Exhibit 99.2
SETTLEMENT AGREEMENT AND RELEASE
SETTLEMENT AGREEMENT AND RELEASE (the "Settlement
Agreement"), dated as of October 4, 2006, by and among Enron Corp. ("ENE"),
Enron North America Corp. ("ENA"), Enron Energy Services, Inc. ("EESI"), Enron
Power Marketing, Inc. ("EPMI") and Enron Energy Services, LLC ("EESLLC" and,
collectively, with Enron, ENA, EESI, EPMI, and EESLLC, "Enron"), Xxxxxx Energy
Services, LLC ("Xxxxxx"), McGarret I, LLC ("McGarret I"), McGarret II, LLC
("McGarret II"), McGarret III, LLC ("McGarret III"), EES Warrant Trust ("EES
Trust" and, collectively with Xxxxxx, McGarret I, McGarret II, and McGarret
III, the "Non-Debtor Enron Entities"), NewPower Holdings, Inc. ("NewPower
Holdings"), The New Power Company ("NewPower Company"), TNPC Holdings, Inc.
("TNPC Holdings" and, collectively with NewPower Holdings and NewPower
Company, "NewPower"), and Xxxxx X. Xxxxxx, XX (the "Examiner"), examiner for
NewPower Holdings and TNPC Holdings. Enron, as reorganized, the Non-Debtor
Enron Entities, NewPower, as reorganized, and the Examiner are each a "Party"
hereto and are referred to herein, collectively, as the "Parties".
RECITALS
A. On March 14, 2001, Enron and NewPower entered into a
Master Cross-Product Netting, Setoff, and Security Agreement (the "Master
Agreement") concerning a series of commodity purchase and swap transactions.
B. On October 18, 2001, Enron and NewPower amended the
Master Agreement through the Second Amendment to Master Netting Agreement (the
"Second Agreement"), pursuant to which Enron held approximately $70 million in
collateral posted by NewPower (the "Pledged Collateral") and Enron secured
claims against NewPower for an additional $28 million (the "Secured Claims").
C. Enron and the Non-Debtor Enron Parties, collectively,
presently own 31,666,800 shares of NewPower Holdings common stock (the "Enron
Shares"), and 24,117,800 warrants for the purchase of NewPower Holdings common
stock (the "EES Warrants" and, collectively with the Enron Shares, the "Enron
Equity Interests"), collectively representing approximately 43.8% of the total
outstanding equity ownership of NewPower.
D. On December 2, 2001, and periodically thereafter, ENE and
certain of its affiliated entities filed voluntary petitions for relief
pursuant to chapter 11 of title 11 of the United States Code (the "Bankruptcy
Code") in the United States Bankruptcy Court for the Southern District of New
York (the "Enron Bankruptcy Court"), jointly administered as Case No. 01-16034
(AJG) (the "Enron Chapter 11 Case");
E. Following commencement of the Enron Chapter 11 Case,
Enron and NewPower negotiated a resolution of disputes arising under several
contracts between NewPower and Enron, including the Master Agreement and the
Second Agreement (the "First NewPower Settlement"), whereby NewPower allowed
Enron to foreclose on the Pledged Collateral and NewPower gave Enron a secured
note in the amount of $28 million (the "Secured Note") in payment of the
Secured Claims.
F. On March 1, 2002, Enron filed a motion (the "NewPower
Settlement Motion"), pursuant to Rule 9019 of the Federal Rules of Bankruptcy
Procedure (the "Bankruptcy Rules"), seeking the Enron Bankruptcy Court's
approval of the First NewPower Settlement and, on March 28, 2002, following
notice and hearing, the Enron Bankruptcy Court entered an order (the "First
NewPower Settlement Order"), authorizing and approving the First NewPower
Settlement.
G. On June 11, 2002, NewPower and certain of its affiliates
filed petitions for relief pursuant to chapter 11 of title 11 of the
Bankruptcy Code in the United States Bankruptcy Court for the Northern
District of Georgia, Newnan Division (the "NewPower Bankruptcy Court"),
jointly administered as Case No. 02-108351 (WHD) (the "NewPower Chapter 11
Cases").
H. Enron filed timely proofs of claim in each of the
NewPower Chapter 11 Cases, asserting secured claims in excess of $28,000,000
for outstanding principal and interest due and owing on the Secured Note
pursuant to the First NewPower Settlement, plus attorneys' fees and expenses
incurred in connection therewith (collectively, the "Enron Claims").
I. On November 1, 2002, NewPower advised Enron that neither
NewPower nor the statutory committee of unsecured creditors appointed in the
NewPower Chapter 11 Cases (the NewPower Committee") could find any basis for
objecting to the Enron Claims, and, as a result thereof, on or about November
5, 2002, NewPower paid to Enron $28,485,958.30 pursuant to the terms and
conditions of a cash collateral order entered in the NewPower Chapter 11
Cases.
X. XxxXxxxx and the NewPower Committee filed objections with
the NewPower Bankruptcy Court to Enron's claim for attorneys' fees and costs.
On or about January 15, 2003, NewPower, Enron, and the NewPower Committee
entered into a settlement, approved by the NewPower Bankruptcy Court, pursuant
to which NewPower agreed to pay $137,000 in attorney's fees and costs to
Enron, and Enron agreed to withdraw the Enron Claims (the "Second NewPower
Settlement").
K. On January 17, 2003, the NewPower Bankruptcy Court
entered an Order Approving United States Trustee's Motion for Appointment of
an Examiner and Denying Motion for Appointment of Committee of Equity Security
Holders, and on March 12, 2003, the NewPower Bankruptcy Court entered a
Consent Order Amending and Clarifying the Examiner Order (collectively, the
"Examiner Order").
L. On February 12, 2003, with respect to NewPower, and
August 15, 2003, with respect to NewPower Holdings and TNPC Holdings, the
NewPower Bankruptcy Court entered orders (the "NewPower Confirmation Orders")
confirming the Second Amended Chapter 11 Plan of the NewPower Debtors (the
"NewPower Plan").
M. On February 14, 2003, the NewPower Bankruptcy Court
issued an order (the "Second NewPower Settlement Order") approving the Second
NewPower Settlement, and shortly thereafter, the Second NewPower Settlement
was consummated.
N. On July 15, 2004, the Enron Bankruptcy Court entered an
order (the "Enron Confirmation Order") confirming the Supplemental Modified
Fifth Amended Joint Plan
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of Affiliated Debtors Pursuant to Chapter 11 of the United States Bankruptcy
Code, dated July 2, 2004 (the "Enron Plan") and thereafter, on November 17,
2004, the Plan was consummated and Enron emerged from chapter 11.
O. On September 17, 2004, the NewPower Bankruptcy Court
entered an order (the "Interim Distribution Order") (1) authorizing NewPower
to make interim distributions to certain holders of equity interests in the
NewPower Chapter 11 Cases and (2) directing NewPower to establish an
interest-bearing account, entitled "Reserve for Shareholder Distributions",
into which NewPower deposited $30,806,204 on behalf of Enron and the
Non-Debtor Enron Entities (the "Enron Reserve").
P. On September 24, 2004, the Examiner commenced litigation
entitled Xxxxx X. Xxxxxx, XX, Examiner for NewPower Holdings, Inc. and TNPC
Holdings, Inc. v. Enron Corp., et al., Adv. Pro. No. 04-04303, in the Enron
Bankruptcy Court (the "Adversary Proceeding") seeking to recover NewPower's
prior payment on the Secured Note, recharacterize the indebtedness evidenced
by the Secured Note as equity in NewPower Holdings, and to equitably
subordinate all of the equity interests in NewPower Holdings held or asserted
by Enron and the Non-Debtor Enron Entities.
Q. On March 29, 2005, the Examiner, through his counsel
Parker, Hudson, Rainer & Xxxxx LLP (the "Examiner's Counsel"), filed a
pleading in the NewPower Bankruptcy Court entitled "Objection of Examiner to
Equity Interests of Enron Parties" (the "Objection"), seeking to disallow the
Enron Equity Interests.
R. In response to the Objection, Enron filed a motion (the
"Sanctions Motion") in the Enron Bankruptcy Court, seeking an order enforcing
the automatic stay and Enron Plan injunction, and imposing sanctions on the
Examiner and the Examiner's Counsel for a knowing violation of the automatic
stay in the Enron Chapter 11 Case.
S. The Enron Bankruptcy Court and the NewPower Bankruptcy
Court thereafter entered orders referring Enron and the Examiner to mediation
and staying further pursuit of the Adversary Proceeding, the Objection, and
the Sanctions Motion (collectively, the "Pending Litigation") pending
completion of such mediation.
T. As represented by NewPower in the NewPower Debtor's
Monthly Financial Reports (Business) for the Period from 5/31/06 to 6/30/2006
filed by NewPower with the NewPower Bankruptcy Court (the "NewPower June
Report"), as of June 30, 2006, the Enron Reserve held $31,169,375.49, for the
benefit of Enron and the Non-Debtor Enron Entities.
U. As represented by NewPower in the NewPower June Report,
NewPower maintains an interest-bearing money market account which, as of June
30, 2006, held $16,277,571.50 (the "NewPower Money Market Account"), as part
of the NewPower bankruptcy estate.
V. Enron, the Non-Debtor Enron Entities, NewPower and the
Examiner wish to avoid the risks and expenses attendant to the Pending
Litigation, and, without any Party admitting fault, liability or wrongdoing,
to resolve the issues surrounding the Pending Litigation
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as set forth in this Settlement Agreement, subject to approval by the Enron
Bankruptcy Court and the NewPower Bankruptcy Court.
NOW THEREFORE, for fair consideration and reasonably
equivalent value for the exchanges and releases contemplated herein, the
Parties hereby agree as follows:
AGREEMENT
ARTICLE I
DEFINITIONS
For purposes of this Settlement Agreement, the following
terms shall have the following meanings:
1.1 Affiliates. A Person directly or indirectly controlled by,
controlling, or under common control with, another Person. For the purposes of
this definition, "control" means, when used with respect to any Person, the
possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
1.2 Allowed. The term "Allowed" shall have the meaning ascribed
to such term in the NewPower Plan.
1.3 Applicable Law. Any statute, law, rule or regulation or any
judgment, order, consent order, stipulated agreement, ordinance, writ,
injunction or decree of any Governmental Entity.
1.4 Business Day. A day other than a Saturday, Sunday, or any
other day on which commercial banks are required or authorized to close by law
or executive order.
1.5 Effective Date. The date this Settlement Agreement shall
become effective pursuant to Section 5.1 hereof.
1.6 Enron Reserve. The amount held in the reserve established by
NewPower on account of the Enron Equity Interests pursuant to the Interim
Distribution Order, which reserve amount, including principal and accrued
interest, totaled $31,169,375.49 as of June 30, 2006.
1.7 Enron Reserve Distribution. An amount equal to the balance
of the Enron Reserve reflected on the NewPower June Report, plus any and all
interest accrued on such balance after June 30, 2006, minus $5,725,000.
1.8 Final Order. An order of a court after which the time to
appeal, petition for certiorari, or move for reargument or rehearing has
expired and as to which no appeal, petition for certiorari, or any other
proceedings for reargument or rehearing shall then be pending or as to which
any right to appeal, petition for certiorari, reargue, or rehear shall have
been waived in writing in form and substance satisfactory to the Parties or,
in the event that an appeal, writ of certiorari, or reargument or rehearing
thereof has been sought, such order shall have been determined by the highest
court to which such order was appealed, or certiorari, reargument or
4
rehearing shall have been denied and the time to take any further appeal,
petition for certiorari or move for reargument or rehearing shall have expired;
provided, however, that the possibility that a motion under Section 502(j) of
the Bankruptcy Code, Rule 59 or Rule 60 of the Federal Rules of Civil Procedure,
or any comparable rule under the Bankruptcy Rules, may be filed with respect
to such order shall not cause such order not to be a Final Order; provided
further, that an order that is subject to appeal may be treated as a Final
Order if no stay of such order has been obtained or is in effect, and the
Parties consent to treating such order as a Final Order.
1.9 Governmental Entity. Any domestic court or tribunal in any
domestic jurisdiction or any federal, state, municipal or local government or
other governmental body, agency, authority, district, department, commission,
board, bureau, or other instrumentality, arbitrator or arbitral body (domestic
or foreign), including any joint action agency, public power authority, public
utility district, or other similar political subdivision.
1.10 Person. Any individual, corporation, partnership, joint
venture, trust, limited liability company, unincorporated organization,
Governmental Entity or other entity.
ARTICLE II
COMPROMISE AND SETTLEMENT
2.1 Enron Claims and Enron Equity Interests. Upon the Effective
Date:
a. The Enron Claims and Enron Equity Interests shall be
fully and finally Allowed for all purposes in the NewPower Bankruptcy Case.
x. XxxXxxxx'x and the Examiner's signature on this
Settlement Agreement shall constitute their written consent to allowance of
the Enron Equity Interests and the Enron Claims as required by Section 12.1(a)
of the NewPower Plan.
c. Enron and the Non-Debtor Enron Entities shall receive any
and all distributions from the NewPower bankruptcy estate to which they are
entitled on account of the Enron Equity Interests under the Interim
Distribution Order, the NewPower Plan, and this Settlement Agreement.
Provided, however, that Enron and the Non-Debtor Enron Parties hereby waive
their rights to receive the first $5,725,000 (the "Settlement Amount") of the
Enron Reserve, and such amount shall be retained by NewPower in full and final
settlement of any and all disputes relating to the allowance or disallowance,
validity or invalidity, and priority or subordination of the Enron Claims and
the Enron Equity Interests.
2.2 Enron Reserve Distribution. On the Effective Date, NewPower
shall transfer the Enron Reserve Distribution to Enron and the Non-Debtor
Enron Entities in amounts representing each such entity's respective ownership
of the Enron Equity Interests as of the date of this Settlement Agreement, as
follows:
a. To Enron Energy Services, LLC: JPMorgan Chase Bank, ABA
Number 000000000; Credit: Enron Estate Collections, Account Number 304-194077;
Reference: [NewPower/EESLLC settlement];
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b. To Xxxxxx Energy Services, LLC: JPMorgan Chase Bank, ABA
Number 000000000; Credit Enron Estate Consolidated Non-Debtor Account Number
904-119270; Reference [NewPower/Xxxxxx settlement];
c. To McGarret I: JPMorgan Chase Bank, ABA Number 000000000;
Credit Enron Estate Consolidated Non-Debtor Account Number 904-119270;
Reference [NewPower/McGarret I settlement];
d. To McGarret II: JPMorgan Chase Bank, ABA Number
000000000; Credit Enron Estate Consolidated Non-Debtor Account Number
904-119270; Reference [NewPower/McGarret II settlement];
e. To McGarret III: JPMorgan Chase Bank, ABA Number
000000000; Credit Enron Estate Consolidated Non-Debtor Account Number
904-119270; Reference [NewPower/McGarret III settlement]; and
f. To EES Trust: JPMorgan Chase Bank, ABA Number 000000000;
Credit Enron Estate Consolidated Non-Debtor Account Number 904-119270;
Reference [NewPower/EES Warrant Trust settlement];
2.3 Future Distributions. As of the Effective Date and following
completion of the Enron Reserve Distribution:
a. On or before December 14, 2006, NewPower shall make a
distribution of the balance of the NewPower Money Market Account, less (i) an
amount, determined by NewPower in its sole and absolute discretion, to be held
in reserve sufficient to pay any reasonable expenses incurred or to be
incurred in the NewPower Chapter 11 Cases and (ii) any amounts allocable to
the equity interests held by Xxx Xxx or Xxxxx Xxx, to all holders of equity in
the NewPower Chapter 11 Cases, including, but not limited to, Enron and the
Non-Debtor Enron Entities (the "Subsequent NewPower Distribution"), which
amount of reasonable expenses and amounts allocable to the equity interests of
Xxx Xxx or Xxxxx Xxx shall be disclosed, in the aggregate, in a filing to be
made with the NewPower Bankruptcy Court on or before the Subsequent NewPower
Distribution. Each of Enron and the Non-Debtor Enron Entities shall be
entitled to receive their pro rata portion of the Subsequent NewPower
Distribution in amounts representing their respective ownership of the Enron
Equity Interests as of the date of this Settlement Agreement.
b. Distributions to holders of equity interests in the
NewPower Chapter 11 Cases occurring after the Subsequent NewPower Distribution
(collectively, the "Future Distributions") shall be paid solely to ENE at
JPMorgan Chase Bank, ABA Number 000000000, Enron Estate Collections account
number 304-194077, reference "NewPower/Enron Settlement." In any Future
Distributions, and based upon the deemed cancellation pursuant to the
provisions of Section 2.6 hereof; (a) ENE shall be deemed to be the owner of:
(i) the McGarret Shares, (ii) the Enron Equity Interests held by EESLLC as of
the date of this Settlement Agreement; (iii) the Enron Equity Interests held
by Xxxxxx as of the date of this Settlement Agreement, and (iv) the Enron
Equity Interests held by the EES Trust immediately following exercise of the
EES Warrants pursuant to Section 2.5 of this Settlement Agreement; and (b) ENE
shall be entitled to
6
receive any Future Distributions as a result of such deemed ownerships in
amounts calculated pursuant to the methodology employed to make any Future
Distributions to entities other than Enron and the Non-Debtor Enron Entities.
2.4 Treatment of Settlement Amount. Notwithstanding any
provision to the contrary in the NewPower Plan or Section 2.3 hereof, Enron
and the Non-Debtor Enron Entities shall not directly receive any subsequent
pro rata distribution of the Settlement Amount (the "Settlement Amount
Distribution") to the holders of allowed equity interests in NewPower Holdings
in accordance with the NewPower Plan; provided, however, that nothing
contained herein shall be construed or applied to preclude Enron and the
Non-Debtor Enron Entities from indirectly receiving any portion of the
Settlement Amount Distribution by virtue of Enron's or the Non-Debtor Enron
Entities' claims against or ownership interests in LJM2-TNPC, LLC.
2.5 Exercise of EES Warrants. On the Effective Date, the EES
Warrants shall be converted to common shares in NewPower Holdings through a
cashless exercise of the EES Warrants pursuant to the formula set forth in
Exhibit A to the NewPower Plan.
2.6 Cancellation of Certain Enron Shares: Immediately following
distribution of the Subsequent NewPower Distribution, and subject to the
provisions of Section 2.3 hereof, the Enron Shares held by (i) McGarrett I,
McGarrett II, and McGarrett III (collectively, the "McGarrett Shares"), (ii)
the EES Trust (the "EES Shares"), (iii) EESLLC (the "EESLLC Shares"), and (iv)
Xxxxxx (the "Xxxxxx Shares"), shall be cancelled and neither McGarrett I,
McGarrett II, McGarrett III, the EES Trust, Xxxxxx, nor EESLLC shall have any
further ownership interest in NewPower.
2.7 Resolution of Pending Litigation. On or before the
expiration of five (5) Business Days following the Effective Date, each of the
Parties shall take the following actions to resolve the Pending Litigation:
a. The Examiner shall dismiss the Adversary Proceeding with
prejudice and shall file a notice of such dismissal in substantially the form
annexed hereto as Exhibit "A" with the clerk of the Enron Bankruptcy Court;
b. The Examiner shall withdraw the Objection with prejudice
and shall file a notice of such withdrawal in substantially the form annexed
hereto as Exhibit `B" with the Clerk of the NewPower Bankruptcy Court; and
c. Enron shall withdraw the Sanctions Motion with prejudice
and shall file a notice of such withdrawal in substantially the form annexed
hereto as Exhibit "C" with the Clerk of the Enron Bankruptcy Court.
2.8 Examiner Involvement. Notwithstanding any provision
contained in this Article II to the contrary, Enron, the Non-Debtor Enron
Entities and NewPower agree that (a) Sections 2.3, 2.5 and 2.6 hereof
represent an agreement and understanding among Enron, the Non-Debtor Enron
Entities and NewPower and the Examiner is not intended to be a party thereto
and shall have no obligation or liability to any Party with respect to such
provisions, and (b) in the event that a dispute arises with respect to the
interpretation, performance or enforcement of Section 2.3, 2.5, 2.6 or 5.3(c)
hereof, and litigation, arbitration or mediation is commenced to resolve
7
such dispute, none of Enron, the Non-Debtor Enron Entities and NewPower shall
name or seek to add the Examiner as a party to such litigation, arbitration or
mediation, and the resolution of such dispute, whether by judgment, agreement
or otherwise, shall not impose any obligation or liability upon the Examiner;
provided, however, that, in the event that any such dispute is resolved by an
agreement of Enron, the Non-Debtor Enron Entities and NewPower to amend
Section 2.3, 2.5, 2.6 or 5.3(c) hereof, the Examiner shall consent thereto as
a Party provided that such amendment does not impose any obligation or
liability upon the Examiner and does not conflict with any of the rights,
remedies or duties of the Examiner in accordance with the Examiner Order.
ARTICLE III
MUTUAL WAIVERS AND RELEASES
3.1 Releases by Enron. As of the Effective Date and completion
of the Enron Reserve Distribution:
a. Enron, for itself, its successors and assigns, and all
Persons claiming by, through or under any of them, hereby waives, releases and
forever discharges NewPower and its Affiliates and each of their past, present
and future officers, directors, partners, members, employees, agents,
attorneys and servants (collectively, the "NewPower Released Parties") from
any and all claims, proofs of claim, obligations, demands, actions, causes of
action and liabilities, of whatsoever kind and nature, character and
description, whether in law or equity, whether sounding in tort, contract or
under other Applicable Law, whether known or unknown, matured or unmatured,
anticipated or unanticipated, which Enron and its successors and assigns ever
had, now have or may ever have, arising from any event, transaction, matter,
circumstance or fact in any way arising out of, arising as a result of,
related to, with respect to or in connection with or based in whole or in part
on the Master Agreement, the Second Agreement, the First NewPower Settlement,
the Second NewPower Settlement, or any other matter raised in or related to
the Pending Litigation, including, but not limited to, any event, transaction,
matter, circumstance or fact concerning the Master Agreement, the Second
Agreement, the First NewPower Settlement, the Second NewPower Settlement, or
the Pending Litigation that is or may be disclosed as a result of the Enron
Investigative Matters, as defined in Section 4.4 hereof (collectively referred
to herein as the "Enron Causes of Action"); provided, however, that, except as
provided in Sections 2.1 and 2.4 hereof, Enron does not hereby waive, release
or discharge any of the NewPower Released Parties from any of their
obligations under: (i) this Settlement Agreement, (ii) the NewPower Plan,
(iii) the NewPower Confirmation Order, (iv) the Enron Plan, (v) the Enron
Confirmation Order, or (vi) the Interim Distribution Order; and, provided,
further, that, notwithstanding the foregoing proviso, upon the Effective Date
and (1) the withdrawal of the Objection and the Adversary Proceeding and (2)
the completion of the Enron Reserve Distribution, Enron shall waive, release
and discharge the NewPower Released Parties from any claims and causes of
action with respect to the Enron Plan and the Enron Confirmation Order as such
claims and causes of action relate to the Sanctions Motion.
b. Enron, for itself, its successors and assigns, and all
Persons claiming by, through or under any of them, hereby waives, releases and
forever discharges the Examiner and his Affiliates and each of their past,
present and future officers, directors, partners, members, employees, agents,
attorneys and servants (collectively, the "Examiner Released Parties") from
8
the Enron Causes of Action; provided, however, that, except as provided in
Sections 2.1 and 2.4 hereof, Enron does not hereby waive, release or discharge
the Examiner Released Parties from any of their obligations under (i) this
Settlement Agreement, (ii) the NewPower Plan, (iii) the NewPower Confirmation
Order, (iv) the Enron Plan, (v) the Enron Confirmation Order, or (vi) the
Interim Distribution Order; and, provided, further, that, notwithstanding the
foregoing proviso, upon the Effective Date (1) and the withdrawal of the
Objection and the Adversary Proceeding and (2) the completion of the Enron
Reserve Distribution, Enron shall waive, release and discharge the Examiner
Released Parties from any claims and causes of action with respect to the
Enron Plan and the Enron Confirmation Order as such claims and causes of
action relate to the Sanctions Motion.
3.2 Releases by the Non-Debtor Enron Entities. As of the
Effective Date and completion of the Enron Reserve Distribution:
a. The Non-Debtor Enron Entities, for themselves, their
successors and assigns, and all Persons claiming by, through or under any of
them, hereby waive, release and forever discharge the NewPower Released
Parties from any and all claims, proofs of claim, obligations, demands,
actions, causes of action and liabilities, of whatsoever kind and nature,
character and description, whether in law or equity, whether sounding in tort,
contract or under other Applicable Law, whether known or unknown, matured or
unmatured, anticipated or unanticipated, which the Non-Debtor Enron Entities
and their successors and assigns ever had, now have or may ever have, arising
from any event, transaction, matter, circumstance or fact in any way arising
out of, arising as a result of, related to, with respect to or in connection
with or based in whole or in part on the Master Agreement, the Second
Agreement, the First NewPower Settlement, the Second NewPower Settlement, or
any other matter raised in or related to the Pending Litigation, including,
but not limited to, any event, transaction, matter, circumstance or fact
concerning the Master Agreement, the Second Agreement, the First NewPower
Settlement, the Second NewPower Settlement, or the Pending Litigation that is
or may be disclosed as a result of the Enron Investigative Matters, as defined
in Section 4.4 hereof (collectively referred to herein as the "Non-Debtor
Enron Entities Causes of Action"); provided, however, that, except as provided
in Sections 2.1 and 2.4 hereof, the Non-Debtor Enron Entities do not hereby
waive, release or discharge any of the NewPower Released Parties from any of
their obligations under: (i) this Settlement Agreement, (ii) the NewPower
Plan, (iii) the NewPower Confirmation Order, (iv) the Enron Plan, (v) the
Enron Confirmation Order, or (vi) the Interim Distribution Order; and,
provided, further, that, notwithstanding the foregoing proviso, upon the
Effective Date and (1) the withdrawal of the Objection and the Adversary
Proceeding and (2) the completion of the Enron Reserve Distribution, the
Non-Debtor Enron Entities shall waive, release and discharge the NewPower
Released Parties from any claims and causes of action with respect to the
Enron Plan and the Enron Confirmation Order as such claims and causes of
action relate to the Sanctions Motion.
b. The Non-Debtor Enron Entities, for themselves, their
successors and assigns, and all Persons claiming by, through or under any of
them, hereby waive, release and forever discharge the Examiner Released
Parties from the Non-Debtor Enron Entities Causes of Action; provided,
however, that, except as provided in Sections 2.1 and 2.4 hereof, the
Non-Debtor Enron Entities do not hereby waive, release or discharge the
Examiner Released Parties from any of their obligations under (i) this
Settlement Agreement, (ii) the NewPower Plan,
9
(iii) the NewPower Confirmation Order, (iv) the Enron Plan, (v) the Enron
Confirmation Order, or (vi) the Interim Distribution Order and, provided,
further, that, notwithstanding the foregoing proviso, upon the Effective Date
and (1) the withdrawal of the Objection and the Adversary Proceeding and (2)
the completion of the Enron Reserve Distribution, the Non-Debtor Enron
Entities shall waive, release and discharge the Examiner Released Parties from
any claims and causes of action with respect to the Enron Plan and the Enron
Confirmation Order as such claims and causes of action relate to the Sanctions
Motion.
c. The Non-Debtor Enron Entities, for themselves, their
successors and assigns, and all Persons claiming by, through or under any of
them, hereby waive, release and forever discharge Enron from the Non-Debtor
Enron Entities Causes of Action; provided, however, that notwithstanding
anything else contained herein, the Non-Debtor Enron Entities do not hereby
waive, release or discharge Enron from any of their obligations under (i) this
Settlement Agreement, (ii) the NewPower Plan, (iii) the NewPower Confirmation
Order, (iv) the Enron Plan, (v) the Enron Confirmation Order, or (vi) the
Interim Distribution Order.
3.3 Releases by NewPower. As of the Effective Date and
completion of the Enron Reserve Distribution:
x. XxxXxxxx, for itself, its successors and assigns, and all
Persons claiming by, through or under any of them, hereby waives, releases and
forever discharges Enron and its Affiliates and each of their past (other than
Xxx Xxx and his successors in interest), present and future officers,
directors, partners, members, employees, agents, attorneys and servants
(collectively, the "Enron Released Parties") from any and all claims, proofs
of claim, obligations, demands, actions, causes of action and liabilities, of
whatsoever kind and nature, character and description, whether in law or
equity, whether sounding in tort, contract or under other Applicable Law,
whether known or unknown, matured or unmatured, anticipated or unanticipated,
which NewPower and its successors and assigns ever had, now have or may ever
have, arising from any event, transaction, matter, circumstance or fact in any
way arising out of, arising as a result of, related to, with respect to or in
connection with or based in whole or in part on the Master Agreement, the
Second Agreement, the First NewPower Settlement, the Second NewPower
Settlement, or any other matter raised in or related to the Pending
Litigation, including, but not limited to, any event, transaction, matter,
circumstance or fact concerning the Master Agreement, the Second Agreement,
the First NewPower Settlement, the Second NewPower Settlement, or the Pending
Litigation that is or may be disclosed as a result of the Enron Investigative
Matters, as defined in Section 4.4 hereof (collectively referred to herein as
the "NewPower Causes of Action"); provided, however, that, except as otherwise
provided herein, NewPower does not hereby waive, release or discharge any of
the Enron Released Parties from any of their other obligations under: (i) this
Settlement Agreement, (ii) the NewPower Plan, (iii) the NewPower Confirmation
Order, (iv) the Enron Plan, (v) the Enron Confirmation Order, or (vi) the
Interim Distribution Order.
x. XxxXxxxx, for itself, its successors and assigns, and all
Persons claiming by, through or under any of them, hereby waives, releases and
forever discharges the Non-Debtor Enron Entities and their Affiliates and each
of their past (other than Xxx Xxx and his successors in interest), present and
future officers, directors, partners, members, employees, agents, attorneys
and servants (collectively, the "Non-Debtor Enron Entities Released Parties")
10
from the NewPower Causes of Action; provided, however, that, except as
otherwise provided herein, NewPower does not hereby waive, release or
discharge any of the Non-Debtor Enron Entities Released Parties from any of
their other obligations under: (i) this Settlement Agreement, (ii) the
NewPower Plan, (iii) the NewPower Confirmation Order, (iv) the Enron Plan, (v)
the Enron Confirmation Order, or (vi) the Interim Distribution Order.
3.4 Releases by the Examiner. As of the Effective Date and the
completion of the Enron Reserve Distribution:
a. The Examiner, for himself, his successors and assigns,
and all Persons claiming by, through or under any of them, hereby waives,
releases and forever discharges the Enron Released Parties from any and all
claims, proofs of claim, obligations, demands, actions, causes of action and
liabilities, of whatsoever kind and nature, character and description, whether
in law or equity, whether sounding in tort, contract or under other Applicable
Law, whether known or unknown, matured or unmatured, anticipated or
unanticipated, which the Examiner and his successors and assigns ever had, now
have or may ever have, either directly by the Examiner or on behalf of
NewPower, arising from any event, transaction, matter, circumstance or fact in
any way arising out of, arising as a result of, related to, with respect to or
in connection with or based in whole or in part on the Master Agreement, the
Second Agreement, the First NewPower Settlement, the Second NewPower
Settlement, or any other matter raised in or related to the Pending
Litigation, including, but not limited to, any event, transaction, matter,
circumstance or fact concerning the Master Agreement, the Second Agreement,
the First NewPower Settlement, the Second NewPower Settlement, or the Pending
Litigation that is or may be disclosed as a result of the Enron Investigative
Matters, as defined in Section 4.4 hereof (collectively referred to herein as
the "Examiner Causes of Action"); provided, however, that, except as otherwise
provided herein, the Examiner does not hereby waive, release or discharge any
of the Enron Released Parties from any of their other obligations under: (i)
this Settlement Agreement, (ii) the NewPower Plan, (iii) the NewPower
Confirmation Order, (iv) the Enron Plan, (v) the Enron Confirmation Order, or
(vi) the Interim Distribution Order; and, provided, further, that nothing
herein is intended, or shall be construed, as a release, waiver or discharge
of any claim, objection, demand, action, right, remedy or cause of action of
any kind or nature the Examiner may be authorized to investigate and pursue
under the Examiner Order against any Person other than the Enron Released
Parties and the Non-Debtor Enron Entities Released Parties, including, without
limitation, Xxx Xxx and Xxxxx Xxx.
b. The Examiner, for himself, his successors and assigns,
and all Persons claiming by, through or under any of them, hereby waives,
releases and forever discharges the Non-Debtor Enron Entities Released Parties
from the Examiner Causes of Action; provided, however, that, except as
otherwise provided herein, the Examiner does not hereby waive, release or
discharge any of the Non-Debtor Enron Entities Released Parties from any of
their other obligations under: (i) this Settlement Agreement, (ii) the
NewPower Plan, (iii) the NewPower Confirmation Order, (iv) the Enron Plan, (v)
the Enron Confirmation Order, or (vi) the Interim Distribution Order; and,
provided, further, that nothing herein is intended, or shall be construed, as
a release, waiver or discharge of any claim, objection, demand, action, right,
remedy or cause of action of any kind or nature the Examiner may be authorized
to investigate and pursue under the Examiner Order against any Person other
than the Enron Released Parties and the Non-Debtor Enron Entities Released
Parties, including, without limitation, Xxx Xxx and Xxxxx Xxx.
11
3.5 Advice of Counsel. The consequences of the foregoing waiver
and release provisions have been explained to each of the Parties by their
respective counsel. Each of the Parties acknowledges that it may hereafter
discover facts different from, or in addition to, those which they now know or
believe to be true with respect to the Enron Causes of Action, the Non-Debtor
Enron Entities Causes of Action, the NewPower Causes of Action, or the
Examiner Causes of Action, and agree that this Settlement Agreement and the
releases contained herein shall remain effective in all respects
notwithstanding such different or additional facts or the discovery thereof.
3.6 Scope of Waivers and Releases. To the extent Applicable Law
would not otherwise recognize the provisions of Sections 3.1, 3.2, 3.3 or 3.4
hereof as constituting a full and final release applying to all unknown and
unanticipated Enron Causes of Action, Non-Debtor Enron Entities Causes of
Action, NewPower Causes of Action, or Examiner Causes of Action, as well as
those now known or disclosed, the Parties hereby expressly waive all rights or
benefits which any of them may have now or in the future under any such
Applicable Law.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES/COVENANTS
4.1 Due Organization, Standing and Authority.
x. XxxXxxxx, XxxXxxxx Holdings, and TNPC Holdings are each
duly organized, validly existing and in good standing under the laws of the
jurisdiction of their formation, and each have all necessary power and
authority to execute, deliver and perform its obligations under this
Settlement Agreement as contemplated by its formation agreements, by-laws, or
other charter, organizational or governing documents (collectively, the
"NewPower Governing Documents"), subject to entry of the Bankruptcy Court
Approvals. The natural person signing this Settlement Agreement on behalf of
NewPower, NewPower Holdings, and TNPC Holdings was duly authorized to do so on
the date this Settlement Agreement was executed by such natural person.
b. ENE, ENA, EESI, EPMI, EESLLC, and each of the Non-Debtor
Enron Entities is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation, and each have all necessary
power and authority to execute, deliver and perform its obligations under this
Settlement Agreement as contemplated by its formation agreements, by-laws, or
other charter, organizational or governing documents (collectively, the "Enron
Governing Documents"), subject to entry of the Bankruptcy Court Approvals. The
natural person signing this Settlement Agreement on behalf of ENE, ENA, EESI,
EPMI, EESLLC, and each of the Non-Debtor Enron Entities was duly authorized to
do so on the date this Settlement Agreement was executed by such natural
person.
4.2 Authorization and Validity of Agreement.
a. Subject to entry of the Bankruptcy Court Approvals, the
execution, delivery and performance of this Settlement Agreement (a) are
within the powers of NewPower, NewPower Holdings, and TNPC Holdings, (b) have
been duly authorized by all necessary action on their behalf and all necessary
consents or approvals have been obtained and are in full force
12
and effect, and (c) do not violate any of the terms and conditions of (i) any
of the NewPower Governing Documents, (ii) any Applicable Law, or (iii) any
contracts to which any NewPower entity is a party.
b. Subject to entry of the Bankruptcy Court Approvals, the
execution, delivery and performance of this Settlement Agreement (a) are
within the powers of ENE, ENA, EESI, EPMI, EESLLC, and each of the Non-Debtor
Enron Entities, (b) have been duly authorized by all necessary action on their
behalf and all necessary consents or approvals have been obtained and are in
full force and effect, and (c) do not violate any of the terms and conditions
of (i) any of the Enron Governing Documents, (ii) any Applicable Law, or (iii)
any contracts to which any Enron entity or Non-Debtor Enron Entity is a party.
4.3 Enforceability. Enron, the Non-Debtor Enron Entities,
NewPower, and the Examiner each warrant and represent to the other Parties
that, subject to the approval of the NewPower Bankruptcy Court and the Enron
Bankruptcy Court, this Settlement Agreement has been duly executed and
delivered on its behalf and constitutes its legal, valid and binding
obligation enforceable against it in accordance with its terms and the terms
of the Bankruptcy Court Approvals.
4.4 Account Balances
x. XxxXxxxx warrants and represents to the other Parties
that, as of June 30, 2006, the balance of the Enron Reserve was
$31,169,375.49.
x. XxxXxxxx warrants and represents to the other Parties
that, as of June 30, 2006, the balance of the NewPower Money Market Account
was $16,277,571.50.
4.5 Acknowledgments of Parties.
x. XxxXxxxx and the Examiner each acknowledges that (i) ENE,
ENA, EESI, EPMI, EESLLC, and/or certain of their Affiliates are currently, or
have been, subject to pending investigations by Governmental Entities,
including, without limitation, investigations by the Federal Energy Regulatory
Commission, the United States House of Representatives and United States
Senate (collectively, "Congress"), and the State of California, in relation to
ENE's and/or certain of its Affiliates' conduct in connection with the
wholesale electric power and gas markets, and could be subject to further
investigations and proceedings by the same or other Governmental Entities;
(ii) there are pending and may be future investigations or proceedings by
Governmental Entities relating to the wholesale electric power or gas markets
(all such pending and future investigations and proceedings described in (i)
and (ii) collectively, the "Enron Investigations"); (iii) the course of the
Enron Investigations and the results thereof cannot be predicted; (iv) the
knowledge of ENE ENA, EESI, EPMI, EESLLC, and/or certain of their Affiliates
or their current or past employees regarding the facts and circumstances
relevant to such Enron Investigations is incomplete, and additional facts and
circumstances may be discovered and disclosed as a result of such Enron
Investigations; and (v) in connection with such Enron Investigations, certain
Governmental Entities have the authority, among other things, to award
damages, grant restitution, or order refunds, rebates, past or future rate
reductions or adjustments, charges, fees, assessments, lost profits, adders,
surcharges or penalties. The
13
foregoing matters, including the Enron Investigations, shall be collectively
referred to in this Settlement Agreement as the "Enron Investigative Matters."
b. Each of the Parties acknowledges that: (i) it has relied
on its own independent investigation of the Enron Claims, the Enron Equity
Interests, and the Pending Litigation in determining whether or not to enter
into this Settlement Agreement except as set forth herein; (ii) it has
conducted its own due diligence, including a review of the Enron Claims, the
Enron Equity Interests, the Pending Litigation, and Applicable Law in
connection therewith, as well as undertaken the opportunity to review
information, ask questions and receive answers concerning the Enron Claims,
the Enron Equity Interests, the Pending Litigation, the Enron Investigative
Matters and the terms and conditions of this Settlement Agreement; and (iii)
it possesses the knowledge, experience and sophistication to allow it to fully
evaluate and accept the merits and risks of entering into this Settlement
Agreement.
ARTICLE V
EFFECTIVENESS/TERMINATION
5.1 Effective Date of Settlement Agreement. The Effective Date
shall be the first Business Day upon which each of the following events has
occurred: (i) the Settlement Agreement has been duly executed and delivered by
each of the Parties; (ii) the NewPower Bankruptcy Court has entered a Final
Order approving the Settlement Agreement (the "NewPower Settlement Order");
and (iii) the Enron Bankruptcy Court has entered a Final Order approving the
Settlement Agreement (the "Enron Settlement Order" and, collectively with the
NewPower Settlement Order, the "Bankruptcy Court Approvals"); provided,
however, that Sections 5.3 and 6.8 hereof shall be effective against, and
enforceable by, the Parties immediately upon execution of this Settlement
Agreement and without regard to entry of the Bankruptcy Court Approvals; and,
provided, further, that the Effective Date shall not be in any way conditioned
upon entry of the Final Distribution Order, as defined in Section 5.3(c)
hereof.
5.2 Termination of Settlement Agreement. In the event that, on
or prior to October 31, 2006, either the NewPower Settlement Order is not
entered by the NewPower Bankruptcy Court, or the Enron Settlement Order is not
entered by the Enron Bankruptcy Court, this Settlement Agreement shall be null
and void, all rights, claims, objections, remedies and defenses available to
any of the Parties shall be fully preserved, no statements, representations or
admissions made in this Settlement Agreement, in any 9019 Motions or pleadings
relating thereto, or in any hearings or proceedings relating to court approval
of this Settlement Agreement will be admissible against, binding upon or
enforceable against any of the Parties, and none of the Parties hereto shall
have any further obligation to any of the other Parties arising out of this
Settlement Agreement; provided, however, that the date set forth above may be
extended if agreed to, in writing, by each of the Parties.
5.3 Motions to Approve Settlement Agreement/Interim
Funding/Final Distribution Order. On or before the expiration of five (5)
Business Days following execution and delivery of this Settlement Agreement by
each of the Parties:
14
x. XxxXxxxx and the Examiner shall jointly file a motion
(the "NewPower 9019 Motion") in the NewPower Bankruptcy Court, seeking entry
of an order by the NewPower Bankruptcy Court (i) approving and authorizing the
consummation of the Settlement Agreement pursuant to Bankruptcy Rule 9019,
including, without limitation, obtaining approval to make the Subsequent
NewPower Distribution in accordance with the provisions of Section 2.3(a)
hereof, and (ii) declaring the Enron Equity Interests to be Allowed and
eligible for immediate and future distributions as contemplated in the
NewPower Plan, the NewPower Confirmation Order, and the Interim Distribution
Order.
b. Enron shall file a motion (the "Enron 9019 Motion") in
the Enron Bankruptcy Court, seeking entry of an order by the Enron Bankruptcy
Court approving the Settlement Agreement pursuant to Bankruptcy Rule 9019.
x. XxxXxxxx shall file a motion in the NewPower Bankruptcy
Court seeking entry of an order (the "Final Distribution Order") by the
NewPower Bankruptcy Court including, without limitation, directing NewPower to
make final distributions to all holders of equity in the NewPower Chapter 11
Cases and such other relief as may be requested.
If any type of objection or other resistance is filed, or appeal is taken,
concerning either the NewPower 9019 Motion or the Enron 9019 Motion
(collectively, the "9019 Motions"), each of the Parties hereto shall, jointly
or individually, respond to said objection, resistance, or appeal and
vigorously seek entry of, or in the case of an appeal, affirmance of, orders
approving the 9019 Motions and this Settlement Agreement.
ARTICLE VI
MISCELLANEOUS
6.1 Recitals Not Admissions. The recitals set forth beginning on
page 1 of this Settlement Agreement are intended for informational purposes
and as background only and are not intended, and shall not be construed, as
admissions or stipulations of fact by any Party.
6.2 Notices. All notices, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given: (i)
when personally delivered; (ii) upon actual receipt (as established by
confirmation of receipt or otherwise) during normal business hours, otherwise
on the first Business Day thereafter, if transmitted by facsimile or
telecopier with confirmation of receipt; (iii) upon receipt when mailed by
certified mail, return receipt requested, postage prepaid; or (iv) upon
receipt when sent by overnight courier; in each case, to the following
addresses, or to such other addresses as a Party may from time to time specify
by notice to the other Parties given pursuant hereto.
a. If to Enron, to:
Enron Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
15
with a copy to:
Enron Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx/Legal Department
Telecopier No.: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
b. If to the Non-Debtor Enron Entities, to:
Enron Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Enron Corp.
0000 Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxx/Legal Department
Telecopier No.: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxx, Esq.
Telecopier No.: (000) 000-0000
c. If to NewPower, to:
The NewPower Company
X.X. Xxx 00000
Xxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
16
With a copy to:
Xxxxxxxx X. Xxxxxx, Esq.
Sidley Austin LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopier No.: (000) 000-0000
d. If to the Examiner, to:
Xxxxx X. Xxxxxx, XX, Xxx.
0000 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxx X. Xxxxxx, Xx., Esq.
Xxxxxx Xxxxxx Xxxxxx & Xxxxx LLP
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
6.3 Intended Beneficiaries. To the extent that this Settlement
Agreement inures to the benefit of Persons not signatories hereto, such
persons shall be deemed to be intended beneficiaries, and this Settlement
Agreement is hereby declared to be made in and for their respective benefits
and uses.
6.4 Governing Law. THIS SETTLEMENT AGREEMENT AND THE RIGHTS AND
DUTIES OF THE PARTIES HEREUNDER WILL BE GOVERNED BY AND CONSTRUED, ENFORCED
AND PERFORMED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THAT WOULD REQUIRE THE
APPLICATION OF LAWS OF ANOTHER JURISDICTION.
6.5 Jurisdiction. THE PARTIES ACKNOWLEDGE AND AGREE THAT
JURISDICTION OVER THIS SETTLEMENT AGREEMENT SHALL EXIST IN THE BANKRUPTCY
COURT OF THE PARTY AGAINST WHICH THE OTHER PARTY IS SEEKING RELIEF RELATED TO
THIS SETTLEMENT AGREEMENT AND THAT ANY CLAIMS ARISING OUT OF OR RELATED IN ANY
MANNER TO THIS SETTLEMENT AGREEMENT SHALL BE PROPERLY BROUGHT ONLY BEFORE SUCH
BANKRUPTCY COURT. IF AND TO THE EXTENT THAT THE ENRON CHAPTER 11 CASE IS
CLOSED OR DISMISSED AND A REQUEST FOR RELIEF WOULD OTHERWISE BE BROUGHT IN THE
ENRON BANKRUPTCY COURT IF THE ENRON CHAPTER 11 CASE WAS NOT
17
CLOSED OR DISMISSED, XXX XXXXXX XX XXX XXXXX XX XXX XXXX AND THE UNITED STATES
DISTRICT COURT LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE
EXCLUSIVE JURISDICTION OVER THIS SETTLEMENT AGREEMENT AND ANY SUCH CLAIMS. IF
AND TO THE EXTENT THAT THE NEWPOWER CHAPTER 11 CASE IS CLOSED OR DISMISSED AND
A REQUEST FOR RELIEF WOULD OTHERWISE BE BROUGHT IN THE NEWPOWER BANKRUPTCY
COURT IF THE NEWPOWER CHAPTER 11 CASE WAS NOT CLOSED OR DISMISSED, XXX XXXXXX
XX XXX XXXXX XX XXXXXXX AND THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF GEORGIA LOCATED IN ATLANTA, GEORGIA, SHALL HAVE EXCLUSIVE
JURISDICTION OVER THIS SETTLEMENT AGREEMENT AND ANY SUCH CLAIMS.
6.6 Entire Agreement. This Settlement Agreement contains the
entire agreement between the Parties with respect to the subject matter hereof
and supersedes all prior and contemporaneous agreements, understandings,
inducements or conditions, express or implied, with respect to the subject
matter hereof; provided, however, that, except as expressly provided herein,
nothing contained herein shall be construed or deemed to affect the finality
or enforceability of the First NewPower Settlement, the First NewPower
Settlement Order, the Second NewPower Settlement, or the Second NewPower
Settlement Order.
6.7 Severability. In case any provision of this Settlement
Agreement shall be determined to be invalid, illegal or unenforceable for any
reason, such provision shall be ineffective only to the extent of such
invalidity, illegality or unenforceability, and the remaining provisions of
this Settlement Agreement shall be unaffected and unimpaired thereby, and
shall remain in full force and effect, to the fullest extent permitted by
Applicable Law.
6.8 Reliance on Representations. Each Party hereby expressly
warrants and represents to the other that no promise or agreement that is not
expressed herein has been made to him, her or it to induce such Party to
execute this Settlement Agreement. Except as provided in Section 6.1 hereof,
the Parties agree and stipulate that all representations, warranties,
agreements, covenants, and obligations herein are material, shall be deemed to
have been relied upon by the other Parties, and shall survive the Effective
Date.
6.9 Successors and Assigns. This Settlement Agreement shall be
binding upon and shall inure to the benefit of the Parties hereto and their
respective successors and assigns. Notwithstanding the foregoing, no Party
hereto may assign any of its rights or obligations hereunder without the
written consent of all of the other Parties.
6.10 No Admission of Liability. This Settlement Agreement is not
an admission of any liability by any Party but is a compromise, and this
Settlement Agreement shall not be treated as an admission of liability. All
communications (whether oral or in writing) between and/or among the Parties,
their counsel and/or their respective representatives relating to, concerning
or in connection with this Settlement Agreement, or the negotiation of its
terms, shall be governed and protected in accordance with the Federal Rule of
Evidence 408, New York Civil Practice Law and Rules Section 4547, and/or to
the fullest extent permitted by Applicable Law.
18
6.11 No Assignment of Claims. Each Party represents and warrants
that, as to the Enron Released Claims, the Non-Debtor Entities' Released
Claims, the NewPower Released Claims, and the Examiner Released Claims
released herein by such Party, it is the only Person who, to its knowledge,
has any interest in such claims and that none of such claims, nor any part
thereof, have been assigned, granted or transferred in any way to any Person.
6.12 Interpretation. This Settlement Agreement has been jointly
drafted by the Parties at arm's-length, and each Party has had ample
opportunity to consult with independent legal counsel. No provision or
ambiguity in this Settlement Agreement shall be resolved against any Party
solely by virtue of its participation in the drafting of this Settlement
Agreement.
6.13 Attorney's Fees. Each Party shall be responsible for the
payment of (a) its own costs and expenses (including reasonable attorneys'
fees), and (b) all of its costs and expenses (including reasonable attorneys'
fees) in connection with the matters referred to in this Settlement Agreement
and the Pending Litigation; provided, however, that, in any action or
proceeding to enforce the terms and provisions of this Settlement Agreement,
the prevailing Party shall be entitled to payment of the reasonable costs and
expenses (including reasonable attorneys' fees) incurred by such Party in
connection with such action or proceeding against a Party determined to be in
violation hereof; and, provided, further, that the foregoing shall be without
prejudice to the rights of (i) the Examiner to seek reimbursement of
attorneys' fees and expenses from the NewPower chapter 11 estate in all
circumstances and (ii) any party in interest to deny such request or interpose
an objection thereto; and, provided, further, that, under no circumstances,
shall the Examiner be responsible for or held to be in default in the event
that the NewPower Bankruptcy Court does not enter the Final Distribution
Order.
6.14 Captions. The captions of this Settlement Agreement are for
convenience only and are not a part of this Settlement Agreement and do not in
any way limit or amplify the terms and provisions of this Settlement Agreement
and shall have no effect on its interpretation.
6.15 Counterparts. This Settlement Agreement may be executed in
counterparts, by either an original signature or signature transmitted by
facsimile transmission or other similar process and each copy so executed
shall be deemed to be an original and all copies so executed shall constitute
one and the same agreement.
6.16 Facsimile Signatures. This Settlement Agreement may be
executed by facsimile signatures, and such facsimile signatures will be deemed
to be as valid as an original signature whether or not confirmed by delivering
the original signatures in person, by courier or by mail, although it is the
Parties' intentions to deliver original signatures after delivery of facsimile
signatures.
6.17 No Waiver. No waiver or indulgence of any breach or series
of breaches of this Settlement Agreement (a) shall be deemed a waiver of any
other breach of this Settlement Agreement, including, without limitation, a
subsequent breach of the same provision of this Settlement Agreement or any of
its other provisions or (b) shall otherwise affect the enforceability of any
provision of this Settlement Agreement.
19
6.18 Written Amendment. This Settlement Agreement may not be
supplemented or changed orally. No modification of the terms and conditions of
this Settlement Agreement shall be made except by the execution and delivery
by all Parties of a written agreement.
6.19 No Preclusive Effect. Nothing contained in this Settlement
Agreement, the settlement contemplated hereby, the Bankruptcy Court Approvals,
or the allowance of the Enron Claim and the Enron Equity Interests is
intended, or shall be deemed, to have any res judicata, collateral estoppel or
any preclusive or evidentiary effect whatsoever on, or impair, restrict or
affect in any manner whatever, the rights, claims, counterclaims, remedies,
defenses, objections, actions, causes of action, and suits of any of the
Parties as to any Person other than a Party.
IN WITNESS WHEREOF, THE PARTIES HERETO have hereby executed
this Settlement Agreement on the date shown beside their signature.
THE NEW POWER COMPANY
By:/s/ M. Xxxxxxxx Xxxxxx
----------------------
Name: M. Xxxxxxxx Xxxxxx
Title: President & CEO
NEWPOWER HOLDINGS, INC.
By:/s/ M. Xxxxxxxx Xxxxxx
----------------------
Name: M. Xxxxxxxx Xxxxxx
Title: President & CEO
TNPC HOLDINGS, INC.
By:/s/ M. Xxxxxxxx Xxxxxx
----------------------
Name: M. Xxxxxxxx Xxxxxx
Title: President & CEO
20
XXXXX X. XXXXXX, XX, AS EXAMINER FOR
NEWPOWER HOLDINGS, INC. AND TNPC
HOLDINGS, INC.
By:/s/ Xxxxx X. Xxxxxx, XX
------------------------
Name: Xxxxx X. Xxxxxx
Title: As Examiner
ENRON CORP.
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
ENRON NORTH AMERICA CORP.
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Vice President
ENRON ENERGY SERVICES, INC.
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Chief Executive Officer
21
ENRON POWER MARKETING, INC.
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Vice President
ENRON ENERGY SERVICES, LLC
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
XXXXXX ENERGY SERVICES, LLC
By: Enron Energy Services, LLC, its
Managing Member
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
McGARRET I, LLC
By: Enron Energy Services, LLC, its
Managing Member
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
22
McGARRET II, LLC
By: Enron Energy Services, LLC, its
Managing Member
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
McGARRET III, LLC
By: Enron Energy Services, LLC, its
Managing Member
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
EES WARRANT TRUST
By: Enron Energy Services, LLC, the
Class A Beneficial Interest Member
By: Enron Corp., its Sole Member
By:/s/ K. Xxxx Xxxxx
-----------------
Name: K. Xxxx Xxxxx
Title: Managing Director and
General Counsel
23
EXHIBIT A
XXXXX X. XXXXXX, XX
Court-Approved Examiner for NewPower
Holdings, Inc. and TNPC Holdings, Inc.
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------
In re : Chapter 11
:
ENRON CORP., et al., :
: Case No. 01-16034 (AJG)
Debtors :
--------------------------------------------------- Jointly Administered
XXXXX X. XXXXXX, XX, EXAMINER FOR : Adversary Proceeding
NEWPOWER HOLDINGS, INC. AND :
TNPC HOLDINGS, INC. :
:
Plaintiff, : No. 04-04303
v. :
:
ENRON CORP., et al., :
:
Defendants. :
---------------------------------------------------
PLAINTIFF'S NOTICE OF DISMISSAL WITH PREJUDICE
TO THE XXXXXXXXX XXXXXX X. XXXXXXXX,
UNITED STATES BANKRUPTCY JUDGE:
Xxxxx X. Xxxxxx, XX, court-approved examiner for NewPower
Holdings, Inc. and TNPC Holdings, Inc., as Plaintiff in the above-entitled
adversary proceeding, hereby dismisses this adversary proceeding with
prejudice.
Dated: New York, New York
_____________, 2006
DRAFT
----------------------------------
XXXXX X. XXXXXX, XX
Court-approved Examiner for NewPower Holdings,
Inc. and TNPC Holdings, Inc.
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
SO ORDERED this _______ day of October, 2006.
-----------------------------------------
Xxxxxxxxx Xxxxxx X. Xxxxxxxx
United States Bankruptcy Judge
0
XXXXXXX X
XX XXX XXXXXX XXXXXX BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION
In re ) Chapter 11
)
THE NEW POWER COMPANY, et al., ) Jointly Administered
-- --- )
)
Debtors. ) Case Nos. 02-10835 through 02-10837
)
____________________________________) Judge W. Xxxxx Xxxxx, Xx.
WITHDRAWAL WITH PREJUDICE OF OBJECTION
OF EXAMINER TO EQUITY INTERESTS OF ENRON PARTIES
Xxxxx X. Xxxxxx,. IV, court-approved examiner for the Debtors
NewPower Holdings, Inc. and TNPC Holdings, Inc. (the "Examiner") hereby
withdraws, with prejudice, the Objection of Examiner to Equity Interests of
Enron Parties [Docket No. _____] filed by the Examiner on March 23, 2005.
Respectfully submitted, this ____ day of __________, 2006
DRAFT
----------------------------------------------
XXXXX X. XXXXXX, XX
Court-approved Examiner for NewPower Holdings,
Inc. and TNPC Holdings, Inc.
1500 Marquis Two Tower
000 Xxxxxxxxx Xxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
(000) 000-0000
SO ORDERED this _______ day of October, 2006.
---------------------------------------------
Honorable W. Xxxxx Xxxxx, Xx.
United States Bankruptcy Judge
EXHIBIT C
WEIL, GOTSHAL & XXXXXX LLP
Attorneys for the Reorganized Debtors
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
(000) 000-0000
Xxxxxx X. Xxxxxxxxxxx (MB 3001)
Xxxxx X. Xxxxx (BR 0571)
Xxxxxxx Xxxx
UNITED STATES BANKRUPTCY COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------
In re : Chapter 11
:
ENRON CORP., et al., :
: Case No. 01-16034 (AJG)
Debtors :
------------------------------------------- Jointly Administered
XXXXX X. XXXXXX, XX, EXAMINER FOR : Adversary Proceeding
NEWPOWER HOLDINGS, INC. AND :
TNPC HOLDINGS, INC. :
:
Plaintiff, : No. 04-04303
v. :
:
ENRON CORP., et al., :
:
Defendants. :
------------------------------------------
DEFENDANTS' NOTICE OF WITHDRAWAL WITH PREJUDICE OF MOTION
FOR ENTRY OF AN ORDER ENFORCING THE AUTOMATIC STAY AND THE
CONFIRMATION ORDER AND IMPOSING SANCTIONS AND CIVIL
PENALTIES FOR KNOWING AND WILLFUL VIOLATIONS OF THE
AUTOMATIC STAY AND THIS COURT'S PRIOR ORDERS
TO THE XXXXXXXXX XXXXXX X. XXXXXXXX,
UNITED STATES BANKRUPTCY JUDGE:
Enron Corp. ("ENE"), Enron North America Corp. ("ENA"), Enron Energy
Services, Inc., ("EESI") Enron Power Marketing, Inc. ("EPMI"), and Enron
Energy Services, LLC, ("EES") (collectively, "Enron") and Xxxxxx Energy
Services, LLC, McGarret I, LLC, McGarret II, LLC, McGarret III, LLC., and EES
Warrant Trust (collectively with Enron, the
"Defendants" or the "Reorganized Debtors") hereby withdraw, with prejudice, the
April 13, 2005 Motion for Entry of an order Enforcing the Automatic Stay and
the Confirmation Order and Imposing Sanctions and Civil Penalties for Knowing
and Willful Violations of the Automatic Stay and this Court's Prior Orders
[Docket No. ______].
Dated: New York, New York
_____________, 2006
By: DRAFT
-----------------------------------
Xxxxxx X. Xxxxxxxxxxx (MB 3001)
Xxxxx X. Xxxxx (BR 0571)
Xxxxxxx X. Xxxxx (pro hac vice)
WEIL, GOTSHAL & XXXXXX LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ATTORNEYS FOR DEFENDANTS
SO ORDERED this _______ day of October, 2006.
---------------------------------------
Xxxxxxxxx Xxxxxx X. Xxxxxxxx
United States Bankruptcy Judge
2
