STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement"), dated as of March 27,
1996, is entered into between Edison Mission Energy, a California corporation
("Seller"), and CalEnergy Imperial Valley Company, Inc., a Delaware corporation
("Buyer").
RECITALS
A. Seller owns the shares of common stock described in Exhibit A
attached hereto, constituting all of the outstanding capital stock (the "Stock")
of (a) Conejo Energy Company, a California corporation, (b) Niguel Energy
Company, a California corporation, (c) San Xxxxxx Energy Company, a California
corporation, and (d) BN Geothermal, Inc. a Delaware corporation (individually,
a "Company" and collectively, the "Companies"). The Companies own the
partnership interests set forth in Exhibit B attached hereto, constituting a
one-half (1/2) equity interest in, each of the following partnerships: (i)
Del Ranch, L.P., a California limited partnership, (ii) Xxxxxx, Ltd., a
California limited partnership, (iii) Leathers, L.P., a California limited
partnership, and (iv) Vulcan/BN Geothermal Power Company, a Nevada general
partnership (individually, a "Partnership" and collectively, the "Partner-
ships"), which own the Xxxx (Del Ranch), Xxxxxx, Leathers and Vulcan geothermal
power generation facilities, respectively, located in the Imperial County,
California.
B. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of the Stock subject to the terms and conditions of this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Defined Terms. As used herein, the terms below shall have the
following meanings. Any of such terms, unless the context otherwise requires,
may be used in the singular or plural, depending upon the reference.
"Action" shall mean any action, order, writ, injunction, judgment or
decree of any court or governmental or regulatory entity or any claim, suit,
litigation, proceeding, labor dispute, arbitral action, governmental or
regulatory audit or investigation.
"affiliate" shall have the meaning set forth in the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder.
"Books and Records" shall mean, with respect to a Company, records
of the Company pertaining to the Company's business, properties or assets and
books, ledgers, files, reports, documents and records of every kind (including
computer records and other forms of electronic data storage) relating thereto
maintained by the Company or by Representatives on its behalf.
"Closing" shall have the meaning set forth in Section 3.1 hereof.
"Closing Date" shall mean the second business day after the
conditions to Closing are satisfied or such other date mutually agreed to.
"Encumbrance" shall mean any claim, lien, pledge, option, warrant,
put, call, obligation, charge, easement, security interest, deed of trust,
mortgage, right-of-way, encroachment, building or use restriction, conditional
sales agreement, encumbrance or other right of third parties, whether volun-
tarily incurred or arising by operation of law, and includes, without
limitation, any agreement to give any of the foregoing in the future, and any
contingent sale or other title retention agreement or lease in the nature
thereof.
"material adverse change" shall mean with respect to the business or
financial condition of a Company any adverse effect or change in the financial
condition, business, results of operations, prospects, assets, liabilities or
operations of the Company's business and/or its assets which individually or in
the aggregate of all such changes has had a material adverse affect on the
business or financial condition of such Company taken as a whole, or on the
ability of the Seller or the Company to consummate the transactions contemplated
hereby, or any event or condition which would, with notice or the passage of
time, constitute a "material adverse change."
"Consents" shall mean all licenses, permits, franchises, approvals,
authorizations, consents or orders of, or filings with, any governmental
authority, whether foreign, federal, state or local, or any other person,
reasonably necessary for the present or anticipated conduct of, or relating to
the operation of, the Companies' businesses or for the consummation of the
transactions contemplated hereby.
"Purchase Price" shall have the meaning set forth in Section 2.2
hereof.
"Representative" shall mean any officer, director, principal,
attorney, accountant, agent, employee or other representative.
"Tax" or "Taxes" shall mean any federal, state, local, foreign or
other tax, levy, impost, fee, assessment or other government charge, including
without limitation income, estimated income, business, occupation, franchise,
property, payroll, personal property, sales, transfer, use, employment,
commercial rent, occupancy, license, gross receipts, ad valorem, excise, social
security, severance or withholding taxes, and any premium, including without
limitation interest, penalties, fines and additional sums to be paid in
connection therewith.
"Tax Return" means any return, report, information return audit,
investigation or other proceeding response or other document (including any
related or supporting information and, where applicable, profit and loss
accounts and balance sheets) with respect to Taxes.
ARTICLE II
PURCHASE AND SALE OF STOCK
2.1 Transfer of Stock. Upon the terms and subject to the conditions
contained herein, at the Closing, Seller will sell, convey, transfer, assign and
deliver to Buyer, and Buyer will acquire from Seller, all shares of the Stock.
2.2 Consideration for Stock. Upon the terms and subject to the
conditions contained herein, as consideration for the purchase of all shares of
the Stock, Buyer shall pay to Seller at the Closing the aggregate amount of
Seventy Million U.S. Dollars (US$70,000,000) in immediately available funds (the
"Purchase Price").
ARTICLE III
CLOSING
3.1 Closing. The closing of the transactions contemplated herein (the
"Closing") shall be held on the Closing Date at 9:00 a.m. local time at the
offices of Seller, unless the parties hereto otherwise agree in writing.
3.2 Documents to be Delivered. To effect the transfer referred to in
Section 2.1 hereof and the delivery of the consideration described in Section
2.2 hereof, Seller and Buyer shall, on the Closing Date, deliver the following:
(a) Seller shall deliver to Buyer certificates evidencing all
shares of the Stock, free and clear of all Encumbrances of any nature
whatsoever, duly endorsed in blank for transfer or accompanied by stock powers
duly executed in blank.
(b) Seller and Buyer each shall deliver all documents required to
be delivered pursuant to Articles VII and VIII hereof.
(c) Buyer shall deliver the Purchase Price required to be paid at
the Closing in immediately available funds.
(d) Seller shall deliver to Buyer all Books and Records of the
Companies and written resignations of the Companies' nominees to the
Partnerships' management committees and of all directors and officers of the
Companies, it being agreed that Seller may retain copies of the Books and
Records for bona fide business purposes, subject to the confidentiality and use
restrictions contained herein.
ARTICLE IV
REPRESENTATIONS, WARRANTIES AND AGREEMENTS
OF SELLER AND THE COMPANIES
Seller hereby agrees with and represents and warrants to Buyer as follows,
which representations and warranties are, as of the date hereof true and
correct:
4.1 Organization. Each of Seller and the Companies is a corporation duly
organized, validly existing and in good standing under the laws of the state of
its incorporation.
4.2 Authorization. Each of Seller and the Companies has all requisite
power and authority, and has taken all corporate action necessary, to execute
and deliver this Agreement, to consummate the transactions contemplated hereby
and to perform its obligations hereunder. This Agreement has been duly executed
and delivered by Seller and is a legal, valid and binding obligation of Seller
enforceable against Seller and each of the Companies in accordance with its
terms.
4.3 Capitalization and Partnership Interests. Seller owns all the
outstanding shares of Stock set forth in Exhibit A hereto and such shares
constitute the entire outstanding capital stock and equity interest of the
Companies as set forth in Exhibit C attached hereto; and there are no other
outstanding debt or equity securities or similar instruments or interests in
respect of the Companies (except for the Company's proportionate share of any
debt obligations of the Partnerships, if any, set forth on the Balance Sheets
referred to in Section 4.6). Upon transfer to Buyer of the shares of Stock,
Seller shall have indirectly transferred to Buyer all of the Partnership
Interests set forth in Exhibit B, which include all of Seller's and the
Companies' right, title and interest in and to the Partnerships of any kind
whatsoever, including, without limitation, any interest in any proceeds in
respect of Partnership litigation or other claims against third parties.
4.4 No Encumbrances. Seller owns as of the date hereof, and will own as
of the Closing Date, all of the outstanding and authorized capital stock and
equity interests of the Companies free and clear of all Encumbrances.
4.5 Scope of Business. The sole business of the Companies has in the
past and presently consists solely of owning the partnership interests in the
Partnerships as set forth in Exhibit B hereto and none of the Companies has had
in the past or presently has any business activities of any kind (including
holding securities or other investments) other than owning such partnership
interests. None of the Companies has any employees; or any obligations or
liabilities of any kind other than as a partner of the Partnerships.
4.6 December 31, 1995 Balance Sheets; No Material Adverse Change.
Attached as Exhibit D are balance sheets for each of the Companies as of
December 31, 1995 prepared by Seller in accordance with generally accepted
accounting principles ("GAAP") and which set forth all of the assets and
liabilities of the respective Companies as of such date that are required to
be set forth in balance sheets conforming to GAAP; provided that it is under-
stood that Seller makes no representation or warranty in respect of the balance
sheets or liabilities of the Partnerships and shall have no liability under this
representation for any inaccuracy therein or inadequacy thereof that causes or
results in any inaccuracy in or inadequacy of the balance sheets of the
Companies. Subject to the proviso of the preceding sentence, except as
expressly set forth on the Companies' balance sheets, there exist, as of
December 31, 1995, no liabilities, obligations or expenses of the Companies
of any kind, whether accrued, contingent or otherwise (and whether or not
such liabilities would be required to be set forth in balance sheets conforming
to GAAP, including, without limitation, any contingent liabilities that may
arise as a result of the Companies being part of a consolidated group for ERISA
or tax purposes) and Seller is not aware of any event, condition or occurrence
(or threat thereof) which would reasonably be expected to cause a material
adverse change. Seller shall be responsible for and shall fully pay and
discharge any liabilities, obligations or expenses of any kind of the Companies,
if any, existing at the time of the Closing, which were not specifically set
forth on the December 31, 1995 Balance Sheets, except for liabilities,
obligations and expenses arising after December 31, 1995 that solely and
directly result from liabilities, obligations or expenses of the Partnerships
arising after such date.
4.7 Post 1995 Partnership Distributions; Pay Over Assurance. Seller
acknowledges that all economic distributions in respect of the Partnership
Interests for the period commencing after December 31, 1995 are intended to be
transferred to Buyer hereunder, and accordingly, Seller agrees that if any
monies, properties, securities, proceeds or any other benefits in respect of the
Partnership Interests (for the period commencing after December 31, 1995) are
inadvertently received by it or its affiliates; that it will immediately notify
and pay over the same to Buyer or to Buyer's nominee.
4.8 Taxes. Each of the Seller and the Companies have timely filed with
the appropriate governmental authorities all Tax Returns required to be filed by
or with respect to each of the Companies or their respective operations or
assets, and such Tax Returns are true, correct and complete in all material
respects. All Taxes shown to be due on such Tax Returns, all Taxes required to
be paid on an estimated or installment basis, and all Taxes required to be
withheld with respect to the Seller or any of the Companies or their respective
operations or assets have been timely paid or, if applicable, withheld and paid
to the appropriate taxing authority in the manner provided by law, and all Taxes
which are or may become due in respect of the Companies for tax periods ending
prior to January 1, 1996 will be fully paid and discharged by Seller; provided,
that it is understood that Seller makes no representation or warranty in respect
of Tax Returns or Taxes due and payable by the Partnerships and shall have no
liability under this representation for any inaccuracy of such Tax Returns or
any failure of the Partnerships to pay such Taxes, except that, notwithstanding
any such inaccuracy or failure, Seller shall be obligated to pay and discharge
the Companies' allocable share of Taxes arising in respect of the Partnerships
for tax periods ending prior to January 1, 1996, including any adjustments to
Taxes resulting from tax audits and the Companies' allocable share of costs and
expenses in connection therewith.
4.9 No Brokers, Etc. Neither Seller nor the Companies nor any of their
respective Representatives, shareholders or affiliates has employed or made any
agreement with any Representative, broker, finder or similar agent or any other
person or firm which will result in the obligation of Buyer, any Company or any
of their respective affiliates to pay any finder's fee, brokerage fee,
consulting fee, severance fee, services fee, commission or similar payment or
expense in connection with the transactions contemplated hereby. Seller will
pay all of its own and the Companies' expenses in connection with this
Agreement, as provided in Section 11.7 hereof.
4.10 Books and Records. Seller represents and warrants to Buyer that the
Books and Records delivered to Buyer at the closing are originals or true and
accurate copies of the actual Books and Records of the Companies and contain all
information reasonably required for Buyer to own and operate the Companies
following the Closing.
ARTICLE V
REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF BUYER
Buyer agrees with and hereby represents and warrants to Seller as follows,
which representations and warranties are, as of the date hereof, and will be, as
of the Closing Date, true and correct:
5.1 Organization. Buyer is a corporation duly organized, validly
existing and in good standing under the laws of Delaware.
5.2 Authorization. Buyer has all requisite power and authority, and has
taken all action necessary, to execute and deliver this Agreement, to consummate
the transactions contemplated hereby and to perform its obligations hereunder.
This Agreement has been duly executed and delivered by Buyer and is a legal,
valid and binding obligation of Buyer enforceable against Buyer in accordance
with its terms.
5.3 No Brokers, Etc. Neither Buyer nor any of its Representatives,
shareholders or affiliates has employed or made any agreement with any
Representative, broker, finder or similar agent or any other person or firm
which will result in the obligation of Seller, any Company, or any of Seller's
affiliates to pay any finder's fee, brokerage fee, consulting fee, severance
fee, services fee, or commission or similar payment or expense in connection
with the transactions contemplated hereby. Buyer will pay all of its own
expenses in connection with this Agreement, as provided in Section 11.7 hereof.
ARTICLE VI
COVENANTS OF BUYER, SELLER AND THE COMPANIES
Buyer and Seller each covenant with the other as follows:
6.1 Actions to Consummate Closing; Further Assurances. Each of the
parties hereto agrees, both before and after the Closing, (a) to use all
reasonable efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable to remove or satisfy
Closing conditions which are within such party's control and otherwise to
consummate and make effective the transactions contemplated by this Agreement,
(b) to execute any documents, instruments or conveyances of any kind which may
be reasonably necessary or advisable to carry out any of the transactions
contemplated hereunder, and (c) to cooperate with each other in connection with
the foregoing.
6.2 Conduct of Business. From the date hereof through the Closing, the
Companies shall, except as consented to by Buyer in writing, continue to operate
solely in the ordinary course of business and substantially in accordance with
past practice and will not take any action inconsistent with this Agreement or
with the consummation of the Closing.
6.3 Tax Elections. Seller and Buyer each agree to cause a Section
338(h)(10) election to be made in connection with the Companies. Without
diminishing any obligation of the Seller under Section 4.8, Buyer agrees to pay
all Taxes and to prepare and file all Tax Returns and tax elections of the
Companies (including preparing the Section 338(h)(10) election for Seller) for
tax periods ending after December 31, 1995.
ARTICLE VII
CONDITIONS TO SELLER'S OBLIGATIONS
The obligations of Seller to consummate the transactions provided for
hereby are subject to the satisfaction, on or prior to the Closing Date, of each
of the following conditions, any of which may be waived by Seller:
7.1 Representations, Warranties and Covenants. All representations and
warranties of Buyer contained in this Agreement shall be materially true and
correct at and as of the date of this Agreement and at and as of the Closing
Date as if made thereon, and Buyer shall have performed and satisfied all
agreements and covenants required hereby to be performed by it on or prior to
the Closing Date.
7.2 Consents. All Consents and waivers necessary to the consummation of
the transactions contemplated hereby shall have been obtained, including without
limitation any notice and approval required pursuant to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and any other third party
consents (to the extent not waived).
7.3 No Proceedings or Litigation. No Action by any governmental
authority or other person shall have been instituted or threatened which
questions the validity or legality of the transactions contemplated hereby and
which could reasonably be expected to (a) materially affect the right or ability
of Buyer to own, possess or transfer the Stock after the Closing, or (b)
materially damage Seller if the transactions contemplated hereunder are
consummated. There shall not be any statute, rule or regulation that makes the
purchase and sale of the Stock contemplated hereby illegal or otherwise
prohibited.
7.4 Exhibit. Buyer shall have delivered to Seller a duly executed copy
of Exhibit E.
7.5 Certificates. Buyer shall furnish Seller with such Certificates of
its duly authorized officers to evidence compliance with the conditions set
forth in Sections 7.1 through 7.3 of this Article VII as may be reasonably
requested by Seller.
ARTICLE VIII
CONDITIONS TO BUYER'S OBLIGATIONS
The obligations of Buyer to consummate the transactions provided for hereby
are subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived by Buyer:
8.1 Representations, Warranties and Covenants. All representations and
warranties of Seller and the Companies contained in this Agreement shall be
materially true and correct at and as of the date of this Agreement and at and
as of the Closing Date, as if made thereon, and Seller and the Companies shall
have performed and satisfied all agreements and covenants required hereby to be
performed by them on or prior to the Closing Date.
8.2 Consents. All Consents and waivers necessary to the consummation of
the transactions contemplated hereby shall have been obtained, including without
limitation any notice and approval required pursuant to the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, and any other third party
consents (to the extent not waived).
8.3 No Proceedings or Litigation. No Action by any governmental
authority or other person shall have been instituted or threatened which
questions the validity or legality of the transactions contemplated hereby and
which could reasonably be expected to (a) materially affect the right or ability
of Buyer to own, possess or transfer the Stock after the Closing, or (b)
materially damage Buyer or any Company if the transactions contemplated
hereunder are consummated. There shall not be any statute, rule or regulation
that makes the purchase and sale of the Stock contemplated hereby illegal or
otherwise prohibited.
8.4 Certificates. Seller and the Companies shall furnish Buyer with such
certificates of their duly authorized officers to evidence compliance with the
conditions set forth in Sections 8.1 through 8.3 of this Article VIII as may be
reasonably requested by Buyer.
8.5 Material Adverse Changes. Since the date of this Agreement, there
shall not have been any material adverse change with respect to any Company.
8.6 Exhibits; Books and Records. Seller shall have delivered to Buyer
the Books and Records referenced in Section 3.2(d) and duly executed copies of
Exhibits E and F hereof.
ARTICLE IX
ACTIONS BY BUYER, SELLER AND THE COMPANIES AFTER THE CLOSING
9.1 Books and Records; Tax Matters:
(a) Books and Records. Each party agrees that it will cooperate
with and make available to the other party, during normal business hours, all
Books and Records and other information retained and remaining in existence
after the Closing which are necessary or useful in connection with any tax
inquiry, audit, investigation or dispute, any litigation or investigation or any
other matter requiring such Books and Records and information for any reasonable
business purpose. The party requesting any such Books and Records and
information shall bear all of the out-of-pocket costs and expenses reasonably
incurred in connection with providing such Books and Records and information.
All information received pursuant to this Section 9.1 shall be subject to the
confidentiality provisions of this Agreement.
(b) Cooperation and Records Retention. Buyer, Seller and the
Companies shall (i) each provide the others with such assistance as may
reasonably be requested by any of them in connection with the preparation of any
return, audit, or other examination by any taxing authority or judicial or
administrative proceedings relating to liability for Taxes, (ii) each retain and
provide the others with any records or other information that may be reasonably
requested in connection with such return, audit or examination, proceeding or
determination, and (iii) each provide the others with any final determination of
any such audit or examination, proceeding, or determination that affects any
amount required to be shown on any tax return of the others for any period.
Without limiting the generality of the foregoing, Buyer and Seller shall each
retain, until the applicable statutes of limitations have expired, copies of all
Company tax returns, supporting work schedules, and other records or information
that may be relevant to such returns for all tax periods or portions thereof
ending on or before January 1, 1996 and shall not destroy or otherwise dispose
of any such records without first providing the others with a reasonable
opportunity to review and copy the same.
9.2 Survival of Representations, Etc. All statements contained in any
certificate, document, exhibit or instrument or conveyance delivered by or on
behalf of the parties pursuant to this Agreement or in connection with the
transactions contemplated hereby shall be deemed to be representations and
warranties by the parties hereunder. The representations, warranties, covenants
and agreements (including the indemnity agreement set forth in Section 9.3
hereof) of Buyer and Seller contained herein shall survive the consummation of
the transactions contemplated hereby and the Closing Date for a period of five
years following the Closing Date.
9.3 Indemnification.
(a) Each of Buyer and Seller hereby agree to fully indemnify,
defend and hold harmless the other against and in respect of any and all claims,
demands, losses, costs, expenses, obligations, liabilities, damages, recoveries
and deficiencies, including interest, penalties and reasonable attorneys' fees
and costs of investigation, (as the same are incurred), that such other party
shall incur or suffer, which arise, result from, or relate to any inaccuracy in
or breach of, or failure by the indemnifying party to perform any of its
representations, warranties, covenants or promises in this Agreement. Such a
failure or breach by a Company prior to or as of the Closing shall be deemed to
be a failure or breach of the Seller. The party to be indemnified shall
promptly notify the other party of the existence of any claim, demand or other
matter to which the other party's indemnification obligations would apply, and
shall give it a reasonable opportunity to defend and control the defense of the
same at its own expense and with counsel of its own selection; provided that the
party to be indemnified shall at all times also have the right to participate
fully in the defense at its own expense; and provided further that, if in the
opinion of counsel to the party to be indemnified, there is a reasonable
probability of a conflict of interest between the indemnifying and indemnified
parties in respect of such claim, the indemnifying party shall be responsible
(as the same are incurred) for the reasonable fees and expenses of separate
counsel to the indemnified party. If a party shall, within a reasonable time
after such notice, fail to defend, the party to be indemnified shall have the
right, but not the obligation, to undertake the defense of, and to compromise
or settle (exercising reasonable business judgment), the claim or other matter
on behalf, for the account, and at the expense and risk of the other party. The
indemnifying party shall not settle any matter for which the indemnified party
seeks indemnity hereunder without the consent of the indemnified party unless
such settlement provides for a reasonably satisfactory release of the
indemnified party.
ARTICLE X
SECURITIES LAW
10.1 Acquisition for Investment. Buyer hereby acknowledges that the
shares of Stock to be purchased pursuant to the terms of this Agreement shall be
acquired in good faith for investment for its own account and not with a view to
a distribution or resale of any such Stock.
10.2 Legend. Each certificate representing shares of Stock sold pursuant
to the provisions hereof, if deemed advisable by the Companies, shall bear the
following legends:
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933. THE SECURITEIS MAY NOT BE SOLD OR TRANSFERRED
IN THE ABSENCE OF EXEMPTION THEREFROM UNDER SAID ACT OR THE RULES AND
REGULATIONS PROMULGATED THEREUNDER."
and
"IT IS UNLAWFUL TO CONSUMMATE A SALE OR TRANSFER OF THIS SECURITY,
OR ANY INTEREST THEREIN, OR TO RECEIVE ANY CONSIDERATION THEREFOR, WITHOUT
THE PRIOR WRITTEN CONSENT OF THE COMMISSIONER OF CORPORATIONS OF THE STATE
OF CALIFORNIA, EXCEPT AS PERMITTED IN THE COMMISSIONER'S RULES."
ARTICLE XI
MISCELLANEOUS
11.1 Termination.
(a) Termination. This Agreement may be terminated at any time
prior to the Closing:
(i) By mutual written consent of Buyer and Seller;
(ii) By Buyer or Seller if the Closing shall not have occurred
on or prior to May 31, 1996 or on such other date mutually agreed to in writing
by Buyer and Seller; provided, however, that this provision shall not be
available to Buyer if Seller has the right to terminate this Agreement under
Subsection (iv) of this Section 11.1(a), and this provision shall not be
available to Seller if Buyer has the right o terminate this Agreement under
Subsection (iii) of this Section 11.1(a);
(iii)By Buyer, at its option, if there is a material breach
of any representation or warranty set forth herein or any covenant or agreement
to be complied with or performed by Seller or the Companies pursuant to the
terms of this Agreement or the failure of a condition set forth in Article VIII
to be satisfied (and such condition is not waived in writing by Buyer) on or
prior to the Closing Date, or the occurrence of any event which results or
would result in the failure of a condition set forth in Article VIII to be
satisfied on or prior to the Closing Date; provided that Buyer may not
terminate this Agreement prior to the Closing if Seller has not had an adequate
notice and opportunity to cure such breach or failure; or
(iv) By Seller, at its option, if there is a material breach
of any representation or warranty set forth herein or of any covenant or
agreement to be complied with or performed by Buyer pursuant to the terms of
this Agreement or the failure of a condition set forth in Article VII to be
satisfied (and such condition is not waived in writing by Seller) on or prior to
the Closing Date, or the occurrence of any event which results or would result
in the failure of a condition set forth in Article VII to be satisfied on or
prior to the Closing Date; provided that Seller may not terminate this Agreement
prior to the Closing Date if Buyer has not had an adequate notice and
opportunity to cure such breach or failure.
(b) In the Event of Termination. In the event of termination of
this Agreement as permitted by Subsection (a) of this Section 11.1:
(i) The confidentiality provisions of this Agreement shall
continue in full force and effect; and
(ii) No party hereto shall have any liability or further
obligation to any other party to this Agreement, except as stated in Section 9.3
hereof and Subsections (i), and (ii) of this Section 11.1(b). The foregoing
provisions shall not limit or restrict the availability of specific performance
or other injunctive relief to the extent that specific performance or such other
relief would otherwise be available to a party hereunder.
11.2 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder may be assigned by any party without the prior written
consent of the other parties; provided, however, that Buyer may, at its
election, direct Seller to transfer all or a portion of the Stock to one or more
designees who are affiliates of Buyer rather than to Buyer in connection with
the Closing. Subject to the foregoing, this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns, and no other person shall have any right, benefit or
obligation under this Agreement as a third party beneficiary or otherwise.
11.3 Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be in writing and
shall be deemed to have been duly given when received if personally delivered;
when transmitted if transmitted by facsimile; the day after it is sent, if sent
for next day delivery to a domestic address by a recognized overnight delivery
service (e.g., Federal Express); and upon receipt, if sent by certified or
registered mail, return receipt requested. In each case notice shall be
sent to:
If to Seller, or the Companies prior to the Closing, addressed to:
Edison Mission Energy
00000 Xxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention:General Counsel
Fax No.: 000-000-0000
If to Buyer, or the Companies following the Closing, addressed to:
CalEnergy Imperial Valley Company, Inc.
000 Xxxxx 00xx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
Fax No.: (000) 000-0000
and to such other places and with such other copies as either party may
designate as to itself by written notice to the others.
11.4 Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws of the State of
California, except with respect to matters of law concerning the internal
corporate affairs of any corporate entity which is a party to or the subject of
this Agreement, and as to those matters the law of the jurisdiction under which
the respective entity derives its powers shall govern.
11.5 Amendments and Waivers. This Agreement may not be amended except by
an instrument in writing signed on behalf of each of the parties hereto. No
amendment, supplement, modification or waiver of this Agreement shall be binding
unless executed in writing by the party to be bound thereby. No waiver of any
of the provisions of this Agreement shall be deemed or shall constitute a waiver
of any other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided.
11.6 Multiple Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.7 Expenses. Each of Seller (for itself and the Companies) and Buyer
hereto shall pay their own legal, accounting, out-of-pocket and other expenses
incident to this Agreement and to any action taken by or on behalf of such party
in preparation for carrying this Agreement into effect.
11.8 Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred to herein,
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, then to the maximum extent permitted by law, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement or any other such instrument.
11.9 Captions. The titles, captions or headings of the Articles and
Sections herein are inserted for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of this
Agreement.
11.10Public Statements and Press Releases. The parties hereto covenant
and agree that, if either party plans to issue a press release or other public
announcement disclosing the execution of this agreement ("Initial Release"), it
shall provide a copy of such Initial Release to the other party for review and
comment in advance of issuance. Following such Initial Release, Mission agrees
that any future public announcements by it with respect to the Companies or the
business of the Partnerships shall be consistent with its Initial Release and
CalEnergy agrees that CalEnergy's future public announcements will be consistent
with its obligations as a public company.
11.11Confidential Information. Seller acknowledges that the
Representatives of Seller and the Companies are aware of and the Books and
Records of the Companies contain confidential and proprietary information
regarding the Companies and the business of the Partnerships and accordingly,
Seller agrees that it shall not, on or after the date hereof, directly or
indirectly, make disclosure of such confidential and proprietary information to
any third party (including affiliates of Seller with whom the Partnerships are
involved in litigation) except if compelled to do so by subpoena, court order or
similar binding legal process (issued or initiated by an unaffiliated third
party) in which case Seller agrees to give Buyer adequate notice in order for
Buyer to seek a protective order or similar protection and, in connection
therewith, Seller agrees to reasonably cooperate with Buyer. Seller agrees that,
in the event of a breach or threatened breach of this Section, Buyer shall be
entitled to equitable relief, including injunction and specific performance, in
addition to all other remedies available at law or at equity. For purposes of
this Section, confidential and propriatary information shall not include
information which is or becomes generally available to the public other than
through a breach of this Agreement.
11.12Cumulative Remedies. All rights and remedies of either party hereto
are cumulative of each other and of every other right or remedy such party may
otherwise have at law or in equity, and the exercise of one or more rights or
remedies shall not prejudice or impair the concurrent or subsequent exercise of
other rights or remedies.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed on their respective behalf, by their respective officers
thereunto duly authorized, all as of the day and year first above written.
BUYER:
CALENERGY IMPERIAL VALLEY COMPANY, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. XxXxxxxx
Name: Xxxxxx X. XxXxxxxx
Title: Senior Vice President
SELLER:
EDISON MISSION ENERGY,
a California corporation
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
