Exhibit 10.25.5
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is signed on the
6th day of February 1997, to be effective as of January 1, 1997, by and
between NRG Energy, Inc., a Delaware corporation ("Buyer"), and NRG
Generating (U.S.) Inc., a Delaware corporation ("Shareholder").
RECITALS
WHEREAS, Buyer beneficially owns approximately 41.86% of
Shareholder;
WHEREAS, Shareholder owns beneficially and of record all of the
issued and outstanding shares (the "Shares") of Power Operations Inc.,
a Delaware corporation (the "Company");
WHEREAS, on October 28, 1996, NRGG Generating (Newark)
Cogeneration Inc., a Delaware corporation ("NRGG Newark"), terminated
that certain Operating and Maintenance Agreement (the "SSOI Newark
Agreement") dated May 1, 1996, between NRGG Newark and Xxxxxxx &
Xxxxxxxxx Operations, Inc. ("SSOI"), pursuant to and in accordance with
Section XII(1)(e) of the SSOI Newark Agreement;
WHEREAS, on December 20, 1996, NRGG Generating (Xxxxxx)
Cogeneration Inc., a Delaware corporation ("NRGG Xxxxxx"), terminated
that certain Operating and Maintenance Agreement (the "SSOI Xxxxxx
Agreement") dated May 1, 1996, between NRGG Xxxxxx and SSOI, pursuant
to and in accordance with Section XII(1)(e) of the SSOI Xxxxxx
Agreement;
WHEREAS, NRGG Newark has entered into that certain Operating and
Maintenance Agreement dated November 8, 1996 between NRGG Newark and
the Company (the "POI Newark Agreement") pursuant to which the Company
agreed to operate and maintain NRGG Newark's electric generation
facility;
WHEREAS, NRGG Xxxxxx has entered into that certain Operating and
Maintenance Agreement dated December 31, 1996 between NRGG Xxxxxx and
the Company (the "POI Xxxxxx Agreement") pursuant to which the Company
agreed to operate and maintain NRGG Xxxxxx'x electric generation
facility;
WHEREAS, Shareholder desires to sell the Shares and Buyer desires
to purchase the Shares on the terms and conditions hereinafter set
forth;
NOW THEREFORE, in reliance on the representations, warranties and
agreements and subject to the terms and conditions hereinafter set
forth, the parties hereby agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and conditions
contained in this Agreement, at the Closing (as herein defined),
Shareholder shall sell, assign, transfer, and deliver to Buyer, and
Buyer shall purchase from Shareholder, the Shares. In consideration
for the Shares, Buyer shall (i) pay to Seller $10.00 cash,
(ii) indemnify, defend and hold harmless
Shareholder, its officers, directors, agents and employees (each of
which is herein referred to as a "Shareholder Indemnified Person") as
provided in Sections 5, 7 and 8 of this Agreement (the "Purchase
Price"), and (iii) pay to Seller such amount as is necessary to clear
the Company's books as of the close of business on December 31, 1996,
as contemplated in Section 2 hereof.
The closing of the transactions contemplated by this
Agreement (the "Closing"), shall be held simultaneous with the
execution of this Agreement (the "Closing Date").
2. Clearing of Accounts. Shareholder and Buyer agree that Buyer
will pay to Shareholder within thirty (30) days after the Closing such
amount of funds as is equal to the positive balance of the accounts
receivable on the balance sheet of the Company as of the close of
business on December 31, 1996. The balance of the accounts receivable
on the balance sheet of the Company as of the close of business on
December 31, 1996 shall be adjusted after this payment, if and as
mutually agreed between the parties, to correct errors existing in the
balance as of the time such payment is made, if any.
Within thirty (30) days of the date of this Agreement,
Shareholder shall submit to Buyer an invoice for any and all expenses
of the Company that were funded by Shareholder prior to the date of
this Agreement and not reimbursed to Shareholder prior to the date of
this Agreement. Buyer shall pay the amount of such invoice to
Shareholder within thirty (30) days after Buyer's receipt thereof.
If and to the extent that the Company earns a bonus under the
POI Newark Agreement for any period of time that includes the period
between November 8, 1996 and December 31, 1996, Buyer shall within
thirty (30) days after Buyer's receipt of such bonus pay to Shareholder
that portion of the bonus as is attributable to the activity of the
Company during the referenced period of time.
3. Representations and Warranties of Shareholder. Shareholder
represents and warrants to Buyer that:
(a) Shareholder has all requisite power and authority to
execute and deliver this Agreement.
(b) Shareholder has good and marketable title to the shares
and owns the shares beneficially and of record, free and
clear of any security interests, claims, conditions,
liens, pledges, options, encumbrances, charges,
agreements, voting trusts, proxies or other arrangements
or restrictions whatsoever.
(c) Following the Closing, Buyer will own all of the shares
free and clear of any liens charges, claims,
restrictions (other than those resulting from action of
Buyer and other than with respect to applicable federal
and state securities laws), preemptive rights or other
encumbrances.
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(d) No consent, approval, authorization or signature of any
other party is necessary to transfer ownership
(beneficial and of record) of the Shares to Buyer.
(e) This Agreement has been duly authorized by Shareholder
and constitutes the legal, valid and binding obligation
of Shareholder enforceable against it in accordance with
its terms, except to the extent limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditor's
rights or by general equitable principles.
(f) There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of
Shareholder.
(g) Shareholder is not prohibited by any order, writ,
injunction or decree of any body of competent
jurisdiction from consummating the transactions
contemplated by this Agreement, and no such action or
proceeding is pending against Shareholder which
questions the validity of this Agreement, any of the
transactions contemplated hereby or any action which has
been taken by any of the parties in connection herewith
or in connection with any of the transactions
contemplated hereby.
(h) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the
state of Delaware, has full corporate power to carry on
its business as it is now and has since its
incorporation been conducted, and is entitled to own,
lease or operate the properties and assets it now owns,
leases or operates.
(i) The Company is authorized to issue 1000 shares of common
stock, $.01 par value ("Common Stock"), 100 shares of
Common Stock are issued and outstanding, all of which
are owned, of record and beneficially, by Shareholder.
All of the shares have been duly authorized and are
validly issued, fully paid and nonassessable. There are
not, and on the Closing Date there will not be,
outstanding (i) any options, warrants or other rights to
purchase from the Company any capital stock of the
Company, (ii) any securities convertible into or
exchangeable for shares of such stock or (iii) any
commitments of any kind for the issuance of additional
shares of capital stock or options, warrants or other
securities of the Company.
(j) Neither the execution and delivery of this Agreement, nor the
consummation of the transactions contemplated hereby, nor the
fulfillment of the terms hereof, will (a) violate or result in a
breach of, any of the terms and provisions of, or constitute
a default under, or conflict with (i) any agreement, contract,
commitment, permit, indenture or other instrument to which the
Company is a party or by which the Company or
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its assets, are bound, or give rise to any right of
termination, cancellation or acceleration under any such
agreement, contract, commitment, permit, indenture or
other instrument by any party thereto, (ii) the Articles
of Certificate of Incorporation or Bylaws of the
Company, or (iii) any law, statute or regulation, or any
judgment, decree, order or award of any court,
governmental body or arbitrator applicable to the
Company; or (b) result in the creation or imposition of
any lien, charge, pledge, security interest or
encumbrance of any kind on any asset of the Company.
(k) The Company does not have any liabilities or obligations
of any nature or kind whatsoever, whether known or
unknown, liquidated or unliquidated, absolute, accrued,
contingent or otherwise, and whether due or to because
due (including, without limitation, any liability for
taxes and interest, penalties and other charges payable
with respect to any such liability or obligation) and
there is no existing condition, situation or set of
circumstances which could be expected to result in such
liabilities other than (i) liabilities related to or
connected with the SSOI Losses (as such term is defined
in Section 5 hereof) (ii) liabilities specifically
reflected or reserved against and provided for in the
Company's most recent balance sheet (the "Balance
Sheet"), and (iii) liabilities incurred in the ordinary
course of business consistent with past practice since
the date of the Balance Sheet, which individually or in
the aggregate are not material to the Company.
4. Representations and Warranties of Buyer. Buyer hereby
represents and warrants to Shareholder that:
(a) Buyer is duly organized and existing under the laws of
the State of Delaware.
(b) This Agreement has been duly and validly authorized by
Buyer and constitutes the valid and binding obligation
of Buyer enforceable against Buyer in accordance with
its terms, except to the extent limited by bankruptcy,
insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditor's
rights or by general equitable principles.
(c) No consent, approval, authorization or signature of any
other party is necessary to transfer ownership
(beneficial and of record) of the Shares to Buyer.
(d) There are no claims for brokerage commissions, finders'
fees or similar compensation in connection with the
transactions contemplated by this Agreement based on any
arrangement or agreement made by or on behalf of Buyer.
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(e) Buyer is not prohibited by any order, writ, injunction
or decree of any body of competent jurisdiction from
consummating the transactions contemplated by this
Agreement, and no such action or proceeding is pending
against Buyer which questions the validity of this
Agreement, any of the transactions contemplated hereby
or any action which has been taken by any of the parties
in connection herewith or in connection with any of the
transactions contemplated hereby.
(f) Neither the execution and delivery of this Agreement,
nor the consummation of the transactions contemplated
hereby, nor the fulfillment of the terms hereof, will
(a) violate or result in a breach of, any of the terms
and provisions of, or constitute a default under, or
conflict with (i) any agreement, contract, commitment,
permit, indenture or other instrument to which the Buyer
is a party or by which the Buyer or its assets, are
bound, or give rise to any right of termination,
cancellation or acceleration under any such agreement,
contract, commitment, permit, indenture or other
instrument by any party thereto, (ii) the Articles of
Certificate of Incorporation or Bylaws of the Buyer, or
(iii) any law, statute or regulation, or any judgment,
decree, order or award of any court, governmental body
or arbitrator applicable to the Buyer; or (b) result in
the creation or imposition of any lien, charge, pledge,
security interest or encumbrance of any kind on any
asset of the Buyer.
(g) Buyer is acquiring the Shares for its own account for
investment purposes only and not with a view to, or for
resale in connection with, any distribution of such
securities within the meaning of the Minnesota Statutes,
as amended, or the Securities Act of 1933, as amended,
and that Buyer does not presently intend to resell,
assign, or otherwise dispose of all or any part of the
securities to be acquired hereunder. Buyer further
acknowledges that any certificates representing the
Shares subscribed for hereunder will contain a legend
indicating that said shares are issued in reliance on
the exemption provided by Section 80A.15 of the
Minnesota Statutes (1996), as amended, and prohibiting
further transfer, sale or conveyance of such securities
until such securities may, in the opinion of counsel to
the issuer, be so transferred, sold or conveyed without
a violation of any state or federal securities law.
5. Indemnification for SSOI Losses.
Shareholder and Buyer agree that they shall allocate
responsibility for any and all losses, liabilities, claims, demands,
assessments, actions, suits, proceedings, damages, costs and expenses
(other than Shareholder's or Buyer's internal costs and/or expenses),
including without limitation, reasonable attorneys' fees and
disbursements (including costs, expenses and legal fees incurred by the
other party, or such party's officers, directors, agents and employees
(each of which is herein referred to as an "Indemnified Person")
incident to the foregoing or to enforcing said rights of defense and
indemnity), arising out of or in connection with Shareholder's
termination of (i) the SSOI Newark Agreement (the "SSOI Newark Losses")
and (ii) the SSOI
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Xxxxxx Agreement (the "SSOI Xxxxxx Losses"; with SSOI Newark Losses and
SSOI Xxxxxx Losses, being collectively referred to as the "SSOI
Losses"), as follows: (1) Shareholder shall cause either itself, NRGG
Newark or NRGG Xxxxxx to pay the first $200,000 of SSOI Losses; and (2)
Buyer shall pay all SSOI Losses in excess of $200,000. Shareholder and
Buyer agree to reimburse each other as required to achieve the above
result, provided that Buyer, its officers, directors, agents and
employees (each of which is herein referred to as a "Buyer Indemnified
Person") shall not be entitled to receive an amount of indemnity
pursuant to this Section 5 for the amount of any SSOI Losses as and to
the extent such amount, when added to all amounts previously paid or
reimbursed to a Buyer Indemnified Person pursuant to this Section 5
would exceed $200,000.
Each party shall indemnify, defend and hold harmless the
other party's Indemnified Persons promptly upon demand at any time and
from time to time, against any and all SSOI Losses as provided in this
Section 5.
If any action, suit or proceeding shall be commenced against
or any claim, demand or assessment be asserted against an Indemnified
Person in respect of which an Indemnified Person proposes to demand
defense and indemnification pursuant to this Section 5, and the total
amount sought in all such actions, suits, proceedings, claims, demands
and assessments is $200,000 or less, then Shareholder shall be notified
to that affect with reasonable promptness and shall have the right, but
not the obligation, to assume the entire control of the defense,
compromise or settlement thereof, including, at Shareholder's expense,
employment of counsel satisfactory to the Indemnified Person and in
connection therewith, the Indemnified Person shall cooperate fully to
make available to Shareholder all pertinent information under its
control.
If any action, suit or proceeding shall be commenced against
or any claim, demand or assessment be asserted against an Indemnified
Person in respect of which an Indemnified Person proposes to demand
defense and indemnification pursuant to this Section 5, the control of
which action, suit, proceeding, claim, demand, or assessment is not
assigned pursuant to the immediately preceding paragraph, Buyer shall
be notified to that affect with reasonable promptness and shall have
the right, but not the obligation, to assume the entire control of the
defense, compromise or settlement thereof, including, at Buyer's
expense, employment of counsel satisfactory to the Indemnified Person
and in connection therewith, the Indemnified Person shall cooperate
fully to make available to Buyer all pertinent information under its
control.
6. Indemnification of Buyer for Losses other than SSOI Losses.
Shareholder shall indemnify, defend and hold harmless Buyer Indemnified
Persons promptly upon demand at any time and from time to time, against
any and all losses, liabilities, claims, demands, assessments, actions,
suits, proceedings, damages and expenses, including without limitation,
reasonable attorneys' fees and disbursements (including costs, expenses
and legal fees incurred by an Indemnified Person incident to the
foregoing or to enforcing said rights of defense and indemnity)
(individually a "Loss" and collectively "Losses"), other than SSOI
losses, arising out of or in connection with any of the following:
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(a) Any misrepresentation or breach of any warranty made by
Shareholder in this Agreement; or
(b) Any breach or non-fulfillment of any covenant or agreement
made by Shareholder in this Agreement.
If any action, suit or proceeding shall be commenced against
or any claim, demand or assessment be asserted against a Buyer
Indemnified Person in respect of which a Buyer Indemnified Person
proposes to demand defense and indemnification, Shareholder shall be
notified to that effect with reasonable promptness and shall have the
right, but not the obligation, to assume the entire control of the
defense, compromise or settlement thereof, including, at Shareholder's
expense, employment of counsel satisfactory to the Buyer Indemnified
Person and in connection therewith, the Buyer Indemnified Person shall
cooperate fully to make available to Shareholder all pertinent
information under its control.
7. Indemnification of Shareholder for Losses other than SSOI
Losses. Buyer shall indemnify, defend and hold harmless Shareholder,
its officers, directors, agents and employees (each of which is herein
referred to as a "Shareholder Indemnified Person") promptly upon demand
at any time and from time to time, against any and all losses,
liabilities, claims, demands, assessments, actions, suits, proceedings,
damages and expenses, including without limitation, reasonable
attorneys' fees and disbursements (including costs, expenses and legal
fees incurred by an Indemnified Person incident to the foregoing or to
enforcing said rights of defense and indemnity) (individually a "Loss"
and collectively "Losses"), other than SSOI losses, arising out of or
in connection with any of the following:
(a) Any misrepresentation or breach of any warranty made by Buyer
in this Agreement; or
(b) Any breach or non-fulfillment of any covenant or agreement
made by Buyer in this Agreement.
If any action, suit or proceeding shall be commenced against
or any claim, demand or assessment be asserted against a Shareholder
Indemnified Person in respect of which a Shareholder Indemnified Person
proposes to demand defense and indemnification, Buyer shall be notified
to that effect with reasonable promptness and shall have the right, but
not the obligation, to assume the entire control of the defense,
compromise or settlement thereof, including, at Buyer's expense,
employment of counsel satisfactory to the Shareholder Indemnified
Person and in connection therewith, the Shareholder Indemnified Person
shall cooperate fully to make available to Buyer all pertinent
information under its control.
8. Conflicts. Notwithstanding Sections 5, 6, and 7 hereof,
Shareholder and Buyer agree that, if an Indemnified Person perceives
that there is a potential conflict of interest, between the respective
interests or legal positions of the Indemnified Person and the person
from whom the Indemnified Person has a right under one of such Sections
5, 6 or 7 to claim indemnity (the "Indemnifying Party"), regarding any
action, suit, proceeding, claim, demand or assessment described in
Sections 5, 6, or 7 hereof, then the Indemnifying Party shall have no
right to assume or retain the control of the defense, compromise or
settlement thereof. In such event, upon the
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written request of the Indemnified Person, the Indemnifying Party
shall, at the Indemnifying Party's expense, employ separate counsel
chosen by the Indemnified Person to represent the Indemnified Person,
and the Indemnifying Party shall turn over to such counsel full control
of the Indemnified Person's defense. Notwithstanding the previous
sentence, the Indemnified Person shall not settle any such litigation
without the prior written consent of the Indemnifying Party, such
consent not to be unreasonably withheld. Each party agrees that the
Indemnifying Party may employ counsel, at the Indemnifying Party's
expense, to represent such Indemnifying Party in the event of such
conflict.
9. Effective Date. The parties hereto agree that he effective
date of this agreement shall be January 1, 1997.
10. Survival. All representations, warranties, indemnities,
covenants and agreements made by Shareholder or Buyer in this Agreement
or in any document or agreement delivered in connection therewith shall
survive the Closing, notwithstanding any examination or investigation
made by or for any party.
11. Further Assurances. The parties hereto shall cooperate and
take such actions, execute such other documents as either may
reasonably request in order to carry out the provisions or purpose of
this Agreement.
12. Notices. All notices or other communications in connection
with the Agreement shall be in writing and shall be considered given
when personally delivered or when mailed by registered or certified
mail, postage prepaid, return receipt requested, as follows:
If to Shareholder: NRG Generating (U.S.) Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000 -2444
Attention: President
If to the Buyer: NRG Energy, Inc.
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000- 2444
Attention: President
13. Entire Agreement. This Agreement sets forth the final and
entire agreement of the parties with respect to the subject matter and
supersedes any and all prior understandings and agreements.
14. Successors. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, personal representatives, successors and
assigns. This Agreement may not be assigned to any party without the
prior written consent of the other party hereto.
15. Expenses. Each party to this Agreement shall pay all expenses
incurred by it or on its behalf in connection with the preparation,
authorization, execution and performance of this Agreement. Each party
agrees that there are no other finder's fees or brokerage commissions
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payable in connection with the transactions contemplated hereby as
a result of actions taken by such party.
16. Severability. If any provisions of this Agreement shall be
held by any court of competent jurisdiction to be illegal, invalid or
unenforceable, such provisions shall be construed and enforced as if it
had been more narrowly drawn so as not to be illegal, invalid or
unenforceable, and such illegality, invalidity or unenforceability
shall have no effect upon and shall not impair the enforceability of
any other provision of this Agreement.
17. Governing Law. This Agreement shall be governed by and
construed and interpreted in accordance with, the internal laws, and
not the laws pertaining to choice or conflicts of law, of the State of
Minnesota.
18. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed in original, but all of
which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto as of the date first above written.
NRG ENERGY, INC.
By: /s/ Xxxxxx X. Will
Name: Xxxxxx X. Will
Title: V.P. Operations & Engineering
NRG GENERATING (U.S.) INC.
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Chairman & CEO
