Exhibit 10.3(b)
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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
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THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this "Amendment"),
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dated as of July 21, 2006, is made by and among PAMC MANAGEMENT CORPORATION, a
Colorado corporation ("PAMC"), XXXX XXXX ENERGY, LLC, a Colorado limited
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liability company ("Xxxx Xxxx"), MESA WIND DEVELOPERS, a California joint
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venture and general partnership ("Mesa Wind"), ZOND-PANAERO WINDSYSTEM PARTNERS
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I, A CALIFORNIA LIMITED PARTNERSHIP ("ZP-I"), ZOND-PANAERO WINDSYSTEM PARTNERS
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II, A CALIFORNIA LIMITED PARTNERSHIP ("ZP-II"), WESTERN WIND ENERGY CORP., a
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British Columbia, Canada corporation (the "Buyer"), MESA WIND POWER CORPORATION,
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a Delaware corporation and wholly-owned subsidiary of the Buyer ("Merger Sub"),
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and Xxxxxx X. Xxxxxx.
RECITALS
WHEREAS, the parties to this Amendment entered into the Agreement and
Plan of Merger, dated as of July 3, 2006 (the "Merger Agreement"); and
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WHEREAS, the parties to this Amendment desire to amend the Merger
Agreement as set forth in this Amendment.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, including the
promises, covenants, representations and agreements set forth in the Merger
Agreement and this Amendment, the receipt and sufficiency of which consideration
are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DEFINITIONS
1.1 Definitions. Capitalized terms used in this Amendment and not
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defined herein have the meanings given to such terms in the Merger Agreement.
SECTION 2. AMENDMENTS
2.1 Payment of Merger Consideration - Merger Escrow. Section 2.2(c)
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of the Merger Agreement is amended by deleting "$774,500 (the "Merger Escrow")"
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from clause (ii)(A) thereof and replacing it with "$874,500 (the "Merger
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Escrow")".
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2.2 Conditions to the Obligations of the Buyer and Merger Sub.
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Section 9.2 of the Merger Agreement is amended by adding the following clauses:
"(h) Private Easement(s). The Sellers shall have caused Enron
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(formerly known as Zond Systems, Inc.) to execute and deliver to PAMC an
assignment of Enron's right, title and interest in and to the Easement
Agreement, effective as of September 25, 1984 (the "Private Easement"),
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between Xxxxxxx Xxxxx, as grantor, and Enron, as grantee, subject to the
consent, if necessary, of the grantor, which assignment shall be in a form
that is a reasonably acceptable to Enron and the Buyer.
(i) Additional BLM Right of Way. The Sellers shall have caused Enron
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to execute and deliver to the Surviving Corporation and the Buyer an
assignment of Enron's right, title and interest in and to BLM Right xx Xxx
Xxxxxx Xx. XX-00000, dated January 16, 1985 ("ROW 16406"), between the BLM,
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as grantor, and Enron, as grantee, subject to the consent of the BLM, which
assignment shall be in a form that is a reasonably acceptable to Enron and
the Buyer.
(j) Letter Agreement. The Sellers shall have caused Enron to execute
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and deliver a letter agreement in substantially the form attached hereto as
Exhibit H.
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(k) Title Insurance. The Buyer shall have obtained title insurance
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with respect to the BLM Right of Way that is reasonably acceptable to the
Buyer."
2.3 Shareholder/Member Approval - Rescission of Notice of Intent to
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Demand Payment. Section 9.4(d) of the Merger Agreement is amended by adding
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the following to the end of the second sentence thereof: "unless each such
written notice of intent to demand payment is irrevocably rescinded or withdrawn
on or prior to Closing to the Buyer's reasonable satisfaction."
2.4 Indemnification - Time Limitations. Section 11.3(a) of the Merger
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Agreement is amended by deleting clause (ii) thereof in its entirety. For the
avoidance of doubt, the paragraph below such clause (ii) beginning "For the
avoidance of doubt, the representations . . ." and ending ". . . shall survive
until the first anniversary of the Closing Date." shall not be amended or
deleted hereby.
2.5 Indemnification - Cap on Monetary Liability. Section 11.3 of the
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Merger Agreement is amended by deleting clause (c) thereof in their entirety and
replacing it with the following:
"(c) Cap on Monetary Liability. Except in the case of fraud or
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intentional misconduct, after the Closing, the sole and exclusive monetary
remedy (including, without limitation, for any claims for negligent
misrepresentation) of each Buyer Indemnified Person, their respective
officers, directors, Affiliates, successors, and assigns, and any other
Person making a claim by or through the foregoing against any the PAMC
Shareholders, Xxxx Xxxx, and their respective Affiliates, directors,
officers, shareholders, subsidiaries, employees, agents, representatives,
successors, and assigns, including for indemnification pursuant to this
Article XI and any Tax Claims, shall be limited to, and shall not exceed,
the balance of the amount of the Escrow at the time any such Claim is
paid."
2.6 Escrow. Section 11.4 of the Merger Agreement is amended by
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deleting such Section in its entirety and replacing it with the following:
"11.4 Escrow. As security for the indemnity obligations of the PAMC
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Shareholders and Xxxx Xxxx, the Escrow shall be deposited with the Escrow
Agent. Each PAMC Shareholder's interest in the Escrow shall be equal to
such PAMC Shareholder's Pro Rata Portion thereof. Each Buyer Indemnified
Person shall be entitled to indemnification from the Escrow in accordance
with this Article XI. As provided in Section 11.3(c) hereof, except in the
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case of fraud or intentional misconduct, the Buyer Indemnified Persons sole
monetary recourse shall be to the funds in the Escrow."
2.7 Release. Article XIV of the Merger Agreement is amended by adding
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the following to the end of such Article:
"The Releasing Parties expressly waive all rights afforded by Section 1542
of the Civil Code of California ("Section 1542") or any statute or common
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law principle of similar effect in any state or federal jurisdiction with
respect to the Released Parties. Section 1542 states as follows:
'A general release does not extend to claims which the creditor does
not know or suspect to exist in its favor at the time of executing the
release, which if known by him must have materially affected his
settlement with the debtor.'
Notwithstanding the provisions of Section 1542, and for the purpose of
implementing a full and complete release, the Releasing Parties expressly
waive and relinquish any rights and benefits that they may have under
Section 1542 and any other statute or common law principle of similar
effect in any state or federal jurisdiction."
2.8 PAMC Representative - Appointment. Section 15.1 of the Merger
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Agreement is amended by deleting "Xx. Xxxxxx Xxxxxx" from the first sentence
thereof and replacing it with "Xxxx Xxxx".
2.9 PAMC Representative - Limitations on Liability. Section 15.3 of
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the Merger Agreement is amended by deleting clause (a) thereof in its entirety
and replacing it with the following:
"(a) The PAMC Representative shall have no liability whatsoever to
any PAMC Shareholder or any Person claiming by, through, or under any PAMC
Shareholder for or in respect of any of its acts or omissions, except only
for its bad faith. The PAMC Shareholders severally, but not jointly, shall
indemnify the PAMC Representative from and against any and all loss,
liability or expense incurred without bad faith on the part of the PAMC
Representative and arising out of or in connection with its duties as the
PAMC Representative, including the reasonable costs and expenses incurred
by the PAMC Representative in defending against any claim or liability in
connection herewith, and its actual out-of-pocket expenses incurred in
performing its duties as such; provided, however, in the event any claim is
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brought by or on behalf of any PAMC Shareholder (a "Claiming PAMC
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Shareholder") against the PAMC Representative in connection with any acts
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or omissions of the PAMC Representative hereunder, no PAMC Shareholder
other than the Claiming PAMC Shareholder shall have any obligation to
indemnify the PAMC Representative pursuant to this Section 15.3(a). Unless
a Claiming PAMC Shareholder prevails on each and every claim asserted
against the PAMC Representative, such Claiming PAMC Shareholder shall be
responsible for all of the fees, costs and expenses incurred by the PAMC
Representative in connection with the defense of such claims, including
administrative fees, attorneys' fees, fees of expert witnesses and travel
expenses."
SECTION 3. MISCELLANEOUS
3.1 No Other Changes. Except as otherwise expressly provided or
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contemplated by this Amendment, all of the terms, conditions and provisions of
the Merger Agreement remain unaltered and in full force and effect. The parties
hereby reaffirm the Merger Agreement as amended by this Amendment. The Merger
Agreement and this Amendment shall be read and construed as one agreement.
3.2 Amendments. No amendment or waiver of any provision of this
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Amendment shall be affective unless set forth in a writing signed by the parties
hereto.
3.3 Successors and Assigns. This Amendment shall be binding upon and
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inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
3.4 Governing Law. This Amendment shall be governed by, and construed
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and enforced in accordance with, the laws of the State of California applicable
to contracts made and to be performed in the State of California.
3.5 Headings. The headings in this Amendment are inserted for
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convenience only and shall not constitute a part hereof.
3.6 Counterparts. This Amendment may be executed in any number of
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counterparts, each of which when executed and delivered, shall be deemed an
original, and all such counterparts, taken together, shall constitute but one
and the same instrument. The exchange of copies of this Amendment and of
signature pages by facsimile transmission shall constitute effective execution
and delivery of this Amendment as to the parties hereto and may be used in lieu
of the original Amendment for all purposes (and such signatures of the parties
transmitted by facsimile shall be deemed to be their original signatures for all
purposes).
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have caused this Amendment to be
executed and delivered as of the date and year first above written.
PAMC MANAGEMENT CORPORATION
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
XXXX XXXX ENERGY, LLC, for itself and as the
PAMC Representative
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Manager
MESA WIND DEVELOPERS
By: Enron Wind Systems, LLC, its general partner
By: Enron Wind LLC, its sole member
By: Enron Renewable Energy Corp.,
its sole member
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief
Executive Officer
By: Pan Aero California, Ltd., its general
partner
By: PAMC Management Corporation, its sole
general partner
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: President
ZOND-PANAERO WINDSYSTEM PARTNERS I, A
CALIFORNIA LIMITED PARTNERSHIP
By: Zond Windsystems Management LLC, its sole
general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
ZOND-PANAERO WINDSYSTEM PARTNERS II, A
CALIFORNIA LIMITED PARTNERSHIP
By: Zond Windsystems Management II LLC, its sole
general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President and Chief Executive
Officer
WESTERN WIND ENERGY CORP.
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
MESA WIND POWER CORPORATION
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Chief Financial Officer
THE PAMC REPRESENTATIVE:
/s/ Xxxxxx Xxxxxx
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Xx. Xxxxxx X. Xxxxxx
Exhibit H
to
Agreement and Plan of Merger
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Side Letter
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Attached
Enron Wind Systems, LLC
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
July 21, 2006
Western Wind Energy Corp.
000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX X0X0X0
Attn: Xxxx Ciachurski, CEO
Re: Letter Agreement
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Ladies and Gentlemen:
Reference is made to that certain Agreement and Plan of Merger, dated as of
July 3, 2006, as amended by that certain Amendment to Agreement and Plan of
Merger dated July 21, 2006 (the "Merger Agreement"), among PAMC Management
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Corporation, Xxxx Xxxx Energy, LLC, Mesa Wind Developers, Zond-PanAero
Windsystem Partners I, a California Limited Partnership, Zond-PanAero Windsystem
Partners II, a California Limited Partnership, Western Wind Energy Corp., and
Mesa Wind Power Corporation. Capitalized terms used herein and not otherwise
defined have the meanings ascribed to such terms in the Merger Agreement.
For good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, Enron Wind Systems, LLC ("Enron") agrees to use
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commercially reasonable efforts until December 31, 2006 to (a) obtain the
consent of the BLM to the assignment of ROW 16406 from Enron to the Surviving
Corporation as soon after the Closing Date as reasonably possible and (b) if and
when requested by the Buyer or the Surviving Corporation, obtain the consent of
Xxxxxxx Xxxxx or his successors and assigns (the "Grantor") to the assignment of
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the Private Easement from Enron to the Surviving Corporation. Nothing herein
shall require Enron to pay any fee or other amount to the Grantor as a condition
to obtaining its consent to the assignment of the Private Easement.
Sincerely,
Enron Wind Systems, LLC
By:
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Name:
Title:
Accepted and agreed as of the date appearing above:
Western Wind Energy Corp.
By:
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Name:
Title:
Mesa Wind Power Corporation
By:
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Name:
Title:
