AGREEMENT
FOR
PURCHASE AND SALE OF STOCK
OF
WISCONSIN RIVER POWER COMPANY,
A WISCONSIN CORPORATION
(THE "COMPANY"),
BETWEEN
WISCONSIN PUBLIC SERVICE CORPORATION
A WISCONSIN CORPORATION
("BUYER"),
AND
CONSOLIDATED WATER POWER COMPANY,
A WISCONSIN CORPORATION
("SELLER")
AUGUST 24, 2000
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AGREEMENT
FOR
PURCHASE AND SALE OF STOCK
THIS AGREEMENT (the "AGREEMENT") is made and entered into as of the
24th day of August, 2000, by and between Consolidated Water Power Company, a
Wisconsin corporation ("SELLER"), and Wisconsin Public Service Corporation, a
Wisconsin corporation ("BUYER").
WHEREAS, Wisconsin River Power Company, a Wisconsin corporation (the
"COMPANY"), is primarily engaged in the generation and sale of electric power
(the "BUSINESS");
WHERAS, Buyer and Seller each own approximately one-third of the
outstanding capital stock of the Company;
WHEREAS, Seller is the record and beneficial owner of 31,600 shares of
the issued and outstanding capital stock of the Company (the "STOCK"); and
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, all, but not less than all, of the Stock on the terms and,
conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and promises herein
contained, the parties agree as set forth below.
ARTICLE I
THE TRANSACTION
1.1. PURCHASE AND SALE OF STOCK. At the Closing, Seller shall sell,
transfer, assign and deliver to Buyer, and Buyer shall purchase, accept, assume
and receive, all right, title and interest in and to the Stock, free and clear
of any liens, encumbrances, pledges, restrictive agreements, claims or
imperfections of any nature whatsoever. The aggregate purchase price for the
Stock (the "PURCHASE PRICE") shall be determined as follows:
(a) A portion of the Purchase Price shall be payable in cash
at Closing. This payment shall be equal to the net book value of the
Stock as of August 31, 2000, determined in accordance with the
customary accounting practices of the Company. Not later than five days
prior to the Closing, Seller will deliver to Buyer a closing balance
sheet (the "Closing Balance Sheet") showing the calculation of the net
book value of the Stock as of August 31, 2000 in reasonable detail for
Buyer's review.
(b) An additional portion of the Purchase Price shall be
payable over a period of twelve years from the date of the Closing (the
"Real Estate Sale Period"). These payments will be made to Seller
thirty days after the close of each calendar quarter in an amount equal
<PAGE>
to 33.76% of the Net Proceeds Realized (as defined hereinafter) by the
Company in respect of sales of real estate and wood products during the
Real Estate Sale Period. The payment will be accompanied by a written
report describing sales efforts in the prior quarter in reasonable
detail and forecasting sales for the next succeeding four calendar
quarters. Each payment shall be accompanied by a statement describing
sales closed during the quarter and a calculation of the payment due to
Seller in reasonable detail. Buyer and Seller agree that during the
Real Estate Sale Period, Buyer shall cause the Company to accelerate
sales of real estate by undertaking commercially reasonable efforts to
sell real estate owned by the Company as soon as practicable and to
maximize the Company's returns from the sale of wood products from all
real estate owned by the Company. Sales of real estate and wood
products may be made to any party, including Buyer and Seller. For
purposes of this section, the term "Net Proceeds Realized" shall mean
the gross proceeds realized by the Company in respect of sales of real
estate and wood products during the Real Estate Sale Period less (1)
the net book value of the real estate and wood products sold as of
August 31, 2000, (2) any taxes, fees or other charges paid by the
Company as a result of the sale of such real estate and wood products,
(3) any taxes paid by the Buyer (or its successor and assigns) on the
distribution of the proceeds from the sale of such real estate and wood
products from the Company to the Buyer, (assuming, for purposes of this
calculation, that the proceeds are distributed in the same year in
which such sales occur), (4) any carrying costs attributable to the
real estate and wood products, and (5) any transactional costs directly
relating to the sale of such real estate and wood products.
1.2. CLOSING. The transfer of Stock contemplated by this Agreement (the
"CLOSING"), subject to FERC approval, shall occur at the offices of the Seller,
610 High Street, Wisconsin Rapids, Wisconsin, three business days following
satisfaction of or waiver by Buyer of the conditions precedent to Closing listed
in Article VI and satisfaction of or waiver by Seller of the conditions
precedent to Closing listed in Article VII or at such other time or place as may
be mutually agreed upon by the parties (the "CLOSING DATE"). Upon consummation,
the Closing shall be deemed to take place as of the opening of business on the
Closing Date.
1.3. DELIVERIES BY BUYER. At the Closing, the Buyer shall deliver the
following:
(a) A wire transfer of the portion of the Purchase Price
payable at Closing.
(b) Certificate of the Secretary of the Buyer as to the
resolutions authorizing the transactions contemplated hereby;
(c) Certificate signed by an officer of the Buyer certifying
as to the accuracy of Buyer's representations and warranties as of the
Closing Date and the due performance of all covenants of Buyer
contained in this Agreement;
(d) Termination of the Stockholder Agreement among Buyer,
Seller and Wisconsin Power and Light Company as to the Seller;
(e) An executed copy of the Interim Services Agreement in
substantially the form attached hereto as Exhibit A (the "SERVICES
AGREEMENT");
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(f) An executed agreement extending, as to the Seller, the
Amended and Restated Power Purchase Contract made as of September 1,
1985 by and among Seller, Buyer and Wisconsin Power and Light Company
(the "Power Contract") for a period of twelve years from the date of
Closing and providing for Seller's continued enjoyment during that
period of the benefits (subject to Seller's continued obligations) now
provided by the Power Contract and including (i) appropriate re-opener
language in the event electric market deregulation occurs during such
extension period and (ii) Seller's agreement that it will accept
increases in the cost structure under the Power Contract arising out of
relicensing activities currently underway so long as Seller has the
opportunity to intervene with respect to relicensing issues which would
result in the increase;
(g) An executed copy of the Timber Management Agreement in
substantially the form attached hereto as Exhibit B (the "Timber
Management Agreement"); and
(h) Such other instruments or documents as may be necessary or
appropriate to carry out the transactions contemplated hereby.
1.4. DELIVERIES BY SELLER. At the Closing, Seller shall, or shall cause
the Company to, deliver the following:
(a) Certificates, with fully executed stock powers evidencing
the Stock;
(b) Certificate of the Secretary of the Company certifying as
to the resolutions of the directors of Seller authorizing the
transactions contemplated hereby;
(c) Certificate signed by an officer of Seller certifying as
to the accuracy of Seller's representations and warranties as of the
Closing Date and the due performance of all covenants of Seller
contained in this Agreement;
(d) Certificate of Status for the Company, certified as of a
recent date by the Wisconsin Department of Financial Institutions;
(e) An executed copy of the Services Agreement;
(f) An executed agreement extending, as to the Seller, the
Amended and Restated Power Purchase Contract made as of September 1,
1985 by and among Seller, Buyer and Wisconsin Power and Light Company
(the "Power Contract") for a period of twelve years from the date of
Closing and providing for Seller's continued enjoyment during that
period of the benefits (subject to Seller's continued obligations) now
provided by the Power Contract and including (i) appropriate re-opener
language in the event electric market deregulation occurs during such
extension period and (ii) Seller's agreement that it will accept
increases in the cost structure under the Power Contract arising out of
relicensing activities currently underway so long as Seller has the
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opportunity to intervene with respect to relicensing issues which would
result in the increase;
(g) An executed copy of the Timber Management Agreement; and
(h) Such other endorsements, instruments or documents as may
be necessary or appropriate to carry out the transactions contemplated
hereby.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
THE SELLER
Seller hereby represents and warrants to Buyer that each of the
statements contained in this Article II is accurate, correct and complete as of
the date hereof and as of the Closing Date.
2.1. CORPORATE EXISTENCE AND POWER. The Company is a corporation
validly existing and in good standing under the laws of the State of Wisconsin,
and has all corporate powers required to carry on its business as now conducted.
2.2. CORPORATE AUTHORIZATION. The execution, delivery and performance
by the Seller of this Agreement and the consummation by the Seller of the
transactions contemplated hereby are within the Seller 's corporate powers and
have been duly authorized by all necessary corporate action.
2.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by the Seller of this Agreement and the consummation by the Seller
of the transactions contemplated hereby require no action by or in respect of,
or filing with, any governmental entity, other than as set forth on Schedule 2.3
hereto.
2.4. NO CONFLICT. The execution, delivery and performance by Seller of
this Agreement and the consummation by Seller of the transactions contemplated
hereby do not and will not (a) contravene or conflict with Seller's articles of
incorporation or bylaws, or (b) assuming compliance with the matters referred to
in Section 2.3, contravene or conflict with or constitute a violation of any
provision of any law, regulation, judgment, injunction, order or decree binding
upon or applicable to Seller.
2.5. CAPITALIZATION. The authorized capital stock of the Company
consists of 95,000 common shares, par value $100 per share. As of the date
hereof, 93,600 common shares were issued. All outstanding common shares have
been duly authorized and validly issued and are fully paid and nonassessable,
except as provided under Section 180.0622(2)(b) of the Wisconsin BCL.
2.6. BROKERS. Seller has not retained any broker or finder or incurred
any liability or obligation for any brokerage fees, commissions or finders fees
with respect to this Agreement or the transactions contemplated hereby.
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2.7. CLOSING BALANCE SHEET. The Closing Balance Sheet is (i) accurate
and complete in all material respects; (ii) in accordance with the books of
account and records of the Company in all material respects; and (iii) in
accordance with generally accepted accounting principles (GAAP) consistently
applied.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to Seller as of the date hereof,
and as of the Closing Date, as set forth below.
3.1. CORPORATE EXISTENCE AND POWER. Buyer is a corporation validly
existing and in good standing under the laws of the State of Wisconsin, and has
all corporate powers required to carry on its business as now conducted.
3.2. CORPORATE AUTHORIZATION. The execution, delivery and performance
by the Buyer of this Agreement and the consummation by the Buyer of the
transactions contemplated hereby are within the Buyer's corporate powers and
have been duly authorized by all necessary corporate action.
3.3. GOVERNMENTAL AUTHORIZATION. The execution, delivery and
performance by the Buyer of this Agreement and the consummation by the Buyer of
the transactions contemplated hereby require no action by or in respect of, or
filing with, any governmental entity, other than as set forth on Schedule 2.3
hereto.
3.4. NO CONFLICT. The execution, delivery and performance by the Buyer
of this Agreement and the consummation by the Buyer of the transactions
contemplated hereby do not and will not (a) contravene or conflict with the
Buyer's articles of incorporation or bylaws, or (b) assuming compliance with the
matters referred to in Section 3.3, contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to the Buyer.
3.5. BROKERS. Buyer has not retained any broker or finder or incurred
any liability or obligation for any brokerage fees, commissions or finders fees
with respect to this Agreement or the transactions contemplated hereby.
3.6. KNOWLEDGE OF THE COMPANY. Buyer has conducted such investigation
of the Company and its business as it has deemed necessary in order to make an
informed decision concerning the transactions contemplated hereby. In all
matters affecting the condition of the Company, its business and operations,
Buyer is relying primarily upon the advice and opinion offered by its own
agents, representatives, experts, consultants, employees and officers.
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ARTICLE IV
COVENANTS OF THE SELLER
Seller hereby agrees to keep, perform and fully discharge the following
covenants and agreements.
4.1. INTERIM CONDUCT OF BUSINESS. From the date hereof until the
Closing, Seller agrees not to vote the Stock.
4.2. CONTINUED ASSISTANCE. Following the Closing, from time to time, at
Buyer's request and without further consideration, Seller shall execute,
acknowledge and deliver such documents, instruments or assurances and take such
other action as Buyer may reasonably request to more effectively assign, convey
and transfer the Stock.
4.3. HSR ACT FILING AND OTHER CONSENTS.
(a) The Seller shall file, and shall cause the Company to
file, as soon as reasonably practicable but in no event later than ten
(10) days from the date hereof, with the Federal Trade Commission (the
"FTC") and the Antitrust Division of the United States Department of
Justice (the "ANTITRUST DIVISION") a premerger notification in
accordance with the HSR Act with respect to the sale of Stock. The
Seller shall furnish, and shall cause the Company to furnish promptly
to the FTC and the Antitrust Division any additional information
requested by either of them pursuant to the HSR Act in connection with
such filings and shall diligently take, or cooperate in the taking of,
all steps that are necessary or desirable and proper to expedite the
termination of the waiting period under the HSR Act.
(b) The Seller shall use commercially reasonable efforts to
obtain at the earliest practicable date and in any event before the
Closing all other consents, governmental authorizations, approvals,
estoppel certificates and filings required to be obtained by them or
which may be reasonably necessary to the consummation of the
transactions contemplated by this Agreement or which are reasonably
requested by Buyer.
4.4. BEST EFFORTS. The Seller shall use its best efforts to consummate
the transactions contemplated by this Agreement and shall not take any other
action inconsistent with its obligations hereunder or which could hinder or
delay the consummation of the transactions contemplated hereby. From the date
hereof through the Closing Date, Seller shall use its best efforts to fulfill
the conditions to its obligations hereunder and to cause its representations and
warranties to remain true and correct in all material respects as of the Closing
Date.
4.5. ENVIRONMENTAL LIABILITIES. Seller agrees to indemnify Buyer and
the Company against and hold Buyer and the Company harmless from 33.76% of any
costs or liability incurred by the Company at any time (including without
limitation, investigatory costs, clean-up costs, governmental response costs,
removal costs, remedial costs, natural resources damages, property damages,
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personal injuries, fines, penalties, attorneys fees, consultant fees, and
carrying costs and liability for any such costs) arising in connection with or
as a result of (a) any Release prior to the Closing Date of Hazardous Materials
on, under, from or onto any property owned, leased and/or operated by the
Company at any time prior to the Closing Date; (b) any violations of applicable
Environmental Laws by the Company or any agent acting on behalf of the Company
which occurred prior to the Closing Date; and/or (c) deposit of Hazardous
Materials, at any location, by or on behalf of the Company prior to the Closing
Date.
As used in this section 4.5:
(a) "Environmental Laws" means all Federal, state and local laws, rules
and regulations relating to pollution, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or protection of human health as it relates to the environment
including, without limitation, laws and regulations relating to Releases or
threatened Releases of Hazardous Materials, or otherwise relating to the
manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of Hazardous Materials;
(b) "Hazardous Materials" means (i) any petroleum products, radioactive
materials, asbestos in any form that is or could become friable, urea
formaldehyde foam insulation, and transformers or other equipment that contain
dielectric fluid containing polychlorinated biphenyls; and (ii) any chemicals,
materials or substances which are now defined as or included in the definition
of "hazardous substances," "hazardous wastes," "hazardous materials," "extremely
hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic
pollutants," or words of similar import, under any Environmental Law; and (iii)
any other chemical, material, substance or waste, exposure to which is not
prohibited, limited or regulated under any Environmental Law in a jurisdiction
in which the Company operates;
(c) "Release" means any release, spill, emission, leaking, injection,
deposit, disposal, discharge, dispersal, leaching or migration into the
atmosphere, soil, surface water, groundwater or property.
ARTICLE V
COVENANTS OF BUYER
Buyer hereby agrees to keep, perform and fully discharge the following
covenants and agreements.
5.1. RECORDS AND DOCUMENTS. For seven (7) years following the Closing
Date (or if later to the extent requested in connection with any tax audit),
Buyer shall cause the Company to grant to Seller and its representatives, at
Seller's request, access to and the right to make copies of those records and
documents, possession of which is transferred to Buyer, as may be necessary or
useful in connection with Seller's tax filings after the Closing.
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5.2. HSR ACT FILING AND OTHER CONSENTS. As soon as reasonably
practicable but in no event later than ten (10) days from the date hereof Buyer
shall file with the FTC and the Antitrust Division a premerger notification in
accordance with the HSR Act with respect to its purchase of the Stock. Buyer
shall furnish promptly to the FTC and the Antitrust Division any additional
information requested by either of them pursuant to the HSR Act in connection
with such filings and shall diligently take, or cooperate in the taking of, all
steps that are necessary or desirable and proper to expedite the termination of
the waiting period under the HSR Act. Seller shall pay the HSR filing fee. Buyer
shall use commercially reasonable efforts to obtain or make at the earliest
practicable date and in any event before the Closing all other consents,
governmental authorizations, approvals, estoppel certificates and filings
required to be obtained by it or which may be reasonably necessary to the
consummation of the transactions contemplated by this Agreement.
5.3. BEST EFFORTS. Buyer shall use its best efforts to consummate the
transactions contemplated by this Agreement and shall not take any other action
inconsistent with its obligations hereunder or which could hinder or delay the
consummation of the transactions contemplated hereby. From the date hereof
through the Closing Date, Buyer shall use its best efforts to fulfill the
conditions to its own obligations hereunder and to cause its representations and
warranties to remain true and correct in all material respects as of the Closing
Date.
5.4. BUYER'S INVESTMENT INTENT. The Stock is being acquired for Buyer's
own account, for investment and not with the view to the distribution thereof,
except that Buyer may, in its discretion, sell or transfer all or a portion of
the Stock to Wisconsin Power and Light Company ("WPL"). Buyer will not resell or
distribute any shares of such capital stock without registration under any
applicable federal or state securities laws, unless there shall first have been
obtained an opinion of counsel that the sale or distribution of shares is exempt
from registration.
ARTICLE VI
CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
Each and all of the obligations of Buyer to consummate the transactions
contemplated by this Agreement are subject to fulfillment prior to or at the
Closing of the conditions set forth below.
6.1. ACCURACY OF WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of Seller contained herein shall be accurate as
if made on and as of the Closing Date, except for changes occurring in the
ordinary course of the operation of the Business. The Seller shall have
performed all of the obligations and complied with all of the covenants,
agreements and conditions required to be performed or complied with on or prior
to the Closing.
6.2. NO PENDING ACTION. No action, suit, proceeding or investigation
before any court, administrative agency or other governmental authority shall be
pending or threatened wherein an unfavorable judgment, decree or order would
prevent the carrying out of this Agreement or any of the material transactions
contemplated hereby, declare unlawful the transactions contemplated hereby, or
cause such transactions to be rescinded.
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6.3. REGULATORY APPROVALS. All regulatory agencies shall have taken
such action as may be required to permit the consummation of the transactions
contemplated hereby and such actions shall remain in full force and effect and
shall be reasonably satisfactory in form and substance to Buyer and its counsel.
6.4. BOARD APPROVAL. The Board of Directors of Buyer shall have taken
action to approve this Agreement and the consummation of the transactions
contemplated hereby.
ARTICLE VII
CONDITIONS PRECEDENT TO OBLIGATIONS OF
THE SELLER
Each and all of the obligations of Seller to consummate the
transactions contemplated by this Agreement are subject to fulfillment prior to
or at the Closing of the conditions set forth below:
7.1. ACCURACY OF WARRANTIES AND PERFORMANCE OF COVENANTS. The
representations and warranties of Buyer contained herein shall be accurate as if
made on and as of the Closing Date, except for changes occurring in the ordinary
course of business. Buyer shall have performed all of the obligations and
complied with all of the covenants, agreements and conditions required to be
performed or complied with on or prior to the Closing.
7.2. NO PENDING ACTION. No action, suit, proceeding or investigation
before any court, administrative agency or other governmental authority shall be
pending or threatened wherein an unfavorable judgment, decree or order would
prevent the carrying out of this Agreement or any of the transactions
contemplated hereby, or declare unlawful the transactions contemplated hereby.
7.3. REGULATORY APPROVALS. All regulatory agencies shall have taken
such action as may be required to permit the consummation of the transactions
contemplated hereby and such actions shall remain in full force and effect and
shall be reasonably satisfactory in form and substance to the Company and its
counsel.
7.4. CLOSING OF STORA ENSO ACQUISITION. Seller's parent, Consolidated
Papers, Inc., shall have been acquired by Stora Enso Oyj in accordance with the
Agreement and Plan of Merger dated February 22, 2000 by and among Consolidated
Papers, Inc., Stora Enso Oyj and Stora Enso Acquisition, Inc.
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ARTICLE VIII
TERMINATION
8.1. TERMINATION. Without prejudice to other remedies which may be
available to the parties by law or under this Agreement, this Agreement may be
terminated and the transactions contemplated hereby may be abandoned:
(a) by mutual consent of Buyer and Seller;
(b) by either Buyer or Seller by giving written notice of such
termination on the Closing Date to the other (the "NOTIFIED PARTY") if,
as of the Closing Date, any condition precedent to the performance of
the obligations of the party giving such notice shall not have been
satisfied and shall not have been waived by such party; provided,
however, that the Notified Party shall be allowed twenty (20) days
within which to satisfy any such unsatisfied condition precedent; or
(c) by either Buyer or Seller by notice to the other, if the
Closing shall not have been consummated on or before December 31, 2000,
unless extended by written agreement of the parties hereto, so long as
the party giving such notice shall not be in default hereunder.
8.2. EFFECT OF TERMINATION WITHOUT DEFAULT. If this Agreement is
terminated pursuant to Section 8.1 hereof, without any breach or default under
this Agreement by a party all further obligations of the parties hereto shall
cease and terminate without liability of any party hereto to another party
hereto.
8.3. FAILURE TO CLOSE BECAUSE OF DEFAULT. In the event that this
Agreement is terminated pursuant to Section 8.1 by reason of a breach or default
under this Agreement, the parties shall have and retain all of the rights
afforded them at law or in equity by reason of that breach or default.
ARTICLE IX
GENERAL PROVISIONS
9.1. EMPLOYEE MATTERS. Certain benefits are provided to employees of
the Company under employee benefit plans maintained by Seller's parent,
Consolidated Papers, Inc. Prior to the Closing, Seller and the Company will take
such actions as may be necessary or appropriate in order to cause the Company to
assume responsibility for all employee benefit obligations of the Company to its
employees. Assets and liabilities attributable to Company employees covered
under the Consolidated Employees' Retirement Plan will be spun off to a
separate, identical retirement plan maintained by the Company. Such transfer
shall be made in accordance with Section 414(1) of the Internal Revenue Code and
other Code requirements and shall be effective as of the Closing.
9.2. SURVIVAL.
(a) Except for the representation and warranty included in
Section 2.7, the representations and warranties contained in Articles
II and III of this Agreement shall not survive the Closing. The
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representation and warranty included in Section 2.7 shall survive the
Closing and will continue in force until thirty days after completion
of audited financial statements of the Company for the year ended
December 31, 2000, which will include a review by Buyer's auditors of
the Closing Balance Sheet. Should a dispute arise regarding the
accuracy of the Closing Balance Sheet which involves a discrepancy of
$250,000 or more, the representation and warranty included in Section
2.7 shall remain in effect until final resolution of such dispute. In
case of such a dispute, the parties' respective auditors shall meet to
resolve the dispute. If the parties' auditors are unsuccessful in
resolving the dispute, they shall refer the matter to a third, mutually
acceptable independent auditor whose decision regarding the matter
shall be final and binding upon the parties.
(b) The covenant contained in Section 4.5 shall survive
indefinitely.
9.3. AMENDMENTS AND WAIVER. No amendment, waiver or consent with
respect to any provision of this Agreement shall in any event be effective,
unless the same shall be in writing and signed by the parties hereto, and then
such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given. The failure of any party
at any time or times to require performance of any provisions hereof shall in no
manner affect that party's right at a later time to enforce the same.
9.4. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be personally delivered or sent by
facsimile transmission with confirming copy sent by overnight courier (such as
Express Mail, Federal Express, etc.) and a delivery receipt obtained and
addressed to the intended recipient as follows:
(a) If to Seller:
Consolidated Water Power Company
510 High Street
P.O. Box 8050
Wisconsin Rapids, Wisconsin 54495
Attention: Carl H. Wartman, Esq.
Tel.: 715/422-3578
Fax: 715/422-3203
With a copy to:
McDermott, Will & Emery
227 West Monroe Street
Chicago, IL 60606-5096
Fax: 312/984-7700
Attention: Robert A. Schreck, Jr., P.C.
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(b) If to Buyer:
Wisconsin Public Service Corporation
P.O. Box 19001
Green Bay, WI 54307-9001
Attention: Barth J. Wolf
With a copy to:
Allen W. Williams
Foley & Lardner
777 E. Wisconsin Ave.
Milwaukee, WI 53202
Any party may change its address for receiving notice by written notice given to
the others named above.
9.5. EXPENSES.
(a) Except as otherwise expressly provided herein, Seller
shall bear its own costs and expenses as well as the reasonable out-of-pocket
costs and expenses of Buyer in connection with the transactions contemplated
hereby through and including the date of Closing. Seller shall also reimburse
Buyer for costs incurred by Buyer in reaching an agreement with WPL for the
transfer of a portion of the stock to WPL. Such costs will not in any event
exceed $50,000 for each of Buyer and WPL.
(b) If any action is brought by either party to enforce any
provision of this Agreement, the parties shall share the cost of such action
(including court costs, arbitration expenses and reasonable attorneys' fees) in
proportion to their relative ownership percentages in the Company prior to the
Closing. The provisions of this Section shall survive any termination of this
Agreement.
9.6. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
9.7. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to the
benefit of the parties named herein and their respective successors and
permitted assigns. Buyer shall be entitled to assign its rights and duties under
this Agreement to any Affiliate of Buyer without the consent of Seller;
provided, however, that Buyer shall in all events remain liable hereunder.
Except as provided in the foregoing sentence, this Agreement shall not be
assigned by either party hereto without the express prior written consent of the
other parties and any attempted assignment, without such consents, shall be null
and void. This Agreement does not create any rights, claims or benefits inuring
to any person that is not a party hereto nor create or establish any third-party
beneficiary hereto.
9.8. ENTIRE TRANSACTION. This Agreement and the documents referred to
herein contain the entire understanding among the parties with respect to the
transactions contemplated hereby and supersedes all other agreements,
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understandings and undertakings among the parties on the subject matter hereof.
All exhibits and schedules hereto are hereby incorporated by reference and made
a part of this Agreement.
9.9. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal substantive laws of the State of Wisconsin.
9.10. ANNOUNCEMENTS. No announcement of this Agreement or any
transaction contemplated hereby shall be made by any party prior to the Closing
without the written approval of the other parties hereto (which approval shall
not be unreasonable withheld), except as required by law or the regulations of
any securities exchange. Each party shall use its best effort to maintain the
confidentiality of the terms of the purchase and sale transaction contemplated
hereby, except as required by law or as necessary to protect the interest of
such party hereunder.
9.11. PARTIAL INVALIDITY. In the event that any provision of this
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision hereof.
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<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed as of the date first written above.
BUYER: SELLER:
WISCONSIN PUBLIC SERVICE CONSOLIDATED WATER POWER COMPANY
CORPORATION
By: /s/ Thomas Meinz By: /s/ Roger Wangen
----------------------------------- --------------------------------
Its: Vice President Its: President
---------------------------------- -------------------------------
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<PAGE>
Schedule 2.3
Approval by the Federal Energy Regulatory Commission is required prior to
Closing. The Hart-Scott-Rodino waiting period must expire as referenced in
Sections 4.3 and 5.2.
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