EXECUTION COPY
AGREEMENT AND PLAN OF MERGER
among
Kansas City Power & Light Company
and
UtiliCorp United Inc.
and
KC United Corp.
Dated as of January 19, 1996
TABLE OF CONTENTS
ARTICLE I THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.1 Effects of the Merger. . . . . . . . . . . . . . . . . . 1
Section 1.2 Effective Time of the Merger . . . . . . . . . . . . . . 2
ARTICLE II TREATMENT OF SHARES . . . . . . . . . . . . . . . . . . . . . 2
Section 2.1 Effect on Capital Stock of KCPL, UCU and the Company . . 2
Section 2.2 KCPL Dissenting Shares . . . . . . . . . . . . . . . . . 3
Section 2.3 Issuance of New Certificates . . . . . . . . . . . . . . 4
ARTICLE III THE CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 3.1 Closing. . . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF KCPL. . . . . . . . . . . . 6
Section 4.1 Organization and Qualification . . . . . . . . . . . . . 6
Section 4.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 7
Section 4.3 Capitalization . . . . . . . . . . . . . . . . . . . . . 7
Section 4.4 Authority; Non-Contravention; Statutory Approvals;
Compliance . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4.5 Reports and Financial Statements . . . . . . . . . . . . 10
Section 4.6 Absence of Certain Changes or Events . . . . . . . . . . 10
Section 4.7 Litigation . . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.8 Registration Statement and Proxy Statement . . . . . . . 11
Section 4.9 Tax matters. . . . . . . . . . . . . . . . . . . . . . . 11
Section 4.10 Employee Matters; ERISA. . . . . . . . . . . . . . . . . 13
Section 4.11 Environmental Protection . . . . . . . . . . . . . . . . 15
Section 4.12 Regulation as a Utility. . . . . . . . . . . . . . . . . 18
Section 4.13 Vote Required. . . . . . . . . . . . . . . . . . . . . . 18
Section 4.14 Accounting Matters . . . . . . . . . . . . . . . . . . . 18
Section 4.15 Article Twelfth of KCPL's Restated Articles of
Consolidation. . . . . . . . . . . . . . . . . . . . . . 18
Section 4.16 Opinion of Financial Advisor . . . . . . . . . . . . . . 19
Section 4.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . 19
Section 4.18 KCPL Not a Related Person. . . . . . . . . . . . . . . . 19
i
ARTICLE V REPRESENTATIONS AND WARRANTIES OF UCU . . . . . . . . . . . . 19
Section 5.1 Organization and Qualification . . . . . . . . . . . . . 19
Section 5.2 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . 20
Section 5.3 Capitalization . . . . . . . . . . . . . . . . . . . . . 20
Section 5.4 Authority; Non-Contravention; Statutory Approvals;
Compliance . . . . . . . . . . . . . . . . . . . . . . . 21
Section 5.5 Reports and Financial Statements . . . . . . . . . . . . 22
Section 5.6 Absence of Certain Changes or Events . . . . . . . . . . 23
Section 5.7 Litigation . . . . . . . . . . . . . . . . . . . . . . . 23
Section 5.8 Registration Statement and Proxy Statement . . . . . . . 23
Section 5.9 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . 24
Section 5.10 Employee Matters; ERISA. . . . . . . . . . . . . . . . . 25
Section 5.11 Environmental Protection . . . . . . . . . . . . . . . . 27
Section 5.12 Regulation as a Utility. . . . . . . . . . . . . . . . . 29
Section 5.13 Vote Required. . . . . . . . . . . . . . . . . . . . . . 29
Section 5.14 Accounting Matters . . . . . . . . . . . . . . . . . . . 29
Section 5.15 Article Eight of UCU's Certificate of Incorporation. . . 29
Section 5.16 Opinion of Financial Advisor . . . . . . . . . . . . . . 29
Section 5.17 Insurance. . . . . . . . . . . . . . . . . . . . . . . . 29
Section 5.18 UCU Not an Interested Shareholder. . . . . . . . . . . . 29
ARTICLE VI CONDUCT OF BUSINESS PENDING THE MERGER. . . . . . . . . . . . 30
Section 6.1 Covenants of the Parties . . . . . . . . . . . . . . . . 30
ARTICLE VII ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . 36
Section 7.1 Access to Information. . . . . . . . . . . . . . . . . . 36
Section 7.2 Joint Proxy Statement and Registration Statement . . . . 36
Section 7.3 Regulatory Matters . . . . . . . . . . . . . . . . . . . 37
Section 7.4 Shareholder Approval . . . . . . . . . . . . . . . . . . 38
Section 7.5 Directors' and Officers' Indemnification . . . . . . . . 39
Section 7.6 Public Announcements . . . . . . . . . . . . . . . . . . 40
Section 7.7 Rule 145 Affiliates. . . . . . . . . . . . . . . . . . . 40
Section 7.8 Employee Agreements and Workforce Matters. . . . . . . . 40
Section 7.9 Employee Benefit Plans . . . . . . . . . . . . . . . . . 41
Section 7.10 Stock Option and Other Stock Plans.. . . . . . . . . . . 42
Section 7.11 No Solicitations . . . . . . . . . . . . . . . . . . . . 44
Section 7.12 Company Board of Directors . . . . . . . . . . . . . . . 45
Section 7.13 Company Officers . . . . . . . . . . . . . . . . . . . . 45
Section 7.14 Employment Contracts . . . . . . . . . . . . . . . . . . 46
Section 7.15 Post-Merger Operations.. . . . . . . . . . . . . . . . . 46
ii
Section 7.16 Expenses . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 7.17 Further Assurances . . . . . . . . . . . . . . . . . . . 46
ARTICLE VIII CONDITIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 47
Section 8.1 Conditions to Each Party's Obligation
to Effect the Merger . . . . . . . . . . . . . . . . . . 47
Section 8.2 Conditions to Obligation of UCU to Effect the Merger . . 48
Section 8.3 Conditions to Obligation of KCPL to Effect the Merger. . 49
ARTICLE IX TERMINATION, AMENDMENT AND WAIVER . . . . . . . . . . . . . . 50
Section 9.1 Termination. . . . . . . . . . . . . . . . . . . . . . . 50
Section 9.2 Effect of Termination. . . . . . . . . . . . . . . . . . 52
Section 9.3 Termination Fee; Expenses. . . . . . . . . . . . . . . . 52
Section 9.4 Amendment. . . . . . . . . . . . . . . . . . . . . . . . 53
Section 9.5 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . 54
ARTICLE X GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . 54
Section 10.1 Non-Survival; Effect of Representations and Warranties . 54
Section 10.2 Brokers. . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 10.4 Miscellaneous. . . . . . . . . . . . . . . . . . . . . . 56
Section 10.5 Interpretation . . . . . . . . . . . . . . . . . . . . . 56
Section 10.6 Counterparts; Effect . . . . . . . . . . . . . . . . . . 56
Section 10.7 Parties' Interest. . . . . . . . . . . . . . . . . . . . 56
Section 10.8 Waiver of Jury Trial and Certain Damages . . . . . . . . 57
Section 10.9 Enforcement. . . . . . . . . . . . . . . . . . . . . . . 57
Exhibits
Exhibit 1.1(c) Amended and Restated Certificate of Incorporation
of Company
Exhibit 1.1(d) By-laws of Company
Exhibit 7.7 Affiliate Agreement
Exhibit 7.14.1 A. Xxxx Xxxxxxxx Employment Agreement
Exhibit 7.14.2 Xxxxxxx X. Xxxxx, Xx. Employment Agreement
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INDEX OF PRINCIPAL TERMS
TERM PAGE
---- ----
1935 Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Acquisition Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45
Affiliate. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Affiliate Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Atomic Energy Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Cancelled Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Closing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Closing Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Company Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Company Incentive Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Company Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Replacement Plans. . . . . . . . . . . . . . . . . . . . . . . . . . .42
Company Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Company Stock Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Company Stock Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Company Stock Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Confidentiality Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . .36
Constituent Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
date hereof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
DGCL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Dissenting Holder. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
DLJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Environmental Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Environmental Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
Environmental Permits. . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
ERISA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Exchange Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
FERC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Final Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47
GAAP . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Governmental Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iv
TERM PAGE
---- ----
Hazardous Materials. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
HSR Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Indemnified Liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Indemnified Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Indemnified Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Initial Termination Date . . . . . . . . . . . . . . . . . . . . . . . . . . .51
IRS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Joint Proxy/Registration Statement . . . . . . . . . . . . . . . . . . . . . .36
KCPL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
KCPL and UCU Stock Benefits. . . . . . . . . . . . . . . . . . . . . . . . . .44
KCPL Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
KCPL Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
KCPL Conversion Ratio. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
KCPL Cumulative Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Disclosure Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
KCPL Financial Statements. . . . . . . . . . . . . . . . . . . . . . . . . . .10
KCPL Incentive Plan. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
KCPL Incentive Stock Plan. . . . . . . . . . . . . . . . . . . . . . . . . . .42
KCPL Joint Venture . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . . . .10
KCPL Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
KCPL No Par Preferred. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Preference Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Required Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
KCPL Required Statutory Approvals. . . . . . . . . . . . . . . . . . . . . . . 9
KCPL SEC Reports . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
KCPL Shareholders' Approval. . . . . . . . . . . . . . . . . . . . . . . . . .18
KCPL Stock Awards. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
KCPL Stock Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
KCPL Subsidiary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Xxxxxxx Xxxxx. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
MGCL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
NRC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
NYSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
PBGC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
PCBs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
person . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
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TERM PAGE
---- ----
Power Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Proxy Statement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Release. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Representatives. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
SEC. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Securities Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Surviving Corporation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Target Party . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
Task Force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Tax Return . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Tax Ruling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
Three Year Period. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .57
UCU. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
UCU Benefit Plans. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
UCU Class A Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . .20
UCU Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
UCU Conversion Ratio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
UCU Disclosure Schedule. . . . . . . . . . . . . . . . . . . . . . . . . . . .19
UCU Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . .23
UCU Incentive Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
UCU Incentive Stock Plan . . . . . . . . . . . . . . . . . . . . . . . . . . .42
UCU Joint Venture. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
UCU Material Adverse Effect. . . . . . . . . . . . . . . . . . . . . . . . . .23
UCU Meeting. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
UCU Preferred Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
UCU Required Consents. . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
UCU Required Statutory Approvals . . . . . . . . . . . . . . . . . . . . . . .21
UCU SEC Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
UCU Shareholders' Approval . . . . . . . . . . . . . . . . . . . . . . . . . .29
UCU Stock Awards . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
UCU Stock Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
UCU Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Violation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Voting Debt. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
vi
AGREEMENT AND PLAN OF MERGER, dated as of January 19, 1996 (referred
to herein as the "DATE HEREOF"), by and among Kansas City Power & Light Company,
a Missouri corporation ("KCPL"), UtiliCorp United Inc., a Delaware corporation
("UCU"), and KC United Corp., a Delaware corporation (the "COMPANY").
WHEREAS, KCPL and UCU have determined to engage in a business
combination as peer firms in a merger of equals;
WHEREAS, in furtherance thereof, the respective Boards of Directors of
KCPL, UCU and the Company have approved this Agreement and the merger of KCPL
and UCU with and into the Company (the "MERGER");
WHEREAS, it is intended that the Merger shall be recorded for
accounting purposes as a pooling-of-interests; and
WHEREAS, for United States federal income tax purposes, it is intended
that the Merger shall qualify as a reorganization within the meaning of Section
368(a)(1)(A) of the Internal Revenue Code of 1986, as amended, and in effect
(the "CODE"), and this Agreement is intended to be and is adopted as a plan of
reorganization within the meaning of Section 368 of the Code.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
THE MERGER
Section 1.1 EFFECTS OF THE MERGER. At the Effective Time (as
defined in Section 1.2), (a) the separate existence of each of KCPL and UCU
shall cease and each of KCPL and UCU shall be merged with and into the Company
(KCPL, UCU and the Company are sometimes referred to herein as the "CONSTITUENT
CORPORATIONS" and the Company immediately after the Effective Time is sometimes
referred to herein as the "SURVIVING CORPORATION"), (b) the separate corporate
existence of the Surviving Corporation, with all of its rights, privileges,
immunities, powers and franchises, shall continue unaffected by the Merger and
the Surviving Corporation shall continue as a Delaware corporation, (c) the
Certificate of Incorporation of the Surviving Corporation shall, as of the
Effective Time, read in its entirety as set forth in EXHIBIT 1.1(C), subject to
modification as set forth in Section 2.1(e), and shall be the Certificate of
Incorporation of the Surviving Corporation until duly amended, (d) the by-laws
of the Surviving Corporation shall be amended prior to or as of the Effective
Time to read in their entirety as set forth in EXHIBIT 1.1(D), and shall be the
by-laws of the Surviving Corporation after the Effective Time
until duly amended, (e) the name of the Company shall continue to be the name of
the Surviving Corporation or shall be such other name as KCPL and UCU shall
mutually agree and (f) the Merger shall have all the effects provided by
applicable law.
Section 1.2 EFFECTIVE TIME OF THE MERGER. Subject to the
provisions of this Agreement, on the Closing Date (as defined in Section 3.1),
articles of merger shall be executed and filed by KCPL, UCU and the Company with
the Secretary of State of the State of Missouri pursuant to The General and
Business Corporation Law of Missouri (the "MGCL") and a certificate of merger
shall be executed and filed by KCPL, UCU and the Company with the Secretary of
State of the State of Delaware pursuant to the Delaware General Corporation Law
(the "DGCL"). The Merger shall become effective at such time as such
certificate of merger has been so filed with the Secretary of State of the State
of Delaware and the Secretary of State of the State of Missouri has issued a
certificate of merger (the "EFFECTIVE TIME").
ARTICLE II
TREATMENT OF SHARES
Section 2.1 EFFECT ON CAPITAL STOCK OF KCPL, UCU AND THE COMPANY.
As of the Effective Time, by virtue of the Merger and without any action on the
part of any holder of any capital stock of KCPL, UCU or the Company:
(a) CAPITAL STOCK OF KCPL AND UCU. Subject to Section 2.1(b) and
Section 2.2, (i) each issued and outstanding share of Common Stock, no par
value, of KCPL ("KCPL COMMON STOCK"), in each case not owned directly or through
a wholly owned Subsidiary (as defined in Section 4.1) by KCPL, UCU or the
Company, shall be converted into and become 1.0 (the "KCPL CONVERSION RATIO")
fully paid and nonassessable shares of Common Stock, $0.01 par value per share
of the Company ("COMPANY COMMON STOCK") and (ii) each issued and outstanding
share of Common Stock, $1.00 par value per share, of UCU ("UCU COMMON STOCK"),
in each case not owned directly or through a wholly owned Subsidiary by KCPL,
UCU or the Company, shall be converted into and become 1.096 (the "UCU
CONVERSION RATIO") fully paid and nonassessable shares of Company Common Stock.
All such shares of KCPL Common Stock and UCU Common Stock shall no longer be
outstanding and shall automatically be cancelled and retired and shall cease to
exist, and each holder of a Certificate (as defined in Section 2.3(b)), formerly
representing any such shares shall cease to have any rights with respect to such
shares, except the right to receive shares of Company Common Stock to be issued
in consideration therefor upon the surrender of such Certificate in accordance
with Section 2.3.
(b) CANCELLATION OF TREASURY STOCK AND CERTAIN KCPL, UCU AND COMPANY
COMMON STOCK. Any shares of (i) KCPL Common Stock that are owned by KCPL as
treasury stock or by UCU or by any wholly owned Subsidiary of KCPL or UCU, (ii)
UCU Common Stock that are owned by UCU as treasury stock or by KCPL or by any
wholly owned Subsidiary of UCU or KCPL and (iii) Company Common Stock that are
owned by KCPL, UCU or any
2
wholly owned Subsidiary of KCPL or UCU, in each case, shall be cancelled and
retired and shall cease to exist and no stock of the Company or other
consideration shall be issued or delivered in exchange therefor. All such
shares of KCPL, UCU and Company Common Stock shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist, and each
holder of a certificate formerly representing any such shares shall cease to
have any rights with respect thereto.
(c) REDEMPTION OF KCPL PREFERRED STOCK. Prior to the Effective Time,
the Board of Directors of KCPL shall call for redemption all outstanding shares
of KCPL Preferred Stock (as defined in Section 4.3), at a redemption price equal
to the amount set forth in the Restated Articles of Consolidation of KCPL,
together with all dividends accrued and unpaid to the date of such redemption.
All shares of KCPL Preferred Stock shall be redeemed so that no such shares
shall be deemed to be outstanding at the Effective Time or entitled to vote on
the approval of this Agreement and the transactions contemplated hereby.
(d) CONVERSION OF UCU PREFERRED STOCK. Each issued and outstanding
share of each series of UCU Preferred Stock (as defined in Section 5.3) shall be
converted into the right to receive one fully paid and nonassessable share of a
substantially identical corresponding series of preferred stock of the Company
with such designations as set forth in EXHIBIT 1.1(C) attached hereto (such
shares of preferred stock of the Company being referred to as "COMPANY PREFERRED
STOCK"). All such shares of UCU Preferred Stock shall no longer be outstanding
and shall automatically be cancelled and retired and shall cease to exist, and
each holder of a certificate formerly representing any such shares shall cease
to have any rights with respect to such Certificates, except the right to
receive shares of Company Preferred Stock to be issued in consideration therefor
upon the surrender of such Certificate in accordance with Section 2.3.
(e) REDEMPTION OF UCU PREFERRED STOCK. Notwithstanding the
provisions of Section 2.1(d), in the event that the Effective Time has not
occurred by March 1, 1997 or in the event it becomes apparent that the Effective
Time will not occur by March 1, 1997, then the Board of Directors of UCU shall
call for all outstanding shares of UCU Preferred Stock to be redeemed prior to
or as of the Effective Time at a redemption price equal to the amount set forth
in the Certificate of Incorporation of UCU, together with all dividends accrued
and unpaid to the date of such redemption. In the event that the UCU Preferred
Stock is redeemed prior to or as of the Effective Time, the Certificate of
Incorporation of the Surviving Corporation shall, at the option of KCPL and UCU,
be modified as appropriate to delete language contained therein which relates
specifically to the UCU Preferred Stock.
Section 2.2 KCPL DISSENTING SHARES. Any issued and outstanding
shares of KCPL Common Stock held by a person (as defined below) who objects to
the Merger and complies with all provisions of the MGCL concerning the right of
such person to dissent from the Merger and demands appraisal of such shares
("DISSENTING HOLDER") shall not be converted as described in Section 2.1(a) but
shall, from and after the Effective Time, represent only the right to receive
such consideration as may be determined to be due to such Dissenting Holder
pursuant to the MGCL; PROVIDED, HOWEVER, that shares of KCPL Common Stock
outstanding
3
immediately prior to the Effective Time and held by a Dissenting Holder who
shall, after the Effective Time, withdraw the demand for appraisal or lose the
right of appraisal of such shares, in either case pursuant to the MGCL, shall be
deemed to be converted, as of the Effective Time, into the right to receive
shares of Company Common Stock in accordance with Section 2.1(a), without
interest. As used in this Agreement, the term "PERSON" shall mean any natural
person, corporation, general or limited partnership, limited liability company,
joint venture, trust, association or entity of any kind.
Section 2.3 ISSUANCE OF NEW CERTIFICATES.
(a) DEPOSIT WITH EXCHANGE AGENT. As soon as practicable after the
Effective Time, the Company shall deposit, in trust for the benefit of holders
of Certificates, with such bank or trust company mutually agreeable to UCU and
KCPL (the "EXCHANGE AGENT"), certificates representing shares of Company Common
Stock and Company Preferred Stock required to effect the issuances referred to
in Section 2.1, together with cash payable in respect of fractional shares
pursuant to Section 2.3(d).
(b) ISSUANCE PROCEDURES. As soon as practicable after the Effective
Time, the Exchange Agent shall mail to each holder of record of a certificate or
certificates (the "CERTIFICATES") which immediately prior to the Effective Time
represented outstanding shares of KCPL Common Stock, UCU Common Stock or UCU
Preferred Stock (the "CANCELLED SHARES") that were cancelled and became instead
the right to receive shares of Company Common Stock or Company Preferred Stock
(the "COMPANY SHARES") pursuant to Section 2.1 (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon actual delivery of the Certificates to
the Exchange Agent) and (ii) instructions for use in effecting the surrender of
the Certificates in exchange for certificates representing Company Shares. Upon
surrender of a Certificate to the Exchange Agent for cancellation (or to such
other agent or agents as may be appointed by agreement of KCPL and UCU),
together with a duly executed letter of transmittal and such other documents as
the Exchange Agent shall require, the holder of such Certificate shall be
entitled to receive a certificate or certificates representing that number of
whole Company Shares which such holder has the right to receive pursuant to the
provisions of this Article II. In the event of a transfer of ownership of
Cancelled Shares which is not registered in the transfer records of KCPL or UCU,
a certificate representing the proper number of Company Shares may be issued to
a transferee if the Certificate representing such Cancelled Shares is presented
to the Exchange Agent, accompanied by all documents required to evidence and
effect such transfer and by evidence satisfactory to the Exchange Agent that any
applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 2.3, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender the certificate representing Company Shares and cash in lieu of any
fractional shares of Company Common Stock or Company Preferred Stock as
contemplated by this Section 2.3.
(c) DISTRIBUTIONS WITH RESPECT TO UNSURRENDERED SHARES. No dividends
or other distributions declared or made after the Effective Time with respect to
Company Shares with a
4
record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Company Shares represented thereby
and no cash payment in lieu of fractional shares shall be paid to any such
holder pursuant to Section 2.3(d) until the holder of record of such Certificate
shall surrender such Certificate. Subject to the effect of unclaimed property,
escheat and other applicable laws, following surrender of any such Certificate,
there shall be paid to the record holder of the certificates representing whole
Company Shares issued in consideration therefor, without interest, (i) at the
time of such surrender, the amount of any cash payable in lieu of a fractional
share of Company Common Stock to which such holder is entitled pursuant to
Section 2.3(d) and the amount of dividends or other distributions with a record
date after the Effective Time theretofore paid with respect to such whole
Company Shares and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the Effective Time but prior to
surrender and a payment date subsequent to surrender payable with respect to
such whole Company Shares.
(d) NO FRACTIONAL SECURITIES. No certificates or scrip representing
fractional shares of Company Common Stock shall be issued upon the surrender for
exchange of Certificates and such fractional shares shall not entitle the owner
thereof to vote or to any other rights of a holder of Company Common Stock. A
holder of KCPL Common Stock or UCU Common Stock who would otherwise have been
entitled to a fractional share of Company Common Stock shall be entitled to
receive a cash payment in lieu of such fractional share in an amount equal to
the product of such fraction multiplied by the average of the last reported
sales price, regular way, per share of KCPL Common Stock on the New York Stock
Exchange ("NYSE") Composite Tape for the five business days prior to and
including the last business day on which KCPL Common Stock was traded on the
NYSE, without any interest thereon.
(e) BOOK ENTRY. Notwithstanding any other provision of this
Agreement, the letter of transmittal referred to in Section 2.3(b) may, at the
option of the Company, provide for the ability of a holder of one or more
Certificates to elect that the Company Shares to be received in exchange for the
Cancelled Shares formerly represented by such surrendered Certificates be issued
in uncertificated form or to elect that such Company Shares be credited to an
account established for the holder under the dividend reinvestment and stock
purchase plan of the Company.
(f) CLOSING OF TRANSFER BOOKS. From and after the Effective Time,
the stock transfer books of KCPL and UCU shall be closed and no registration of
any transfer of any capital stock of KCPL or UCU shall thereafter be made on the
records of KCPL or UCU. If, after the Effective Time, Certificates are
presented to the Company, they shall be cancelled and exchanged for certificates
representing the appropriate number of Company Shares, as provided in this
Section 2.3.
(g) TERMINATION OF EXCHANGE AGENT. Any certificates representing
Company Shares deposited with the Exchange Agent pursuant to Section 2.3(a) and
not exchanged within one year after the Effective Time pursuant to this Section
2.3 shall be returned by the Exchange Agent to the Company, which shall
thereafter act as Exchange Agent. All funds held by the
5
Exchange Agent for payment to the holders of unsurrendered Certificates and
unclaimed at the end of one year from the Effective Time shall be returned to
the Company; after which time any holder of unsurrendered Certificates shall
look as a general creditor only to the Company for payment of such funds to
which such holder may be due, subject to applicable law. The Company shall not
be liable to any person for such shares or funds delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
ARTICLE III
THE CLOSING
Section 3.1 CLOSING. The closing of the Merger (the "CLOSING")
shall take place at the offices of Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx
X.X., 0000 Xxxx, Xxxxx 0000, Xxxxxx Xxxx, Xxxxxxxx 00000 at 10:00 A.M., local
time, on the second business day immediately following the date on which the
last of the conditions set forth in Article VIII hereof is fulfilled or waived,
or at such other time, date and place as KCPL and UCU shall mutually agree (the
"CLOSING DATE").
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF KCPL
KCPL represents and warrants to UCU as follows:
Section 4.1 ORGANIZATION AND QUALIFICATION. Except as set forth in
Section 4.1 of the schedule delivered by KCPL on the date hereof (the "KCPL
DISCLOSURE SCHEDULE"), KCPL and each of the KCPL Subsidiaries (as defined below)
and, to the knowledge of KCPL, each of the KCPL Joint Ventures (as defined
below) is a corporation or other entity duly organized, validly existing and in
good standing under the laws of its jurisdiction of incorporation or
organization, has all requisite power and authority, and has been duly
authorized by all necessary approvals and orders to own, lease and operate its
assets and properties to the extent owned, leased and operated and to carry on
its business as it is now being conducted and is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its assets and properties makes such
qualification necessary other than in such jurisdictions where the failure so to
qualify would not have a material adverse effect on KCPL and the KCPL
Subsidiaries taken as a whole. As used in this Agreement, (a) the term
"SUBSIDIARY" of a person shall mean any corporation or other entity (including
partnerships and other business associations) of which at least a majority of
the voting power represented by the outstanding capital stock or other voting
securities or interests having voting power under ordinary circumstances to
elect directors or similar members of the governing
6
body of such corporation or entity shall at the time be held, directly or
indirectly, by such person, and (b) the term "KCPL SUBSIDIARY" shall mean a
Subsidiary of KCPL, and (c) the term "KCPL JOINT VENTURE" shall mean each entity
identified as such on Section 4.1 of the KCPL Disclosure Schedule.
Section 4.2 SUBSIDIARIES. Section 4.2 of the KCPL Disclosure
Schedule sets forth a list as of the date hereof of (a) all the KCPL
Subsidiaries and (b) all other entities in which KCPL has an aggregate equity
investment in excess of $25 million. Except as set forth in Section 4.2 of the
KCPL Disclosure Schedule, neither KCPL nor any of the KCPL Subsidiaries is a
"holding company," a "subsidiary company" or an "affiliate" of any public
utility company within the meaning of Section 2(a)(7), 2(a)(8) or 2(a)(11) of
the Public Utility Holding Company Act of 1935, as amended (the "1935 ACT"),
respectively and none of the KCPL Subsidiaries is a "public utility company"
within the meaning of Section 2(a)(5) of the 1935 Act. Except as set forth in
Section 4.2 of the KCPL Disclosure Schedule, all of the issued and outstanding
shares of capital stock of each KCPL Subsidiary are validly issued, fully paid,
nonassessable and free of preemptive rights, and are owned, directly or
indirectly, by KCPL free and clear of any liens, claims, encumbrances, security
interests, charges and options of any nature whatsoever and there are no
outstanding subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements, rights or
warrants, including any right of conversion or exchange under any outstanding
security, instrument or other agreement, obligating any such KCPL Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of its capital stock or obligating it to grant, extend or enter into any
such agreement or commitment.
Section 4.3 CAPITALIZATION. As of the date hereof, the authorized
capital stock of KCPL consists of 150,000,000 shares of KCPL Common Stock,
without par value, 404,357 shares of Cumulative Preferred Stock, par value
$100.00 per share ("KCPL CUMULATIVE PREFERRED"), 1,572,000 shares of Cumulative
No Par Preferred Stock, without par value ("KCPL NO PAR PREFERRED"), and
11,000,000 shares of Preference Stock, without par value ("KCPL PREFERENCE
STOCK") (KCPL Cumulative Preferred, KCPL No Par Preferred and KCPL Preference
Stock hereinafter collectively referred to as the "KCPL PREFERRED STOCK"). At
the close of business on December 31, 1995, (i) 61,908,726 shares of KCPL Common
Stock were issued, not more than 10,000,000 shares of KCPL Common Stock were
reserved for issuance pursuant to KCPL's Long Term Incentive Plan and Employee
Savings Plus Plan (401(k) Plan) and Dividend Reinvestment Plan (such Plans,
collectively, the "KCPL STOCK PLANS"), (ii) 6,643 shares of KCPL Common Stock
were held by KCPL in its treasury or by its wholly owned Subsidiaries,
(iii) 404,357 shares of KCPL Cumulative Preferred were issued and of such issued
shares, 3,192 were held by KCPL in its treasury or by its wholly owned
Subsidiaries, (iv) 500,000 shares of KCPL No Par Preferred were outstanding and
none were held by KCPL or its Subsidiaries in its treasury, (v) no shares of
KCPL Preference Stock were outstanding and (vi) no bonds, debentures, notes or
other indebtedness having the right to vote (or convertible into securities
having the right to vote) on any matters on which stockholders may vote ("VOTING
DEBT"), were issued or outstanding. All outstanding shares of KCPL Common Stock
and KCPL Preferred Stock are validly issued, fully paid and nonassessable and
are not subject to preemptive rights.
7
As of the date of this Agreement, except as set forth in Section 4.3 of the KCPL
Disclosure Schedule or pursuant to this Agreement and the KCPL Stock Plans,
there are no options, warrants, calls, rights, commitments or agreements of any
character to which KCPL or any material KCPL Subsidiary is a party or by which
it is bound obligating KCPL or any material KCPL Subsidiary to issue, deliver or
sell, or cause to be issued, delivered or sold, additional shares of capital
stock or any Voting Debt securities of KCPL or any material KCPL Subsidiary or
obligating KCPL or any material KCPL Subsidiary to grant, extend or enter into
any such option, warrant, call, right, commitment or agreement. Except as set
forth in Section 4.3 of the KCPL Disclosure Schedule, or other than in
connection with the KCPL Stock Plans, after the Effective Time, there will be no
option, warrant, call, right, commitment or agreement obligating KCPL or any
material KCPL Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, any shares of capital stock or any Voting Debt of KCPL or any
material KCPL Subsidiary, or obligating KCPL or any material KCPL Subsidiary to
grant, extend or enter into any such option, warrant, call, right, commitment
or agreement.
Section 4.4 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS;
COMPLIANCE.
(a) AUTHORITY. KCPL has all requisite power and authority to enter
into this Agreement and, subject to the receipt of the applicable KCPL
Shareholders' Approval (as defined in Section 4.13) and the applicable KCPL
Required Statutory Approvals (as defined in Section 4.4(c)), to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by KCPL of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of KCPL, subject
to obtaining the applicable KCPL Shareholders' Approval. This Agreement has
been duly and validly executed and delivered by KCPL and, assuming the due
authorization, execution and delivery hereof by the other signatories hereto,
constitutes the valid and binding obligation of KCPL enforceable against it in
accordance with its terms.
(b) NON-CONTRAVENTION. Except as set forth in Section 4.4(b) of the
KCPL Disclosure Schedule, the execution and delivery of this Agreement by KCPL
does not, and the consummation of the transactions contemplated hereby will not,
in any respect, violate, conflict with or result in a material breach of any
provision of, or constitute a material default (with or without notice or lapse
of time or both) under, or result in the termination or modification of, or
accelerate the performance required by, or result in a right of termination,
cancellation or acceleration of any obligation or the loss of a material benefit
under, or result in the creation of any material lien, security interest, charge
or encumbrance upon any of the properties or assets of KCPL or any of the KCPL
Subsidiaries or the KCPL Joint Ventures (any such violation, conflict, breach,
default, right of termination, modification, cancellation or acceleration, loss
or creation, is referred to herein as a "VIOLATION" with respect to KCPL and
such term when used in Article V having a correlative meaning with respect to
UCU) pursuant to any provisions of (i) the articles of incorporation, by-laws or
similar governing documents of KCPL or any of the KCPL Subsidiaries or the KCPL
Joint Ventures, (ii) subject to obtaining the KCPL Required Statutory Approvals
and the receipt of the KCPL Shareholders' Approval, any statute, law, ordinance,
rule, regulation, judgment, decree, order, injunction, writ, permit or license
of any
8
Governmental Authority (as defined in Section 4.4(c)) applicable to KCPL or any
of the KCPL Subsidiaries or the KCPL Joint Ventures or any of their respective
properties or assets or (iii) subject to obtaining the third-party consents set
forth in Section 4.4(b) of the KCPL Disclosure Schedule (the "KCPL REQUIRED
CONSENTS"), any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, concession, contract, lease or other instrument, obligation
or agreement of any kind to which KCPL or any of the KCPL Subsidiaries or the
KCPL Joint Ventures is a party or by which it or any of its properties or assets
may be bound or affected, except in the case of clause (ii) or (iii) for any
such Violation which would not have a KCPL Material Adverse Effect (as defined
in Section 4.6).
(c) STATUTORY APPROVALS. No declaration, filing or registration
with, or notice to or authorization, consent or approval of, any court, federal,
state, local or foreign governmental or regulatory body (including a stock
exchange or other self-regulatory body) or authority (each, a "GOVERNMENTAL
AUTHORITY") is necessary for the execution and delivery of this Agreement by
KCPL or the consummation by KCPL of the transactions contemplated hereby except
as described in Section 4.4(c) of the KCPL Disclosure Schedule or the failure of
which to obtain would not result in a KCPL Material Adverse Effect (the "KCPL
REQUIRED STATUTORY APPROVALS," it being understood that references in this
Agreement to "obtaining" such KCPL Required Statutory Approvals shall mean
making such declarations, filings or registrations; giving such notices;
obtaining such authorizations, consents or approvals; and having such waiting
periods expire as are necessary to avoid a violation of law).
(d) COMPLIANCE. Except as set forth in Section 4.4(d), Section 4.7,
Section 4.10 or Section 4.11 of the KCPL Disclosure Schedule, or as disclosed in
the KCPL SEC Reports (as defined in Section 4.5) filed prior to the date hereof,
neither KCPL nor any of the KCPL Subsidiaries nor, to the knowledge of KCPL, any
KCPL Joint Venture is in violation of, is, to the knowledge of KCPL, under
investigation with respect to any violation of, or has been given notice or been
charged with any violation of, any law, statute, order, rule, regulation,
ordinance or judgment (including, without limitation, any applicable
environmental law, ordinance or regulation) of any Governmental Authority,
except for possible violations which individually or in the aggregate would not
have a KCPL Material Adverse Effect. Except as set forth in Section 4.4(d) of
the KCPL Disclosure Schedule or in Section 4.11 of the KCPL Disclosure Schedule,
or as expressly disclosed in the KCPL SEC Reports, KCPL and the KCPL
Subsidiaries and, to the knowledge of KCPL, the KCPL Joint Ventures have all
permits, licenses, franchises and other governmental authorizations, consents
and approvals necessary to conduct their businesses as presently conducted which
are material to the operation of the businesses of KCPL and the KCPL
Subsidiaries. Except as set forth in Section 4.4(d) of the KCPL Disclosure
Schedule, KCPL and each of the KCPL Subsidiaries and, to the knowledge of KCPL,
KCPL Joint Ventures is not in breach or violation of or in default in the
performance or observance of any term or provision of, and no event has occurred
which, with lapse of time or action by a third party, could result in a default
by KCPL or any KCPL Subsidiary or, to the knowledge of KCPL, KCPL Joint Venture
under (i) its articles of incorporation or by-laws or (ii) any contract,
commitment, agreement, indenture, mortgage, loan agreement, note, lease, bond,
license, approval or other
9
instrument to which it is a party or by which KCPL or any KCPL Subsidiary or
KCPL Joint Venture is bound or to which any of its property is subject, except
for possible violations, breaches or defaults which individually or in the
aggregate would not have a KCPL Material Adverse Effect.
Section 4.5 REPORTS AND FINANCIAL STATEMENTS. The filings required
to be made by KCPL and the KCPL Subsidiaries and KCPL Joint Ventures since
January 1, 1991 under the Securities Act of 1933, as amended (the "SECURITIES
ACT"); the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"); the
1935 Act; the Federal Power Act (the "POWER ACT"); the Atomic Energy Act of
1954, as amended (the "ATOMIC ENERGY ACT") and applicable state public utility
laws and regulations have been filed with the Securities and Exchange Commission
(the "SEC"), the Federal Energy Regulatory Commission (the "FERC"), the Nuclear
Regulatory Commission ("NRC") or the appropriate state public utilities
commission, as the case may be, including all forms, statements, reports,
agreements (oral or written) and all documents, exhibits, amendments and
supplements appertaining thereto, and complied, as of their respective dates, in
all material respects with all applicable requirements of the appropriate
statutes and the rules and regulations thereunder, except for such filings the
failure of which to have been made would not result in a KCPL Material Adverse
Effect. KCPL has made available to UCU a true and complete copy of each report,
schedule, registration statement and definitive proxy statement filed with the
SEC by KCPL pursuant to the requirements of the Securities Act or Exchange Act
since January 1, 1991 (as such documents have since the time of their filing
been amended, the "KCPL SEC REPORTS"). As of their respective dates, the KCPL
SEC Reports did 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 therein, in light of the circumstances under which they were made,
not misleading. The audited consolidated financial statements and unaudited
interim financial statements of KCPL included in the KCPL SEC Reports
(collectively, the "KCPL FINANCIAL STATEMENTS") have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis
("GAAP") (except as may be indicated therein or in the notes thereto and except
with respect to unaudited statements as permitted by Form 10-Q of the SEC) and
fairly present the financial position of KCPL as of the dates thereof and the
results of its operations and cash flows for the periods then ended, subject, in
the case of the unaudited interim financial statements, to normal, recurring
audit adjustments. True, accurate and complete copies of the Restated Articles
of Consolidation and by-laws of KCPL, as in effect on the date hereof, are
included (or incorporated by reference) in the KCPL SEC Reports.
Section 4.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
disclosed in the KCPL SEC Reports filed prior to the date hereof or as set forth
in Section 4.6 of the KCPL Disclosure Schedule, since December 31, 1994, KCPL
and each of the KCPL Subsidiaries have conducted their business only in the
ordinary course of business consistent with past practice and there has not
been, and no fact or condition exists which would have or, insofar as reasonably
can be foreseen, could have, a material adverse effect on the business, assets,
financial condition, results of operations or prospects of KCPL and the KCPL
Subsidiaries taken as a whole (a "KCPL MATERIAL ADVERSE EFFECT").
10
Section 4.7 LITIGATION. Except as disclosed in the KCPL SEC
Reports filed prior to the date hereof or as set forth in Section 4.7, Section
4.9 or Section 4.11 of the KCPL Disclosure Schedule, (a) there are no claims,
suits, actions or proceedings by any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator, pending or, to the
knowledge of KCPL, threatened, nor are there, to the knowledge of KCPL, any
investigations or reviews by any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator pending or threatened
against, relating to or affecting KCPL or any of the KCPL Subsidiaries or, to
the knowledge of KCPL, the KCPL Joint Ventures which would have a KCPL Material
Adverse Effect, (b) there have not been any significant developments since
December 31, 1994 with respect to such disclosed claims, suits, actions,
proceedings, investigations or reviews that would have a KCPL Material Adverse
Effect and (c) there are no judgments, decrees, injunctions, rules or orders of
any court, governmental department, commission, agency, instrumentality or
authority or any arbitrator applicable to KCPL or any of the KCPL Subsidiaries
or, to the knowledge of KCPL, applicable to any of the KCPL Joint Ventures,
except for such that would not have a KCPL Material Adverse Effect.
Section 4.8 REGISTRATION STATEMENT AND PROXY STATEMENT. None of
the information supplied or to be supplied by or on behalf of KCPL for inclusion
or incorporation by reference in (a) the registration statement on Form S-4 to
be filed with the SEC by the Company in connection with the issuance of shares
of Company Common Stock and Company Preferred Stock in the Merger (the
"REGISTRATION STATEMENT") will, at the time the Registration Statement is filed
with the SEC and at the time it becomes effective under the Securities Act,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein
not misleading and (b) the joint proxy statement, in definitive form, relating
to the meetings of KCPL and UCU shareholders to be held in connection with the
Merger (the "PROXY STATEMENT") will, at the dates mailed to shareholders and at
the times of the meetings of shareholders to be held in connection with the
Merger, contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are made, not
misleading. The Registration Statement and the Proxy Statement will comply as
to form in all material respects with the provisions of the Securities Act and
the Exchange Act and the rules and regulations thereunder.
Section 4.9 TAX MATTERS. "TAXES," as used in this Agreement, means
any federal, state, county, local or foreign taxes, charges, fees, levies or
other assessments, including all net income, gross income, sales and use, AD
VALOREM, transfer, gains, profits, excise, franchise, real and personal
property, gross receipt, capital stock, production, business and occupation,
disability, employment, payroll, license, estimated, stamp, custom duties,
severance or withholding taxes or charges imposed by any governmental entity,
and includes any interest and penalties (civil or criminal) on or additions to
any such taxes. "TAX RETURN," as used in this Agreement, means a report, return
or other information required to be supplied to a governmental entity with
respect to Taxes including, where permitted or required, combined or
consolidated returns for any group of entities that includes KCPL or any KCPL
Subsidiary or UCU or any UCU Subsidiary, as the case may be.
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Except as set forth in Section 4.9 of the KCPL Disclosure Schedule:
(a) FILING OF TIMELY TAX RETURNS. KCPL and each of the KCPL
Subsidiaries have filed (or there has been filed on its behalf) all Tax Returns
required to be filed by each of them under applicable law, except for those the
failure of which to file would not have a KCPL Material Adverse Effect. All
such Tax Returns were and are in all material respects true, complete and
correct and filed on a timely basis.
(b) PAYMENT OF TAXES. KCPL and each of the KCPL Subsidiaries have,
within the time and in the manner prescribed by law, paid all material Taxes
that are currently due and payable, except for those contested in good faith and
for which adequate reserves have been taken.
(c) TAX RESERVES. KCPL and the KCPL Subsidiaries have established on
their books and records reserves adequate to pay all material Taxes and reserves
for deferred income taxes in accordance with GAAP.
(d) TAX LIENS. There are no Tax liens upon the assets of KCPL or any
of the KCPL Subsidiaries except liens for Taxes not yet due.
(e) WITHHOLDING TAXES. KCPL and each of the KCPL Subsidiaries have
complied in all material respects with the provisions of the Code relating to
the withholding of Taxes, as well as similar provisions under any other laws,
and have, within the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all amounts required.
(f) EXTENSIONS OF TIME FOR FILING TAX RETURNS. Neither KCPL nor any
of the KCPL Subsidiaries has requested any extension of time within which to
file any Tax Return, which Tax Return has not since been filed.
(g) WAIVERS OF STATUTE OF LIMITATIONS. Neither KCPL nor any of the
KCPL Subsidiaries has executed any outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
Taxes or Tax Returns.
(h) AUDIT, ADMINISTRATIVE AND COURT PROCEEDINGS. No audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of KCPL or any of the KCPL Subsidiaries.
(i) POWERS OF ATTORNEY. No power of attorney currently in force has
been granted by KCPL or any of the KCPL Subsidiaries concerning any Tax matter.
(j) TAX RULINGS. Neither KCPL nor any of the KCPL Subsidiaries has
received a Tax Ruling (as defined below) or entered into a Closing Agreement (as
defined below) with any taxing authority that would have a continuing adverse
effect after the Closing Date. "TAX
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RULING," as used in this Agreement, shall mean a written ruling of a taxing
authority relating to Taxes. "CLOSING AGREEMENT," as used in this Agreement,
shall mean a written and legally binding agreement with a taxing authority
relating to Taxes.
(k) AVAILABILITY OF TAX RETURNS. KCPL has made available to UCU
complete and accurate copies of (i) all federal and state income Tax Returns for
open years, and any amendments thereto, filed by KCPL or any of the KCPL
Subsidiaries, (ii) all audit reports or written proposed adjustments (whether
formal or informal) received from any taxing authority relating to any Tax
Return filed by KCPL or any of the KCPL Subsidiaries and (iii) any Closing
Agreements entered into by KCPL or any of the KCPL Subsidiaries with any taxing
authority.
(l) TAX SHARING AGREEMENTS. Neither KCPL nor any KCPL Subsidiary is
a party to any agreement relating to allocating or sharing of Taxes.
(m) CODE SECTION 280G. Neither KCPL nor any of the KCPL Subsidiaries
is a party to any agreement, contract or arrangement that could result in the
payment of any "excess parachute payments" within the meaning of Section 280G of
the Code or any amount that would be non-deductible pursuant to Section 162(m)
of the Code.
(n) LIABILITY FOR OTHERS. None of KCPL or any of the KCPL
Subsidiaries has any liability for Taxes of any person other than KCPL and the
KCPL Subsidiaries (i) under Treasury Regulations Section 1.1502-6 (or any
similar provision of state, local or foreign law), (ii) by contract, or (iii)
otherwise.
(o) SECTION 341(F). Neither KCPL nor any of the KCPL Subsidiaries
has, with regard to any assets or property held or acquired by any of them,
filed a consent to the application of Section 341(f)(2) of the Code, or agreed
to have Section 341(f)(2) of the Code apply to any disposition of a subsection
(f) asset (as such term is defined in Section 341(f)(4) of the Code) owned by
KCPL or any of the KCPL Subsidiaries.
Section 4.10 EMPLOYEE MATTERS; ERISA. Except as set forth in
Section 4.10 of the KCPL Disclosure Schedule:
(a) BENEFIT PLANS. Section 4.10(a) of the KCPL Disclosure Schedule
contains a true and complete list of each written or oral material employee
benefit plan, policy or agreement covering employees, former employees or
directors of KCPL and each of the KCPL Subsidiaries or their beneficiaries, or
providing benefits to such persons in respect of services provided to any such
entity, including, but not limited to, any employee benefit plans within the
meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") and any severance or change in control agreement
(collectively, the "KCPL BENEFIT PLANS").
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(b) CONTRIBUTIONS. All material contributions and other payments
required to be made by KCPL or any of the KCPL Subsidiaries to any KCPL Benefit
Plan (or to any person pursuant to the terms thereof) have been made or the
amount of such payment or contribution obligation has been reflected in the KCPL
Financial Statements.
(c) QUALIFICATION; COMPLIANCE. Each of the KCPL Benefit Plans
intended to be "qualified" within the meaning of Section 401(a) of the Code has
been determined by the Internal Revenue Service (the "IRS") to be so qualified,
and, to the best knowledge of KCPL, no circumstances exist that are reasonably
expected by KCPL to result in the revocation of any such determination. KCPL is
in compliance in all material respects with, and each of the KCPL Benefit Plans
is and has been operated in all material respects in compliance with, all
applicable laws, rules and regulations governing such plan, including, without
limitation, ERISA and the Code. Each KCPL Benefit Plan intended to provide for
the deferral of income, the reduction of salary or other compensation, or to
afford other income tax benefits, complies with the requirements of the
applicable provisions of the Code or other laws, rules and regulations required
to provide such income tax benefits. No prohibited transactions (as defined in
Section 406 or 407 of ERISA or Section 4975 of the Code) have occurred for which
a statutory exemption is not available with respect to any KCPL Benefit Plan,
and which could give rise to liability on the part of KCPL, any KCPL Benefit
Plan, or any fiduciary, party in interest or disqualified person with respect
thereto that would be material to KCPL or would be material to KCPL if it were
KCPL's liability.
(d) LIABILITIES. With respect to the KCPL Benefit Plans,
individually and in the aggregate, no event has occurred, and, to the best
knowledge of KCPL, there does not now exist any condition or set of
circumstances, that could subject KCPL or any of the KCPL Subsidiaries to any
material liability arising under the Code, ERISA or any other applicable law
(including, without limitation, any liability to any such plan or the Pension
Benefit Guaranty Corporation (the "PBGC")), or under any indemnity agreement to
which KCPL or any of the KCPL Subsidiaries is a party, excluding liability for
benefit claims and funding obligations payable in the ordinary course.
(e) WELFARE PLANS. None of the KCPL Benefit Plans that are "welfare
plans," within the meaning of Section 3(1) of ERISA, provides for any benefits
with respect to current or former employees for periods extending beyond their
retirement or other termination of service, other than continuation coverage
required to be provided under Section 4980B of the Code or Part 6 of Title I of
ERISA.
(f) DOCUMENTS MADE AVAILABLE. KCPL has made available to UCU a true
and correct copy of each collective bargaining agreement to which KCPL or any of
the KCPL Subsidiaries is a party or under which KCPL or any of the KCPL
Subsidiaries has obligations and, with respect to each KCPL Benefit Plan, where
applicable, (i) such plan and summary plan description, (ii) the most recent
annual report filed with the IRS, (iii) each related trust agreement, insurance
contract, service provider or investment management agreement (including
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all amendments to each such document), (iv) the most recent determination of the
IRS with respect to the qualified status of such KCPL Benefit Plan, and (v) the
most recent actuarial report or valuation.
(g) PAYMENTS RESULTING FROM MERGER. The consummation or announcement
of any transaction contemplated by this Agreement will not (either alone or upon
the occurrence of any additional or further acts or events, including, without
limitation, the termination of employment of any officers, directors, employees
or agents of KCPL or any of the KCPL Subsidiaries) result in any (i) payment
(whether of severance pay or otherwise) becoming due from KCPL or any of the
KCPL Subsidiaries or, to the knowledge of KCPL, any of the KCPL Joint Ventures,
to any officer, employee, former employee or director thereof or to the trustee
under any "rabbi trust" or similar arrangement, or (ii) benefit under any KCPL
Benefit Plan being established or becoming accelerated, vested or payable.
(h) LABOR AGREEMENTS. As of the date hereof, neither KCPL nor any of
the KCPL Subsidiaries is a party to any collective bargaining agreement or other
labor agreement with any union or labor organization. To the best knowledge of
KCPL, as of the date hereof, there is no current union representation question
involving employees of KCPL or any of the KCPL Subsidiaries, nor does KCPL know
of any activity or proceeding of any labor organization (or representative
thereof) or employee group to organize any such employees. Except as disclosed
in the KCPL SEC Reports filed prior to the date hereof or except to the extent
such would not have a KCPL Material Adverse Effect, (i) there is no unfair labor
practice, employment discrimination or other material complaint against KCPL or
any of the KCPL Subsidiaries pending, or to the best knowledge of KCPL,
threatened, (ii) there is no strike, lockout or material dispute, slowdown or
work stoppage pending or, to the best knowledge of KCPL, threatened against or
involving KCPL, and (iii) there is no proceeding, claim, suit, action or
governmental investigation pending or, to the best knowledge of KCPL, threatened
in respect of which any director, officer, employee or agent of KCPL or any of
the KCPL Subsidiaries is or may be entitled to claim indemnification from KCPL
or such KCPL Subsidiary pursuant to their respective articles of incorporation
or by-laws or as provided in the indemnification agreements listed in Section
4.10(h) of the KCPL Disclosure Schedule.
Section 4.11 ENVIRONMENTAL PROTECTION.
(a) Except as set forth in Section 4.11 of the KCPL Disclosure
Schedule or in the KCPL SEC Reports filed prior to the date hereof:
(i) COMPLIANCE. KCPL and each of the KCPL Subsidiaries and, to
the knowledge of KCPL, the KCPL Joint Ventures is in compliance with all
applicable Environmental Laws (as defined in Section 4.11(c)(ii)) except
where the failure to so comply would not have a KCPL Material Adverse
Effect, and neither KCPL nor any of the KCPL Subsidiaries has received any
communication (written or oral), from any person or Governmental Authority
that alleges that KCPL or any of the KCPL Subsidiaries or the KCPL Joint
Ventures is not in such compliance with applicable Environmental Laws.
15
To the best knowledge of KCPL, compliance with all applicable Environmental
Laws including, without limitation, all laws relating to the storage,
handling, use and disposal of nuclear fuel or wastes, will not require KCPL
or any KCPL Subsidiary or, to the knowledge of KCPL, any KCPL Joint Venture
to incur costs beyond that currently budgeted in the five KCPL fiscal years
beginning with January 1, 1996 that will be reasonably likely to result in
a KCPL Material Adverse Effect, including but not limited to the costs of
KCPL and KCPL Subsidiary and KCPL Joint Venture pollution control equipment
or equipment for the storage, handling, use or disposal of nuclear fuel or
wastes, required or known to be required in the future.
(ii) ENVIRONMENTAL PERMITS. KCPL and each of the KCPL
Subsidiaries and, to the knowledge of KCPL, the KCPL Joint Ventures has
obtained or has applied for all environmental, health and safety permits
and governmental authorizations (collectively, the "ENVIRONMENTAL PERMITS")
necessary for the construction of their facilities or the conduct of their
operations except where the failure to so obtain would not have a KCPL
Material Adverse Effect, and all such Environmental Permits are in good
standing or, where applicable, a renewal application has been timely filed
and is pending agency approval, and KCPL and the KCPL Subsidiaries and, to
the knowledge of KCPL, the KCPL Joint Ventures are in material compliance
with all terms and conditions of the Environmental Permits.
(iii) ENVIRONMENTAL CLAIMS. There is no Environmental Claim
(as defined in Section 4.11(c)(i)) which would have a KCPL Material Adverse
Effect pending (A) against KCPL or any of the KCPL Subsidiaries or, to the
knowledge of KCPL, any of the KCPL Joint Ventures, (B) to the best
knowledge of KCPL, against any person or entity whose liability for any
Environmental Claim KCPL or any of the KCPL Subsidiaries or, to the
knowledge of KCPL, any of the KCPL Joint Ventures has or may have retained
or assumed either contractually or by operation of law, or (C) against any
real or personal property or operations which KCPL or any of the KCPL
Subsidiaries or, to the knowledge of KCPL, any of the KCPL Joint Ventures
owns, leases or manages, in whole or in part.
(iv) RELEASES. KCPL has no knowledge of any Releases (as defined
in Section 4.11(c)(iv)) of any Hazardous Material (as defined in Section
4.11(c)(iii)) that would be reasonably likely to form the basis of any
Environmental Claim against KCPL or any of the KCPL Subsidiaries or the
KCPL Joint Ventures, or against any person or entity whose liability for
any Environmental Claim KCPL or any of the KCPL Subsidiaries or the KCPL
Joint Ventures has or may have retained or assumed either contractually or
by operation of law except for any Environmental Claim which would not have
a KCPL Material Adverse Effect.
(v) PREDECESSORS. KCPL has no knowledge, with respect to any
predecessor of KCPL or any of the KCPL Subsidiaries or the KCPL Joint
Ventures, of any Environmental Claim which would have a KCPL Material
Adverse Effect pending
16
or threatened, or of any Release of Hazardous Materials that would be
reasonably likely to form the basis of any Environmental Claim which would
have a KCPL Material Adverse Effect.
(b) DISCLOSURE. To KCPL's best knowledge, KCPL has disclosed in
writing to UCU all facts which KCPL reasonably believes form the basis of an
Environmental Claim which would have a KCPL Material Adverse Effect arising from
(i) the cost of KCPL pollution control equipment currently required or known to
be required in the future, (ii) current KCPL remediation costs or KCPL
remediation costs known to be required in the future or (iii) any other
environmental matter affecting KCPL.
(c) DEFINITIONS. As used in this Agreement:
(i) "ENVIRONMENTAL CLAIM" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, directives,
claims, liens, investigations, proceedings or notices of noncompliance or
violation (written or oral) by any person or entity (including any
Governmental Authority) alleging potential liability (including, without
limitation, potential responsibility for or liability for enforcement,
investigatory costs, cleanup costs, governmental response costs, removal
costs, remedial costs, natural resources damages, property damages,
personal injuries or penalties) arising out of, based on or resulting from
(A) the presence, Release or threatened Release into the environment of any
Hazardous Materials at any location, whether or not owned, operated, leased
or managed by KCPL or any of the KCPL Subsidiaries or KCPL Joint Ventures
(for purposes of this Section 4.11) or by UCU or any of the UCU
Subsidiaries or UCU Joint Ventures (for purposes of Section 5.11); or (B)
circumstances forming the basis of any violation or alleged violation of
any Environmental Law or (C) any and all claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or
injunctive relief resulting from the presence or Release of any Hazardous
Materials.
(ii) "ENVIRONMENTAL LAWS" means all federal, state and local
laws, rules and regulations relating to pollution, the environment
(including, without limitation, ambient air, surface water, groundwater,
land surface or subsurface strata) or protection of human health as it
relates to the environment including, without limitation, laws and
regulations relating to Releases or threatened Releases of Hazardous
Materials, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials.
(iii) "HAZARDOUS MATERIALS" means (A) any petroleum or
petroleum products, radioactive materials, asbestos in any form that is or
could become friable, urea formaldehyde foam insulation and transformers or
other equipment that contain dielectric fluid containing polychlorinated
biphenyls ("PCBS"); (B) any chemicals, materials or substances which are
now defined as or included in the definition of "HAZARDOUS SUBSTANCES,"
"HAZARDOUS WASTES," "HAZARDOUS MATERIALS," "EXTREMELY HAZARDOUS WASTES,"
"RESTRICTED HAZARDOUS WASTES," "TOXIC SUBSTANCES," "TOXIC POLLUTANTS," or
words of similar
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import under any Environmental Law and (C) any other chemical, material,
substance or waste, exposure to which is now prohibited, limited or
regulated under any Environmental Law in a jurisdiction in which KCPL or
any of the KCPL Subsidiaries operates (for purposes of this Section 4.11)
or in which UCU or any of the UCU Subsidiaries operates (for purposes of
Section 5.11).
"RELEASE" means any release, spill, emission, leaking,
injection, deposit, disposal, discharge, dispersal, leaching or migration
into the atmosphere, soil, surface water, groundwater or property.
Section 4.12 REGULATION AS A UTILITY. KCPL is regulated as a public
utility in the States of Kansas and Missouri and in no other state. Except as
set forth in Section 4.12 of the KCPL Disclosure Schedule, neither KCPL nor any
"subsidiary company" or "affiliate" (as each such term is defined in the 0000
Xxx) of KCPL is subject to regulation as a public utility or public service
company (or similar designation) by any other state in the United States or any
foreign country.
Section 4.13 VOTE REQUIRED. Provided that the KCPL Preferred Stock
has been redeemed pursuant to Section 2.1(c), the approval of the Merger by the
holders of two-thirds of the voting power entitled to be cast by all holders of
KCPL Common Stock (the "KCPL SHAREHOLDERS' APPROVAL") is the only vote of the
holders of any class or series of the capital stock of KCPL or any of its
Subsidiaries required to approve this Agreement, the Merger and the other
transactions contemplated hereby.
Section 4.14 ACCOUNTING MATTERS. Neither KCPL nor, to KCPL's best
knowledge, any of its Affiliates has taken or agreed to take any action that
would prevent the Company from accounting for the transactions to be effected
pursuant to this Agreement as a pooling of interests in accordance with GAAP and
applicable SEC regulations. As used in this Agreement, the term "AFFILIATE,"
except where otherwise defined herein, shall mean, as to any person, any other
person which directly or indirectly controls, or is under common control with,
or is controlled by, such person. As used in this definition, "CONTROL"
(including, with its correlative meanings, "CONTROLLED BY" and "UNDER COMMON
CONTROL WITH") shall mean possession, directly or indirectly, of power to direct
or cause the direction of management or policies (whether through ownership of
securities or partnership or other ownership interests, by contract or
otherwise).
Section 4.15 ARTICLE TWELFTH OF KCPL'S RESTATED ARTICLES OF
CONSOLIDATION. The provisions of Article Twelfth of KCPL's Restated Articles of
Consolidation will not, prior to the termination of this Agreement, assuming the
accuracy of the representation contained in Section 5.18 (without giving effect
to the knowledge qualification thereof), apply to this Agreement, the Merger or
to the transactions contemplated hereby.
Section 4.16 OPINION OF FINANCIAL ADVISOR. KCPL has received the
opinion of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("XXXXXXX XXXXX"),
dated the date hereof, to
18
the effect that, as of the date thereof, the KCPL Conversion Ratio is fair from
a financial point of view to the holders of KCPL Common Stock.
Section 4.17 INSURANCE. Except as set forth in Section 4.17 of the
KCPL Disclosure Schedule, KCPL and each of the KCPL Subsidiaries is, and has
been continuously since January 1, 1991, insured with financially responsible
insurers in such amounts and against such risks and losses as are customary in
all material respects for companies conducting the business as conducted by KCPL
and the KCPL Subsidiaries during such time period. Except as set forth in
Section 4.17 of the KCPL Disclosure Schedule, neither KCPL nor any of the KCPL
Subsidiaries has received any notice of cancellation or termination with respect
to any material insurance policy of KCPL or any of the KCPL Subsidiaries. The
insurance policies of KCPL and each of the KCPL Subsidiaries are valid and
enforceable policies in all material respects.
Section 4.18 KCPL NOT A RELATED PERSON. As of the date hereof,
neither KCPL nor, to its reasonable knowledge, any of its Affiliates, is a
"Related Person" as such term is defined in Article Eight of UCU's Certificate
of Incorporation.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF UCU
UCU represents and warrants to KCPL as follows:
Section 5.1 ORGANIZATION AND QUALIFICATION. Except as set forth in
Section 5.1 of the schedule delivered by UCU on the date hereof (the "UCU
DISCLOSURE SCHEDULE"), UCU and each of the UCU Subsidiaries (as defined below)
and, to the knowledge of UCU, each of the UCU Joint Ventures (as defined below)
is a corporation or other entity duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation or organization,
has all requisite power and authority, and has been duly authorized by all
necessary approvals and orders to own, lease and operate its assets and
properties to the extent owned, leased and operated and to carry on its business
as it is now being conducted and is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its assets and properties makes such qualification
necessary other than in such jurisdictions where the failure so to qualify would
not have a material adverse effect on UCU and the UCU Subsidiaries taken as a
whole. As used in this Agreement, (a) the term "UCU SUBSIDIARY" shall mean a
Subsidiary of UCU, and (b) the term "UCU JOINT VENTURE" shall mean each entity
identified as such on Section 5.1 of the UCU Disclosure Schedule.
Section 5.2 SUBSIDIARIES. Section 5.2 of the UCU Disclosure
Schedule sets forth a list as of the date hereof of (a) all the UCU Subsidiaries
and (b) all other entities in which UCU has an aggregate equity investment in
excess of $25 million. Except as set forth in Section 5.2 of the UCU Disclosure
Schedule, neither UCU nor any of the UCU Subsidiaries is a "holding company," a
"subsidiary company" or an "affiliate" of any public utility company within the
19
meaning of Section 2(a)(7), 2(a)(8) or 2(a)(11) of the 1935 Act, respectively,
and none of the UCU Subsidiaries is a "public utility company" within the
meaning of Section 2(a)(5) of the 1935 Act. Except as set forth in Section 5.2
of the UCU Disclosure Schedule, all of the issued and outstanding shares of
capital stock of each UCU Subsidiary are validly issued, fully paid,
nonassessable and free of preemptive rights, and are owned, directly or
indirectly, by UCU free and clear of any liens, claims, encumbrances, security
interests, charges and options of any nature whatsoever and there are no
outstanding subscriptions, options, calls, contracts, voting trusts, proxies or
other commitments, understandings, restrictions, arrangements, rights or
warrants, including any right of conversion or exchange under any outstanding
security, instrument or other agreement, obligating any such UCU Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of its capital stock or obligating it to grant, extend or enter into any
such agreement or commitment.
Section 5.3 CAPITALIZATION. As of the date hereof, the authorized
capital stock of UCU consists of 100,000,000 shares of UCU Common Stock, par
value $1.00 per share, 20,000,000 shares of Class A Common Stock, par value
$1.00 per share ("UCU CLASS A COMMON STOCK"), and 10,000,000 shares of
Preference Stock, without par value ("UCU PREFERRED STOCK"). At the close of
business on December 31, 1995, (i) 45,980,814 shares of UCU Common Stock were
issued, not more than 10,000,000 shares of UCU Common Stock were reserved for
issuance pursuant to UCU's Employee Stock Purchase Plan, 1986 Stock Incentive
Plan, 1992 Employee Non-Qualified Stock Option Plan, Bond Dividend Reinvestment
Plan, Non-Employee Director Plan, Dividend Reinvestment and Common Stock
Purchase Plan and 401(k) and Employee Stock Contribution Plan (such Plans,
collectively, the "UCU STOCK PLANS") and conversion of UCU's Convertible
Subordinated Debentures, (ii) 4252 shares of UCU Common Stock were held by UCU
in its treasury or by its wholly owned Subsidiaries, (iii) no shares of UCU
Class A Common Stock were issued or held by UCU or its Subsidiaries in its
treasury, and (iv) 1,000,000 shares of UCU Preferred Stock were issued and of
such issued shares, none were held by UCU in its treasury or by its wholly owned
Subsidiaries and (v) except for UCU's Convertible Subordinated Debentures, due
July 1, 2011, no Voting Debt is issued or outstanding. All outstanding shares
of UCU Common Stock and UCU Preferred Stock are validly issued, fully paid and
nonassessable and are not subject to preemptive rights. As of the date of this
Agreement, except as set forth in Section 5.3 of the UCU Disclosure Schedule or
pursuant to this Agreement and the UCU Stock Plans, there are no options,
warrants, calls, rights, commitments or agreements of any character to which UCU
or any material UCU Subsidiary is a party or by which it is bound obligating UCU
or any material UCU Subsidiary to issue, deliver or sell, or cause to be issued,
delivered or sold, additional shares of capital stock or any Voting Debt
securities of UCU or any material UCU Subsidiary or obligating UCU or any
material UCU Subsidiary to grant, extend or enter into any such option,
warrant, call, right, commitment or agreement. Except as set forth in Section
5.3 of the UCU Disclosure Schedule, or other than in connection with the UCU
Stock Plans, after the Effective Time, there will be no option, warrant, call,
right, commitment or agreement obligating UCU or any material UCU Subsidiary to
issue, deliver or sell, or cause to be issued, delivered or sold, any shares of
capital stock or any Voting Debt of UCU or any material UCU
20
Subsidiary, or obligating UCU or any material UCU Subsidiary to grant, extend or
enter into any such option, warrant, call, right, commitment or agreement.
Section 5.4 AUTHORITY; NON-CONTRAVENTION; STATUTORY APPROVALS;
COMPLIANCE.
(a) AUTHORITY. UCU has all requisite power and authority to enter
into this Agreement and, subject to the receipt of the applicable UCU
Shareholders' Approval (as defined in Section 5.13) and the applicable UCU
Required Statutory Approvals (as defined in Section 5.4(c)), to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation by UCU of the transactions contemplated hereby have been
duly authorized by all necessary corporate action on the part of UCU, subject to
obtaining the applicable UCU Shareholders' Approval. This Agreement has been
duly and validly executed and delivered by UCU and, assuming the due
authorization, execution and delivery hereof by the other signatories hereto,
constitutes the valid and binding obligation of UCU enforceable against it in
accordance with its terms.
(b) NON-CONTRAVENTION. Except as set forth in Section 5.4(b) of the
UCU Disclosure Schedule, the execution and delivery of this Agreement by UCU
does not, and the consummation of the transactions contemplated hereby will not,
result in a Violation pursuant to any provisions of (i) the certificate of
incorporation, by-laws or similar governing documents of UCU or any of the UCU
Subsidiaries or the UCU Joint Ventures, (ii) subject to obtaining the UCU
Required Statutory Approvals and the receipt of the UCU Shareholders' Approval,
any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any Governmental Authority applicable to
UCU or any of the UCU Subsidiaries or the UCU Joint Ventures or any of their
respective properties or assets or (iii) subject to obtaining the third-party
consents set forth in Section 5.4(b) of the UCU Disclosure Schedule (the "UCU
REQUIRED CONSENTS"), any material note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which UCU or any of the UCU
Subsidiaries or the UCU Joint Ventures is a party or by which it or any of its
properties or assets may be bound or affected, except in the case of clause (ii)
or (iii) for any such Violation which would not have a UCU Material Adverse
Effect (as defined in Section 5.6 ).
(c) STATUTORY APPROVALS. No declaration, filing or registration
with, or notice to or authorization, consent or approval of, any Governmental
Authority is necessary for the execution and delivery of this Agreement by UCU
or the consummation by UCU of the transactions contemplated hereby except as
described in Section 5.4(c) of the UCU Disclosure Schedule or the failure of
which to obtain would not result in a UCU Material Adverse Effect (the "UCU
REQUIRED STATUTORY APPROVALS," it being understood that references in this
Agreement to "obtaining" such UCU Required Statutory Approvals shall mean making
such declarations, filings or registrations; giving such notices; obtaining such
authorizations, consents or approvals; and having such waiting periods expire as
are necessary to avoid a violation of law).
21
(d) COMPLIANCE. Except as set forth in Section 5.4(d), Section 5.7,
Section 5.10 or Section 5.11 of the UCU Disclosure Schedule, or as disclosed in
the UCU SEC Reports (as defined in Section 5.5) filed prior to the date hereof,
neither UCU nor any of the UCU Subsidiaries nor, to the knowledge of UCU, any
UCU Joint Venture is in violation of, is, to the knowledge of UCU, under
investigation with respect to any violation of, or has been given notice or been
charged with any violation of, any law, statute, order, rule, regulation,
ordinance or judgment (including, without limitation, any applicable
environmental law, ordinance or regulation) of any Governmental Authority,
except for possible violations which individually or in the aggregate would not
have a UCU Material Adverse Effect. Except as set forth in Section 5.4(d) of
the UCU Disclosure Schedule or in Section 5.11 of the UCU Disclosure Schedule,
or as expressly disclosed in the UCU SEC Reports, UCU and the UCU Subsidiaries
and, to the knowledge of UCU, the UCU Joint Ventures have all permits, licenses,
franchises and other governmental authorizations, consents and approvals
necessary to conduct their businesses as presently conducted which are material
to the operation of the businesses of UCU and the UCU Subsidiaries. Except as
set forth in Section 5.4(d) of the UCU Disclosure Schedule, UCU and each of the
UCU Subsidiaries and, to the knowledge of UCU, UCU Joint Ventures is not in
breach or violation of or in default in the performance or observance of any
term or provision of, and no event has occurred which, with lapse of time or
action by a third party, could result in a default by UCU or any UCU Subsidiary
or, to the knowledge of UCU, UCU Joint Venture under (i) its certificate of
incorporation or by-laws or (ii) any contract, commitment, agreement, indenture,
mortgage, loan agreement, note, lease, bond, license, approval or other
instrument to which it is a party or by which UCU or any UCU Subsidiary or UCU
Joint Venture is bound or to which any of its property is subject, except for
possible violations, breaches or defaults which individually or in the aggregate
would not have a UCU Material Adverse Effect.
Section 5.5 REPORTS AND FINANCIAL STATEMENTS. The filings required
to be made by UCU and the UCU Subsidiaries and UCU Joint Ventures since January
1, 1991 under the Securities Act, the Exchange Act, the 1935 Act, the Power Act
and applicable state public utility laws and regulations have been filed with
the SEC, the FERC or the appropriate state public utilities commission, as the
case may be, including all forms, statements, reports, agreements (oral or
written) and all documents, exhibits, amendments and supplements appertaining
thereto, and complied, as of their respective dates, in all material respects
with all applicable requirements of the appropriate statutes and the rules and
regulations thereunder, except for such filings the failure of which to have
been made would not result in a UCU Material Adverse Effect. UCU has made
available to KCPL a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed with the SEC by UCU
and by Aquila Gas Pipeline Corporation pursuant to the requirements of the
Securities Act or Exchange Act since January 1, 1991 (as such documents have
since the time of their filing been amended, the "UCU SEC REPORTS"). As of
their respective dates, the UCU SEC Reports did 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 therein, in light of the
circumstances under which they were made, not misleading. The audited
consolidated financial statements and unaudited interim financial statements of
UCU and Aquila Gas Pipeline Corporation included in the UCU SEC Reports
(collectively, the "UCU FINANCIAL STATEMENTS") have been prepared in accordance
with
22
GAAP (except as may be indicated therein or in the notes thereto and except with
respect to unaudited statements as permitted by Form 10-Q of the SEC) and fairly
present the financial position of UCU and Aquila Gas Pipeline Corporation as of
the dates thereof and the results of their respective operations and cash flows
for the periods then ended, subject, in the case of the unaudited interim
financial statements, to normal, recurring audit adjustments. True, accurate
and complete copies of the Certificate of Incorporation and by-laws of UCU and
Aquila Gas Pipeline Corporation, as in effect on the date hereof, are included
(or incorporated by reference) in the UCU SEC Reports.
Section 5.6 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
disclosed in the UCU SEC Reports filed prior to the date hereof or as set forth
in Section 5.6 of the UCU Disclosure Schedule, since December 31, 1994, UCU and
each of the UCU Subsidiaries have conducted their business only in the ordinary
course of business consistent with past practice and there has not been, and no
fact or condition exists which would have or, insofar as reasonably can be
foreseen, could have, a material adverse effect on the business, assets,
financial condition, results of operations or prospects of UCU and the UCU
Subsidiaries taken as a whole (a "UCU MATERIAL ADVERSE EFFECT").
Section 5.7 LITIGATION. Except as disclosed in the UCU SEC Reports
filed prior to the date hereof or as set forth in Section 5.7, Section 5.9 or
Section 5.11 of the UCU Disclosure Schedule, (a) there are no claims, suits,
actions or proceedings by any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator, pending or, to the
knowledge of UCU, threatened, nor are there, to the knowledge of UCU, any
investigations or reviews by any court, governmental department, commission,
agency, instrumentality or authority or any arbitrator pending or threatened
against, relating to or affecting UCU or any of the UCU Subsidiaries or, to the
knowledge of UCU, the UCU Joint Ventures which would have a UCU Material Adverse
Effect, (b) there have not been any significant developments since December 31,
1994 with respect to such disclosed claims, suits, actions, proceedings,
investigations or reviews that would have a UCU Material Adverse Effect and (c)
there are no judgments, decrees, injunctions, rules or orders of any court,
governmental department, commission, agency, instrumentality or authority or any
arbitrator applicable to UCU or any of the UCU Subsidiaries or, to the knowledge
of UCU, applicable to any of the UCU Joint Ventures, except for such that would
not have a UCU Material Adverse Effect.
Section 5.8 REGISTRATION STATEMENT AND PROXY STATEMENT. None of
the information supplied or to be supplied by or on behalf of UCU for inclusion
or incorporation by reference in (a) the Registration Statement will, at the
time the Registration Statement is filed with the SEC and at the time it becomes
effective under the Securities Act, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (b) the Proxy
Statement will, at the dates mailed to shareholders and at the times of the
meetings of shareholders to be held in connection with the Merger, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Registration
23
Statement and the Proxy Statement will comply as to form in all material
respects with the provisions of the Securities Act and the Exchange Act and the
rules and regulations thereunder.
Section 5.9 TAX MATTERS. Except as set forth in Section 5.9 of the
UCU Disclosure Schedule:
(a) FILING OF TIMELY TAX RETURNS. UCU and each of the UCU
Subsidiaries have filed (or there has been filed on its behalf) all Tax Returns
required to be filed by each of them under applicable law, except for those the
failure of which to file would not have a UCU Material Adverse Effect. All such
Tax Returns were and are in all material respects true, complete and correct and
filed on a timely basis.
(b) PAYMENT OF TAXES. UCU and each of the UCU Subsidiaries have,
within the time and in the manner prescribed by law, paid all material Taxes
that are currently due and payable, except for those contested in good faith and
for which adequate reserves have been taken.
(c) TAX RESERVES. UCU and the UCU Subsidiaries have established on
their books and records reserves adequate to pay all material Taxes and reserves
for deferred income taxes in accordance with GAAP.
(d) TAX LIENS. There are no Tax liens upon the assets of UCU or any
of the UCU Subsidiaries except liens for Taxes not yet due.
(e) WITHHOLDING TAXES. UCU and each of the UCU Subsidiaries have
complied in all material respects with the provisions of the Code relating to
the withholding of Taxes, as well as similar provisions under any other laws,
and have, within the time and in the manner prescribed by law, withheld and paid
over to the proper governmental authorities all amounts required.
(f) EXTENSIONS OF TIME FOR FILING TAX RETURNS. Neither UCU nor any
of the UCU Subsidiaries has requested any extension of time within which to file
any Tax Return, which Tax Return has not since been filed.
(g) WAIVERS OF STATUTE OF LIMITATIONS. Neither UCU nor any of the
UCU Subsidiaries has executed any outstanding waivers or comparable consents
regarding the application of the statute of limitations with respect to any
Taxes or Tax Returns.
(h) AUDIT, ADMINISTRATIVE AND COURT PROCEEDINGS. No audits or other
administrative proceedings or court proceedings are presently pending with
regard to any Taxes or Tax Returns of UCU or any of the UCU Subsidiaries.
(i) POWERS OF ATTORNEY. No power of attorney currently in force has
been granted by UCU or any of the UCU Subsidiaries concerning any Tax matter.
24
(j) TAX RULINGS. Neither UCU nor any of the UCU Subsidiaries has
received a Tax Ruling or entered into a Closing Agreement with any taxing
authority that would have a continuing adverse effect after the Closing Date.
(k) AVAILABILITY OF TAX RETURNS. UCU has made available to KCPL
complete and accurate copies of (i) all federal and state income Tax Returns for
open years, and any amendments thereto, filed by UCU or any of the UCU
Subsidiaries, (ii) all audit reports or written proposed adjustments (whether
formal or informal) received from any taxing authority relating to any Tax
Return filed by UCU or any of the UCU Subsidiaries and (iii) any Closing
Agreements entered into by UCU or any of the UCU Subsidiaries with any taxing
authority.
(l) TAX SHARING AGREEMENTS. Neither UCU nor any UCU Subsidiary is a
party to any agreement relating to allocating or sharing of Taxes.
(m) CODE SECTION 280G. Neither UCU nor any of the UCU Subsidiaries
is a party to any agreement, contract or arrangement that could result in the
payment of any "excess parachute payments" within the meaning of Section 280G of
the Code or any amount that would be non-deductible pursuant to Section 162(m)
of the Code.
(n) LIABILITY FOR OTHERS. None of UCU or any of the UCU Subsidiaries
has any liability for Taxes of any person other than UCU and the UCU
Subsidiaries (i) under Treasury Regulations Section 1.1502-6 (or any similar
provision of state, local or foreign law), (ii) by contract, or (iii) otherwise.
(o) SECTION 341(F). Neither UCU nor any of the UCU Subsidiaries has,
with regard to any assets or property held or acquired by any of them, filed a
consent to the application of Section 341(f)(2) of the Code, or agreed to have
Section 341(f)(2) of the Code apply to any disposition of a subsection (f) asset
(as such term is defined in Section 341(f)(4) of the Code) owned by UCU or any
of the UCU Subsidiaries.
Section 5.10 EMPLOYEE MATTERS; ERISA. Except as set forth in
Section 5.10 of the UCU Disclosure Schedule:
(a) BENEFIT PLANS. Section 5.10(a) of the UCU Disclosure Schedule
contains a true and complete list of each written or oral material employee
benefit plan, policy or agreement covering employees, former employees or
directors of UCU and each of the UCU Subsidiaries or their beneficiaries, or
providing benefits to such persons in respect of services provided to any such
entity, including, but not limited to, any employee benefit plans within the
meaning of Section 3(3) of ERISA and any severance or change in control
agreement (collectively, the "UCU BENEFIT PLANS").
(b) CONTRIBUTIONS. All material contributions and other payments
required to be made by UCU or any of the UCU Subsidiaries to any UCU Benefit
Plan (or to any person
25
pursuant to the terms thereof) have been made or the amount of such payment or
contribution obligation has been reflected in the UCU Financial Statements.
(c) QUALIFICATION; COMPLIANCE. Each of the UCU Benefit Plans
intended to be "qualified" within the meaning of Section 401(a) of the Code has
been determined by the IRS to be so qualified, and, to the best knowledge of
UCU, no circumstances exist that are reasonably expected by UCU to result in the
revocation of any such determination. UCU is in compliance in all material
respects with, and each of the UCU Benefit Plans is and has been operated in all
material respects in compliance with, all applicable laws, rules and regulations
governing such plan, including, without limitation, ERISA and the Code. Each
UCU Benefit Plan intended to provide for the deferral of income, the reduction
of salary or other compensation, or to afford other income tax benefits,
complies with the requirements of the applicable provisions of the Code or other
laws, rules and regulations required to provide such income tax benefits. No
prohibited transactions (as defined in Section 406 or 407 of ERISA or Section
4975 of the Code) have occurred for which a statutory exemption is not available
with respect to any UCU Benefit Plan, and which could give rise to liability on
the part of UCU, any UCU Benefit Plan, or any fiduciary, party in interest or
disqualified person with respect thereto that would be material to UCU or would
be material to UCU if it were UCU's liability.
(d) LIABILITIES. With respect to the UCU Benefit Plans, individually
and in the aggregate, no event has occurred, and, to the best knowledge of UCU,
there does not now exist any condition or set of circumstances, that could
subject UCU or any of the UCU Subsidiaries to any material liability arising
under the Code, ERISA or any other applicable law (including, without
limitation, any liability to any such plan or the PBGC), or under any indemnity
agreement to which UCU or any of the UCU Subsidiaries is a party, excluding
liability for benefit claims and funding obligations payable in the ordinary
course.
(e) WELFARE PLANS. None of the UCU Benefit Plans that are "welfare
plans," within the meaning of Section 3(1) of ERISA, provides for any benefits
with respect to current or former employees for periods extending beyond their
retirement or other termination of service, other than continuation coverage
required to be provided under Section 4980B of the Code or Part 6 of Title I of
ERISA.
(f) DOCUMENTS MADE AVAILABLE. UCU has made available to KCPL a true
and correct copy of each collective bargaining agreement to which UCU or any of
the UCU Subsidiaries is a party or under which UCU or any of the UCU
Subsidiaries has obligations and, with respect to each UCU Benefit Plan, where
applicable, (i) such plan and summary plan description, (ii) the most recent
annual report filed with the IRS, (iii) each related trust agreement, insurance
contract, service provider or investment management agreement (including all
amendments to each such document), (iv) the most recent determination of the IRS
with respect to the qualified status of such UCU Benefit Plan, and (v) the most
recent actuarial report or valuation.
26
(g) PAYMENTS RESULTING FROM MERGER. The consummation or announcement
of any transaction contemplated by this Agreement will not (either alone or upon
the occurrence of any additional or further acts or events, including, without
limitation, the termination of employment of any officers, directors, employees
or agents of UCU or any of the UCU Subsidiaries) result in any (i) payment
(whether of severance pay or otherwise) becoming due from UCU or any of the UCU
Subsidiaries or, to the knowledge of UCU, any of the UCU Joint Ventures, to any
officer, employee, former employee or director thereof or to the trustee under
any "rabbi trust" or similar arrangement, or (ii) benefit under any UCU Benefit
Plan being established or becoming accelerated, vested or payable.
(h) LABOR AGREEMENTS. As of the date hereof, neither UCU nor any of
the UCU Subsidiaries is a party to any collective bargaining agreement or other
labor agreement with any union or labor organization. To the best knowledge of
UCU, as of the date hereof, there is no current union representation question
involving employees of UCU or any of the UCU Subsidiaries, nor does UCU know of
any activity or proceeding of any labor organization (or representative thereof)
or employee group to organize any such employees. Except as disclosed in the
UCU SEC Reports filed prior to the date hereof or except to the extent such
would not have a UCU Material Adverse Effect, (i) there is no unfair labor
practice, employment discrimination or other material complaint against UCU or
any of the UCU Subsidiaries pending, or to the best knowledge of UCU,
threatened, (ii) there is no strike, lockout or material dispute, slowdown or
work stoppage pending or, to the best knowledge of UCU, threatened against or
involving UCU, and (iii) there is no proceeding, claim, suit, action or
governmental investigation pending or, to the best knowledge of UCU, threatened
in respect of which any director, officer, employee or agent of UCU or any of
the UCU Subsidiaries is or may be entitled to claim indemnification from UCU or
such UCU Subsidiary pursuant to their respective articles of incorporation or
by-laws or as provided in the indemnification agreements listed in Section
5.10(h) of the UCU Disclosure Schedule.
Section 5.11 ENVIRONMENTAL PROTECTION.
(a) Except as set forth in Section 5.11 of the UCU Disclosure Schedule
or in the UCU SEC Reports filed prior to the date hereof:
(i) COMPLIANCE. UCU and each of the UCU Subsidiaries and, to
the knowledge of UCU, the UCU Joint Ventures is in compliance with all
applicable Environmental Laws except where the failure to so comply would
not have a UCU Material Adverse Effect, and neither UCU nor any of the UCU
Subsidiaries has received any communication (written or oral), from any
person or Governmental Authority that alleges that UCU or any of the UCU
Subsidiaries or the UCU Joint Ventures is not in such compliance with
applicable Environmental Laws. To the best knowledge of UCU, compliance
with all applicable Environmental Laws will not require UCU or any UCU
Subsidiary or, to the knowledge of UCU, any UCU Joint Venture to incur
costs beyond that currently budgeted in the five UCU fiscal years beginning
with January 1, 1996 that will be reasonably likely to result in a UCU
Material Adverse Effect, including but not
27
limited to the costs of UCU and UCU Subsidiary and UCU Joint Venture pollution
control equipment required or known to be required in the future.
(ii) ENVIRONMENTAL PERMITS. UCU and each of the UCU Subsidiaries
and, to the knowledge of UCU, the UCU Joint Ventures has obtained or has
applied for all the Environmental Permits necessary for the construction of
their facilities or the conduct of their operations except where the
failure to so obtain would not have a UCU Material Adverse Effect, and all
such Environmental Permits are in good standing or, where applicable, a
renewal application has been timely filed and is pending agency approval,
and UCU and the UCU Subsidiaries and, to the knowledge of UCU, the UCU
Joint Ventures are in material compliance with all terms and conditions of
the Environmental Permits.
(iii) ENVIRONMENTAL CLAIMS. There is no Environmental Claim
which would have a UCU Material Adverse Effect pending (A) against UCU or
any of the UCU Subsidiaries or, to the knowledge of UCU, any of the UCU
Joint Ventures, (B) to the best knowledge of UCU, against any person or
entity whose liability for any Environmental Claim UCU or any of the UCU
Subsidiaries or, to the knowledge of UCU, any of the UCU Joint Ventures has
or may have retained or assumed either contractually or by operation of
law, or (C) against any real or personal property or operations which UCU
or any of the UCU Subsidiaries or, to the knowledge of UCU, any of the UCU
Joint Ventures owns, leases or manages, in whole or in part.
(iv) RELEASES. UCU has no knowledge of any Releases of any
Hazardous Material that would be reasonably likely to form the basis of any
Environmental Claim against UCU or any of the UCU Subsidiaries or the UCU
Joint Ventures, or against any person or entity whose liability for any
Environmental Claim UCU or any of the UCU Subsidiaries or the UCU Joint
Ventures has or may have retained or assumed either contractually or by
operation of law except for any Environmental Claim which would not have a
UCU Material Adverse Effect.
(v) PREDECESSORS. UCU has no knowledge, with respect to any
predecessor of UCU or any of the UCU Subsidiaries or the UCU Joint
Ventures, of any Environmental Claim which would have a UCU Material
Adverse Effect pending or threatened, or of any Release of Hazardous
Materials that would be reasonably likely to form the basis of any
Environmental Claim which would have a UCU Material Adverse Effect.
(b) DISCLOSURE. To UCU's best knowledge, UCU has disclosed in
writing to KCPL all facts which UCU reasonably believes form the basis of an
Environmental Claim which would have a UCU Material Adverse Effect arising from
(i) the cost of UCU pollution control equipment currently required or known to
be required in the future, (ii) current UCU remediation costs or UCU remediation
costs known to be required in the future or (iii) any other environmental matter
affecting UCU.
28
Section 5.12 REGULATION AS A UTILITY. UCU is regulated as a public
utility in the States of Colorado, Iowa, Kansas, Michigan, Missouri, Minnesota,
Nebraska, South Dakota and West Virginia and in no other state. Except as set
forth in Section 5.12 of the UCU Disclosure Schedule, neither UCU nor any
"subsidiary company" or "affiliate" (as each such term is defined in the 0000
Xxx) of UCU is subject to regulation as a public utility or public service
company (or similar designation) by any other state in the United States or any
foreign country.
Section 5.13 VOTE REQUIRED. Provided that the KCPL Preferred Stock
has been redeemed pursuant to Section 2.1(c), the approval of the Merger by the
holders of a majority of the voting power entitled to be cast by all holders of
UCU Common Stock (the "UCU SHAREHOLDERS' APPROVAL") is the only vote of the
holders of any class or series of the capital stock of UCU or any of its
Subsidiaries required to approve this Agreement, the Merger and the other
transactions contemplated hereby.
Section 5.14 ACCOUNTING MATTERS. Neither UCU nor, to UCU's best
knowledge, any of its Affiliates has taken or agreed to take any action that
would prevent the Company from accounting for the transactions to be effected
pursuant to this Agreement as a pooling of interests in accordance with GAAP and
applicable SEC regulations.
Section 5.15 ARTICLE EIGHT OF UCU'S CERTIFICATE OF INCORPORATION.
The provisions of Article Eight of UCU's Certificate of Incorporation will not,
prior to the termination of this Agreement, assuming the accuracy of the
representation contained in Section 4.18 (without giving effect to the knowledge
qualification thereof), apply to this Agreement, the Merger or to the
transactions contemplated hereby.
Section 5.16 OPINION OF FINANCIAL ADVISOR. UCU has received the
opinion of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation ("DLJ"), dated
the date hereof, to the effect that, as of the date thereof, the UCU Conversion
Ratio is fair from a financial point of view to the holders of UCU Common Stock.
Section 5.17 INSURANCE. Except as set forth in Section 5.17 of the
UCU Disclosure Schedule, UCU and each of the UCU Subsidiaries is, and has been
continuously since January 1, 1991, insured with financially responsible
insurers in such amounts and against such risks and losses as are customary in
all material respects for companies conducting the business as conducted by UCU
and the UCU Subsidiaries during such time period. Except as set forth in
Section 5.17 of the UCU Disclosure Schedule, neither UCU nor any of the UCU
Subsidiaries has received any notice of cancellation or termination with respect
to any material insurance policy of UCU or any of the UCU Subsidiaries. The
insurance policies of UCU and each of the UCU Subsidiaries are valid and
enforceable policies in all material respects.
Section 5.18 UCU NOT AN INTERESTED SHAREHOLDER. As of the date
hereof, neither UCU nor, to its reasonable knowledge, any of its Affiliates, is
an "Interested Shareholder" as such term is defined in Article Twelfth of KCPL's
Restated Articles of Consolidation.
29
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
Section 6.1 COVENANTS OF THE PARTIES. After the date hereof and
prior to the Effective Time or earlier termination of this Agreement, KCPL and
UCU each agree as follows, each as to itself and to each of the KCPL
Subsidiaries and the UCU Subsidiaries, as the case may be, except as expressly
contemplated or permitted in this Agreement or to the extent the other parties
hereto shall otherwise consent in writing, which decision regarding consent
shall be made as soon as reasonably practical:
(a) ORDINARY COURSE OF BUSINESS. Each party hereto shall, and shall
cause its respective Subsidiaries to, carry on their respective businesses in
the usual, regular and ordinary course in substantially the same manner as
heretofore conducted and use all commercially reasonable efforts to preserve
intact their present business organizations and goodwill, preserve the goodwill
and relationships with customers, suppliers and others having business dealings
with them and, subject to prudent management of work force needs and ongoing
programs currently in force, keep available the services of their present
officers and employees, provided, however, that nothing shall prohibit either
party or any of its Subsidiaries from transferring operations to such party or
any of its wholly owned Subsidiaries. Except as set forth in Section 6.1(a) of
the KCPL Disclosure Schedule or Section 6.1(a) of the UCU Disclosure Schedule,
respectively, no party shall, nor shall any party permit any of its respective
Subsidiaries to, enter into a new line of business involving any material
investment of assets or resources or any material exposure to liability or loss,
in the case of KCPL, to KCPL and the KCPL Subsidiaries taken as a whole, and in
the case of UCU, to UCU and the UCU Subsidiaries taken as a whole; provided,
however, that notwithstanding the above, a party or any of its respective
Subsidiaries may enter into a new line of business to the extent the investment
(which shall include the amount of equity invested plus the amount of
indebtedness incurred, assumed, or otherwise owed by or with recourse to UCU or
KCPL, as the case may be) in a new line of business does not exceed $10 million,
individually, and $25 million, in the aggregate, for all such investments during
any fiscal year;
(b) DIVIDENDS. No party shall, nor shall any party permit any of its
respective Subsidiaries to, (i) declare or pay any dividends on or make other
distributions in respect of any of their capital stock other than to such party
or its wholly owned Subsidiaries and other than (A) dividends required to be
paid on any UCU Preferred Stock or KCPL Preferred Stock in accordance with the
respective terms thereof, (B) regular quarterly dividends on KCPL Common Stock
with usual record and payment dates not, during any period of any fiscal year,
in excess of 105% of the dividends for the comparable period of the prior fiscal
year, (C) regular quarterly dividends on UCU Common Stock with usual record and
payment dates not, during any period of any fiscal year, in excess of 105% of
the dividends for the comparable period of the prior fiscal year and (D)
dividends by Aquila Gas Pipeline Corporation, UtiliCorp U.K., Inc., UtiliCorp
U.K. Limited, West Kootenay Power Ltd., UtiliCorp N.Z., Inc. and any
Subsidiaries of such entities, (ii) split, combine or reclassify any of their
capital stock or issue or authorize or propose the issuance of any other
securities in respect of, in lieu of, or in substitution for, shares of their
30
capital stock or (iii) redeem, repurchase or otherwise acquire any shares of
their capital stock, other than (A) redemptions, purchases or acquisitions
required by the respective terms of any series of KCPL Preferred Stock, or (B)
for the purpose of funding employee stock ownership plans in accordance with
past practice. Notwithstanding the foregoing, KCPL may redeem the KCPL
Preferred Stock pursuant to the provisions of Section 2.1(c), and UCU may redeem
the UCU Preferred Stock pursuant to the provisions of Section 2.1(e). The last
record date of each of KCPL and UCU on or prior to the Effective Time which
relates to a regular quarterly dividend on KCPL Common Stock or UCU Common
Stock, as the case may be, shall be the same date and shall be prior to the
Effective Time.
(c) ISSUANCE OF SECURITIES. Except as set forth in Section 6.1(c) of
the KCPL Disclosure Schedule or Section 6.1(c) of the UCU Disclosure Schedule,
no party shall, nor shall any party permit any of its Subsidiaries to, issue,
agree to issue, deliver, sell, award, pledge, dispose of or otherwise encumber
or authorize or propose the issuance, delivery, sale, award, pledge, disposal or
other encumbrance of, any shares of their capital stock of any class or any
securities convertible into or exchangeable for, or any rights, warrants or
options to acquire, any such shares or convertible or exchangeable securities,
other than (i) intercompany issuances of capital stock and (ii) issuances (A) in
the case of UCU and the UCU Subsidiaries, of up to 2,000,000 shares of UCU
Common Stock during any fiscal year to be issued pursuant to employee benefit
plans, stock option and other incentive compensation plans, directors plans and
stock purchase and dividend reinvestment plans and (B) in the case of KCPL and
the KCPL Subsidiaries, of up to 2,000,000 shares of KCPL Common Stock during any
fiscal year to be issued pursuant to employee benefit plans, stock option and
other incentive compensation plans, directors plans and stock purchase and
dividend reinvestment plans. The parties shall promptly furnish to each other
such information as may be reasonably requested including financial information
and take such action as may be reasonably necessary and otherwise fully
cooperate with each other in the preparation of any registration statement under
the Securities Act and other documents necessary in connection with issuance of
securities as contemplated by this Section 6.1(c), subject to obtaining
customary indemnities.
(d) CHARTER DOCUMENTS. No party shall amend or propose to amend its
respective charter, by-laws or regulations, or similar organic documents, except
as contemplated herein.
(e) NO ACQUISITIONS. Except as set forth in Section 6.1(e) of the
KCPL Disclosure Schedule or Section 6.1(e) the UCU Disclosure Schedule, other
than individual acquisitions by (i) KCPL and the KCPL Subsidiaries the
consummation of which would not exceed $25 million of equity invested nor
require the approval of the Board of Directors of KCPL, provided, that, the
aggregate equity invested in all such acquisitions pursuant to this clause (e)
shall not exceed $150 million of equity invested during any fiscal year, or (ii)
UCU and the UCU Subsidiaries the consummation of which would not exceed $25
million of equity invested nor require the approval of the Board of Directors of
UCU, provided, that, the aggregate equity invested in all such acquisitions
pursuant to this clause (e) shall not exceed $150 million of equity invested
during any fiscal year, no party shall, nor shall any party permit any of its
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Subsidiaries to, acquire, or publicly propose to acquire, or agree to acquire,
by merger or consolidation with, or by purchase or otherwise, an equity interest
in or a substantial portion of the assets of, any business or any corporation,
partnership, association or other business organization or division thereof, nor
shall any party acquire or agree to acquire a material amount of assets other
than in the ordinary course of business consistent with past practice.
(f) CAPITAL EXPENDITURES. Except as set forth in Section 6.1(f) of
the KCPL Disclosure Schedule or Section 6.1(f) of the UCU Disclosure Schedule or
as required by law, no party shall, nor shall any party permit any of its
Subsidiaries to, make capital expenditures during any fiscal year in excess of
125% of the amount budgeted for such fiscal year by such party for capital
expenditures as set forth in Section 6.1(f) of the KCPL Disclosure Schedule or
Section 6.1(f) of the UCU Disclosure Schedule.
(g) NO DISPOSITIONS. Except as set forth in Section 6.1(g) of the
KCPL Disclosure Schedule or 6.1(g) of the UCU Disclosure Schedule, other than
dispositions by a party or its Subsidiaries of less than $25 million in sales
price and indebtedness assumed by the acquiring party and its Affiliates,
singularly or in the aggregate during any fiscal year, no party shall, nor shall
any party permit any of its Subsidiaries to, sell or dispose of any of its
assets other than dispositions in the ordinary course of its business consistent
with past practice.
(h) INDEBTEDNESS. Except as contemplated by this Agreement, no party
shall, nor shall any party permit any of its respective Subsidiaries to, incur
or guarantee any indebtedness (including any debt borrowed or guaranteed or
otherwise assumed including, without limitation, the issuance of debt securities
or warrants or rights to acquire debt) or enter into any "keep well" or other
agreement to maintain any financial statement condition of another person or
entity or enter into any arrangement having the economic effect of any of the
foregoing other than (i) indebtedness or guarantees or "keep well" or other
agreements in the ordinary course of business consistent with past practice
(such as the issuance of commercial paper, the use of existing credit facilities
or hedging activities), (ii) other indebtedness or "keep well" or other
agreements not aggregating more than $250 million, (iii) arrangements between
such party and its Subsidiaries or among its Subsidiaries, (iv) as set forth in
Section 6.1(h) of the KCPL Disclosure Schedule or Section 6.1(h) of the UCU
Disclosure Schedule, (v) in connection with the refunding of existing
indebtedness, (vi) in connection with the redemption of the KCPL Preferred Stock
as set forth in Section 2.1(c), (vii) in connection with the redemption of the
UCU Preferred Stock as set forth in Section 2.1(e) or (viii) as may be necessary
in connection with acquisitions permitted by Section 6.1(e) or capital
expenditures permitted by Section 6.1(f).
(i) COMPENSATION, BENEFITS. Except as set forth in Section 6.1(i) of
the KCPL Disclosure Schedule or Section 6.1(i) of the UCU Disclosure Schedule,
as may be required by applicable law or as contemplated by this Agreement, no
party shall, nor shall any party permit any of its Subsidiaries to, (i) enter
into, adopt or amend or increase the amount or accelerate the payment or vesting
of any benefit or amount payable under, any employee benefit plan or other
contract, agreement, commitment, arrangement, plan, trust, fund or policy
maintained by, contributed to or entered into by such party or any of its
Subsidiaries or increase, or enter into any
32
contract, agreement, commitment or arrangement to increase in any manner, the
compensation or fringe benefits, or otherwise to extend, expand or enhance the
engagement, employment or any related rights, of any director, officer or other
employee of such party or any of its Subsidiaries, except for normal increases
in the ordinary course of business consistent with past practice that, in the
aggregate, do not result in a material increase in benefits or compensation
expense to such party or any of its Subsidiaries; (ii) enter into or amend any
employment, severance or special pay arrangement with respect to the termination
of employment or other similar contract, agreement or arrangement with any
director or officer or other employee other than in the ordinary course of
business consistent with past practice; or (iii) deposit into any trust
(including any "rabbi trust") amounts in respect of any employee benefit
obligations or obligations to directors; provided that transfers into any trust,
other than a rabbi or other trust with respect to any non-qualified deferred
compensation, may be made in accordance with past practice.
(j) 1935 ACT. Except as set forth in Section 6.1(j) of the KCPL
Disclosure Schedule or Section 6.1(j) of the UCU Disclosure Schedule, no party
shall, nor shall any party permit any of its Subsidiaries to, except as required
or contemplated by this Agreement, engage in any activities which would cause a
change in its status, or that of its Subsidiaries, under the 1935 Act.
(k) ACCOUNTING. Except as set forth in Section 6.1(k) of the KCPL
Disclosure Schedule or Section 6.1(k) of the UCU Disclosure Schedule, no party
shall, nor shall any party permit any of its Subsidiaries to, make any changes
in their accounting methods, except as required by law, rule, regulation or
GAAP.
(l) POOLING. No party shall, nor shall any party permit any of its
Subsidiaries to, take any action which would, or would be reasonably likely to,
prevent the Company from accounting for the transactions to be effected pursuant
to this Agreement as a pooling-of-interests in accordance with GAAP and
applicable SEC regulations, and each party hereto shall use all reasonable
efforts to achieve such result (including taking such commercially reasonable
actions as may be necessary to cure any facts or circumstances that could
prevent such transactions from qualifying for pooling-of-interests accounting
treatment).
(m) TAX-FREE STATUS. No party shall, nor shall any party permit any
of its Subsidiaries to, take any actions which would, or would be reasonably
likely to, adversely affect the status of the Merger as a reorganization under
Section 368(a) of the Code, and each party hereto shall use all reasonable
efforts to achieve such result.
(n) AFFILIATE TRANSACTIONS. Except as set forth in Section 6.1(n) of
the KCPL Disclosure Schedule or Section 6.1(n) of the UCU Disclosure Schedule,
no party shall, nor shall any party permit any of its Subsidiaries to, enter
into any material agreement or arrangement with any of their respective
Affiliates (other than wholly owned Subsidiaries) or, in the case of UCU, the
UCU Joint Ventures, or, in the case of KCPL, the KCPL Joint Ventures on terms
materially less favorable to such party than could be reasonably expected to
have been obtained with an unaffiliated third-party on an arm's length basis.
33
(o) COOPERATION, NOTIFICATION. Each party shall (i) confer on a
regular and frequent basis with one or more representatives of the other party
to discuss, subject to applicable law, material operational matters and the
general status of its ongoing operations, (ii) promptly notify the other party
of any significant changes in its business, properties, assets, condition
(financial or other), results of operations or prospects, (iii) promptly advise
the other party of any change or event which has had or, insofar as reasonably
can be foreseen, is reasonably likely to result in, in the case of KCPL, a KCPL
Material Adverse Effect or, in the case of UCU, a UCU Material Adverse Effect
and (iv) promptly provide the other party with copies of all filings made by
such party or any of its Subsidiaries with any state or federal court,
administrative agency, commission or other Governmental Authority in connection
with this Agreement and the transactions contemplated hereby.
(p) RATE MATTERS. Subject to applicable law, each of KCPL and UCU
shall, and shall cause its respective Subsidiaries to, discuss with the other
any changes in its or its Subsidiaries' rates or the services it provides or
charges (other than pass-through fuel and gas rates or charges), standards of
service or accounting from those in effect on the date hereof and consult with
the other prior to making any filing (or any amendment thereto), or effecting
any agreement, commitment, arrangement or consent with governmental regulators,
whether written or oral, formal or informal, with respect thereto, and no party
will make any filing to change its rates or the services it provides on file
with the FERC that would have a material adverse effect on the benefits
associated with the business combination provided for herein.
(q) THIRD-PARTY CONSENTS. KCPL shall, and shall cause its
Subsidiaries to, use all commercially reasonable efforts to obtain all KCPL
Required Consents. KCPL shall promptly notify UCU of any failure or prospective
failure to obtain any such consents and, if requested by UCU, shall provide
copies of all KCPL Required Consents obtained by KCPL to UCU. UCU shall, and
shall cause its Subsidiaries to, use all commercially reasonable efforts to
obtain all UCU Required Consents. UCU shall promptly notify KCPL of any failure
or prospective failure to obtain any such consents and, if requested by KCPL,
shall provide copies of all UCU Required Consents obtained by UCU to KCPL.
(r) NO BREACH, ETC. No party shall, nor shall any party permit any
of its Subsidiaries to, willfully take any action that would or is reasonably
likely to result in a material breach of any provision of this Agreement or in
any of its representations and warranties set forth in this Agreement being
untrue on and as of the Closing Date.
(s) TAX-EXEMPT STATUS. No party shall, nor shall any party permit
any Subsidiary to, take any action that would likely jeopardize the
qualification of KCPL's or UCU's outstanding revenue bonds which qualify on the
date hereof under Section 142(a) of the Code as "exempt facility bonds" or as
tax-exempt industrial development bonds under Section 103(b) (4) of the Internal
Revenue Code of 1954, as amended, prior to the Tax Reform Act of 1986.
(t) TRANSITION MANAGEMENT. As soon as practicable after the date
hereof, the parties shall create a special transition management task force (the
"TASK FORCE"), which shall
34
be jointly headed by Xxxxxx White and Xxxxxxx X. Xxxxx. The Task Force shall
examine various alternatives regarding the manner in which to best organize and
manage the business of the Company after the Effective Time, subject to
applicable law. Xxxxxx White and Xxxxxxx X. Xxxxx will have joint decision-
making authority regarding the Task Force.
(u) CONTRACTS. No party shall, nor shall any party permit any of its
respective Subsidiaries to, except in the ordinary course of business consistent
with past practice, modify, amend, terminate, renew or fail to use reasonable
business efforts to renew any material contract or agreement to which such party
or any Subsidiary of such party is a party or waive, release or assign any
material rights or claims.
(v) INSURANCE. Each party shall, and shall cause its Subsidiaries
to, maintain with financially responsible insurance companies insurance in such
amounts and against such risks and losses as are customary for companies engaged
in the electric and gas utility industry and employing methods of generating
electric power and fuel sources similar to those methods employed and fuels used
by such party or its Subsidiaries.
(w) PERMITS. Each party shall, and shall cause its Subsidiaries to,
use reasonable efforts to maintain in effect all existing governmental permits
which are material to the operations of such party or its Subsidiaries.
(x) TAX MATTERS. Except as set forth in Section 6.1(x) of the KCPL
Disclosure Schedule or Section 6.1(x) of the UCU Disclosure Schedule, neither
party shall (i) make or rescind any material express or deemed election relating
to taxes unless such election will have the effect of minimizing the tax
liabilities of KCPL or UCU or any of the their respective Subsidiaries,
including elections for any and all joint ventures, partnerships, limited
liability companies, working interests or other investments where KCPL or UCU
has the capacity to make such binding elections, (ii) settle or compromise any
material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to taxes unless such settlement or
compromise results in (A) a change in taxable income or tax liability that will
reverse in future periods and is therefore, by its nature, a timing difference
or (B) a change in taxable income or tax liability that will not reverse in
future periods and is therefore, by its nature, a permanent difference unless
the tax liability resulting from the increase is less than $1 million, or (iii)
change in any material respect any of its methods of reporting income or
deductions for federal income tax purposes from those employed in the
preparation of its federal income tax return for the taxable year ending
December 31, 1994, except as may be required by applicable law or except for
such changes that would reduce consolidated federal taxable income or
alternative minimum taxable income.
(y) DISCHARGE OF LIABILITIES. No party shall, nor shall any party
permit any of its respective Subsidiaries to, pay, discharge or satisfy any
material claims, liabilities or obligations (absolute, accrued, asserted or
unasserted, contingent or otherwise), other than the payment, discharge or
satisfaction, in the ordinary course of business consistent with past practice
(which includes the payment of final and unappealable judgments) or in
accordance with their
35
terms, of liabilities reflected or reserved against in, or contemplated by, the
most recent consolidated financial statements (or the notes thereto) of such
party included in such party's reports filed with the SEC, or incurred in the
ordinary course of business consistent with past practice.
ARTICLE VII
ADDITIONAL AGREEMENTS
Section 7.1 ACCESS TO INFORMATION. Upon reasonable notice, each
party shall, and shall cause its Subsidiaries to, afford to the officers,
directors, employees, accountants, counsel, investment bankers, financial
advisors and other representatives of the other (collectively,
"REPRESENTATIVES") reasonable access, during normal business hours throughout
the period prior to the Effective Time, to all of its properties, books,
contracts, commitments and records (including, but not limited to, Tax Returns)
and, during such period, each party shall, and shall cause its Subsidiaries to,
furnish promptly to the other (i) access to each report, schedule and other
document filed or received by it or any of its Subsidiaries pursuant to the
requirements of federal or state securities laws or filed with or sent to the
SEC, the FERC, the NRC, the Department of Justice, the Federal Trade Commission,
or any other federal or state regulatory agency or commission and (ii) access to
all information concerning themselves, their Subsidiaries, directors, officers
and shareholders and such other matters as may be reasonably requested by the
other party in connection with any filings, applications or approvals required
or contemplated by this Agreement or for any other reason related to the
transactions contemplated by this Agreement. Each party shall provide access to
those premises, documents, reports and information described above of
Subsidiaries of such party that are not Subsidiaries to the extent such party
has or is able to obtain such access. Each party shall, and shall cause its
Subsidiaries and Representatives to, hold in strict confidence all documents and
information concerning the other furnished to it in connection with the
transactions contemplated by this Agreement in accordance with the
Confidentiality Agreement, dated November 28, 1995, between KCPL and UCU, as it
may be amended from time to time (the "CONFIDENTIALITY AGREEMENT").
Section 7.2 JOINT PROXY STATEMENT AND REGISTRATION STATEMENT.
(a) PREPARATION AND FILING. The parties will prepare and file with
the SEC as soon as reasonably practicable after the date hereof the Registration
Statement and the Proxy Statement (together, the "JOINT PROXY/REGISTRATION
STATEMENT"). The parties hereto shall each use reasonable efforts to cause the
Registration Statement to be declared effective under the Securities Act as
promptly as practicable after such filing. Each party hereto shall also take
such action as may be reasonably required to cause the shares of Company Common
Stock and Company Preferred Stock issuable in connection with the Merger to be
registered or to obtain an exemption from registration under applicable state
"blue sky" or securities laws; PROVIDED, HOWEVER, that no party shall be
required to register or qualify as a foreign corporation or to take other action
which would subject it to service of process in any jurisdiction where the
Company will not be,
36
following the Merger, so subject. Each of the parties hereto shall furnish all
information concerning itself which is required or customary for inclusion in
the Joint Proxy/Registration Statement. The parties shall use reasonable
efforts to cause the shares of Company Common Stock issuable in the Merger to be
approved for listing on the NYSE upon official notice of issuance. The
information provided by any party hereto for use in the Joint Proxy/Registration
Statement shall be true and correct in all material respects without omission of
any material fact which is required to make such information not false or
misleading. No representation, covenant or agreement is made by any party
hereto with respect to information supplied by any other party for inclusion in
the Joint Proxy Statement/Registration Statement.
(b) LETTER OF KCPL'S ACCOUNTANTS. KCPL shall use best efforts to
cause to be delivered to UCU letters of Coopers & Xxxxxxx, dated a date within
two business days before the date of the Joint Proxy/Registration Statement, and
addressed to UCU, in form and substance reasonably satisfactory to UCU and
customary in scope and substance for "cold comfort" letters delivered by
independent public accountants in connection with registration statements on
Form S-4.
(c) LETTER OF UCU'S ACCOUNTANTS. UCU shall use best efforts to cause
to be delivered to KCPL a letter of Xxxxxx Xxxxxxxx & Co., dated a date within
two business days before the date of the Joint Proxy/Registration Statement, and
addressed to KCPL, in form and substance reasonably satisfactory to KCPL and
customary in scope and substance for "cold comfort" letters delivered by
independent public accountants in connection with registration statements on
Form S-4.
(d) FAIRNESS OPINIONS. It shall be a condition to the mailing of the
Joint Proxy/Registration Statement to the shareholders of KCPL and UCU that (i)
KCPL shall have received an opinion from Xxxxxxx Xxxxx, dated the date of the
Joint Proxy/Registration Statement, to the effect that, as of the date thereof,
the KCPL Conversion Ratio is fair from a financial point of view to the holders
of KCPL Common Stock and (ii) UCU shall have received an opinion from DLJ, dated
the date of the Joint Proxy/Registration Statement, to the effect that, as of
the date thereof, the UCU Conversion Ratio is fair from a financial point of
view to the holders of UCU Common Stock.
Section 7.3 REGULATORY MATTERS.
(a) HSR FILINGS. Each party hereto shall file or cause to be filed
with the Federal Trade Commission and the Department of Justice any
notifications required to be filed by their respective "ultimate parent"
companies under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR ACT"), and the rules and regulations promulgated thereunder
with respect to the transactions contemplated hereby. Such parties will use all
commercially reasonable efforts to make such filings promptly and to respond on
a timely basis to any requests for additional information made by either of such
agencies.
37
(b) OTHER REGULATORY APPROVALS. Each party hereto shall cooperate
and use its best efforts to promptly prepare and file all necessary
documentation, to effect all necessary applications, notices, petitions, filings
and other documents, and to use all commercially reasonable efforts to obtain
all necessary permits, consents, approvals and authorizations of all
Governmental Authorities necessary or advisable to obtain the KCPL Required
Statutory Approvals and the UCU Required Statutory Approvals.
Section 7.4 SHAREHOLDER APPROVAL.
(a) APPROVAL OF UCU SHAREHOLDERS. Subject to the provisions of
Section 7.4(c) and Section 7.4(d), UCU shall, as soon as reasonably practicable
after the date hereof (i) take all steps necessary to duly call, give notice of,
convene and hold a meeting of its shareholders (the "UCU MEETING") for the
purpose of securing the UCU Shareholders' Approval, (ii) distribute to its
shareholders the joint Proxy Statement in accordance with applicable federal and
state law and with its Restated Articles of Consolidation and by-laws, (iii)
subject to the fiduciary duties of its Board of Directors, recommend to its
shareholders the approval of the Merger, this Agreement and the transactions
contemplated hereby and (iv) cooperate and consult with KCPL with respect to
each of the foregoing matters.
(b) APPROVAL OF KCPL SHAREHOLDERS. Subject to the provisions of
Section 7.4(c) and Section 7.4(d), KCPL shall, as soon as reasonably practicable
after the date hereof (i) take all steps necessary to duly call, give notice of,
convene and hold a meeting of its shareholders (the "KCPL MEETING") for the
purpose of securing the KCPL Shareholders' Approval, (ii) distribute to its
shareholders the Proxy Statement in accordance with applicable federal and state
law and with its Certificate of Incorporation and by-laws, (iii) subject to the
fiduciary duties of its Board of Directors, recommend to its shareholders the
approval of the Merger, this Agreement and the transactions contemplated hereby
and (iv) cooperate and consult with UCU with respect to each of the foregoing
matters.
(c) MEETING DATE. The UCU Meeting for the purpose of securing the
UCU Shareholders' Approval and the KCPL Meeting for the purpose of securing the
KCPL Shareholders' Approval shall be held on such date as KCPL and UCU shall
mutually determine.
(d) FAIRNESS OPINIONS NOT WITHDRAWN. It shall be a condition to the
obligation of KCPL to hold the KCPL Meeting that the opinion of Xxxxxxx Xxxxx,
referred to in Section 7.2(d), shall not have been withdrawn, and it shall be a
condition to the obligation of UCU to hold the UCU Meeting that the opinion of
DLJ, referred to in Section 7.2(d), shall not have been withdrawn.
Section 7.5 DIRECTORS' AND OFFICERS' INDEMNIFICATION.
(a) INDEMNIFICATION. To the extent, if any, not provided by an
existing right of indemnification or other agreement or policy, from and after
the Effective Time, the Company shall, to the fullest extent permitted by
applicable law, indemnify, defend and hold harmless each
38
person who is now, or has been at any time prior to the date hereof, or who
becomes prior to the Effective Time, an officer, director or employee of any of
the parties hereto or any Subsidiary (each an "INDEMNIFIED PARTY" and
collectively, the "INDEMNIFIED PARTIES") against (i) all losses, expenses
(including reasonable attorney's fees and expenses), claims, damages or
liabilities or, subject to the proviso of the next succeeding sentence, amounts
paid in settlement, arising out of actions or omissions occurring at or prior to
the Effective Time (and whether asserted or claimed prior to, at or after the
Effective Time) that are, in whole or in part, based on or arising out of the
fact that such person is or was a director, officer or employee of such party
(the "INDEMNIFIED LIABILITIES"), and (ii) all Indemnified Liabilities to the
extent they are based on or arise out of or pertain to the transactions
contemplated by this Agreement. In the event of any such loss, expense, claim,
damage or liability (whether or not arising before the Effective Time), (i) the
Company shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Parties, which counsel shall be reasonably satisfactory to the
Company, promptly after statements therefor are received and otherwise advance
to such Indemnified Party upon request reimbursement of documented expenses
reasonably incurred, in either case to the extent not prohibited by the DGCL,
(ii) the Company will cooperate in the defense of any such matter and (iii) any
determination required to be made with respect to whether an Indemnified Party's
conduct complies with the standards set forth under the DGCL and the Certificate
of Incorporation or by-laws of the Company shall be made by independent counsel
mutually acceptable to the Company and the Indemnified Party; PROVIDED, HOWEVER,
that the Company shall not be liable for any settlement effected without its
written consent (which consent shall not be unreasonably withheld). The
Indemnified Parties as a group may retain only one law firm with respect to each
related matter except to the extent there is, in the opinion of counsel to an
Indemnified Party, under applicable standards of professional conduct, a
conflict on any significant issue between positions of such Indemnified Party
and any other Indemnified Party or Indemnified Parties.
(b) INSURANCE. For a period of six years after the Effective Time,
the Company shall cause to be maintained in effect policies of directors and
officers' liability insurance maintained by KCPL and UCU for the benefit of
those persons who are currently covered by such policies on terms no less
favorable than the terms of such current insurance coverage; PROVIDED, HOWEVER,
that the Company shall not be required to expend in any year an amount in excess
of 200% of the annual aggregate premiums currently paid by KCPL and UCU for such
insurance; and PROVIDED, FURTHER, that if the annual premiums of such insurance
coverage exceed such amount, the Company shall be obligated to obtain a policy
with the best coverage available, in the reasonable judgment of the Board of
Directors of the Company, for a cost not exceeding such amount.
(c) SUCCESSORS. In the event the Company or any of its successors or
assigns (i) consolidates with or merges into any other person or entity and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person or entity, then and in either such case,
proper provisions shall be made so that the successors and assigns of the
Company shall assume the obligations set forth in this Section 7.5.
39
(d) SURVIVAL OF INDEMNIFICATION. To the fullest extent permitted by
law, from and after the Effective Time, all rights to indemnification as of the
date hereof in favor of the employees, agents, directors and officers of KCPL,
UCU and their respective Subsidiaries with respect to their activities as such
prior to the Effective Time, as provided in their respective articles of
incorporation and by-laws in effect on the date thereof, or otherwise in effect
on the date hereof, shall survive the Merger and shall continue in full force
and effect for a period of not less than six years from the Effective Time.
(e) BENEFIT. The provisions of this Section 7.5 are intended to be
for the benefit of, and shall be enforceable by, each Indemnified Party, his or
her heirs and his or her representatives.
Section 7.6 PUBLIC ANNOUNCEMENTS. Subject to each party's
disclosure obligations imposed by law, KCPL and UCU will cooperate with each
other in the development and distribution of all news releases and other public
information disclosures with respect to this Agreement or any of the
transactions contemplated hereby and shall not issue any public announcement or
statement with respect hereto or thereto without the consent of the other party
(which consent shall not be unreasonably withheld).
Section 7.7 RULE 145 AFFILIATES. Within 30 days after the date of
this Agreement, KCPL shall identify in a letter to UCU, and UCU shall identify
in a letter to KCPL, all persons who are, and to such person's best knowledge
who will be at the Closing Date, "affiliates" of KCPL and UCU, respectively, as
such term is used in Rule 145 under the Securities Act (or otherwise under
applicable SEC accounting releases with respect to pooling-of-interests
accounting treatment). Each of KCPL and UCU shall use all reasonable efforts to
cause such respective affiliates (including any person who may be deemed to have
become such an affiliate after the date of the letter referred to in the prior
sentence) to deliver to the Company on or prior to the Closing Date a written
agreement substantially in the form attached as EXHIBIT 7.7 (each, an "AFFILIATE
AGREEMENT").
Section 7.8 EMPLOYEE AGREEMENTS AND WORKFORCE MATTERS.
(a) CERTAIN EMPLOYEE AGREEMENTS. Subject to Section 7.9, Section
7.10, Section 7.13 and Section 7.14, the Company and its Subsidiaries shall
honor, without modification, all contracts, agreements, collective bargaining
agreements and commitments of the parties prior to the date hereof that apply to
any current or former employee or current or former director of the parties
hereto; PROVIDED, HOWEVER, that this undertaking is not intended to prevent the
Company from enforcing such contracts, agreements, collective bargaining
agreements and commitments in accordance with their terms, including, without
limitation, any reserved right to amend, modify, suspend, revoke or terminate
any such contract, agreement, collective bargaining agreement or commitment.
(b) WORKFORCE MATTERS. Subject to applicable collective bargaining
agreements, for a period of 3 years following the Effective Time, any reductions
in workforce in respect of
40
employees of the Company shall be made on a fair and equitable basis, without
regard to whether employment was with KCPL or the KCPL Subsidiaries or UCU or
the UCU Subsidiaries, and any employee whose employment is terminated or job is
eliminated by the Company or any of its Subsidiaries during such period shall be
entitled to participate on a fair and equitable basis in the job opportunity and
employment placement programs offered by the Company or any of its Subsidiaries.
Any workforce reductions carried out following the Effective Time by the Company
and its Subsidiaries shall be done in accordance with all applicable collective
bargaining agreements and all laws and regulations governing the employment
relationship and termination thereof including, without limitation, the Worker
Adjustment and Retraining Notification Act and regulations promulgated
thereunder, and any comparable state or local law.
Section 7.9 EMPLOYEE BENEFIT PLANS.
(a) COMPANY PLANS. KCPL and UCU agree to cooperate and agree upon
the employee benefits plans and programs to be provided by the Company.
(b) EFFECT OF THE MERGERS. The consummation of the Merger shall not
be treated as a termination of employment for purposes of any UCU Benefit Plan
or KCPL Benefit Plan.
(c) UCU SUPPLEMENTAL CONTRIBUTORY PLAN. The UCU Supplemental
Contributory Retirement Plan shall be revised to provide that from and after the
Effective Time, the reference to "UCU Common Shares" with respect to the
"Company Stock Units," which are one of the deemed investment funds used to
measure UCU's obligations under the plan shall instead refer to "Company Common
Shares."
(d) CREDIT FOR PAST SERVICE. Without limitation of the foregoing
provisions of this Section 7.9, each participant of any KCPL Benefit Plan or UCU
Benefit Plan shall receive credit for purposes of (i) eligibility to
participate, vesting and eligibility to receive benefits under any benefit plan
of the Company or any of its subsidiaries or affiliates that replaces a KCPL
Benefit Plan or a UCU Benefit Plan, and (ii) benefit accrual under any severance
or vacation pay plan, for service credited for the corresponding purpose under
such KCPL Benefit Plan or UCU Benefit Plan; provided, however, that such
crediting of service shall not operate to duplicate any benefit to any such
participant or the funding for any such benefit.
(e) ADOPTION OF COMPANY REPLACEMENT PLANS. With respect to the KCPL
annual incentive plan (the "KCPL INCENTIVE PLAN"), the UCU annual and long-term
incentive plan (the "UCU INCENTIVE PLAN"), the KCPL long-term incentive plan
(the "KCPL INCENTIVE STOCK PLAN") and the UCU stock incentive plan (the "UCU
INCENTIVE STOCK PLAN"), the Company and its subsidiaries shall adopt replacement
plans as set forth in this Section 7.9(e) (collectively, the "COMPANY
REPLACEMENT PLANS"). Subject to shareholder approval thereof by the KCPL
shareholders and the UCU shareholders, the Company Replacement Plans shall go
into effect at the Effective Time. Upon the consummation of the Merger, no
additional obligations shall be incurred under the KCPL Incentive Plan, the UCU
Incentive Plan, the KCPL Stock Incentive Plan
41
or the UCU Incentive Stock Plan, except to the extent such obligations are
attributable to employment prior to the Effective Time and are consistent with
past practice under the applicable plan. The KCPL Incentive Plan and the UCU
Incentive Plan shall be replaced (except with respect to obligations incurred or
attributable to employment prior to the Effective Time) by a new annual bonus
plan (the "COMPANY INCENTIVE PLAN") under which bonuses, based on percentages of
base salaries and payable in cash, shares of Company Common Stock or such form
as shall be determined by the Compensation Committee of the Board of Directors
of the Company (the "COMMITTEE"), are awarded based upon the achievement of
performance goals determined in advance by the Committee. With respect to those
participants in the Company Incentive Plan who are, or who the Committee
determines are likely to be, "covered employees" within the meaning of Section
162(m) of the Code, whose compensation is likely to exceed the amount specified
in Code Section 162(m)(i), the performance goals shall be objective standards
that are approved by shareholders in accordance with the requirements for
exclusion from the limitations of Section 162(m) of the Code as performance-
based compensation. The KCPL Incentive Stock Plan and the UCU Incentive Stock
Plan shall be replaced (except with respect to obligations incurred or
attributable to employment prior to the Effective Time) by a stock compensation
plan (the "COMPANY STOCK PLAN"). The Company Stock Plan shall provide for the
grant of stock options, stock appreciation rights, restricted stock and such
other awards based upon the Company Common Stock as the Committee may determine,
subject to shareholder approval of the Company Stock Plan. The Company shall
reserve an appropriate number of shares for issuance under the Company Stock
Plan.
(f) KCPL AND UCU ACTION. With respect to each of the Company
Replacement Plans, each of KCPL and UCU shall take all corporate action
necessary or appropriate to obtain the approval of their respective shareholders
with respect to such plan prior to the Effective Time.
Section 7.10 STOCK OPTION AND OTHER STOCK PLANS.
(a) UCU STOCK OPTIONS. As of the Effective Time, each of the UCU
Stock Options which is outstanding as of the Effective Time shall be assumed by
the Company and converted into an option (or a new substitute option shall be
granted) to purchase the number of shares of Company Common Stock (rounded up to
the nearest whole share) equal to the number of shares of UCU Common Stock
subject to such option multiplied by the UCU Conversion Ratio, at an exercise
price per share of Company Common Stock (rounded down to the nearest xxxxx)
equal to the former exercise price per share of UCU Common Stock under such
option immediately prior to the Effective Time divided by the UCU Conversion
Ratio; PROVIDED, HOWEVER, that in the case of any UCU Stock Option to which
Section 421 of the Code applies by reason of its qualification under Section 422
of the Code, the conversion formula shall be adjusted, if necessary, to comply
with Section 424(a) of the Code. Except as provided above, the converted or
substituted UCU Stock Options shall be subject to the same terms and conditions
(including, without limitation, expiration date, vesting and exercise
provisions) as were applicable to UCU Stock Options immediately prior to the
Effective Time, except that the acceleration of vesting and exercisability as a
result of the Merger shall not be given effect. For
42
purposes of such terms and conditions, the Merger shall not be treated as an
event which shall affect the period for exercising UCU Stock Options. UCU Stock
Options shall not be treated as expiring as of the Effective Time solely due to
the fact that UCU shall cease to exist as of the Effective Time.
(b) KCPL STOCK OPTIONS. As of the Effective Time, each of the KCPL
Stock Options which is outstanding as of the Effective Time shall be assumed by
the Company and converted into an option (or a new substitute option shall be
granted) to purchase the number of shares of Company Common Stock (rounded up to
the nearest whole share) equal to the number of shares of KCPL Common Stock
subject to such option multiplied by the KCPL Conversion Ratio, at an exercise
price per share of Company Common Stock (rounded down to the nearest xxxxx)
equal to the former exercise price per share of KCPL Common Stock under such
option immediately prior to the Effective Time divided by the KCPL Conversion
Ratio; PROVIDED, HOWEVER, that in the case of any KCPL Stock Option to which
Section 421 of the Code applies by reason of its qualification under Section 422
of the Code, the conversion formula shall be adjusted, if necessary, to comply
with Section 424(a) of the Code. Except as provided above, the converted or
substituted KCPL Stock Options shall be subject to the same terms and conditions
(including, without limitation, expiration date, vesting and exercise
provisions) as were applicable to KCPL Stock Options immediately prior to the
Effective Time, except that the acceleration of vesting and exercisability as a
result of the Merger shall not be given effect. For purposes of such terms and
conditions, the Merger shall not be treated as an event which shall affect the
period for exercising KCPL Stock Options. KCPL Stock Options shall not be
treated as expiring as of the Effective Time solely due to the fact that KCPL
shall cease to exist as of the Effective Time. Any KCPL Stock Option that shall
expire as of the Effective Time due to the automatic exercise of a Limited Stock
Appreciation Right related to it shall not be assumed by the Company and shall
not be converted to a Company option.
(c) OTHER STOCK AWARDS. Each outstanding award under the KCPL
Incentive Stock Plan other than the KCPL Stock Options but including any
dividend or dividend equivalent rights granted pursuant to Paragraph 15.A of the
KCPL Incentive Stock Plan relating to KCPL Stock Options (the "KCPL STOCK
AWARDS"), and each outstanding award under the UCU Incentive Stock Plan other
than the UCU Stock Options (the "UCU STOCK AWARDS") shall constitute an award
based upon the same number of shares of Company Common Stock as the holder of
such KCPL Stock Award or UCU Stock Award would have been entitled to receive
pursuant to the Merger in accordance with Article II hereof had such holder been
the absolute owner, immediately before the Effective Time, of the shares of KCPL
Common Stock or UCU Common Stock on which such KCPL Stock Award or UCU Stock
Award is based, and otherwise on the same terms and conditions as governed such
KCPL Stock Award or UCU Stock Award immediately before the Effective Time (the
"COMPANY STOCK AWARDS"). At the Effective Time, the Company shall assume each
agreement relating to the KCPL Stock Awards and the UCU Stock Awards.
Notwithstanding the foregoing, this paragraph shall not be construed,
interpreted or applied so as to cause a duplication of any benefit to any
individual.
43
(d) COMPANY ACTION. As soon as practicable after the Effective Time,
the Company shall deliver to the holders of KCPL Stock Options, UCU Stock
Options, KCPL Stock Awards and UCU Stock Awards appropriate notices setting
forth such holders' rights pursuant to the Company Stock Plan and Company Stock
Awards (the "COMPANY STOCK BENEFITS") and each underlying stock award agreement,
each as assumed by the Company. As soon as practicable after the Effective Time
the Company will cause to be filed one or more registration statements on Form
S-3 or Form S-8 under the Securities Act (or any successor or other appropriate
forms), in order to register the shares of Company Common Stock issuable in
connection with the Company Stock Benefits, and the Company shall use its best
efforts to maintain the effectiveness of such registration statements (and
maintain the current status of the prospectuses contained therein) for so long
as such benefits and grants remain payable and such options remain outstanding.
At or prior to the Effective Time, the Company shall take all corporate action
necessary to reserve for issuance a sufficient number of shares of Company
Common Stock for delivery in connection with the Company Stock Benefits. The
Company shall take all corporate action necessary or appropriate to (i) obtain
shareholder approval with respect to the Company Stock Benefits to the extent
such approval is required for purposes of the Code or other applicable law, or
(ii) enable any plan pursuant to which such benefits are issued to comply with
Rule 16b-3 promulgated under the Exchange Act. With respect to those
individuals who subsequent to the Merger will be subject to the reporting
requirements under Section 16(a) of the Exchange Act with respect to equity
securities of the Company, the Company shall administer such Company Stock
Benefits, where applicable, in a manner that complies with Rule 16b-3
promulgated under the Exchange Act.
Section 7.11 NO SOLICITATIONS. From and after the date hereof, KCPL
and UCU will not, and will not authorize or permit any of their respective
Representatives to, directly or indirectly, solicit, initiate or encourage
(including by way of furnishing information) or take any other action to
facilitate knowingly any inquiries or the making of any proposal which
constitutes or may reasonably be expected to lead to an Acquisition Proposal (as
defined herein) from any person, or engage in any discussion or negotiations
relating thereto or accept any Acquisition Proposal; PROVIDED, HOWEVER, that
notwithstanding any other provision hereof, the respective party may (i) at any
time prior to the time the respective party's stockholders shall have voted to
approve this Agreement engage in discussions or negotiations with a third party
who (without any solicitation, initiation, encouragement, discussion or
negotiation, directly or indirectly, by or with the party or its Representatives
after the date hereof) seeks to initiate such discussions or negotiations and
may furnish such third party information concerning the party and its business,
properties and assets if, and only to the extent that, (A) (x) the third party
has first made an Acquisition Proposal that is financially superior to the
Merger and has demonstrated that financing for the Acquisition Proposal is
reasonably likely to be obtained (as determined in good faith in each case by
the party's Board of Directors after consultation with its financial advisors)
and (y) the party's Board of Directors shall conclude in good faith, after
considering applicable provisions of state law, on the basis of oral or written
advice of outside counsel that such action is necessary for the Board of
Directors to act in a manner consistent with its fiduciary duties under
applicable law and (B) prior to furnishing such information to or entering into
discussions or negotiations with such person or entity, such party (x) provides
prompt notice to the other
44
party to the effect that it is furnishing information to or entering into
discussions or negotiations with such person or entity and (y) receives from
such person or entity an executed confidentiality agreement in reasonably
customary form on terms not in the aggregate materially more favorable to such
person or entity than the terms contained in the Confidentiality Agreement, (ii)
comply with Rule 14e-2 promulgated under the Exchange Act with regard to a
tender or exchange offer, and/or (iii) accept an Acquisition Proposal from a
third party, provided such respective party terminates this Agreement pursuant
to Section 9.1(e) or 9.1(f), as applicable. Each party shall immediately cease
and terminate any existing solicitation, initiation, encouragement, activity,
discussion or negotiation with any parties conducted heretofore by the party or
its Representatives with respect to the foregoing. Each party hereto shall
notify the other party orally and in writing of any such inquiries, offers or
proposals (including, without limitation, the terms and conditions of any such
proposal and the identify of the person making it), within 24 hours of the
receipt thereof, shall keep the other party informed of the status and details
of any such inquiry, offer or proposal, and shall give the other party five
days' advance notice of any agreement to be entered into with or any information
to be supplied to any person making such inquiry, offer or proposal. As used
herein, "ACQUISITION PROPOSAL" shall mean a proposal or offer (other than by
another party hereto) for a tender or exchange offer, merger, consolidation or
other business combination involving the party or any material Subsidiary of the
party or any proposal to acquire in any manner a substantial equity interest in
or a substantial portion of the assets of the party or any material Subsidiary.
Section 7.12 COMPANY BOARD OF DIRECTORS. KCPL's and UCU's
respective Boards of Directors will take such action as may be necessary to
cause the number of directors comprising the full Board of Directors of the
Company at the Effective Time to be 18 persons, 9 of whom shall be designated by
KCPL prior to the Effective Time and 9 of whom shall be designated by UCU prior
to the Effective Time. The initial designation of such directors among the
three classes of the Board of Directors of the Company shall be agreed to by
KCPL and UCU, the designees of each party to be divided equally among such
classes; PROVIDED, HOWEVER, that if, prior to the Effective Time, any of such
designees shall decline or be unable to serve, the party which designated such
person shall designate another person to serve in such person's stead.
Section 7.13 COMPANY OFFICERS. At the Effective Time, pursuant to
the terms hereof and of the employment contracts referred to in Section 7.14 (a)
A. Xxxx Xxxxxxxx shall hold the position of Chairman of the Board of the Company
and shall be entitled to serve in such capacity until the annual meeting of
stockholders of the Company that occurs in 2002, at which time he shall be
entitled to serve in the position of Vice Chairman of the Board of the Company
until the end of his employment contract entered into pursuant to Section 7.14
and (b) Xxxxxxx X. Xxxxx, Xx. shall hold the positions of Vice Chairman of the
Board and Chief Executive Officer of the Company and shall be entitled to serve
in such capacities until the earlier of (i) the date of the annual meeting of
stockholders of the Company that occurs in 2002, and (ii) the date on which A.
Xxxx Xxxxxxxx shall no longer serve as Chairman of the Board, at which time he
shall be entitled to serve in the positions of Chairman of the Board and Chief
Executive Officer of the Company and to serve in all such capacities until his
successor is elected or appointed and shall
45
have qualified in accordance with the Certificate of Incorporation and By-laws
of the Company. If either of such persons is unable or unwilling to hold such
offices as set forth above his successor shall be selected by the Board of
Directors of the Company in accordance with its By-laws. The authority, duties
and responsibilities of the Chairman of the Board, Vice Chairman of the Board
and Chief Executive Officer of the Company shall be as set forth in Annex A to
A. Xxxx Xxxxxxxx and Xxxxxxx X. Xxxxx, Xx.'s employment contracts entered into
pursuant to Section 7.14.
Section 7.14 EMPLOYMENT CONTRACTS. The Company shall, as of or
prior to the Effective Time, enter into employment contracts with A. Xxxx
Xxxxxxxx and Xxxxxxx X. Xxxxx, Xx. in the forms set forth in EXHIBIT 7.14.1 and
EXHIBIT 7.14.2, respectively.
Section 7.15 POST-MERGER OPERATIONS.
(a) PRINCIPAL CORPORATE OFFICES. At the Effective Time, the
Company's principal corporate offices shall be in Kansas City, Missouri.
(b) CHARITIES. After the Effective Time, the Company shall provide
charitable contributions and community support within the service areas of the
parties and each of their respective Subsidiaries at levels substantially
comparable to the levels of charitable contributions and community support
provided by the parties and their respective Subsidiaries within their service
areas within the two-year period immediately prior to the Effective Time.
Section 7.16 EXPENSES. Subject to Section 9.3, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses, except
that those expenses incurred in connection with printing the Joint
Proxy/Registration Statement, as well as the filing fee relating thereto, shall
be shared equally by KCPL and UCU.
Section 7.17 FURTHER ASSURANCES. Each party will, and will cause
its Subsidiaries to, execute such further documents and instruments and take
such further actions as may reasonably be requested by any other party in order
to consummate the Merger in accordance with the terms hereof.
ARTICLE VIII
CONDITIONS
Section 8.1 CONDITIONS TO EACH PARTY'S OBLIGATION TO EFFECT THE
MERGER. The respective obligations of each party to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of the following
conditions, except, to the extent permitted by applicable law, that such
conditions may be waived in writing pursuant to Section 9.5 by the joint action
of the parties hereto:
46
(a) SHAREHOLDER APPROVALS. The UCU Shareholders' Approval and the
KCPL Shareholders' Approval shall have been obtained.
(b) NO INJUNCTION. No temporary restraining order or preliminary or
permanent injunction or other order by any federal or state court preventing
consummation of the Merger shall have been issued and be continuing in effect,
and the Merger and the other transactions contemplated hereby shall not have
been prohibited under any applicable federal or state law or regulation.
(c) REGISTRATION STATEMENT. The Registration Statement shall have
become effective in accordance with the provisions of the Securities Act, and no
stop order suspending such effectiveness shall have been issued and remain in
effect.
(d) LISTING OF SHARES. The shares of Company Common Stock issuable
in the Merger pursuant to Article II shall have been approved for listing on the
NYSE upon official notice of issuance.
(e) STATUTORY APPROVALS. The KCPL Required Statutory Approvals and
the UCU Required Statutory Approvals shall have been obtained at or prior to the
Effective Time, such approvals shall have become Final Orders (as defined below)
and such Final Orders shall not impose terms or conditions which, in the
aggregate, would have, or insofar as reasonably can be foreseen, could have, a
material adverse effect on the business, assets, financial condition or results
of operations of the Company and its prospective Subsidiaries taken as a whole
or which would be materially inconsistent with the agreements of the parties
contained herein. A "FINAL ORDER" means action by the relevant regulatory
authority which has not been reversed, stayed, enjoined, set aside, annulled or
suspended, with respect to which any waiting period prescribed by law before the
transactions contemplated hereby may be consummated has expired, and as to which
all conditions to the consummation of such transactions prescribed by law,
regulation or order have been satisfied.
(f) POOLING. Each of KCPL and UCU shall have received a letter of
its independent public accountants, dated the Closing Date, in form and
substance reasonably satisfactory, in each case, to KCPL and UCU, stating that
the transactions to be effected pursuant to this Agreement will qualify as a
pooling of interests transaction under GAAP and applicable SEC regulations.
(g) PERMITS. To the extent that the continued lawful operations of
the business of KCPL or any KCPL Subsidiary or UCU or any UCU Subsidiary after
the Merger require that any license, permit or other governmental approval be
transferred to the Company or issued to the Company, such licenses, permits or
other authorizations shall have been transferred or reissued to the Company at
or before the Closing Date, except where the failure to transfer or reissue such
licenses, permits or other authorizations would not have a material adverse
effect
47
on the business, assets, financial condition, results of operations or prospects
of the Company and its Subsidiaries taken as a whole immediately after the
Effective Time.
Section 8.2 CONDITIONS TO OBLIGATION OF UCU TO EFFECT THE MERGER.
The obligation of UCU to effect the Merger shall be further subject to the
satisfaction, on or prior to the Closing Date, of the following conditions,
except as may be waived by UCU in writing pursuant to Section 9.5:
(a) PERFORMANCE OF OBLIGATIONS OF KCPL. KCPL (and/or its appropriate
Subsidiaries) will have performed in all material respects its agreements and
covenants contained in or contemplated by this Agreement which are required to
be performed by it at or prior to the Effective Time.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of KCPL set forth in this Agreement shall be true and correct (i) on
and as of the date hereof and (ii) on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (except for representations and warranties that expressly speak
only as of a specific date or time which need only be true and correct as of
such date or time) except in each of cases (i) and (ii) for such failures of
representations or warranties to be true and correct (without giving effect to
any materiality qualification or standard contained in any such representations
and warranties) which, individually or in the aggregate, would not be reasonably
likely to result in a KCPL Material Adverse Effect.
(c) CLOSING CERTIFICATES. UCU shall have received a certificate
signed by the chief financial officer of KCPL, dated the Closing Date, to the
effect that, to the best of such officer's knowledge, the conditions set forth
in Section 8.2(a) and Section 8.2(b) have been satisfied.
(d) KCPL MATERIAL ADVERSE EFFECT. No KCPL Material Adverse Effect
shall have occurred and there shall exist no fact or circumstance which is
reasonably likely to have a KCPL Material Adverse Effect.
(e) TAX OPINION. UCU shall have received an opinion from Xxxxxxxxx
Xxxxxxx Xxxxxxx Weary & Xxxxxxxx X.X., counsel to UCU, in form and substance
reasonably satisfactory to UCU, dated as of the Effective Time, substantially to
the effect that (i) the Merger will constitute a reorganization for United
States federal income tax purposes within the meaning of Section 368(a) of the
Code, (ii) KCPL, UCU and the Company will each be a party to the reorganization
within the meaning of Section 368(b) of the Code, (iii) no gain or loss will be
recognized by KCPL, UCU or the Company pursuant to the Merger, and (iv) no gain
or loss will be recognized by stockholders of UCU as a result of the Merger
(except to the extent that cash is received in lieu of fractional share
interests). In rendering such opinion, Xxxxxxxxx, Xxxxxxx Xxxxxxx Weary and
Xxxxxxxx X.X., may require and rely upon representations contained in
certificates of officers of KCPL, UCU and others.
48
(f) KCPL REQUIRED CONSENTS. The KCPL Required Consents the failure
of which to obtain would have a KCPL Material Adverse Effect shall have been
obtained.
(g) AFFILIATE AGREEMENTS. The Company shall have received Affiliate
Agreements, duly executed by each "Affiliate" of KCPL, substantially in the form
of EXHIBIT 7.7, as provided in Section 7.7.
Section 8.3 CONDITIONS TO OBLIGATION OF KCPL TO EFFECT THE MERGER.
The obligation of KCPL to effect the Merger shall be further subject to the
satisfaction, on or prior to the Closing Date, of the following conditions,
except as may be waived by KCPL in writing pursuant to Section 9.5:
(a) PERFORMANCE OF OBLIGATIONS OF UCU. UCU (and/or its appropriate
Subsidiaries) will have performed in all material respects its agreements and
covenants contained in or contemplated by this Agreement which are required to
be performed by it at or prior to the Effective Time.
(b) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of UCU set forth in this Agreement shall be true and correct (i) on
and as of the date hereof and (ii) on and as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
the Closing Date (except for representations and warranties that expressly speak
only as of a specific date or time which need only be true and correct as of
such date or time) except in each of cases (i) and (ii) for such failures of
representations or warranties to be true and correct (without giving effect to
any materiality qualification or standard contained in any such representations
and warranties) which, individually or in the aggregate, would not be reasonably
likely to result in a UCU Material Adverse Effect.
(c) CLOSING CERTIFICATES. KCPL shall have received a certificate
signed by the chief financial officer of UCU, dated the Closing Date, to the
effect that, to the best of such officer's knowledge, the conditions set forth
in Section 8.3(a) and Section 8.3(b) have been satisfied.
(d) UCU MATERIAL ADVERSE EFFECT. No UCU Material Adverse Effect
shall have occurred and there shall exist no fact or circumstance which is
reasonably likely to have a UCU Material Adverse Effect.
(e) TAX OPINION. KCPL shall have received an opinion from Skadden,
Arps, Slate, Xxxxxxx & Xxxx, counsel to KCPL, in form and substance reasonably
satisfactory to KCPL, dated as of the Effective Time, substantially to the
effect that (i) the Merger will constitute a reorganization for United States
federal income tax purposes within the meaning of Section 368(a) of the Code,
(ii) KCPL, UCU and the Company will each be a party to the reorganization within
the meaning of Section 368(b) of the Code, (iii) no gain or loss will be
recognized by KCPL, UCU or the Company pursuant to the Merger, and (iv) no gain
or loss will be recognized by stockholders of KCPL as a result of the Merger
(except to the extent that cash
49
is received in lieu of fractional share interests or pursuant to the perfection
of appraisal rights by a Dissenting Holder). In rendering such opinion,
Skadden, Arps, Slate, Xxxxxxx & Xxxx, may require and rely upon representations
contained in certificates of officers of KCPL, UCU and others.
(f) UCU REQUIRED CONSENTS. The UCU Required Consents the failure of
which to obtain would have a UCU Material Adverse Effect shall have been
obtained.
(g) AFFILIATE AGREEMENTS. The Company shall have received Affiliate
Agreements, duly executed by each "Affiliate" of UCU, substantially in the form
of EXHIBIT 7.7, as provided in Section 7.7.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
Section 9.1 TERMINATION. This Agreement may be terminated at any
time prior to the Closing Date, whether before or after approval by the
shareholders of the respective parties hereto contemplated by this Agreement:
(a) by mutual written consent of the Boards of Directors of KCPL and
UCU;
(b) by either UCU or KCPL (i) if there has been (x) any breach of the
covenants and agreements contained in Section 6.1(b) to the extent such applies
to UCU or KCPL but not to their respective Subsidiaries or Section 6.1(c) of
this Agreement to the extent such applies to UCU or KCPL but not to their
respective Subsidiaries or (y) any breach of any representations, warranties,
covenants or agreements on the part of the other set forth in this Agreement,
which breaches individually or in the aggregate would result in a UCU Material
Adverse Effect or a KCPL Material Adverse Effect, as the case may be, and, in
the case of (x) or (y), which breaches have not been cured within 20 business
days following receipt by the breaching party of notice of such breach or
adequate assurance of such cure shall not have been given by or on behalf of the
breaching party within such 20 business-day period, (ii) if the Board of
Directors of the other or any committee of the Board of Directors of the other
(A) shall withdraw or modify in any adverse manner its approval or
recommendation of this Agreement or the Merger, (B) shall fail to reaffirm such
approval or recommendation upon the other's request, (C) shall approve or
recommend any acquisition of such party or a material portion of its assets or
any tender offer for shares of capital stock of such party, in each case, other
than by a party hereto or an Affiliate thereof or (D) shall resolve to take any
of the actions specified in clause (A), (B) or (C), or (iii) if any state or
federal law, order, rule or regulation is adopted or issued, which has the
effect, as supported by the written opinion of outside counsel for such party,
of prohibiting the Merger, or by any party hereto if any court of competent
jurisdiction in the United States or any state shall have issued an order,
judgment or decree permanently
50
restraining, enjoining or otherwise prohibiting the Merger, and such order,
judgment or decree shall have become final and nonappealable;
(c) by any party hereto, by written notice to the other parties, if
the Effective Time shall not have occurred on or before December 31, 1997 (the
"INITIAL TERMINATION DATE"); PROVIDED, HOWEVER, that the right to terminate the
Agreement under this Section 9.1(c) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Effective Time to occur on or before this date;
and PROVIDED, FURTHER, that if on the Initial Termination Date the conditions to
the Closing set forth in Sections 8.1(e), 8.2(f) and/or 8.3(f) shall not have
been fulfilled but all other conditions to the Closing shall be fulfilled or
shall be capable of being fulfilled, then the Initial Termination Date shall be
extended to December 31, 1998;
(d) by any party hereto, by written notice to the other parties, if
the UCU Shareholders' Approval shall not have been obtained at a duly held UCU
Meeting, including any adjournments thereof, or the KCPL Shareholders' Approval
shall not have been obtained at a duly held KCPL Meeting, including any
adjournments thereof;
(e) by KCPL, prior to the approval of this Agreement by the
shareholders of KCPL, upon five days' prior notice to UCU, if, as a result of an
Acquisition Proposal by a party other than UCU or any of its Affiliates, the
Board of Directors of KCPL determines in good faith, after considering
applicable provisions of state law, on the basis of oral or written advice of
outside counsel that acceptance of the Acquisition Proposal is necessary for the
Board of Directors to act in a manner consistent with its fiduciary duties under
applicable law; PROVIDED, HOWEVER, that (i) the Board of Directors of KCPL shall
have concluded in good faith, after considering applicable provisions of state
law and after giving effect to all concessions which may be offered by the other
party pursuant to clause (ii) below, on the basis of oral or written advice of
outside counsel that such action is necessary for the Board of Directors to act
in a manner consistent with its fiduciary duties under applicable law and (ii)
prior to any such termination, KCPL shall, and shall cause its respective
financial and legal advisors to, negotiate with UCU to make such adjustments in
the terms and conditions of this Agreement as would enable KCPL to proceed with
the transactions contemplated herein; or
(f) by UCU, prior to the approval of this Agreement by the
shareholders of UCU, upon five days' prior notice to KCPL, if, as a result of an
Acquisition Proposal by a party other than KCPL or any of its Affiliates, the
Board of Directors of UCU determines in good faith, after considering applicable
provisions of state law, on the basis of oral or written advice of outside
counsel that acceptance of the Acquisition Proposal is necessary for the Board
of Directors to act in a manner consistent with its fiduciary duties under
applicable law; PROVIDED, HOWEVER, that (i) the Board of Directors of UCU shall
have concluded in good faith, after considering applicable provisions of state
law and after giving effect to all concessions which may be offered by the other
party pursuant to clause (ii) below, on the basis of oral or written advice of
outside counsel that such action is necessary for the Board of Directors to act
in a manner consistent with its fiduciary duties under applicable law; and (ii)
prior to any such
51
termination, UCU shall, and shall cause its respective financial and legal
advisors to, negotiate with KCPL to make such adjustments in the terms and
conditions of this Agreement as would enable UCU to proceed with the
transactions contemplated herein.
Section 9.2 EFFECT OF TERMINATION. In the event of termination of
this Agreement by either KCPL or UCU pursuant to Section 9.1 there shall be no
liability on the part of either KCPL or UCU or their respective officers or
directors hereunder, except that Section 7.16 and Section 9.3, the agreement
contained in the last sentence of Section 7.1, Section 10.2 and Section 10.8
shall survive the termination.
Section 9.3 TERMINATION FEE; EXPENSES.
(a) TERMINATION FEE UPON BREACH OR WITHDRAWAL OF APPROVAL. If this
Agreement is terminated at such time that this Agreement is terminable pursuant
to Section 9.1(b)(i), then: (i) the breaching party shall promptly (but not
later than five business days after receipt of notice from the non-breaching
party) pay to the non-breaching party in cash an amount equal to $10 million in
cash, minus any such amounts as may have been previously paid by such breaching
party pursuant to this Section 9.3; provided, however, that, if this Agreement
is terminated by a party as a result of a willful breach by the other party, the
breaching party shall pay to the non-breaching party a fee equal to $35 million
in cash, minus any such amounts as may have been previously paid by such
breaching party pursuant to this Section 9.3 and (ii) if (A) at the time of the
breaching party's willful breach of this Agreement, there shall have been
previously made an Acquisition Proposal involving such party or any of its
Affiliates (whether or not such Acquisition Proposal shall have been rejected or
shall have been withdrawn prior to the time of termination) and (B) within two
and one-half years of any termination by the non-breaching party, the breaching
party or an Affiliate thereof becomes a Subsidiary of such offeror or a
Subsidiary of an Affiliate of such offeror or accepts a written offer to
consummate or consummates an Acquisition Proposal with such offeror or an
Affiliate thereof, then such breaching party (jointly and severally with its
Affiliates), upon the signing of a definitive agreement relating to such
Acquisition Proposal, or, if no such agreement is signed then at the closing
(and as a condition to the closing) of such breaching party becoming such a
Subsidiary or of such Acquisition Proposal, shall pay to the non-breaching party
an additional fee equal to $58 million in cash minus any such amount as may have
been previously paid by such breaching party pursuant to this Section 9.3.
(b) TERMINATION FEE UPON FAILURE TO OBTAIN SHAREHOLDER APPROVAL.
If this Agreement is terminated following a failure of the shareholders of any
one of the parties to grant the necessary approval described in Section 4.13 or
5.13, the party not receiving shareholder approval shall pay to the other a fee
equal to $5 million; provided that if any fee is otherwise payable or has been
paid under Section 9.3(a) or Section 9.3(c), any amounts (x) paid pursuant to
this Section 9.3(b) shall be deducted from such amounts, or (y) otherwise
payable pursuant to this Section 9.3(b) shall not be paid.
52
(c) ADDITIONAL TERMINATION FEES. If (i) this Agreement (A) is
terminated by any party pursuant to Section 9.1(e) or Section 9.1(f), (B) is
terminated in the circumstances described in Section 9.3(b) above, or (C) is
terminated as a result of such party's breach of Section 7.4, (ii) at the time
of such termination or prior to the meeting of such party's shareholders there
shall have been an Acquisition Proposal involving, such party or any of its
Affiliates (whether or not such offer shall have been rejected or shall have
been withdrawn prior to the time of such termination or of the meeting) and
(iii) within two and one-half years of any such termination described in clause
(i) above, the party or its Affiliate which is the subject of the Acquisition
Proposal (the "TARGET PARTY") becomes a Subsidiary of such offeror or accepts a
written offer to consummate or consummates an Acquisition Proposal with such
offeror or Affiliate thereof, then such Target Party (jointly and severally with
its Affiliates), upon the signing of a definitive agreement relating to such an
Acquisition Proposal, or, if no such agreement is signed then at the closing
(and as a condition to the closing) of such Target Party becoming such a
Subsidiary or of such Acquisition Proposal, shall pay to the other party a
termination fee equal to $58 million in cash minus any amounts as may have been
previously paid by the Target Party pursuant to this Section 9.3.
(d) EXPENSES. The parties agree that the agreements contained
in this Section 9.3 are an integral part of the transactions contemplated by
this Agreement and constitute liquidated damages and not a penalty.
Notwithstanding anything to the contrary contained in this Section 9.3, if one
party fails to promptly pay to the other any fee due under Sections 9.3(a), (b)
or (c), in addition to any amounts paid or payable pursuant to such sections,
the defaulting party shall pay the costs and expenses (including legal fees and
expenses) in connection with any action, including the filing of any lawsuit or
other legal action, taken to collect payment, together with interest on the
amount of any unpaid fee at the publicly announced prime rate of Citibank, N.A.
from the date such fee was required to be paid.
Section 9.4 AMENDMENT. This Agreement may be amended by the Boards
of Directors of the parties hereto, at any time before or after approval hereof
by the shareholders of KCPL and UCU and prior to the Effective Time, but after
such approvals, no such amendment shall (a) alter or change the amount or kind
of shares, rights or any of the proceedings of the treatment of shares under
Article II or (b) alter or change any of the terms and conditions of this
Agreement if any of the alterations or changes, alone or in the aggregate, would
materially adversely affect the rights of holders of KCPL Common Stock or UCU
Common Stock, except for alterations or changes that could otherwise be adopted
by the Board of Directors of the Company, without the further approval of such
shareholders, as applicable. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 9.5 WAIVER. At any time prior to the Effective Time, the
parties hereto may (a) extend the time for the performance of any of the
obligations or other acts of the other parties hereto, (b) waive any
inaccuracies in the representations and warranties contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions contained herein, to the extent permitted by applicable
law. Any
53
agreement on the part of a party hereto to any such extension or waiver shall be
valid if set forth in an instrument in writing signed on behalf of such party.
ARTICLE X
GENERAL PROVISIONS
Section 10.1 NON-SURVIVAL; EFFECT OF REPRESENTATIONS AND WARRANTIES.
No representations or warranties in this Agreement shall survive the Effective
Time, except as otherwise provided in this Agreement.
Section 10.2 BROKERS. KCPL represents and warrants that, except for
Xxxxxxx Xxxxx whose fees have been disclosed to UCU prior to the date hereof, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
KCPL. UCU represents and warrants that, except for DLJ, whose fees have been
disclosed to KCPL prior to the date hereof, no broker, finder or investment
banker is entitled to any brokerage, finder's or other fee or commission in
connection with the Merger or the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of UCU.
Section 10.3 NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given (a) when delivered
personally, (b) when sent by reputable overnight courier service, or (c) when
telecopied (which is confirmed by copy sent within one business day by a
reputable overnight courier service) to the parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(i) If to KCPL, to
Kansas City Power & Light Company
0000 Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to
Skadden, Arps, Slate, Xxxxxxx & Xxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
54
Attn: Xxxxx X. Xxxxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
(ii) if to UCU, to
UtiliCorp United Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
with a copy to
Xxxxxxxxx Xxxxxxx Xxxxxxx Weary & Xxxxxxxx X.X.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(iii) if to the Company, to
c/o Chief Executive Officer of KCPL at
the address set forth above
and
55
c/o Chief Executive Officer of UCU at
the address set forth above.
Section 10.4 MISCELLANEOUS. This Agreement (including the documents
and instruments referred to herein) (a) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and oral,
among the parties, or any of them, with respect to the subject matter hereof
other than the Confidentiality Agreement, (b) shall not be assigned by operation
of law or otherwise and (c) shall be governed by and construed in accordance
with the laws of the State of Missouri applicable to contracts executed in and
to be fully performed in such State, without giving effect to its conflicts of
law rules or principles and except to the extent the provisions of this
Agreement (including the documents or instruments referred to herein) are
expressly governed by or derive their authority from the DGCL.
Section 10.5 INTERPRETATION. When a reference is made in this
Agreement to Sections or Exhibits, such reference shall be to a Section or
Exhibit of this Agreement, respectively, unless otherwise indicated. The table
of contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "INCLUDE," "INCLUDES" or "INCLUDING" are used in
this Agreement, they shall be deemed to be followed by the words "WITHOUT
LIMITATION."
Section 10.6 COUNTERPARTS; EFFECT. This Agreement may be executed
in one or more counterparts, each of which shall be deemed to be an original,
but all of which shall constitute one and the same agreement.
Section 10.7 PARTIES' INTEREST. This Agreement shall be binding
upon and inure solely to the benefit of each party hereto, and, except for
rights of Indemnified Parties as set forth in Section 7.5, nothing in this
Agreement, express or implied, is intended to confer upon any other person any
rights or remedies of any nature whatsoever under or by reason of this
Agreement. Notwithstanding the foregoing and any other provision of this
Agreement, and in addition to any other required action of the Board of
Directors of the Company (a) a majority of the directors (or their successors)
serving on the Board of Directors of the Company who are designated by KCPL
pursuant to Section 7.12 shall be entitled during the three year period
commencing at the Effective Time (the "THREE YEAR PERIOD") to enforce the
provisions of Section 7.8, Section 7.9, Section 7.10 and Section 7.13 on behalf
of the KCPL officers, directors and employees, as the case may be, and (b) a
majority of the directors (or their successors) serving on the Board of
Directors of the Company who are designated by UCU pursuant to Section 7.12
shall be entitled during the Three Year Period to enforce the provisions of,
Sections 7.8, Section 7.9, Section 7.10 and Section 7.13 on behalf of the UCU
officers, directors and employees, as the case may be. Such directors' rights
and remedies under the preceding sentence are cumulative and are in addition to
any other rights and remedies they may have at law or in equity, but in no event
shall this Section 10.7 be deemed to impose any additional duties on any such
directors. The Company shall pay, at the time they are incurred, all costs,
fees and expenses of such directors incurred in connection with the assertion of
any rights on behalf of the persons set forth above pursuant to this Section
10.7.
56
Section 10.8 WAIVER OF JURY TRIAL AND CERTAIN DAMAGES. Each party
to this Agreement waives, to the fullest extent permitted by applicable law, (a)
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement and (b) without
limitation to Section 9.3, any right it may have to receive damages from any
other party based on any theory of liability for any special, indirect,
consequential (including lost profits) or punitive damages.
Section 10.9 ENFORCEMENT. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Missouri or in Missouri state court, this being in
addition to any other remedy to which they are entitled at law or in equity. In
addition, each of the parties hereto (a) consents to submit itself to the
personal jurisdiction of any federal court located in the State of Missouri or
any Missouri state court in the event any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny such personal jurisdiction by motion or other request
for leave from any such court and (c) agrees that it will not bring any action
relating to this Agreement or any of the transactions contemplated by this
Agreement in any court other than a federal or state court sitting in the State
of Missouri.
IN WITNESS WHEREOF, KCPL, UCU and the Company have caused this
Agreement to be signed by their respective officers thereunto duly authorized as
of the date first written above.
Kansas City Power & Light Company
Attest: By:
--------------------------- ----------------------------------
Secretary Name: A. Xxxx Xxxxxxxx
Title: Chairman of the Board, President
and Chief Executive Officer
UtiliCorp United Inc.
57
Attest: By:
------------------------- --------------------------------
Secretary Name: Xxxxxxx X. Xxxxx, Xx.
Title: Chairman of the Board, President
and Chief Executive Officer
KC United Corp.
Attest: By:
------------------------- --------------------------------
Secretary Name: A. Xxxx Xxxxxxxx
Title: President
58
EXHIBIT 1.1(c)
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
KC UNITED CORP.(1)
FIRST: The name of the Corporation is KC United Corp.
(hereinafter the "Corporation").
SECOND: The address of the registered office of the Corporation
in the State of Delaware is 0000 Xxxxxx Xxxxxx, in the City of Wilmington,
County of New Castle. The name of its registered agent at that address is The
Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any lawful
act or activity for which a corporation may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL").
FOURTH: (A) The total number of shares of all classes of
capital stock which the Corporation shall have authority to issue is 275,000,000
shares of capital stock ("Capital Stock"), consisting of 250,000,000 shares of
Common Stock, par value $0.01 per share ("Common Stock"), and 25,000,000 shares
of preferred stock, par value $0.01 per share ("Preferred Stock").
(B) Shares of the Preferred Stock of the Corporation may be
issued from time to time in one or more classes or series, each of which class
or series shall have such distinctive designation or title as shall be fixed by
the Corporation's Board of Directors (the "Board of Directors") prior to the
issuance of any shares thereof. Each such class or series of Preferred Stock
shall have such voting powers, full or limited, or no voting powers, and such
preferences and relative, participating, optional or other special rights and
such qualifications, limitations or restrictions thereof, as shall be stated in
such resolution or resolutions providing for the issue of such class or series
of Preferred Stock as may be adopted from time to time by the Board of Directors
prior to the issuance of any shares thereof pursuant to the authority hereby
expressly vested in it, all in accordance with the GCL. Except as set forth in
such resolutions, or as otherwise may be required by law, the holders of shares
of Preferred Stock shall not have any voting rights.
(C) The following series of Preferred Stock shall be issued in
exchange for the shares of the Preferred Stock (Cumulative), $2.05 Series of
UtiliCorp United Inc., a Delaware corporation, pursuant to the provisions of
that certain Agreement and Plan of Merger, dated as of January 19, 1996, among
the Corporation, UtiliCorp United Inc. and Kansas City Power & Light Company, a
Missouri corporation.
---------------
(1) Pursuant to Section 1.1 of the Agreement and Plan of Merger, the name
of the Surviving Corporation may be changed to such other name as KCPL
and UCU shall mutually agree upon.
1
(i) DESIGNATION AND NUMBER. The designation of this series
is the "Preferred Stock (Cumulative), $2.05 Series" (hereinafter, this "Series")
and the number of shares constituting such Series is 1,000,000 shares. Shares
of this Series shall have a stated value of $25.00 per share.
(ii) DIVIDENDS. The holders of this Series shall be
entitled to receive an annual cash dividend of $2.05 per share, and no more,
when, as and if declared by the Board of Directors out of funds legally
available therefor, payable quarterly on the first day of each March, June,
September and December, commencing on the first such date which is more than
fifteen calendar days after the date of original issuance of the first share of
this Series, to holders of record on the respective dates fixed for that purpose
by the Board of Directors not less than ten nor more than sixty days in advance
of payment of each dividend.
Dividends on shares of this Series shall be cumulative from and
after the date of original issuance thereof, whether or not on any scheduled
dividend payment date there shall be funds legally available for the payment of
dividends.
So long as any shares of this Series are outstanding, the
Corporation shall not pay or declare or set aside for payment any dividend
payable in cash, evidences of indebtedness, assets or property other than cash,
or capital stock of the Corporation ranking equally with or junior to this
Series in respect of dividends, or make any other distribution on any Preferred
Stock or Common Stock or any other class or series of Capital Stock of the
Corporation ranking equally with or junior to this Series in respect of
dividends, unless the Corporation has paid, or at the same time pays or provides
for the payment of, all accrued and unpaid dividends on this Series; PROVIDED,
HOWEVER, that the Corporation may pay less than all accrued and unpaid dividends
on any class or series of Capital Stock ranking equally with this Series in
respect of dividends made ratably in accordance with the respective accrued and
unpaid dividends on this Series and such class or series of Capital Stock
ranking equally with this Series in respect of dividends.
Subject to Paragraph (viii) hereof, this Series shall not rank
junior as to dividends to any other class or series of Capital Stock of the
Corporation, unless such class or series of Capital Stock of the Corporation is
by its terms expressly made equal as to dividends to this Series. This Series
shall rank senior as to dividends to the Corporation's Common Stock, and any
other class or series of Capital Stock of the Corporation which is not by its
terms expressly made equal as to dividends to this Series.
The amount of dividends "accrued" on any share of stock of this
Series at any scheduled dividend payment date shall be deemed to be the amount
of any unpaid dividends accumulated thereon to and including such dividend
payment date, whether or not earned or declared, and the amount of dividends
"accrued" on any share of stock of this Series at any date other than a
scheduled dividend payment date shall be calculated as the amount of any unpaid
dividends accumulated thereon to and including the last preceding dividend
payment date, whether or not earned or declared, plus an amount calculated on
the basis of the annual dividend rate of $2.05 for the period after such last
preceding dividend payment date to and including the date as of which the
calculation is made, based on the actual number of days elapsed.
(iii) LIQUIDATION RIGHTS. In the event of the involuntary
liquidation, dissolution or winding up of the Corporation ("Liquidation"), the
holders of this Series shall be entitled to have paid to them out of the assets
of the Corporation, before any distribution is made to or set apart
2
for the holders of any shares of Common Stock of the Corporation, or of any
other class or series of Capital Stock of the Corporation ranking junior to this
Series in respect of distribution of assets upon Liquidation, an amount equal to
$25.00 per share, plus an amount in cash equal to all dividends (whether or not
earned or declared) on such shares accrued and unpaid thereon to the date of
final distribution. After payment in cash to the holders of this Series of the
full preferential amount as aforesaid, the holders of this Series shall, as
such, have no right or claim to any of the remaining assets of the Corporation.
If, upon any Liquidation, the assets of the Corporation or
proceeds thereof distributable among the holders of shares of this Series and of
any class or series of Capital Stock of the Corporation ranking equally with
this Series as to distribution of assets upon Liquidation shall be insufficient
to pay in full the preferential amounts payable to such holders, then such
assets or the proceeds thereof shall be distributed among such holders ratably
in accordance with the respective amounts that would be payable on such shares
if all amounts payable thereof were paid in full.
Subject to Paragraph (viii) hereof, this Series shall not rank
junior as to distribution of assets upon Liquidation to any other class or
series of Capital Stock of the Corporation, unless such class or series of
Capital Stock of the Corporation is by its terms expressly made equal as to
distribution of assets upon Liquidation of this Series. This Series shall rank
senior as to distribution of assets upon Liquidation, or the voluntary
liquidation, dissolution or winding up of the Corporation ("Voluntary
Liquidation") to all shares of Common Stock and any other class or series of
Capital Stock of the Corporation which is not by its terms expressly made equal
as to distribution of assets upon Liquidation of this Series.
For purposes of this Paragraph (iii), neither (a) the acquisition
by any person of more than 50% of the outstanding shares of the Common Stock,
nor (b) the consolidation or merger of the Corporation with or into any other
corporation or the consolidation or merger of any other corporation with or into
the Corporation, nor (c) the sale, conveyance, exchange or transfer (for cash,
shares of Capital Stock, securities or other consideration) of all or
substantially all of the property and assets of the Corporation, shall be deemed
to be a Liquidation.
(iv) REDEMPTION AT OPTION OF CORPORATION; SINKING FUND.
(a) The shares of this Series shall not be redeemable before March 1, 1997. On
and after such date, the shares of this Series will be redeemable at the option
of the Corporation, by vote of the Board of Directors, in whole or in part at
any time and from time to time at a price of $25.00 per share plus a sum equal
to all dividends on such shares accrued and unpaid thereon to the date fixed for
redemption (for purposes of this Paragraph (iv) and Paragraph (v) hereof, such
date is hereinafter called the "Redemption Date").
(b) The shares of this Series shall not be
subject to a sinking fund.
(v) PROCEDURE FOR REDEMPTION PURSUANT TO PARAGRAPH (iv).
(a) (1) In the event that fewer than all of the
outstanding shares of this Series are to be redeemed at any one time pursuant to
Paragraph (iv) hereof, the number of shares to be redeemed shall be determined
by the Board of Directors and the shares to be redeemed shall be selected pro
rata or by lot as may be determined by the Board of Directors or by such other
method as may be approved by the Board of Directors to conform to any rule or
regulation of the
3
New York Stock Exchange or any other stock exchange upon which the shares of
this Series may at the time be listed.
(2) The Corporation shall cause a notice to be
mailed, first-class postage prepaid, at least thirty days, but not more than
ninety days, prior to the Redemption Date, to each holder of record of shares of
this Series to be redeemed; if less than all the shares owned by such holder are
then to be redeemed, the notice shall also specify the number of shares thereof
which are to be redeemed and the number of certificates representing such
shares. Such notice shall be mailed to such record holders at their respective
addresses as they shall appear upon the books of the Corporation and shall set
forth the Redemption Date, the redemption price per share and the place or
places for surrender of certificates for shares to be redeemed.
(3) Any notice which is mailed by the Corporation
as provided in this Paragraph (v) shall be conclusively presumed to have been
duly given, whether or not the shareholder receives such notice; and failure to
give such notice by mail, or any defect in such notice, to the holders of any
shares designated for redemption shall not affect the validity of the
proceedings for the redemption of any other shares of this Series. On or after
the Redemption Date specified in such notice, each holder of the shares called
for redemption shall surrender the certificate evidencing such shares to the
Corporation at the place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price. In case fewer than all of
the shares represented by any certificate are redeemed, a new certificate
representing the unredeemed shares shall be issued to the surrendering holder at
the expense of the Corporation. If on the Redemption Date specified in such
notice there shall have been deposited with a bank or trust company (the
"Depositary") designated by the Board of Directors and located in the City of
Kansas City, Missouri, the City of Chicago, Illinois, or the City of New York,
New York, funds having a combined capital and surplus of at least $50,000,000,
in trust for the account of the holders of the shares of this Series so called
for redemption, in an amount equal to the aggregate amount payable upon
redemption of the shares to be redeemed, together with irrevocable written
instructions and authority to the Depositary to redeem such shares on and after
such Redemption Date immediately upon the endorsement and surrender of the
certificates therefor, then, notwithstanding that the certificates evidencing
any such shares shall not have been surrendered, the dividends with respect to
the shares so called shall cease to accrue after the Redemption Date, the shares
with respect to which such deposit shall have been made shall no longer be
deemed to be outstanding, the holders thereof shall cease to be stockholders of
the Corporation, and all rights with respect to such shares shall forthwith
terminate except only the right to receive from the Depositary forthwith from
and after the date of such deposit the amount payable upon redemption of the
shares to be redeemed without interest.
(b) Any interest accrued on funds so deposited with the
Depositary shall belong to the Corporation and shall be paid to it from time to
time. All funds deposited in accordance with this Paragraph (v) which shall
remain unclaimed by the holders of shares called for redemption at the end of
six years after the Redemption Date shall be, if requested by the Board of
Directors, returned by the Depositary to the Corporation, after which the
holders of such shares shall look only to the Corporation for the payment of
such unclaimed amounts, without interest.
(c) If any dividend payment on this Series is in arrears,
no purchase or redemption shall be made of any shares of any class or series of
Capital Stock of the Corporation ranking equally with or junior to this Series
as to dividends or the distribution of assets upon Liquidation or Voluntary
Liquidation.
4
(vi) CONVERSION RIGHTS. The holders of shares of this Series
shall have no right to convert such shares into shares of any other class or
series of Capital Stock of the Corporation.
(vii) VOTING RIGHTS. (a) Unless and until dividends payable on
any shares of this Series shall be in arrears in an amount equivalent to one and
one-half times the annual dividend, or more, per share, the holders of shares of
this Series shall have no voting power or rights, except as otherwise provided
herein, by the Certificate of Incorporation of the Corporation or by law. If
and when dividends payable on any shares of this Series shall be in arrears in
an amount equivalent to one and one-half times the annual dividend or more, per
share, and thereafter until all dividends on shares of this Series in arrears
shall have been paid, the holders of this Series, together with any other class
or series of Capital Stock of the Corporation which is by its terms expressly
made equal as to dividends to this Series (for purposes of this Paragraph (vii),
this Series, together with all such other classes and series, is hereinafter
collectively referred to as the "Dividend-Equivalent Preferred Stock"), voting
as a single class separate from the holders of all other classes of Capital
Stock, shall be entitled to elect two directors. The terms of office as
directors of all persons who may be directors of the Corporation shall terminate
upon the election of directors by the holders of the Dividend-Equivalent
Preferred Stock. The holders of the Common Stock shall have the right to elect
the remaining directors of the Corporation. If the holders of the Dividend-
Equivalent Preferred Stock have not exercised their right to elect directors of
the Corporation because of the lack of a quorum consisting of the holders of a
majority of the Dividend-Equivalent Preferred Stock, then the said directors
shall be elected by the directors whose term of office is thus terminated, and
in that event, such elected directors shall hold office for the interim period,
pending such time as a quorum of the holders of the Dividend-Equivalent
Preferred Stock shall be present at a meeting held for the election of
directors.
(b) If and when all dividends then in arrears on the
Dividend-Equivalent Preferred Stock then outstanding shall be paid (and such
dividends shall be declared and paid out of any funds legally available therefor
as soon as reasonably practicable), the holders of shares of the Dividend-
Equivalent Preferred Stock shall be divested of any special right with respect
to the election of directors and the voting power of the holders of shares of
the Dividend-Equivalent Preferred Stock and the Common Stock shall revert to the
status existing before the first dividend payment date on which dividends on any
shares of the Dividend-Equivalent Preferred Stock were not paid in full, but
always subject to the same provisions for vesting such special rights in the
holders of shares of the Dividend-Equivalent Preferred Stock in case of further
like arrears in payment of dividends thereon. Upon the termination of any such
special voting right, the terms of office of all persons who may have been
elected directors of the Corporation by vote of the holders of the Dividend-
Equivalent Preferred Stock, as a class, pursuant to such special voting right
shall forthwith terminate, and the resulting vacancies shall be filled by the
vote of a majority of the remaining directors.
(c) In case of any vacancy in the office of a director
occurring among the directors elected by the holders of the Dividend-Equivalent
Preferred Stock voting as a single class separate from the holders of all other
classes of Capital Stock, the remaining director elected by the holders of the
Dividend-Equivalent Preferred Stock may elect a successor to hold office for the
unexpired term of the director whose place shall be vacant. In the event of
simultaneous vacancies among directors elected by the holders of the Dividend-
Equivalent Preferred Stock, an election by the holders of the Dividend-
Equivalent Preferred Stock, pursuant to the provisions of this Paragraph (vii),
will be held.
5
(d) Whenever the right shall have accrued to the holders of
the Dividend-Equivalent Preferred Stock to elect directors, voting as a single
class separate from the holders of all other classes of Capital Stock, then upon
request in writing signed by any holder of the Dividend-Equivalent Preferred
Stock entitled to vote, delivered by registered mail or in person, to the
President, a Vice President or Secretary of the Corporation, it shall be the
duty of such officer forthwith to cause notice to be given to the shareholders
entitled to vote at a meeting to be held at such time as such officer may fix,
not less than 10 nor more than 60 days after the receipt of such request, for
the purpose of electing directors. At all meetings of stockholders held for the
purpose of electing directors during such time as the holders of the Dividend-
Equivalent Preferred Stock shall have the special right, voting as a single
class, separate from the holders of all other classes of Capital Stock to elect
directors, the presence in person or by proxy of the holders of a majority of
the outstanding Dividend-Equivalent Preferred Stock shall be required to
constitute a quorum of such class for the election of directors, and the
presence in person or by proxy of the holders of a majority of all other classes
of Capital Stock outstanding at the time, and not entitled to such special
right, shall be required to constitute a quorum of such other classes for the
election of directors.
(viii) RESTRICTIONS ON CERTAIN CORPORATE ACTION. (a) So long as
any shares of this Series are outstanding no new class of Capital Stock shall be
created or authorized which is entitled to dividends or shares in distribution
of assets on a parity with or in priority to this Series, nor shall there be
created or authorized any securities convertible into shares of any such stock,
unless the holders of record of not less than two-thirds of the number of shares
then outstanding of the Preferred Stock of the Corporation of which this Series
forms a part (as a single class separate from the holders of all other classes
of Capital Stock) shall vote therefor in person or by proxy at the meeting of
stockholders at which the creation or authorization of such new class of Capital
Stock or such convertible securities is considered.
(b) So long as any shares of this Series are outstanding,
the Corporation shall not increase the total authorized amount of the Preferred
Stock of the Corporation of which this Series forms a part or any class of
Capital Stock which is entitled to dividends or shares in distribution of assets
on a parity with or in priority to such Preferred Stock unless the holders of
record of not less than a majority of the number of shares of such Preferred
Stock then outstanding (as a single class separate from the holders of all other
classes of Capital Stock) shall vote therefor in person or by proxy at a meeting
held pursuant to notice containing a statement of such purpose.
(ix) OTHER RIGHTS. The holders of this Series shall not have
any other preferences or special rights.
FIFTH: The following provisions are inserted for the management
of the business and the conduct of the affairs of the Corporation, and for
further definition, limitation and regulation of the powers of the Corporation,
and of its directors and stockholders:
(A) The business and affairs of the Corporation shall be managed
by or under the direction of the Board of Directors. The Board of Directors
shall consist of not less than 10 nor more than 18 members, the exact number of
which shall be fixed from time to time by the Board of Directors. The directors
shall be divided into three classes, designated Class I, Class II and Class III.
Each class shall consist, as nearly as may be possible, of one-third of the
total number of directors constituting the entire Board of Directors. The term
of the initial Class I directors shall terminate on
6
the date of the 199__ annual meeting of stockholders;(2) the term of the initial
Class II directors shall terminate on the date of the 199__ annual meeting of
stockholders;(3) and the term of the initial Class III directors shall terminate
on the date of the 199__ annual meeting of stockholders.(4) At each annual
meeting of stockholders beginning in 199__, successors to the class of directors
whose term expires at that annual meeting shall be elected for a three-year
term.(5) If the number of directors is changed, any increase or decrease shall
be apportioned among the classes so as to maintain the number of directors in
each class as nearly equal as possible, and any additional directors of any
class elected to fill a vacancy resulting from an increase in such class shall
hold office for a term that shall coincide with the remaining term of that
class, but in no case will a decrease in the number of directors shorten the
term of any incumbent director. Each director shall hold office until the
annual meeting for the year in which his term expires and until his successor
shall be elected and shall qualify, subject, however, to prior death,
resignation, retirement, disqualification or removal from office. Any vacancy
on the Board of Directors in a Class I, II or III directorship, howsoever
resulting, shall be filled by a majority of the directors then in office, even
if less than a quorum, or by a sole remaining director. Any director elected to
fill such a vacancy shall hold office for a term that shall coincide with the
term of the class to which such director shall have been elected. Elections of
directors at an annual or special meeting of stockholders shall be by written
ballot.
(B) Each of the directors of the Corporation may be removed from
office at any time, but only for cause and only by affirmative vote of the
holders of not less than eighty percent of the outstanding shares of Common
Stock.
(C) Notwithstanding the foregoing,whenever the holders of any
one or more classes or series of Preferred Stock issued by the Corporation shall
have the right, voting separately by class or series, to elect directors at an
annual or special meeting of stockholders, the election, term of office, filling
of vacancies and other features of such directorships shall be governed by the
terms of this Certificate of Incorporation or the resolution or resolutions
adopted by the Board of Directors pursuant to Article FOURTH applicable thereto,
and such directors so elected shall not be divided pursuant to this Article
FIFTH into classes with the directors elected by the holders of Common Stock
unless expressly provided by such terms.
(D) In furtherance and not in limitation of the powers conferred
by statute, the Board of Directors is expressly authorized to make, adopt,
alter, amend, change or repeal the Bylaws of the Corporation. Stockholders may
not make, adopt, alter, amend, change or repeal the Bylaws of the Corporation,
except upon the affirmative vote of the holders of not less than eighty percent
of the outstanding shares of Common Stock.
(E) Any action required or permitted to be taken at any annual
or special meeting of the holders of Common Stock may be taken only upon the
vote of such holders at an annual or
---------------
(2) Insert year of first annual meeting following the Effective Time of
the Merger.
(3) Insert year of second annual meeting following the Effective Time of
the Merger.
(4) Insert year of third annual meeting following the Effective Time of
the Merger.
(5) Insert year of fourth annual meeting following the Effective Time of
the Merger.
7
special meeting duly noticed and called, as provided in the Certificate of
Incorporation or the Bylaws of the Corporation, and may not be taken by a
written consent of such holders in lieu of such meeting.
(F) No director shall be personally liable to the Corporation or
any of its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director's duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) pursuant to Section 174 of the GCL or (iv) for any transaction from
which the director derived an improper personal benefit. Any repeal or
modification of this Section (F) by the stockholders of the Corporation shall
not adversely affect any right or protection of a director of the Corporation
existing at the time of such repeal or modification with respect to acts or
omissions occurring prior to such repeal or modification.
(G) Special meetings of the stockholders of the Corporation for
any purpose or purposes may be called at any time by a majority of the Board of
Directors, the Chairman of the Board of Directors, the Vice Chairman, the Chief
Executive Officer, the President or the Chief Operating Officer of the
Corporation. Special meetings of the stockholders of the Corporation may not be
called by any other person or persons.
(H) In addition to the powers and authority hereinbefore or by
statute expressly conferred upon them, the directors are hereby empowered to
exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the GCL,
this Certificate of Incorporation, and any Bylaws adopted by the Board of
Directors or the holders of Common Stock in accordance with the provisions of
this Certificate of Incorporation; PROVIDED, HOWEVER, that no Bylaws hereafter
adopted by the holders of Common Stock shall invalidate any prior act of the
directors which would have been valid if such Bylaws had not been adopted.
SIXTH: Subject to Article VIII of the Corporations's Bylaws, the
Corporation shall indemnify to the full extent permitted by law (as now or
hereafter in effect), any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative by reason of the fact
that he is or was a director or officer of the Corporation, or is or was a
director or officer of the Corporation serving at the request of the Corporation
as a director, officer, trustee, employee or agent of, or in any other capacity
with respect to, another corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding. Nothing contained herein shall affect any rights to
indemnification to which employees other than directors and officers may be
entitled by law. No amendment to or repeal of this Article SIXTH shall apply to
or have any effect on any right to indemnification provided hereunder with
respect to any acts or omissions occurring prior to such amendment or repeal.
SEVENTH: (A) In addition to any affirmative vote required by
law, this Certificate of Incorporation or the Bylaws of the Corporation, and
except as otherwise expressly provided in Section (B) of this Article SEVENTH, a
Business Combination (as hereinafter defined) with, or proposed by or on behalf
of, any Interested Stockholder (as hereinafter defined) or any Affiliate or
8
Associate (as hereinafter defined) of any Interested Stockholder or any person
who thereafter would be an Affiliate or Associate of such Interested Stockholder
shall require the affirmative vote of not less than eighty percent of the votes
entitled to be cast by the holders of all the then outstanding shares of Voting
Stock (as hereinafter defined), voting together as a single class, excluding
Voting Stock beneficially owned by any Interested Stockholder or any Affiliate
or Associate of such Interested Stockholder. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage or separate class vote may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(B) The provisions of Section (A) of this Article SEVENTH shall
not be applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote, if any, as is required by
law or by any other provision of this Certificate of Incorporation or the Bylaws
of the Corporation, or any agreement with any national securities exchange, if
all of the conditions specified in either of the following Paragraphs (i) or
(ii) are met or, in the case of a Business Combination not involving the payment
of consideration to the holders of the Corporation's outstanding Capital Stock,
if the condition specified in the following Paragraph (i) is met:
(i) The Business Combination shall have been approved,
either specifically or as a transaction which is within an approved category of
transactions, by a majority (whether such approval is made prior to or
subsequent to the acquisition of, or announcement or public disclosure of the
intention to acquire, beneficial ownership of the Voting Stock that caused the
Interested Stockholder to become an Interested Stockholder) of the Continuing
Directors (as hereinafter defined).
(ii) All of the following conditions shall have been met:
(a) The aggregate amount of cash and the Fair
Market Value (as hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received per share
by holders of Common Stock in such Business Combination shall be at least equal
to the highest amount determined under Clauses (1), (2), (3) and (4) below:
(1) (if applicable) the highest per share
price (including any brokerage commissions, transfer taxes and soliciting
dealers' fees) paid by or on behalf of the Interested Stockholder for any share
of Common Stock in connection with the acquisition by the Interested Stockholder
of beneficial ownership of shares of Common Stock (x) within the two-year period
immediately prior to the first public announcement of the proposed Business
Combination (the "Announcement Date") or (y) in the transaction in which it
became an Interested Stockholder, whichever is higher, in either case as
adjusted for any subsequent stock split, stock dividend, subdivision or
reclassification with respect to the Common Stock;
(2) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date on which the Interested
Stockholder became an Interested Stockholder (the "Determination Date"),
whichever is higher, as adjusted for any subsequent stock split, stock dividend,
subdivision or reclassification with respect to the Common Stock;
(3) (if applicable) the price per share
equal to the Fair Market Value per share of Common Stock determined pursuant to
the immediately preceding Clause (2),
9
multiplied by the ratio of (x) the highest per share price (including any
brokerage commissions, transfer taxes and soliciting dealers' fees) paid by or
on behalf of the Interested Stockholder for any share of Common Stock in
connection with the acquisition by the Interested Stockholder of beneficial
ownership of shares of Common Stock within the two-year period immediately prior
to the Announcement Date, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to the Common Stock to
(y) the Fair Market Value per share of the Common Stock on the first day in such
two-year period on which the Interested Stockholder acquired beneficial
ownership of any share of Common Stock, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with respect to Common
Stock; and
(4) the Corporation's net income per share
of Common Stock for the four full consecutive fiscal quarters immediately
preceding the Announcement Date, multiplied by the higher of the then price-
earnings multiple (if any) of such Interested Stockholder or the highest price-
earnings multiple of the Corporation within the two-year period immediately
preceding the Announcement Date (such price-earnings multiples being determined
as customarily computed and reported in the financial community).
(b) The aggregate amount of cash and the Fair Market Value,
as of the date of the consummation of the Business Combination, of consideration
other than cash to be received per share by holders of shares of any class or
series of outstanding Capital Stock, other than Common Stock, shall be at least
equal to the highest amount determined under Clauses (1), (2), (3) and (4)
below:
(1) (if applicable) the highest per share price
(including any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested Stockholder for any share of such
class or series of Capital Stock in connection with the acquisition by the
Interested Stockholder of beneficial ownership of shares of such class or series
of Capital Stock (x) within the two-year period immediately prior to the
Announcement Date or (y) in the transaction in which it became an Interested
Stockholder, whichever is higher, in either case as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with respect to
such class or series of Capital Stock;
(2) the Fair Market Value per share of such class
or series of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher, as adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with respect to such class or series
of Capital Stock;
(3) (if applicable) the price per share equal to
the Fair Market Value per share of such class or series of Capital Stock
determined pursuant to the immediately preceding Clause (2) multiplied by the
ratio of (x) the highest per share price (including any brokerage commissions,
transfer taxes and soliciting dealers' fees) paid by or on behalf of the
Interested Stockholder for any share of such class or series of Capital Stock in
connection with the acquisition by the Interested Stockholder of beneficial
ownership of shares of such class or series of Capital Stock within the two-year
period immediately prior to the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock to (y) the Fair Market Value
per share of such class or series of Capital Stock on the first day in such two-
year period on which the Interested Stockholder acquired beneficial ownership of
any share of such class or series of Capital Stock, as adjusted for any
subsequent stock
10
split, stock dividend, subdivision or reclassification with respect to such
class or series of Capital Stock; and
(4) (if applicable) the highest preferential
amount per share to which the holders of shares of such class or series of
Capital Stock would be entitled in the event of any voluntary or involuntary
liquidation, dissolution or winding up of the affairs of the Corporation
regardless of whether the Business Combination to be consummated constitutes
such an event.
The provisions of Sections (a) and (b) of this Paragraph (B)(ii) shall be
required to be met with respect to every class or series of outstanding Capital
Stock, whether or not the Interested Stockholder has previously acquired
beneficial ownership of any shares of a particular class or series of Capital
Stock.
(c) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in cash or in
the same form as previously has been paid by or on behalf of the Interested
Stockholder in connection with its direct or indirect acquisition of beneficial
ownership of shares of such class or series of Capital Stock. If the
consideration so paid for shares of any class or series of Capital Stock varied
as to form, the form of consideration for such class or series of Capital Stock
shall be either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock previously
acquired by the Interested Stockholder.
(d) After the Determination Date and prior to the
consummation of such Business Combination: (i) except as approved by a majority
of the Continuing Directors, there shall have been no failure to declare and pay
at the regular date therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any outstanding Capital
Stock; (ii) except as approved by a majority of the Continuing Directors, there
shall have been no reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any stock split, stock dividend or
subdivision of the Common Stock); (iii) there shall have been an increase in the
annual rate of dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split), recapitalization,
reorganization or any similar transaction that has the effect of reducing the
number of outstanding shares of Common Stock unless the failure so to increase
such annual rate is approved by a majority of the Continuing Directors; and (iv)
such Interested Stockholder shall not have become the beneficial owner of any
additional shares of Capital Stock except as part of the transaction that
results in such Interested Stockholder becoming an Interested Stockholder and
except in a transaction that, after giving effect thereto, would not result in
any increase in the Interested Stockholder's percentage beneficial ownership of
any class or series of Capital Stock.
(e) A proxy or information statement describing the
proposed Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended (including the rules and regulations
promulgated thereunder, the "Exchange Act") (or any subsequent provisions
replacing such Exchange Act) shall be mailed to all stockholders of the
Corporation at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is required to
be mailed pursuant to the Exchange Act or subsequent provisions). The proxy or
information statement shall contain on the first page thereof, in a prominent
place, any statement as to the advisability or inadvisability of the Business
Combination that the Continuing Directors, or any of them, may choose to make
and, if deemed advisable by a
11
majority of the Continuing Directors, the opinion of an investment banking firm
selected by a majority of the Continuing Directors as to the fairness (or not)
of the terms of the Business Combination from a financial point of view to the
holders of the outstanding shares of Capital Stock other than the Interested
Stockholder and its Affiliates or Associates, such investment banking firm to be
paid a reasonable fee for its services by the Corporation.
(f) Such Interested Stockholder shall not have made any
major change in the Corporation's business or equity capital structure without
the approval of a majority of the Continuing Directors.
(C) The following definitions shall apply with respect to this
Article SEVENTH:
(i) The term "Business Combination" shall mean:
(a) any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined) with (1) any Interested
Stockholder or (2) any other person (whether or not itself an Interested
Stockholder) which is or after such merger or consolidation would be an
Affiliate or Associate of an Interested Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement, investment, loan,
advance, guarantee, agreement to purchase, agreement to pay, extension of
credit, joint venture participation or other arrangement (in one transaction or
a series of transactions) with or for the benefit of any Interested Stockholder
or any Affiliate or Associate of any Interested Stockholder involving any
assets, securities or commitments of the Corporation, any Subsidiary or any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder which (except for any arrangement, whether as employee, consultant
or otherwise, other than as a director, pursuant to which any Interested
Stockholder or any Affiliate or Associate thereof shall, directly or indirectly,
have any control over or responsibility for the management of any aspect of the
business or affairs of the Corporation, with respect to which arrangements the
value tests set forth below shall not apply), together with all such other
arrangements (including all contemplated future events), has an aggregate Fair
Market Value and/or involves aggregate commitments of $5,000,000 or more or
constitutes more than five percent of the book value of the total assets (in the
case of transactions involving assets or commitments other than capital stock)
or five percent of the stockholders' equity (in the case of transactions in
capital stock) of the entity in question (the "Substantial Part"), as reflected
in the most recent fiscal year-end consolidated balance sheet of such entity
existing at the time the stockholders of the Corporation would be required to
approve or authorize the Business Combination involving the assets, securities
and/or commitments constituting any Substantial Part, except for transactions
made in the ordinary course of the Corporation's business, consistent with past
practices; or
(c) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation or for any amendment to the
Corporation's Bylaws; or
(d) any reclassification of securities (including
any reverse stock split), or recapitalization of the Corporation, or any merger
or consolidation of the Corporation with any of its Subsidiaries or any other
transaction (whether or not with or otherwise involving an Interested
Stockholder) that has the effect, directly or indirectly, of increasing the
proportionate share of any class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity
12
securities of any Subsidiary, that is beneficially owned by an Interested
Stockholder or any Affiliate or Associate of any Interested Stockholder; or
(e) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the foregoing Sections
(a) to (d).
(ii) The term "Voting Stock" shall mean all Capital Stock
which by its terms may be voted on all matters submitted to stockholders of the
Corporation generally.
(iii) The term "person" shall mean any individual,
corporation, partnership, limited liability company, joint venture, trust or
other entity or enterprise and shall include any group comprised of any person
and any other person with whom such person or any Affiliate or Associate of such
person has any agreement, arrangement or understanding, directly or indirectly,
for the purpose of acquiring, holding, voting or disposing of Capital Stock.
(iv) The term "Interested Stockholder" shall mean any
person who (a) is or has announced or publicly disclosed a plan or intention to
become the beneficial owner of Voting Stock representing fifteen percent or more
of the votes entitled to be cast by the holders of all then outstanding shares
of Voting Stock; or (b) is an Affiliate or Associate of the Corporation and at
any time within the two-year period immediately prior to the date in question
was the beneficial owner of Voting Stock representing fifteen percent or more of
the votes entitled to be cast by the holders of all then outstanding shares of
Voting Stock; PROVIDED, HOWEVER, that "Interested Stockholders" shall not
include the Corporation, any Subsidiary, any profit-sharing, employee stock
ownership or other employee benefit plan of the Corporation or any Subsidiary or
any trustee of or fiduciary with respect to any such plan when acting in such
capacity.
(v) A person shall be a "beneficial owner" of any Capital
Stock (a) which such person or any of its Affiliates or Associates beneficially
owns, directly or indirectly; (b) which such person or any of its Affiliates or
Associates has, directly or indirectly, (1) the right to acquire (whether such
right is exercisable immediately or subject only to the passage of time),
pursuant to any agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or otherwise, or (2)
the right to vote pursuant to any agreement, arrangement or understanding; or
(c) which is beneficially owned, directly or indirectly, by any other person
with which such person or any of its Affiliates or Associates has any agreement,
arrangement or understanding for the purpose of acquiring, holding, voting or
disposing of any shares of Capital Stock. For the purposes of determining
whether a person is an Interested Stockholder pursuant to Paragraph (iv) of this
Section (C), the number of shares of Capital Stock deemed to be outstanding
shall include shares deemed beneficially owned by such person through
application of this Paragraph (v) of Section (C), but shall not include any
other shares of Capital Stock that may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights, warrants or
options, or otherwise.
(vi) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 under the Exchange Act
as in effect on ____________, 199_ (the term "registrant" in said Rule 12b-2
meaning in this case the Corporation).(6)
---------------
(6) Insert Effective Date of the Merger.
13
(vii) The term "Subsidiary" means any corporation,
partnership, limited liability company, joint venture, trust or other entity or
enterprise of which a majority of any class of equity security is beneficially
owned by the Corporation; PROVIDED, HOWEVER, that for the purposes of the
definition of Interested Stockholder set forth in Paragraph (iv) of this Section
(C), the term "Subsidiary" shall mean only a corporation, partnership, limited
liability company, joint venture, trust or other entity or enterprise of which a
majority of each class of equity security is beneficially owned by the
Corporation.
(viii) The term "Continuing Director" means any member of
the Board of Directors (while such person is a member of the Board of Directors)
who is not an Affiliate or Associate or representative of the Interested
Stockholder and was a member of the Board of Directors prior to the time that
the Interested Stockholder became an Interested Stockholder, and any successor
of a Continuing Director while such successor is a member of the Board of
Directors, who is not an Affiliate or Associate or representative of the
Interested Stockholder and is recommended or elected to succeed the Continuing
Director by a majority of Continuing Directors.
(ix) The term "Fair Market Value" means (a) in the case of
cash, the amount of such cash; (b) in the case of stock, the highest closing
sale price during the thirty-day period immediately preceding the date in
question of a share of such stock on the Composite Tape for New York Stock
Exchange Listed Stocks, or, if such stock is not quoted on the Composite Tape,
on the New York Stock Exchange, or if such stock is not listed on such exchange,
on the principal United States securities exchange registered under the Exchange
Act on which such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of such
stock during the thirty-day period preceding the date in question on the
National Association of Securities Dealers, Inc. Automated Quotations System or
any similar system then in use, or if no such quotations are available, the fair
market value on the date in question of a share of such stock as determined by a
nationally recognized investment banking firm selected by a majority of the
Continuing Directors; and (c) in the case of property other than cash or stock,
the fair market value of such property on the date in question as determined by
a nationally recognized investment banking firm selected by a majority of the
Continuing Directors.
(x) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be received"
as used in Paragraphs (ii)(a) and (ii)(b) of Section (B) of this Article SEVENTH
shall include the shares of Common Stock and/or the shares of any other class or
series of Capital Stock retained by the holders of such shares.
(D) A majority of the Continuing Directors shall have the power
and duty to determine for the purposes of this Article SEVENTH, on the basis of
information known to them after reasonable inquiry, all questions arising under
this Article SEVENTH, including, without limitation, (i) whether a person is an
Interested Stockholder, (ii) the number of shares of Capital Stock or other
securities beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another, (iv) whether a Proposed Action (as
hereinafter defined) is with, or proposed by, or on behalf of, an Interested
Stockholder or an Affiliate or an Associate of an Interested Stockholder, (v)
whether the assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $5,000,000 or more, and (vi) whether the assets or securities
that are the subject of any Business Combination constitute a Substantial Part.
Any such determination made in good faith shall be binding and conclusive on all
parties.
14
(E) Nothing contained in this Article SEVENTH shall be construed
to relieve any Interested Stockholder from any fiduciary obligation imposed by
law.
(F) The fact that any Business Combination complies with the
provisions of Section (B) of this Article SEVENTH shall not be construed to
impose any fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business Combination or
recommend its adoption or approval to the stockholders of the Corporation, nor
shall such compliance limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to evaluations of or
actions and responses taken with respect to such Business Combination.
(G) For the purposes of this Article SEVENTH, a Business
Combination or any proposal to amend, repeal or adopt any provisions of this
Certificate of Incorporation inconsistent with this Article SEVENTH
(collectively "Proposed Action") is presumed to have been proposed by, or on
behalf of, an Interested Stockholder or an Affiliate or Associate of an
Interested Stockholder or a person who thereafter would become such if (i) after
the Interested Stockholder became such, the Proposed Action is proposed
following the election of any director of the Corporation who, with respect to
such Interested Stockholder, would not qualify to serve as a Continuing Director
or (ii) such Interested Stockholder, Affiliate, Associate or person votes for or
consents to the adoption of any such Proposed Action, unless as to such
Interested Stockholder, Affiliate, Associate or person a majority of the
Continuing Directors makes a good faith determination that such Proposed Action
is not proposed by or on behalf of such Interested Stockholder, Affiliate,
Associate or persons, based on information known to them after reasonable
inquiry.
(H) Notwithstanding any other provision of this Certificate of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage or separate class vote may be specified by law, this
Certificate of Incorporation or the Bylaws of the Corporation), any proposal to
amend, repeal or adopt any provision of this Certificate of Incorporation
inconsistent with this Article SEVENTH which is proposed by or on behalf of an
Interested Stockholder or an Affiliate or Associate of an Interested Stockholder
shall require the affirmative vote of the holders of not less than eighty
percent of the votes entitled to be cast by the holders of all the then
outstanding shares of Voting Stock, voting together as a single class, excluding
Voting Stock beneficially owned by any Interested Stockholder; PROVIDED,
HOWEVER, that this Section (H) shall not apply to, and such eighty percent vote
shall not be required for, any amendment, repeal or adoption unanimously
recommended by the Board of Directors if all such directors are persons who
would be eligible to serve as Continuing Directors within the meaning of Section
(C), Paragraph (viii) of this Article SEVENTH.
EIGHTH: Notwithstanding anything in this Certificate of
Incorporation to the contrary, and in addition to any vote of the Board of
Directors required by this Certificate of Incorporation or the Bylaws of the
Corporation, the affirmative vote of the holders of not less than eighty percent
of the outstanding shares of Common Stock shall be required to alter, amend or
repeal, or adopt any provision inconsistent with, any provision of Article
FIFTH, Article SIXTH, Article SEVENTH (unless a vote pursuant to Section (H) of
Article SEVENTH is required and taken in accordance with such Section (H)), or
this Article EIGHTH.
NINTH: Meetings of stockholders may be held within or without
the State of Delaware, as the Bylaws may provide. The books of the Corporation
may be kept (subject to any
15
provision contained in the GCL) outside the State of Delaware at such place or
places as may be designated from time to time by the Board of Directors or in
the Bylaws of the Corporation.
TENTH: The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
16
IN WITNESS WHEREOF, the Corporation has caused this Certificate
to be duly executed in its name this ____ day of _________, 199_.
KC UNITED CORP.
By:
------------------------------
Name:
Title:
17
EXHIBIT 1.1(d)
BYLAWS
OF
KC UNITED CORP. (1)
(hereinafter called the "Corporation")
ARTICLE I.
OFFICES
SECTION 1. REGISTERED OFFICE. The registered office of the
Corporation shall be in the City of Wilmington, County of New Castle, State of
Delaware.
SECTION 2. OTHER OFFICES. The Corporation may also have offices
at such other places both within and without the State of Delaware as the Board
of Directors may from time to time determine.
MEETINGS OF STOCKHOLDERS
SECTION 1. PLACE OF MEETINGS. Meetings of the stockholders for
the election of directors or for any other purpose shall be held at such place,
date and hour, either within or without the State of Delaware, as shall be
designated from time to time by the Board of Directors and stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
SECTION 2. ANNUAL MEETINGS. The Annual Meetings of stockholders
shall be held on such date and at such time as shall be designated from time to
time by the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote a Board of Directors,
and transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
SECTION 3. SPECIAL MEETINGS. Unless otherwise prescribed by law
or by the Certificate of Incorporation, Special Meetings of stockholders, for
any purpose or
---------------
(1) Pursuant to Section 1.1 of the Agreement and Plan of Merger, the name
of the Surviving Corporation may be changed to such other name as KCPL
and UCU shall mutually agree upon.
purposes, may be called at any time by a majority of the Board of Directors, the
Chairman of the Board of Directors, the Vice Chairman, the Chief Executive
Officer, the President, the Executive Vice President or the Chief Operating
Officer of the Corporation. Such request shall state the purpose or purposes of
the proposed meeting. Written notice of a Special Meeting stating the place,
date and hour of the meeting and the purpose or purposes for which the meeting
is called shall be given not less than ten nor more than sixty days before the
date of the meeting, to each stockholder entitled to vote at such meeting.
SECTION 4. ADVANCE NOTIFICATION OF BUSINESS TO BE TRANSACTED AT
ANNUAL MEETINGS. No business may be transacted at an Annual Meeting of
stockholders, other than business that is either (a) specified in the notice of
meeting (or any supplement thereto) given by or at the direction of the Board of
Directors (or any duly authorized committee thereof), (b) otherwise properly
brought before the Annual Meeting by or at the direction of the Board of
Directors (or any duly authorized committee thereof), or (c) otherwise properly
brought before the Annual Meeting by any stockholder of the Corporation (i) who
is a stockholder of record on the date of the giving of the notice provided for
in this Section 4 and on the record date for the determination of stockholders
entitled to vote at such Annual Meeting and (ii) who complies with the notice
procedures set forth in this Section 4.
In addition to any other applicable requirements, for business to
be properly brought before an Annual Meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty days nor more than ninety days prior to the date
of the Annual Meeting; PROVIDED, HOWEVER, that in the event that less than
seventy days' notice or prior public disclosure of the date of the Annual
Meeting is given or made to stockholders, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth
day following the day on which such notice of the date of the Annual Meeting was
mailed or such public disclosure of the date of the Annual Meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth as to each matter such stockholder proposes to bring
before the Annual Meeting (i) a brief description of the business desired to be
brought before the Annual Meeting and the reasons for conducting such business
at the Annual Meeting, (ii) the name and record address of such stockholder,
(iii) the class or series and number of shares of capital stock of the
Corporation which are owned beneficially or of record by such stockholder, (iv)
a description of all arrangements or understandings between such stockholder and
any other person or persons (including their names) in connection with
2
the proposal of such business by such stockholder and any material interest of
such stockholder in such business and (v) a representation that such stockholder
intends to appear in person or by proxy at the Annual Meeting to bring such
business before the meeting.
No business shall be conducted at the Annual Meeting of
stockholders, except business brought before the Annual Meeting in accordance
with the procedures set forth in this Section 4; PROVIDED, HOWEVER, that, once
business has been properly brought before the Annual Meeting in accordance with
such procedures, nothing in this Section 4 shall be deemed to preclude
discussion by any stockholder of any such business. If the chairman of an
Annual Meeting determines that business was not properly brought before the
Annual Meeting in accordance with the foregoing procedures, the chairman shall
declare to the meeting that the business was not properly brought before the
meeting and such business shall not be transacted.
SECTION 5. QUORUM. Except as otherwise provided by law or by
the Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall
not be present or represented at any meeting of the stockholders, the
stockholders entitled to vote thereat, present in person or represented by
proxy, shall have the power to adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall be present
or represented. At such adjourned meeting at which a quorum shall be present or
represented, any business may be transacted which might have been transacted at
the meeting originally noticed. If the adjournment is for more than thirty
days, or if after the adjournment a new record date is fixed for the adjourned
meeting, a notice of the adjourned meeting shall be given to each stockholder
entitled to vote at the meeting.
SECTION 6. VOTING. Unless otherwise required by law, the
Certificate of Incorporation or these Bylaws, any question brought before any
meeting of stockholders shall be decided by the vote of the holders of a
majority of the stock represented and entitled to vote thereat. Each
stockholder represented at a meeting of stockholders shall be entitled to cast
one vote for each share of the capital stock entitled to vote thereat held by
such stockholder. Such votes may be cast in person or by proxy but no proxy
shall be voted on or after three years from its date, unless such proxy provides
for a longer period. The Board of Directors, in its discretion, or the officer
of the Corporation presiding at a meeting of stockholders, in his discretion,
may require that any votes cast at such meeting shall be cast by written ballot;
provided, however, that the vote for the election of directors, and upon the
direction of the presiding officer of the meeting, the vote on any other
question before the meeting, shall be by written ballot. Any action required or
permitted to be taken at any Annual Meeting or Special Meeting of stockholders
may be taken only upon the vote of such holders at an Annual Meeting or a
3
Special Meeting duly noticed or called and may not be taken by a written consent
of stockholders in lieu of such meeting.
SECTION 7. LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer
of the Corporation who has charge of the stock ledger of the Corporation shall
prepare and make, at least ten days before every meeting of stockholders, a
complete list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open
to the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
SECTION 8. STOCK LEDGER. The stock ledger of the Corporation
shall be the only evidence as to who are the stockholders entitled to examine
the stock ledger, the list required by Section 7 of this Article II or the books
of the Corporation, or to vote in person or by proxy at any meeting of
stockholders.
ARTICLE III.
DIRECTORS
SECTION 1. NUMBER AND ELECTION OF DIRECTORS. The Board of
Directors shall consist of not less than 10 nor more than 18 members, the exact
number of which shall be fixed from time to time by the Board of Directors. The
directors shall be divided into three classes, designated Class I, Class II and
Class III. Each class shall consist, as nearly as may be possible, of one-third
of the total number of directors constituting the entire Board of Directors.
The term of the initial Class I directors shall terminate on the date of the
199__ Annual Meeting of stockholders;(2) the term of the initial Class II
directors shall terminate on the date of the 199__ Annual Meeting of
stockholders;(3) and the term of the initial Class III directors shall terminate
on the date of the 199__ Annual
---------------
(2) Insert year of first Annual Meeting following the Effective Time of the
Merger.
(3) Insert year of second Annual Meeting following the Effective Time of the
Merger.
4
Meeting of stockholders.(4) At each Annual Meeting of stockholders beginning in
199__,(5) successors to the class of directors whose term expires at that Annual
Meeting shall be elected for a three-year term. If the number of directors is
changed, any increase or decrease shall be apportioned among the classes so as
to maintain the number of directors in each class as nearly equal as possible,
and any additional directors of any class elected to fill a vacancy resulting
from an increase in such class shall hold office for a term that shall coincide
with the remaining term of that class, but in no case will a decrease in the
number of directors shorten the term of any incumbent director. Each director
shall hold office until the Annual Meeting for the year in which his term
expires and until his successor shall be elected and shall qualify, subject,
however, to prior death, resignation, retirement, disqualification or removal
from office. Directors need not be stockholders.
SECTION 2. NOMINATION OF DIRECTORS. Nominations of persons for
election to the Board of Directors may be made at any Annual Meeting of
stockholders (a) by or at the direction of the Board of Directors (or any duly
authorized committee thereof) or (b) by any stockholder of the Corporation (i)
who is a stockholder of record on the date of the giving of the notice provided
for in this Section 2 and on the record date for the determination of
stockholders entitled to vote at such Annual Meeting and (ii) who complies with
the notice procedures set forth in this Section 2. Persons nominated by a
stockholder of the Corporation shall only be eligible for election as directors
of the Corporation if such persons are nominated in accordance with the
following procedures.
In addition to any other applicable requirements, for a
nomination to be made by a stockholder, such stockholder must have given timely
notice thereof in proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation not less than sixty days nor more than ninety days prior to the date
of the Annual Meeting; PROVIDED, HOWEVER, that in the event that less than
seventy days' notice or prior public disclosure of the date of the Annual
Meeting is given or made to stockholders, notice by the stockholder in order to
be timely must be so received not later than the close of business on the tenth
day following the day on which such notice of the date of the Annual Meeting was
mailed or such public disclosure of the date of the Annual Meeting was made,
whichever first occurs.
To be in proper written form, a stockholder's notice to the
Secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the
---------------
(4) Insert year of third Annual Meeting following the Effective Time of
the Merger.
(5) Insert year of fourth Annual Meeting following the Effective Time of
the Merger.
5
person, (ii) the principal occupation or employment of the person, (iii) the
class or series and number of shares of capital stock of the Corporation which
are owned beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
of proxies for election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated
thereunder (the "Exchange Act"); and (b) as to the stockholder giving the notice
(i) the name and record address of such stockholder, (ii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the Annual Meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act. Such notice must be accompanied by a written consent of each
proposed nominee to being named as a nominee and to serve as a director if
elected.
No person nominated by a stockholder of the Corporation shall be
eligible for election as a director of the Corporation unless nominated in
accordance with the procedures set forth in this Section 2. If the Chairman of
the Annual Meeting determines that a nomination was not made in accordance with
the foregoing procedures, the Chairman shall declare to the meeting that the
nomination was defective and such defective nomination shall be disregarded.
SECTION 3. VACANCIES. Any vacancy on the Board of Directors in
a Class I, II or III directorship, howsoever resulting, shall be filled by a
majority of the directors then in office, even if less than a quorum, or by a
sole remaining director. Any director elected to fill such a vacancy shall hold
office for a term that shall coincide with the term of the class to which such
director shall have been elected.
SECTION 4. DUTIES AND POWERS. The business of the Corporation
shall be managed by or under the direction of the Board of Directors which may
exercise all such powers of the Corporation and do all such lawful acts and
things as are not by statute or by the Certificate of Incorporation or by these
Bylaws directed or required to be exercised or done by the stockholders.
SECTION 5. MEETINGS. The Board of Directors of the Corporation
may hold meetings, both regular and special, either within or without the State
of Delaware. Regular meetings of the Board of Directors may be held without
notice at such time and at such place as may from time to time be determined by
the Board of Directors.
6
Special Meetings of the Board of Directors may be called by the Chairman of the
Board of Directors, the Vice Chairman, the Chief Executive Officer, the
President, the Executive Vice President, the Chief Operating Officer, or a
majority of the Board of Directors. Notice thereof stating the place, date and
hour of the meeting shall be given to each director either by mail not less than
forty-eight hours before the date of the meeting, by telephone, telecopy or
telegram on twenty-four hours' notice, or on such shorter notice as the person
or persons calling such meeting may deem necessary or appropriate in the
circumstances.
SECTION 6. QUORUM. Except as may be otherwise specifically
provided by law, the Certificate of Incorporation or these Bylaws, at all
meetings of the Board of Directors, a majority of the entire Board of Directors
shall constitute a quorum for the transaction of business and the act of a
majority of the directors present at any meeting at which there is a quorum
shall be the act of the Board of Directors. If a quorum shall not be present at
any meeting of the Board of Directors, the directors present thereat may adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum shall be present.
SECTION 7. ACTIONS OF BOARD. Unless otherwise provided by the
Certificate of Incorporation or these Bylaws, any action required or permitted
to be taken at any meeting of the Board of Directors or of any committee thereof
may be taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 8. MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless
otherwise provided by the Certificate of Incorporation or these Bylaws, members
of the Board of Directors of the Corporation, or any committee designated by the
Board of Directors, may participate in a meeting of the Board of Directors or
such committee by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting can hear
each other, and participation in a meeting pursuant to this Section 8 shall
constitute presence in person at such meeting.
SECTION 9. COMMITTEES. The Board of Directors may, by
resolution passed by a majority of the entire Board of Directors, designate one
or more committees, including an Executive Committee, a Nominating and
Compensation Committee, an Audit Committee and a Nuclear Oversight Committee,
each such committee to consist of one or more of the directors of the
Corporation. The Board of Directors may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of any such committee. In the absence or disqualification
of a member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified member,
the member or members thereof present at any meeting and not disqualified from
voting,
7
whether or not he or they constitute a quorum, may unanimously appoint another
member of the Board of Directors to act at the meeting in the place of any
absent or disqualified member. Any committee, to the extent allowed by law and
provided in the resolution establishing such committee, shall have and may
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation. Each committee shall
report to the Board of Directors, and shall keep complete and accurate minutes
and records and shall promptly distribute such minutes and records to each
member of the Board of Directors when requested.
SECTION 10. COMPENSATION. The directors may be paid their
expenses, if any, of attendance at each meeting of the Board of Directors and
may be paid a fixed sum for attendance at each meeting of the Board of Directors
or a stated salary as director. No such payment shall preclude any director
from serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
SECTION 11. INTERESTED DIRECTORS. No contract or transaction
between the Corporation and one or more of its directors or officers, or between
the Corporation and any other corporation, partnership, limited liability
company, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial interest,
shall be void or voidable solely for this reason, or solely because the director
or officer is present at or participates in the meeting of the Board of
Directors or committee thereof which authorizes the contract or transaction, or
solely because his or their votes are counted for such purpose if (i) the
material facts as to his or their relationship or interest and as to the
contract or transaction are disclosed or are known to the Board of Directors or
the committee, and the Board of Directors or committee in good faith authorizes
the contract or transaction by the affirmative votes of a majority of the
disinterested directors, even though the disinterested directors be less than a
quorum; or (ii) the material facts as to his or their relationship or interest
and as to the contract or transaction are disclosed or are known to the
stockholders entitled to vote thereon, and the contract or transaction is
specifically approved in good faith by vote of the stockholders; or (iii) the
contract or transaction is fair as to the Corporation as of the time it is
authorized, approved or ratified, by the Board of Directors, a committee thereof
or the stockholders. Common or interested directors may be counted in
determining the presence of a quorum at a meeting of the Board of Directors or
of a committee which authorizes the contract or transaction.
8
ARTICLE IV.
OFFICERS
SECTION 1. GENERAL. The following officers of the Corporation
shall be chosen by a majority of the entire Board of Directors: Chairman of the
Board of Directors (who must be a director), Vice Chairman (who must be a
director), Chief Executive Officer (who must be a director), President,
Executive Vice President, Chief Operating Officer, Chief Financial Officer,
Secretary and Treasurer. The Board of Directors or the Nominating and
Compensation Committee of the Board of Directors, in its respective discretion
as it may deem proper, may also choose a Chief Legal Officer and one or more
Vice Presidents, Assistant Secretaries, Assistant Treasurers and other officers.
Any number of offices may be held by the same person, unless otherwise
prohibited by law, the Certificate of Incorporation or these Bylaws. The
officers of the Corporation need not be stockholders of the Corporation nor,
except in the case of the Chairman of the Board of Directors, the Vice Chairman
and the Chief Executive Officer, need such officers be directors of the
Corporation.
SECTION 2. ELECTION. The Board of Directors at its first
meeting held after the commencement of each fiscal year shall elect officers of
the Corporation who shall hold their offices for such terms and shall exercise
such powers and perform such duties as shall be determined from time to time by
the Board of Directors; and all officers of the Corporation shall hold office
until their successors are chosen and qualified, or until their earlier
resignation or removal. Any officer elected by the Board of Directors may be
removed at any time by the affirmative vote of a majority of the Board of
Directors. Any vacancy occurring in any office of the Corporation shall be
filled by the Board of Directors. The salaries of all officers of the
Corporation shall be fixed by the Board of Directors.
SECTION 3. VOTING SECURITIES OWNED BY THE CORPORATION. Powers
of attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed in
the name of and on behalf of the Corporation by the President or any Vice
President and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to vote
in person or by proxy at any meeting of security holders of any corporation in
which the Corporation may own securities and at any such meeting shall possess
and may exercise any and all rights and powers incident to the ownership of such
securities and which, as the owner thereof, the Corporation might have exercised
and possessed if present. The Board of Directors may, by resolution, from time
to time confer like powers upon any other person or persons.
SECTION 4. CHAIRMAN OF THE BOARD OF DIRECTORS. The Chairman of
the Board of Directors shall be a director and shall preside at meetings of the
Board of
9
Directors and meetings of stockholders. The Chairman shall be responsible for
(a) board and stockholder governance, (b) external relations with industry,
cities and communities, (c) economic development initiatives, (d) oversight of
issues relating to the Nuclear Regulatory Commission and nuclear operations, (e)
corporate wide business management and (f) implementation of business plans with
other team members. The Chairman shall share with the Chief Executive Officer
responsibility for (a) implementation of the merger between Kansas City Power &
Light Company and UtiliCorp United Inc. (the "Merger"), (b) external relations
with the financial community, (c) corporate governance, (d) setting the agenda
for all meetings of the Board (and committees thereof) and (e) enterprise
support. The Chairman of the Board of Directors shall be a member of the
Executive Committee and an ex officio member of all standing committees.
SECTION 5. VICE CHAIRMAN. The Vice Chairman shall be a director
and shall preside at meetings of the Board of Directors and meetings of
stockholders in the absence of the Chairman of the Board or upon the inability
of the Chairman of the Board to act. The Vice Chairman shall perform such
duties as may from time to time be assigned to him by the Board.
SECTION 6. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer
shall be a director, shall submit a report of the operations of the Corporation
for the fiscal year to the stockholders at their annual meeting and from time to
time shall report to the Board of Directors all matters within his knowledge
which the interests of the Corporation may require be brought to their notice.
The Chief Executive Officer shall be responsible for (a) the strategic
direction, development and oversight of the Corporation, (b) the international
growth of the Corporation and (c) the deployment of strategic assets of the
Corporation (including executive management). The Chief Executive Officer shall
share with the Chairman of the Board responsibility for (a) implementation of
the Merger, (b) external relations with the financial community, (c) corporate
governance, (d) setting the agenda for all meetings of the Board (and committees
thereof) and (e) enterprise support. The Chief Executive Officer shall be a
member of the Executive Committee and an ex officio member of all standing
committees. The President, the Chief Operating Officer, Chief Financial Officer
and Internal Auditing Department will report directly to the Chief Executive
Officer.
SECTION 7. PRESIDENT, EXECUTIVE VICE PRESIDENT, CHIEF OPERATING
OFFICER AND CHIEF FINANCIAL OFFICER. The President, Executive Vice President,
Chief Operating Officer and Chief Financial Officer shall perform such duties
and have other powers as a majority of the entire Board of Directors from time
to time may prescribe. Such officers, as well as the Chairman of the Board of
Directors, the Vice Chairman and the Chief Executive Officer, shall also
severally have such power to execute on behalf of the Corporation any deed,
bond, indenture, certificate, note, contract or other instrument authorized or
approved by the Board of Directors.
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SECTION 8. CHIEF LEGAL OFFICER AND VICE PRESIDENTS. The Chief
Legal Officer and each Vice President shall perform such duties and have such
other powers as a majority of the entire Board of Directors or the Nominating
and Compensation Committee of the Board of Directors from time to time may
prescribe.
SECTION 9. SECRETARY. The Secretary shall attend all meetings
of the Board of Directors and all meetings of stockholders and record all the
proceedings thereat in a book or books to be kept for that purpose; the
Secretary shall also perform like duties for the standing committees when
required. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and Special Meetings of the Board of Directors, and
shall perform such other duties as may be prescribed by the Board of Directors
or President. If the Secretary shall be unable or shall refuse to cause to be
given notice of all meetings of the stockholders and Special Meetings of the
Board of Directors, and if there be no Assistant Secretary, then either the
Board of Directors or the President may choose another officer to cause such
notice to be given. The Secretary shall have custody of the seal of the
Corporation and the Secretary or any Assistant Secretary, if there be one, shall
have authority to affix the same to any instrument requiring it and when so
affixed, it may be attested by the signature of the Secretary or by the
signature of any such Assistant Secretary. The Board of Directors may give
general authority to any other officer to affix the seal of the Corporation and
to attest the affixing by his signature. The Secretary shall see that all
books, reports, statements, certificates and other documents and records
required by law to be kept or filed are properly kept or filed, as the case may
be.
SECTION 10. TREASURER. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all moneys and other valuable effects in the name and to the credit of
the Corporation in such depositories as may be designated by the Board of
Directors. The Treasurer shall disburse the funds of the Corporation as may be
ordered by the Board of Directors, taking proper vouchers for such
disbursements, and shall render to the President and the Board of Directors, at
its regular meetings, or when the Board of Directors so requires, an account of
all his transactions as Treasurer and of the financial condition of the
Corporation. If required by the Board of Directors, the Treasurer shall give
the Corporation a bond in such sum and with such surety or sureties as shall be
satisfactory to the Board of Directors for the faithful performance of the
duties of his office and for the restoration to the Corporation, in case of his
death, resignation, retirement or removal from office, of all books, papers,
vouchers, money and other property of whatever kind in his possession or under
his control belonging to the Corporation.
SECTION 11. ASSISTANT SECRETARIES. Except as may be otherwise
provided in these Bylaws, Assistant Secretaries, if there be any, shall perform
such duties and have such powers as from time to time may be assigned to them by
the Board of Directors,
11
the President, any Vice President, if there be one, or the Secretary, and in the
absence of the Secretary or in the event of his disability or refusal to act,
shall perform the duties of the Secretary, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the Secretary.
SECTION 12. ASSISTANT TREASURERS. Assistant Treasurers, if
there be any, shall perform such duties and have such powers as from time to
time may be assigned to them by the Board of Directors, the President or any
Vice President, if there be one, or the Treasurer, and in the absence of the
Treasurer or in the event of his disability or refusal to act, shall perform the
duties of the Treasurer, and when so acting, shall have all the powers of and be
subject to all the restrictions upon the Treasurer. If required by the Board of
Directors, an Assistant Treasurer shall give the Corporation a bond in such sum
and with such surety or sureties as shall be satisfactory to the Board of
Directors for the faithful performance of the duties of his office and for the
restoration to the Corporation, in case of his death, resignation, retirement or
removal from office, of all books, papers, vouchers, money and other property of
whatever kind in his possession or under his control belonging to the
Corporation.
SECTION 13. OTHER OFFICERS. Such other officers as the Board of
Directors may choose shall perform such duties and have such powers as from time
to time may be assigned to them by the Board of Directors. The Board of
Directors may delegate to any other officer of the Corporation the power to
choose such other officers and to prescribe their respective duties and powers.
ARTICLE V.
STOCK
SECTION 1. FORM OF CERTIFICATES. Every holder of stock in the
Corporation represented by certificates and upon request every holder of
uncertificated shares shall be entitled to have a certificate signed, in the
name of the Corporation (i) by the Chairman of the Board of Directors, the Vice
Chairman of the Board of Directors, the President or a Vice President and (ii)
by the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant
Secretary of the Corporation, certifying the number of shares owned by him in
the Corporation.
SECTION 2. SIGNATURES. Any or all of the signatures on a
certificate may be a facsimile. In case any officer, transfer agent or
registrar who has signed or whose facsimile signature has been placed upon a
certificate shall have ceased to be such officer, transfer agent or registrar
before such certificate is issued, it may be issued by the Corporation with the
same effect as if he were such officer, transfer agent or registrar at the date
of issue.
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SECTION 3. LOST CERTIFICATES. The Board of Directors may direct
a new certificate to be issued in place of any certificate theretofore issued by
the Corporation alleged to have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming the certificate of stock to
be lost, stolen or destroyed. When authorizing such issue of a new certificate,
the Board of Directors may, in its discretion and as a condition precedent to
the issuance thereof, require the owner of such lost, stolen or destroyed
certificate, or his legal representative, to advertise the same in such manner
as the Board of Directors shall require and/or to give the Corporation a bond in
such sum as it may direct as indemnity against any claim that may be made
against the Corporation with respect to the certificate alleged to have been
lost, stolen or destroyed.
SECTION 4. UNCERTIFICATED SHARES. The Board of Directors of the
Corporation may provide by resolution or resolutions that some or all of any or
all classes or series of its stock shall be uncertificated shares; PROVIDED,
HOWEVER, that any such resolution shall not apply to shares represented by a
certificate until such certificate is surrendered to the Corporation.
SECTION 5. TRANSFERS. Stock of the Corporation shall be
transferable in the manner prescribed by law and in these Bylaws. Transfers of
stock shall be made on the books of the Corporation only by the person named in
the certificate or by his attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
SECTION 6. RECORD DATE. In order that the Corporation may
determine the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment of
any dividend or other distribution or allotment of any rights, or entitled to
exercise any rights in respect of any change, conversion or exchange of stock,
or for the purpose of any other lawful action, the Board of Directors may fix,
in advance, a record date, which shall not be more than sixty days nor less than
ten days before the date of such meeting, nor more than sixty days prior to any
other action. A determination of stockholders of record entitled to notice of
or to vote at a meeting of stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board of Directors may fix a new record
date for the adjourned meeting.
SECTION 7. BENEFICIAL OWNERS. The Corporation shall be entitled
to recognize the exclusive right of a person registered on its books as the
owner of shares to receive dividends, and to vote as such owner, and to hold
liable for calls and assessments a person registered on its books as the owner
of shares, and shall not be bound to recognize any equitable or other claim to
or interest in such share or shares on the part of any other person, whether or
not it shall have express or other notice thereof, except as otherwise provided
by law.
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ARTICLE VI.
NOTICES
SECTION 1. NOTICES. Whenever written notice is required by law,
the Certificate of Incorporation or these Bylaws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at his address
as it appears on the records of the Corporation, with postage thereon prepaid,
and such notice shall be deemed to be given at the time when the same shall be
deposited in the United States mail. Written notice may also be given
personally or by telegram, telecopy, or reliable overnight courier.
SECTION 2. WAIVERS OF NOTICE. Whenever any notice is required
by law, the Certificate of Incorporation or these Bylaws, to be given to any
director, member of a committee or stockholder, a waiver thereof in writing,
signed, by the person or persons entitled to said notice, whether before or
after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII.
GENERAL PROVISIONS
SECTION 1. DIVIDENDS. Dividends upon the capital stock of the
Corporation, subject to the provisions of the Certificate of Incorporation, if
any, may be declared by the Board of Directors at any regular or Special
Meeting, and may be paid in cash, in property, or in shares of capital stock.
Before payment of any dividend, there may be set aside out of any funds of the
Corporation available for dividends such sum or sums as the Board of Directors
from time to time, in its absolute discretion, deems proper as a reserve or
reserves to meet contingencies, or for equalizing dividends, or for repairing or
maintaining any property of the Corporation, or for any proper purpose, and the
Board of Directors may modify or abolish any such reserve.
SECTION 2. DISBURSEMENTS. All checks or demands for money and
notes of the Corporation shall be signed by such officer or officers or such
other person or persons as the Board of Directors may from time to time
designate.
SECTION 3. FISCAL YEAR. The fiscal year of the Corporation
shall be fixed by resolution of the Board of Directors.
SECTION 4. CORPORATE SEAL. The corporate seal shall have
inscribed thereon the name of the Corporation, the year of its organization and
the words "Corporate
14
Seal, Delaware." The seal may be used by causing it or a facsimile thereof to
be impressed or affixed or reproduced or otherwise.
ARTICLE VIII.
INDEMNIFICATION
SECTION 1. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
OTHER THAN THOSE BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 4 of
this Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, trustee, employee or agent of, or in any
other capacity with respect to, another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in connection
with such action, suit or proceeding if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his conduct was unlawful.
SECTION 2. POWER TO INDEMNIFY IN ACTIONS, SUITS OR PROCEEDINGS
BY OR IN THE RIGHT OF THE CORPORATION. Subject to Section 4 of this Article
VIII, the Corporation shall indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was a director or officer of the Corporation,
or is or was a director or officer of the Corporation serving at the request of
the Corporation as a director, officer, trustee, employee or agent of, or in any
other capacity with respect to, another corporation, partnership, limited
liability company, joint venture, trust, employee benefit plan or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the Corporation; except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and
15
only to the extent that the Court of Chancery or the court in which such action
or suit was brought shall determine upon application that, despite the
adjudication of liability but in view of all the circumstances of the case, such
person is fairly and reasonably entitled to indemnity for such expenses which
the Court of Chancery or such other court shall deem proper.
SECTION 3. NO SPECIFIC AUTHORIZATION REQUIRED IN CERTAIN CASES.
To the extent that a director or officer of the Corporation has been successful
on the merits or otherwise in defense of any action, suit or proceeding
described above, or in defense of any claim, issue or matter therein, he shall
be indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith, without the necessity of
authorization in the specific case.
SECTION 4. SPECIFIC AUTHORIZATION REQUIRED IN CERTAIN CASES.
Any indemnification under this Article VIII (unless ordered by a court) shall be
made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in the
circumstances because he has met the applicable standard of conduct set forth in
Section 1 or 2 of this Article VIII, as the case may be. Such determination
shall be made (a) by the Board of Directors by a majority vote of a quorum
consisting of directors who were not parties to such action, suit or proceeding,
or (b) if such a quorum is not obtainable, or, even if obtainable a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders; PROVIDED, HOWEVER, that if a Change in
Control has occurred, such determination shall be made by independent legal
counsel, in a written opinion, chosen by the parties seeking indemnification and
paid for by the Corporation. To the extent, however, that a director or officer
of the Corporation has been successful on the merits or otherwise in defense of
any action, suit or proceeding described above, or in defense of any claim,
issue or matter therein, he shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
therewith, without the necessity of authorization in the specific case.
SECTION 5. GOOD FAITH DEFINED. For purposes of any
determination under Section 4 of this Article VIII, a person shall be deemed to
have acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe his
conduct was unlawful, if his action is based on the records or books of account
of the Corporation or another enterprise, or on information supplied to him by
the officers of the Corporation or another enterprise in the course of their
duties, or on the advice of legal counsel for the Corporation or another
enterprise or on information or records given or reports made to the Corporation
or another enterprise by an independent certified public accountant or by an
appraiser or other expert selected with reasonable care by the Corporation or
another enterprise. The term "another enterprise" as used in this Section 5
shall mean any other corporation or any partnership,
16
limited liability company, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, trustee, employee or agent or in any other
capacity. The provisions of this Section 5 shall not be deemed to be exclusive
or to limit in any way the circumstances in which a person may be deemed to have
met the applicable standard of conduct set forth in Section 1 or 2 of this
Article VIII, as the case may be.
SECTION 6. INDEMNIFICATION BY A COURT. Notwithstanding any
contrary determination in the specific case under Section 5 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible under
Sections 1 and 2 of this Article VIII. The basis of such indemnification by a
court shall be a determination by such court that indemnification of the
director or officer is proper in the circumstances because he has met the
applicable standards of conduct set forth in Section 1 or 2 of this Article
VIII, as the case may be. Neither a contrary determination in the specific case
under Section 4 of this Article VIII nor the absence of any determination
thereunder shall be a defense to such application or create a presumption that
the director or officer seeking indemnification has not met any applicable
standard of conduct. Notice of any application for indemnification pursuant to
this Section 6 shall be given to the Corporation promptly upon the filing of
such application. If successful, in whole or in part, the director or officer
seeking indemnification shall also be entitled to be paid the expense of
prosecuting such application.
SECTION 7. EXPENSES PAYABLE IN ADVANCE. Expenses incurred by a
director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized in this Article VIII.
SECTION 8. NONEXCLUSIVITY OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under any Bylaw, agreement (such agreements being specifically
authorized herein), contract, vote of stockholders or disinterested directors or
pursuant to the direction (however embodied) of any court of competent
jurisdiction or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office, it being the policy of the
Corporation that indemnification of the persons specified in Sections 1 and 2 of
this Article VIII shall be made to the fullest extent permitted by law. The
provisions of this Article VIII shall not be deemed to preclude the
indemnification of any person who is not specified in Section 1 or 2 of this
Article VIII but whom the Corporation has the
17
power or obligation to indemnify under the provisions of the General Corporation
Law of the State of Delaware, or otherwise.
SECTION 9. INSURANCE. The Corporation may purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, trustee, employee or agent of, or in any other capacity
with respect to, another corporation, partnership, limited liability company,
joint venture, trust, employee benefit plan or other enterprise against any
liability asserted against him and incurred by him in any such capacity, or
arising out of his status as such, whether or not the Corporation would have the
power or the obligation to indemnify him against such liability under the
provisions of this Article VIII.
SECTION 10. CERTAIN DEFINITIONS. For purposes of this Article
VIII references to "the Corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors or officers, so that any person who is or was a director or officer of
such constituent corporation, or is or was a director or officer of such
constituent corporation serving at the request of such constituent corporation
as a director, officer, trustee, employee or agent of, or in any other capacity
with respect to, another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, shall stand in the same position
under the provisions of this Article VIII with respect to the resulting or
surviving corporation as he would have with respect to such constituent
corporation if its separate existence had continued. For purposes of this
Article VIII, references to "fines" shall include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to "serving at
the request of the Corporation" shall include any service as a director or
officer of the Corporation which imposes duties on, or involves services by,
such director or officer with respect to an employee benefit plan, its
participants or beneficiaries; and a person who acted in good faith and in a
manner he reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be deemed to have acted in a
manner "not opposed to the best interests of the Corporation" as referred to in
this Article VIII.
For purposes of this Article VIII a "Change in Control" shall
mean a change in control of the Corporation of a nature that would be required
to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A
promulgated under the Exchange Act, whether or not the Corporation is then
subject to such reporting requirement; PROVIDED that, without limitation, such a
Change in Control shall be deemed to have occurred if (a) any "person" (as such
term is used in Sections 13(d) and 14(d) of the Exchange Act) is or becomes the
"beneficial owner" (as defined in Rule 13(d)-3 under the Exchange Act), directly
or indirectly, of securities of the Corporation representing fifteen percent or
more of the Corporation's then outstanding Common Stock without the
18
prior approval of at least two-thirds of the members of the Board of Directors
in office immediately prior to such acquisition, or (b) the Corporation is a
party to a merger, consolidation, sale of assets or other reorganization, or
proxy contest, as a consequence of which members of the Board of Directors in
office immediately prior to such transaction or event constitute less than a
majority of the Board of Directors thereafter, or (c) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors (including for this purpose any new director whose
election or nomination for election by the Corporation's stockholders was
approved by a vote of at least two-thirds of the directors then still in office
who were directors at the beginning of the period) cease for any reason to
constitute at least a majority of the Board of Directors.
SECTION 11. SURVIVAL OF INDEMNIFICATION AND ADVANCEMENT OF
EXPENSES. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a director
or officer and shall inure to the benefit of the heirs, executors and
administrators of such a person.
SECTION 12. LIMITATION ON INDEMNIFICATION. Notwithstanding
anything contained in this Article VIII to the contrary, except for proceedings
to enforce rights to indemnification (which shall be governed by Section 6 of
this Article VIII), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof) initiated
by such person unless such proceeding (or part thereof) was authorized or
consented to by the Board of Directors of the Corporation.
SECTION 13. INDEMNIFICATION OF EMPLOYEES AND AGENTS. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of expenses
to employees and agents of the Corporation similar to those conferred in this
Article VIII to directors and officers of the Corporation.
SECTION 14. AMENDMENT OF THIS ARTICLE VIII. No amendment or
repeal of this Article VIII shall apply to or have any effect on any right to
indemnification provided hereunder with respect to any acts or omissions
occurring prior to such amendment or repeal.
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ARTICLE IX.
AMENDMENTS
SECTION 1. Subject to the provisions of the Company's
Certificate of Incorporation, these Bylaws may be altered, amended or repealed,
in whole or in part, or new Bylaws may be adopted by the stockholders or by the
Board of Directors, provided, however, that notice of such alteration,
amendment, repeal or adoption of new Bylaws be contained in the notice of any
Special Meeting of stockholders at which such alteration, amendment, repeal or
adoption is to be voted upon. Subject to the provisions of the Company's
Certificate of Incorporation, as amended, all such amendments must be approved
by either a majority of the entire Board of Directors then in office or the
affirmative vote of the holders of not less than eighty percent of the
outstanding shares of Common Stock of the Corporation.
SECTION 2. ENTIRE BOARD OF DIRECTORS. As used in this Article
IX and in these Bylaws generally, the term "entire Board of Directors" means the
total number of directors which the Corporation would have if there were no
vacancies.
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EXHIBIT 7.7
FORM OF AFFILIATE AGREEMENT
Ladies and Gentlemen:
The undersigned is a holder of shares of [Common Stock, without par value
("KCPL Common Stock"), of Kansas City Power & Light Company, a Missouri
corporation ("KCPL")] [Common Stock, par value $1.00 per share ("UCU Common
Stock") of UtiliCorp United Inc., a Delaware corporation ("UCU")] [Preference
Stock, par value $1.00 per share ("UCU Preferred Stock"), of UtiliCorp United
Inc., a Delaware corporation ("UCU")], and is entitled to receive securities
(the "Securities") of KC United Corp., a Delaware corporation ("NEWCO"), in
connection with the merger (the "Merger") of KCPL and UCU with and into NEWCO.
The undersigned acknowledges that the undersigned may be deemed an
"affiliate" of NEWCO, KCPL or UCU within the meaning of Rule 145 ("Rule 145")
promulgated under the Securities Act of 1933, as amended (the "Act"), and/or as
such term is used in and for purposes of Accounting Series Releases 130 and 135,
as amended, of the Securities and Exchange Commission (the "Commission"),
although nothing contained herein shall be construed as an admission of such
status.
If in fact the undersigned were an affiliate of NEWCO, KCPL or UCU under
the Act, the undersigned's ability to sell, assign or transfer any Securities
received by the undersigned pursuant to the Merger may be restricted unless such
transaction is registered under the Act or an exemption from such registration
is available. The undersigned understands that such exemptions are limited and
the undersigned has obtained advice of counsel as to the nature and conditions
of such exemptions, including information with respect to the applicability to
the sale of such Securities of Rules 144 and 145(d) promulgated under the Act.
The undersigned hereby represents to and covenants with NEWCO, KCPL and UCU
that it will not sell, assign or transfer any Securities received by the
undersigned pursuant to the Merger except (i) pursuant to an effective
registration statement under the Act, (ii) by a sale made in conformity with the
volume and other limitations of Rule 145 (and otherwise in accordance with Rule
144 under the Act if the undersigned is an affiliate of NEWCO and if so required
at the time) or (iii) in a transaction which, in the opinion of independent
counsel reasonably satisfactory to NEWCO or as described in a "no-action" or
interpretive letter from the Staff of the Commission, is not required to be
registered under the Act.
The undersigned understands that neither NEWCO, KCPL nor UCU is under any
obligation to register the sale, transfer or other disposition of any Securities
by the undersigned or on behalf of the undersigned under the Act or to take any
other action necessary in order to make compliance with an exemption from such
registration available solely as a result of the Merger.
In the event of a sale of any Securities pursuant to Rule 145, the
undersigned will supply NEWCO with evidence of compliance with such Rule, in the
form of customary seller's and broker's Rule 145 representation letters or as
NEWCO may otherwise reasonably request. The undersigned understands that NEWCO
may instruct its transfer agent to withhold the transfer of any Securities
disposed of by the undersigned in a manner inconsistent with this letter.
The undersigned acknowledges and agrees that appropriate legends will be
placed on certificates representing the Securities received by the undersigned
in the Merger or held by a transferee thereof, which legends will be removed (i)
by delivery of substitute certificates upon receipt of an opinion in form and
substance reasonably satisfactory to NEWCO to the effect that such legends are
no longer required for the purposes of the Act and the rules and regulations of
the Commission promulgated thereunder or (ii) in the event of a sale of the
Securities which has been registered under the Act or made in conformity with
the provisions of Rule 145.
The undersigned further represents to, and covenants with, NEWCO that the
undersigned will not, during the 30 days prior to the effective time of the
Merger, sell, transfer or otherwise dispose of, or reduce any risk relative to,
any securities of NEWCO, KCPL or UCU, and the undersigned will not sell,
transfer or otherwise dispose of, or reduce any risk relative to, the Securities
received by the undersigned in the Merger or any other shares of the capital
stock of NEWCO until after such time as results covering at least 30 days of
operations of NEWCO subsequent to the effective time of the Merger have been
published by NEWCO in the form of a quarterly earnings report, an effective
registration statement filed with the Commission, a report to the Commission on
Form 10-K, 10-Q or 8-K, or any other public filing or announcement that includes
such results of operations.
The undersigned acknowledges that it has carefully reviewed this letter and
understands the requirements hereof and the limitations imposed upon the
distribution, sale, transfer or other disposition of the Securities.
Very truly yours,
---------------------------------------------
[Name]
Dated:
As an inducement to the above individual to deliver this letter, NEWCO
agrees that for so long as and to the extent necessary to permit such individual
to sell the Securities pursuant to Rule 145 and, to the extent applicable, Rule
144 under the Act, NEWCO shall use all
reasonable efforts to file, on a timely basis, all reports and data required to
be filed by it with the Commission pursuant to Section 13 of the Securities
Exchange Act of 1934.
Very truly yours,
NEWCO
By:
-----------------------------------------
Name:
Title:
EXHIBIT 7.14.1
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made and entered into as of the ____ day of
__________, 199______, by and between ______________________________ (the
"Company"), a Delaware corporation, and A. Xxxx Xxxxxxxx (the "Executive");
WHEREAS, the Executive is currently serving as Chairman, President and
Chief Executive Officer of Kansas City Power & Light Company, a Missouri
corporation ("KCPL"), and the Company desires to secure the continued employment
of the Executive in accordance herewith;
WHEREAS, KCPL has entered into a severance agreement (the "Severance
Agreement") with the Executive as of May 7, 1993, as amended on January 15,
1996;
WHEREAS, pursuant to the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of January 19, 1996, among KCPL, UtiliCorp United Inc., a
Delaware corporation ("UCU") and the Company, the parties thereto have agreed to
merge pursuant to the terms thereof;
WHEREAS, the Executive is willing to commit himself to be employed by the
Company on the terms and conditions herein set forth and thus to forego
opportunities elsewhere; and
WHEREAS, the parties desire to enter into this Agreement, as of the
Effective Date, as hereinafter defined, setting forth the terms and conditions
for the employment relationship of the Executive with the Company during the
Employment Period (as hereinafter defined).
NOW, THEREFORE, IN CONSIDERATION of the mutual premises, covenants and
agreements set forth below, it is hereby agreed as follows:
1. EMPLOYMENT AND TERM.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, in accordance with the terms and
provisions of this Agreement during the term thereof (as described below).
(b) TERM. The term of this Agreement shall commence as of the
Closing Date (the "Effective Date") of the merger (the "Merger") contemplated by
the Merger Agreement and shall continue until the fifth anniversary of the
Effective Date (such term being referred to hereinafter as the "Employment
Period"); and FURTHER PROVIDED, HOWEVER, that if the Merger Agreement is
terminated, then, at the time of such termination, this Agreement shall be
deemed cancelled and of no force or effect. As a condition to the Merger, the
parties hereto agree that the
Company shall be responsible for all of the premises, covenants and agreements
set forth in this Agreement.
2. DUTIES AND POWERS OF EXECUTIVE.
(a) POSITION; LOCATION. During the Employment Period, the Executive
shall serve from the Effective Date until the date of the annual meeting of
stockholders of the Company that occurs in 2002, as the Chairman of the Board of
Directors of the Company (the "Board") with such authority, duties and
responsibilities with respect to such position as set forth on Annex A attached
hereto, and thereafter the Executive shall serve as the Vice Chairman of the
Board with such authority, duties and responsibilities with respect to such
position as set forth on Annex A attached hereto. The titles, authority, duties
and responsibilities set forth in Annex A attached hereto may be changed from
time to time but only with the mutual written agreement of the Executive and the
Company. The Executive's services shall be performed primarily at the Company's
headquarters which shall be located in the Kansas City metropolitan area.
(b) BOARD MEMBERSHIP. The Executive shall be a member of the Board
on the first day of the Employment Period, and the Board shall propose the
Executive for re-election to the Board throughout the Employment Period.
(c) ATTENTION. During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive under this Agreement,
use the Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
3. COMPENSATION. The Executive shall receive the following compensation
for his services hereunder to the Company:
(a) SALARY. During the Employment Period, the Executive's annual
base salary (the "Annual Base Salary"), payable in accordance with the Company's
general payroll practices, in effect from time to time, shall be at the annual
rate established by the Board, but in no event less than the greater of his
annual base salary with KCPL as in effect as of the day before the Effective
Date and the annual base salary of any other senior executive officer of the
Company or its subsidiaries. The Board may from time to time direct such upward
adjustments in Annual Base Salary as the Board deems to be necessary or
desirable, including, without limitation, adjustments in order to reflect
increases in the cost of living. The Annual Base Salary shall not be reduced
after any increase thereof. Any increase in Annual Base Salary shall not serve
to limit or reduce any other obligation of the Company under this Agreement.
-2-
(b) INCENTIVE COMPENSATION. During the Employment Period, the
Executive shall participate in short-term incentive compensation plans and long-
term incentive compensation plans (the latter to consist of plans offering stock
options, restricted stock and other long-term incentive compensation) providing
him with the opportunity to earn, on a year-by-year basis, short-term and long-
term incentive compensation (the "Incentive Compensation") at least equal to the
greater of (i) the amounts that he had the opportunity to earn under the
comparable plans of KCPL as in effect immediately before the Effective Time, or
(ii) the amounts that any other senior executive officer of the Company has the
opportunity to earn under the plans of the Company and its subsidiaries for that
year.
(c) RETIREMENT, INCENTIVE AND WELFARE BENEFIT PLANS. In addition to
3(b), during the Employment Period and so long as the Executive is employed by
the Company, he shall be eligible to participate in all other incentive, stock
option, restricted stock, performance unit, savings, retirement and welfare
plans, practices, policies and programs applicable generally to employees and/or
senior executive officers of the Company and its subsidiaries, except with
respect to any benefits under any plan, practice, policy or program to which the
Executive has waived his rights in writing. Notwithstanding anything in this
Agreement to the contrary, and in addition to any other payments or benefits
provided hereunder, for all periods following the termination of the Executive's
employment (i) for any reason during the term of this Agreement but after the
Executive has satisfied the requirements for early retirement under any
retirement plans or arrangements maintained by KCPL, as in effect on the
Effective Date or by the Company after the Effective Date (the "Plans") or (ii)
at any other time upon the consent of the Board, the Company shall provide the
Executive (and, if elected by the Executive pursuant to the following sentence,
his designated beneficiary) with retirement income, in addition to any benefits
provided under the Plans, in an amount each year during the Executive's life
(and, if elected by the Executive pursuant to the following sentence, the life
of his designated beneficiary) equal to the excess, if any, of (i) sixty percent
(60%) of the Executive's Annual Base Salary in effect immediately prior to his
termination of employment (reduced based upon the actuarial assumptions set
forth in the Company's tax-qualified defined benefit retirement plan (the
"Qualified Plan") if the Executive elects a form of benefit payment other than a
straight life annuity pursuant to the following sentence) over (ii) the
aggregate amount of retirement income, if any, that would have been paid to the
Executive under the Plans during such year had the Executive elected to receive
his benefits thereunder in the same form as he elects to receive his benefits
hereunder pursuant to the following sentence. The Executive may elect to
receive the amounts payable pursuant to the preceding sentence in any form
permitted under the Qualified Plan. Such election must be made not less than 90
days preceding the payment of any such benefits. In addition, the Company shall
assume and continue the Severance Agreement.
(d) INSURANCE. During the Employment Period, the Company shall
provide the Executive with life insurance coverage providing a death benefit to
such beneficiary or beneficiaries as the Executive may designate of not less
than three times his Annual Base Salary.
-3-
(e) EXPENSES. The Company shall reimburse the Executive for all
expenses, including those for travel and entertainment, properly incurred by him
in the performance of his duties hereunder in accordance with policies
established from time to time by the Board.
(f) FRINGE BENEFITS. During the Employment Period and so long as the
Executive is employed by the Company, he shall be entitled to receive fringe
benefits in accordance with the plans, practices, programs and policies of the
Company from time to time in effect, commensurate with his position and at least
the same as those received by any senior executive officer of the Company.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH. The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Period.
(b) BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment during the Employment Period for Cause. For purposes of
this Agreement, "Cause" shall mean the conviction of the Executive for the
commission of a felony which, at the time of such commission, has a materially
adverse effect on the Company.
(c) BY THE COMPANY WITHOUT CAUSE. Notwithstanding any other
provision of this Agreement, the Company may terminate the Executive's
employment other than by a termination for Cause during the Employment Period,
but only upon the affirmative vote of two-thirds of the membership of the Board.
(d) BY THE EXECUTIVE FOR GOOD REASON. The Executive may terminate
his employment during the Employment Period for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) the reduction in the Executive's Annual Base Salary as
specified in Section 3(a) of this Agreement, the Executive's Incentive
Compensation benefit as specified in Section 3(b) of this Agreement,
or any other benefit or payment described in Section 3 of this
Agreement;
(ii) the change without the Executive's consent of the
Executive's title, authority, duties or responsibilities as specified
in Section 2(a) of this Agreement;
(iii) the Company's requiring the Executive without his consent
to be based at any office or location other than the Company's
headquarters which shall be located in the Kansas City metropolitan
area; or
(iv) any breach by the Company of any other material provision of
this Agreement;
-4-
PROVIDED, HOWEVER, that during the 30-day period commencing on the third
anniversary of the Effective Date, the termination by the Executive for any
reason shall constitute a termination by the Executive of his employment for
Good Reason.
(e) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated, and (iii) if the
Date of Termination (as defined in Section 4(f)) is other than the date of
receipt of such notice, specifies the termination date (which date shall be not
more than 30 days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
(f) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (iii) if the Executive's employment is terminated by reason
of death, the Date of Termination shall be the date of death.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) TERMINATION OTHER THAN FOR CAUSE. During the Employment Period,
if the Company shall terminate the Executive's employment (other than in the
case of a termination for Cause), the Executive shall terminate his employment
for Good Reason or the Executive's employment shall terminate by reason of death
(termination in any such case being referred to as a "Termination"):
(i) the Company shall pay to the Executive a lump sum amount in
cash equal to the sum of (A) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid,
(B) an amount equal to the Incentive Compensation benefit described in
Section 3(b) of this Agreement for the fiscal year that includes the
Date of Termination multiplied by a fraction the numerator of which
shall be the number of days from the beginning of such fiscal year to
and including the Date of Termination and the denominator of which
shall be 365, and (C) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay, in
-5-
each case to the extent not theretofore paid. (The amounts specified
in clauses (A), (B) and (C) shall be hereinafter referred to as the
"Accrued Obligations".) The amounts specified in this Section 5(a)(i)
shall be paid within 30 days after the Date of Termination; and
(ii) in the event of Termination other than by reason of the
Executive's death, then (A) the Company shall pay to the Executive a
lump sum amount, in cash, equal to the present value of the Annual
Base Salary and the Incentive Compensation benefit described in
Section 3(b) of this Agreement payable through the end of the
Employment Period or, if longer, for a period of three years (the
"Continuation Period"), each, at the rate, in effect at the time
Notice of Termination is given, and, with respect to the Incentive
Compensation, assuming the full achievement of all target performance
goals in effect at the time that Notice of Termination is given, such
amount to be paid within 30 days of such Date of Termination; (B)
except with respect to the benefits provided pursuant to clause (d)
below, the Company shall pay to the Executive the value of all
benefits to which the Executive would have been entitled under
Sections 3(d) and (f) had he remained in employment with the Company
until the end of the Continuation Period; (C) the Company shall pay
the value of all deferred compensation amounts (together with any
accrued interest or earnings thereon) and all executive life insurance
benefits whether or not then vested or payable; and (D) the Company
shall continue medical and welfare benefits to the Executive and/or
the Executive's family at least equal to those which would have been
provided had the Executive remained in employment to the end of the
Continuation Period (excluding benefits to which the Executive has
waived his rights in writing), such benefits to be in accordance with
the most favorable medical and welfare benefit plans, practices,
programs or policies (the "M&W Plans") of the Company as in effect and
applicable to any senior executive officer of the Company and his or
her family during the 90-day period immediately preceding the Date of
Termination or, if more favorable to the Executive, as in effect at
any time thereafter with respect to any senior executive officer of
the Company (but on a prospective basis only unless and then only to
the extent, such more favorable M&W Plans are by their terms
retroactive); PROVIDED, HOWEVER, that if the Executive becomes
employed with another employer and is eligible to receive medical or
other welfare benefits under another employer-provided plan, the
benefits under the M&W Plans shall be secondary to those provided
under such other plan during such applicable period of eligibility.
(b) TERMINATION BY THE COMPANY FOR CAUSE OR BY THE EXECUTIVE OTHER
THAN FOR GOOD REASON. Subject to the provisions of Section 6 of this Agreement,
if the Executive's employment shall be terminated for Cause during the
Employment Period, or if the Executive terminates employment during the
Employment Period other than a termination for Good Reason, the Company shall
have no further obligations to the Executive under this Agreement other than the
obligation to pay to the Executive the Annual Base Salary through the Date of
Termination
-6-
plus the amount of any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon), in each case to the
extent theretofore unpaid.
(c) SEVERANCE AGREEMENT. Notwithstanding the foregoing, the benefits
provided under subsections (a) and (b) of this Section 5 shall be reduced by any
amounts paid pursuant to the Severance Agreement.
6. NONEXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, plan,
program, policy or practice provided by the Company and for which the Executive
may qualify (except with respect to any benefit to which the Executive has
waived his rights in writing), nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any other contract or
agreement entered into after the Effective Date with the Company. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any benefit, plan, policy, practice or program of, or any contract or
agreement entered into with, the Company shall be payable in accordance with
such benefit, plan, policy, practice or program or contract or agreement except
as explicitly modified by this Agreement.
7. FULL SETTLEMENT; MITIGATION. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts
(including amounts for damages for breach) payable to the Executive under any of
the provisions of this Agreement and, except as provided in Section 5(a)(ii)(D),
such amounts shall not be reduced whether or not the Executive obtains other
employment. If there occurs a dispute between the Executive and the Company as
to the interpretation, terms, validity or enforceability of (including any
dispute about the amount of any payment pursuant to this Agreement) this
Agreement, the Company agrees to pay all legal fees and expenses which the
Executive may reasonably incur as a result of any such dispute.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret, confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by KCPL and the Company or any of their
affiliated companies and that shall not have been or now or hereafter have
become public knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement). During the Employment Period,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
-7-
9. SUCCESSORS.
(a) ASSIGNMENT BY EXECUTIVE. This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive's legal representatives.
(b) SUCCESSORS AND ASSIGNS OF COMPANY. This Agreement shall inure to
the benefit of and be binding upon the Company, its successors and assigns.
(c) ASSUMPTION. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its businesses and/or assets as
aforesaid that assumes and agrees to perform this Agreement by operation of law,
or otherwise.
10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Missouri, without reference to its
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of such
amendment, modification, repeal, waiver, extension or discharge is sought. No
person, other than pursuant to a resolution of the Board or a committee thereof,
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto.
(b) NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return-receipt requested, postage prepaid,
addressed, in either case, at the Company's headquarters or to such other
address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) TAXES. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
-8-
(e) NO WAIVER. The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 4(d) of this Agreement,
or the right of the Company to terminate the Executive's employment for Cause
pursuant to Section 4(b) of this Agreement shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(f) ENTIRE AGREEMENT. Except for the Severance Agreement, which
shall remain in full force and effect and, in accordance with its terms, be
assumed by the Company as of the Effective Date, this instrument contains the
entire agreement of the Executive, the Company or any predecessor or subsidiary
thereof with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements are merged
herein and superseded hereby.
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization from
its Board of Directors, the Company have caused this Agreement to be executed as
of the day and year first above written.
[Company]
________________________________________
Name:
Title:
________________________________________
A. Xxxx Xxxxxxxx
-9-
ANNEX A
TO EMPLOYMENT
AGREEMENT
CHAIRMAN OF THE BOARD
The Chairman of the Board shall be a director and shall preside at meetings
of the Board and meetings of stockholders. The Chairman shall be responsible
for (a) board and stockholder governance, (b) external relations with industry,
cities and communities, (c) economic development initiatives, (d) oversight of
issues relating to the Nuclear Regulatory Commission and nuclear operations, (e)
corporate wide business management and (f) implementation of business plans with
other team members. The Chairman shall share with the Chief Executive Officer
responsibility for (a) implementation of the Merger, (b) external relations with
the financial community, (c) corporate governance, (d) setting the agenda for
all meetings of the Board (and committees thereof) and (e) enterprise support.
The Chairman of the Board shall be a member of the Executive Committee and an ex
officio member of all standing committees.
VICE-CHAIRMAN OF THE BOARD
The Vice-Chairman of the Board shall be a director and shall preside at
meetings of the Board and meetings of stockholders in the absence of the
Chairman of the Board or upon the inability of the Chairman of the Board to act.
The Vice-Chairman shall perform such duties as may from time-to-time be assigned
to him by the Board.
CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall be a director, shall submit a report of
the operations of the Company for the fiscal year to the stockholders at their
annual meeting and from time-to-time shall report to the Board all matters
within his knowledge which the interests of the Company may require be brought
to their notice. The Chief Executive Officer shall be responsible for (a) the
strategic direction, development and oversight of the Company, (b) the
international growth of the Company and (c) the deployment of strategic assets
of the Company (including executive management). The Chief Executive Officer
shall share with the Chairman of the Board responsibility for (a) implementation
of the Merger, (b) external relations with the financial community, (c)
corporate governance, (d) setting the agenda for all meetings of the Board (and
committees thereof) and (e) enterprise support. The Chief Executive Officer
shall be a member of the Executive Committee and an ex officio member of all
standing committees. The President, the Chief Operating Officer, Chief
Financial Officer and Internal Auditing Department will report directly to the
Chief Executive Officer.
EXHIBIT 7.14.2
EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT made and entered into as of the______day of
______________, 199 , by and between________________________________
(the "Company"), a Delaware corporation, and Xxxxxxx X. Xxxxx, Xx. (the
"Executive");
WHEREAS, the Executive is currently serving as Chairman, President and
Chief Executive Officer of UtiliCorp United Inc., a Delaware corporation
("UCU"), and the Company desires to secure the continued employment of the
Executive in accordance herewith;
WHEREAS, UCU has entered into a severance agreement (the "Severance
Agreement") with the Executive as of October 17, 1995;
WHEREAS, pursuant to the Agreement and Plan of Merger (the "Merger
Agreement"), dated as of January 19, 1996 among Kansas City Power & Light
Company, a Missouri corporation ("KCPL"), UCU and the Company, the parties
thereto have agreed to merge pursuant to the terms thereof;
WHEREAS, the Executive is willing to commit himself to be employed by the
Company on the terms and conditions herein set forth and thus to forego
opportunities elsewhere; and
WHEREAS, the parties desire to enter into this Agreement, as of the
Effective Date, as hereinafter defined, setting forth the terms and conditions
for the employment relationship of the Executive with the Company during the
Employment Period (as hereinafter defined).
NOW, THEREFORE, IN CONSIDERATION of the mutual premises, covenants and
agreements set forth below, it is hereby agreed as follows:
1. EMPLOYMENT AND TERM.
(a) EMPLOYMENT. The Company agrees to employ the Executive, and the
Executive agrees to be employed by the Company, in accordance with the terms and
provisions of this Agreement during the term thereof (as described below).
(b) TERM. The term of this Agreement shall commence as of the
Closing Date (the "Effective Date") of the merger (the "Merger") contemplated by
the Merger Agreement and shall continue until the fifth anniversary of the
Effective Date (such term being referred to hereinafter as the "Employment
Period"); and FURTHER PROVIDED, HOWEVER, that if the Merger Agreement is
terminated, then, at the time of such termination, this Agreement shall be
deemed cancelled and of no force or effect. As a condition to the Merger, the
parties hereto agree that
the Company shall be responsible for all the premises, covenants and agreements
set forth in this Agreement.
2. DUTIES AND POWERS OF EXECUTIVE.
(a) POSITION; LOCATION. During the Employment Period, the Executive
shall serve from the Effective Date until the earlier of (i) the date of the
annual meeting of stockholders of the Company that occurs in 2002, and (ii) the
date on which Xxxx Xxxxxxxx shall no longer serve as Chairman of the Board of
Directors of the Company (the "Board"), as the Vice-Chairman of the Board and
Chief Executive Officer of the Company with such authority, duties and
responsibilities with respect to such positions as set forth on Annex A attached
hereto, and thereafter the Executive shall serve as Chairman of the Board and
Chief Executive Officer of the Company with such authority, duties and
responsibilities with respect to such positions as set forth on Annex A attached
hereto. The titles, authority, duties and responsibilities set forth in Annex A
attached hereto may be changed from time to time but only with the mutual
written agreement of the Executive and the Company. The Executive's services
shall be performed primarily at the Company's headquarters which shall be
located in the Kansas City metropolitan area.
(b) BOARD MEMBERSHIP. The Executive shall be a member of the Board
on the first day of the Employment Period, and the Board shall propose the
Executive for re-election to the Board throughout the Employment Period.
(c) ATTENTION. During the Employment Period, and excluding any
periods of vacation and sick leave to which the Executive is entitled, the
Executive shall devote reasonable attention and time during normal business
hours to the business and affairs of the Company and, to the extent necessary to
discharge the responsibilities assigned to the Executive under this Agreement,
use the Executive's reasonable best efforts to carry out such responsibilities
faithfully and efficiently. It shall not be considered a violation of the
foregoing for the Executive to serve on corporate, industry, civic or charitable
boards or committees, so long as such activities do not significantly interfere
with the performance of the Executive's responsibilities as an employee of the
Company in accordance with this Agreement.
3. COMPENSATION. The Executive shall receive the following compensation
for his services hereunder to the Company:
(a) SALARY. During the Employment Period, the Executive's annual
base salary (the "Annual Base Salary"), payable in accordance with the Company's
general payroll practices, in effect from time to time, shall be at the annual
rate established by the Board, but in no event less than the greater of his
annual base salary with UCU as in effect as of the day before the Effective Date
and the annual base salary of any other senior executive officer of the Company
or its subsidiaries. The Board may from time to time direct such upward
adjustments in Annual Base Salary as the Board deems to be necessary or
desirable, including, without limitation, adjustments in order to reflect
increases in the cost of living. The Annual Base Salary shall not
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be reduced after any increase thereof. Any increase in the Annual Base Salary
shall not serve to limit or reduce any other obligation of the Company under
this Agreement.
(b) INCENTIVE COMPENSATION. During the Employment Period, the
Executive shall participate in short-term incentive compensation plans and long-
term incentive compensation plans (the latter to consist of plans offering stock
options, restricted stock and other long-term incentive compensation) providing
him with the opportunity to earn, on a year-by-year basis, short-term and long-
term incentive compensation (the "Incentive Compensation") at least equal to the
greater of (i) the amounts that he had the opportunity to earn under the
comparable plans of UCU as in effect immediately before the Effective Time, or
(ii) the amounts that any other senior executive officer of the Company has the
opportunity to earn under the plans of the Company and its subsidiaries for that
year.
(c) RETIREMENT, INCENTIVE AND WELFARE BENEFIT PLANS. In addition to
3(b), during the Employment Period and so long as the Executive is employed by
the Company, he shall be eligible to participate in all other incentive, stock
option, restricted stock, performance unit, savings, retirement and welfare
plans, practices, policies and programs applicable generally to employees and/or
senior executive officers of the Company and its subsidiaries, except with
respect to any benefits under any plan, practice, policy or program to which the
Executive has waived his rights in writing. Notwithstanding anything in this
Agreement to the contrary, and in addition to any other payments or benefits
provided hereunder, for all periods following the termination of the Executive's
employment (i) for any reason during the term of this Agreement but after the
Executive has satisfied the requirements for early retirement under any
retirement plans or arrangements maintained by UCU, as in effect on the
Effective Date or by the Company after the Effective Date (the "Plans") or (ii)
at any other time upon the consent of the Board, the Company shall provide the
Executive (and, if elected by the Executive pursuant to the following sentence,
his designated beneficiary) with retirement income, in addition to any benefits
provided under the Plans, in an amount each year during the Executive's life
(and, if elected by the Executive pursuant to the following sentence, the life
of his designated beneficiary) equal to the excess, if any, of (i) sixty percent
(60%) of the Executive's Annual Base Salary in effect immediately prior to his
termination of employment (reduced based upon the actuarial assumptions set
forth in the Company's tax-qualified defined benefit retirement plan (the
"Qualified Plan") if the Executive elects a form of benefit payment other than a
straight life annuity pursuant to the following sentence) over (ii) the
aggregate amount of retirement income, if any, that would have been paid to the
Executive under the Plans during such year had the Executive elected to receive
his benefits thereunder in the same form as he elects to receive his benefits
hereunder pursuant to the following sentence. The Executive may elect to
receive the amounts payable pursuant to the preceding sentence in any form
permitted under the Qualified Plan. Such election must be made not less than 90
days preceding the payment of any such benefits. In addition, the Company shall
assume and continue the Severance Agreement.
(d) INSURANCE. During the Employment Period, the Company shall
provide the Executive with life insurance coverage providing a death benefit to
such beneficiary or beneficiaries as the Executive may designate of not less
than three times his Annual Base Salary.
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(e) EXPENSES. The Company shall reimburse the Executive for all
expenses, including those for travel and entertainment, properly incurred by him
in the performance of his duties hereunder in accordance with policies
established from time to time by the Board.
(f) FRINGE BENEFITS. During the Employment Period and so long as the
Executive is employed by the Company, he shall be entitled to receive fringe
benefits in accordance with the plans, practices, programs and policies of the
Company from time to time in effect, commensurate with his position and at least
the same as to those received by any senior executive officer of the Company.
4. TERMINATION OF EMPLOYMENT.
(a) DEATH. The Executive's employment shall terminate automatically
upon the Executive's death during the Employment Period.
(b) BY THE COMPANY FOR CAUSE. The Company may terminate the
Executive's employment during the Employment Period for Cause. For purposes of
this Agreement, "Cause" shall mean the conviction of the Executive for the
commission of a felony which, at the time of such commission, has a materially
adverse effect on the Company.
(c) BY THE COMPANY WITHOUT CAUSE. Notwithstanding any other
provision of this Agreement, the Company may terminate the Executive's
employment other than by a termination for Cause during the Employment Period,
but only upon the affirmative vote of two-thirds of the membership of the Board.
(d) BY THE EXECUTIVE FOR GOOD REASON. The Executive may terminate
his employment during the Employment Period for Good Reason. For purposes of
this Agreement, "Good Reason" shall mean:
(i) the reduction in the Executive's Annual Base Salary as
specified in Section 3(a) of this Agreement, the Executive's Incentive
Compensation benefit as specified in Section 3(b) of this Agreement,
or any other benefit or payment described in Section 3 of this
Agreement;
(ii) the change without the Executive's consent of the
Executive's title, authority, duties or responsibilities as specified
in Section 2(a) of this Agreement;
(iii) the Company's requiring the Executive without his consent
to be based at any office or location other than the Company's
headquarters which shall be located in the Kansas City metropolitan
area; or
(iv) any breach by the Company of any other material provision of
this Agreement;
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provided, however, that during the 30-day period commencing on the third
anniversary of the Effective Date, the termination by the Executive for any
reason shall constitute a termination by the Executive of his employment for
Good Reason.
(e) NOTICE OF TERMINATION. Any termination by the Company for Cause,
or by the Executive for Good Reason, shall be communicated by Notice of
Termination to the other party hereto given in accordance with Section 10(b) of
this Agreement. For purposes of this Agreement, a "Notice of Termination" means
a written notice which (i) indicates the specific termination provision in this
Agreement relied upon, (ii) to the extent applicable, sets forth in reasonable
detail the facts and circumstances claimed to provide a basis for termination of
the Executive's employment under the provision so indicated, and (iii) if the
Date of Termination (as defined in Section 4(f)) is other than the date of
receipt of such notice, specifies the termination date (which date shall not be
more than 30 days after the giving of such notice). The failure by the
Executive or the Company to set forth in the Notice of Termination any fact or
circumstance which contributes to a showing of Good Reason or Cause shall not
waive any right of the Executive or the Company hereunder or preclude the
Executive or the Company from asserting such fact or circumstance in enforcing
the Executive's or the Company's rights hereunder.
(f) DATE OF TERMINATION. "Date of Termination" means (i) if the
Executive's employment is terminated by the Company for Cause, or by the
Executive for Good Reason, the date of receipt of the Notice of Termination or
any later date specified therein, as the case may be, (ii) if the Executive's
employment is terminated by the Company other than for Cause, the Date of
Termination shall be the date on which the Company notifies the Executive of
such termination and (iii) if the Executive's employment is terminated by reason
of death, the Date of Termination shall be the date of death.
5. OBLIGATIONS OF THE COMPANY UPON TERMINATION.
(a) TERMINATION OTHER THAN FOR CAUSE. During the Employment Period,
if the Company shall terminate the Executive's employment (other than in the
case of a termination for Cause), the Executive shall terminate his employment
for Good Reason or the Executive's employment shall terminate by reason of death
(termination in any such case being referred to as a "Termination"):
(i) the Company shall pay to the Executive a lump sum amount in
cash equal to the sum of (A) the Executive's Annual Base Salary
through the Date of Termination to the extent not theretofore paid,
(B) an amount equal to the Incentive Compensation benefit described in
Section 3(b) of this Agreement for the fiscal year that includes the
Date of Termination multiplied by a fraction the numerator of which
shall be the number of days from the beginning of such fiscal year to
and including the Date of Termination and the denominator of which
shall be 365, and (C) any compensation previously deferred by the
Executive (together with any accrued interest or earnings thereon) and
any accrued vacation pay, in
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each case to the extent not theretofore paid. (The amounts specified
in clauses (A), (B) and (C) shall be hereinafter referred to as the
"Accrued Obligations".) The amounts specified in this Section 5(a)(i)
shall be paid within 30 days after the Date of Termination; and
(ii) in the event of Termination other than by reason of the
Executive's death, then (A) the Company shall pay to the Executive a
lump sum amount, in cash, equal to the present value of the Annual
Base Salary and the Incentive Compensation benefit described in
Section 3(b) of this Agreement payable through the end of the
Employment Period or, if longer, for a period of three years (the
"Continuation Period"), each, at the rate, in effect at the time
Notice of Termination is given, and, with respect to the Incentive
Compensation, assuming the full achievement of all target performance
goals in effect at the time that Notice of Termination is given, such
amount to be paid within 30 days of such Date of Termination; (B)
except with respect to the benefits provided pursuant to clause (d)
below, the Company shall pay to the Executive the value of all
benefits to which the Executive would have been entitled under
Sections 3(d) and (f) had he remained in employment with the Company
until the end of the Continuation Period; (C) the Company shall pay
the value of all deferred compensation amounts (together with any
accrued interest or earnings thereon) and all executive life insurance
benefits whether or not then vested or payable; and (D) the Company
shall continue medical and welfare benefits to the Executive and/or
the Executive's family at least equal to those which would have been
provided had the Executive remained in employment to the end of the
Continuation Period (excluding benefits to which the Executive has
waived his rights in writing), such benefits to be in accordance with
the most favorable medical and welfare benefit plans, practices,
programs or policies (the "M&W Plans") of the Company as in effect and
applicable to any senior executive officer of the Company and his or
her family during the 90-day period immediately preceding the Date of
Termination or, if more favorable to the Executive, as in effect at
any time thereafter with respect to any senior executive officer of
the Company (but on a prospective basis only unless and then only to
the extent, such more favorable M&W Plans are by their terms
retroactive); PROVIDED, HOWEVER, that if the Executive becomes
employed with another employer and is eligible to receive medical or
other welfare benefits under another employer-provided plan, the
benefits under the M&W Plans shall be secondary to those provided
under such other plan during such applicable period of eligibility.
(b) TERMINATION BY THE COMPANY FOR CAUSE OR BY THE EXECUTIVE OTHER
THAN FOR GOOD REASON. Subject to the provisions of Section 6 of this Agreement,
if the Executive's employment shall be terminated for Cause during the
Employment Period, or if the Executive terminates employment during the
Employment Period other than a termination for Good Reason, the Company shall
have no further obligations to the Executive under this Agreement other than the
obligation to pay to the Executive the Annual Base Salary through the Date of
Termination
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plus the amount of any compensation previously deferred by the Executive
(together with any accrued interest or earnings thereon), in each case to the
extent theretofore unpaid.
(c) SEVERANCE AGREEMENT. Notwithstanding the foregoing, the benefits
provided under subsections (a) and (b) of this Section 5 shall be reduced by any
amounts paid pursuant to the Severance Agreement.
6. NONEXCLUSIVITY OF RIGHTS. Nothing in this Agreement shall prevent or
limit the Executive's continuing or future participation in any benefit, plan,
program, policy or practice provided by the Company and for which the Executive
may qualify (except with respect to any benefit to which the Executive has
waived his rights in writing), nor shall anything herein limit or otherwise
affect such rights as the Executive may have under any other contract or
agreement entered into after the Effective Date with the Company. Amounts which
are vested benefits or which the Executive is otherwise entitled to receive
under any benefit, plan, policy, practice or program of, or any contract or
agreement entered into with, the Company shall be payable in accordance with
such benefit, plan, policy, practice or program or contract or agreement except
as explicitly modified by this Agreement.
7. FULL SETTLEMENT; MITIGATION. The Company's obligation to make the
payments provided for in this Agreement and otherwise to perform its obligations
hereunder shall not be affected by any set-off, counterclaim, recoupment,
defense or other claim, right or action which the Company may have against the
Executive or others. In no event shall the Executive be obligated to seek other
employment or take any other action by way of mitigation of the amounts
(including amounts for damages for breach) payable to the Executive under any of
the provisions of this Agreement and, except as provided in Section 5(a)(ii)(D),
such amounts shall not be reduced whether or not the Executive obtains other
employment. If there occurs a dispute between the Executive and the Company as
to the interpretation, terms, validity or enforceability of (including any
dispute about the amount of any payment pursuant to this Agreement) this
Agreement, the Company agrees to pay all legal fees and expenses which the
Executive may reasonably incur as a result of any such dispute.
8. CONFIDENTIAL INFORMATION. The Executive shall hold in a fiduciary
capacity for the benefit of the Company all secret, confidential information,
knowledge or data relating to the Company or any of its affiliated companies,
and their respective businesses, which shall have been obtained by the Executive
during the Executive's employment by UCU and the Company or any of their
affiliated companies and that shall not have been or now or hereafter have
become public knowledge (other than by acts by the Executive or representatives
of the Executive in violation of this Agreement). During the Employment Period,
the Executive shall not, without the prior written consent of the Company or as
may otherwise be required by law or legal process, communicate or divulge any
such information, knowledge or data to anyone other than the Company and those
designated by it.
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9. SUCCESSORS.
(a) ASSIGNMENT BY EXECUTIVE. This Agreement is personal to the
Executive and without the prior written consent of the Company shall not be
assignable by the Executive otherwise than by will or the laws of descent and
distribution. This Agreement shall inure to the benefit of and be enforceable
by the Executive's legal representatives.
(b) SUCCESSORS AND ASSIGNS OF COMPANY. This Agreement shall inure to
the benefit of and be binding upon the Company, its successors and assigns.
(c) ASSUMPTION. The Company shall require any successor (whether
direct or indirect, by purchase, merger, consolidation or otherwise) to all or
substantially all of the business and/or assets of the Company to assume
expressly and agree to perform this Agreement in the same manner and to the same
extent that the Company would be required to perform it if no such succession
had taken place. As used in this Agreement, "Company" shall mean the Company as
hereinbefore defined and any successor to its businesses and/or assets as
aforesaid that assumes and agrees to perform this Agreement by operation of law,
or otherwise.
10. MISCELLANEOUS.
(a) GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Missouri, without reference to its
principles of conflict of laws. The captions of this Agreement are not part of
the provisions hereof and shall have no force or effect. This Agreement may not
be amended, modified, repealed, waived, extended or discharged except by an
agreement in writing signed by the party against whom enforcement of such
amendment, modification, repeal, waiver, extension or discharge is sought. No
person, other than pursuant to a resolution of the Board or a committee thereof,
shall have authority on behalf of the Company to agree to amend, modify, repeal,
waive, extend or discharge any provision of this Agreement or anything in
reference thereto.
(b) NOTICES. All notices and other communications hereunder shall be
in writing and shall be given by hand delivery to the other party or by
registered or certified mail, return-receipt requested, postage prepaid,
addressed, in either case, at the Company's headquarters or to such other
address as either party shall have furnished to the other in writing in
accordance herewith. Notice and communications shall be effective when actually
received by the addressee.
(c) SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(d) TAXES. The Company may withhold from any amounts payable under
this Agreement such federal, state or local taxes as shall be required to be
withheld pursuant to any applicable law or regulation.
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(e) NO WAIVER. The Executive's or the Company's failure to insist
upon strict compliance with any provision hereof or any other provision of this
Agreement or the failure to assert any right the Executive or the Company may
have hereunder, including, without limitation, the right of the Executive to
terminate employment for Good Reason pursuant to Section 4(d) of this Agreement,
or the right of the Company to terminate the Executive's employment for Cause
pursuant to Section 4(b) of this Agreement shall not be deemed to be a waiver of
such provision or right or any other provision or right of this Agreement.
(f) ENTIRE AGREEMENT. Except for the Severance Agreement, which
shall remain in full force and effect and, in accordance with its terms, be
assumed by the Company as of the Effective Date, this instrument contains the
entire agreement of the Executive, the Company or any predecessor or subsidiary
thereof with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements are merged
herein and superseded hereby.
IN WITNESS WHEREOF, the Executive and, pursuant to due authorization from
its Board of Directors, the Company have caused this Agreement to be executed as
of the day and year first above written.
[Company]
-------------------------------------------------
Name:
Title:
-------------------------------------------------
Xxxxxxx X. Xxxxx, Xx.
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ANNEX A
TO EMPLOYMENT
AGREEMENT
CHAIRMAN OF THE BOARD
The Chairman of the Board shall be a director and shall preside at meetings
of the Board and meetings of stockholders. The Chairman shall be responsible
for (a) board and stockholder governance, (b) external relations with industry,
cities and communities, (c) economic development initiatives, (d) oversight of
issues relating to the Nuclear Regulatory Commission and nuclear operations, (e)
corporate wide business management and (f) implementation of business plans with
other team members. The Chairman shall share with the Chief Executive Officer
responsibility for (a) implementation of the Merger, (b) external relations with
the financial community, (c) corporate governance, (d) setting the agenda for
all meetings of the Board (and committees thereof) and (e) enterprise support.
The Chairman of the Board shall be a member of the Executive Committee and an ex
officio member of all standing committees.
VICE-CHAIRMAN OF THE BOARD
The Vice-Chairman of the Board shall be a director and shall preside at
meetings of the Board and meetings of stockholders in the absence of the
Chairman of the Board or upon the inability of the Chairman of the Board to act.
The Vice-Chairman shall perform such duties as may from time-to-time be assigned
to him by the Board.
CHIEF EXECUTIVE OFFICER
The Chief Executive Officer shall be a director, shall submit a report of
the operations of the Company for the fiscal year to the stockholders at their
annual meeting and from time-to-time shall report to the Board all matters
within his knowledge which the interests of the Company may require be brought
to their notice. The Chief Executive Officer shall be responsible for (a) the
strategic direction, development and oversight of the Company, (b) the
international growth of the Company and (c) the deployment of strategic assets
of the Company (including executive management). The Chief Executive Officer
shall share with the Chairman of the Board responsibility for (a) implementation
of the Merger, (b) external relations with the financial community, (c)
corporate governance, (d) setting the agenda for all meetings of the Board (and
committees thereof) and (e) enterprise support. The Chief Executive Officer
shall be a member of the Executive Committee and an ex officio member of all
standing committees. The President, the Chief Operating Officer, Chief
Financial Officer and the Internal Auditing Department will report directly to
the Chief Executive Officer.
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