Exhibit B
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement")
is made and entered into this _____ day of _________, 1995, by
and among ARKANSAS POWER & LIGHT COMPANY, an Arkansas corporation
("AP&L"), SOUTHWESTERN ELECTRIC POWER COMPANY, a Delaware
corporation ("SWEPCO"), and OKLAHOMA GAS AND ELECTRIC COMPANY, an
Oklahoma corporation ("OG&E").
W I T N E S S E T H:
WHEREAS, AP&L, SWEPCO and OG&E, own, respectively,
one hundred seventy (170) shares, one hundred sixty (160) shares
and one hundred seventy (170) shares of common stock, $100 par
value, of The Arklahoma Corporation, an Arkansas corporation
("Arklahoma"), representing all of the outstanding shares of
capital stock of Arklahoma;
WHEREAS, Arklahoma owns certain facilities
consisting of a 161 KV transmission line extending from Xxxx
Xxxxxxxxx, Arkansas to Boudinot Tap, near Tahlequah, Oklahoma,
the Xxxx Xxxxxxxxx substation at a terminus of said transmission
line and certain property incidental thereto;
WHEREAS, Arklahoma leases such facilities to AP&L,
SWEPCO and OG&E pursuant to an Agreement and Indenture, dated as
of December 9, 1947, as extended by an Extension of Agreement and
Indenture, dated September 6, 1977 (collectively, the "Lease");
WHEREAS, such facilities are jointly operated by
AP&L, SWEPCO and OG&E pursuant to an Operating Agreement, dated
December 9, 1947 ("Operating Agreement");
WHEREAS, in order to facilitate the formation by
OG&E of a holding company system exempt from the registration
requirements of the Public Utility Holding Company Act of 1935,
as amended (the "35 Act"), OG&E desires to reduce its ownership
of the outstanding common stock of Arklahoma to less than five
percent by selling sixty-eight (68) shares of such stock to AP&L
and seventy-eight (78) shares of such stock to SWEPCO; and
WHEREAS, AP&L and SWEPCO have agreed to acquire
such shares in accordance with the terms and conditions
hereinafter set forth;
NOW, THEREFORE, in consideration of the covenants
and agreements contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Purchase and Sale of Shares. Subject to the terms and
conditions herein stated, (a) OG&E agrees to sell, assign,
transfer and deliver to AP&L, and AP&L agrees to purchase from
OG&E at the Closing (as hereinafter defined), sixty-eight (68)
shares of common stock, $100 par value, of Arklahoma, and (b)
OG&E agrees to sell, assign, transfer and deliver to SWEPCO, and
SWEPCO agrees to purchase from OG&E at the Closing, seventy-eight
(78) shares of common stock, $100 par value, of Arklahoma
(collectively, the "Shares").
2. Purchase Price. In full consideration for the purchase
by AP&L and SWEPCO of the Shares, (a) AP&L shall pay to OG&E an
aggregate of [___________________ Dollars ($_________)], and (b)
SWEPCO shall pay to OG&E an aggregate of [_____________ Dollars
($___________)] (collectively, the "Purchase Price").
3. Closing. The closing of the transactions provided for
herein shall take place at the offices of AP&L's counsel, Xxxx &
Priest LLP, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at
10:00 A.M. local time on the second business day following the
satisfaction or waiver of the conditions set forth in Section 8
hereof, or at such other time and location mutually agreeable to
the parties (the "Closing").
4. Deliveries at Closing. The following deliveries shall
be made by the respective parties at the Closing:
4.1. OG&E's Deliveries. OG&E shall deliver to
AP&L and SWEPCO the following:
(a) Certificates representing sixty-eight (68)
Shares and seventy-eight (78) Shares, respectively, duly endorsed
in blank with all necessary transfer tax and other revenue
stamps, acquired at OG&E's expense, affixed and canceled. OG&E
agrees to cure any deficiencies with respect to the endorsement
of the certificates representing the Shares or with respect to
the stock power accompanying any such certificates.
(b) Such other documents, certificates and
opinions as reasonably may be required by AP&L and SWEPCO in
order to (i) demonstrate the accuracy of, or the compliance by
OG&E with, all of the representations, warranties, covenants and
conditions set forth herein, and (ii) consummate the transactions
contemplated hereby.
4.2. AP&L's and SWEPCO's Deliveries. AP&L and
SWEPCO shall deliver to OG&E their respective portions of the
Purchase Price by check or by wire transfer of immediately
available funds to the account of OG&E designated in writing.
1. Provisions of Lease and Operating Agreement. AP&L,
SWEPCO and OG&E hereby acknowledge that the sale of the Shares
will not, in itself, act to modify the rights and obligations of
the parties under the Lease and the Operating Agreement.
2. Representations and Warranties.
1. OG&E's Representations and Warranties. OG&E represents
and warrants to AP&L and SWEPCO, as of the date of this Agreement
and as of the Closing (as if each such representation and
warranty was remade at the Closing), as follows:
(a) Corporate Standing; Authorization. OG&E is a
corporation duly organized, validly existing and in good standing
under the laws of the State of Oklahoma with all requisite
corporate power, authority and legal right to execute, deliver,
and perform its obligations under this Agreement and to
consummate the transactions contemplated hereunder, and has taken
all necessary corporate action to authorize the sale of the
Shares hereunder on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this
Agreement.
(b) Due Execution and Enforceability. This
Agreement is a valid and binding obligation of OG&E enforceable
in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws
of general application referring to or affecting enforcement of
creditors' rights and general principles of equity.
(c) No Restrictions Against Performance. Neither
the execution, delivery, authorization or performance of this
Agreement, nor the consummation of the transactions contemplated
hereby will, with or without the giving of notice or the passage
of time, or both, violate any provisions of, conflict with,
result in a breach of, constitute a default under, or result in
the creation or imposition of any lien or condition under (i)
OG&E's Certificate of Incorporation or By-Laws; (ii) any federal,
state or local law, statute, ordinance, regulation or rule, which
is applicable to OG&E other than as set forth in paragraph 6.1(d)
hereof (provided that OG&E makes no representation as to any such
laws, statutes, ordinances, regulations or rules which require
consent, authorization or approval with respect to AP&L or
SWEPCO); (iii) any contract, indenture, instrument, agreement,
mortgage, lease, right or other obligation or restriction to
which OG&E is a party or by which OG&E is bound; or (iv) any
order, judgment, writ, injunction, decree, license, franchise,
permit or other authorization of any federal, state or local
court, arbitration tribunal or governmental agency by which OG&E
is bound, any of which, when taken as a whole, would have a
material adverse affect on OG&E.
(d) Third-Party and Governmental Consents. No
approval, consent, waiver, order or authorization of, or
registration, qualification, declaration, or filings with, or
notice to, any federal, state or local governmental authority or
other third party is required on the part of OG&E in connection
with the execution of this Agreement or the consummation of the
transactions contemplated hereby, other than the approvals of the
Federal Energy Regulatory Commission, the Oklahoma Corporation
Commission and the Arkansas Public Service Commission, which
approvals have been sought in connection with the formation by
OG&E of the holding company system.
(e) Ownership of Shares. OG&E is the lawful
owner of the Shares, free and clear of all liens, charges,
encumbrances, restrictions and claims of every kind; OG&E has
full legal right, power and authority to enter into this
Agreement and to sell, assign, transfer and convey the Shares
pursuant to this Agreement; the delivery to AP&L and SWEPCO of
the Shares pursuant to the provisions of this Agreement will
transfer to AP&L and SWEPCO, respectively, valid title thereto,
free and clear of all liens, encumbrances, restrictions and
claims of every kind.
1. AP&L's and SWEPCO's Representations and Warranties.
Each of AP&L and SWEPCO represents and warrants to OG&E, with
respect to itself only, as of the date of this Agreement and as
of the Closing (as if each such representation and warranty was
remade at the Closing), as follows:
(a) Corporate Standing; Authorization. AP&L and
SWEPCO are corporations duly organized, validly existing and in
good standing under the laws of the States of Arkansas and
Delaware, respectively. Each of AP&L and SWEPCO has all
requisite corporate power, authority and legal right to execute,
deliver, and perform its obligations under this Agreement and to
consummate the transactions contemplated hereunder, and has taken
all necessary corporate action to authorize the purchase of the
Shares hereunder on the terms and conditions of this Agreement
and to authorize the execution, delivery and performance of this
Agreement.
(b) Due Execution and Enforceability. This
Agreement is a valid and binding obligation of AP&L and SWEPCO,
as the case may be, enforceable in accordance with its terms,
except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application
referring to or affecting enforcement of creditors' rights and
general principles of equity.
(c) No Restrictions Against Performance. Neither
the execution, delivery, authorization or performance of this
Agreement, nor the consummation of the transactions contemplated
hereby will, with or without the giving of notice or the passage
of time, or both, violate any provisions of, conflict with,
result in a breach of, constitute a default under, or result in
the creation or imposition of any lien or condition under (i)
AP&L's or SWEPCO's Articles or Certificate of Incorporation or By-
Laws; (ii) any federal, state or local law, statute, ordinance,
regulation or rule, which is applicable to AP&L or SWEPCO, as the
case may be, other than as set forth in paragraph 6.2(d) hereof
(provided that AP&L and SWEPCO make no representation as to any
such laws, statutes, ordinances, regulations or rules which
require consent, authorization or approval with respect to OG&E);
(iii) any contract, indenture, instrument, agreement, mortgage,
lease, right or other obligation or restriction to which AP&L or
SWEPCO, as the case may be, is a party or by which AP&L or
SWEPCO, as the case may be, is bound; or (iv) any order,
judgment, writ, injunction, decree, license, franchise, permit or
other authorization of any federal, state or local court,
arbitration tribunal or governmental agency by which AP&L or
SWEPCO, as the case may be, is bound, any of which, when taken as
a whole, would have a material adverse affect on AP&L or SWEPCO,
as the case may be.
(d) Third-Party and Governmental Consents. No
approval, consent, waiver, order or authorization of, or
registration, qualification, declaration, or filings with, or
notice to, any federal, state or local governmental authority or
other third party is required on the part of AP&L or SWEPCO, as
the case may be, in connection with the execution of this
Agreement or the consummation of the transactions contemplated
hereby, other than the approvals of the Securities and Exchange
Commission under the 35 Act and the Arkansas Public Service
Commission.
1. Conditions to Closing.
1. Conditions Precedent To Each Party's Obligations. The
obligations of each party to perform hereunder are subject to the
satisfaction, or waiver in writing, of the following conditions
at or prior to the Closing:
(a) Regulatory Approvals. All requisite
regulatory approvals shall have been obtained, in form and
substance satisfactory to each party, in order to permit the
consummation of the transactions contemplated hereby, including,
without limitation, the issuance of appropriate orders of the
Securities and Exchange Commission under the 35 Act and the
Arkansas Public Service Commission.
(b) No Injunction. No action or proceeding by
any governmental authority or other person shall have been
instituted or threatened which could enjoin, restrain or
prohibit, or could result in substantial damages in respect of,
any provisions of this Agreement or the consummation of the
transactions contemplated hereby.
1. Conditions Precedent To Obligations of AP&L and SWEPCO.
The obligations of AP&L and SWEPCO to perform hereunder are
subject to the satisfaction, or waiver in writing by AP&L and
SWEPCO, of the following conditions at or prior to the Closing:
(a) Representations and Warranties True;
Conditions Satisfied. All representations and warranties of OG&E
contained in this Agreement shall be true and correct in all
material respects as of the date hereof and as of the Closing as
though made on and as of the Closing. OG&E shall have performed
and complied with all of its covenants and obligations under this
Agreement in all material respects.
(b) Third-Party Consents. OG&E shall have
obtained and delivered to AP&L and SWEPCO all necessary consents
and approvals of third parties or governmental authorities to
permit OG&E to sell the Shares. OG&E shall also have made all
registrations, qualifications, declarations, or filings with, or
notices to, any governmental authority or other third party
required on the part of OG&E in connection with the execution of
this Agreement or the consummation of the transactions
contemplated hereby.
(c) No Adverse Change. Through the Closing,
there shall have been no adverse change in the business,
operations, properties, assets or financial condition of
Arklahoma and none of Arklahoma's properties or assets shall have
been adversely affected in any way.
(d) No Litigation. No action or proceeding by
any governmental authority or other person shall be pending or
shall have been instituted or threatened which might have an
adverse effect on the business, operations, properties, assets or
financial condition of Arklahoma.
1. Conditions Precedent to Obligations of OG&E. The
obligations of OG&E to perform hereunder are subject to the
satisfaction, or waiver in writing by OG&E, of the following
conditions at or prior to the Closing;
(a) Representations and Warranties True
Conditions Satisfied. All representations and warranties of AP&L
and SWEPCO contained in this Agreement shall be true and correct
in all material respects as of the date hereof and as of the
Closing as though made on and as of the Closing. AP&L and SWEPCO
shall have performed and complied with all of their covenants and
obligations under this Agreement in all material respects.
(b) Third-Party Consents. AP&L and SWEPCO shall
have obtained and delivered to OG&E all necessary consents and
approvals of third parties or governmental authorities to permit
AP&L and SWEPCO to purchase the Shares. AP&L and SWEPCO shall
also have made all registrations, qualifications, declarations,
or filings with, or notices to, any governmental authority or
other third party required on the part of AP&L or SWEPCO in
connection with the execution of this Agreement or the
consummation of the transactions contemplated hereby.
1. Survival of Representations, Warranties and Agreements.
All of the parties' warranties, representations and covenants
contained in this Agreement or in any document delivered
hereunder shall survive the purchase and sale of the Shares
contemplated hereby.
2. Indemnification by OG&E. OG&E agrees to defend,
indemnify and hold AP&L and SWEPCO and their respective officers,
directors and agents harmless from and against any and all
losses, liabilities, damages, costs, or expenses (including
reasonable attorneys' fees, penalties and interest) payable to or
for the benefit of, or asserted by, any party, resulting from,
arising out of, or incurred as a result of (a) the breach of any
representation made by OG&E herein or in accordance herewith; or
(b) the breach of any warranty or covenant made by OG&E herein or
in accordance herewith. The obligation to indemnify and hold
harmless pursuant to this Section shall survive the consummation
of the transactions contemplated hereby.
3. Termination of Agreement. This Agreement may be
terminated (a) at any time by mutual written consent of the
parties hereto, or (b) by any party in the event that the Closing
has not occurred by November 30, 1996. If this Agreement is
terminated pursuant to this Section, none of the parties hereto,
nor any of its agents or successors in interest, shall have any
liability or further obligation to the other parties or any of
their respective agents or successors in interest pursuant to
this Agreement.
4. Expenses. OG&E shall pay its own and AP&L's and
SWEPCO's expenses (including, without limitation, all filing fees
and the reasonable fees and expenses of their respective agents,
representatives, counsel, accountants and service companies)
incidental to (a) the negotiation, drafting and performance of
this Agreement and (b) the receipt of all necessary regulatory
approvals for the parties to consummate the transactions
contemplated hereby.
5. Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of AP&L, SWEPCO, OG&E and
their respective, successors, representatives and assigns.
6. Waiver. No provision of this Agreement shall be deemed
waived by course of conduct, including the act of closing, unless
such waiver is made in a writing signed by the parties hereto
stating that it is intended specifically to modify this
Agreement, nor shall any course of conduct operate or be
construed as a waiver of any subsequent breach of this Agreement,
whether of a similar or dissimilar nature.
7. Entire Agreement; Modification. This Agreement
supersedes any other agreement, whether written or oral, that may
have been made or entered into by AP&L, SWEPCO and OG&E (or by
any director, officer, agent, or other representative of such
parties) relating to the matters contemplated hereby. This
Agreement constitutes the entire agreement between the parties
and there are no agreements or commitments except as expressly
set forth herein. This Agreement may be amended or modified only
by a written instrument executed by the parties hereto which
states specifically that it is intended to amend or modify this
Agreement.
8. Notices. All notices, demands, requests, and other
communications hereunder shall be in writing and shall be deemed
to have been duly given and shall be effective upon receipt if
delivered by hand, or sent by certified or registered United
States mail, postage prepaid and return receipt requested, or by
prepaid overnight express service. Notices shall be sent to the
parties at the following addresses (or at such other addresses
for a party as shall be specified by like notice; provided that
such notice shall be effective only upon receipt thereof): (a) if
to AP&L: Arkansas Power & Light Company, c/o Entergy Services,
Inc., X.X. Xxx 00000, Xxx Xxxxxxx, Xxxxxxxxx 00000, Attention:
Xxxxxx X. Xxxxxx, Vice President, Transmission and Distribution
System, with copies to Xxxxxxxx X. Xxxxxx, Esq., General Attorney-
Corporate and Securities, at the foregoing address, and to Xxxx
X. Xxxx, Esq., Xxxx & Priest LLP, at the address set forth in
Section 3 above; (b) if to SWEPCO: Southwestern Electric Power
Company, 000 Xxxxxx Xxxxxx, X.X. Xxx 00000, Xxxxxxxxxx, Xxxxxxxxx
00000, Attention: Xxxxxxx Xxxxxxx, Vice President of Engineering
and Operations, with copies to Xxxxx X. Xxxxx, Esq., Milbank,
Tweed, Xxxxxx and XxXxxx, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000; or (c) if to OG&E: Oklahoma Gas and Electric
Company, 000 Xxxxx Xxxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxx 00000,
Attention: Xxxxx X. Xxxxxxxx, Treasurer, with copies to Xxxxx X.
Xxxxxx, Esq., Xxxxxxx, Carton & Xxxxxxx, 000 X. Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxxx 00000.
9. Governing Law. This Agreement and the legal relations
between the parties hereto shall be governed by and construed in
accordance with the substantive laws of the State of Arkansas,
without giving effect to the principles of conflicts of law
thereof.
10. 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.
IN WITNESS WHEREOF, the parties hereto have executed
this Agreement as of the date first above-written.
ARKANSAS POWER & LIGHT COMPANY
By: ___________________________________
Name:
Title:
SOUTHWESTERN ELECTRIC POWER COMPANY
By: ___________________________________
Name:
Title:
OKLAHOMA GAS AND ELECTRIC COMPANY
By: ___________________________________
Name:
Title:
