EXHIBIT 10.1
EXECUTION COPY
REPURCHASE AGREEMENT
THIS REPURCHASE AGREEMENT (the "Agreement") is made and entered into by
and between K-1 GHM, LLLP, a Delaware limited liability limited partnership
("K-1" or "Seller"), and SEMCO ENERGY, INC., a Michigan corporation ("Company"
or "Purchaser"), to be effective this 8th day of March, 2005. Seller and
Purchaser are sometimes hereinafter referred to together as the "Parties" and
individually as a "Party."
BACKGROUND:
A. K-1 and the Company entered into that certain Securities Purchase
Agreement dated as of March 19, 2004 (the "Securities Purchase Agreement"),
whereby K-1 purchased from the Company (i) 50,000 shares of Company's 6% Series
B Convertible Preference Stock, par value $1.00 per share (together with the
additional 2,542.94 shares of 6% Series B Convertible Preference Stock paid to
K-1 as dividends through February 15, 2005, the "Preference Stock"), the terms
of the Preference Stock being set forth in a Certificate of Designation of the
Company (the "Certificate of Designation") and (ii) warrants (the "Warrants") to
purchase 905,565 shares of the Company's common stock, par value $1.00 per share
(the "Common Stock").
B. K-1 owns all of the issued and outstanding shares of Preference Stock
and Warrants, the Company wishes to repurchase the Preference Stock and Warrants
from K-1, and K-1 wishes to sell the Preference Stock and Warrants to the
Company.
C. To facilitate such repurchase, the Parties have entered into this
Agreement, which shall govern in all respects the repurchase of the Preference
Stock and Warrants, as well as other rights and obligations of the Parties as
set forth herein.
NOW, THEREFORE, FOR AND IN CONSIDERATION of the premises, the mutual
promises, covenants and agreements contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Repurchase and Sale of Preference Stock and Warrants. Subject to the
terms and conditions contained herein, Seller hereby agrees to sell, convey and
deliver to Purchaser, and Purchaser hereby agrees to purchase from Seller, all
of Seller's right, title and interest in and to the Preference Stock and
Warrants (the "Repurchase"). Prior to Repurchase and in order to give effect
thereto, Seller agrees that at it shall not (i) permit any of the Preference
Stock or Warrants to become encumbered by any lien, pledge, claim, security
interest or other encumbrance (other than those that exist pursuant to the
Securities Purchase Agreement, Stock Purchase Agreement, Shareholders Agreement
(as defined herein), Registration Rights Agreement (as defined herein) or
Warrants) or (ii) sell, distribute or otherwise transfer any shares of
Preference Stock or Warrants.
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2. Purchase Price. The total purchase price to be paid by Purchaser for
the Preference Stock and Warrants shall be $60 million (the "Purchase Price").
To the extent relating to the purchase of the Preference Stock, as between the
Parties, the Repurchase is being conducted in lieu of the notice, deposit for
funds and other mechanics provided for with respect to an "Optional Approval
Redemption" (as such term is defined in Section 11 of the Certificate of
Designation) provided, however, that the foregoing shall in no way constitute an
acknowledgement by Seller of Purchaser's right to conduct an Optional Approval
Redemption under any circumstances. Seller shall not be otherwise entitled to
the reimbursement by Purchaser of any other fees and expenses incurred by Seller
in connection with the transactions contemplated by this Agreement except as
otherwise specifically provided herein.
In the event the Closing takes place after March 19, 2005, Purchaser shall
pay to Seller an amount, which shall be in addition to the Purchase Price and
deemed a part thereof, in lieu of accrued dividends on the Preference Stock, as
set forth below:
(a) 3/20/05 - 3/31/05 - In the event the Closing occurs on or after
March 20, 2005 up to and including March 31, 2005, an amount equal to:
52,542.94 x [1/360] x 7% x $1,000
for each day after March 19, 2005 up to and including the date of Closing.
(b) 4/1/05-5/14/05 - In the event the Closing occurs on or after
April 1, 2005 up to and including May 14, 2005, an amount equal to:
52,542.94 x [1/360] x 8% x $1,000
for each day after March 31, 2005 up to and including the date of Closing, plus
all amounts calculated in accordance with subsection (a), above. For the
purposes of the foregoing, each month shall be deemed to have 30 days.
3. Closing Date and Termination of Transaction. The closing (the
"Closing") of the Repurchase shall occur at the offices of Xxxxxxxx Xxxxxxx LLP,
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, at 10:00 a.m. (Atlanta time), or
any other time and location that is mutually agreed by the Parties, provided
that the Closing shall in no event occur later than April 15, 2005 (the
"Termination Date"). The Parties agree that if the Closing does not occur by the
Termination Date due to the breach or the non-performance of a Party, then the
non-breaching Party may terminate this Agreement or seek specific performance of
the obligations hereunder pursuant to Section 15(g) of this Agreement; provided,
further, that the foregoing shall in no way be deemed to release the breaching
Party from any liability for any breach or failure to perform by such Party of
the terms and conditions of this Agreement.
(a) Notice of Closing - At least three (3) days prior to the
Closing, Purchaser shall provide Seller notice of the time and place of the
Closing (if the Closing
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is to be held at a location other than that the offices of Xxxxxxxx Xxxxxxx,
Purchaser shall obtain the reasonable consent of Seller to the proposed time and
place for the Closing (which Closing shall occur no later than April 15, 2005).
At least one (1) business day prior to the Closing, Seller shall provide
Purchaser with wire transfer instructions.
(b) Closing Deliveries - At the Closing, Seller shall deliver to
Purchaser (i) all certificates representing the Preference Stock, which shall be
endorsed in blank or accompanied by all necessary stock transfer powers, (ii)
the Warrants, accompanied by an instrument of assignment, (iii) the resignations
of the K-1 Directors (as defined below), (iv) a Release (as defined below) and
(v) a certificate of an appropriate officer of Seller substantially in the form
attached hereto as Exhibit A. Purchaser shall deliver to Seller (w) the Purchase
Price via wire transfer in accordance with the instructions provided by Seller
(or such other means agreed by the Parties), (x) a Release, (y) a certificate of
an appropriate officer of Purchaser substantially in the form attached hereto as
Exhibit A, and (z) an opinion of legal counsel, as contemplated by Section
15(l).
4. Fund Raising by Purchaser and Waiver of Rights. The Parties acknowledge
that Purchaser will undertake certain activities to fund the Purchase Price (the
"Fund Raising"). Purchaser will use all commercially reasonable efforts to
timely complete the Fund Raising; provided, however, that Purchaser's failure to
complete the Fund Raising or otherwise produce the Purchase Price on or before
the Termination Date shall constitute a breach of this Agreement; provided,
further, that so long as Purchaser has used commercially reasonable efforts to
complete the Fund Raising, Purchaser's failure to complete the Fund Raising or
otherwise produce the Purchase Price on or before the Termination Date shall
provide Purchaser the right to terminate this Agreement. Seller agrees that
neither it nor any of its affiliates will in any way impede, obstruct or object
to the Fund Raising. To the extent the Fund Raising would otherwise trigger
Seller's pre-emptive rights under Section 4(e) of the Securities Purchase
Agreement, Seller hereby waives such pre-emptive rights. To the extent the Fund
Raising would otherwise require the approval of Seller as a holder of all the
Preference Stock or in conjunction with approval of the shareholders of
Purchaser, in general, Seller agrees to promptly provide such approval;
provided, however, that to the extent not impairing the legal validity of such
approvals, such approval can either be conditioned upon the occurrence of the
Repurchase or rendered null and void if the Repurchase does not occur as a
result of a termination of this Agreement not caused by the breach of this
Agreement by Seller.
5. Resignation of Directorships. Seller agrees that at the Closing, it
will deliver the resignations of Xx. Xxxxxxx X. Xxxxxxx and Xx. Xxxxxx X.
Xxxxxxx (the "K-1 Directors") from Purchaser's Board of Directors; provided,
however, that such resignations will be rendered null and void if the Repurchase
does not occur as a result of a termination of this Agreement not caused by the
breach of this Agreement by Seller. Seller acknowledges that such resignation of
the K-1 Directors will require Purchaser to file a current report on Form 8-K
with the Securities and Exchange Commission (the "SEC"), and Seller agrees to
provide any reasonable assistance to Purchaser in
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connection with such filing. The Parties further agree that the resignation of
the K-1 Directors is not "due to a disagreement with the registrant" and is not
a removal "with cause" as contemplated by Item 5.02(a) of Form 8-K.
6. Withdrawal from RCA Proceedings. Promptly following the execution of
this Agreement, the Parties will jointly petition the Regulatory Commission of
Alaska ("RCA") to suspend and, upon or following the Closing, to dismiss
proceedings relating to the original purchase of the Preference Stock and
Warrants by Seller (Case No. U-04-106), on the grounds that, since the
Preference Stock and Warrants have been repurchased by Purchaser, it is
unnecessary for the RCA to further investigate or take any action with respect
to the issuance to Seller of the Preference Stock and Warrants. Seller further
agrees to take such other actions before and after the Closing as may reasonably
be requested by Purchaser (solely at the expense of Purchaser) in connection
with obtaining the favorable action of the RCA with respect to the suspension
and dismissal of this proceeding and any other action relating to the subject
matter of this Agreement. Purchaser acknowledges and agrees that Seller shall be
permitted to take all actions necessary to (i) comply with the applicable laws
of the State of Alaska and (ii) respond to any inquiries or requests of the
State of Alaska or its regulatory agencies; provided, however, that to the
extent such actions relate to the Repurchase or Seller's ownership of the
Preference Stock or Warrants, such actions shall be mutually agreed upon in
advance (unless Seller is advised by counsel that any such action not mutually
agreed upon in advance is required to be made by law or applicable rule and is
not binding upon Purchaser, and then only after consulting with Purchaser and
making reasonable efforts to comply with the provisions of this Section).
7. Other Agreements. Except as otherwise specifically set forth herein,
the Parties agree that to the extent the terms of this Agreement conflict with
the Certificate of Designation or any other agreement between the Parties, that
the terms of this Agreement shall control and supersede such conflicting terms.
The Parties agree that upon the Closing, the following agreements of the Parties
shall be terminated: (i) the Shareholder Agreement between the Parties, dated as
of Xxxxx 00, 0000, (xx) any provisions of the Securities Purchase Agreement that
survived following the purchase of the Preference Stock and Warrants by Seller,
and (iii) the Registration Rights Agreement (the "Registration Rights
Agreement") between the Parties, dated as of March 19, 2004. Additionally, the
Parties agree that, upon the Closing, Purchaser shall be entitled to amend its
articles of incorporation to cancel, eliminate or redesignate the Preference
Stock.
8. Representation and Warranties of Seller. Seller hereby represents and
warrants to Purchaser that:
(a) it is the lawful owner of the Preference Stock and Warrants and
that such securities are free and clear of any and all liens, pledges,
hypothecations, claims, security interests or other encumbrances (other than
those that exist pursuant to the Securities Purchase Agreement, Stock Purchase
Agreement, Shareholders Agreement (as defined herein), Registration Rights
Agreement (as defined herein) or Warrants);
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(b) the Preference Stock and Warrants were acquired by Seller from
Purchaser solely for its own account for investment and Seller has not sold,
distributed, divided, or fractionalized any shares of Preference Stock or
Warrants;
(c) the execution and delivery of this Agreement has been duly
authorized by Seller's general partner (or such person or entity serving a
comparable function) and no further consent or authorization of Seller, its
general partner, its partners or any direct or indirect parent company is
required;
(d) the execution, delivery and performance of this Agreement by
Seller and the consummation by Seller of the transactions contemplated hereby
will not (i) conflict with or result in a violation of any provision of Seller's
organizational or governing instruments, (ii) conflict with any agreements of
Seller or (iii) result in a violation of any law, rule, regulation, order,
judgment or decree applicable to Seller, any of its members or any direct or
indirect parent company; and
(e) Seller is duly organized, validly existing and in good standing
under its state of organization.
9. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants:
(a) the execution and delivery of this Agreement has been duly
authorized and no further consent or authorization of Purchaser, its Board of
Directors, or its shareholders shall be required;
(b) the execution, delivery and performance of this Agreement by
Purchaser and the consummation by Purchaser of the transactions contemplated
hereby will not (i) conflict with or result in a violation of any provision of
Purchaser's Articles of Incorporation or Bylaws, (ii) conflict with any
agreements of Purchaser or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree applicable to Purchaser or any of its
subsidiaries;
(c) Purchaser is duly incorporated, organized, validly existing and
in good standing under its state of incorporation;
(d) Purchaser is not, and at no time on or after March 19, 2004 has
been, a U.S. real property holding corporation within the meaning of Section 879
of the Internal Revenue Code of 1986, as amended, and the Treasury Regulations
thereunder; and
(e) Purchaser (both before and after giving effect to the
transactions contemplated by this Agreement) is solvent (i.e., its assets have a
fair market value in excess of the amount required to pay its probable
liabilities on its existing debts as they become absolute and matured) and
currently Purchaser has no information that would
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lead it to reasonably conclude that Purchaser would not have the ability to pay
its debts from time to time incurred in connection therewith as such debts
mature.
10. Standstill. Seller agrees that for a period of fifteen (15) months
after the date of this Agreement, so long as (i) this Agreement has not been
terminated pursuant to the breach of Purchaser or (ii) Seller has not been
required to return the Purchase Price to the Company pursuant to any bankruptcy,
insolvency or other judicial proceeding, Seller shall not, and shall cause each
of its officers, directors, majority-owned subsidiaries and affiliates for which
Seller or a direct or indirect parent of Seller has voting or effective control
not to, unless and until such party shall have received the prior written
invitation or approval of a majority of directors of Purchaser, directly or
indirectly (i) acquire, agree to acquire or make any proposal to acquire any
securities of Purchaser, any warrant or option to acquire any such securities,
any security convertible into or exchangeable for any such securities or any
other right to acquire any such securities; provided, however, that each of the
K-1 Directors shall be permitted to exercise, in accordance with their terms,
any options to purchase Purchaser's Common Stock he or she has received pursuant
to their appointment or service on Purchaser's Board of Directors, subject to
any lock-up or other restrictions imposed by the Company on Purchaser's Board of
Directors in connection with the Fund Raising, (ii) seek or propose any merger,
consolidation, business combination, tender or exchange offer, sale or purchase
of assets or securities, dissolution, liquidation, restructuring,
recapitalization or similar transactions of or involving Purchaser or any of its
subsidiaries, (iii) make, or in any way participate in, any "solicitation" of
proxies or consents (whether or not relating to the election or removal of
directors) within the meaning of Rule 14a-1 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), with respect to any securities of
Purchaser or any of its subsidiaries, or seek to advise or influence any person
with respect to the voting of any securities of Purchaser or any of its
subsidiaries, or demand a copy of the stock ledger list of stockholders, or any
other books and records of Purchaser or any of its subsidiaries, (iv) form, join
or in any way participate in a "group" (within the meaning of Section 13(d)(3)
of the Exchange Act) with respect to any voting securities of Purchaser or any
of its subsidiaries, (v) otherwise act, alone or in concert with others, to seek
to control or influence, in any manner, the management, Board of Directors or
policies of Purchaser or any of its subsidiaries, (vi) have any discussions or
enter into any arrangements, understandings or agreements (whether written or
oral) with, or advise, finance (with respect to persons for which Seller and
each of its officers, directors, majority-owned subsidiaries and affiliates for
which Seller or a direct or indirect parent of Seller has voting or effective
control), assist or encourage, any other persons in connection with any of the
foregoing, or make any investment in any other person for which Seller and each
of its officers, directors, majority-owned subsidiaries and affiliates for which
Seller or a direct or indirect parent of Seller has voting or effective control
that engages, or offers or proposes to engage, in any of the foregoing (it being
understood that, without limiting the generality of the foregoing, Seller shall
not be permitted to act as a joint bidder or co-bidder with any other person
with respect to Purchaser or any of its subsidiaries), or (vii) make any
publicly disclosed proposal regarding any of the foregoing. Seller agrees during
such period not to make any proposal or statement, or disclose any intention,
plan or arrangement, whether written or oral, inconsistent with the foregoing,
or request the
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other Party directly or indirectly, to amend, waive or terminate any provision
of this Agreement (including this sentence).
11. Release. At the Closing, each of Purchaser and Seller shall provide a
release (a "Release") whereby such Party will release and forever discharge and
covenant not to xxx the other Party and such Party's officers, directors,
agents, investors, employees and affiliates, if any, from any and all past,
present and future claims, demands, actions, causes of action and liability of
every kind or nature whatsoever whether known or unknown, whether or not
previously asserted, even though unexpected, arising from or in any way related
to Seller's purchase and ownership of the Preference Stock and Warrants and the
service of the K-1 Directors on Purchaser's Board of Directors; provided,
however, that such release shall not (i) release any claims relating to a breach
of this Agreement; (ii) release any entitlement to indemnification that persons
may have as a result or in respect of their service as officers or directors of
Purchaser; (iii) with respect to the release provided by Purchaser to Seller,
remain in effect (and will be deemed void from the time of its delivery) in the
event the payment of the Purchase Price is disallowed by a court of competent
jurisdiction pursuant to any state or federal bankruptcy, insolvency or other
law; and (iv) shall not extend beyond any limitations imposed by law. Purchaser
shall also provide a release to each of the K-1 Directors to release and forever
discharge, and covenant not to xxx, either of the K-1 Directors from any and all
past, present and future claims, demands, actions, causes of action and
liability of every kind or nature whatsoever whether known or unknown, whether
or not previously asserted, even though unexpected, arising from or in any way
related to Seller's purchase and ownership of the Preference Stock and Warrants
and the service of K-1 Director on Purchaser's Board of Directors; provided,
however, that such release shall not extend beyond any limitations imposed by
law.
12. Public Announcements. It is acknowledged by the Parties that Purchaser
will be required to make a public announcement and SEC filing with respect to
this Agreement. The timing and content of this announcement and filing, as well
as any other public announcement by either Party regarding this Agreement, shall
be mutually agreed upon in advance (unless Purchaser is advised by counsel that
any such announcement or other disclosure not mutually agreed upon in advance is
required to be made by law or applicable rule of the New York Stock Exchange,
and then only after consulting with the other party and making reasonable
efforts to comply with the provisions of this Section).
13. Non-Disparagement. Each Party hereto agrees that it will not (and will
not permit any of its directors, officers, agents, representatives, advisors or
spokespersons to) disparage or publish or otherwise publicly disseminate any
disparaging or derogatory statements (irrespective of any basis in truth)
concerning or referring to the other Party's business, operations, financial
position, prospects, management, directors, officers or employees, or the
conduct of any persons acting in any such capacity. The Parties agree that this
provision shall survive the Closing for a period of two (2) years thereafter.
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14. Notices.
(a) All notices, consents, requests and other communications
hereunder shall be in writing and shall be sent by hand delivery, by certified
or registered mail (return-receipt requested), by a recognized national
overnight courier service or facsimile, as set forth below:
If to Purchaser: SEMCO Energy, Inc.
0000 Xxxx Xxx Xxxxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to Xxxxxxxx Xxxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
If to Seller: K-1 USA Ventures, Inc.
0000 X. Xxxxxxxx Xx.
Xxxxx 0000
Xxxxxxx Xxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: 000-000-0000
with a copy to Akerman Senterfitt
Xxx Xxxxxxxxx Xxxxx Xxxxxx
00xx Xxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
(b) Notices delivered pursuant to Section 14 shall be deemed given:
(i) on the date delivered, if personally delivered or sent via facsimile (with
confirmation of transmission by the transmitting equipment); (ii) at the time
received, if mailed; and (iii) two (2) business days after timely delivery to
the courier, if by nationally recognized overnight courier service. Any party
hereto may change the address to which notice is to be sent by written notice to
the other party in accordance with this Section 14.
15. Miscellaneous.
(a) Entire Agreement - This Agreement contains the entire agreement
and understanding concerning the subject matter hereof between the Parties
hereto and
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may not be modified or amended except by a writing executed by both Parties
hereto.
(b) Governing Law; Waiver of Jury Trial - This Agreement shall be
governed by and construed in accordance with the laws of the State of Michigan.
Each of the Parties to this Agreement hereby waives any right to a trial by jury
in connection with any litigation arising out of, under or in connection with
this Agreement or any transactions contemplated thereby.
(c) Binding Agreement - This Agreement shall be binding upon and
shall inure to the benefit of the Parties hereto and their respective heirs,
representatives, successors and permitted assigns.
(d) Further Assurances - Upon the reasonable request of the other
Party hereto, each Party agrees to take any and all actions, including, without
limitation, the execution of certificates, documents or instruments, necessary
or appropriate to give effect to the terms and conditions set forth in this
Agreement. The Parties agree that this provision shall survive the Closing for a
period of two (2) years thereafter.
(e) Severability - If any provision of this Agreement shall be held
void, voidable, invalid or inoperative, no other provision of this Agreement
shall be affected as a result thereof, and, accordingly, the remaining
provisions of this Agreement shall remain in full force and effect as though
such void, voidable, invalid or inoperative provision had not been contained
herein.
(f) Counterparts - This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute the same Agreement. Any signature page of any such
counterpart, or any electronic facsimile thereof, may be attached or appended to
any other counterpart to complete a fully executed counterpart of this
Agreement, and any telecopy or other facsimile transmission of any signature
shall be deemed an original and shall bind such party.
(g) Specific Performance and Other Remedies - The Parties each
acknowledge that the rights of each Party to consummate the transactions
contemplated by this Agreement are special, unique and of extraordinary
character and that, in the event that any Party violates or fails or refuses to
perform any covenant or agreement made by it in this Agreement, the
non-breaching Party may be without an adequate remedy at law. The Parties agree,
therefore, that in the event that any Party violates or fails or refuses to
perform any covenant or agreement made by such Party in this Agreement, the
non-breaching Party may, subject to the terms of this Agreement and in addition
to any remedies at law for damages or other relief, institute and prosecute an
action in any court of competent jurisdiction to enforce specific performance of
such covenant or agreement or seek any other injunctive or equitable relief. The
Parties agree that this provision shall survive the Closing for a period of two
(2) years thereafter.
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(h) Waiver of Optional Approval Redemption - Purchaser hereby waives
forever its right to conduct an Optional Approval Redemption under Section 11 of
the Certificate of Designation, provided, however, that all other rights and
obligations under Section 11 of the Certificate of Designation shall remain
intact, provided, further, that the foregoing waiver shall be null and void, ab
initio, in the event this Agreement is terminated due to a breach of this
Agreement by Seller.
(i) Indemnity - (i) Purchaser shall indemnify and hold harmless
Seller and its officers, directors, employees, agents, shareholders and
representatives (collectively, the "Seller Indemnified Parties") from and
against any and all claims, damages, judgments, actions, suits, proceedings,
penalties, fines, costs and expenses (including reasonable attorneys' fees and
costs of suit), that the Seller Indemnified Parties, or any of them, may incur
relating to, resulting from or arising out of a breach of this Agreement by
Purchaser. Seller shall indemnify and hold harmless Purchaser and its officers,
directors, employees, agents, shareholders and representatives (collectively,
the "Purchaser Indemnified Parties") from and against any and all claims,
damages, judgments, actions, suits, proceedings, penalties, fines, costs and
expenses (including reasonable attorneys' fees and costs of suit), that the
Purchaser Indemnified Parties, or any of them, may incur relating to, resulting
from or arising out of a breach of this Agreement by Seller. The Parties agree
that this provision shall survive the Closing for a period of three (3) years
thereafter.
(ii) Purchaser agrees to indemnify and hold harmless Seller
(and its respective directors, officers, affiliates, agents, successors and
assigns) from and against any and all losses, liabilities, deficiencies, costs,
damages and expenses (including, without limitation, reasonable attorneys' fees,
charges and disbursements) incurred by Seller (or its respective directors,
officers, affiliates, agents, successors and assigns) as a result of actions
taken by Seller at the request of the Company pursuant to the provisions of
Section 6 of this Agreement.
(j) Survival Upon Termination - The Parties agree that the following
provisions shall survive the termination of this Agreement: Sections 9(d),
15(g), 15(h), 15(i) and 15(k), provided, however, that Section 9(d) shall only
survive a termination of this Agreement that is due to a breach of this
Agreement by the Purchaser.
(k) Attorneys' Fees - The non-prevailing Party in any action or
proceeding shall immediately pay the prevailing Party's attorneys' fees and
costs incurred in connection with any dispute hereunder, or in enforcing this
Agreement or any agreement or instrument executed in connection herewith.
(l) Legal Opinion - Purchaser shall cause its legal counsel to
deliver an opinion dated as of the date of Closing with respect to the matters
set forth on Exhibit B hereto.
[signatures follow on next page]
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IN WITNESS WHEREOF, the Parties have executed this Repurchase Agreement to
be effective as of the day and year first above written.
"SELLER" or "K-1"
K-1 GHM, LLLP
/s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
By: K-1 Ventures Michigan, Inc.,
its general partner
"PURCHASER" or "COMPANY"
SEMCO Energy, Inc.
/s/ Xxxxxx X. Xxxxxxxxx, Xx.
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx, Xx.
Title: President and Chief Executive Officer
The undersigned, the parent company of K-1 GHM, LLLP, hereby guarantees
the performance of K-1 GHM, LLLP with respect to Section 10 of this Repurchase
Agreement, effective as of the day and year first above written.
k1 Ventures Limited
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Operating Officer
