EXHIBIT A-6
[CONFIDENTIAL TREATMENT OF BRACKETED MATERIAL REQUESTED PURSUANT TO
RULE 104(B)]
FORM OF PRE-PURCHASE AGREEMENT
(Designated as Exhibit EX-2 for XXXXX purposes)
THIS PRE-PURCHASE AGREEMENT (this "Agreement"), dated as of July
15, 1997, is made by and between NICOR Hub Services, Inc., an
Illinois corporation ("Seller"), and Xxxxx Hub, Inc., a New York
corporation ("LHI" or "Purchaser"). Other capitalized terms used in
this Agreement are defined in Article I.
RECITALS
1. Prior to the date hereof, Seller and Pacific Enerchange,
formed CanDuCo.
2. The Articles of Association provide that shares of the
Company may be transferred with the approval of the directors of the
Company.
3. The Seller wishes to sell to the Purchaser, and the Purchaser
wishes to buy from the Seller, 29.59184% of the issued and
outstanding shares in CanDuCo (the "Acquired Interest") and the
directors of the Company have approved such transfer of the Acquired
Interest.
4. Purchaser and National Fuel Gas Company, a New Jersey
corporation which owns LHI ("NFG"), must obtain Securities and
Exchange Commission approval prior to LHI's purchase of the Acquired
Interest.
In consideration of the mutual covenants, agreements and
warranties herein contained, it is agreed that Purchaser shall
acquire from Seller all of the Acquired Interest upon the terms and
conditions hereinafter set forth and pursuant to a purchase agreement
substantially in the form of the Purchase Agreement attached to this
Agreement as Exhibit A.
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth herein for
the purposes of this Agreement:
"Acquired Interest" is defined in the second recital.
"Act" means the Companies Act (Nova Scotia), R.S.N.S. 1989, c.81,
and all amendments to the Act, as in effect from time to time.
"Affiliate" means, with respect to any Person, another Person that
directly or indirectly through one or more intermediaries controls or
is controlled by or is under common control with such Person.
"Articles of Association" means that certain Articles of
Association of CanDuCo Company dated as of _______, 1997, between
Seller and Pacific Enerchange.
"Closing Date" means the date on which the sale and purchase of
the Acquired Interest occurs.
"CanDuCo" or "Company" means CanDuCo Company, a Nova Scotia,
Canada unlimited liability company.
"Electronic Trading System" means the electronic gas trading and
nominations system that QuickTrade Canada operates in Canada.
"Governmental Authority" means the governments of the United
States or Canada, any state, province or political subdivision
thereof, and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government.
"Indemnified Person" shall mean the Person entitled to, or
claiming a right to, indemnification under Article VIII.
"Indemnifying Person" shall mean the Person claimed by the
Indemnified Person to be obligated to provide indemnification under
Article VIII.
"Losses" is defined in Section 8.2.
"NFG" is defined in the fourth recital.
"Person" means an individual, trust, Governmental Authority,
estate or any incorporated or unincorporated company, corporation,
limited liability company, partnership or other organization.
"Pacific Enerchange" means Pacific Enerchange, a California
corporation.
"Purchaser" is defined in the preamble.
"Purchase Agreement" is defined in the last paragraph of the
Recitals.
"Purchase Price" is defined in Section 2.2.
"QuickTrade Canada" means QuickTrade Canada Limited Partnership,
an Alberta, Canada, limited partnership.
"SEC Approval" means SEC approval of Purchaser's purchase of the
Acquired Interest without any conditions which in the judgment of
either of the parties make it impractical to consummate the
transactions contemplated by this Agreement.
"Seller" is defined in the preamble.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of The Acquired Interest. Subject to the
terms and conditions set forth in this Agreement, within ten business
days following SEC Approval, or such longer period acceptable to the
parties, Seller and Purchaser shall execute and perform the Purchase
Agreement in substantially the form attached hereto as Exhibit A.
2.2 Payment of Purchase Price. In consideration of such sale,
assignment, transfer, conveyance and delivery to Purchaser by Seller
of all of the Acquired Interest, Purchaser shall pay to Seller the
"Purchase Price" of [XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX].
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
3.1 Ownership of Acquired Interest. Seller owns beneficially and
legally all right, title and interest in and to the Acquired
Interest, free and clear of any security interest, lien, adverse
claim or other encumbrance. The Acquired Interest in the aggregate
constitutes 29.59184% of the issued and outstanding shares of
CanDuCo. None of the Acquired Interest is subject to any restriction
on transfer, other than as set forth in the Articles of Association.
3.2 Due Organization. To the best of Seller's knowledge, the
Company is an unlimited liability company duly organized, validly
existing and in good standing under the laws of the province of Nova
Scotia with all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted. To the best of Seller's knowledge, the Company is duly
qualified and in good standing to do business in each jurisdiction
where the failure to be so qualified would, in the aggregate, have a
material adverse effect on the business or operations of the Company.
The Company owns no equity or debt securities of any Person. True,
correct and complete copies of the Company's Memorandum of
Association and all other organizational documents of the Company
have been delivered to Purchaser.
3.3 Due Authorization. Seller has full power and authority to
enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly and validly
executed and delivered by Seller, and constitutes the legal, valid
and binding obligation of Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally,
and by legal and equitable limitations on the availability of
specific remedies.
3.4 No Conflict. The execution, delivery and performance of this
Agreement and all other instruments, agreements, certificates and
documents contemplated hereby by Seller do not: (i) violate any
order, decree or judgment of any Governmental Authority applicable to
Seller, or the Acquired Interest or, to the best of Seller's
knowledge, the Company; (ii) violate any law (or regulation or rule
promulgated under any law); (iii) violate or conflict with, or result
in a breach of, or constitute a default (or an event which, with or
without notice or lapse of time or both, would constitute a default)
under, or permit cancellation of, or result in the creation of any
lien or encumbrance or other contingent liability upon any of the
assets of the Company or the Acquired Interest under, any of the
terms, conditions, or provisions of any contract to which Seller or
the Company is a party, or by which either of them or any of the
assets of the Company or the Acquired Interest is bound; (iv) permit
the acceleration of the maturity of any indebtedness of the Company,
or any indebtedness secured by any of the assets of the Company or
the Acquired Interest; or (v) violate or conflict with any provision
of the charter, by-laws or other organizational documents of Seller
or, to the best of Seller's knowledge, the Company.
3.4 Consents. Prior to execution of this Agreement and prior to
the Closing Date, Seller will have obtained all authorizations,
consents and permits required to permit the consummation of the
transactions contemplated by this Agreement.
3.5 Accuracy of Statements. This Agreement does not contain any
untrue statement of a material fact regarding Seller, the Company,
the assets of the Company or the Acquired Interest.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
4.1 Due Authorization. Purchaser has full power and
authority to enter into this Agreement and to carry out the
transactions contemplated hereby, and this Agreement has been duly
and validly executed and delivered by Purchaser, and constitutes the
legal, valid and binding obligation of Purchaser, enforceable in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, moratorium,
reorganization or similar laws from time to time in effect which
affect creditors' rights generally, and by legal and equitable
limitations on the availability of specific remedies.
4.2 No Conflict. The execution, delivery and performance of this
Agreement does not: (i) violate any decree or judgment of any
Governmental Authority applicable to Purchaser; (ii) violate any law
(or regulation promulgated under any law); (iii) violate or conflict
with, or result in a breach of, or constitute a default (or an event
which, with or without notice or lapse of time or both, would
constitute a default) under, any of the terms, conditions, or
provisions of any contract to which Purchaser is a party, or by which
Purchaser is bound; or (iv) violate or conflict with any provision of
the charter, by-laws or other organizational documents of Purchaser.
4.3 Investment Intent. Purchaser is acquiring the Acquired
Interest for its own account, for investment and not with a view to,
or for sale or other disposition in connection with, any
"distribution" thereof, within the meaning of the Securities Act of
1933, as amended, nor with any present intention of selling or
otherwise disposing of the Acquired Interest.
4.4 Consents. Prior to the execution of this Agreement and prior
to the Closing Date, Purchaser will have obtained all authorizations,
consents and permits of others required to permit the consummation of
the transactions contemplated by this Agreement except, with respect
to XXX Xxxxxxxx, XXX and NFG will file applications for approval as
soon as possible and will use their best efforts to obtain such
approval.
ARTICLE V
PRE-CLOSING OPERATION OF THE COMPANY
5.1 Pre-Closing Company Operations. The parties contemplate that
the Company will conduct operations in accordance with the terms and
conditions of the Articles of Association and/or the Limited Partner
Agreement or a Shareholder Agreement.
5.2 Purchaser's Pre-Closing Participation. Purchaser will be
entitled to participate in the pre-Closing Date business affairs of
the Company in accordance with the following procedures. Seller will
furnish Purchaser with copies of all notices and other material
documents relating to the Company's business. Seller will afford
Purchaser an opportunity to review and comment on all matters
presented to the Company's Executive Committee for approval and
Seller agrees to take Purchaser's comments on all such matters into
account prior to voting on matters in the Executive Committee. In
addition, Seller agrees to use its best efforts to obtain approval
for a representative of Purchaser to attend all meetings of the
Executive Committee as an observer.
5.3 Periodic Reports. Seller shall at a minimum furnish
Purchaser with copies of all reports and other statements that the
Company is required to furnish its Members pursuant to the Company
Agreement.
5.4 Pre-Closing Competition with the Company. During the period
prior to the Closing Date, Purchaser agrees that it shall be subject
to any provisions of the Articles of Association limiting the extent
to which Members and their Affiliates may compete with the business
of the Company.
ARTICLE VI
CONDITIONS PRECEDENT TO EXECUTION OF THE PURCHASE AGREEMENT
6.1 Conditions Precedent to Obligations of the Purchaser. The
obligation of Purchaser to execute and perform the Purchase Agreement
is subject to the satisfaction of the following conditions and such
conditions that may be established in the Purchase Agreement:
6.1.1 Covenants, Representations and Warranties. Seller shall
have performed, in all material respects, all obligations and
agreements and complied with all covenants contained in this
Agreement to be performed and complied with by Seller prior to the
Closing Date. Each of the warranties and representations of Seller
contained in this Agreement shall be accurate in all material
respects, at and as of the date made and also at and as of the
Closing Date with the same force and effect as though made on and as
of the Closing Date, and Seller shall have delivered to Purchaser a
certificate so certifying.
6.1.2 SEC Approval. The SEC Approval shall have been obtained
without any conditions which in the judgment of either party make it
impractical to consummate the transactions contemplated by this
Agreement.
6.2 Conditions Precedent to Obligations of Seller. The
obligation of Seller to execute and perform the Purchase Agreement is
subject to the satisfaction of the following conditions and such
conditions that may be established in the Purchase Agreement:
6.2.1 Covenants, Representations and Warranties. Purchaser shall
have performed, in all material respects, all obligations and
agreements and complied with all covenants contained in this
Agreement to be performed and complied with by Purchaser prior to
the Closing Date. Each of the warranties and representations of
Purchaser contained in this Agreement shall be accurate in all
material respects, at and as of the date made and also at and as of
the Closing Date with the same force and effect as though made on and
as of the Closing Date, and Purchaser shall have delivered to Seller
a certificate so certifying.
ARTICLE VII
COVENANTS
7.1 Implementing This Agreement. From the date hereof to the
Closing Date, each of Purchaser and Seller will take all necessary
action to fulfill its respective obligations under this Agreement and
shall take all commercially reasonable efforts to consummate the
transactions contemplated thereby.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival. The representations and warranties of the parties
hereto contained herein shall survive the Closing. Such
representations and warranties shall be deemed made as of the date of
this Agreement and as of the Closing Date. The representations and
warranties of the parties hereto contained herein shall survive the
Closing.
8.2 Indemnification by Seller. Seller agrees to indemnify
Purchaser against, and agrees to hold Purchaser harmless from, any
and all liabilities, losses, costs, claims, damages (including
without limitation consequential damages), penalties and expenses
(including without limitation reasonable attorneys' fees and expenses
and reasonable costs of investigation) (collectively, "Losses")
incurred or suffered by Purchaser relating to or arising out of or in
connection with any of the following:
(a) any breach of or any inaccuracy in any representation or
warranty made by Seller in this Agreement; or
(b) any breach of or failure by Seller to perform any covenant or
obligation of Seller set out or contemplated in this Agreement.
8.3 Indemnification by Purchaser. Purchaser agrees to indemnify
Seller against, and agrees to hold Seller harmless from, any and all
Losses incurred or suffered by Seller relating to or arising out of
or in connection with any of the following:
(a) any breach of or any inaccuracy in any representation or
warranty made by Purchaser in this Agreement;
(b) any breach of or failure by Purchaser to perform any covenant
or obligation of Purchaser set out or contemplated in this Agreement;
and
(c) notwithstanding any other provision of this Agreement,
Purchaser is not obligated to indemnify, and does not agree to
indemnify, Seller or any other person against any market or
investment risk in connection with Purchaser's acquisition, retention
or disposition of the subject matter of this Agreement.
8.4 Claims. The provisions of this Section shall be subject to
Section 8.5. As soon as is reasonably practicable after becoming
aware of a claim for indemnification under this Agreement the
Indemnified Person shall promptly give notice to the Indemnifying
Person of such claim and the amount the Indemnified Person will be
entitled to receive hereunder from the Indemnifying Person; provided
that the failure of the Indemnified Person to give notice shall not
relieve the Indemnifying Person of its obligations under this Article
VIII except to the extent (if any) that the Indemnifying Person shall
have been prejudiced thereby. If the Indemnifying Person does not
object in writing to such indemnification claim within 30 calendar
days of receiving notice thereof, the Indemnified Person shall be
entitled to recover promptly from the Indemnifying Person the amount
of such claim, and no later objection by the Indemnifying Person
shall be permitted. If the Indemnifying Person agrees that it has an
indemnification obligation but objects on the grounds that it is
obligated to pay only a lesser amount, the Indemnified Person shall
nevertheless be entitled to recover promptly from the Indemnifying
Person the lesser amount, without prejudice to the Indemnified
Person's claim for the difference.
8.5 Notice of Third Party Claims; Assumption of Defense. The
Indemnified Person shall give notice as promptly as is reasonably
practicable to the Indemnifying Person of the assertion of any claim,
or the commencement of any Proceeding, by any Person not a party
hereto in respect of which indemnity may be sought under this
Agreement; provided that the failure of the Indemnified Person to
give notice shall not relieve the Indemnifying Person of its
obligations under this Article VIII except to the extent (if any)
that the Indemnifying Person shall have been prejudiced thereby. The
Indemnifying Person may, at its own expense, (a) participate in the
defense of any claim, suit, action or proceeding and (b) upon notice
to the Indemnified Person and the Indemnifying Person's delivering to
the Indemnified Person a written agreement that the Indemnified
Person is entitled to indemnification for all Losses arising out of
such claim or Proceeding and that the Indemnifying Person shall be
liable for the entire amount of any Loss, at any time during the
course of any such claim or Proceeding, assume the defense thereof;
provided, however, that (i) the Indemnifying Person's counsel is
reasonably satisfactory to the Indemnified Person, and (ii) the
Indemnifying Person shall thereafter consult with the Indemnified
Person upon the Indemnified Person's reasonable request for such
consultation from time to time with respect to such claim or
Proceeding. If the Indemnifying Person assumes such defense, the
Indemnified Person shall have the right (but not the duty) to
participate in the defense thereof. If the Indemnified Person
reasonably determines in its judgment that representation by the
Indemnifying Person's counsel of both the Indemnifying Person and the
Indemnified Person would present such counsel with a conflict of
interest, then such Indemnified Person may employ separate counsel to
represent or defend it in any such claim or Proceeding, and the
Indemnifying Person shall pay the fees and disbursements of such
separate counsel. Whether or not the Indemnifying Person chooses to
defend or prosecute any such claim or Proceeding, all of the parties
hereto shall cooperate in the defense or prosecution thereof.
8.6 Settlement or Compromise. Any settlement or compromise made
or caused to be made by the Indemnified Person or the Indemnifying
Person, as the case may be, of any such claim or Proceeding of the
kind referred to in Section 8.5 shall also be binding upon the
Indemnifying Person or the Indemnified Person, as the case may be, in
the same manner as if a final judgment or decree had been entered by
a court of competent jurisdiction in the amount of such settlement or
compromise; provided, however, that no obligation, restriction or
Loss shall be imposed on the Indemnified Person as a result of such
settlement without its prior written consent.
8.7 Failure of Indemnifying Person to Act. In the event that the
Indemnifying Person does not elect to assume the defense of any claim
or Proceeding, then any failure of the Indemnified Person to defend
or to participate in the defense of any such claim or Proceeding or
to cause the same to be done, shall not relieve the Indemnifying
Person of its obligations hereunder.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. Each party hereto shall bear its own expenses with
respect to this transaction.
9.2 Amendment. This Agreement may be amended, modified or
supplemented, but only in writing signed by each of the parties
hereto.
9.3 Counterparts. This Agreement may be executed simultaneously
in counterparts, each of which shall be deemed to be an original, but
together shall constitute one and the same instrument.
9.4 Headings. Section and Article headings in this Agreement are
for convenience of reference only, and shall not govern the
interpretation of the provisions of this Agreement.
9.5 Severability. Any provisions of this Agreement that are held
to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions of this Agreement
in that jurisdiction or the operation, enforceability, or validity of
such provisions in any other jurisdiction.
9.6 Entire Understanding. This Agreement and the Company
Agreement set forth the entire agreement and understanding of the
parties hereto with respect to the transaction contemplated hereby
and supersede all prior arrangements, agreements and understandings
relating to the subject matter hereof. There have been no
representations or statements, oral or written, that have been relied
on by either party hereto, except those expressly set forth in this
Agreement and the Company Agreement.
9.7 Applicable Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the
State of Delaware, without regard to the conflicts of law principles
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the date first above
written.
NICOR Hub Services, Inc.
By: ______________________
Title:____________________
Printed Name:_____________
XXXXX HUB, INC.
By:_______________________
President
Xxxxxx X. XxXxxxxx
EXHIBIT A
FORM OF PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT (this "Agreement"), dated as of ________,
1997, is made by and between NICOR Hub Services, Inc., an Illinois
corporation ("Seller"), and Xxxxx Hub, Inc., a New York corporation
("LHI" or "Purchaser"). Other capitalized terms used in this
Agreement are defined in Article I.
RECITALS
1. On _________, 1997, Seller and Pacific Enerchange, a
California corporation, formed CanDuCo.
2. The Articles of Association provide that shares of the
Company may be transferred with the approval of the directors of the
Company.
3. Seller wishes to sell to Purchaser, and Purchaser wishes to
buy from Seller 29.59184% of the issued and outstanding shares in
CanDuCo (the "Acquired Interest").
4. The directors of the Company have approved Seller's sale of
the Acquired Interest to Purchaser.
In consideration of the mutual covenants, agreements and
warranties herein contained, the parties desire that Purchaser shall
acquire from Seller all of the Acquired Interest upon the terms and
conditions hereinafter set forth.
ARTICLE I
DEFINITIONS
The following terms shall have the meanings set forth herein for
the purposes of this Agreement:
"Acquired Interest" is defined in the second recital.
"Act" means the Companies Act (Nova Scotia), R.S.N.S. 1989, c.81,
and all amendments to the Act, as in effect from time to time.
"Affiliate" means, with respect to any Person, another Person that
directly or indirectly through one or more intermediaries controls or
is controlled by or is under common control with such Person.
"Articles of Association" means that certain Articles of
Association dated as of _____, 1997 between Seller and Pacific
Enerchange.
"Closing Date" means the date on which the Closing occurs or is to
occur.
"CanDuCo" or "Company" means CanDuCo Company, a Nova Scotia,
Canada unlimited liability company.
"Electronic Trading System" means the electronic gas trading and
nominations system that QuickTrade Canada operates in Canada.
"Governmental Authority" means the government of the United States
or Canada, any state, province, or political subdivision thereof and
any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Indemnified Person" shall mean the Person entitled to, or
claiming a right to, indemnification under Article VIII.
"Indemnifying Person" shall mean the Person claimed by the
Indemnified Person to be obligated to provide indemnification under
Article VIII.
"Losses" is defined in Section 8.2.
"Person" means an individual, trust, Governmental Authority,
estate or any incorporated or unincorporated company, corporation,
limited liability company, partnership or other organization.
"Purchase Price" is defined in Section 2.2.
"Pre-Purchase Agreement" means that certain Pre-Purchase Agreement
dated ______, 1997, executed by Seller and Purchaser.
"Proceedings" is defined in Section 3.17.
"Purchaser" is defined in the preamble. "Seller" is defined in the
preamble.
"QuickTrade Canada" means QuickTrade Canada Limited Partnership,
an Alberta, Canada, limited partnership.
"Taxes" means all taxes, charges, fees, duties, levies or
other assessments, including (without limitation) income, gross
receipts, net proceeds, ad valorem, turnover, real and personal
property (tangible and intangible), sales, use, franchise, excise,
value added, stamp, leasing, lease, user, transfer, fuel, excess
profits, occupational, interest equalization, windfall profits,
severance and employees' income withholding, unemployment and Social
Security taxes, which are imposed by the United States, or any state,
local or foreign government or subdivision or agency thereof, and
such term shall include any interest, penalties or additions to tax
attributable to such Taxes.
ARTICLE II
PURCHASE AND SALE
2.1 Purchase and Sale of The Acquired Interest.
Subject to the terms and conditions set forth in this Agreement, at
the Closing, Seller shall sell, assign, transfer, convey and deliver
to Purchaser, and Purchaser shall accept, acquire and take assignment
and delivery of, all of the Acquired Interest.
2.2 Payment of Purchase Price. In consideration for such
sale, assignment, transfer, conveyance and delivery to Purchaser by
Seller of all of the Acquired Interest, on the Closing Date Purchaser
will pay to Seller the sum of [XXXXXXXXXXXXXXXXXXXXXXXXX], the
"Purchase Price".
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser as follows:
3.1 Ownership of Acquired Interest. Seller owns beneficially and
legally all right, title and interest in and to the Acquired
Interest, free and clear of any security interest, lien, adverse
claim or other encumbrance. The Acquired Interest in the aggregate
constitutes 29.59184% of the issued and outstanding shares in
CanDuCo. None of the Acquired Interest is subject to any restriction
on transfer, other than as set forth in the Articles of Association.
3.2 Due Organization. To the best of Seller's knowledge, the
Company is an unlimited liability company duly organized, validly
existing and in good standing under the laws of the province of Nova
Scotia with all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being
conducted. To the best of Seller's knowledge, the Company is duly
qualified and in good standing to do business in each jurisdiction
where the failure to be so qualified would, in the aggregate, have a
material adverse effect on the business or operations of the Company.
The Company owns no equity or debt securities of any Person. True,
correct and complete copies of the Company's Memorandum of
Association and all other organizational documents of the Company
have been delivered to Purchaser.
3.3 Due Authorization. Seller has full power and authority to
enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly and validly
executed and delivered by Seller, and constitutes the legal, valid
and binding obligation of Seller, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally,
and by legal and equitable limitations on the availability of
specific remedies.
3.4 No conflict. The execution, delivery and performance of this
Agreement and all other instruments, agreements, certificates and
documents contemplated hereby by Seller do not: (i) violate any
order, decree or judgment of any Governmental Authority applicable to
Seller, or the Acquired Interest or, to the best of Seller's
knowledge, the Company; (ii) violate any law (or regulation or rule
promulgated under any law); (iii) violate or conflict with, or result
in a breach of, or constitute a default (or an event which, with or
without notice or lapse of time or both, would constitute a default)
under, or permit cancellation of, or result in the creation of any
lien or encumbrance or other contingent liability upon any of the
assets of the Company or the Acquired Interest under, any of the
terms, conditions, or provisions of any contract to which Seller or
the Company is a party, or by which either of them or any of the
assets of the Company or the Acquired Interest is bound; (iv) permit
the acceleration of the maturity of any indebtedness of the Company,
or any indebtedness secured by any of the assets of the Company or
the Acquired Interest; or (v) violate or conflict with any provision
of the charter, by-laws or other organizational documents of Seller
or, to the best of Seller's knowledge, the Company.
3.5 Ownership of Interests. Prior to giving effect to
Purchaser's acquisition of the Acquired Interest pursuant to this
Agreement, Seller owned 70.40546% of the issued and outstanding
shares in the Company. Neither Seller nor, to the best of Seller's
knowledge, the Company has granted any option, warrant, or similar
right to any Person to purchase or acquire any rights with respect to
any shares, or any other interest whatsoever, in the Company.
3.6 Title to and Condition of Properties and the Company. To the
best of Seller's knowledge the Company has good title to and is the
lawful owner of all of the assets of the Company, free and clear of
all security interests, liens, adverse claims and other encumbrances.
All of the assets of the Company are listed on Schedule 3.6(a). All
of the liabilities of the Company are listed on Schedule 3.6(b). The
Company has no liabilities, debts, claims or obligations, whether
accrued, absolute, contingent or otherwise, whether due or to become
due, except as set forth on Schedule 3.6(b).
3.7 No Defaults or Violations. To the best of Seller's
knowledge, except as set forth on Schedule 3.7, (a) the Company has
not materially breached any provision of, nor is it in material
default under the terms of, any contract to which it is a party or
under which it has any rights or by which it is bound, and to
Seller's knowledge no other party to any such contract is in default
thereunder in any material respect, and (b) the Company is not in
material violation of or default under or with respect to any law,
governmental regulation or rule or order of any Governmental
Authority that is applicable in any way to the business or operation
of the Company, provided that, to the extent such representations and
warranties in clauses (a) and (b) above are made with respect to any
breach, default or violation by the Company that may have arisen from
and after the Company's formation, such representations and
warranties are made to the best of Seller's knowledge. Except as set
forth in Schedule 3.7, none of the assets of the Company is in
material violation of any law, building, zoning or other ordinance,
code or regulation applicable to it.
3.8 Taxes. To the best of Seller's knowledge, having been formed
shortly before the Closing Date, the Company has not previously filed
any Federal, state and other tax returns and reports as of the
Closing Date; the Company has not been required to file any such
returns; and the Company has not been required to pay any Taxes on or
prior to the Closing Date.
3.9 Condition of Assets. To the best of Seller's knowledge,
except as disclosed on Schedule 3.9, all of the assets of the
Company, whether real or personal, owned or leased, are in reasonably
good operating condition (with the exception of normal wear and tear).
3.10 Contracts. To the best of Seller's knowledge, Schedule 3.10
includes all the contracts and arrangements (including, without
limitation, any employment contracts) to which the Company is a party
or by which it is bound or to which any of the assets of the Company
is subject. Seller has delivered to Purchaser true, correct and
complete copies of each document listed on Schedule 3.10, and a
written description of each oral arrangement so listed.
3.11 Permits, etc. To the best of Seller's knowledge, the Company
holds all of the licenses, certificates, permits, franchises and
rights listed on Schedule 3.11, and, to the best of Seller's
knowledge, does not require any other licenses, certificates,
permits, franchises and rights to conduct the Business and its other
affairs.
3.12 Insurance Policies. To the best of Seller's knowledge,
Schedule 3.12 contains a list of each insurance policy currently
providing coverage for the assets or business of the Company and a
copy of each such policy has been delivered to Purchaser.
3.13 Employee Benefit Plans. To the best of Seller's knowledge,
each "employee pension benefit plan," as such term is defined in
Section 3(2) of ERISA, and each "employee welfare benefit plan," as
defined in Section 3(1) of ERISA, that is maintained by the Company
to provide benefits for its employees is described on Schedule 3.13.
3.14 No Other Agreement. To the best of Seller's knowledge,
other than the Sale Agreements, neither Seller nor any its Affiliates
has any contract, agreement, arrangement or understanding with
respect to the sale or other disposition of the assets of the Company
or any interests in the Company.
3.15 Consents. Except as set forth on Schedule 3.15, no notice to,
filing with, authorization of, exemption by, or consent of any Person
is required in order for Seller to consummate the transactions
contemplated hereby.
3.16 Litigation.
(a) To the best of Seller's knowledge, except as disclosed in
Schedule 3.16, there are no claims, actions, suits, arbitrations,
regulatory proceedings or other litigation, proceedings or
governmental investigations (collectively, "Proceedings") pending, or
to the best of Seller's knowledge, threatened against or affecting
the Company, Seller or any of its respective officers, directors,
employees, agents or stockholders thereof in their capacity as such,
or any of their respective properties or businesses relating to such
Persons in such capacities, and Seller is not aware of any facts or
circumstances which may give rise to any of the foregoing; provided
that to the extent such representations and warranties in this clause
are made with respect to any Proceedings that may have arisen against
the Company from and after the Company's formation, such
representations and warranties are made to the best of Seller's
knowledge.
(b) To the best of Seller's knowledge, there are no Proceedings
pending or, to the best of Seller's knowledge, threatened by or
against the Company or Seller with respect to this Agreement, or in
connection with the transactions contemplated hereby or thereby, and
Seller has no reason to believe there is a valid basis for any such
Proceeding; provided that to the extent such representations and
warranties in this clause are made with respect to any Proceedings
that may have arisen against the Company from and after the Company's
formation, such representations and warranties are made to the best
of Seller's knowledge.
3.17 No Conflict of Interest. Neither Seller nor any of its
Affiliates has or claims to have any direct or indirect interest in
any tangible or intangible property used in the Business, except
Seller's interest as an owner of its shares in the Company.
3.18 Bank Accounts. Schedule 3.18 sets forth the names and
locations of each bank or other financial institution at which the
Company has an account (giving the account numbers) or safe deposit
box and the names of all Persons authorized to draw thereon or have
access thereto, and the names of all Persons, if any, now holding
powers of attorney or comparable delegation of authority from the
Company and a summary statement thereof.
3.20 Accuracy of Statements. This Agreement does not contain any
untrue statement of a material fact regarding Seller, the Company,
the assets of the Company or the Acquired Interest.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
4.1 Due Authorization. Purchaser has full power and authority to
enter into this Agreement and to carry out the transactions
contemplated hereby, and this Agreement has been duly and validly
executed and delivered by Purchaser, and constitutes the legal, valid
and binding obligation of Purchaser, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, moratorium, reorganization or similar laws
from time to time in effect which affect creditors' rights generally,
and by legal and equitable limitations on the availability of
specific remedies.
4.2 No Conflict. The execution, delivery and performance of this
Agreement and all other instruments, agreements, certificates and
documents contemplated hereby by Purchaser do not: (i) violate any
decree or judgment of any Governmental Authority applicable to
Purchaser; (ii) violate any law (or existing regulation promulgated
under any law); (iii) violate or conflict with, or result in a breach
of, or constitute a default (or an event which, with or without
notice or lapse of time or both, would constitute a default) under,
any of the terms, conditions, or provisions of any contract to which
Purchaser is a party, or by which Purchaser is bound; or (iv) violate
or conflict with any provision of the charter, by-laws or other
organizational documents of Purchaser.
4.3 Investment Intent. Purchaser is acquiring the Acquired
Interest for its own account, for investment and not with a view to,
or for sale or other disposition in connection with, any
"distribution" thereof, within the meaning of the Securities Act of
1933, as amended, nor with any present intention of selling or
otherwise disposing of the Acquired Interest.
4.4 Consents. Except as set forth on Schedule 4.3, no notice to,
filing with, authorization of, exemption by, or consent of any Person
is required in order for Purchaser to consummate the transactions
contemplated hereby.
ARTICLE V
CONDITIONS PRECEDENT TO CLOSING
5.1 Conditions Precedent to Obligations of the Purchaser. The
obligation of Purchaser to purchase the Acquired Interest at Closing
is subject to the satisfaction of the following conditions:
5.1.1 Representations and Warranties. The representations and
warranties set forth in this Agreement made by Seller shall be
accurate as of the Closing Date as if made on the Closing Date, and
Seller shall have delivered to Purchaser a certificate so certifying.
5.1.2 Compliance with Agreements and Covenants. Seller
shall have performed and complied with all of its covenants,
obligations and agreements contained in this Agreement to be
performed and complied with by Seller on or prior to the Closing Date.
5.2 Conditions Precedent to Obligations of Seller. The
obligation of Seller to sell the Acquired Interest at Closing is
subject to the satisfaction of the following conditions:
5.2.1 Representations and Warranties. The representations and
warranties set forth in this Agreement made by Purchaser shall be
accurate as of the Closing Date as if made on the Closing Date, and
Purchaser shall have delivered to Seller a certificate so certifying.
5.2.2 Compliance with Agreements and Covenants. Purchaser shall
have performed and complied with all of its covenants, obligations
and agreements contained in this Agreement to be performed and
complied with by Purchaser on or prior to the Closing Date.
5.2.3 Company Approval. Seller shall have obtained the approval
of the directors of the Company to sell the Acquired Interest to
Purchaser in form and substance satisfactory to Seller in its sole
discretion.
ARTICLE VI
COVENANTS
6.1 Implementing This Agreement. From the date hereof to
the Closing Date, each of Purchaser and Seller will take all
necessary action to fulfill its respective obligations under this
Agreement and shall take all commercially reasonable efforts to
consummate the transactions contemplated thereby.
ARTICLE VII
CLOSING
7.1 Closing. The Closing shall take place on or before the tenth
business day following the day on which Purchaser's acquisition of
the Acquired Interest is approved by the SEC, or on such later date
to which the parties hereto shall agree.
ARTICLE VIII
INDEMNIFICATION
8.1 Survival. The representations and warranties of the
parties hereto contained herein and in this Article VIII shall
survive the Closing. Such representations and warranties shall be
deemed made as of the date of this Agreement and as of the Closing
Date.
8.2 Indemnification by Seller. Seller agrees to indemnify
Purchaser against, and agrees to hold Purchaser harmless from, any
and all liabilities, losses, costs, claims, damages (including
without limitation consequential damages), penalties and expenses
(including without limitation reasonable attorneys' fees and expenses
and reasonable costs of investigation) (collectively, "Losses")
incurred or suffered by Purchaser relating to or arising out of or in
connection with any of the following:
(a) any breach of or any inaccuracy in any representation or
warranty made by Seller in this Agreement;
(b) any breach of or failure by Seller to perform any covenant or
obligation of Seller set out or contemplated in this Agreement; or
(c) any actual and/or contingent liabilities arising from, or in
connection with, or as a result of Seller's performance, act or
omission prior to the Closing Date.
8.3 Indemnification by Purchaser. Purchaser agrees to indemnify
Seller against, and agrees to hold Seller harmless from, any and all
Losses incurred or suffered by Seller relating to or arising out of
or in connection with any of the following:
(a) any breach of or any inaccuracy in any representation or
warranty made by Purchaser in this Agreement ; or
(b) any breach of or failure by Purchaser to perform any
covenant or obligation of Purchaser set out or contemplated in this
Agreement.
8.4 Claims. The provisions of this Section shall be subject to
Section 8.5. As soon as is reasonably practicable after becoming
aware of a claim for indemnification under this Agreement the
Indemnified Person shall promptly give notice to the Indemnifying
Person of such claim and the amount the Indemnified Person will be
entitled to receive hereunder from the Indemnifying Person; provided
that the failure of the Indemnified Person to give notice shall not
relieve the Indemnifying Person of its obligations under this Article
VIII except to the extent (if any) that the Indemnifying Person shall
have been prejudiced thereby. If the Indemnifying Person does not
object in writing to such indemnification claim within 30 calendar
days of receiving notice thereof, the Indemnified Person shall be
entitled to recover promptly from the Indemnifying Person the amount
of such claim, and no later objection by the Indemnifying Person
shall be permitted. If the Indemnifying Person agrees that it has an
indemnification obligation but objects on the grounds that it is
obligated to pay only a lesser amount, the Indemnified Person shall
nevertheless be entitled to recover promptly from the Indemnifying
Person the lesser amount, without prejudice to the Indemnified
Person's claim for the difference.
8.5 Notice of Third Party Claims; Assumption of Defense.
The Indemnified Person shall give notice as promptly as is reasonably
practicable to the Indemnifying Person of the assertion of any claim,
or the commencement of any Proceeding, by any Person not a party
hereto in respect of which indemnity may be sought under this
Agreement; provided that the failure of the Indemnified Person to
give notice shall not relieve the Indemnifying Person of its
obligations under this Article VIII except to the extent (if any)
that the Indemnifying Person shall have been prejudiced thereby. The
Indemnifying Person may, at its own expense, (a) participate in the
defense of any claim, suit, action or proceeding and (b) upon notice
to the Indemnified Person and the Indemnifying Person's delivering to
the Indemnified Person a written agreement that the Indemnified
Person is entitled to indemnification for all Losses arising out of
such claim or Proceeding and that the Indemnifying Person shall be
liable for the entire amount of any Loss, at any time during the
course of any such claim or Proceeding, assume the defense thereof;
provided, however, that (i) the Indemnifying Person's counsel is
reasonably satisfactory to the Indemnified Person, and (ii) the
Indemnifying Person shall thereafter consult with the Indemnified
Person upon the Indemnified Person's reasonable request for such
consultation from time to time with respect to such claim or
Proceeding. If the Indemnifying Person assumes such defense, the
Indemnified Person shall have the right (but not the duty) to
participate in the defense thereof. If the Indemnified Person
reasonably determines in its judgment that representation by the
Indemnifying Person's counsel of both the Indemnifying Person and the
Indemnified Person would present such counsel with a conflict of
interest, then such Indemnified Person may employ separate counsel to
represent or defend it in any such claim or Proceeding, and the
Indemnifying Person shall pay the fees and disbursements of such
separate counsel. Whether or not the Indemnifying Person chooses to
defend or prosecute any such claim or Proceeding, all of the parties
hereto shall cooperate in the defense or prosecution thereof.
8.6 Settlement or Compromise. Any settlement or compromise made
or caused to be made by the Indemnified Person or the Indemnifying
Person, as the case may be, of any such claim or Proceeding of the
kind referred to in Section 8.5 shall also be binding upon the
Indemnifying Person or the Indemnified Person, as the case may be, in
the same manner as if a final judgment or decree had been entered by
a court of competent jurisdiction in the amount of such settlement or
compromise; provided, however, that no obligation, restriction or
Loss shall be imposed on the Indemnified Person as a result of such
settlement without its prior written consent.
8.7 Failure of Indemnifying Person to Act. In the event that the
Indemnifying Person does not elect to assume the defense of any claim
or Proceeding, then any failure of the Indemnified Person to defend
or to participate in the defense of any such claim or Proceeding or
to cause the same to be done, shall not relieve the Indemnifying
Person of its obligations hereunder.
ARTICLE IX
MISCELLANEOUS
9.1 Expenses. Each party hereto shall bear its own expenses with
respect to this transaction.
9.2 Amendment. This Agreement may be amended, modified or
supplemented, but only in writing signed by each of the parties
hereto.
9.3 Counterparts. This Agreement may be executed simultaneously
in counterparts, each of which shall be deemed to be an original, but
together shall constitute one and the same instrument.
9.4 Headings. Section and Article headings in this Agreement are
for convenience of reference only, and shall not govern the
interpretation of the provisions of this Agreement.
9.5 Severability. Any provisions of this Agreement that are held
to be inoperative, unenforceable or invalid in any jurisdiction
shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions of this Agreement
in that jurisdiction or the operation, enforceability, or validity of
such provisions in any other jurisdiction.
9.6 Entire Understanding. This Agreement, the Pre-Purchase
Agreement and the Company Agreement set forth the entire agreement
and understanding of the parties hereto with respect to the
transaction contemplated hereby and supersede all prior arrangements,
agreements and understandings relating to the subject matter hereof.
There have been no representations or statements, oral or written,
that have been relied on by either party hereto, except those
expressly set forth in this Agreement, the Pre-Purchase Agreement and
the Company Agreement.
9.7 Applicable Law. This Agreement shall be governed by,
and construed and enforced in accordance with, the internal laws of
the State of Delaware, without regard to the conflicts of law
principles thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered on the date first above
written.
NICOR Hub Services, Inc.
By:___________________________
Title:___________________________
Printed Name:_______________________
XXXXX HUB, INC.
By:____________________________
President
Xxxxxx X. XxXxxxxx
SCHEDULE 3.2
JURISDICTIONS OF QUALIFICATION
1. Nova Scotia
SCHEDULE 3.6(a)
ASSETS
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.6(b)
LIABILITIES
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.7
DEFAULTS AND VIOLATIONS
1. None
SCHEDULE 3.9
CONDITION OF ASSETS
1. No disclosure is made pursuant to Section 3.9.
SCHEDULE 3.10
CONTRACTS
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.11
LICENSES, PERMITS, FRANCHISES AND RIGHTS
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.12
INSURANCE
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.13
EMPLOYEE BENEFIT PLANS
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.15
CONSENTS
1. In accordance with Section _____ of the Articles of Association,
Seller is obligated to obtain the consent of Pacific Enerchange to
the disposition of the Acquired Interest.
SCHEDULE 3.16
LITIGATION
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
SCHEDULE 3.18
BANK ACCOUNTS
[XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX]
