stock were reserved for issuance under the Company's
employee stock option and equivalent plans for options which have not yet been
granted, (iv) 234,540,489 shares of Common Stock were reserved for issuance
under the Company's outstanding options, warrants and securities convertible
into or exchangeable for Common Stock or otherwise entitling the holder thereof
to acquire (whether for consideration or otherwise) or requiring the Company to
issue Common Stock, of which (A) 29,767,489 shares of Common Stock are reserved
for issuance with respect to outstanding employee stock options, (B) 150,000,000
shares of Common Stock are reserved for issuance with respect to the March
Preferred Stock, (C) 10,773,000 shares of Common Stock are reserved for issuance
with respect to the December Preferred Stock, and (D) 44,000,000 shares of
Common Stock are reserved for issuance with respect to the Company's FELINE
PACS, and (v) there were no bonds, debentures, notes or other evidences of
indebtedness issued or outstanding having the right to vote on any matters on
which the Company's stockholders may vote. Except for the shares of Common Stock
referred to in clauses (ii), (iii) and (iv), the Company has no present or
future obligation to issue, and no Person has any present or future right to
receive, any shares of Common Stock.
(b) All of the outstanding shares of Common Stock of the Company have been duly
and validly issued and are fully paid and non-assessable, and to the knowledge
of the Company were issued in accordance with all applicable United States
federal and state securities laws. Upon issuance, sale and delivery as
contemplated by this Agreement, the Shares will be duly authorized, validly
issued, fully paid and non-assessable shares of Preferred Stock, free of all
preemptive or similar rights. Upon their issuance in accordance with the terms
of the Preferred Stock, the shares of Common Stock issuable upon conversion of
the Shares will be duly authorized, validly issued, fully paid and
non-assessable shares of Common Stock, free of all preemptive or similar rights.
(c) Except for the rights attached to the options issued under the Company's
employee stock option plans or as otherwise set forth on Schedule 3.3(c) hereto,
there are no existing options, warrants, calls, preemptive (or similar) rights,
subscriptions, conversion or exchange obligations or other rights, agreements,
arrangements or commitments of any character obligating the Company to issue,
transfer or sell, or cause to be issued, transferred or sold, any shares of the
capital stock of the Company or other equity interests in the Company or any
securities convertible into or exchangeable for such shares of capital stock or
other equity interests, and there are no outstanding contractual obligations of
the Company to repurchase, redeem or otherwise acquire any shares of its capital
stock or other equity interests.
(d) Except as set forth on Schedule 3.3(d), no Person has any right to effect,
or to require the Company to effect, the registration of any shares of Common
Stock. For purposes of this section 3.3(d), the term "registration" shall mean a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act (and any post-effective amendments filed or
required to be filed) and the declaration or ordering of effectiveness of such
registration statement.
3.4. Authorization
The Company has all necessary corporate power and authority to execute
and deliver this Agreement and the Registration Rights Agreement, the form of
which is attached as Exhibit B hereto (the "Registration Rights Agreement" and
together with this Agreement, the "Transaction Documents"), to perform its
obligations under the Transaction Documents and the Preferred Stock and to
consummate the transactions contemplated by the Transaction Documents and the
Preferred Stock. The execution, delivery and performance, as applicable, of the
Transaction Documents and the Preferred Stock by the Company and each of the
transactions contemplated hereby and thereby have been duly and validly
authorized by all necessary corporate action on the part of the Company. No
other corporate action on the part of the Company is necessary to authorize the
execution, delivery and performance, as applicable, of the Transaction Documents
and the Preferred Stock by the Company and each of the transactions contemplated
hereby and thereby. This Agreement constitutes, and upon execution and delivery
the Registration Rights Agreement shall constitute, a valid and binding
obligation of the Company enforceable against the Company 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.
3.5. Consents and Approvals; No Conflict
(a) Except as set forth on Schedule 3.5(a), the execution and delivery by the
Company of the Transaction Documents, the performance by the Company of its
obligations under the Transaction Documents and the Preferred Stock and the
consummation by the Company of the transactions contemplated hereby and thereby
do not require the Company or any of its subsidiaries to obtain any consent,
approval or action of, or make any filing with or give any notice to, any
corporation, Person, firm, Governmental Entity (as defined herein) or public or
judicial authority, other than (i) compliance with the applicable requirements
of the Exchange Act (as defined herein), (ii) with respect to the Company's
obligations under the Registration Rights Agreement, as provided therein, (iii)
the filing of the Certificate of Designation in accordance with the laws of the
State of Delaware, and (iv) other consents, approvals, actions, filings or
notices that are immaterial to the consummation of the transactions contemplated
hereby and thereby.
(b) Except as set forth on Schedule 3.5(b), the execution and delivery by the
Company of the Transaction Documents do not, and the fulfillment of the terms of
the Transaction Documents and the Preferred Stock by the Company will not,
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 Organizational Documents, any agreement, lease, contract,
license, note, mortgage, indenture, arrangement or other obligation ("Contracts"
and individually, a "Contract") to which the Company or its subsidiaries is a
party, or any order, judgment, rule or regulation of any Governmental Entity
having jurisdiction over the Company or any of its subsidiaries or over their
respective assets, properties or businesses, except for such breaches, defaults
and accelerations that would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
3.6. Company Reports; Financial Statements; Undisclosed Liabilities;
Statutory Statements
(a) Each registration statement, report, proxy statement or information
statement prepared by the Company since December 31, 2000, including, without
limitation, the Company's Annual Report on Form 10-K for the year ended December
31, 2001 (the "Company Form 10-K"), the Company's Current Reports on Form 8-K
filed January 4, 2002, January 23, 2002, January 30, 2002, February 5, 2002 and
February 19, 2002, together in each case with any documents incorporated by
reference therein, each in the form (including exhibits, annexes and any
amendments thereto) filed with the SEC (collectively, including any such reports
filed with the SEC subsequent to the date hereof, the "Company Reports"), as of
their respective dates, as amended prior to the date hereof or as supplemented
by Company Reports filed on or prior to the date hereof, did not, and any
Company Reports filed with the SEC subsequent to the date hereof will not,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements made therein,
in light of the circumstances in which they were made, not misleading. Except to
the extent they may have been subsequently amended or otherwise modified prior
to the date hereof by subsequent reporting or filings, as of their respective
dates, the Company Reports (as the same may have been amended or otherwise
modified) complied in all material respects with the requirements of the
Securities Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the SEC thereunder applicable thereto.
(b) Each of the consolidated balance sheets included in or incorporated by
reference into the Company Reports (including the related notes and schedules)
fairly presents in all material respects the consolidated financial position of
the Company as of its date, and each of the consolidated statements of income,
stockholders' equity and cash flows included in or incorporated by reference
into the Company Reports (including any related notes and schedules) fairly
presents in all material respects the consolidated results of operations,
retained earnings and changes in financial position of the Company for the
periods set forth therein (subject, in the case of unaudited statements included
in the Company Reports, to notes and normal year-end audit adjustments), in each
case in accordance with U.S. generally accepted accounting principles ("GAAP"),
consistently applied during the periods involved.
(c) Except as disclosed on Schedule 3.6(c) and except for those liabilities that
are fully reflected or reserved against on the audited consolidated balance
sheet of the Company for the year ended December 31, 2001 heretofore furnished
by the Company to the Purchaser or liabilities described in the notes thereto
(or liabilities for which neither accrual nor footnote disclosure is required
pursuant to GAAP) and liabilities incurred or accrued in the ordinary course of
business since December 31, 2001, neither the Company nor any of its
subsidiaries has any material liability of any nature whatsoever (whether
absolute, accrued, contingent or otherwise and whether due or to become due).
(d) Since December 31, 2000, the Company and each of its Significant
Subsidiaries has timely filed all material periodic statements, together with
all material exhibits, interrogatories, notes, schedules and any actuarial
opinions, affirmations or certifications or other supporting documents in
connection therewith, required to be filed with or submitted to any Governmental
Entity on forms prescribed or permitted thereby (collectively, the "Company
Regulatory Reports"). The Company Regulatory Reports complied in all material
respects with all applicable Laws when filed, and no material deficiency has
been asserted with respect to any Company Regulatory Report by any Governmental
Entity.
3.7. Absence of Certain Developments
(a) Since December 31, 2001, except as disclosed in the Company Reports filed on
or before the date hereof or as set forth on Schedule 3.7(a), (i) the Company
and its subsidiaries have conducted their respective businesses only in the
ordinary course, consistent with past practice, and (ii) there has not been (1)
any Material Adverse Effect or any development or combination of developments,
that, individually or in the aggregate, has had or is reasonably likely to have
a Material Adverse Effect; (2) any material change by the Company or any
Significant Subsidiary in accounting principles, practices or methods other than
as required by GAAP, RAP (as defined below) or applicable law; or (3) any split
in share capital, combination, recapitalization, redenomination of share capital
or other similar transaction or issuance or authorization of any issuance of any
other securities in respect of, in lieu of or in substitution for share capital
of the Company. "RAP" shall mean the accounting principles prescribed or
permitted by the Federal Energy Regulatory Commission.
3.8. Litigation
Except as set forth on Schedule 3.8 or in the Company Reports filed on
or before the date hereof, there is no legal action, suit, arbitration or other
legal, administrative or other governmental investigation, inquiry or proceeding
(whether federal, state, local or foreign) pending or, to the best of the
Company's knowledge, threatened against or affecting the Company or any
subsidiary or any of their respective properties, assets or businesses which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect or prevent or materially delay the consummation of the
transactions contemplated by the Transaction Documents and the Preferred Stock.
Except as set forth in Schedule 3.8, neither the Company nor any Significant
Subsidiary is subject to any order, writ, judgment, injunction, decree,
determination or award of any Governmental Entity which would reasonably be
expected to have a Material Adverse Effect.
3.9. Compliance with Law; Permits
(a) The businesses of the Company and each of its subsidiaries have been (since
December 31, 2000), and are being, conducted in compliance in all material
respects with all applicable federal, state, local or non-U.S. laws, statutes,
ordinances, rules, regulations (including, without limitation, the rules of any
applicable self-regulatory organization recognized by the SEC), rulings, written
interpretations, judgments, orders, injunctions, decrees, arbitration awards,
agency requirements, licenses or permits of any Governmental Entity of competent
jurisdiction (collectively, "Laws"), except as disclosed in the Company Reports
filed on or before the date hereof and except where the failure to so comply
would not reasonably be expected to have a Material Adverse Effect. Except as
disclosed in the Company Reports filed on or before the date hereof, neither the
Company nor its subsidiaries has received written notice of a violation of any
Law, which, if violated, would reasonably be expected to have a Material Adverse
Effect. Except as set forth in Schedule 3.9 or as set forth in the Company
Reports filed prior to the date hereof and for regulatory examinations or
reviews conducted in the ordinary course, no material investigation or review by
any Governmental Entity with respect to the Company or any of its subsidiaries
is as of the date hereof pending or, to the knowledge of the Company,
threatened, which would reasonably be expected to have a Material Adverse
Effect.
(b) The Company and its subsidiaries have all licenses, permits, franchises or
other governmental authorizations (collectively, "Permits") necessary for the
ownership of their assets or properties or for the conduct of their respective
businesses, except for those Permits which, if violated or not obtained, would
not reasonably be expected to have a Material Adverse Effect.
3.10. Material Contracts
(a) Neither the Company nor any of its subsidiaries is in default (or would be
in default with notice or lapse of time, or both) under, is in violation (or
would be in violation with notice or lapse of time, or both) of, or has
otherwise breached, any Material Contract which default, alone or in the
aggregate with all other such defaults, would reasonably be expected to have a
Material Adverse Effect. Except as set forth in Schedule 3.10, each Material
Contract to which the Company or any of its subsidiaries is a party is in full
force and effect and is binding upon the Company or its subsidiary and, to the
best of the Company's knowledge, is binding upon such other parties, in each
case in accordance with its terms. There are no unresolved disputes involving
the Company or any of its subsidiaries under any Material Contract which if
resolved in a manner adverse to the Company would reasonably be expected to have
a Material Adverse Effect. "Material Contract" means any Contract that is
material to the properties, assets, liabilities, financial condition, business,
operations or net income of the Company and its subsidiaries, taken as a whole.
3.11. Employee Benefits
Each "employee benefit plan" (as defined under Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA")) maintained by
the Company or any entity which would be treated as a single employer with the
Company under Section 414(b),(c),(m) or (o) of the Internal Revenue Code of
1986, as amended, including the regulations and published interpretations
thereunder (the "Code") have been operated and administered in all material
respects in accordance with all presently applicable provisions of ERISA and the
Code; no "reportable event" (as defined in ERISA) has occurred with respect to
any "pension plan" (as defined in ERISA) for which the Company would have any
material liability; the Company has not incurred and no condition exists that
presents a material risk to the Company of incurring a material liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"pension plan" or (ii) Sections 412 or 4971 of the Code; and each "pension plan"
for which the Company would have any material liability that is intended to be
qualified under Section 401(a) of the Code is so qualified in all material
respects and nothing has occurred, whether by action or by failure to act, which
would reasonably be expected to cause the loss of such qualification.
3.12. Environmental Matters
(a) Except as disclosed in the Company Reports filed on or before the date
hereof and except as disclosed on Schedule 3.12, (i) there has been no storage,
disposal, generation, manufacture, refinement, transportation, handling or
treatment of Hazardous Materials by the Company or any of its subsidiaries (or,
to the knowledge of the Company, any of their predecessors in interest) at, upon
or from any of the property now or previously owned or leased by the Company or
its subsidiaries in violation of any Environmental Laws or which would require
Remedial Action under any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit, except for any violation or Remedial Action which
would not have, or would not be reasonably likely to have, singularly or in the
aggregate with all such violations and remedial actions, a Material Adverse
Effect; and (ii) there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any Hazardous Materials due to or
caused by the Company or any of its subsidiaries or with respect to which the
Company or any of its subsidiaries have knowledge, except for any such spill,
discharge, leak, emission, injection, escape, dumping or release which would not
have or would not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect.
(b) Except as disclosed in the Company Reports filed on or before the date
hereof and except as would not reasonably be likely to have a Material Adverse
Effect, (i) neither the Company nor any of its subsidiaries has received any
written notice, claim, demand, suit or request for information from any
Governmental Entity or private entity with respect to any liability or alleged
liability under any Environmental Law, nor to the knowledge of the Company has
any other entity whose liability, in whole or in part, may be attributed to the
Company or any of its subsidiaries, received any such notice, claim, demand,
suit or request for information; and (ii) neither the Company nor any of its
subsidiaries has ongoing negotiations with or agreements with any Governmental
Entity or other Person or entity relating to any Remedial Action or other claim
arising under or related to any Environmental Law.
(c) For purposes of this Agreement, the following terms shall have the
following meanings:
"Environmental Laws" shall mean any statute, regulation, ordinance,
order, decree, treaty, agreement, compact, common law duty or other requirement
of United States, tribal, state, local, Canadian (federal or provincial) or
international law relating to protection of human health, safety or the
environment (including, without limitation, ambient air, surface water,
groundwater, wetlands, soil, surface and subsurface strata).
"Hazardous Materials" shall mean any chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, hazardous
materials, hazardous wastes, radioactive materials, petroleum or petroleum
products.
"Remedial Action" shall mean any action required to: (i) clean up,
remove or treat Hazardous Materials; (ii) prevent a release or threat of
release of any Hazardous Material; (iii) perform pre-remedial studies,
investigations or post-remedial monitoring and care; or (iv) cure a violation of
Environmental Law
3.13. Intellectual Property
Each of the Company and its subsidiaries owns, or is licensed or other-
wise possesses legally enforceable rights to use, all patents, trademarks, trade
names, service marks, copyrights, and any applications therefor, technology,
know-how, computer software programs or applications, and tangible or intangible
proprietary information or materials, including trade secrets (collectively,
"Intellectual Property") that are used in, and material to, the business of the
Company and its subsidiaries as currently conducted, and any such patents,
trademarks, trade names, service marks and copyrights held by the Company and/or
its subsidiaries are valid and subsisting except, in any such case, as would not
be reasonably expected to have a Material Adverse Effect. To the knowledge of
the Company, neither the Company nor any of its subsidiaries is infringing, or
has received any notice of any asserted infringement by any of them of, any
rights of a third party with respect to any Intellectual Property which,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect.
3.14. Regulatory Matters
The Company is not (i) a "public utility company" or a "holding
company," or (ii) an "affiliate" or "subsidiary company" of a holding company or
public utility company as such terms are defined in the Public Utility Holding
Company Act of 1935 (the "1935 Act"). No approval of (i) the SEC under the 1935
Act, or (ii) the Federal Energy Regulatory Commission under either the Natural
Gas Act of 1938 or the Federal Power Act is required in connection with the
execution of this Agreement or the consummation of the transactions contemplated
hereby.
3.15. Tax Matters
(a) Except as set forth in Schedule 3.15, (i) the Company and its Significant
Subsidiaries have timely filed with the appropriate governmental authorities all
income and other material Tax Returns (as hereinafter defined) required to be
filed by or with respect to the Company and its subsidiaries or their operations
or assets, and such Tax Returns are true, correct and complete in all material
respects, (ii) all material Taxes (as hereinafter defined) due with respect to
taxable years for which the Company or any subsidiary's Tax Returns were filed,
all material Taxes required to be paid on an estimated or installment basis, and
all material Taxes required to be withheld with respect to the Company or its
employees, operations or assets have been timely paid or, if applicable,
withheld and paid to the appropriate taxing authority in the manner provided by
law, (iii) the reserve for Taxes set forth on the audited consolidated balance
sheet of the Company as of December 31, 2001 heretofore furnished by the Company
to the Purchaser is adequate in all material respects for the payment of all
Taxes through the date thereof and no material Taxes (other than with respect to
the disposition of assets) have been incurred after December 31, 2001 which were
not incurred in the ordinary course of business, (iv) there are no Liens for
Taxes upon the assets of the Company or any of its Significant Subsidiaries
(except for Liens for current Taxes not yet due and payable), (v) no Federal,
state, local or foreign audits, administrative proceedings or court proceedings
are pending with regard to any material Taxes or Tax Returns of the Company or
any of its Significant Subsidiaries and there are no material outstanding
deficiencies or assessments asserted or proposed, and any such proceedings,
deficiencies or assessments shown in Schedule 3.15 are being contested in good
faith through appropriate proceedings, (vi) there are no outstanding agreements,
consents or waivers extending the statutory period of limitations applicable to
the assessment of any material Taxes or deficiencies against the Company or any
of its Significant Subsidiaries, or with respect to their operations or assets,
and (vii) the federal income Tax Returns of the Company and its Significant
Subsidiaries have been examined by the Internal Revenue Service (or the
applicable statutes of limitation for the assessment of federal income Taxes for
such periods have expired) for all periods through and including December 31,
1993.
(b) The Company has not filed a consent to the application of Section 341(f) of
the Code.
(c) For purposes of this Agreement, "Taxes" means all taxes, charges, fees,
levies or other assessments imposed by any United States Federal, state, or
local taxing authority or by any non-U.S. taxing authority, including but not
limited to, income, gross receipts, excise, property, sales, use, transfer,
payroll, license, ad valorem, value added, withholding, social security,
franchise, estimated, severance, stamp, and other taxes (including any interest,
fines, penalties or additions attributable to or imposed on or with respect to
any such taxes, charges, fees, levies or other assessments).
(d) For purposes of this Agreement, "Tax Return" means any return, report,
information return or other document (including any related or supporting
information and, where applicable, profit and loss accounts and balance sheets)
with respect to Taxes.
3.16. Insurance
The Company and each of its Significant Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as the Company
reasonably believes is adequate for the conduct of their respective businesses
and the value of their respective properties and as the Company reasonably
believes is customary for companies engaged in similar businesses in similar
industries.
3.17. Offering of Shares
Neither the Company nor any Person acting on its behalf has taken or
will take any action (including, without limitation, any offering of any
securities of the Company under circumstances which would require, under the
Securities Act, the integration of such offering with the offering and sale of
the Shares) which would subject the offering, issuance or sale of the Shares
hereunder to the registration requirements of Section 5 of the Securities Act.
3.18. Investment Company
The Company is not, and, after giving effect to the transactions
contemplated hereby, will not be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
3.19. Accuracy of Information
None of the representations, warranties or statements of the Company
contained in this Agreement, or in the schedules or exhibits hereto, contains
any untrue statement of a material fact or omits to state any material fact
necessary in order to make any of such representations, warranties or
statements not misleading. The projections previously provided to the Purchaser
in connection with this Agreement and identified on Schedule 3.19 were made in
good faith and based on reasonable assumptions.
SECTION 4.........REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser and MidAmerican represent and warrant to the
Company as follows:
(a) The Purchaser is a corporation duly organized, 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 the Transaction Documents,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, and has taken all necessary action
to authorize the execution, delivery and performance of the Transaction
Documents. MidAmerican is 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 the Transaction Documents,
to perform its obligations hereunder and thereunder and to consummate the
transactions contemplated hereby and thereby, and has taken all necessary action
to authorize the execution, delivery and performance of the Transaction
Documents. No other action on the part of the Purchaser or MidAmerican is
necessary to authorize the execution, delivery and performance of the
Transaction Documents by the Purchaser or MidAmerican and each of the
transactions contemplated hereby and thereby.
(b) This Agreement constitutes, and upon execution and delivery the Registration
Rights Agreement shall constitute, a valid and binding obligation of the
Purchaser and MidAmerican, enforceable against the Purchaser 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 Purchaser and MidAmerican of the
Transaction Documents do not, and the fulfillment of the terms hereof and
thereof by the Purchaser and MidAmerican will not, 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 or
MidAmerican's organizational documents, any material Contract to which the
Purchaser or MidAmerican is a party, or any order, judgment, rule or regulation
of any Governmental Entity having jurisdiction over the Purchaser or MidAmerican
or over their assets, properties or businesses, except for such defaults that
would not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the Purchaser and MidAmerican and its subsidiaries,
taken as a whole.
(d) The Purchaser is an "accredited investor" as defined in Rule 501 of
Regulation D promulgated under the Securities Act. The Purchaser is purchasing
the Shares and any shares of Common Stock issued on conversion of the Shares for
investment for its own account and not with a view to, or for sale in connection
with, any distribution thereof or of any shares of Common Stock issued on
conversion of the Shares in violation of the Securities Act. The Purchaser
(either alone or together with its advisors) has sufficient knowledge and
experience in financial and business matters so as to be capable of evaluating
the merits and risks of its investment in the Shares and is capable of bearing
the economic risks of such investment.
(e) 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.
(f) The Purchaser understands that the Company is relying on the statements
contained herein to establish an exemption from registration under federal and
state securities laws.
(g) The Purchaser understands that each certificate or other document evidencing
any of the Shares shall be endorsed with the legend in the form set forth in
Section 5.3(b).
SECTION 5.........COVENANTS
5.1. Covenants of the Company 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.
5.2. Covenants of the Company
(a) Between the date of this Agreement and the Closing Date, the Company will
promptly advise the Purchaser of any action or event of which it becomes aware
which has the effect of making incorrect, any of the Company's representations
or warranties or which has the effect of rendering any of the Company's
covenants incapable of performance.
(b) From the date hereof until the Closing Date, the Company will (i) furnish to
the Purchaser and its authorized representatives such financial and operating
data and other information relating to the Company and its subsidiaries as such
Persons may reasonably request, and (ii) instruct its counsel, independent
accountants and financial advisors to cooperate reasonably with the Purchaser
and its authorized representatives in its investigation of the Company. Any
investigation pursuant hereto shall be conducted in such manner as not to
interfere unreasonably with the conduct of the business of the Company. In
addition, from the date hereof until the Closing Date, the Company will provide
the Purchaser with copies of all financial information, reports and
presentations delivered to the lenders under the Company's principal credit
facilities, subject to customary confidentiality terms and conditions.
(c) After the date hereof and prior to the Closing Date, except as (i) expressly
provided for in this Agreement, (ii) set forth on Schedule 3.5(b) or (iii)
consented to in writing by the Purchaser (which consent shall not be
unreasonably withheld or delayed), the Company will not:
(i) split, combine or reclassify any shares of the Company's capital stock;
(ii) declare or pay any dividend or distribution (whether in cash, stock or
property) in respect of its Common Stock, other than its regular quarterly
dividend, or call for redemption, redeem or repurchase any of its Common Stock;
(iii) 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 Company set forth in Section 3 becoming untrue, or (B) any of
the conditions to the obligations of the Purchaser set forth in Section 6 not
being satisfied; or
(iv) enter into any agreement or commitment to do any of the foregoing.
(d) Prior to the Closing, the Company will take all actions necessary to file
the Certificate of Designation with the Secretary of State of the State of
Delaware.
(e) If, following completion of the Williams Substitution (as such term is
defined in the Consent Solicitation Statement, dated February 25, 2002, of the
Company), the Company or any of its Affiliates owns any share or shares of the
March 2001 Mandatorily Convertible Single Reset Preferred Stock, par value $1.00
per share, of the Company, the Company will cancel any such share or shares as
soon as reasonably practicable after it is permitted to do so under the terms of
the Williams Share Trust Amended and Restated Trust Agreement, dated March 28,
2001, by Wilmington Trust Company, as Share Trustee, Williams Share Trust, and
the Company. The Company will use its reasonable best efforts to cause the
Williams Substitution to occur prior to September 30, 2002.
5.3. Covenants of the Purchaser
(a) The Purchaser covenants that it will not sell or otherwise transfer the
Shares (or any shares of Common Stock acquired upon conversion of the Shares) to
any Person except pursuant to an effective registration under the Securities Act
or in a transaction which, in the opinion of counsel reasonably satisfactory to
the Company, qualifies as an exempt transaction under the Securities Act and the
rules and regulations promulgated thereunder.
(b) The certificates evidencing the Shares and the shares of Common Stock
issuable upon conversion of the Shares will bear the following legend reflecting
the foregoing restrictions on the transfer of such securities:
"THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION UNDER THE ACT OR IN A TRANSACTION WHICH, IN THE
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY,
QUALIFIES AS AN EXEMPT TRANSACTION UNDER THE ACT AND THE RULES
AND REGULATIONS PROMULGATED THEREUNDER."
The Company shall remove this legend from the certificates evidencing such
securities as promptly as practicable following the registration of such
securities under the Securities Act or such earlier time as such securities are
no longer subject to restriction on transfer under the Securities Act.
SECTION 6.........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 8.4:
(a) All representations and warranties made by the Company in this Agreement
shall be true and correct in all material respects (except for such
representations and warranties that are qualified as to materiality or Material
Adverse Effect, which shall be true and correct in all respects) on and as of
the Closing Date as if again made by the Company on and as of such date.
(b) The Company 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
Company, certifying that the conditions specified in the foregoing paragraphs
(a) and (b) of this Section 6 hereof have been fulfilled.
(d) The Purchaser shall have received from the General Counsel of the Company an
opinion, dated the Closing Date, with respect to the matters set forth in
Exhibit C hereto.
(e) The Company shall have executed the Registration Rights Agreement.
(f) The Certificate of Designation shall have been filed by the Company with the
Secretary of State of the State of Delaware.
(g) All conditions to the obligations of the parties to the Purchase Agreement
to consummate the transactions contemplated by such agreement shall have been
satisfied or waived (other than conditions set forth in Sections 5.11 and 6.5 of
such agreement) and the Company shall be ready, willing and able to close such
transaction.
(h) During the period from December 31, 2001 to the Closing Date, there shall
not have been any fact, circumstance or development that has had or would
reasonably be expected to have a Material Adverse Effect.
(i) The consents, waivers, authorizations and approvals set forth on Schedules
3.5(a) and 3.5(b) shall have been duly obtained and shall be in full force and
effect on the Closing Date.
(j) 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 the
Transaction Documents 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 Authority or
other person or threatened by any Governmental Entity which seeks to prevent or
delay the consummation of the transactions contemplated by the Transaction
Documents or the Preferred Stock or which challenges the validity or
enforceability of the Transaction Documents or the Preferred Stock.
(k) There shall not have occurred since the date of this Agreement any
downgrading in the rating accorded any of the Company's senior unsecured
securities below BBB-, Baa3 or BBB- by any one of Standard & Poor's Ratings
Services, Moody's Investors Service and Fitch Ratings, respectively.
SECTION 7.........CLOSING CONDITIONS OF THE COMPANY
The obligations of the Company 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 Company in accordance with Section 8.4:
(a) All representations and warranties made by the Purchaser in this Agreement
shall be true and correct in all material respects (except for such
representations and warranties that are qualified as to materiality or Material
Adverse Effect, which shall be true and correct in all respects) on and as of
the Closing Date as if again made by the Purchaser on and as of such date.
(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) The Company 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) and (b) of this Section 7 hereof have been fulfilled.
(d) 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 the
Transaction Documents 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 Authority or
other person or threatened by any Governmental Entity which seeks to prevent or
delay the consummation of the transactions contemplated by the Transaction
Documents or the Preferred Stock or which challenges the validity or
enforceability of the Transaction Documents or the Preferred Stock.
(e) All conditions to the obligations of the parties to the Purchase Agreement
to consummate the transactions contemplated by such agreement shall have been
satisfied or waived (other than conditions set forth in Sections 5.11 and 6.5 of
such agreement) and the Purchaser shall be ready, willing and able to close such
transaction.
(f) The consents, waivers, authorizations and approvals set forth on Schedules
3.5(a) and 3.5(b) shall have been duly obtained and shall be in full force and
effect on the Closing Date.
SECTION 8.........TERMINATION, AMENDMENT AND WAIVER
8.1. Termination
This Agreement may be terminated and the transactions contemplated
hereby may be abandoned at any time prior to the Closing:
(a) by mutual written consent of the Company and the Purchaser;
(b) by the Company, 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 10 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 7(a) and/or 7(b);
(c) by the Purchaser, in the event that the Company 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 10 days after receipt by the Company 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
6(a) and/or 6(b);
(d) by the Company 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;
(e) by the Company or the Purchaser at any time after June 15, 2002; or
(f) by the Company or the Purchaser, in the event that the Purchase Agreement
has been terminated.
8.2. Effect of Termination
In the event of termination and abandonment of this Agreement pursuant
to Section 8.1, written notice thereof shall forthwith be given to the other
party hereto and this Agreement shall terminate and the transactions
contemplated hereby shall be abandoned, without further action by the Company or
the Purchaser. If this Agreement is terminated as provided herein, no party to
this Agreement shall have any liability or further obligation to any other party
to this Agreement except as provided in Sections 11.1 and 11.2 hereof; provided,
however, that no termination of this Agreement pursuant to this Section 8 shall
relieve any party of liability for a grossly negligent or wilful and, in either
case, material breach of any provision of this Agreement occurring before such
termination.
8.3. Amendment
This Agreement may be amended, modified or supplemented only by a
written instrument executed by the parties hereto.
8.4. Waiver
The Purchaser or the Company 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 9.........INTERPRETATION OF THIS AGREEMENT
9.1. 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.
Liens: shall mean any mortgage, lien, pledge, charge, security
interest or encumbrance of any kind.
Material Adverse Effect: shall mean a material adverse effect on the
assets, properties, business, operations, net income or financial condition of
the Company and its subsidiaries taken as a whole, it being understood that none
of the following shall be deemed to constitute a Material Adverse Effect; (i)
any effect resulting from entering into this Agreement or the announcement of
the transactions contemplated by this Agreement; and (ii) any effect resulting
from changes in the United States or global economy as a whole, except for such
effects which disproportionately impact the Company and its subsidiaries, taken
as a whole.
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.
SEC: shall mean the Securities and Exchange Commission.
9.2. Schedules
The numbers assigned to the disclosure schedules are given for
reference purposes only. Any matter or item disclosed on any disclosure schedule
shall not be deemed to be material (whether singularly or in the aggregate) or
deemed to give rise to circumstances which may result in a Material Adverse
Effect solely by reason of it being so disclosed herein. Any matter or item
disclosed pursuant to any disclosure schedule shall be deemed to be disclosed
for all purposes under the Agreement reasonably related thereto and any matter
disclosed in one disclosure schedule will be deemed disclosed with respect to
another disclosure schedule if such disclosure is made in such a way as to make
its direct relevance with respect to such other disclosure schedule readily
apparent.
9.3. Governing Law
This Agreement shall be governed by and construed in accordance with
the internal and substantive laws of Delaware and without regard to any
conflicts of laws concepts which would apply the substantive law of some
other jurisdiction.
9.4. 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.
SECTION 10........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 not survive the Closing. The
covenants and agreements of the parties hereto shall survive the Closing in
accordance with their terms.
SECTION 11........MISCELLANEOUS
11.1. 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 Purchaser or MidAmerican:
MEHC Investment, Inc.
c/o 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
(2) if to the Company:
The Williams Companies
One Williams Center
Tulsa, Oklahoma 74172
Attention: William von Glahn, Esq.
Facsimile: (918) 573-5942
With a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Attention: Nancy A. Lieberman, Esq.
Facsimile: (212) 735-2000
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 11.1 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 11.1.
11.2. Expenses
Except as otherwise expressly provided in this Agreement, 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.
11.3. 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 by law or stock exchange rule to be made by the 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.
11.4. 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 Company and the Purchaser each hereby
submit to the exclusive jurisdiction of any state or federal court sitting in
the State of Delaware 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.
11.5. 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 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. Notwithstanding the prior sentence, the Purchaser
may assign any of its rights (but not its obligations) under this Agreement to
one or more of the wholly-owned subsidiaries of MidAmerican (so long as such
assignment does not delay the Closing or impose any additional costs on the
Company), it being understood that such assignment will not release Purchaser
from its obligations hereunder. In the event of any assignment in accordance
with the terms of this Agreement, the assignee shall specifically assume and be
bound by the provisions of the Agreement by executing and agreeing to an
assumption agreement reasonably acceptable to the Company.
11.6. Entire Agreement; Amendment and Waiver
The Transaction Documents and the Certificate of Designation represent
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 the Transaction Documents and the Certificate
of Designation other than those expressly set forth herein or in the Schedules,
exhibits, certificates and other documents delivered in accordance herewith or
therewith. The Transaction Documents and the Certificate of Designation
supersede all prior negotiations, discussions, correspondence, communications,
understandings and agreements between the parties relating to the subject matter
of the Transaction Documents and the Certificate of Designation and all prior
drafts of the Transaction Documents and the Certificate of Designation, all of
which are merged into the final executed versions of the Transaction Documents
and the Certificate of Designation, as the case may be. No prior drafts of the
Transaction Documents and the Certificate of Designation and no words or phrases
from any such prior drafts shall be admissible into evidence in any action or
suit involving the final executed versions of the Transaction Documents and the
Certificate of Designation, as the case may be.
11.7. 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.
11.8. Counterparts
Facsimile transmission of any signed original document and/or retrans-
mission of any signed facsimile transmission shall be the same as delivery of an
original. At the request of the Company or the Purchasers, 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.
11.9. Third Party Beneficiaries
Nothing in this Agreement shall confer upon any person or entity not a
party to this Agreement, or the legal representatives of such person or entity,
any rights or remedies of any nature or kind whatsoever under or by reason of
this Agreement.
11.10. Guarantee
MidAmerican guarantees performance by the Purchaser of the Purchaser's
obligations under this Agreement.
IN WITNESS WHEREOF, the Company, 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/ Steven J. Malcolm
----------------------------
Name: Steven J. Malcolm
Title: President
MEHC INVESTMENT, INC.
By: /s/ David L. Sokol
----------------------------
Name: David L. Sokol
Title: Chief Executive
Officer
MIDAMERICAN ENERGY HOLDINGS
COMPANY
By: /s/ David L. Sokol
---------------------------
Name: David L. Sokol
Title: Chairman and
Chief Executive
Officer