TENDER AGREEMENT
THIS TENDER AGREEMENT (this "Agreement"), dated as of February 22, 2002,
is by and among Centrica plc, a public limited company organized under the laws
of England and Wales ("Buyer"), NewPower Holdings, Inc., a Delaware corporation
("NewPower"), Enron Corp., an Oregon corporation ("Enron"), Enron Energy
Services, LLC, a Delaware limited liability company ("EES LLC"), Xxxxxx Energy
Services, LLC, a Delaware limited liability company ("Xxxxxx"), McGarret I,
L.L.C., a Delaware limited liability company ("McGarret I"), McGarret II,
L.L.C., a Delaware limited liability company ("McGarret II"), McGarret III,
L.L.C., a Delaware limited liability company ("McGarret III"), and EES Warrant
Trust, a Delaware business trust ("Warrant Trust" and, together with EES LLC,
Xxxxxx, McGarret I, McGarret II and McGarret III, the "Equity Holders").
R E C I T A L S:
WHEREAS, Enron and EES LLC (the "Chapter 11 Parties," which term shall
include any other person which is a party to this Agreement that hereafter
becomes a debtor in the Chapter 11 Proceeding (as hereafter defined)) have filed
voluntary petitions for Chapter 11 reorganization (collectively, the "Chapter 11
Proceeding") with the U.S. Bankruptcy Court for the Southern District of New
York (the "Bankruptcy Court"); and
WHEREAS, concurrently with the execution and delivery of this Agreement,
Buyer, NewPower and Windsor Acquisition Corporation, a Delaware corporation
("Acquisition Sub"), are entering into that certain Agreement and Plan of Merger
of even date herewith (the "Merger Agreement") providing for, among other
things, (i) promptly following the execution and delivery of the Merger
Agreement, the commencement by Buyer and Acquisition Sub of a tender offer to
purchase any and all outstanding shares of common stock, par value $0.01 per
share ("Common Stock"), of NewPower at a price of $1.05 per share (subject to
adjustment as provided in the Merger Agreement), net to the seller in cash,
which tender may also be made by delivery of Class A Warrants to purchase Common
Stock (the "Class A Warrants"), and Buyer or Acquisition Sub may withhold the
exercise price with respect to the payment for any Class A Warrants so
delivered, such tender offer (such offer as it may be extended, including any
subsequent offering period with respect thereto, the "Tender Offer") to be on
the terms and subject to the conditions set forth in the Merger Agreement and
(ii) following the purchase of Common Stock pursuant to the Tender Offer, a
merger of Acquisition Sub into NewPower (the "Merger"), as a result of which
NewPower will be the surviving corporation and will be a wholly owned subsidiary
of Buyer (capitalized terms used but not defined herein have the meanings
assigned to such terms in the Merger Agreement); and
WHEREAS, as of the date hereof, each of the Equity Holders owns and/or has
the power to vote, the number of shares of Common Stock set forth under the
column entitled "Shares" set forth in Schedule I hereto (the "Owned Shares") and
owns the number of Class A Warrants set forth under the column entitled "Class A
Warrants" set forth in Schedule I hereto; and
WHEREAS, the tender of at least a majority of NewPower's fully diluted
shares (as referenced in the Merger Agreement) of Common Stock in the Tender
Offer is a condition precedent to Buyer's and Acquisition Sub's obligation to
consummate the Tender Offer, and any tender of Common Stock by the tender of
Class A Warrants shall be deemed to represent the
tender of the shares underlying the Class A Warrants (as if the cash exercise
price for the Class A Warrants had been paid) for purposes of satisfying such
minimum conditions; and
WHEREAS, as an inducement and a condition to its willingness to enter into
the Merger Agreement, Buyer has required that Enron and the Equity Holders enter
into, and each of Enron and the Equity Holders has agreed to enter into, this
Agreement; and
WHEREAS, in connection with the Chapter 11 Proceeding, this Agreement must
be approved by the Bankruptcy Court prior to the performance by the Chapter 11
Parties of their obligations hereunder;
NOW, THEREFORE, in consideration of the mutual covenants, conditions and
agreements contained herein the parties hereto agree as follows:
1. AGREEMENT TO TENDER. Each of the Equity Holders, severally and not
jointly, hereby agrees that, promptly after the Bankruptcy Court has approved
this Agreement and the transactions contemplated hereby as contemplated in
Section 6(b) hereof and prior to the closing of the Tender Offer, such Equity
Holder shall tender (or cause the record holder to tender) for purchase pursuant
to the Tender Offer, its Owned Shares and its Common Stock covered by the Class
A Warrants that are tendered in accordance with this Agreement in the Tender
Offer, together with any shares of Common Stock acquired by such Equity Holder
after the date of this Agreement, whether upon the exercise of such Equity
Holder's Class A Warrants, if any, or options, conversion of convertible
securities or otherwise (such acquired shares and the shares of Common Stock
covered by the Class A Warrants, together with such Equity Holder's Owned
Shares, are referred to herein collectively as such Equity Holder's "Covered
Shares"). Subject to applicable law, each Equity Holder, severally and not
jointly, hereby further agrees that during the time this Agreement is in effect,
it shall not withdraw any Covered Shares for purchase pursuant to the Tender
Offer. In connection with the tender by each of the Equity Holders of Covered
Shares, each Equity Holder shall deliver to the Exchange Agent designated in the
Tender Offer (i) a letter of transmittal with respect to such securities
complying with the terms of the Tender Offer, (ii) certificates representing
such Covered Shares (including the documents representing the Class A Warrants)
and (iii) all other documents or instruments generally required to be delivered
by stockholders or warrantholders pursuant to the Tender Offer.
2. ACTIONS WITH RESPECT TO ANY TAKEOVER PROPOSAL. Subject to the prior
approval of this Agreement and the transactions contemplated hereby by the
Bankruptcy Court as contemplated in Section 6(b) hereof, during the time this
Agreement is in effect, at any meeting of the stockholders of NewPower, however
called, or in any written consent in lieu thereof, prior to the purchase of the
Covered Shares pursuant to the Tender Offer Enron and each Equity Holder shall,
or shall cause the record holder(s) of its respective Covered Shares to (i) vote
its Covered Shares for approval and adoption of the Merger Agreement and the
Merger; (ii) vote its Covered Shares against any action or agreement submitted
to NewPower's stockholders for approval that would be reasonably likely to
result in a breach in any material respect of any covenant, representation or
warranty or any other obligation or agreement of NewPower under the Merger
Agreement; and (iii) vote its Covered Shares against any action or agreement
submitted to NewPower's stockholders for approval that would be reasonably
likely to impede, interfere with, delay, postpone or attempt to discourage the
Merger or the Tender Offer, including, but not limited to: (A) any acquisition
agreement or other similar agreement
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related to a proposal to acquire NewPower, (B) any change in NewPower's
management or the NewPower's Board of Directors, except as provided in Article
II of the Merger Agreement or as otherwise agreed to in writing by Buyer or (C)
any other material change in NewPower's corporate structure or business. In
addition, during the term of this Agreement, none of Enron or any of the Equity
Holders shall, nor shall Enron or such Equity Holder permit any investment
banker, financial adviser, attorney, accountant or other representative or agent
engaged or employed by or on behalf of it to, directly or indirectly (x)
initiate, solicit or encourage, directly or indirectly, any inquiries or the
making of any takeover proposal with respect to NewPower or (y) engage in any
negotiations concerning, or provide any confidential information or data to, or
have any discussions with, any person relating to, any takeover proposal with
respect to NewPower, or otherwise facilitate any effort or attempt to make or
implement any takeover proposal with respect to NewPower.
3. PROXY; REVOCATION OF PRIOR PROXIES. Each of the Equity Holders
hereby grants to Acquisition Sub, and to each officer of Buyer, a proxy to vote
the Covered Shares as indicated in Section 2 to the extent but only to the
extent, that the Equity Holder does not so vote the Covered Shares. Each of the
Equity Holders intends this proxy to be irrevocable and coupled with an interest
and each will take such further action or execute such other instruments as may
be necessary to effectuate the intent of this proxy and hereby revoke any proxy
previously granted by any of the Equity Holders with respect to the Covered
Shares. To the extent inconsistent with Section 2 of this Agreement or any other
provisions of this Agreement, each Equity Holder hereby revokes any and all
previous proxies with respect to voting any Covered Shares in respect of any
takeover proposal (as defined in the Merger Agreement).
4. NO EFFECT ON FIDUCIARY DUTIES OF ANY BOARD MEMBER. Nothing herein
contained shall restrict, limit or prohibit any individuals on NewPower's Board
of Directors who may represent or be employed by any Equity Holder of NewPower
from exercising in his or her capacity as a director or officer his or her
fiduciary duties to the stockholders of NewPower under applicable law, provided
that nothing in this Section 4 shall relieve or be deemed to relieve any Equity
Holder from its obligations under this Agreement.
5. DISPOSITION OF SHARES; INCONSISTENT ACTION. During the time this
Agreement is in effect, each Equity Holder hereby agrees that, except as
contemplated pursuant to this Agreement, it will not directly or indirectly
sell, pledge, assign, encumber, grant any proxy or enter into any voting or
similar agreement with respect to, transfer or otherwise dispose of
(collectively, "Transfer"), or agree or contract to Transfer, any of its Covered
Shares (or any interest with respect thereto) or any Class A Warrants or take
any other action that would restrict, limit or interfere with the performance of
such Equity Holder's obligations hereunder or the transactions contemplated
hereby; provided that any exercise of any Class A Warrants that does not involve
a Transfer to any other person (other than to Buyer or Acquisition Sub) of any
shares obtained upon such exercise shall not constitute a Transfer in violation
of this Section 5.
6. COVENANTS.
(a) Subject to the prior approval of this Agreement and the transactions
contemplated hereby by the Bankruptcy Court, each of Enron and each Equity
Holder (i) shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be reasonably necessary or
appropriate to effectuate, carry out and comply with its
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obligations under this Agreement and (ii) hereby agree to use its reasonable
best efforts to take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including, without limitation, (A) obtaining all waivers,
consents and approvals from Governmental Entities (defined herein) and making
all registrations and filings (including filings with Governmental Entities)
necessary for it to perform its obligations under this Agreement, and using its
reasonable best efforts as may be necessary to obtain an approval or waiver from
any Governmental Entity (including those in connection with any governmental
antitrust review) and (B) obtaining all consents, approvals or waivers from
third parties necessary for it to perform its obligations under this Agreement.
Without limiting the generality of the foregoing, but subject to the prior
approval of this Agreement and the transactions contemplated hereby by the
Bankruptcy Court, each of Enron and each Equity Holder shall not enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if such
action (or failure) would materially impair its ability to effectuate, carry out
or comply with all the terms of this Agreement. Buyer hereby agrees to
reasonably cooperate with Enron and each Equity Holder in connection with any
consents to be obtained or any filings required to be made by Enron and such
Equity Holder in connection with the tender of Covered Shares and Class A
Warrants pursuant to the Tender Offer or the Merger and the transactions
contemplated thereby.
(b) Not later than March 1, 2002, the Chapter 11 Parties shall file a
joint motion (the "Initial Motion") for determination of approval by the
Bankruptcy Court of this Agreement and the transactions contemplated hereby,
which Initial Motion shall be in substantially the form attached as Annex I
hereto. Each Chapter 11 Party shall use its reasonable best efforts to obtain an
order from the Bankruptcy Court approving the Initial Motion (the "Initial
Order"), as promptly as is practicable and in any event within 60 days after the
date of this Agreement. The Chapter 11 Parties shall give Buyer and Acquisition
Sub a reasonable opportunity to review in advance all filings with the
Bankruptcy Court relating to approval of this Agreement and the Initial Motion
or otherwise relating to the Equity Holders' interest in NewPower.
(c) Notwithstanding anything else herein to the contrary, the
obligations of each of the Chapter 11 Parties and each of the other Equity
Holders under this Agreement are subject to the prior approval of this Agreement
by the Bankruptcy Court.
(d) To the extent that the Equity Holders have complied with the
applicable requirements of law with respect to the tender of their Covered
Shares and the avoidance of withholding from the proceeds thereof, neither the
Buyer nor Acquisition Sub will deduct or withhold, for withholding tax under the
Internal Revenue Code of 1986, as amended, or any provision of state, local or
foreign tax law from the consideration otherwise payable to any of the Equity
Holders pursuant to the Tender Offer upon the purchase of Covered Shares
pursuant to the Tender Offer.
(e) Subject to applicable law, amounts payable to the Equity Holders
upon the purchase of Covered Shares pursuant to the Tender Offer shall not
reflect any deduction or setoff for any amounts other than the exercise price
for Covered Shares subject to the Class A Warrants.
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7. REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer represents and
warrants to NewPower, Enron and the Equity Holders as follows:
(a) Organization; Due Authorization; Enforceability. Buyer and
Acquisition Sub are corporations duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization and the State of
Delaware, respectively. Buyer has full corporate power and authority to execute
and deliver this Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of Buyer, and no other corporate proceeding
on the part of Buyer or Acquisition Sub is necessary to authorize this Agreement
or the Merger Agreement or to consummate the transactions contemplated hereby or
thereby. This Agreement has been duly and validly executed and delivered by
Buyer and constitutes a valid and binding agreement of Buyer, enforceable
against Buyer in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally and to general principles of equity. As of the date
of this Agreement, each of Buyer and Acquisition Sub intend to commence and
consummate the Tender Offer, including accepting for purchase, purchasing and
paying for the Covered Shares and Class A Warrants upon the closing of the
Tender Offer, and the Merger on the terms and subject to the conditions set
forth in the Merger Agreement.
(b) No Filings, Etc. No authorization, consent or approval of, or filing
with, any court, agency, commission, or any public body or authority, domestic
or foreign ("Government Entities") is necessary for the consummation by Buyer of
the transactions contemplated by this Agreement, other than (i) filings that may
be required under Sections 13d and 14 of the Securities Exchange Act of 1934, as
amended, (ii) filings and required approvals or waiting period termination under
the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR
Act") and (iii) such other matters as are referred to in Section 5.3 of the
Merger Agreement.
(c) No Breach, Etc. The execution, delivery and performance of this
Agreement by Buyer will not constitute a breach, violation or default (or any
event which, with notice or lapse of time or both, would constitute a breach,
violation or default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien or encumbrance upon any of the
properties or assets of Buyer under, any note, bond, mortgage, indenture, deed
of trust, license, lease, agreement or other instrument to which Buyer is a
party or by which its properties or assets are bound, other than breaches,
violations, defaults, terminations, accelerations or creation of liens and
encumbrances which, in the aggregate, would not materially impair the ability of
Buyer to perform its obligations hereunder.
8. REPRESENTATIONS AND WARRANTIES OF ENRON AND THE EQUITY HOLDERS. Each
of Enron and each of the Equity Holders, severally and not jointly, hereby
represent and warrant to Buyer and NewPower as follows:
(a) Organization; Due Authorization; Enforceability. It has full power
and authority to execute and deliver this Agreement. The execution and delivery
of this Agreement and the consummation of the transactions contemplated hereby
have been duly and validly authorized by all necessary action on its part, and,
except for approval by the Bankruptcy Court in the case of
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the Chapter 11 Parties, no other proceeding on the part of Enron and such Equity
Holder is necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by it (subject to approval by the Bankruptcy Court in the
case of the Chapter 11 Parties), and constitutes a valid and binding agreement
of it (subject to approval by the Bankruptcy Court in the case of the Chapter 11
Parties), enforceable against it in accordance with its terms (subject to
approval by the Bankruptcy Court in the case of the Chapter 11 Parties), subject
to applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to creditors' rights generally and to general principles
of equity.
(b) Ownership of Shares; Voting Rights; Creditors Committee Approval.
Except as set forth in Schedule II hereto, such Equity Holder owns, of record
and beneficially, the Owned Shares or Class A Warrants set forth opposite such
Equity Holder's name in Schedule I hereto free and clear of any liens, claims or
encumbrances (subject to required approvals by the Bankruptcy Court), which
Owned Shares or Class A Warrants constitute the only capital stock, or equity
interests of NewPower or its Subsidiaries owned, beneficially or of record, by
such Equity Holder or Enron. Schedule I contains a true and complete list of or
reference to all options, warrants, calls, subscriptions or other rights or
other agreements or commitments of any character of or with it or its respective
subsidiaries or to which it or its respective subsidiaries is a party relating
to the issued or unissued shares of Common Stock or other capital stock or
treasury stock of NewPower or any of its Subsidiaries. Except as set forth on
Schedule II hereto, such Equity Holder has the full power to vote his or its
Owned Shares (subject to required approvals by the Bankruptcy Court) free and
clear of any liens, claims or encumbrances. Except pursuant to this Agreement,
required approvals of the Bankruptcy Court or as set forth on Schedule II
hereto, such Equity Holder's Owned Shares are not subject to any voting trust
agreement or other contract, agreement, arrangement, commitment or understanding
restricting or otherwise relating to the voting or disposition of such Owned
Shares. Each Equity Holder's representations in this Section 8(b) shall be
re-made as of the closing of the Tender Offer but the term "Covered Shares"
shall be substituted for "Owned Shares" and Schedule I hereto shall be
appropriately modified by the Equity Holders to the extent required.
(c) No Breach, Etc.; No Fees. Except for the approval by the Bankruptcy
Court and except for any filings that may be required under Section 13d or
Section 16 of the Securities Exchange Act of 1934, as amended, or under the HSR
Act, no authorization, consent or approval of, or filing with, any Governmental
Entity is necessary for the consummation by it of the transactions contemplated
by this Agreement. The execution, delivery and performance of this Agreement by
it will not constitute a breach, violation or default (or any event which, with
notice or lapse of time or both, would constitute a breach, violation or
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of its properties or
assets under any provision of applicable law or regulation or judgment,
injunction, order or decree binding on it, or any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
it is a party or by which its properties or assets are bound, as the case may
be, other than breaches, violations, defaults, terminations, accelerations or
creation of liens and encumbrances which, in the aggregate, would not impair its
ability to perform its obligations hereunder in any material respect. No
investment banker, broker or finder is entitled to a commission or fee from
Buyer, Acquisition Sub, NewPower or any of their
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respective affiliates (other than Enron or any of the Equity Holders) in respect
of this Agreement based upon any arrangement or agreement made by it or on its
behalf.
9. REPRESENTATIONS AND WARRANTIES OF NEWPOWER. NewPower represents and
warrants to Buyer, Enron and the Equity Holders as follows:
(a) Organization; Due Authorization; Enforceability. NewPower is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. NewPower has full corporate power and authority to
execute and deliver this Agreement. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly and
validly authorized by the Board of Directors of NewPower, and no other corporate
proceeding on the part of NewPower is necessary to authorize this Agreement or
the Merger Agreement or to consummate the transactions contemplated hereby or
thereby. This Agreement has been duly and validly executed and delivered by
NewPower and constitutes a valid and binding agreement of NewPower, enforceable
against NewPower in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to
creditors' rights generally and to general principles of equity.
(b) No Filings, Etc. No authorization, consent or approval of, or filing
with, any Governmental Entity is necessary for the consummation by NewPower of
the transactions contemplated by this Agreement, other than (i) filings that may
be required under Sections 13d and 14 of the Securities Exchange Act of 1934, as
amended, (ii) filings and required approvals or waiting period termination under
the HSR Act and (iii) such other matters as are referred to in Section 4.4 of
the Merger Agreement.
(c) The execution, delivery and performance of this Agreement by
NewPower will not constitute a breach, violation or default (or any event which,
with notice or lapse of time or both, would constitute a breach, violation or
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the properties or
assets of NewPower under, any note, bond, mortgage, indenture, deed of trust,
license, lease, agreement or other instrument to which NewPower is a party or by
which its properties or assets are bound, other than breaches, violations,
defaults, terminations, accelerations or creation of liens and encumbrances
which, in the aggregate, would not materially impair the ability of NewPower to
perform its obligations hereunder.
10. CONSENT UNDER NEWPOWER CHARTER. Enron hereby agrees that at any time
from and after the earlier of (i) the purchase of the Covered Shares and Class A
Warrants pursuant to the Tender Offer and (ii) the Effective Time, Enron hereby
grants to the Buyer and NewPower its irrevocable approval of and consent to
NewPower engaging in any lawful business or activity in which a corporation
organized under the DGCL is permitted to engage, and the certificate of
incorporation of NewPower may be amended to expand the permitted purposes of
NewPower accordingly. The approval and consent in the immediately preceding
sentence of this Section 10 is granted in accordance with Article Three, Section
1(l) of the Second Amended and Restated Certificate of Incorporation of TNPC
Inc. (currently known as NewPower Holdings, Inc.).
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11. TERMINATION. This Agreement, including, without limitation,
Acquisition Sub's and each officer's of Buyer right to vote Covered Shares to
the extent permitted in accordance with Section 3 hereof, shall terminate and
cease to be of any force or effect on the earliest to occur of (A) the purchase
of the Covered Shares pursuant to the Tender Offer, (B) the Effective Time, (C)
the termination of the Merger Agreement in accordance with its terms prior to
the purchase of any Covered Shares validly tendered and not withdrawn pursuant
to the Tender Offer, (D) the effective time of any amendment or modification,
directly or indirectly, of any provision of Articles I, VIII or IX of the Merger
Agreement that (i) occurs prior to the purchase of Covered Shares pursuant to
the Tender Offer, (ii) was not approved in writing by Enron and each Equity
Holder prior to such effective time and (iii) adversely affects the Equity
Holders and (E) upon the election of any of the Equity Holders, the date that
the Per Share Amount, as adjusted in accordance with Section 1.1(d) of the
Merger Agreement, and after giving effect to Section 1.1(f) of the Merger
Agreement, payable for Common Stock in the Tender Offer is reduced to less than
$0.80.
12. MISCELLANEOUS.
(a) Notices, Etc. All notices, requests, demands or other communications
required by or otherwise with respect to this Agreement shall be in writing and
shall be deemed to have been duly given to any party when delivered personally
(by courier service or otherwise), when delivered by telecopy and confirmed by
return telecopy, or three days after being mailed by first class mail, postage
prepaid, in each case to the applicable addresses set forth below:
If to Xxxxxx:
Xxxxxx Energy Services, LLC
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Enron Energy Services, LLC
Managing Member
If to McGarret I:
McGarret I, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Managing Member
if to McGarret II:
McGarret II, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Managing Member
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if to McGarret III:
McGarret III, L.L.C.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: Managing Member
if to Warrant Trust:
EES Warrant Trust
c/o Wilmington Trust Company
Xxxxxx Square North
0000 X. Xxxxxx Xx.
Xxxxxxxxxx, XX 00000-0000
Attention: Corporate Trust
Administration
if to Buyer:
Centrica plc
Millstream, Xxxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxx XX0 0XX, Xxxxxx Xxxxxxx
Attention: Xxxxx Xxxxxx
Facsimile: 44 (1753) 494-602
if to Enron or EES LLC:
c/o Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
if to NewPower:
NewPower Holdings, Inc.
Xxx Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: General Counsel
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by
instrument in writing signed by each of the parties hereto.
(c) Successors and Assigns. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties without the prior written consent of
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the other parties, except that Buyer may assign, in its sole discretion, any or
all of its rights, interests and obligations hereunder to any direct or indirect
wholly owned U.S. subsidiary of Buyer. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by,
the parties and their respective successors and assigns. Each of the Equity
Holders agree that this Agreement and the obligations of such Equity Holder
hereunder shall attach to such Equity Holder's Covered Shares and Class A
Warrants and shall be binding upon any person or entity to which legal or
beneficial ownership of such Covered Shares or Class A Warrants shall pass,
whether by operation of law or otherwise, including such Equity Holders'
administrators or successors.
(d) Entire Agreement. This Agreement embodies the entire agreement and
understanding among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings with respect to such subject
matter. There are no representations, warranties or covenants by the parties
hereto with respect to such subject matter other than those expressly set forth
in this Agreement.
(e) Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that the
parties shall negotiate in good faith in an attempt to agree upon another
provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder to the fullest extent possible.
(f) Specific Performance. The parties agree that irreparable damage
would occur if any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It is
accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in the courts of the State of
Delaware and the federal courts of the United States of America located in the
State of Delaware, this being in addition to any other remedy to which they are
entitled at law or in equity.
(g) Stop Transfer Restriction. In furtherance of this Agreement, each of
the Equity Holders shall, and hereby does, authorize Acquisition Sub's counsel
to notify NewPower's transfer agent after the Bankruptcy Court has approved this
Agreement, that a stop transfer restriction is imposed with respect to all of
the Covered Shares and the Class A Warrants (and that this Agreement places
limits on the voting and transfer of such Covered Shares and the Class A
Warrants). Notwithstanding the foregoing sentence, if such a stop transfer is
imposed and this Agreement is terminated, the Equity Holders may notify the
transfer agent that the stop transfer is terminated and Buyer shall provide any
and all notices or instructions to reflect such termination.
(h) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
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(i) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereto at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(j) Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto, except for the permitted assignee of any party.
(k) Governing Law and Venue; Waiver of Jury Trial. (i) This Agreement
shall be deemed to be made in and in all respects shall be interpreted,
construed and governed by and in accordance with the law of the State of
Delaware applicable to contracts to be performed wholly in such state. The
parties hereby irrevocably submit to the jurisdiction of the courts of the State
of Delaware and the Federal courts of the United States of America located in
the State of Delaware solely in respect of the interpretation and enforcement of
the provisions of this Agreement and of the documents referred to in this
Agreement and in respect of the transactions contemplated hereby, and hereby
waive, and agree not to assert, as a defense in any action, suit or proceeding
for the interpretation or enforcement hereof or of any such document, that it is
not subject thereto or that such action, suit or proceeding may not be brought
or is not maintainable in said courts or that the venue thereof may not be
appropriate or that this Agreement or any such document may not be enforced in
or by such courts, and the parties hereto irrevocably agree that all claims with
respect to such action or proceeding shall be heard and determined in such a
Delaware State or Federal court. The parties hereby consent to and grant any
such court jurisdiction over the person of such parties and over the subject
matter of such dispute and agree that mailing of process or other papers in
connection with any such action or proceeding in the manner provided in Section
12(a) or in such other manner as may be permitted by law shall be valid and
sufficient service thereof.
(ii) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY
MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO
THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN
THIS SECTION 12(k).
(l) Name, Captions, Gender; Interpretation. The name assigned this
Agreement and the section captions used herein are for convenience of reference
only and shall not affect the
-11-
interpretation or construction hereof. Whenever the context may require, any
pronoun used herein shall include the corresponding masculine, feminine or
neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies of each signed by less than all, but together signed by all,
the parties hereto.
(n) Expenses. Each party hereto shall bear its own expenses incurred in
connection with this Agreement and the transactions contemplated hereby.
(o) No Consequential or Punitive Damages. Notwithstanding anything in
this Agreement or in any other agreement to the contrary, in no event shall any
party to this Agreement be obligated to any other Party to this Agreement for
any consequential, punitive or special damages arising from any breach or
violation of this Agreement.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK
-12-
IN WITNESS WHEREOF, the parties have duly executed this Tender Agreement
as of the date first above written.
CENTRICA plc
By: /s/ XXXXX XXXXXX
---------------------------------------
Name: Xxxxx Xxxxxx
------------------------------------
Title: General Counsel & Secretary
------------------------------------
ENRON CORP.
By: /s/ XXXX X. XXXXXX
---------------------------------------
Name: Xxxx X. Xxxxxx
------------------------------------
Title: EVP, Corporate Development
------------------------------------
ENRON ENERGY SERVICES, LLC
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
XXXXXX ENERGY SERVICES, LLC
By: Enron Energy Services, LLC, its
Managing Member
By: Enron Corp., its Managing Member
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
-13-
MCGARRET I, L.L.C.
By: Enron Energy Services, LLC, its
Managing Member
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
MCGARRET II, L.L.C.
By: Enron Energy Services, LLC, its
Managing Member
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
MCGARRET III, L.L.C.
By: Enron Energy Services, LLC, its
Managing Member
By: /s/ XXXXXX X. XXXX
---------------------------------------
Name: Xxxxxx X. Xxxx
------------------------------------
Title: Chairman and Chief Executive Officer
------------------------------------
EES WARRANT TRUST
By: Wilmington Trust Company, as Trustee
By:
---------------------------------------
Name:
------------------------------------
Title:
------------------------------------
-14-
NEWPOWER HOLDINGS, INC.
By: /s/ H. Xxxxxx Xxxxxxxx
---------------------------------------
Name: H. Xxxxxx Xxxxxxxx
Title: Chairman, President and
Chief Executive Officer
-15-
SIGNATURE PAGE FOR 2/22/02 TENDER AGREEMENT
It is expressly understood and agreed by the parties to this Agreement
that (a) this document is executed and delivered by Wilmington Trust Company,
not individually or personally, but solely as Owner Trustee, in the exercise of
the powers and authority conferred and vested in it, pursuant to the Trust
Agreement of the EES Warrant Trust, (b) each of the representations,
undertakings and agreements herein made on the part of the Trust is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as creating any
liability on Wilmington Trust Company, individually or personally, to perform
any covenant either expressed or implied contained herein, all such liability,
if any, being expressly waived by the parties hereto and by any person claiming
by, through or under the parties hereto, and (d) under no circumstances shall
Wilmington Trust Company be personally liable for the payment of any
indebtedness or expenses of the Trust or be liable for the breach or failure of
any obligation, representation, warranty or covenant made or undertaken by the
Trust under this Agreement or any other related documents.
EES WARRANT TRUST
By: Wilmington Trust Company
not in its individual capacity but
solely as Owner Trustee
By: /s/ Xxx X. Xxxxxxx
------------------------------------
Name: Xxx X. Xxxxxxx
Title: Assistant Vice President
SCHEDULE I
SHARES(1)
CLASS A WARRANTS
----------------------------
NUMBER OF SHARE
EQUITY HOLDERS SHARES WARRANTS(2) EQUIVALENTS
-------------- ------ ----------- -----------
ENRON ENERGY SERVICES, LLC 8,650,400 -- --
XXXXXX ENERGY SERVICES, LLC 5,000,000 -- --
MCGARRET I, L.L.C. -- 33,832 6,766,400
MCGARRET II, L.L.C. -- 42,291 8,458,200
MCGARRET III, L.L.C. -- 13,959 2,791,800
EES WARRANT TRUST -- 120,589 24,117,800
----------
(1) For a description of any options, warrants, calls or other rights relating
to the capital stock of NewPower held by any of the persons identified in
this table, see Sections 2.5, 3.9, 3.10, 3.11, 5.2, 5.4 and 7.4 and
Article IV of the Stockholders Agreement, dated as of January 6, 2000,
among EMW Energy Services Corp. (now known as NewPower Holdings, Inc.),
EES LLC, Xxxxxx and certain other parties thereto, as amended by Amendment
No. 2 to the Stockholders Agreement, dated as of July 10, 2000 by and
among DLJMB Funding II, Inc., DLJ Merchant Banking Partners II, L.P., DLJ
Merchant Banking Partners II-A, L.P., DLJ Diversified Partners, L.P., DLJ
Diversified Partners-A, L.P., DLJ Millenium Partners, L.P., DLJ Millenium
Partners-A, L.P., DLJ First ESC L.P., DLJ Offshore Partners II, C.V., DLJ
EAB Partners, L.P., DLJ ESC II, L.P., GE Capital Equity Investments, the
Ontario Teachers' Pension Plan Board, and certain other parties thereto.
(2) Represents the number of Class A Warrants prior to a 200-to-1 stock split
effected by NewPower.
I-1
SCHEDULE II
LIENS
The Covered Shares owned by EES LLC are pledged as Collateral under the
Debtor-in-Possession Financing of the Chapter 11 Parties. JPMorgan Chase Bank
and Citicorp USA, Inc. are the lenders under such financing. Such pledge will be
released automatically upon the tender by EES LLC of its Covered Shares pursuant
to the Tender Agreement to which this is attached as Schedule II.
II-1
