UNITED STATES
SECURITIES AND EXCHANGE COMMISSION OMB APPROVAL
WASHINGTON, D.C. 20549 ------------
OMB Number: 3235-0145
SCHEDULE 13D Expires: October 31, 1994
Estimated average burden
UNDER THE SECURITIES EXCHANGE ACT OF 1934 hours per response..14.90
(AMENDMENT NO. 1)*
Compania Boliviana de Energia Electrica S.A. -- Bolivian Power Company Limited
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(Name of Issuer)
Common Stock
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(Title of Class Securities)
204425 10 2
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(CUSIP Number)
Dennis W. Alexander, Esq.,
9405 Arrowpoint Boulevard
Charlotte, North Carolina 28273-8110
(704) 525-3800
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(Name, Address and Telephone Number of Person Authorized to Receive Notices
and Communications)
November 14, 1996
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13D to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the following
box / /.
Check the following box if a fee is being paid with this statement / /. (A
fee is not required only if the filing person: (1) has a previous statement
on file reporting beneficial ownership of more than five percent of the class
of securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such
class.) (See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter the disclosures provided in a prior cover page.
The information required in the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
The Schedule 13D filed November 4, 1994 (the "Schedule 13D"), relating
to the Common Stock (the "Common Stock") of Compania Boliviana de Energia
Electrica, S.A. - Bolivian Power Company Limited, a Nova Scotia, Canada
corporation (the "Issuer"), filed on behalf of Liberty Power/Cogentrix
Bolivia, Inc., a Delaware corporation, is hereby amended by this Amendment
No. 1 as follows:
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby supplemented by the addition of the following:
On November 14, 1996, NRGenerating Holdings (No. 9) B.V. ("Holdings"),
Liberty Power/Cogentrix Bolivia, Inc. (the "Stockholder") and Sean P. Lane,
Peter J. Fagan and Lawrence S. Coben (the "Optionholders") entered into a
stockholders agreement (referred to herein as the "Stockholders Agreement"),
pursuant to which the Stockholder and the Optionholders agreed to tender and
not withdraw all of their respective shares of Common Stock (which will
represent an aggregate of approximately 17.1% of the Company's outstanding
Common Stock) following the commencement by Holdings of a cash tender
offer to purchase all outstanding shares of Common Stock of the Issuer
pursuant to a purchase agreement dated as of November 13, 1996 (the
"Purchase Agreement") between Holdings and the Issuer. The Stockholders
Agreement provides that if the Issuer receives an alternative proposal and a
specified minimum number of shares of Common Stock has not been tendered,
then the Stockholder and the Optionholders will have no obligation to tender
and not withdraw their shares of Common Stock to Holdings, unless Holdings
amends its tender offer to increase the per share price to an amount not
less than the amount contained in such alternative tender offer proposal.
Pending consummation of the tender offer, the Stockholder and Optionholders
are required to vote their respective shares of Common Stock against (i) any
action resulting in a breach of an obligation of the Issuer under the
Stockholders Agreement or the Purchase Agreement, (ii) any extraordinary
corporate transaction (such as a merger, consolidation or other business
combination), (iii) any transfer of a material amount of assets, (iv) any
reorganization, recapitalization, dissolution or liquidation, (v) any change
in a majority of the members of the Board of Directors, (vi) any change in
the capitalization or amendment to the memorandum or articles of
association, (vii) any other material change in the Company's corporate
structure or business, or (viii) any other action that could reasonably be
expected to impede, interfere with, delay, postpone or adversely affect the
tender offer by Holdings and other transactions contemplated by the
Stockholders Agreement or the Purchase Agreement.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
See response to Item 4 hereof.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 is hereby supplemented by the addition of the following:
(2) Stockholders Agreement, dated November 14, 1996, among NRGenerating
Holdings (No. 9) B.V., Liberty Power/Cogentrix Bolivia, Inc., Sean P. Lane,
Peter J. Fagan and Lawrence S. Coben.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete
and correct.
Date: November 14, 1996
COGENTRIX ENERGY, INC.
LIBERTY POWER/COGENTRIX
BOLIVIA, INC.
/s/Dennis W. Alexander
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Dennis W. Alexander
Group Senior Vice President,
General Counsel and
Secretary/*/
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* Acting on behalf of each of
Cogentrix Energy, Inc. and
Liberty Power/Cogentrix
Bolivia, Inc.
STOCKHOLDERS AGREEMENT
AGREEMENT, dated November 14, 1996, among NRGenerating Holdings (No.
9) B.V., a Netherlands corporation ("Holdings"), Liberty Power/Cogentrix
Bolivia, Inc., a Delaware corporation (the "Stockholder") and the other
parties signatory hereto (each an "Optionholder", and collectively, the
"Optionholders").
W I T N E S S E T H :
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WHEREAS, concurrently herewith, Holdings and Compania Boliviana de
Energia Electrica S.A. - Bolivian Power Company Limited, a Nova Scotia
corporation (the "Company"), are entering into a Purchase Agreement (as such
agreement may hereafter be amended from time to time, the "Purchase
Agreement"; capitalized terms used and not defined herein have the respective
meanings ascribed to them in the Purchase Agreement);
WHEREAS, Holdings and the Company have agreed that as soon as
practicable (and not later than five business days) after the first public
announcement of the execution and delivery of the Purchase Agreement,
Holdings will commence a cash tender offer to purchase all outstanding shares
of Company Common Stock (as defined in Section 1), including all of the
Shares (as defined in Section 2) Beneficially Owned (as defined in Section 1)
by the Stockholder and the Optionholders; and
WHEREAS, as an inducement and a condition to entering into the
Purchase Agreement, Holdings has required that the Stockholder and the
Optionholders agree, and the Stockholder and the Optionholders have agreed,
to enter into this Agreement; and
WHEREAS, pursuant to a Memorandum of Agreement, dated September 29,
1994, as amended as of October 27, 1994, by and among the Stockholder and the
Optionholders (the "Memorandum"), the Stockholder granted each Optionholder
an option to acquire certain Existing Shares (as defined in Section 2), which
options would vest and become exercisable in accordance with their terms if
the Offer is consummated;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), including pursuant to any agreement,
arrangement or understanding, whether or not in writing. Without duplicative
counting of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all other
Persons with whom such Person would constitute a "group" as within the
meaning of Section 13(d)(3) of the Exchange Act.
(b) "Company Common Stock" shall mean at any time the common stock,
without par value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
2. Tender of Shares.
(a) Each of the Stockholder and the Optionholders hereby agrees to
validly tender (and not to withdraw) pursuant to and in accordance with the
terms of the Offer, not later than the fifth business day after commencement
of the Offer pursuant to Section 1.1 of the Purchase Agreement and Rule 14d-2
under the Exchange Act, the number of shares of Company Common Stock set
forth opposite such Stockholder's name on Schedule I hereto (the "Existing
Shares"); as well as any shares of Company Common Stock acquired by the
Stockholder or any such Optionholder after the date hereof and prior to the
termination of this Agreement, whether upon the exercise of options, warrants
or rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution or otherwise
(collectively with the Existing Shares, the "Shares"); provided, however,
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that with respect to any Shares the tender of which would result in liability
under Section 16(b) of the Exchange Act, such tender need not take place until
such tender may be made without liability under Section 16(b) of the Exchange
Act. Each of the Stockholder and the Optionholders hereby acknowledges and
agrees that Holdings' obligation to accept for payment and pay for Shares in
the Offer is subject to the terms and conditions of the Offer. Holdings hereby
acknowledges and agrees that the Offer will be conducted in compliance with
all applicable requirements of the Exchange Act and the rules and regulations
thereunder.
(b) Notwithstanding anything to the contrary contained in this
Agreement, in the event that (x) an Alternative Proposal has been received by
the Company on or prior to the initial expiration date of the Offer (the
"Expiration Date") and (y) there shall not have been tendered and not
withdrawn pursuant to the Offer, as certified to the Stockholder and the
Optionholders by the depositary retained by Holdings to receive shares
tendered pursuant to the Offer, such number of shares as would, when coupled
with the Stockholder's and the Optionholders' Shares, satisfy the Minimum
Condition on the Expiration Date, then the respective obligations of the
Stockholder and the Optionholders to tender and not withdraw Shares pursuant
to this Section 2 shall be of no further force and effect unless, on or prior
to the Expiration Date, Holdings shall have amended the Offer to increase the
per share price payable to the Company's shareholders to an amount not less
than that contained in the Alternative Proposal. In the event that the Offer
is extended in accordance with the terms of the Purchase Agreement and during
the period of any such extension an Alternative Proposal is received by the
Company, then the provisions of this Section 2(b) shall apply during any such
period and the term "Expiration Date" shall, for purposes of this sentence,
mean the date on which such extension of the Offer is scheduled to expire.
(c) Each of the Stockholder and the Optionholder hereby agrees to
permit Holdings to publish and disclose in the Offer Documents his or its
identity and ownership of Company Common Stock and the nature of his or its
commitments under this Agreement.
3. Provisions Concerning Company Common Stock. Each of the
Stockholder and Optionholders hereby agrees that during the period commencing
on the date hereof and continuing until the first to occur of the Control
Date or termination of the Purchase Agreement in accordance with its terms,
at any meeting of the holders of Company Common Stock, however called, or in
connection with any written consent of the holders of Company Common Stock,
such Stockholder or Optionholder shall vote (or cause to be voted) the Shares
held of record or Beneficially Owned by such Stockholder or Optionholder,
whether now owned or hereafter acquired, (i) against any action or agreement
that would result in a breach in any respect of any covenant, representation
or warranty or any other obligation or agreement of the Company under the
Purchase Agreement or this Agreement (before giving effect to any materiality
or similar qualifications contained therein); and (ii) except as otherwise
agreed to in writing in advance by Holdings, against the following actions
(other than the transactions contemplated by the Purchase Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or its subsidiaries; (B) a sale,
lease or transfer of a material amount of assets of the Company or its
subsidiaries, or a reorganization, recapitalization, dissolution or liquidation
of the Company or its subsidiaries; (C) (1) any change in a majority of the
persons who constitute the Board of Directors of the Company; (2) any change
in the present capitalization of the Company or any amendment of the Company's
Memorandum or Articles of Association; (3) any other material change in the
Company's corporate structure or business; or (4) any other action involving
the Company or its subsidiaries which is intended, or could reasonably be
expected, to impede, interfere with, delay, postpone, or materially adversely
affect the Offer and other transactions contemplated by this Agreement and
the Purchase Agreement. The Stockholder and such Optionholder shall not
enter into any agreement or understanding with any person or entity the
effect of which would be inconsistent or violative of the provisions and
agreements contained in this Section 3.
4. Other Covenants, Representations and Warranties. Each of the
Stockholder and Optionholders severally and not jointly hereby represents and
warrants to Holdings as follows:
(a) Ownership of Shares. The Stockholder or such Optionholder, as
the case may be, is either (i) the record and Beneficial Owner of, or (ii)
the Beneficial Owner but not the record holder of, the number of Shares set
forth opposite the Stockholder's or such Optionholder's name on Schedule I
hereto. On the date hereof, the Existing Shares set forth opposite the
Stockholder's or such Optionholders' name on Schedule I hereto constitute all
of the shares or securities issued by the Company owned of record or
Beneficially Owned by the Stockholder or such Optionholder, as the case may
be. Except as may be otherwise provided in the Memorandum, the Stockholder
and such Optionholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Sections 2 and 3
hereof, sole power of disposition, sole power of conversion, sole power to
demand appraisal rights and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of the Existing
Shares set forth opposite the Stockholder's or such Optionholder's name on
Schedule I hereto, with no limitations, qualifications or restrictions on
such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) Power; Binding Agreement. The Stockholder or such Optionholder,
as the case may be, has the legal capacity, power and authority to enter into
and perform all of such Stockholder's or such Optionholder's obligations
under this Agreement. Except as may be otherwise provided in the Memorandum,
the execution, delivery and performance of this Agreement by the Stockholder
or such Optionholder, as the case may be, will not violate any other
agreement to which the Stockholder or such Optionholder is a party including,
without limitation, any voting agreement, shareholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
the Stockholder or such Optionholder, as the case may be, and constitutes a
valid and binding agreement of the Stockholder or such Optionholder, as the
case may be, enforceable against the Stockholder or such Optionholder, as the
case may be, in accordance with its terms, except as such enforceability may
be limited by (A) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights generally and (B) general principles of equity
regardless of whether enforceability is considered in a proceeding at law or
in equity. Except as may be otherwise provided in the Memorandum, there is
no beneficiary or holder of a voting trust certificate or other interest of
any trust of which the Stockholder or any such Optionholder is Trustee whose
consent is required for the execution and delivery of this Agreement or the
consummation by the Stockholder or such Optionholder, as the case may be, of
the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, (A) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority or any other
Person is necessary for the execution of this Agreement by the Stockholder or
such Optionholder, as the case may be, and the consummation by the
Stockholder or such Optionholder, as the case may be, of the transactions
contemplated hereby and (B) none of the execution and delivery of this
Agreement by the Stockholder or any such Optionholder, the consummation by
the Stockholder or any such Optionholder of the transactions contemplated
hereby or compliance by the Stockholder or any such Optionholder with any of
the provisions hereof shall (1) conflict with or result in any breach
of any organizational documents applicable to the Stockholder, (2) result
in a violation or breach of, or constitute (with or without notice or lapse
of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, commitment, arrangement, understanding, agreement or
other instrument or obligation of any kind to which the Stockholder or any
such Optionholder is a party or by which the Stockholder or any such
Optionholder or any of the Stockholder's or any such Optionholder's
properties or assets may be bound, or (3) violate any order, writ,
injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any such Optionholder or any of such
Stockholder's or any such Optionholder's properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 2 hereof and as may arise under the
Memorandum, the Stockholder's Shares and each such Optionholder's Shares and
the certificates representing such Shares are now, and at all times during
the term hereof will be, held by the Stockholder or any such Optionholder, or
by a nominee or custodian for the benefit of the Stockholder or any such
Optionholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances arising
hereunder or under the Memorandum. The transfer by the Stockholder or any
such Optionholder of his or its Shares to Holdings in the Offer shall pass to
and unconditionally vest in Holdings good and valid title to the number of
Shares set forth opposite the Stockholder's or such Optionholder's name on
Schedule I hereto, free and clear of all claims, liens, restrictions,
security interests, pledges, limitations and encumbrances whatsoever, except
for those created by any action or inaction of Holdings.
(e) No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements entered into by the Company,
no broker, investment banker, financial adviser or other person is entitled
to any broker's, finder's, financial adviser's or other similar fee or
commission in connection with the transactions contemplated hereby based upon
arrangements made by or on behalf of the Stockholder or any such
Optionholder.
(f) No Solicitation. Neither the Stockholder nor any Optionholder
shall, in his or its capacity as such, directly or indirectly, solicit
(including by way of furnishing information) or respond to the making of any
proposal by any person or entity (other than Holdings or any affiliate of
Holdings) with respect to his or its Shares or with respect to the Company
that constitutes an Alternative Proposal, except that any officer or director
of the Stockholder or its affiliates may take actions in his capacity as an
officer or director of the Company or its affiliates, as the case may be, to
the extent permitted by the Purchase Agreement. The Stockholder and each
Optionholder will immediately cease and cause to be terminated any existing
activities, discussions or negotiations with any parties conducted heretofore
with respect to any of the foregoing.
(g) Restriction on Transfer, Proxies and Non-Interference. Except
as applicable in connection with the transactions contemplated by Section 2
hereof, neither the Stockholder nor any Optionholder shall (i) directly or
indirectly, offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other
arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, any or all of the Stockholder's or any Optionholder's Shares
or any interest therein other than arrangements among the Stockholder and the
Optionholders, in accordance with the Memorandum to facilitate the
transactions contemplated by Section 2 hereof; (ii) except as contemplated by
this Agreement, grant any proxies or powers of attorney, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any
Shares; or (iii) take any action that would make any representation or
warranty of the Stockholder or any such Optionholder contained herein untrue
or incorrect in any material respect or have the effect of preventing or
disabling the Stockholder or any such Optionholder from performing the
Stockholder's or any such Optionholder's obligations under this Agreement.
(h) Reliance by Holdings. Each of the Stockholder and Optionholders
understands and acknowledges that Holdings is entering into the Purchase
Agreement in reliance upon the Stockholder's and such Optionholder's
execution and delivery of this Agreement.
(i) Further Assurances. From time to time, at the other party's
reasonable request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further
lawful action as may be necessary or desirable to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
(j) Rights Under Memorandum. Notwithstanding anything herein to the
contrary, each of the Stockholder and the Optionholders agrees with Holdings
that neither the Stockholder nor any such Optionholder shall, with respect to
the Shares, exercise any rights available to it pursuant to the Memorandum,
including, without limitation, rights of first refusal and/or call rights, on
or after the Control Date. Further, each of the Stockholder and
Optionholders agrees with Holdings that nothing contained in the Memorandum
shall prevent, limit or constrain in any manner the performance by such
Stockholder and Optionholders of its or their respective obligations
hereunder prior to the Control Date, and any provision of the Memorandum
which could prevent, limit or constrain in any manner such performance, to
the extent required to facilitate such performance, is hereby waived.
5. Stop Transfer; Changes in Shares. Each of the Stockholder and
Optionholders agrees with, and covenants to, Holdings that the Stockholder or
such Optionholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's or such Optionholder's Shares other
than arrangements among the Stockholder and the Optionholders, in accordance
with the Memorandum to facilitate the transactions contemplated by Section 2
hereof, unless such transfer is made in compliance with this Agreement
(including the provisions of Section 2 hereof). In the event of a stock
dividend or distribution, or any change in the Company Common Shares by
reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions
and any shares into which or for which any or all of the Shares may be
changed or exchanged.
6. Termination. Except as otherwise provided herein, the covenants
and agreements contained herein with respect to the Shares shall terminate
upon the earliest of (w) the purchase of Shares pursuant to the Offer, (x)
the termination of the Offer, (y) the termination of the Purchase Agreement
and (z) the exercise by the Stockholder and the Optionholders of their rights
to withdraw their Shares pursuant to Section 2(b) hereof.
7. Stockholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director.
8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Purchase Agreement
constitute the entire agreement between the parties with respect to the
subject matter hereof and supersede all other prior agreements and
understandings, both written and oral, between the parties with respect to
the subject matter hereof.
(b) Certain Events. Each of the Stockholder and Optionholders
agrees that this Agreement and the obligations hereunder shall attach to the
Stockholder's or such Optionholder's Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Shares shall
pass, whether by operation of law or otherwise, including, without
limitation, the Stockholder's or such Optionholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under
this Agreement of the transferor.
(c) Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto without the prior
written consent of the other parties hereto and any attempt to do so will be
void, except that Holdings may assign any or all of its rights, interests and
obligations hereunder, including the right to cause the Shares to be validly
tendered (and not withdrawn) pursuant to Offer, to any affiliate of Holdings
or any group of which Holdings or any affiliate of Holdings is a member,
provided that (i) such affiliate or each member of such group agrees in
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writing to be bound by all terms, conditions and provisions contained herein
to the extent assigned to such affiliate or member, (ii) and no such
assignment shall be made if it would materially delay or impede the
transactions contemplated hereby (it being expressly understood that any
assignment will not be deemed to materially delay or impede the
transactions contemplated hereby if such assignment does not result in a
delay beyond the day that is 15 business days after the scheduled
expiration date of the Offer) and (iii) Holdings shall remain responsible
for causing such affiliate and each member of such group to perform all of
such subsidiary's or such member's obligations hereunder. Subject to the
preceding sentence, this Agreement is binding upon, inures to the benefit
of and is enforceable by the parties hereto and their respective successors
and assigns.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with
respect to any one or more of the Stockholder or the Optionholders, except
upon the execution and delivery of a written agreement executed by Holdings
and the Stockholder or such Optionholder; provided that Schedule I hereto may
be supplemented by Holdings by adding the name and other relevant information
concerning any shareholder of the Company who agrees to be bound by the terms
of this Agreement without the agreement of any other party hereto, and
thereafter such added shareholder shall be treated as a "Stockholder" for all
purposes of this Agreement.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram,
telex or telecopy, or by mail (registered or certified mail, postage prepaid,
return receipt requested) or by any courier service, such as Federal Express,
providing proof of delivery. All communications hereunder shall be delivered
to the respective parties at the following addresses
If to Stockholder: Liberty Power/Cogentrix Bolivia, Inc.
1105 North Market Street
Suite 1108
Wilmington, DE 19801
Attn: Dennis W. Alexander
Facsimile No.:
copy to: Brown & Wood LLP
One World Trade Center
New York, NY 11048-0557
Attn: Robert J. Donatucci
Facsimile No.: 212-839-5599
If to Optionholders: Lawrence S. Coben
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
Peter J. Fagan
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
Sean P. Lane
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
copy to: LeBoeuf, Lamb, Greene & MacRae L.L.P.
6 Central Row
Hartford, CT 06103
Attention: Thomas L. Fairfield
Facsimile No.: 860-293-3555
If to Holdings: NRGenerating Holdings (No. 9) B.V.
c/o NRG Energy, Inc.
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403
Attn: William Melvin
Facsimile No.: 612-373-5496
copy to: Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
Attn: Bernard Kury, Esq.
Or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of
any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of
any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and
this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it
would not have an adequate remedy at law for money damages, and therefore
each of the parties hereto agrees that in the event of any such breach
the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled,
at law or in equity.
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or practice
of the parties at variance with the terms hereof, shall not constitute a
waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity
who or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York, without giving effect
to the principles of conflicts of law thereof.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same Agreement.
IN WITNESS WHEREOF, NRGenerating Holdings (No. 9) B.V. and each of
the Stockholder and the Optionholders have caused this Agreement to be duly
executed as of the day and year first above written.
NRGENERATING HOLDINGS (NO. 9) B.V.
By: s/ Robert McClenachan
-----------------------------------
Name: Robert McClenachan
Title: Director
LIBERTY POWER/COGENTRIX BOLIVIA, INC.
By: s/ Bruce C. McMillan
------------------------------------
Name: Bruce C. McMillan
Title: President
s/ Sean P. Lane
----------------------------------------
Sean P. Lane
s/ Peter J. Fagan
----------------------------------------
Peter J. Fagan
s/ Lawrence S. Coben
-----------------------------------------
Lawrence S. Coben
<TABLE>
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
------------------
<CAPTION>
Name and Address of Number of Shares Percentage of Out-standing Common
Stockholder and Optionholders Beneficially Owned Stock (to nearest hundredth)(c)
- ----------------------------- ------------------ ---------------------------------
<S> <C> <C>
Stockholder 16.69%
- -----------
Liberty Power/Cogentrix Bolivia, Inc. 719,207(a)
1105 North Market Street
Suite 1108
Wilmington, Delaware 19801
Optionholders 3.69%
- -------------
Lawrence S. Cohen 158,841(b)
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Peter J. Fagan 158,841(b) 3.69%
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Sean P. Lane 158,841(b) 3.69%
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
</TABLE>
______________________________
(a) Includes an aggregate of 431,523 shares which may be acquired by the
Optionholders from the Stockholder pursuant to the Memorandum and 3
directors' qualifying shares.
(b) Includes 143,841 shares which may be acquired by such Optionholder
from the Stockholder pursuant to the Memorandum and 15,000 shares
which may be acquired by such Optionholder upon exercise of options
under the Company's stock option plan.
(c) Assuming the exercise in full of an aggregate of 107,760 options
outstanding under the Company's stock option plan.
