Exhibit B-1
EXECUTION COPY
Amendment No. 1, dated as of December 31, 1996, to
Stock Purchase Agreement, dated as of September 7, 1996,
("Original Agreement"), among Xxxxxx Energy Corporation, a
Delaware Corporation (the "Company"), GPU International, Inc. a
Delaware corporation formerly known as Energy Initiatives, Inc.
("GPUI"), and Xxxxxxx Xxxxxx ("Xxxxxx"), as assignee of Allstate
Insurance Company and Allstate Life Insurance Company
(collectively, "Allstate").
WHEREAS, pursuant to the Original Agreement, GPUI has
prior to the date hereof purchased 906 shares of Class D Voting
Common and 1,894 shares of Class C Non-Voting Common of the
Company;
WHEREAS, pursuant to the Original Agreement, Allstate
has prior to the date hereof purchased 750 shares of Series E
Common (the "Series E Shares") from the Company;
WHEREAS, pursuant to a Stock Purchase Agreement dated
as of August 27, 1996, Xxxxxx purchased from Allstate the Series
E Shares and all 2,500 shares of Series A Preferred owned by
Allstate, and assumed all of Allstate's obligations under the
Original Agreement;
WHEREAS, the Original Agreement requires GPUI to
purchase 573 additional shares of Class C Non-Voting Common and
27 additional shares of Class D Voting Common, and Xxxxxx (as
successor in interest to Allstate) to purchase an additional 250
shares of Class E Common;
WHEREAS, the parties now desire to amend the Original
Agreement in order to (i) reduce to 191 and 9 the number of
shares of Class C Non-Voting Common and Class D Voting Common,
respectively, which GPUI is obligated to purchase; (ii) reduce to
83 1/3 the aggregate number of Class E Shares which Xxxxxx is
obligated to purchase; and (iii) extend to December 31, 1996 the
date on which such purchases from the Company are to be made.
NOW THEREFORE, in consideration of the premises for
other good and valuable consideration, receipt of which is hereby
acknowledged, the parties agree as follows:
1. Definitions. Terms used herein and not otherwise
defined have the meaning set forth in the Original Agreement.
2. Amendments to Original Agreement.
(a) Clauses (i) and (ii) of Section 1.01 of the
Original Agreement are hereby amended in their entirety to read
as follows:
(i) GPUI agrees to purchase from the
Company, and the Company agrees to sell to GPUI, a
total of 915 shares of Class D Voting Common and 2,085
shares of Class C Non-Voting Common for an aggregate
purchase price of $7,500,000, or $2,500 per share. Of
such shares, GPUI agrees to purchase from the Company,
and the Company agrees to sell to GPUI, on the date
hereof, 824 shares of Class D Voting Common and 176
shares of Class C Non-Voting Common (the "EII Initial
Shares"), for an aggregate purchase price of $2,500,000
(the "EII Initial Contribution") and GPUI agrees to
purchase from the Company, and the Company agrees to
sell to GPUI, on the dates specified in Article II
hereof (but subject to Section 2.04 hereof), a total of
1,909 shares of Class C Non-Voting Common and 91 shares
of Class D Voting Common (collectively, the "EII
Subscription Shares" and, together with the EII Initial
Shares, the "EII Shares"), for an aggregate purchase
price of $5,000,000; and
(ii) Xxxxxx, as successor to the
Institutional Investor, and Xxxxxx, as successor to the
Other Institutional Investor, agrees to purchase from
the Company, and the Company agrees to sell to Xxxxxx,
as successor to the Institutional Investor, and Xxxxxx,
as successor to the Other Institutional Investor, on
the dates specified in Article II hereof (but subject
to Section 2.04 hereof), an aggregate of 556-1/3 shares
and 277 shares, respectively, of Class E Common (the
"Investor Subscription Shares") for an aggregate
purchase price of $1,390,833.33 and $692,500,
respectively, or $2,500 per share.
(b) The date "July 1, 1996" in Sections
2.01(a)(i) and 2.02(a)(i) is deleted and the date "December 31,
1996" inserted in its place.
(c) The row beginning "July 1, 1996" in Exhibit B
is amended in its entirety to read as follows:
Xxxxxx (as Xxxxxx (as
successor to successor to
GPUI Institutional Other Institut-
GPUI (Class C (Class D Investor) ional Investor)
Subsequent Non-Voting Voting (Class E (Class E
Closing Date Common) Common) Common) Common)
Dec. 31, 1996 191 9 56 1/3 27
3. Depere Energy Center
(a) The parties agree as following regarding the
Depere Energy Center (the "Project"), which has been under joint
development by GPUI and the Company pursuant to a Joint Venture
Agreement dated as of February 11, 1994 ("JVA"):
(i) GPUI shall be deemed withdrawn from
development of the Project, and shall have no operating
rights thereto (it being understood that the Project
shall not be considered a Designated Project, or reduce
the number of Designated Projects for which GPUI shall
have the right to operate as set forth in Section 6.02
of the Original Agreement), and the parties agree that
the JVA shall be deemed terminated;
(ii) GPUI shall be obligated to pay by
December 31, 1996 the sum of US$185,436.84 (the Final
Payment ), which represents all amounts billed to GPUI,
but unpaid, through October 31, 1996 in connection with
the development of the Project. The Company shall not
xxxx to GPUI, and GPUI shall not be obligated to pay,
any other Project development costs including, without
limitation, any costs incurred after November 1, 1996.
(iii) At the finance closing for the Project
("Finance Closing"), the Company shall pay to GPUI an
aggregate amount of US$636,550.96; which represents the
sum of the total development costs heretofore paid by
GPUI plus the Final Payment, multiplied by 125%.
(iv) GPUI's outstanding letter of credit
("L/C") in the face amount of $1,788,850, which was
furnished to Wisconsin Public Service Company ("WPSC"),
shall remain in place until the earlier of (A) receipt
or denial of a certificate of public convenience and
necessity for the Project and (B) August 31, 1997, at
which point the Company shall return the L/C to GPUI for
cancellation. In the event of any draw on the L/C prior
to its return to GPUI, the Company shall (x) immediately
upon demand, pay to GPUI (or the issuing bank, as GPUI
may direct) an amount equal to one-half of such draw,
and (y) at the Finance Closing, pay to GPUI an amount
equal to one-half of such draw. At the the Finance
Closing, the Company shall pay to GPUI an amount equal
to the sum of all fees and costs (including fees payable
to the issuing bank) incurred by GPUI to obtain and
maintain the L/C, multiplied by 125%. The amounts
payable by the Company under this clause (iv) are in
addition to amounts payable under clause (iii) above.
4. Miscellaneous.
(a) The parties understand and agree that
except for GPUI's obligation to purchase an additional 191 Class
C Shares and 9 Class D Shares, and Xxxxxx'x obligation to
purchase in the aggregate an additional 83 1/3 Class E Shares, in
each case on December 31, 1996 and for a purchase price of $2,500
per share, neither GPUI nor Xxxxxx shall be under any further
obligation to purchase any shares of capital stock of the Company
under the Original Agreement, as amended by this Amendment.
(b) This Amendment shall be governed by the
laws of the State of Delaware without giving effect to conflict
of law principles.
(c) This Amendment may be executed in
counterparts, each of which shall be deemed an original but all
of which shall constitute one and the same instrument.
(d) Except as expressly amended by this
Amendment, the Original Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the undersigned have duly executed this
Amendment as of the date first above written.
GPU INTERNATIONAL, INC.
By:___________________________
Name:
Title:
______________________________
Xxxxxxx Xxxxxx
XXXXXX ENERGY CORPORATION
By:___________________________
Name:
Title:
