PURCHASE AGREEMENT
PURCHASE AGREEMENT (this "Agreement") dated as of August 24, 2001
between Dayton Ventures, Inc., a Cayman Islands corporation ("Seller")
and DPL Inc., an Ohio corporation (the "Company").
WHEREAS, the Company desires to purchase from the Seller, and the
Seller desires to sell to the Company, twenty-two million (22,000,000) 8.5%
Capital Securities of DPL Capital Trust I having an aggregate $550 million
liquidation amount (the "Trust Preferred Securities");
WHEREAS, in connection with the transactions contemplated by this
Agreement, the Company and/or its subsidiaries intends to issue and sell
securities providing aggregate proceeds of at least $550,000,000 to the Company
and/or its subsidiaries (the "Financing");
WHEREAS, the purpose of the Financing is to provide funds to the
Company and/or its subsidiaries to consummate the transactions contemplated
hereby;
NOW, THEREFORE, in consideration of the foregoing and the
representations and warranties contained in this Agreement, the parties agree
as follows:
1. Purchase and Sale. On the terms and subject to the conditions of this
Agreement, the Seller shall sell, transfer and deliver to the Company, and the
Company shall purchase from the Seller, the Trust Preferred Securities for
a purchase price of $550,000,000 (the "Purchase Price"), payable in cash as set
forth in Section 2 below.
2. Closing. The closing (the "Closing") of the purchase and sale of the
Trust Preferred Securities shall be held at the offices of Xxxxxxx Xxxxxxx &
Xxxxxxxx on the date of consummation of the Financing (the "Closing Date"). At
the Closing, (i) the Company shall deliver to Seller, by wire transfer to a
bank account designated in writing by the Seller, immediately available funds
in an amount equal to the sum of (x) the Purchase Price and (y) all accrued
and unpaid distributions on the Trust Preferred Securities through the Closing
Date (which accrued and unpaid distributions shall be in the amount of
$9,869,444.44 if the Closing takes place on August 30, 2001 or August 31, 2001
and shall increase by $129,861.11 for each day, if any, the Closing is delayed
beyond August 31, 2001) and (ii) the Seller shall deliver to the Company
certificates representing the Trust Preferred Securities duly endorsed in
blank or accompanied by stock powers duly endorsed in blank.
3. Seller Representations and Warranties. The Seller hereby represents and
warrants to the Company:
(a) Due Authorization. All consents, orders, approvals, and other
authorizations, whether governmental, corporate or other,
necessary for the execution, delivery and performance by the
Seller of this Agreement and the transactions contemplated
hereby have been obtained and are in full force and effect.
(b) Valid and Binding Agreement. This Agreement has been duly
authorized, executed and delivered by the Seller and
constitutes the legal, valid and binding
obligation of the Seller, enforceable against Seller in
accordance with its terms, except that the enforceability may
be limited by bankruptcy, insolvency, reorganization,
fraudulent transfer or other similar laws of general
applicability now and hereafter in effect relating to or
affecting the enforcement of creditor's rights.
(c) No Conflicts. Neither the execution, delivery or performance
of this Agreement by the Seller will conflict with, result
in a breach or violation of, or constitute a default under
(with or without notice, lapse of time or both): (i) any
agreement or instrument to which the Seller is a party or by
which the Seller or any of the Seller's properties or assets
is bound or (ii) any statute, rule or regulation, or any
order of any court, other governmental agency or arbitrator,
applicable to the Seller or any of its properties or assets.
(d) Good and Valid Title. Upon delivery of the certificate
evidencing the Trust Preferred Securities to be sold by the
Seller, against payment made pursuant to this Agreement,
good and valid title to such Trust Preferred Securities,
free and clear of liens, encumbrances, equities or claims,
will pass to the Company.
4. The Company's Representations and Warranties. The Company hereby
represents and warrants to the Seller:
(a) Due Authorization. All consents, orders, approvals, and
other authorizations, whether governmental, corporate or
other, necessary for the execution, delivery and performance
by the Company of this Agreement and the transactions
contemplated hereby have been obtained or made and are in
full force and effect.
(b) Valid and Binding Agreement. This Agreement has been duly
authorized, executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with
its terms, except that the enforceability may be limited by
bankruptcy, insolvency, reorganization, fraudulent transfer
or other similar laws of general applicability now and
hereafter in effect relating to or affecting the enforcement
of creditor's rights.
(c) No Conflicts. Neither the execution, delivery or performance
of this Agreement by the Company will conflict with, result
in a breach or violation of, or constitute a default under
(with or without notice, lapse of time or both): (i) any
agreement or instrument to which the Company or any of the
Company's subsidiaries is a party or by which the Company or
any of them or any of the Company's or their properties or
assets is bound or (ii) any statute, rule or regulation, or
any order of any court, other governmental agency or
arbitrator, applicable to the Company, any of the Company's
subsidiaries or any of the Company's or their properties or
assets.
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5. Best Efforts. The parties hereto will use their respective best efforts
to effectuate this Agreement and the transactions contemplated thereby. The
Company will use its best efforts to complete the Financing.
6. Amendment. Each party hereto agrees and confirms that: (i) any provision
of this Agreement may be amended or waived if such amendment or waiver is in
writing and signed, in the case of an amendment, by each affected party or, in
the case of a waiver, by the party or parties against whom the waiver is to be
effective; and (ii) no failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise.
7. Governing Law. This Agreement shall be governed in all respects by the
laws of the State of New York. Any suit, action or proceeding with respect to
this Agreement may be brought in any court or before any similar authority in a
court of competent jurisdiction in the State of New York, as each party hereto
may elect, and each party hereby submits to the non-exclusive jurisdiction of
such courts for the purpose of such suit, proceeding or judgment. Both of the
parties hereto hereby irrevocably and unconditionally waives trial by jury in
any legal action or proceeding in relation to this Agreement and for any
counterclaim therein.
8. Successors. This Agreement shall be binding upon and inure to the benefit
of the parties to this Agreement and their respective successors and assigns,
including, without limitation, successors by merger.
9. Counterparts. This Agreement may be executed in two or more counterparts
each of which shall be deemed to be an original, but all of which shall
constitute one and the same instrument. This Agreement may be executed by
facsimile signature(s).
10. Termination. Notwithstanding any other provision of this Agreement, the
Company may terminate this Agreement by written notice to the Seller in the
event that the Financing is not consummated on or before October 15, 2001 and,
in the event of such termination, this Agreement shall be of no further force
or effect and no party shall have any liability hereunder.
[Signature page to follow]
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
DPL INC.
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: President & CEO
DPL CAPITAL TRUST I
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: Administrative Trustee
DAYTON VENTURES, INC.
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Member
DAYTON VENTURES, INC.
By: /s/ Xxxxx Xxxxxx
------------------------------------
Name: Xxxxx Xxxxxx
Title: President
