MUTUAL NOTICE OF EXTENSION
Exhibit
10.1
This Mutual Notice of Extension (the
“Notice”) is provided as of April 29, 2008, by and among
Black Hills Corporation, a South Dakota corporation (“Black Hills”),
Aquila, Inc., a Delaware corporation (“Aquila”), and Great
Plains Energy Incorporated, a Missouri corporation (“Great
Plains”).
Background
The parties have entered into an
Agreement and Plan of Merger (“Merger Agreement), an Asset Purchase Agreement
(“APA”) and a Partnership Interests Purchase Agreement (“PIPA”), each dated
February 6, 2007. These agreements provide that each of them may be
terminated at any time prior to the Effective Time (as defined in the
agreements) if, among other things, the transactions contemplated by the
agreements have not been consummated by the first anniversary of the agreements
(the “Termination Date”). The agreements further provide that either
Aquila or Great Plains may extend the Termination Date of the Merger Agreement,
and either Aquila or Black Hills may extend the Termination Date of the APA and
PIPA, from time to time up to a date not beyond 18 months after the dates of the
agreements, if any of them determines that additional time is necessary to
obtain any of the Material Company Regulatory Consents or the Material Parent
Regulatory Consents (as defined in the Merger Agreement), or the Required
Regulatory Approvals (as defined in the APA and PIPA).
On
January 31, 2008, the parties determined that additional time was necessary to
obtain the Material Company Regulatory Consents, the Material Parent Regulatory
Consents and the Required Regulatory Approvals, and entered into a Mutual Notice
of Extension pursuant to which the Termination Dates of the Merger Agreement,
APA and PIPA were initially extended to May 1, 2008.
The
parties have since determined that further time is necessary to obtain the
Material Company Regulatory Consents, the Material Parent Regulatory Consents
and the Required Regulatory Approvals, and each party desires to further extend
the Termination Dates of the Merger Agreement, APA and PIPA.
Each
of Aquila and Great Plains hereby provides written notice to the other, pursuant
to Section 9.2 of the Merger Agreement, that the Termination Date, as defined in
that agreement, is hereby extended to August 6, 2008.
Each
of Black Hills and Aquila hereby provides written notice to the other and to
Great Plains, pursuant to Sections 10.1(b) of the APA and the PIPA, that the
Termination Date, as defined in those agreements, is hereby extended to August
6, 2008.
The
parties acknowledge that if the transactions contemplated by the Merger
Agreement, APA and PIPA have not been consummated on or before August 6, 2008,
(i) the Board of Directors of either Aquila or Great Plains may terminate the
Merger Agreement pursuant to
Section
9.1(b) thereof, and (ii) either Aquila or Black Hills may
terminate the APA and PIPA pursuant to Section 10.1(b)
thereof.
[signature
page follows]
2
IN
WITNESS WHEREOF, this Mutual Notice of Extension has been duly executed and
delivered by the duly authorized officers of the parties as of the date first
written above.
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BLACK
HILLS CORPORATION
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By:
/s/ Xxxxxx X. Xxxxxxx
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Name:
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Xxxxxx
X. Xxxxxxx
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Title:
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Senior
Vice President and General Counsel
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GREAT
PLAINS ENERGY INCORPORATED
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By: /s/
Xxxxx Xxxxxxx
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Name:
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Xxxxx
Xxxxxxx
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Title:
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Executive
Vice President – Finance and Strategic
Development
and Chief Financial Officer
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AQUILA,
INC.
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By: /s/
Xxxxxxxxxxx X. Xxxxx
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Name:
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Xxxxxxxxxxx
X. Xxxxx
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Title:
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Senior
Vice President, General Counsel and
Secretary
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