EXHIBIT 99.2
EXECUTION COPY
THIRD AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
by and among
ORION POWER HOLDINGS, INC.,
GS CAPITAL PARTNERS II, L.P. (AND CERTAIN AFFILIATES),
CONSTELLATION ENTERPRISES, INC. (AND CERTAIN AFFILIATES),
CERTAIN AFFILIATES OF MITSUBISHI CORPORATION
and
TOKYO ELECTRIC POWER COMPANY INTERNATIONAL B.V.
Dated as of April 26, 2000
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT, dated as of
April 26, 2000 (this "Agreement"), is entered into by and among Orion Power
Holdings, Inc. (the "Company"), GS Capital Partners II, L.P. ("GSCP II,"
together with any Affiliate (as defined below) (including without
limitation, the Other GSCP Entities, as defined below) to which it assigns
any rights and obligations under the Agreement, "GSCP"), GS Capital
Partners III, L.P. ("GSCP III"), GS Capital Partners II Offshore, L.P.
("GSCP Offshore"), GS Capital Partners III Offshore, L.P. ("GSCP III
Offshore"), Xxxxxxx, Xxxxx & Co. Verwaltungs GmbH, as nominee for GS
Capital Partners II Germany C.L.P. ("GS Germany") and as nominee for GS
Capital Partners III Germany C.L.P. ("GS III Germany"), Stone Street Fund
1998, L.P. ("Stone"), Bridge Street Fund 1998, L.P. ("Bridge,") Stone
Street Fund 2000, L.P. ("Stone 2000") and Bridge Street Fund 2000, L.P.
("Bridge 2000," and collectively with GSCP III, GSCP Offshore, GSCP III
Offshore, GS Germany, GS III Germany, Stone, Bridge and Stone 2000, the
"Other GS Entities"), Constellation Enterprises, Inc. ("Constellation"),
Constellation Operating Services, Inc. ("COSI"), Diamond Generating
Corporation ("DGC"), Diamond Cayman, Inc. ("DCI"), Mitsubishi International
Corporation ("MIC," and collectively with DGC and DCI, "Mitsubishi"), and
Tokyo Electric Power Company International B.V. ("TEPCO International").
W I T N E S S E T H
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WHEREAS, GSCP and Constellation Power Source, Inc. ("CPS") have caused
the formation of the Company for the purpose of investing in and managing
the operations of a portfolio of electric generating assets in the United
States and Canada (the "Portfolio Assets");
WHEREAS, GSCP and CPS entered into a stockholders' agreement (the
"Stockholders' Agreement"), dated as of March 10, 1998, by and among the
Company, GSCP and Constellation and the other parties named therein, as
amended from time to time;
WHEREAS, on November 5, 1999, the Company, GSCP, CPS, Mitsubishi and TEPCO
International amended and restated the Stockholders' Agreement in its
entirety ( the "Second Amended and Restated Stockholders' Agreement")
WHEREAS, on December 2, 1999, CPS assigned its rights and obligations under
the Second Amended and Restated Stockholders' Agreement to Constellation.
WHEREAS, on April 26, 2000, the Company and COSI entered into a Stock
Purchase Agreement (the "COSI Purchase Agreement"), pursuant to which the
Company agreed to issue to COSI, 12,193.548 shares of Common Stock in
consideration for the acquisition of various assets.
WHEREAS, the parties hereto and the Company anticipate that the
Company will conduct an IPO (as defined herein).
WHEREAS, the parties hereto desire to amend and restate the Second
Amended and Restated Stockholders' Agreement in its entirety to set forth
the relative rights and obligations of the parties hereto in connection
with the management and operation of the Company prior to the anticipated
IPO.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and obligations hereinafter set forth, the parties hereto hereby
agree as follows:
Section 1. Definitions. As used herein, the following terms shall have
the following meanings:
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person; provided, however,
that, for purposes hereof, neither the Company nor any Person controlled by
the Company shall be deemed to be an Affiliate of any Stockholder.
"Beneficially Owned" has the meaning set forth in Rule 13d-3 under the
Exchange Act.
"Board" means the Board of Directors of the Company.
"Book Value" of a share of Common Stock shall mean the stockholders'
equity as shown on the books of the Company related to the Common Stock,
divided by the number of shares of Common Stock outstanding at the time
such calculation is made.
"Business Day" means any day excluding Saturday, Sunday and any day on
which banks in the State of New York are authorized or required by law or
other governmental action to close.
"Capital Call" means notice by the Company that a person is required
to purchase Stock pursuant to a Capital Commitment or pursuant to any other
Sale of capital stock of the Company prior to an IPO.
"Capital Commitments" shall mean the respective commitments of GSCP,
Constellation, Mitsubishi and TEPCO International to purchase Common Stock
pursuant to Section 3(a) of this Agreement.
"Common Stock" means the common stock, par value $.01 per share, of
the Company.
"Common Stock Equivalents" means securities convertible into, or
exchangeable or exercisable for, shares of Common Stock.
"COSI Shares" means the 12,193.548 shares of Common Stock acquired by
COSI pursuant to the COSI Purchase Agreement, including any shares of
Common Stock acquired upon any stock split, stock dividend or
recapitalization with respect to such shares.
"Designated Director" means a GSCP Director, Constellation Director or
New Investors' Director, as the context requires.
"Designating Party" means (i) with respect to any GSCP Director, GSCP,
GSCP II or GSCP III, as the case may be, (ii) with respect to any
Constellation Director, Constellation and (iii) with respect to any New
Investors' Director, Mitsubishi and TEPCO International, jointly, which
designation shall be communicated to the Company by Mitsubishi.
"Discretionary Pool" means a pool of Warrants (as defined in Section
5) in the amount set forth in Section 5 which may be (but shall not be
required to be) allocated to the Company's management in such amounts, if
any, and upon such terms, as the Board, in its sole discretion, deems
appropriate.
"ERISA" means the Employee Retirement Income Security Act of 1974 (and
any sections of the Internal Revenue Code of 1986 amended by it) and all
regulations promulgated thereunder, as amended.
"HSR" means the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976,
as amended.
"IPO" means an underwritten offering or series of underwritten
offerings pursuant to which the Common Stock becomes registered under
Section 12 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (a) in which either (i) the Common Stock issued constitutes
at least 20% of the Common Stock or (ii) the gross proceeds to the Company
and any Selling Stockholders, in the aggregate, is at least $75 million
before deducting underwriting discounts, commissions and offering expenses
and (b) which results in the Common Stock being held by at least 500
holders of record within the meaning of Rule 12g5-1 under the Exchange Act.
"Other Stockholders" means, with respect to any Selling Stockholder,
the Stockholders other than the Selling Stockholder or its Affiliates.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock
company, trust, unincorporated organization or government or any agency or
political subdivisions thereof.
"Portfolio Asset" means any electric generating assets located in the
United States or Canada.
"Preferred Stock" means the preferred stock, par value $.01 per share,
of the Company.
"Public Sale" means a Sale pursuant to a bona fide underwritten public
offering pursuant to an effective registration statement filed under the
Securities Act of 1933, as amended (the "Securities Act") or pursuant to
Rule 144 under the Securities Act (other than in a privately negotiated
Sale).
"Sell" means (i) for purposes of this Agreement other than Section 3
and Section 4, to sell, or in any other way directly or indirectly
transfer, assign, distribute, pledge, encumber or otherwise dispose of,
either voluntarily or involuntarily, and (ii) for purposes of Section 3 and
Section 4 of this Agreement only, to issue or in any other way directly or
indirectly sell or exchange, or agree to issue, sell or exchange; and the
terms "Sale," "Selling" and "Sold" shall have meanings correlative to the
foregoing.
"Stock" means (i) any shares of Common Stock and/or (ii) any Common
Stock Equivalents, in each case whether owned as of the date of this
Agreement or acquired hereafter.
"Stockholders" means any holder of Stock or Voting Shares who agrees
to be bound by the terms of this Agreement.
"Strategic Alliance Agreement" means the Strategic Alliance Agreement,
dated as of March 10, 1998, between the Company and Constellation.
"Total Capital Commitments" means the sum of all Capital Commitments.
"Voting Shares" means any securities of the Company, the holders of
which are generally entitled to vote for members of the Board (including,
without limitation, all outstanding shares of Common Stock).
Section 2. Calculations. (a) Except as otherwise set forth in Section
5, for all purposes of this Agreement, the proposed Sale or the Sale of a
Common Stock Equivalent shall be treated as the proposed Sale or the Sale
of the shares of Common Stock into which such Common Stock Equivalent can
be converted, exchanged or exercised.
(b) Except as set forth herein, the amount of outstanding Common Stock
as of any date and the amount of Common Stock owned by a Person hereunder
(and the percentage of the outstanding Common Stock owned by a Person)
shall be calculated on a Fully Diluted Basis. For the purposes of this
Agreement, "Fully Diluted Basis" shall mean (i) giving effect to full
funding of the Capital Commitments, (ii) treating all Common Stock
Equivalents of the Company then outstanding as having been converted,
exchanged or exercised (excluding any Common Stock Equivalents having an
exercise or conversion price in excess of the price per share to be paid by
the purchaser in the relevant transaction) and (iii) excluding any Common
Stock and Common Stock Equivalents owned by Persons other than the
Stockholders .
Section 3. Commitments.
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(a) Capital Commitments.
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(i) Subject to the terms of this Agreement, (A) GSCP has
committed to purchase an aggregate of 300,000 shares of Common Stock
at $1,000 per share, for an aggregate commitment of $300 million, (B)
Constellation has committed to purchase an aggregate of 175,000 shares
of Common Stock at $1,000 per share, for an aggregate commitment of
$175 million, (C) Mitsubishi has committed to purchase an aggregate of
77,419.355 shares of Common Stock at $1,550 per share, for an
aggregate commitment of $120 million, which commitment shall be
allocated as follows:
DGC 36,774.194 shares at $1,550.00 per share
DCI 36,774.194 shares at $1,550.00 per share
MIC 3,870.967 shares at $1,550.00 per share,
and (D) TEPCO International has committed to purchase an aggregate of
51,612.903 shares of Common Stock at $1,550 per share, for an
aggregate commitment of $80 million (the Capital Commitments pursuant
to this Section 3(a) being referred to as the "Capital Commitments").
The number of shares to be purchased and the purchase price per share
with respect to each Stockholder's Capital Commitment shall be
appropriately adjusted, if necessary, to reflect any stock dividends,
stock-splits or reverse stock-splits occurring after the date hereof.
(ii) On or prior to the date hereof, each Stockholder has
purchased shares of Common Stock in complete fulfillment of their
respective Capital Commitments.
Section 4. Limited Preemptive Rights. Prior to an IPO, the Company
shall not issue any Common Stock, Common Stock Equivalents or other Company
equity securities or convertible equity except in compliance with the
provisions of this Section 4. This Section 4 shall not be applicable to (i)
the issuance of Company equity securities to a seller of Portfolio Assets
in consideration for the sale of such Portfolio Assets, (ii) the issuance
of Company equity securities in accordance with Sections 3 and 5 above and
(iii) the issuance of Common Stock in connection with the exercise of
Common Stock Equivalents (including, without limitation, the Warrants);
provided, however, that in the case of an issuance of the type referred to
in clause (i) hereof, Constellation shall have preemptive rights to
purchase the portion of the equity in such issuance necessary to prevent
its Ownership Percentage (as defined below) from falling below 20% as a
result of such issuance, which rights shall be exercisable in the same
manner as the limited preemptive rights of all the Stockholders set forth
in Sections 4(a) through 4(f) hereof.
(a) In the event that, prior to an IPO, the Company desires to issue
additional Common Stock, Common Stock Equivalents or any units containing
Common Stock or Common Stock Equivalents, or any other equity securities or
convertible securities, the Company shall (i) notify (a "Section 4 Offer
Notice") each of Mitsubishi, TEPCO International, GSCP and Constellation
(the "Section 4 Stockholders") describing the type of securities (i.e.,
Common Stock, Common Stock Equivalents or any units containing Common Stock
or Common Stock Equivalents, or any other equity securities or convertible
securities) offered for issuance (the "Section 4 Securities"), the purchase
price therefor and a summary of the other material terms of the proposed
issuance (the "Proposed Price and Terms"), and (ii) offer (the "Section 4
Offer") each of the Section 4 Stockholders the option to acquire, at the
Proposed Price and Terms, up to a proportionate amount of shares of the
Section 4 Securities (as applicable, the "Proportionate Securities"), such
that:
(A) in the case of a sale of Common Stock, Common Stock
Equivalents or any units containing Common Stock or Common Stock
Equivalents, the percentage of the outstanding Common Stock ownership
interest of each of the Section 4 Stockholders immediately prior to
issuance (the "Ownership Percentage") shall not be diminished as a
result of issuance of the Section 4 Securities. The Ownership
Percentage of each Section 4 Stockholder as of the date hereof is set
forth on Annex A attached hereto. Each Section 4 Stockholder's right
to maintain its Ownership Percentage is referred to hereinafter as the
"Ownership Maintenance Right"; and
(B) in the case of a sale of equity securities or convertible
securities other than Common Stock, Common Stock Equivalents or any
units containing Common Stock or Common Stock Equivalents ("Other
Equity"), the percentage of such Other Equity held by each of the
Section 4 Stockholders shall, for purposes of this Section 4, be
deemed to equal such Section 4 Stockholder's Ownership Percentage.
Each Section 4 Stockholder's right to maintain a percentage of Other
Equity equal to its Ownership Percentage is referred to hereinafter as
the "Other Equity Maintenance Right."
(b) The Section 4 Offer shall remain open and irrevocable for the
periods set forth below (and, to the extent the Section 4 Offer is accepted
during such periods, such offer and acceptance shall be binding on such
Section 4 Stockholder and the Company). Each Section 4 Stockholder shall
have the right, for a period of 30 days after delivery of the Section 4
Offer Notice (the "Section 4 Acceptance Period"), to exercise its right to
purchase all or any part of its Proportionate Securities at the Proposed
Price and Terms. Such exercise shall be made by a Section 4 Stockholder by
delivering a written notice to the Company within the Section 4 Acceptance
Period specifying the maximum portion of the Section 4 Securities such
Section 4 Stockholder will purchase.
(c) In the event that any of the Section 4 Stockholders fail to
exercise their respective rights to purchase all the Section 4 Securities
within the Section 4 Acceptance Period, the Company shall have 120 days
from the expiration of the Section 4 Acceptance Period to enter into an
agreement (pursuant to which the sale of such securities shall be closed,
if at all, within 45 days from the date of such agreement, or such longer
period as may be necessary to obtain any required regulatory approval, but
in no case to exceed 6 months) to sell to a third party purchaser (the
"Section 4 Purchaser") at the Proposed Price and Terms (or at a price and
on terms not more favorable to the Section 4 Purchaser than the Proposed
Price and Terms) any Section 4 Securities not elected to be purchased by
any of the Section 4 Stockholders (the "Excess Section 4 Securities"). The
foregoing periods are referred to hereinafter in the aggregate as the
"Section 4 Issuance Period." The Company shall provide written notice (the
"Notice of Section 4 Sale") to all of the Section 4 Stockholders at least
10 days prior to the closing of the sale of the Excess Section 4
Securities; provided, however, in the case of a Sale in which the Company
is to receive non-cash consideration, the Company shall provide the Notice
of Section 4 Sale at least 45 days prior to the closing, including
information regarding the form of consideration payable by the Section 4
Purchaser.
(d) In the event that the consideration payable to the Company by a
Section 4 Purchaser for Excess Section 4 Securities is in a form other than
cash (excluding marketable securities listed on a national securities
exchange or the Nasdaq National Market, the value of which shall be
determined by calculation of such securities' average price over the 10
trading days prior to delivery of the Notice of Section 4 Sale), any
Section 4 Stockholder shall have the right to require the Company to
commission, at the Company's expense, an appraisal of the value of the
non-cash consideration acquired by the Company from the Section 4 Purchaser
(the "Appraisal"), by delivery of written notice of the same within 10 days
after the receipt of a Notice of Section 4 Sale. The Company shall use its
commercially reasonable efforts to complete the Appraisal prior to the
expiration of the Section 4 Issuance Period; provided, however, that if the
Appraisal is not completed during the original term of the Section 4
Issuance Period, such period shall be extended to the date which is 10 days
after such Appraisal is completed. If the Appraisal (or calculation of the
value of marketable securities set forth above, if applicable) indicates
that the value of the non-cash consideration payable by the Section 4
Purchaser is less than the aggregate value of the per share price, as set
forth in the Proposed Price and Terms, for all of the Excess Section 4
Securities, the Company shall not sell the Excess Section 4 Securities to
such Section 4 Purchaser unless such Section 4 Purchaser pays the
difference to the Company in the form of cash.
(e) In the event that the Company has not closed the transactions for
the sale of all Excess Section 4 Securities, if any, by the termination of
the Section 4 Issuance Period, the Company shall not thereafter issue or
sell the Excess Section 4 Securities without first offering such securities
to the Section 4 Stockholders in compliance with this Section 4.
(f) All Sales of Section 4 Securities to the Section 4 Stockholders
subject to any Section 4 Offer Notice shall be consummated
contemporaneously at the offices of the Company on the later of (i) the
closing of the Sale of the Excess Section 4 Securities which are Sold to a
Section 4 Purchaser or (ii) the fifth Business Day following the expiration
or termination of all waiting periods under HSR applicable to such
issuance, or at such other time and/or place as the Company and the Section
4 Stockholders may agree. The delivery of certificates or other instruments
evidencing such Section 4 Securities shall be made by the Company on such
date against payment of the purchase price for such Section 4 Securities.
Section 5. Warrants; Reservation of Common Stock. Subject to Section
5(b) herein, (a) At the time of a Capital Call, the Company shall (i) issue
warrants for shares of Common Stock to GSCP or Constellation (in accordance
with the allocation set forth in this paragraph (a)) and (ii) allocate
warrants (or options) for shares of Common Stock to the Discretionary Pool
(the warrants (or options) in clauses (i) and (ii) above referred to as the
"Warrants") in an amount, for Warrants purchased pursuant to clauses (i)
and (ii) above, equal to an aggregate of 15% of the number of shares of
Common Stock issued pursuant to such Capital Call plus the number of shares
of Common Stock issuable upon conversion or exercise of Common Stock
Equivalents issued pursuant to such Capital Call (but not including any
Common Stock obtainable upon conversion, exchange or exercise of Preferred
Stock). With respect to each Capital Call, 1/3 of the Warrants shall be
allocated to the Discretionary Pool and 2/3 shall be allocated to GSCP;
provided, however, that with respect to the last $60 million of Capital
Contributions made by Constellation, 1/3 of the Warrants shall be allocated
to the Discretionary Pool and 2/3 of the Warrants shall be allocated to
Constellation. The Warrants shall have exercise prices, in the case of
Warrants issued to GSCP and Constellation, equal to the applicable
subscription price paid by each Stockholder for Common Stock to which the
Warrants relate (i.e., in the case of warrants attributable to Common Stock
issued to Mitsubishi and TEPCO International, $1550 per share, and in the
case of warrants attributable to Common Stock issued to GSCP and
Constellation, $1000 per share, as adjusted for stock-splits, reverse
stock-splits and stock dividends) and, in the case of Warrants allocated to
the Discretionary Pool, as the Board in its sole discretion shall
determine. In the event that the Company issues any Warrants to GSCP and/or
Constellation pursuant to this Section 5(a) in excess of the aggregate
amounts set forth in Section 5(b), such Warrants shall be of no force or
effect, and the Company and GSCP or Constellation, as applicable, shall
promptly terminate such excess Warrants.
(b) Notwithstanding anything herein to the contrary, (i) in no event
shall the Company issue to GSCP warrants to purchase more than 64,004
shares of Common Stock in the aggregate and (ii) in no event shall the
Company issue to Constellation warrants to purchase more than 7,059 shares
of Common Stock in the aggregate. After the maximum number of Warrants
under this Agreement are issued to GSCP and Constellation as set forth in
the preceding sentence (such number being referred to herein as the
"Stockholder Limit"), at the time of a Capital Call (including any portion
of a Capital Call with respect to which Warrants were not issued before the
Stockholder Limit was reached), the Board, in its discretion, may allocate
Warrants to the Discretionary Pool in an amount equal to an aggregate of 5%
of the number of shares of Common Stock issued pursuant to such Capital
Call (excluding any shares with respect to which Warrants were issued
before the Stockholder Limit was reached) plus the number of shares of
Common Stock issuable upon conversion or exercise of Common Stock
Equivalents issued pursuant to such Capital Call (excluding any shares with
respect to which Warrants were issued before the Stockholder Limit was
reached).
(c) The Company shall at all times reserve and keep available out of
its authorized but unissued shares of Common Stock a sufficient number of
shares of Common Stock to permit exercise of the Warrants. All shares of
Common Stock which are so issuable shall, when issued, in accordance with
this Section 5 and upon receipt by the Company of the exercise price
therefor, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens and charges. The Company shall take all such actions
as may be necessary to assure that all such shares of Common Stock may be
so issued without violation of any applicable law or governmental
regulation or any requirements of any domestic securities exchange upon
which such shares may be listed (except for official notice of issuance
which shall be immediately transmitted by the Company upon issuance).
Section 6. Corporate Governance.
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6.1. Board of Directors.
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(a) As of the date hereof, the Board shall be comprised of eight
members. Prior to an IPO and subject to Sections 8(c) and (d): (i) GSCP II
shall have the right to designate three persons to serve as members of the
Board and GSCP III shall have the right to designate one person to serve as
a member of the Board (such members being collectively referred to herein
as "GSCP Directors"), (ii) Constellation shall have the right to designate
one member of the Board (such member being referred to herein as the
"Constellation Director"), (iii) Mitsubishi and TEPCO International shall
jointly have the right to designate one member of the Board (such member
being referred to herein as the "New Investors' Director"), which
designation shall be communicated to the Company by Mitsubishi, (iv) the
Chief Executive Officer of the Company shall be appointed by the Board and
shall serve as a member of the Board, and (v) the Board may appoint a
person to serve as a member of the Board and to act as Chairman of the
Board. In addition, Mitsubishi and TEPCO International shall jointly have
the right to appoint one designated, non-voting observer to attend all
meetings of the Board (the "New Investors' Observer"), which designation
shall be communicated to the Company by Mitsubishi.
(b) Prior to an IPO, at any regular or special meeting of shareholders
called for the purpose of electing members to serve on the Board, or, to
the extent permitted by the Certificate of Incorporation, in any written
consent electing members to serve on the Board executed in lieu of such a
meeting, each of the parties hereto agrees to vote all Voting Shares held
by it, and to take all other necessary action, to cause the Board to be
comprised of the GSCP Directors, the Constellation Director, the New
Investors' Director and the Chief Executive Officer of the Corporation.
6.2. Vacancies; Removal.
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(a) Subject to Section 6.2(b), each Designated Director shall hold his
office until his death or until his successor shall have been duly elected
and qualified. If any Designated Director shall cease to serve as a
director of the Company for any reason, the vacancy resulting thereby shall
be filled by another Person selected by his Designating Party.
(b) No Designated Director shall be removed from office without the
written consent of his Designating Party. With respect to any Designated
Director, at the request of his Designating Party, all Stockholders shall
take such action requested by such Designating Party to remove such
Designated Director from office.
6.3. Telephonic Board Meetings. The Company shall take or cause to be
taken all necessary actions, including, without limitation, causing its
By-Laws to make due provision, to allow any member of the Board to
telephonically attend any meeting of the Board.
6.4. Directors' Indemnification.
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(a) The Certificate of Incorporation, By-Laws and other organizational
documents of the Company shall at all times, to the fullest extent
permitted by law, provide for indemnification of, advancement of expenses
to, and limitation of the personal liability of, the members of the Board
and such other persons, if any, who, pursuant to a provision of such
Certificate of Incorporation, By-laws or other organizational documents,
exercise or perform any of the powers or duties otherwise conferred or
imposed upon members of the Board. Such provisions may not be amended,
repealed or otherwise modified in any manner adverse to any member of the
Board until at least six years following the date that none of GSCP II,
GSCP III, Constellation or Mitsubishi and TEPCO International, jointly, is
entitled to designate any Designated Director.
(b) Each member of the Board is intended to be a third-party
beneficiary of the obligations of the Company pursuant to this Section 6.4,
and the obligations of the Company pursuant to this Section 6.4 shall be
enforceable by each member of the Board.
6.5. Cooperation. Each Stockholder shall vote all of its or his Voting
Shares and shall take all other necessary or desirable actions within its
or his control (including, without limitation, attending all meetings in
person or by proxy for purposes of obtaining a quorum and/or executing all
written consents in lieu of meetings, as applicable), and the Company shall
take all necessary and desirable actions within its control (including,
without limitation, providing therefor in its organizational documents
and/or calling special Board and Stockholder meetings), to effectuate the
provisions of this Section 6.
6.6. Irrevocable Proxy.
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(a) In order to secure each Stockholder's obligation to vote his, her
or its Voting Shares in accordance with the provisions of Section 6 of this
Agreement, each Stockholder hereby appoints GSCP as his, her or its true
and lawful proxy and attorney-in-fact, with full power of substitution, to
vote all of his, her or its Voting Shares of the Company as is necessary to
enforce the rights of GSCP under Section 6 of this Agreement until such
rights are terminated in accordance with the terms of this Agreement. GSCP
may exercise the irrevocable proxy granted to it hereunder at any time any
Stockholder fails to comply with any provision of Section 6 of this
Agreement granting GSCP rights thereunder. The proxies and powers granted
by each Stockholder pursuant to this Section 6.6(a) are coupled with an
interest and are given to secure the performance of the Stockholder's
obligations to GSCP under Section 6 of this Agreement. Such proxies and
powers will be effective until an IPO, at which time such proxies and
powers shall terminate. Such proxies and powers shall survive the death,
incompetency and disability of each Stockholder.
(b) In order to secure each Stockholder's obligation to vote his, her
or its Voting Shares in accordance with the provisions of Section 6 of this
Agreement, each Stockholder hereby appoints Constellation as his, her or
its true and lawful proxy and attorney-in-fact, with full power of
substitution, to vote all of his, her or its Voting Shares of the Company
as is necessary to enforce the rights of Constellation under Section 6 of
this Agreement until such rights are terminated in accordance with the
terms of this Agreement. Constellation may exercise the irrevocable proxy
granted to it hereunder at any time any Stockholder fails to comply with
any provision of Section 6 of this Agreement granting Constellation rights
thereunder. The proxies and powers granted by each Stockholder pursuant to
this Section 6.6(b) are coupled with an interest and are given to secure
the performance of the Stockholder's obligations to Constellation under
Section 6 of this Agreement. Such proxies and powers will be effective
until an IPO, at which time such proxies and powers shall terminate. Such
proxies and powers shall survive the death, incompetency and disability of
each Stockholder.
(c) In order to secure each Stockholder's obligation to vote his, her
or its Voting Shares in accordance with the provisions of Section 6 of this
Agreement, each Stockholder hereby appoints Mitsubishi as his, her or its
true and lawful proxy and attorney-in-fact, with full power of
substitution, to vote all of his, her or its Voting Shares of the Company
as is necessary to enforce the rights of Mitsubishi and TEPCO International
under Section 6 of this Agreement until such rights are terminated in
accordance with the terms of this Agreement. Mitsubishi may exercise the
irrevocable proxy granted to it hereunder at any time any Stockholder fails
to comply with any provision of Section 6 of this Agreement granting
Mitsubishi or TEPCO International rights thereunder. The proxies and powers
granted by each Stockholder pursuant to this Section 6.6(c) are coupled
with an interest and are given to secure the performance of the
Stockholder's obligations to Mitsubishi and TEPCO International under
Section 6 of this Agreement. Such proxies and powers will be effective
until an IPO, at which time such proxies and powers shall terminate. Such
proxies and powers shall survive the death, incompetency and disability of
each Stockholder.
6.7. Management Rights. The Company acknowledges that the provisions
of Section 6 of this Agreement are intended to provide GSCP and
Constellation, Mitsubishi and TEPCO International with "contractual
management rights" within the meaning of Section 2510.3-101 of the U.S.
Department of Labor Code of Regulations.
Section 7. Restrictions on Sales of Stock by Stockholders.
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(a) Subject to Section 7(b) and Section 7(c), no Stockholder shall
Sell any Stock , whether owned on the date hereof or acquired hereafter,
without first, if applicable, complying with the provisions of Section 8
hereof.
(b) Anything contained in this Agreement to the contrary
notwithstanding, any transferee of Stock who is not a Stockholder shall
upon consummation of, and as a condition to, such Sale execute and deliver
to the Company (which the Company shall then deliver to all other
Stockholders) an agreement pursuant to which it agrees to be bound by the
terms of this Agreement and such transferee shall thereafter be deemed to
be a Stockholder for all purposes of this Agreement.
(c) Any Sale or attempted Sale of Stock in violation of any provision
of this Agreement shall be void, and the Company shall not record such Sale
on its books or treat any purported transferee of such Stock as the owner
of such Stock for any purpose.
Section 8. Stockholder Sale of Stock/ Right of First Offer.
-----------------------------------------------
(a) Subject to Section 8(a)(viii) and Section 11 hereof, no
Stockholder may Sell any Stock to any Person except in accordance with the
following procedures:
(i) The Stockholder wishing to Sell Stock (together with its
Affiliates, the "Selling Stockholder") shall first deliver to the
Company and the other Stockholders a written notice (a "Section 8
Offer Notice"), which shall (i) state the Selling Stockholder's
intention to Sell Stock, the amount and type of Stock intended to be
Sold (the "Subject Stock"), the proposed purchase price therefor and a
summary of the other material terms of the proposed Sale (without any
requirement to identify the proposed transferee) and (ii) offer the
Company the option to acquire all or a portion of such Subject Stock
upon the terms and subject to the conditions of the proposed Sale as
set forth in the Section 8 Offer Notice (the "Section 8 Offer");
provided that such Section 8 Offer may provide that it must be
accepted by the Company and the other Stockholders other than such
Selling Stockholder (the "Other Stockholders") on an all or nothing
basis (an "All or Nothing Sale"). The Section 8 Offer shall remain
open and irrevocable for the periods set forth below (and, to the
extent the Section 8 Offer is accepted during such periods, until the
consummation of the Sale contemplated by the Section 8 Offer). Subject
to Section 8(a)(vii) hereof, the Company shall have the right and
option, for a period of 20 days after delivery of the Section 8 Offer
Notice (the "Section 8(a)(i) Acceptance Period"), to accept all or any
part of the Subject Stock at the purchase price, in cash, and on the
terms stated in the Section 8 Offer Notice; provided, however, that,
if the Section 8 Offer contemplated an All or Nothing Sale, the
Company may accept, during the Section 8(a)(i) Acceptance Period, at
the purchase price and on the terms stated in the Section 8 Offer
Notice, either (x) all, but not less than all of the Subject Stock or
(y) less than all of the Subject Stock, provided that such offer and
acceptance shall be conditioned upon the Other Stockholders purchasing
pursuant to Section 8(a)(ii) any Subject Stock not purchased by the
Company. If a Section 8 Offer is accepted, the Company shall be
irrevocably obligated to consummate the purchase as set forth in
Section 8(a)(iv) below. Such acceptance shall be made by delivering a
written notice to the Selling Stockholder and each of the Other
Stockholders, if any, within the Section 8(a)(i) Acceptance Period.
(ii) If the Company shall fail to accept, or shall reject in
writing, any or all of the Subject Stock offered for Sale pursuant to
the Section 8 Offer, then, upon the earlier of the expiration of the
Section 8(a)(i) Acceptance Period or the receipt of a written notice
of rejection by the Company, each Other Stockholder shall have the
right and option, for a period of 15 days thereafter (but in no event
for a period less than 30 days after the Section 8 Offer Notice is
delivered to the Stockholders) (the "Section 8(a)(ii) Acceptance
Period"), to accept all or any part of the Subject Stock so offered
and not accepted by the Company (the "Refused Stock") at the purchase
price, in cash, and on the terms stated in the Section 8 Offer Notice;
provided, however, that if the Section 8 Offer required an All or
Nothing Sale, such offer and acceptance shall be conditioned upon the
Other Stockholders purchasing all, but not less than all, of the
Refused Stock. Such acceptance shall be made by delivering a written
notice to the Company and the Selling Stockholder within the Section
8(a)(ii) Acceptance Period specifying the maximum number of shares
such Other Stockholder will purchase (the "First Offer Shares"). If,
upon the expiration of the Section 8(a)(ii) Acceptance Period, the
aggregate amount of First Offer Shares exceeds the amount of Refused
Stock, the Refused Stock shall be allocated among the Other
Stockholders as follows: (i) first, each Stockholder shall be entitled
to purchase up to its proportionate percentage of Refused Stock (which
proportionate percentage shall equal the Stockholder's proportionate
percentage ownership of outstanding Common Stock) ("Proportionate
Percentage"); (ii) second, if any shares of Refused Stock have not
been allocated for purchase pursuant to (i) above (the "Remaining
Shares"), each Stockholder (an "Oversubscribed Stockholder") which had
offered to purchase a number of shares of Refused Stock in excess of
its Proportionate Percentage of Refused Stock pursuant to (i) above,
shall, for a period of 10 days after receiving notice of the existence
of the Remaining Shares (the "Remaining Share Acceptance Period"), be
entitled to purchase an amount of Remaining Shares up to its
Proportionate Percentage (treating only Oversubscribed Stockholders as
Stockholders for these purposes) of the Remaining Shares; and (iii)
third, the process set forth in (ii) above shall be repeated with
respect to any shares of Refused Stock not allocated for purchase
until all shares of Refused Stock are allocated for purchase. Any
Stockholder which does not commit to purchase its Proportionate
Percentage of Remaining Shares during the related Remaining Share
Acceptance Period shall not be eligible to purchase any more of the
Subject Stock in subsequent Remaining Share Acceptance Periods in the
subject Section 8 Offer.
(iii) If effective acceptance shall not be received pursuant to
Sections 8(a)(i) and 8(a)(ii) above with respect to all of the Subject
Stock offered for Sale pursuant to the Section 8 Offer Notice, then
the Selling Stockholder may Sell all or any portion of the Stock so
offered for Sale and not so accepted, at a price not less than the
price, and on terms not more favorable to the purchaser thereof than
the terms, stated in the Section 8 Offer Notice at any time within 120
days after the expiration of the Section 8(a)(ii) Acceptance Period
(or such longer period as may be necessary to obtain any required
regulatory approval, but in no case to exceed 6 months) (the "Sale
Period"); provided, however, that if the Section 8 Offer contemplated
an All or Nothing Sale, the Selling Stockholder may sell all, but not
less than all, of the Subject Stock. To the extent the Selling
Stockholder Sells all or a portion of the Stock so offered for Sale
during the Sale Period, the Selling Stockholder shall promptly notify
the Company, and the Company shall promptly notify the Other
Stockholders, as to (i) the number of shares of Stock, if any, that
the Selling Stockholder then owns, (ii) the number of shares of Stock
that the Selling Stockholder has Sold, (iii) the terms of such Sale
and (iv) the identity of the purchaser(s) of any shares of Stock Sold.
In the event that all of the Stock is not Sold by the Selling
Stockholder during the Sale Period, the right of the Selling
Stockholder to Sell such unsold Stock shall expire and the obligations
of this Section 8 shall be reinstated; provided, however, that, in the
event that the Selling Stockholder determines, at any time during the
Sale Period, that the Sale of all of the Stock on the terms set forth
in the Section 8 Offer Notice is impractical, the Selling Stockholder
may terminate the offer and reinstate the procedure provided in this
Section 8 without waiting for the expiration of the Sale Period; and
provided further, however, that the Selling Stockholder shall not give
a Section 8 Offer Notice with respect to a transaction which would
require compliance with this Section 8 for a period of at least 60
days from the last day of the Sale Period.
(iv) In the event that the consideration payable to the Selling
Stockholder by the third party purchaser is in a form other than cash
(excluding marketable securities listed on a national securities
exchange or the Nasdaq National Market, the value of which shall be
determined by calculation of such securities' average price over the
10 trading days prior to delivery of the Section 8 Appraisal Notice
(as defined herein)), the Selling Stockholder shall deliver notice to
the Company and the Other Stockholders at least 30 days prior to the
closing of the sale of the Subject Stock, including information
regarding the form of consideration payable by the purchaser (the
"Section 8 Appraisal Notice"). The Company or any of the Other
Stockholders shall have the right to require the Selling Stockholder
to commission, at the Selling Stockholder's expense, an appraisal of
the value of the non-cash consideration acquired by the Selling
Stockholder from the third party purchaser (the "Section 8
Appraisal"), by delivery of written notice of the same within 10 days
after the receipt of a Section 8 Appraisal Notice. The Selling
Stockholder shall use its commercially reasonable efforts to complete
the Section 8 Appraisal prior to the expiration of the Sale Period;
provided, however, that if the Section 8 Appraisal is not completed
during the original term of the Sale Period, such period shall be
extended to the date which is 10 days after such Section 8 Appraisal
is completed. If the Section 8 Appraisal (or calculation of the value
of marketable securities set forth above, if applicable) indicates
that the value of the non-cash consideration payable by the third
party purchaser is less than the aggregate value of the per share
price, as set forth in the Section 8 Offer Notice, for all of the
Subject Stock, the Selling Stockholder shall not sell the Subject
Stock to such purchaser unless such purchaser pays the difference to
the Selling Stockholder in the form of cash.
(v) All Sales of Subject Stock to the Company or to one or more
Other Stockholders subject to any Section 8 Offer Notice shall be
consummated at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, One New York Plaza, New York, New York, or at such other
place as the parties to such sales may agree, on the later of (i) a
mutually satisfactory Business Day within 20 days after the expiration
of the Section 8(a)(i) Acceptance Period or the Section 8(a)(ii)
Acceptance Period, as applicable, or, in the case of Remaining Shares
sold in multiple rounds, within 10 days after the expiration of the
last Remaining Share Acceptance Period, or (ii) if applicable, the
fifth Business Day following the expiration or termination of all
waiting periods under HSR, or the receipt of any other regulatory
approvals applicable to such sales, or at such other time as the
parties to such sales may agree. The delivery of certificates or other
instruments evidencing such Subject Stock duly endorsed for transfer
shall be made on such date against payment of the purchase price for
such Subject Stock.
(vi) So long as GSCP or any of its Affiliates is the Selling
Stockholder, without the unanimous consent of the Other Stockholders,
the Company shall not accept, and shall immediately reject, any
Section 8 Offer.
(vii) In addition to the foregoing procedures, to the extent
applicable, the provisions of Sections 16 and 17 shall apply.
(viii) The provisions of this Section 8: (i) shall not apply to
any Sale of Stock by a Stockholder to an Affiliate of such
Stockholder, (ii) shall not apply to any Sale of Stock by Mitsubishi
or its Affiliates to TEPCO International or its Affiliates or any Sale
of Stock by TEPCO International or its Affiliates to Mitsubishi or its
Affiliates, (iii) shall not apply to any Sale of Stock by a
Stockholder or its Affiliates in an IPO, (iv) shall not apply to any
Sale of Stock by COSI or its Affiliates to the Company in accordance
with the COSI Purchase Agreement, (v) shall terminate upon an IPO, and
(vi) shall not permit the Sale of Stock to an entity which, as a
result of such entity holding an ownership interest in the Company,
would have a material adverse regulatory effect on the ability of the
Company or its subsidiaries or any Stockholder or its Affiliates (a)
to sell power at market-based rates or (b) to acquire additional
generating assets in the United States or Canada and to sell such
power at market-based rates.
(b) In connection with any Sale of Stock by a Stockholder or its
Affiliates, a Selling Stockholder may, but shall not be required to, assign
to the purchaser of such Stock (the "Purchaser") a portion of the Selling
Stockholder's unfulfilled obligation, as of the time of such Sale, pursuant
to Section 3(a) of this Agreement, which portion shall not exceed the
percentage that the number of shares of Stock being sold to such Purchaser
by the Stockholder and its Affiliates bears to the aggregate number of
shares of Stock purchased by the Stockholder and its Affiliates, as of the
time of such Sale, pursuant to Section 3 of this Agreement; provided,
however, no such assignment shall relieve the Selling Stockholder from its
obligations under this Agreement to fulfill such Capital Commitment in full
to the extent not fulfilled by the Purchaser pursuant to such assignment,
including as a result of any default by the Purchaser.
(c) In the event that, in a transaction or series of related or
unrelated transactions, GSCP and its Affiliates Sell, pursuant to this
Section 8, (i) between 40% and 80% of the number of shares of Stock of the
Company held by it, GSCP shall lose its right to designate two of its
Designated Directors pursuant to Section 6.1 hereof or (ii) more than 80%
of the number of shares of Stock of the Company held by it, (x) GSCP shall
lose its right to designate all of its Designated Directors pursuant to
Section 6.1 hereof and (y) GSCP's rights pursuant to Sections 14 and 17
hereof shall be of no further force or effect.
(d) In the event that, in a transaction or series of related or
unrelated transactions, (i) Constellation and its Affiliates Sell, pursuant
to this Section 8, greater than 50% of the number of shares of Stock held
by it, Constellation shall lose its right to designate its Designated
Director pursuant to Section 6.1 hereof or (ii) Mitsubishi or TEPCO
International and their respective Affiliates Sell (excluding sales to
Mitsubishi or TEPCO International or their respective Affiliates) greater
than 50% of the number of shares of Stock held by Mitsubishi and TEPCO
International, collectively, Mitsubishi and TEPCO International shall lose
the right to designate their Designated Director and their right to appoint
the New Investors' Observer pursuant to Section 6.1 hereof.
Section 9. Stockholder Approval. The consent of the holders of
two-thirds (2/3) of the issued and outstanding shares of Common Stock shall
be required for any of the following actions:
(a) The Company's redemption or repurchase of any Common Stock or
Preferred Stock in excess of an aggregate amount of $25,000,000, except in
connection with (i) the Company's exercise of its rights pursuant to
Section 8 or Section 11 hereof (ii) pursuant to any employment or option
agreement to which the Company is a party, or (iii) pursuant to the COSI
Purchase Agreement;
(b) Any material amendment or repeal of the Company's Certificate of
Incorporation or By-laws; or
(c) Any material changes to the Company's business of investing in,
owning and operating electric utility assets and related businesses.
Section 10. PUHCA, FPA and Market-Based Rates. (a) Each Stockholder
agrees with each other Stockholder that it will not allow the Company to,
and the Company agrees that it will not, acquire, directly or indirectly,
any of the voting securities of, nor will it allow the Company to, and the
Company agrees that it will not, become, (i) a "public-utility company" (as
such term is defined in the Public Utility Holding Company Act of 1935
("PUHCA") or (ii) an "affiliate" (as such term is defined in Section 2(a)
11(A) of PUHCA) or a "holding company" (as such term is defined in PUHCA)
with respect to any such public-utility company nor will it allow the
Company to, and the Company agrees that it will not, become a "public
utility" (as such term is defined in the Federal Power Act (the "FPA")), in
each case so long as PUHCA and/or the FPA are in effect and so long as
acquiring any such securities or becoming any of the entities identified
above imposes material regulatory or other restrictions on the Company or
the Stockholders. Notwithstanding the preceding sentence, filings with the
Federal Energy Regulatory Commission to qualify as an "exempt wholesale
generator" (as such term is defined in PUHCA) or a "qualifying facility"
(as such term is defined in the Public Utility Regulatory Policies Act of
1978) or other necessary filings by the Company or any of its Stockholders
to effectuate the acquisition of a Portfolio Asset shall be permitted.
Notwithstanding any other provision of this Agreement, each
Stockholder agrees with each other Stockholder, and the Company agrees,
that the Company shall not knowingly sell Stock to any Person if such sale
would impose material regulatory or other restrictions on the Company or
any Stockholder under PUHCA.
(b) Each Stockholder agrees with each other Stockholder that it will
not, and will not allow the Company, and the Company agrees that it will
not: (i) acquire Portfolio Assets which acquisition would have a material
adverse regulatory effect on the ability of the Company, a Stockholder or
its Affiliates to sell power at market-based rates; (ii) permit a Sale of
Stock to a Person which Sale would have a material adverse regulatory
effect on the ability of the Company, a Stockholder or its Affiliates to
sell power at market-based rates; or (iii) take any other action which
would have a material adverse regulatory effect on the ability of the
Company, a Stockholder or its Affiliates to sell power at market-based
rates; provided, however, that in connection with any bid or any other
actions by the Company which would result in any of the actions set forth
in clauses (i), (ii) and (iii) above, each of the Company and each
Stockholder will take such reasonable steps considering the facts and
circumstances, as expeditiously as is practicable, as are necessary to
structure the proposed transaction in order to mitigate the circumstances
to avoid any material adverse regulatory effect on the ability of the
Company, such Stockholder or its Affiliates to sell power at market-based
rates.
Section 11. Certain Acquisitions of Interests. If an interest in any
Stockholder, or any of its Affiliates (any such entity referred to as the
"Subject Entity" for purposes of this Section), is directly or indirectly
acquired (an "Acquisition Event") by an entity which, as a result of such
entity holding an ownership interest in the Subject Entity, would have a
material adverse regulatory effect on the ability of the Company or its
subsidiaries or any Stockholder or its Affiliates (A) to sell power at
market-based rates or (B) to acquire additional generating assets in the
United States or Canada and to sell such power at market-based rates (a
"Regulatory Restriction"), then:
(a) the Subject Entity, and any applicable Affiliate of such
Subject Entity, shall attempt to cure ("Cure") the Regulatory
Restriction by either (i) taking such steps, as expeditiously as
is practicable, as are necessary to mitigate ("Mitigation
Efforts") the circumstances to avoid the implication of the
Regulatory Restriction on the Company (including, without
limitation, transferring its Stock ownership in the Company to an
affiliate that, notwithstanding such entity holding an ownership
interest in the Company, would not impose a Regulatory
Restriction) or (ii) Selling at least that number of shares of
Stock, for cash, in a Sale that would avoid the implication of
the Regulatory Restriction on the Company (a "Curing Sale"), in
accordance with and subject to the following (which provisions,
rather than the provisions of Section 8(a) hereof, shall govern
such Curing Sale):
(i) If the Subject Entity shall agree upon the material
terms of a potential Curing Sale with an entity or group of
entities (the "Potential Buyer"), the ownership of the Stock to
be sold in the Curing Sale by which would not cause a Regulatory
Restriction, the Subject Entity shall, at least 15 days prior to
the Outside Cure Date (as defined in Section 11(b)), deliver to
the Company a written notice (a "Section 11 Offer Notice"), which
shall (a) state the Subject Entity's intention to Sell Stock to
the Potential Buyer, the identity or identities of the Potential
Buyer, the amount of Stock intended to be Sold (the "Subject
Stock"), the proposed purchase price therefor and a summary of
the other material terms of the potential Curing Sale and (b)
offer (the "Section 11 Offer") the Company the option to purchase
for cash, in lieu of the Potential Buyer, the Subject Stock at
the purchase price set forth in the Section 11 Offer Notice. The
Section 11 Offer shall remain open and irrevocable for a period
of 10 Business Days after delivery of the Section 11 Offer Notice
(the "Section 11 Acceptance Period"), during which time the
Company shall have the right to accept the Section 11 Offer;
provided that the Subject Entity's Designated Directors shall not
participate in any vote of the Board as to whether such Section
11 offer shall be accepted, except for purposes of establishing
the requisite quorum for such vote. If a Section 11 Offer is
accepted, the Company shall be irrevocably obligated to
consummate the purchase as set forth in Section 11(a)(iii) below.
Such acceptance shall be made by delivering a written notice to
the Subject Entity within the Section 11 Acceptance Period.
(ii) If effective acceptance of the Section 11 Offer
shall not be given as set forth in Section 11(a)(i), then the
Subject Entity may Sell the Subject Stock, subject to the time
period set forth in Section 11(b) hereof, at the price and on the
terms set forth in the Section 11 Offer Notice.
(iii) All Sales of Subject Stock to the Company subject
to any Section 11 Offer Notice shall be consummated at the
offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, One New York
Plaza, New York, New York, or at such other place as the parties
may agree, on a mutually satisfactory Business Day within the
Outside Cure Date (as defined in Section 11(b) below.)
(b) Notwithstanding any provision contained in this Section
11, if the Subject Entity fails to Cure the Regulatory Restriction
either through Mitigating Efforts or consummating a Curing Sale within
30 days after the closing of the Acquisition Event (the "Outside Cure
Date"), then the Company shall have the right (the "Purchase Right"),
exercisable by the Company by delivering written notice to the Subject
Entity within 30 days of the Outside Cure Date, to purchase that
portion of the Stock owned by the Subject Entity which would avoid the
imposition of a Regulatory Restriction on the Company (such Stock to
be purchased referred to as the "Company Subject Stock"), in
accordance with the following:
(i) Prior to an initial public offering of the Common
Stock of the Company, the Company shall have the right to
purchase the Company Subject Stock from the Subject Entity at a
price equal to the lesser of (x) the price paid by the Subject
Entity for the Company Subject Stock ("Cost") (calculated using
the weighted average price paid per share of all Common Stock
purchased by the Subject Entity times the number of shares of
Company Subject Stock) and (y) the Book Value of such Company
Subject Stock times the number of shares of Company Subject
Stock.
(ii) Subsequent to an initial public offering of the
Common Stock of the Company, the Company shall have the right to
purchase the Company Subject Stock from the Subject Entity at a
price equal to the lower of (a) Cost or (b) Fair Market Value.
Fair Market Value shall be defined as the average of the closing
sale prices during the 10 trading days immediately preceding the
date on which the Purchase Right is accepted of a share of Stock
on the Composite Tape for New York Stock Exchange-Listed Stocks,
or, if the Stock is not quoted on the Composite Tape, on the New
York Stock Exchange, or, if the Stock is not listed on such
exchange, on the principal United States securities exchange
registered under the Securities Exchange Act of 1934, as amended,
on which the Stock is listed, or, if the Stock is not listed on
any such exchange, the average of the closing bid quotations with
respect to a share of Stock during the 10 trading days period
preceding the date on which the Purchase Right is accepted on the
National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use.
(iii) If the Company shall exercise its Purchase Right,
then the closing of such Purchase Right shall be consummated at
the offices of Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, One New
York Plaza, New York, New York, within 20 days of the date on
which the Purchase Right is accepted, or at such other place and
time as the parties may agree.
Section 12. Operating Services and Power Sales and Brokering Services.
With respect to each Portfolio Asset, CPS will be the exclusive provider of
power marketing and risk management services pursuant to, and subject to,
that certain Strategic Alliance Agreement between the Company and
Constellation, dated as of March 10, 1998, and any operating agreements
entered into thereunder.
Section 13. Fees. In addition to any fees payable to GSCP or any of
its Affiliates with respect to any financing relating to the Company and
any fees payable under the Strategic Alliance Agreements, the Company shall
pay in cash to GSCP, Constellation, DGC and TEPCO International an
investment banking fee in connection with each acquisition of Portfolio
Assets by the Company equal to 1% of the aggregate consideration (including
the assignment of debt) paid by the Company in such acquisition transaction
or, in the event such fee, in the view of GSCP and the Company, is not
obtainable, such other amount that is commercially reasonable in connection
with such transaction as is agreed by GSCP and the Company. Any such
investment banking fee shall be paid to GSCP, Constellation, DGC and TEPCO
International on a proportionate percentage (which proportionate percentage
shall equal each of GSCP, Constellation, Mitsubishi and TEPCO
International's respective proportionate percentage ownership of
outstanding Common Stock but without giving effect to any outstanding
Common Stock Equivalents, including warrants).
Section 14. Investment Banker. Xxxxxxx Sachs will have the right to
provide all investment banking services to the Company. Such services shall
be provided on arms-length terms, conditions and pricing.
Section 15. Transactions with Affiliates. All transactions after the
date hereof between the Company and the Stockholders or their respective
Affiliates shall be based on arm's length negotiation which result in
market-based price, terms and conditions. The parties hereby agree and
acknowledge that, as of the date hereof, the Company is party to a
Non-Competition Agreement with each of Mitsubishi, TEPCO International and
certain Affiliates of Constellation (Baltimore Gas & Electric Company and
Constellation Power, Inc.).
Section 16. Tag-Along and Change of Control Rights. (a) Subject to
Section 16(d) below, prior to an IPO, in the event that, following
compliance with the provisions of Section 8 hereof, a Stockholder proposes
to Sell (a "Disposition") (other than pursuant to an IPO) any Stock to a
Person other than an Affiliate of such Stockholder and other than to the
Other Stockholders (a "Purchaser") then such party (the "Proposing Holder")
shall provide notice (a "Proposal Notice") of such proposed Disposition to
the Other Stockholders no later than twenty (20) days prior to the proposed
closing of such Disposition (which 20 day period may run concurrently with
the periods set forth in Section 8, to the extent applicable). Each
Proposal Notice shall describe in reasonable detail the terms of the
proposed Disposition, including, without limitation, (i) the identity and
address of the Purchaser, (ii) the proposed amount to be paid by the
Purchaser to the Proposing Holder, (iii) the amount and type of Stock
proposed to be Sold and (iv) any other material terms or conditions of such
proposed Disposition, and shall include a statement to the effect that the
Purchaser has been informed of the Tag-Along Rights (as defined herein) and
an acknowledgment by the Purchaser indicating that it has been so informed
and agrees to such terms. A copy of the Proposal Notice shall promptly be
sent to the Company.
(b) Subject to Sections 16(c) and 16(d) below, with respect to
each proposed Disposition, prior to an IPO, the Stockholders shall have the
following right (the "Tag-Along Right"): each Other Stockholder shall have
the right to require the Purchaser to purchase from such Other Stockholder
and at the Disposition Price (as defined below) all or a portion of the
number of shares of Common Stock which represents the number of shares of
Common Stock obtained by multiplying (A) a fraction, the numerator of which
is the number of shares of Common Stock represented by the Stock proposed
to be Sold (as indicated in the Proposing Notice) and the denominator of
which is the number of shares of Common Stock Beneficially Owned by the
Proposing Holder as of the date of the Proposal Notice, times (B) the
number of shares of Common Stock Beneficially Owned by the Other
Stockholder as of the date of the Proposal Notice.
(c) If the Purchaser declines to purchase all of the shares of
Common Stock of the Proposing Holder and each Other Stockholder to be sold
pursuant to Section 16(b) hereof, then each Other Stockholder shall have
the right to require the Purchaser to purchase from such Other Stockholder
and at the Disposition Price all or a portion of the number of shares of
Common Stock which represents the number of shares of Common Stock obtained
by multiplying (A) a fraction, the numerator of which is the number of
shares of Common Stock represented by the Stock proposed to be Sold (as
indicated in the Proposing Notice) and the denominator of which is the
number of shares of Common Stock Beneficially Owned by all of the
Stockholders as of the date of the Proposal Notice, times (B) the number of
shares of Common Stock Beneficially Owned by such Other Stockholder as of
the date of the Proposal Notice. The number of shares sold by the Proposing
Holder shall be reduced to the extent any of the Other Stockholders choose
to exercise their rights under this Section.
(d) The provisions of this Section 16 shall not apply to Sales of
Stock from (i) Mitsubishi and/or its Affiliates to TEPCO International
and/or its Affiliates or to Sales of Stock from TEPCO International and/or
its Affiliates to Mitsubishi and/or its Affiliates, or (ii) COSI to the
Company, in accordance with the COSI Purchase Agreement.
(e) For purposes of this Agreement, the following terms shall
have the meanings set forth below:
"Disposition Price" shall mean (i) with respect to a share of
Common Stock, the Per Share Price and (ii) with respect to a Common Stock
Equivalent, an amount substantially equal to the Per Share Price taking
into account the nature of the Common Stock Equivalent, including its
exercise price, if applicable.
"Per Share Price" shall mean an amount equal to the quotient
obtained by dividing (i) the aggregate purchase price to be paid by the
Purchaser in respect of such Stock by (ii) the number of shares of Common
Stock proposed to be sold by the Proposing Holder as set forth in the
Proposal Notice.
(f) Each Stockholder electing to exercise its Tag-Along Rights
shall give written notice of its election to the Proposing Holder no later
than twenty (20) days after its receipt of a Proposal Notice (the
"Expiration Date").
(g) All Sales of Stock to the Purchaser shall be consummated
contemporaneously at the offices of Fried, Frank, Harris, Xxxxxxx &
Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000 on the later of (i)
a mutually satisfactory Business Day as soon as practicable, but not more
than 60 days after the Expiration Date, or such longer period as may be
necessary to obtain any required regulatory approval, but in no case to
exceed 6 months or (ii) the fifth Business Day following the expiration or
termination of all waiting periods under HSR applicable to such Sales, or
at such other time and/or place as the parties to such Sales may agree. The
delivery of certificates or other instruments evidencing such Stock duly
endorsed for transfer shall be made on such date against payment of the
purchase price for such Stock.
Section 17. Bring-Along Rights. (a) If, at any time prior to an IPO,
so long as (i) the Stock Beneficially Owned by GSCP and its Affiliates
constitutes at least 35% of the outstanding Common Stock of the Company,
(ii) GSCP is the largest stockholder of Common Stock of the Company
(provided that Mitsubishi and TEPCO International will be treated as a
single stockholder for such purpose) and (iii) GSCP and its Affiliates have
previously Sold no more than 60,000 shares of Common Stock other than to
GSCP or Affiliates of GSCP, in the event that, following compliance with
the provisions of Section 8 hereof, GSCP shall propose to Sell for cash in
a single Sale (including a series of transactions pursuant to a single
agreement) to any single Person (including Affiliates of such Person) who
is not Affiliated with GSCP and its Affiliates (a "Non-Affiliated Party"),
all of its Stock Beneficially Owned by it and its Affiliates and,
immediately following the consummation of such Sale, such Non-Affiliated
Party shall Beneficially Own 50% or more in aggregate of the then
outstanding Common Stock (excluding any Common Stock purchased by the
Non-Affiliated Party as a result of GSCP's exercise of its rights pursuant
to this Section 17) (any such transaction being referred to herein as an
"Exit Sale"), then GSCP shall use its commercially reasonable efforts to
cause the Non-Affiliated Party to submit two bids to the Stockholders as
follows: (i) a bid (including purchase price) for the purchase of all of
the Stock Beneficially owned by the Stockholders and their Affiliates (the
"Whole Company Bid") and (ii) a bid (including purchase price) for the
purchase of all of the Stock Beneficially owned by the Stockholders and
their Affiliates, excluding Mitsubishi, TEPCO International and their
respective Affiliates (the "Partial Company Bid").
(b) If the price per share to be paid in the Partial Company Bid
is less than the price per share to be paid in the Whole Company Bid, GSCP,
in its sole discretion, may elect to require all of the Stockholders and
their respective Affiliates to Sell all, but not less than all, of the
Stock Beneficially Owned by each of them concurrently with such Exit Sale
to such Non-Affiliated Party at the same purchase price per share (and, in
the case of Common Stock Equivalents, such purchase price per share net of
any exercise price multiplied by the number of shares of Common Stock
issuable upon the conversion, exchange or exercise of such Common Stock
Equivalent) and upon the same terms and subject to the conditions of the
Exit Sale as set forth in the Whole Company Bid. If the price per share to
be paid in the Partial Company Bid is equal to or greater than the price
per share to be paid in the Whole Company Bid, GSCP, in its sole
discretion, may elect to require the Stockholders and their respective
Affiliates (excluding Mitsubishi, TEPCO International and their respective
Affiliates, provided that Mitsubishi and TEPCO International and their
respective Affiliates may exercise their rights under Section 16 with
respect to any Sale by the Other Stockholders and their Affiliates) to Sell
all of the Stock Beneficially Owned by each of them concurrently with such
Exit Sale to such Non-Affiliated Party at the same purchase price per share
(and, in the case of Common Stock Equivalents, such purchase price per
share net of any exercise price multiplied by the number of shares of
Common Stock issuable upon the conversion, exchange or exercise of such
Common Stock Equivalent) and upon the same terms and subject to the
conditions of the Exit Sale as set forth in the Partial Company Bid.
(c) Until the earlier of (i) an IPO, (ii) April 30, 2001 and
(iii) the date which is thirty (30) days after the Company's delivery to
the Stockholders of an audited balance sheet of the Company and its
subsidiaries as at December 31, 2000 and audited statements of operations,
cash flow and stockholders' equity for the fiscal year then ended, if the
price per share payable in the Exit Sale to Mitsubishi and TEPCO
International pursuant to a Whole Company Bid as to which GSCP has made the
election set forth in the first sentence of Section 17(b) is more than
$1,000 but less than $1,550, the price per share payable to GSCP and
Constellation in excess of $1,000 shall be reduced by an amount, allocated
and paid to Mitsubishi and TEPCO International, such that the price per
share payable to Mitsubishi and TEPCO International is equal to $1,550;
provided, however, that a portion of the price per share payable after
giving effect to the allocation described above to GSCP and Constellation
shall only be allocated to Mitsubishi and TEPCO International to the extent
that such allocation does not reduce the price per share payable to GSCP
and Constellation below $1,000. This Section 17(c) shall not apply to any
Sale by GSCP to (i) Mitsubishi or its Affiliates or (ii) TEPCO
International or its Affiliates, nor shall this Section 17(c) apply to any
Person (or any of its Affiliates) who has purchased shares of Common Stock
from Mitsubishi, TEPCO International or their respective Affiliates (the
"Previously Sold Shares") with respect to such Previously Sold Shares.
(d) The rights set forth in Section 17(a) shall be exercised by
giving written notice (the "Section 17 Notice") to each Stockholder setting
forth in detail the terms of the proposed Sale and the proposed closing
date of the Exit Sale, which proposed date shall not be less than 15 or
more than 60 days after such Section 17 Notice is delivered to the
Stockholders.
(e) All Sales of Stock to the Non-Affiliated Party pursuant to
this Section 17 shall be consummated contemporaneously at the offices of
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx, Xxx Xxx Xxxx Xxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 on the later of (i) a Business Day not less than 15 or more
than 60 days after the Section 17 Notice is delivered to the Stockholders
or (ii) the fifth Business Day following the expiration or termination of
all waiting periods under HSR applicable to such Sales, or at such other
time and/or place as the parties to such Sales may agree. The delivery of
certificates or other instruments evidencing such Stock duly endorsed for
transfer shall be made on such date against payment of the purchase price
for such Stock.
(f) The availability or exercise of GSCP's rights (or failure to
exercise GSCP's rights) under this Section does not affect the right of the
Other Stockholders to exercise their rights under Section 16 herein after
GSCP's exercise of its rights under this Section (or failure to exercise
GSCP's rights).
Section 18. Publicity. The transactions contemplated by this Agreement
shall be kept confidential until made public by means of a press release.
The press release (together with any associated communication materials
relating to the Stockholders and the Company) and (subject to the next
sentence) all other disclosures related to this Agreement and its terms and
the transactions contemplated hereby which differ in any material manner
from prior approved disclosures shall be agreed upon by all of the
Stockholders. The press release shall be released promptly upon the
agreement of the parties hereto.
Section 19. Legend. Each Stockholder and the Company shall take all
such action necessary to cause each certificate representing outstanding
shares of Stock owned by a Stockholder to bear a legend containing the
following (or substantially similar) words:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "ACT"). THE SECURITIES HAVE BEEN
ACQUIRED FOR INVESTMENT AND MAY NOT BE OFFERED, SOLD,
PLEDGED, EXCHANGED, TRANSFERRED OR OTHERWISE DISPOSED
OF EXCEPT IN COMPLIANCE WITH THE ACT."
"IN ADDITION, THE SECURITIES REPRESENTED BY THIS
CERTIFICATE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER
AND VOTING SET FORTH IN THE STOCKHOLDERS' AGREEMENT
DATED AS OF APRIL 26, 2000, AS AMENDED FROM TIME TO
TIME, BY AND AMONG ORION POWER HOLDINGS, INC. (THE
"COMPANY") AND THE PARTIES THERETO, A COPY OF WHICH IS
ON FILE IN THE OFFICE OF THE COMPANY."
The requirement that the above securities legend be placed upon
certificates evidencing shares of Stock shall cease and terminate upon the
earliest of the following events: (i) when such shares are transferred in
an underwritten public offering, (ii) when such shares are transferred
pursuant to Rule 144 under the Securities Act or (iii) when such shares are
transferred in any other transaction if the seller delivers to the Company
an opinion of its counsel, which counsel and opinion shall be reasonably
satisfactory to the Company, or a "no-action" letter from the staff of the
Securities and Exchange Commission, in either case to the effect that such
legend is no longer necessary in order to protect the Company against a
violation by it of the Securities Act upon any sale or other disposition of
such shares without registration thereunder. The requirement that the above
legend regarding this Agreement be placed upon certificates evidencing
shares of Stock shall cease and terminate upon the Sale of such shares of
Stock pursuant to a Public Sale. Upon the consummation of any event
requiring the removal of a legend hereunder, the Company, upon the
surrender of certificates containing such legend, shall, at its own
expense, deliver to the holder of any such shares as to which the
requirement for such legend shall have terminated, one or more new
certificates evidencing such shares not bearing such legend.
Section 20. Representations and Warranties.
------------------------------
(a) Each party hereto represents and warrants to the other parties
hereto as follows:
(i) It has full power and authority to execute, deliver and
perform its obligations under this Agreement.
(ii) This Agreement has been duly and validly authorized,
executed and delivered by it, and constitutes a valid and binding
obligation of it, enforceable against it in accordance with its terms
except to the extent that enforceability may be limited by bankruptcy,
insolvency or other similar laws affecting creditors' rights
generally.
(iii) The execution, delivery and performance of this Agreement
by it does not (x) violate, conflict with, or constitute a breach of
or default under its organizational documents, if any, or any material
agreement to which it is a party or by which it is bound or (y)
violate any law or regulation applicable to it and material to it, or
any order, writ, judgment, injunction or decree applicable to it.
(iv) No consent or approval of, or filing with, any governmental
or regulatory body, other than the filings which may be required by
(i) any Stockholder under HSR, in connection with any such
Stockholder's satisfaction of its Capital Commitments hereunder and/or
the acquisition of a Portfolio Asset, and (ii) the Federal Energy
Regulatory Commission and/or applicable regulatory bodies, is required
to be obtained or made by it in connection with the transactions
contemplated hereby.
(v) It is not a party to any agreement which is inconsistent with
the rights of any party hereunder or otherwise conflicts with the
provisions hereof.
Section 21. Duration of Agreement. Subject to Section 8(b), the rights
and obligations of a Stockholder under this Agreement shall terminate at
such time as such Stockholder no longer is the beneficial owner of any
shares of Stock. All terms of this Agreement shall survive until, by their
respective terms, they are no longer operative, except that the terms of
Sections 3, 4, 6.1, 6.2, 6.3, 6.5, 6.6, 7, 8, 9, 10, 12, 13 and 14 shall
terminate upon the consummation of an IPO.
Section 22. Further Assurances. At any time or from time to time, the
parties agree to cooperate with each other, and at the request of any other
party, to execute and deliver any further instruments or documents and to
take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and to otherwise carry out the intent of the parties
hereunder.
Section 23. Amendment and Waiver. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement
shall be effective against the Company or any Stockholder unless such
modification, amendment or waiver is approved in writing by the Company,
GSCP, Constellation, Mitsubishi and TEPCO International. The failure of any
party to enforce any of the provisions of this Agreement shall in no way be
construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement
in accordance with its terms.
Section 24. Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law
or rule in any jurisdiction, such invalidity, illegality or
unenforceability shall not affect any other provision or any other
jurisdiction, but this Agreement shall be reformed, construed and enforced
in such jurisdiction as if such invalid, illegal or unenforceable provision
had never been contained herein.
Section 25. Entire Agreement. This Agreement and the other writings
referred to herein or delivered pursuant hereto which form a part hereof
contain the entire agreement and understanding among the parties hereto
with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or representations by or among the
parties, written or oral, which may have related to the subject matter
hereof in any way.
Section 26. Successors and Assigns. Except as otherwise provided
herein, this Agreement shall bind and inure to the benefit of and be
enforceable by the Company and its successors and assigns and each
Stockholder and their respective successors, assigns, heirs and personal
representatives, so long as they hold Stock. Except pursuant to a Sale of
Stock in compliance with Section 8, no Stockholder shall have the right to
assign its rights and obligations under this Agreement, without the consent
of each of the other Stockholders; provided that each of GSCP,
Constellation, DGC, DCI, MIC and TEPCO International may transfer and
assign all or part of its rights and obligations under this Agreement to
one or more of its Affiliates without the consent of the Company and all of
the Stockholders. Upon any such assignment, such assignee shall have and be
able to exercise all rights of the assigning Stockholder and shall be
subject to all of the obligations of such assigning Stockholder.
Notwithstanding anything herein to the contrary, GSCP shall have no right
to assign its rights under Section 17 hereof to any party other than an
Affiliate.
Section 27. Reserved.
--------
Section 28. Counterparts. This Agreement may be executed in separate
counterparts each of which, when executed and delivered, shall be an
original and all of which taken together shall constitute one and the same
agreement.
Section 29. Remedies. Each Stockholder shall be entitled to enforce
its rights under this Agreement specifically to recover damages by reason
of any breach of any provision of this Agreement and to exercise all other
rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that each party may in its sole discretion
apply to any court of law or equity of competent jurisdiction for specific
performance and/or injunctive relief (without posting a bond or other
security) in order to enforce or prevent any violation of the provisions of
this Agreement.
Section 30. Notices. Any notice provided for in this Agreement shall
be in writing and shall be either personally delivered or sent by facsimile
or reputable overnight courier service (charges prepaid) to the Company,
GSCP, Constellation, COSI, DGC, DCI, MIC and TEPCO International at the
addresses set forth below and to any subsequent holder of Stock subject to
this Agreement at such address as the Company maintains on its books and
records, or at such address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
Notices will be deemed to have been given hereunder when delivered
personally or on receipt.
The Company's address is: Orion Power Holdings, Inc.
0 Xxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: General Counsel
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
GSCP's address is: GS Capital Partners II, L.P.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
Constellation's address is: 000 Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
COSI's address is: Constellation Operating Services, Inc.
000 Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Secretary
DGC's address is: Diamond Generating Corporation
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
Attention: President
with a copy to:
Mitsubishi Corporation
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Facsimile: 00-0-0000-0000
Attention: Power & Traffic Project
Development Department
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
DCI's address is: Diamond Cayman, Inc.
c/o Mitsubishi Corporation
0-0, Xxxxxxxxxx 0-xxxxx, Xxxxxxx-xx
Xxxxx 000-0000, Xxxxx
Facsimile: 00-0-0000-0000
Attention: MC/TOK (MD-B)
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
MIC's address is: Mitsubishi International Corporation
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attention: Legal Department
Facsimile: 000-000-0000
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
TEPCO International's
address is: Tokyo Electric Power Company
International B.V.
Xxxxxxx 0, Xx Xxxxxxxxx 0, 0000XX
Xxxxxxxxx, Xxx Xxxxxxxxxxx
Facsimile: 31-20-642-7675
Attention: BTM Trust (Holland) B.V.
with a copy to:
The Tokyo Electric Power Co., Inc.
0-0 Xxxxxxxxxx-xxx 0-xxxxx Xxxxxxx-xx
Xxxxx 000-0000 Xxxxx
Facsimile: 00-0-0000-0000
Attention: Business Development Group
International Affairs
Department
with a copy to:
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Section 31. Governing Law; Submission to Jurisdiction; Waiver of Jury
Trial. This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to the principles
of conflicts of law. Each of the parties hereto hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the
courts of the State of New York and of the United States of America, in
each case located in the County of New York, for any action, proceeding or
investigation in any court or before any governmental authority
("Litigation") arising out of or relating to this Agreement and the
transactions contemplated hereby (and agrees not to commence any Litigation
relating thereto except in such courts), and further agrees that service of
any process, summons, notice or document by U.S. registered mail to its
respective address set forth in this Agreement shall be effective service
of process for any Litigation brought against it in any such court. Each of
the parties hereto hereby irrevocably and unconditionally waives any
objection to the laying of venue of any Litigation arising out of this
Agreement or the transactions contemplated hereby in the courts of the
State of New York or the United States of America, in each case located in
the County of New York, and hereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such
Litigation brought in any such court has been brought in an inconvenient
forum. Each of the parties irrevocably and unconditionally waives, to the
fullest extent permitted by applicable law, any and all rights to trial by
jury in connection with any Litigation arising out of or relating to this
Agreement or the transactions contemplated hereby.
Section 32. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
Section 33. Construction. Where specific language is used to clarify
by example a general statement contained herein, such specific language
shall not be deemed to modify, limit or restrict in any manner the
construction of the general statement to which it relates. The language
used in this Agreement shall be deemed to be the language chosen by the
parties hereto to express their mutual intent, and no rule of strict
construction shall be applied against any party.
Section 34. Survival of Representations and Warranties. All
representations and warranties contained in this Agreement or made in
writing by any party in connection herewith shall survive the execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby regardless of any investigation made by, or on behalf
of, any Stockholder.
Section 35. No Inconsistent Agreements. Neither the Company nor any
Stockholder shall take any action or enter into any agreement which is
inconsistent with the rights of any party hereunder or otherwise conflicts
with the provisions hereof.
Section 36. Conflicting Agreements. Each Stockholder represents and
warrants that such Stockholder has not granted and is not a party to any
proxy, voting trust or other agreement which is inconsistent with or
conflicts with any provision of this Agreement, and no holder of Stock
shall grant any proxy or become party to any voting trust or other
agreement which is inconsistent with or conflicts with any provision of
this Agreement.
Section 37. Confidentiality. The Company and the parties hereto shall
keep the existence and the terms of any non-competition agreement between
the Company and any of the parties hereto strictly confidential unless (i)
the disclosing party has received the advice of independent counsel that
such disclosure is required by any law (including, without limitation, any
judicial order) or other requirement of any governmental entity to which
the disclosing party is subject (provided that prior to such disclosure,
the disclosing party promptly advises and consults with the non-disclosing
parties concerning the information it proposes to disclose), (ii) the
disclosing party discloses such information to a potential purchaser of
Company equity held by the disclosing party (provided that prior to such
disclosure, the potential purchaser executes a confidentiality agreement
imposing confidentiality obligations on such potential purchaser with
respect to any non-competition agreement substantially identical to the
confidentiality obligations imposed by this Section 37) or (iii) such
information becomes publicly available (other than as a result of any act
or omission by such disclosing party; provided that any disclosure by a
party in breach of this Section 37 that results in information becoming
publicly available shall not be excused).
IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Stockholders' Agreement on the day and year first
above written.
ORION POWER HOLDINGS, INC.
By:
------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By:
------------------------------------
CONSTELLATION ENTERPRISES, INC.
By:
------------------------------------
Name: X. X. Xxxxxxx
Title: President and Chief Executive
Officer
CONSTELLATION OPERATING SERVICES, INC.
By:
------------------------------------
Name:
Title:
OTHER GS ENTITIES
-----------------
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
------------------------------------
STONE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp.,
its general partner
By:
------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street Advantage Corp.,
its managing general partner
By:
------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
By:
By:
------------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
By:
By:
------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.,
its general partner
By: GS Advisors II, Inc., its general partner
By:
------------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III (Cayman), L.P.,
its general partner
By: GS Advisors III, Inc., its general partner
By:
------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO. VERWALTUNGS GmbH
(as nominee for GS Capital
Partners II Germany C.L.P.)
By:
------------------------------------
Name:
Title:
and
By:
------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital
Partners III Germany C.L.P.)
By:
------------------------------------
Name:
Title:
and
By:
------------------------------------
Name:
Title:
DIAMOND GENERATING CORPORATION
By:
------------------------------------
Name:
Title:
DIAMOND CAYMAN, INC.
By:
------------------------------------
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By:
------------------------------------
Name:
Title:
TOKYO ELECTRIC POWER COMPANY INTERNATIONAL B.V.
By:
------------------------------------
Name:
Title:
ANNEX A
OWNERSHIP PERCENTAGE
--------------------
Constellation 27.322%
GSCP 55.232%
Mitsubishi 10.468%
TEPCO International 6.978%
