Exhibit 99.3
FINAL FORM
FORM OF STOCKHOLDER AGREEMENT
between
Westar Industries, Inc.,
a Kansas corporation
and
HVOLT Enterprises, Inc.,
a Delaware corporation
Dated as of [ ], 200_
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TABLE OF CONTENTS
Page
Article I Certain Definitions.................................................1
Article II Representations and Warranties.....................................6
Section 2.1 Representations and Warranties of the Company................6
Section 2.2 Representations and Warranties of the Stockholder............6
Article III Stockholder and Company Conduct...................................7
Section 3.1 Standstill Provision.........................................7
Section 3.2 Required Reduction of Ownership Percentage...................8
Section 3.3 Top-Up Rights................................................8
Section 3.4 Restrictions on Transfer.....................................8
Section 3.5 Buy-Back Options............................................10
Section 3.6 Charter and By-laws.........................................11
Section 3.7 Rights Agreement............................................11
Section 3.8 Taxes Upon Conversion or Exchange...........................11
Section 3.9 Prohibition on Senior Securities............................11
Section 3.10 Section 203 of the DGCL.....................................12
Article IV Board Representation and Voting....................................12
Section 4.1 Directors Designated by the Stockholder.....................12
Section 4.2 Resignation of Stockholder Nominees.........................14
Section 4.3 Voting......................................................14
Article V Effectiveness and Termination......................................16
Section 5.1 Effectiveness...............................................16
Section 5.2 Termination.................................................16
Article VI Miscellaneous.....................................................16
Section 6.1 Compliance With Law.........................................16
Section 6.2 Regulatory Matters..........................................16
Section 6.3 Injunctive Relief...........................................17
Section 6.4 Successors and Assigns......................................17
Section 6.5 Amendments; Waiver..........................................17
Section 6.6 Notices.....................................................17
Section 6.7 APPLICABLE LAW..............................................18
Section 6.8 Headings....................................................18
Section 6.9 Integration.................................................19
Section 6.10 Severability................................................19
Section 6.11 Consent to Jurisdiction.....................................19
Section 6.12 Counterparts................................................19
EXHIBIT A Stockholder Nominee Notice
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This STOCKHOLDER AGREEMENT dated as of [ ], 200__ (this "Agreement") is
between HVOLT Enterprises, Inc. a Delaware corporation (the "Company"), and
Westar Industries, Inc., a Kansas corporation (the "Stockholder").
WITNESSETH:
WHEREAS, the Company, Western Resources, Inc., a Kansas corporation
("WRI"), Public Service Company of New Mexico, a New Mexico corporation ("PNM"),
HVK, Inc., a Kansas corporation and a wholly owned subsidiary of the Company and
HVNM, Inc., a New Mexico corporation and wholly owned subsidiary of the Company
have entered into an Agreement, dated as of November 8, 2000, (the "Merger
Agreement"), pursuant to which WRI will become a wholly owned subsidiary of the
Company (the "Merger") and pursuant to which the Stockholder has acquired
Beneficial Ownership (as defined in Article I hereof) of 55,000,000 shares of
common stock of the Company, par value $.001 per share (the "Common Stock") and
up to shares of Series ____ Convertible Preferred Stock of the Company, par
value $.001 per share the "Convertible Preferred Stock");
WHEREAS, prior to the consummation of the Merger (the "Closing"), the
Company and the Stockholder desire to establish in this Agreement certain terms
and conditions concerning the acquisition and disposition of securities of the
Company by the Stockholder, and related provisions concerning the Stockholder's
relationship with and investment in the Company; and
WHEREAS, concurrently with the execution and delivery hereof, the Company
and the Stockholder are entering into a Registration Rights Agreement, dated as
of the date hereof (the "Registration Rights Agreement"):
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for other good and valuable consideration, receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
Article I
Certain Definitions
Section 1.1 In addition to other terms defined elsewhere in this Agreement,
as used in this Agreement, the following terms shall have the meanings ascribed
to them below:
"Affiliate" shall mean, with respect to any person, any other person that
directly or indirectly through one or more intermediaries controls or is
controlled by or is under common control with such person. For the purposes of
this definition, "control," when used with respect to any particular person,
means the power to direct the management and policies of such person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Agreement" shall have the meaning assigned to such term in the
introduction hereto.
"Beneficial Owner" (and, with correlative meanings, "Beneficially Own" and
"Beneficial Ownership") of any interest means a Person who, together with his or
its Affiliates, is or may be deemed a beneficial owner of such interest for
purposes of Rule 13d-3 or 13d-5 under the Exchange Act, or who, together with
his or its Affiliates, has the right to become such a beneficial owner of such
interest (whether such right is exercisable immediately or only after the
passage of time) pursuant to any agreement, arrangement or understanding, or
upon the exercise, conversion or exchange of any warrant, right or other
instrument, or otherwise.
"Board" shall mean the Board of Directors of the Company in office at the
applicable time, as elected in accordance with the Charter and By-laws of the
Company and with the provisions of this Agreement.
"Buy-Back Offer" shall have the meaning assigned to such term in Section
3.7(a) hereof.
"By-laws" shall mean the by-laws of the Company, in the form specified in
the Merger Agreement, as they may be amended from time to time.
"Change in Control" shall mean the occurrence of any one of the following
events:
(1) any Person (other than the Stockholder Group) becoming the
Beneficial Owner, directly or indirectly, of Voting Securities, pursuant to
the consummation of a merger, consolidation, sale of all or substantially
all of the Company's assets, share exchange or similar form of corporate
transaction involving the Company or any of its subsidiaries that requires
the approval of the Company's stockholders, whether for such transaction or
the issuance of securities in such transaction, so as to cause such
Person's Voting Ownership Percentage to exceed the Control Percentage (as
defined below); provided, however, that the event described in this
paragraph (1) shall not be deemed to be a Change in Control if it occurs as
the result of any of the following acquisitions: (A) by any employee
benefit plan sponsored or maintained by the Company or any Affiliate, or
(B) by any underwriter temporarily holding securities pursuant to an
offering of such securities;
(2) the consummation of a merger, consolidation, sale of all or
substantially all of the Company's assets, share exchange or similar form
of corporate transaction involving the Company or any of its subsidiaries
that requires the approval of the Company's stockholders, whether for such
transaction or the issuance of securities in such transaction, unless
immediately following such transaction more than 50% of the total voting
power of (x) the corporation resulting from such transaction, or (y) if
applicable, the ultimate parent corporation that directly or indirectly has
Beneficial Ownership of 100% of the voting securities eligible to elect
directors of such resulting corporation, is represented by Voting
Securities that were outstanding immediately prior to such transaction (or,
if applicable, shares into which such Voting Securities were converted
pursuant to such transaction), and such voting power among the holders of
such Voting Securities that were outstanding immediately prior to such
transaction is in substantially the same proportion as the voting power of
such Voting Securities among the holders thereof immediately prior to such
transaction; or
(3) the consummation of a plan of complete liquidation or dissolution
of the Company.
"Charter" shall mean the Certificate of Incorporation of the Company, in
the form specified in the Merger Agreement, as it may be amended from time to
time.
"Clearly Credible Tender Offer" shall mean any bona fide offer, tender
offer or exchange offer that is subject to Section 14 of the Exchange Act, other
than any such offer with respect to which (i) the Board of Directors of the
Company is advised in writing by outside counsel of recognized standing that the
consummation of such offer would be in violation of applicable law, or (ii) the
party making such offer has not obtained as of the date of the commencement of
such offer definitive commitment letters from reputable financial institutions
in customary form with respect to the financing of such offer.
"Closing" shall have the meaning assigned in the second recital of this
Agreement.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall have the meaning assigned in the first recital of this
Agreement.
"Company" shall have the meaning assigned in the introduction of this
Agreement.
"Company Repurchase Notice" shall have the meaning assigned in Section
3.5(b) hereof.
"Control Percentage" shall mean a Voting Ownership Percentage of 15%.
"Conversion" shall mean the conversion of shares of Convertible Preferred
Stock into shares of Common Stock pursuant to the Charter.
"Convertible Preferred Stock" shall have the meaning assigned in the first
recital of this Agreement.
"DGCL" shall have the meaning assigned in Section 3.6 hereof.
"Director" shall mean any member of the Board of Directors of the Company
in office at the applicable time, as elected in accordance with the provisions
of the By-laws of the Company.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Independent Director" shall mean any person who is not a Stockholder
Nominee and is independent of and otherwise unaffiliated with any member of the
Stockholder Group, and who is not a director, officer, employee, consultant or
advisor (financial, legal or other) of any member of the Stockholder Group and
has not served in any such capacity in the previous three (3) years; provided
that any consultant or advisor that has not provided $60,000 or more per annum
of services to the Company in the current or previous two years shall be deemed
an Independent Director for purposes of this Agreement.
"Initial Stockholder Nominee Notice" shall have the meaning assigned in
Section 4.1(b) of this Agreement.
"Initial Stockholder Nominees" shall have the meaning assigned in Section
4.1(b) of this Agreement.
"Maximum Ownership Percentage" shall mean, calculated at a particular point
in time, a Total Ownership Percentage equal to the Total Ownership Percentage at
the time of the Closing.
"Merger" shall have the meaning set forth in the first recital of this
Agreement.
"Merger Agreement" shall have the meaning set forth in the first recital of
this Agreement.
"1935 Act" shall mean the Public Utility Holding Company Act of 1935, as
amended.
"Nominating Committee" shall mean the committee comprised of members of the
Board whose functions include recommendations to the Board of nominees for
election as directors. In the event there shall not be such a committee,
"Nominating Committee" shall mean the Board itself.
"NYSE" shall mean the New York Stock Exchange Inc.
"Person" shall mean any individual, partnership, joint venture,
corporation, trust, unincorporated organization, government or department or
agency of a government.
"Registration Rights" shall mean the rights and obligations of the
Stockholder Group and the corresponding rights and obligations of the Company
set forth in the Registration Rights Agreement.
"Registration Rights Agreement" shall have the meaning assigned in the
third recital of this Agreement.
"Repurchase" shall have the meaning assigned in Section 3.5(a) of this
Agreement.
"Sale Notice" shall have the meaning assigned in Section 3.4(b)(i) of this
Agreement.
"Sale Option" shall have the meaning assigned in Section 3.4(b) of this
Agreement.
"Sale Period" shall have the meaning assigned in Section 3.4(b)(ii) of this
Agreement.
"Sale Securities" shall have the meaning assigned in Section 3.4(b)(i) of
this Agreement.
"Securities" shall mean any equity securities of the Company.
"Securities Act" shall mean the Securities Act of 1993, as amended.
"Seller" shall have the meaning assigned in Section 3.4 of this Agreement.
"Stockholder" shall have the meaning assigned in the introduction to this
Agreement, as well as any successor to the rights and obligations to the holder
of Securities hereunder.
"Stockholder Affiliate" shall mean any Affiliate of the Stockholder.
"Stockholder Group" shall mean the Stockholder, any Stockholder Affiliate
and any Person with whom any Stockholder or any Affiliate of any Stockholder is
part of a 13D Group.
"Stockholder Nominees" shall have the meaning set forth in Section 4.1(d)
of this Agreement.
"Successor Stockholder Nominee Notice" shall have the meaning assigned in
Section 4.1(d) of this Agreement.
"Successor Stockholder Nominees" shall have the meaning assigned in Section
4.1(d) of this Agreement.
"13D Group" shall mean any group of Persons acquiring, holding, voting or
disposing of any Voting Security which would be required under Section 13(d) of
the Exchange Act and the rules and regulations thereunder to file a statement on
Schedule 13D with the Commission as a "person" within the meaning of Section
13(d)(3) of the Exchange Act.
"Total Ownership Percentage" shall mean, calculated at a particular point
in time, the Voting Power which would be represented by the Securities
Beneficially Owned by the Person whose Total Ownership Percentage is being
determined if all shares of Convertible Preferred Stock (or other Securities
convertible into Voting Securities) Beneficially Owned by such Person were
converted into shares of Common Stock (or other Voting Security).
"Total Voting Power" shall mean, calculated at a particular point in time,
the aggregate Votes represented by all then outstanding Voting Securities.
"Transfer" shall mean any sale, transfer, pledge, encumbrance or other
disposition to any Person, and to "Transfer" shall mean to sell, transfer,
pledge, encumber or otherwise dispose of to any Person.
"Transferee" shall mean any person to whom Voting Securities are
Transferred.
"Unrestricted Ownership Percentage" shall mean a Voting Ownership
Percentage of 9.9%.
"Votes" shall mean votes entitled to be cast generally in the election of
Directors, not including the votes that would be able to be cast by holders of
shares of Convertible Preferred Stock upon Conversion to shares of Common Stock
unless such Conversion shall occur or be deemed to occur.
"Voting Ownership Percentage" shall mean, calculated at a particular point
in time, the Voting Power represented by the Voting Securities Beneficially
Owned by the Person whose Voting Ownership Percentage is being determined.
"Voting Power" shall mean, calculated at a particular point in time, the ratio,
expressed as a percentage, of (a) the Votes represented by the Voting Securities
with respect to which the Voting Power is being determined to (b) Total Voting
Power.
"Voting Securities" shall mean the Common Stock and shares of any other
class of capital stock of the Company then entitled to vote generally in the
election of Directors, and shall not include Convertible Preferred Stock (or
other Securities convertible into Voting Securities) prior to Conversion into
Common Stock (or other Voting Security).
Article II
Representations and Warranties
Section 2.1 Representations and Warranties of the Company. The Company
represents and warrants to the Stockholder as of the date hereof as follows:
(a) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its incorporation
and has all necessary corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the Company and
all necessary and appropriate action has been taken by the Company to execute
and deliver this Agreement and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by the Company and
assuming due authorization and valid execution and delivery by the Stockholder,
this Agreement is a valid and binding obligation of the Company, enforceable in
accordance with its terms.
Section 2.2 Representations and Warranties of the Stockholder. The
Stockholder represents and warrants to the Company as of the date hereof as
follows:
(a) The Stockholder has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the state of its incorporation
and has all necessary corporate power and authority to enter into this Agreement
and to carry out its obligations hereunder.
(b) This Agreement has been duly and validly authorized by the Stockholder
and all necessary and appropriate action has been taken by the Stockholder to
execute and deliver this Agreement and to perform its obligations hereunder.
(c) This Agreement has been duly executed and delivered by the Stockholder
and assuming due authorization and valid execution and delivery by the Company,
this Agreement is a valid and binding obligation of the Stockholder, enforceable
in accordance with its terms.
(d) As of the effectiveness of this Agreement, the Stockholder Group
Beneficially Owns [_________] shares of Common Stock and [___________] shares of
Convertible Preferred Stock and does not Beneficially Own any other Voting
Security, warrant, option, convertible security or other similar right to
acquire Common Stock or shares of any other class of capital stock of the
Company which are entitled to vote generally in the election of directors.
Article III
Stockholder and Company Conduct
Section 3.1 Standstill Provision. Subject to the provisions of this
Agreement, during the term of this Agreement, the Stockholder agrees with the
Company that, without the prior approval of a majority of the Board, the
Stockholder will not, and will cause each Stockholder Affiliate not to, take any
of the following actions:
(a) singly or as part of a partnership, limited partnership, syndicate or
other 13D Group, directly or indirectly, acquire Beneficial Ownership of any
Voting Security so as to cause the Stockholder Group's Voting Ownership
Percentage to exceed the Unrestricted Ownership Percentage; or
(b) singly or as part of a partnership, limited partnership, syndicate or
other 13D Group, directly or indirectly, acquire, propose to acquire, or
publicly announce or otherwise disclose an intention to propose to acquire, or
offer or agree to acquire, by purchase or otherwise, Beneficial Ownership of any
Security so as to cause the Stockholder Group's Total Ownership Percentage to
exceed the Maximum Ownership Percentage; or
(c) deposit (either before or after the date of the execution of this
Agreement) any Security in a voting trust or subject any Security to any similar
arrangement or proxy with respect to the voting of such Security; or
(d) make, or in any way participate, directly or indirectly, in any
"solicitation" of "proxies", or become a "Participant" in a "solicitation" (as
such terms are used in Regulation 14A under the Exchange Act) to seek to advise
or influence any person to vote against any proposal or director nominee
recommended to the stockholders of the Company or any of its subsidiaries by at
least a majority of the Board of Directors; or
(e) form, join or in any way participate in a 13D Group with respect to any
Security of the Company or any securities of its subsidiaries; or
(f) commence (including by means of proposing or publicly announcing or
otherwise disclosing an intention to propose, solicit, offer, seek to effect or
negotiate) a merger, acquisition or other business combination transaction
relating to the Company; or
(g) initiate a "proposal," as such term is used in Rule 14a-8 under the
Exchange Act, "propose", or otherwise solicit the approval of, one or more
stockholders for a "proposal" or induce or attempt to induce any other person to
initiate a "proposal"; or
(h) otherwise act, alone or in concert with others, to seek to control or
influence the management, the Board or policies of the Company; or
(i) take any other action to seek or effect control of the Company other
than in a manner consistent with the terms of this Agreement.
This Section 3.1 shall not be interpreted to restrict the Stockholder or
any Stockholder Affiliate from taking any action or exercising any right
consistent with the terms of this Agreement, including engaging in private and
confidential discussions with the Board or the management of the Company. In
addition, this section shall not be deemed to restrict the Stockholder Nominees
from participating as board members in the direction of the Company.
Section 3.2 Required Reduction of Ownership Percentage. If at any time the
Stockholder becomes aware that the Stockholder Group's Total Ownership
Percentage exceeds the Maximum Ownership Percentage (other than as a result of
action on the part of the Company or any of its Affiliates), then the
Stockholder shall, or shall cause the Stockholder Affiliates to, consistent with
the provisions of Section 3.4 of this Agreement, promptly take all action
necessary to reduce the amount of Securities Beneficially Owned by the
Stockholder Group such that the Stockholder Group's Total Ownership Percentage
is not greater than the Maximum Ownership Percentage.
Section 3.3 Top-Up Rights. (a) During the term of this Agreement, if the
Stockholder Group's Voting Ownership Percentage falls below the Unrestricted
Ownership Percentage, the Stockholder may purchase Voting Securities from time
to time in the open market or otherwise in an amount sufficient in order to
restore the Stockholder Group's Voting Ownership Percentage to the Unrestricted
Ownership Percentage.
(b) All Securities acquired by purchase pursuant to this Section 3.3 shall
be subject to the terms of this Agreement.
Section 3.4 Restrictions on Transfer. None of the members of the
Stockholder Group shall directly or indirectly Transfer any Securities without
the prior written consent of a majority of the Independent Directors, except the
following Transfers:
(a) Transfers of Securities representing Voting Power (assuming the
conversion of all Convertible Preferred Stock to be transferred) of less than
5.0% to any Transferee, without prior notice to the Company, so long as such
Transferee and any Affiliate of such Transferee and any such person who is a
member of a 13D Group with such Transferee does not have a Voting Ownership
Percentage (assuming the conversion of all Convertible Preferred Stock to be
transferred) of 5.0% or more immediately after giving effect to such Transfer.
(b) Transfers of Securities representing Voting Power (assuming the
conversion of all Convertible Preferred Stock to be transferred) of 5.0% or more
pursuant to the following procedure (the "Sale Option"):
(i) If a member of the Stockholder Group (the "Seller") determines
that it wishes to seek a buyer for any of the Securities in a transaction
that would result in a purchaser other than a member of the Stockholder
Group holding 5.0% or more of the Voting Power (assuming the conversion of
all Convertible Preferred Stock to be transferred), Seller shall provide
written notice (a "Sale Notice") of its intention to sell such Securities
(the "Sale Securities"). The Sale Notice shall specify the number of Sale
Securities and the cash price per share at which the Company or its
designee may purchase the Sale Securities.
(ii) The Company shall give notice to the Seller within 15 days of
receiving the Sale Notice of whether the Company intends to purchase the
Sale Securities, and if the Company elects to purchase such Sale
Securities, the Company shall have a period ending on the later of fifteen
(15) days after the date of the Sale Notice and five (5) days from the date
of receipt of all necessary regulatory approvals (the "Sale Period")
(provided, that in no event shall the Sale Period exceed one hundred eighty
(180) days) within which to effect a closing of the Company's or its
designee's purchase of all, but not less than all, of the Sale Securities.
(iii) If the Company or its designee shall not give the Seller notice
of its election to purchase the Sale Securities within the specified period
or shall for any reason fail to effect a closing of the purchase of all of
the Sale Securities within the Sale Period, the Seller shall have the
right, for a period of one year following such notice of election not to
purchase or failure to purchase, to sell all or part of such Sale
Securities to any other person for a price equal to or exceeding the price
specified in the Sale Notice; provided however that before the Seller may
sell the Sale Securities to any such person pursuant to this Section
3.4(b), such person shall have entered into a stockholders agreement
containing substantially the same terms as this Agreement, except for
Sections 4.1 and 4.2 hereto.
(c) Transfers of Securities to the public in a bona fide underwritten
offering pursuant to the Registration Rights Agreement; provided, however, that
the Seller and the representative or representatives of the underwriters
previously agree in writing with the Company that all reasonable efforts will be
made to achieve a wide distribution of the Voting Securities in such offering
and to ensure that no Transferee in such offering acquires for its own account
Beneficial Ownership of Securities representing upon Transfer Voting Power of
3.0% or more.
(d) Direct or indirect transfers of all or part of the Stockholder Group's
Securities pursuant to a distribution of Securities among the stockholders of
the Stockholder on either a pro rata basis or a basis otherwise designed to
widely distribute such Securities among the Stockholder's existing stockholders.
(e) Transfers of Securities among members of the Stockholder Group;
provided, however, that any such Transferee shall agree with the Company in
writing prior to each such transfer to be bound by the terms of this Agreement
with respect to its Beneficial Ownership of Securities, and that upon such
agreement such Transferee shall be considered the Stockholder for purposes of
this Agreement.
(f) Transfers in connection with a financing transaction in which the
Stockholder grants a security interest in or otherwise collateralizes a
financing with Securities; provided, however, that the lender in any such
transaction shall have entered into a stockholders agreement containing
substantially the same terms as this Agreement, except for Sections 4.1 and 4.2
hereto.
(g) If a Clearly Credible Tender Offer for the Company has been commenced,
at the Stockholder's option Transfers of Securities by means of tenders into
such Clearly Credible Tender Offer in an amount not exceeding the percentage (on
the basis of total Votes and assuming the conversion of all shares of
Convertible Preferred Stock into shares of Common Stock) of the Voting
Securities of which it is the Beneficial Owner equal to the highest percentage
(on the basis of total Votes) of the aggregate of all Voting Securities not
Beneficially Owned by any member of the Stockholder Group which has ever been
announced to have been tendered into such Clearly Credible Tender Offer.
Section 3.5 Buy-Back Options. (a) During the term of this Agreement, if the
Company purchases Securities from the public, whether by tender offer, open
market purchase or otherwise (a "Repurchase"), the Company shall
contemporaneously with the Repurchase offer to repurchase from the Stockholder
on the same terms and conditions, including price, as in the Repurchase, a
percentage (on the basis of total Votes and assuming the conversion of all
shares of Convertible Preferred Stock into shares of Common Stock) of those
Securities Beneficially Owned by the Stockholder equal to the percentage (on the
basis of total Votes and assuming the conversion of all shares of Convertible
Preferred Stock into shares of Common Stock) of Securities to be Repurchased
from the Beneficial Owners of Securities other than the Stockholder or any
Stockholder Affiliate (the "Buy-Back Offer"). The Stockholder may accept such
Buy-Back Offer in its sole discretion.
(b) The Company shall provide notice to the Stockholder of its intention to
engage in a Repurchase not less than 30 days in advance of the date on which the
Repurchase is to begin (the "Company Repurchase Notice"). The Stockholder must
provide notice to the Company within ten (10) days of receipt of the Company
Repurchase Notice of whether the Stockholder intends to accept the Buy-Back
Offer.
Section 3.6 Charter and By-laws. During the term of this Agreement the
Company shall not amend, alter or repeal, or propose the amendment, alteration
or repeal of, any provision of the Charter or the By-laws in any manner which is
inconsistent with the terms of this Agreement and which adversely affects the
rights of the Stockholder Group under the terms of this Agreement. If at any
time during the term of this Agreement the provisions of this Agreement shall
conflict with the provisions of the Charter and the By-laws, the provisions of
this Agreement shall, to the extent permitted by the Delaware General
Corporation Law (the "DGCL"), be controlling.
Section 3.7 Rights Arrangement. During the term of this Agreement, the
Company hereby agrees not to implement or amend any provision of any rights
agreement or similar form of stockholder rights or stockholder protective device
(a "Rights Arrangement") in any manner which is inconsistent with the terms of
this Agreement or the Merger Agreement and which adversely affects the rights of
the Stockholder Group under the terms of this Agreement; provided, however, that
this provision shall not preclude the Company from implementing a Rights
Arrangement in customary form for holding companies registered under the 1935
Act; provided, further, that such Rights Arrangement shall (i) exempt the
Stockholder from its provisions pursuant to which ownership of a beneficial
interest in the Company's securities affects the exercisability of the rights
and (ii) not apply to any person that acquires less than a 20% beneficial
ownership interest in the Company's voting securities.
Section 3.8 Taxes Upon Conversion or Exchange. The Company hereby agrees to
pay any and all stock transfer and documentary stamp taxes that may be payable
in respect of any issuance or delivery of (i) any shares of Convertible
Preferred Stock, (ii) any shares of Common Stock issued in a Conversion of
shares of Convertible Preferred Stock, or (iii) any exchange of shares of Common
Stock for shares of Convertible Preferred Stock, or certificates or instruments
evidencing any of such shares or securities. The Company shall not, however, be
required to pay any such tax which may be payable in respect of any transfer
involved in the issuance or delivery of shares of Common Stock in a Conversion
of shares of Convertible Preferred Stock in a name other than that in which the
shares of such Convertible Preferred Stock were registered.
Section 3.9 Prohibition on Senior Securities. During the term of this
Agreement, the Company hereby agrees that it shall not, except as may otherwise
be contemplated by this Agreement, create, authorize or reclassify any
authorized stock of the Company into (x) any class or series of the Company's
capital stock ranking prior to the Convertible Preferred Stock as to dividends
or as to distributions of assets upon liquidation, dissolution or winding up of
the Company, whether voluntary or involuntary, or (y) any class or series of the
Company's capital stock entitled to vote separately as a class on any matter
whatsoever, other than an amendment to the Charter which would have the effect
of modifying the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of such class or series so as to
affect the holders thereof adversely, or (z) any security convertible into
shares of any class or series described in (x) or (y) above.
Section 3.10 Section 203 of the DGCL. The Board of Directors of the Company
shall take such actions as are necessary to ensure that the provisions of
Section 203 of the DGCL shall not be applicable to the Stockholder.
Article IV
Board Representation and Voting
Section 4.1 Directors Designated by the Stockholder. (a) During the term of
this Agreement, the size of the Board shall be nine (9), ten (10) or twelve (12)
directorships. During the term of this Agreement, the Company agrees to not
cause or allow the size of the Board to be eleven (11) directorships.
Immediately following the Closing, if the size of the Board is nine (9) or ten
(10) directorships, the Board shall appoint as a Director one (1) Stockholder
Nominee (as defined in Section 4.1(b) below and in addition to any Directors
that may be appointed pursuant to Section 7.10(a) of the Merger Agreement) who
has been designated by the Stockholder in the Stockholder Nominee Notice (as
defined in Section 4.1(b) below and attached as Exhibit A hereto). If the size
of the Board, at the time of the Closing, is twelve (12) directorships, the
Board shall appoint as Directors two (2) Stockholder Nominees (in addition to
any Directors that may be appointed pursuant to the Merger Agreement) who have
been designated by the Stockholder in the Stockholder Nominee Notice. To the
closest extent possible, the Stockholder Nominee (and the nominees to be
appointed pursuant to Section 7.10(a) of the Merger Agreement) shall be placed
evenly in each class of Directors and, if more Stockholder Nominees are
appointed pursuant to this Section 4.1 than there are classes of Directors, then
the classes of Directors latest standing for election shall have placed in them
additional Stockholder Nominees, with one Director placed in each successive
class, so as to keep all classes as even as possible with respect to the number
of Stockholder Nominees in each. In the event of a vacancy caused by the
disqualification, removal, resignation or other cessation of service of any
Stockholder Nominee from the Board, the Board shall elect as a Director (to
serve the balance of the predecessor nominee's term) a new Stockholder Nominee
who has been designated by the Stockholder in an additional Stockholder Nominee
Notice that has been provided to the Company at least seven (7) days prior to
the date of a regular meeting of the Board. In the event that the Size of the
Board is, at the time of the Closing, nine (9) or ten (10) directorships, and is
subsequently during the term of this Agreement, expanded to twelve (12)
directorships, then, upon such expansion, the Board shall appoint as an
additional Director, a Stockholder Nominee who has been designated by the
Stockholder in a Stockholder Nominee Notice. Such additional Director shall be
placed in the class of Directors latest standing for election, provided,
however, that if placing such additional Director in such class would cause the
classes of Directors then existing to have a differential in number of
Stockholder Nominees therein in excess of one (1), then such additional
Directors shall be placed in such classes so as to cause such differential to be
one (1) or less.
(b) The Stockholder shall provide notice to the Company (the "Stockholder
Nominee Notice") as required by Section 4.1(a) above, which notice shall contain
the following information: (i) the name of the person(s) it has designated to
become Director(s) (the "Stockholder Nominees"), and (ii) all information
required by Item 5(b) of Schedule 14A under the Exchange Act with respect to
each such Stockholder Nominee.
(c) During the term of this Agreement, at each annual meeting of
stockholders of the Company at which the term of any Stockholder Nominee is to
expire or (ii) a vacancy is caused by the removal, resignation, retirement,
death, disability or disqualification or other cessation of service of any
Stockholder Nominee, the Stockholder shall provide notice to the Company in
writing ninety (90) days prior to the date of the proxy statement for the prior
year's annual meeting of the Company's stockholders ("Successor Stockholder
Nominee Notice"), indicating (x) the name of the person(s) it has designated to
become Director(s) ("Successor Stockholder Nominees" and together with
Stockholder Nominees, "Stockholder Nominees"), if any, (y) the class of
Directors to which each such Successor Stockholder Nominee shall be assigned,
and (z) all information required by Regulation 14A and Schedule 14A under the
Exchange Act with respect to each such Successor Stockholder Nominee.
(d) The Stockholder shall consult with the Company in connection with the
identity of any proposed Stockholder Nominee. In the event the Company is
advised in writing by its outside counsel that a proposed Stockholder Nominee
would not be qualified under the Company's Charter or By-laws or any applicable
statutory or regulatory standards to serve as a Director, or if the Company
otherwise reasonably objects to a proposed Stockholder Nominee, including
without limitation because such Stockholder Nominee either (i) is a director or
officer of a direct competitor of the Company, (ii) does not satisfy the good
faith reasonable criteria for Board membership of PNM in effect as of the date
of the Merger Agreement, or (iii) has engaged in any adverse conduct that would
require disclosure under Item 7 of Schedule 14A promulgated under the Exchange
Act, the Stockholder agrees to withdraw such proposed Stockholder Nominee and
nominate a replacement therefor (which replacement would be subject to the
requirements of this Section 4.1(e)). Any such objection by the Company must be
made no later than one (1) month after the Stockholder first informs the Company
of the identity of the proposed Stockholder Nominee; provided, however, that the
Company shall in all cases notify the Stockholder of any such objection
sufficiently in advance of the date on which proxy materials are mailed by the
Company in connection with such election of directors to enable the Stockholder
to propose an alternate Stockholder Nominee pursuant to and in accordance with
the terms of this Agreement. Stockholder Nominees may not be officers or
employees of the Stockholder.
(e) During the term of this Agreement the Company agrees to include each
Stockholder Nominee to be added to or retained on the Board pursuant to this
Agreement in the slate of nominees recommended by the Board to the Company's
stockholders for election as Directors and shall use its best efforts to cause
the election or reelection of each such Stockholder Nominee to the Board,
including soliciting proxies in favor of the election of such persons.
(f) During the term of this Agreement, the Stockholder shall be entitled to
designate each Stockholder Nominee (including the Directors that may be
appointed by the Stockholder pursuant to the Merger Agreement) to be a member of
one committee of the Board (including without limitation the executive
committee, the audit committee and the executive compensation committee),
provided however, that if all such Stockholder Nominees are designated to serve
on a committee at a time when an executive committee does not exist, then if an
executive committee is so formed, the Stockholder shall be entitled to designate
one Stockholder Nominee to serve on such committee in addition to serving on the
committee on which such Stockholder Nominee serves at such time.
Section 4.2 Resignation of Stockholder Nominees. Unless otherwise agreed by
the Company, the Stockholder shall cause each of the Stockholder Nominees then
serving on the Board to offer their resignations from the Board immediately upon
the earlier to occur of the following:
(a) The termination of this Agreement pursuant to and in accordance with
Section 5.2 hereof; and
(b) The Stockholder Group's Total Ownership Percentage falling below 10%.
Section 4.3 Voting. During the term of this Agreement, the Stockholder, as
a holder of shares of Voting Securities, agrees that:
(a) The Stockholder shall, and shall cause each Stockholder Affiliate to,
be present, in person or by proxy, at all meetings of stockholders of the
Company such that the percentage of the total number of Voting Securities having
voting rights which are Beneficially Owned by the Stockholder and the
Stockholder Affiliates which are counted for the purpose of determining the
presence of a quorum at such meetings shall be equal to the percentage of Voting
Securities Beneficially Owned by other than the Stockholder or the Stockholder
Affiliate which are present, in person or by proxy, at such meeting of
stockholders of the Company, and which are counted for the purpose of
determining the presence of a quorum at such meetings.
(b) With respect to all matters submitted to a vote of the Company's
stockholders during the term of this Agreement, the Stockholder and each member
of the Stockholder Group shall vote all Voting Securities which are counted for
the purpose of determining the presence of a quorum at a meeting of stockholders
in accordance with Section 4.3(a) hereof, with respect to all matters voted on
by the stockholders of the Company (whether at a regular or special meeting or
pursuant to a unanimous written consent) in the same proportion as all Voting
Securities (other than those Beneficially Owned by the Stockholder or the
Stockholder Affiliate) are voted with respect to such matters.
(c) Each Transferee of any Voting Securities who acquires such Voting
Securities, directly or indirectly, from the Stockholder or any member of the
Stockholder Group agrees that:
(i) The Transferee shall be present, in person or by proxy, at all
meetings of stockholders of the Company so that all Voting Securities
having voting rights which are Beneficially Owned by the Transferee may be
counted for the purpose of determining the presence of a quorum at such
meetings.
(ii) (A) With respect to the election of Directors, the Transferee
shall vote all Voting Securities Beneficially Owned by the Transferee in
favor of the election of all candidates for Director nominated by the
Company's Board (including the Stockholder Nominees) and (B) with respect
to any proposal initiated by a stockholder of the Company relating to any
matter (other than nonbinding precatory resolutions with respect to which
subsection (iii) hereof shall apply), the Transferee shall vote all Voting
Securities Beneficially Owned by the Transferee in accordance with the
recommendation of the Board.
(iii) The Transferee shall vote as requested by a majority of the
Board on compensatory stock plans submitted to stockholders of the Company
for their approval, provided that (i) the Transferee shall not be obligated
to so vote if the stock plan at issue involves the potential issuance of
more than 5% of the equity securities of the Company, on a fully diluted
basis, and (ii) the Transferee shall not be obligated to so vote if the
aggregate of all such plans involves the potential issuance of more than 5%
of the equity securities of the Company, on a fully diluted basis, in any
rolling five-year period.
(iv) With respect to all other matters submitted to a vote of the
Company's stockholders during the term of this Agreement, (i) the
Transferee may vote in its sole discretion a number of Voting Securities
Beneficially Owned by the Transferee having voting rights with respect to
such other matters representing in the aggregate a Voting Ownership
Percentage not in excess of the Unrestricted Ownership Percentage, and (ii)
the Transferee shall vote all Voting Securities Beneficially Owned by the
Transferee having voting rights with respect to such other matters
representing in the aggregate a Voting Ownership Percentage in excess of
the Unrestricted Ownership Percentage in the same proportion (based on
total Votes) as all Voting Securities voted on any such other matter are
voted by the stockholders of the Company other than the Transferee,
provided, however, that the Transferee may vote any or all of the Voting
Securities Beneficially Owned by it in its sole discretion with respect to
a vote of the Company's stockholders on any transaction or series of
transactions which would, if consummated, constitute a Change in Control of
the Company.
(v) At all times the Transferee may exercise in its sole discretion
such voting rights as the Convertible Preferred Stock may have from time to
time pursuant to the Charter and with respect to an amendment to the
Charter which would have the effect of modifying the voting powers,
designations, preferences, rights and qualifications, limitations or
restrictions of such class or series so as to affect the holders thereof
adversely.
Article V
Effectiveness and Termination
Section 5.1 Effectiveness. This Agreement shall take effect immediately
upon the Closing and shall remain in effect until it is terminated pursuant to
Section 5.2 hereof.
Section 5.2 Termination. Unless otherwise agreed in writing by the
Stockholder, this Agreement shall terminate upon the earliest to occur of the
following:
(a) The Company's failure to pay the stated quarterly dividend on any
series of Convertible Preferred Stock in any four (4) quarters during the term
of this Agreement.
(b) The election to the Board of a majority of Directors other than those
nominated by the Nominating Committee of the Board.
(c) The size of the Board being increased to more than twelve (12)
directors.
(d) The Stockholder Group's Total Ownership Percentage falling below 10%
for a period of 365 consecutive days.
(e) Any material breach of this Agreement by the Company, provided that the
Company has not cured the breach within sixty (60) days after receiving notice
of such breach, or if cure within such time is not possible, the Company has not
made reasonable good faith efforts to cure such breach, provided, further that
in no event shall such cure period extend longer than ninety (90) days from the
date of first notice of such breach.
(f) Mutual written agreement of the Company and the Stockholder at any time
to terminate this Agreement, which termination shall occur at a time to be fixed
in such mutual agreement.
Article VI
Miscellaneous
Section 6.1 Compliance With Law. Notwithstanding anything to the contrary
in this Agreement, no Transfer of Securities shall be deemed to be required or
permitted pursuant to this Agreement if such Transfer would require regulatory
approvals which, individually or in the aggregate with respect to such Transfer,
would have a material adverse impact on the Company or any of its subsidiaries
or the Stockholder or any Stockholder Affiliate.
Section 6.2 Regulatory Matters. During the term of this Agreement, the
Company agrees to take all commercially reasonable steps to assist the
Stockholder in securing such regulatory approvals as would not reasonably be
expected to have a material adverse effect on the Company and as may be
necessary to allow the Stockholder to exercise its rights under the Agreement at
all times, including without limitation the right of the Stockholder to Transfer
Securities free of the restrictions and limitations imposed by Section 6.1.
Section 6.3 Injunctive Relief. Each party hereto acknowledges that it would
be impossible to determine the amount of damages that would result from any
breach of any of the provisions of this Agreement and that the remedy at law for
any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each other party shall, in addition to
any other rights or remedies which it may have, be entitled to seek such
equitable and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain any party from
violating, any of such provisions. In connection with any action or proceeding
for injunctive relief, each party hereto hereby waives the claim or defense that
a remedy at law alone is adequate and agrees, to the maximum extent permitted by
law, to have each provision of this Agreement specifically enforced against him
or it, without the necessity of posting bond or other security against him or
it, and consents to the entry of injunctive relief against him or it enjoining
or restraining any breach or threatened breach of such provisions of this
Agreement.
Section 6.4 Successors and Assigns. This Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the Company and by the
Stockholder and their respective successors and permitted assigns, and no such
term or provision is for the benefit of, or intended to create any obligations
to, any other Person.
Section 6.5 Amendments; Waiver. (a) This Agreement may be amended only by
an agreement in writing executed by the parties hereto. Any approval of an
amendment of this Agreement upon the part of the Company shall require the
approval of a majority of the Independent Directors at a duly convened meeting
thereof or all of the Company's directors by written consent thereto.
(b) Either party may waive in whole or in part any benefit or right
provided to it under this Agreement, such waiver being effective only if
contained in a writing executed by the waiving party. No failure by any party to
insist upon the strict performance of any covenant, duty, agreement or condition
of this Agreement or to exercise any right or remedy consequent upon breach
thereof shall constitute a waiver of any such breach or of any other covenant,
duty, agreement or condition, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such right
accruing to it thereafter. Any waiver of any benefit or right provided to the
Company under this Agreement shall require the approval of a majority of the
Board and a majority of the Independent Directors at a duly convened meeting
thereof or all of the Company's directors by written consent thereto.
Section 6.6 Notices. Except as otherwise provided in this Agreement, all
notices, requests, claims, demands, waivers and other communications hereunder
shall be in writing and shall be deemed to have been duly given when delivered
by hand, when delivered personally or by courier, three days after being
deposited in the mail (registered or certified mail, postage prepaid, return
receipt requested), or when received by facsimile transmission if promptly
confirmed by one of the foregoing means, as follows:
If to the Company:
Public Service Company or New Mexico and
HVOLT Enterprises, Inc.
Alvarado Square,
Albuquerque, NM 87158
Attention: Chief Financial Officer
Fax: (505) 241-2368
with a copy to:
Winthrop, Stimson, Putnam & Roberts
One Battery Park Plaza
New York, New York 10004
Attention: Timothy Michael Toy, Esq.
Stephen R. Rusmisel, Esq.
Fax: (212) 858-1500
If to the Stockholder:
Westar Industries, Inc.
818 South Kansas Avenue
Topeka, KS 66612
Attention: President
Fax: (785) 575-1936
with a copy to:
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
125 West 55th Street
New York, New York 10019
Attention: William S. Lamb, Esq.
Benjamin G. Clark, Esq.
Fax: (212) 424-8500
or to such other address or facsimile number as either party may, from time to
time, designate in a written notice given in a like manner.
Section 6.7 APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT
GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
Section 6.8 Headings. The descriptive headings of the several sections in
this Agreement are for convenience only and do not constitute a part of this
Agreement and shall not be deemed to limit or affect in any way the meaning or
interpretation of this Agreement.
Section 6.9 Integration. This Agreement and the other writings referred to
herein or delivered pursuant hereto which form a part hereof contain the entire
understanding of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to its subject matter. There are no restrictions, agreements, promises,
representations, warranties, covenants or undertakings with respect to its
subject matter other than those expressly set forth or referred to herein.
Section 6.10 Severability. If any term or provision of this Agreement or
any application thereof shall be declared or held invalid, illegal or
unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 6.11 Consent to Jurisdiction. In connection with any suit, claim,
action or proceeding arising out of this Agreement, the Stockholder and the
Company each hereby consent to the in personam jurisdiction of the United States
federal courts and state courts located in Topeka, Kansas; the Stockholder and
the Company each agree that service in the manner set forth in Section 6.5
hereof shall be valid and sufficient for all purposes; and the Stockholder and
the Company each agree to, and irrevocably waive any objection based on forum
non conveniens or venue not to, appear in any United States federal court state
court located in Topeka, Kansas.
Section 6.12 Counterparts. This Agreement may be executed by the parties
hereto 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.
IN WITNESS WHEREOF, the Company and the Stockholder have caused this
Agreement to be duly executed by their respective authorized officers as of the
date set forth at the head of this Agreement.
HVOLT ENTERPRISES, INC.
By:_____________________________
Name:
Title:
WESTAR INDUSTRIES, INC.
By:_____________________________
Name:
Title:
<PAGE>
EXHIBIT A
Stockholder Nominee Notice
This Stockholder Nominee Notice is provided to HVOLT Enterprises, Inc. (the
"Company") by Westar Industries, Inc., (the "Stockholder") pursuant to Sections
4.1(a) and (b) of the Stockholder Agreement, dated as of [ ], 200_, between the
Stockholder and the Company. Additional sheets may be attached hereto as
necessary to answer each item below.
1. The Stockholder hereby designates the person set forth below (the
"Stockholder Nominee") to be a director of the Company:
Name: ________________________
Principal occupation or employment: ________________________________________
________________________________________
Principal business of the organization ________________________________________
by which ______________ is employed:
________________________________________
Mailing address: ________________________________________
________________________________________
________________________________________
Tel:____________________________________
Principal Business Address of
employer specified above: ________________________________________
________________________________________
________________________________________
________________________________________
Tel:____________________________________
2. Except as set forth below, the Stockholder Nominee has/has not, during the
past ten years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(If answer is positive):
Dates: ___________________________
Nature of Conviction: ________________________________________
________________________________________
________________________________________
________________________________________
Name and location of
court: ________________________________________
________________________________________
________________________________________
________________________________________
Penalty imposed or other
disposition ________________________________________
________________________________________
________________________________________
________________________________________
3. The Stockholder Nominee beneficially owns, directly or indirectly, the
following securities of the Company:
Description of Security Quantity Owned
----------------------- --------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
4. The Stockholder Nominee owns of record, but not beneficially, the following
securities of the Company:
Description of Security Quantity Owned
----------------------- --------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
5. During the past two years, the Stockholder Nominee has purchased or sold
securities of the Company as set forth below:
Description of Security Date Purchased Date Sold
----------------------- -------------- ---------
----------------------- ---------------------- ----------------------
----------------------- ---------------------- ----------------------
----------------------- ---------------------- ----------------------
6. Of the securities described above, the following parts of the purchase price
or market value of the shares specified is represented by funds borrowed or
otherwise obtained for the purpose of acquiring or holding such securities:
Description of Security Amount of Indebtedness
----------------------- ----------------------
----------------------- ----------------------
----------------------- ----------------------
7. If the funds described above were borrowed or obtained otherwise than
pursuant to a margin account or bank loan in the regular course of business of a
bank, broker or dealer, a brief description of the transaction, including the
names of the parties, is set forth immediately below:
Description of Security
-----------------------
-----------------------
Description of Transaction
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
8. Within the past year, the Stockholder Nominee was/was not a party to any
contract, arrangements or understandings with any person with respect to any
securities of the Company, including, but not limited to joint ventures, loan or
option arrangements, puts or calls, guarantees against loss or guarantees of
profit, division of losses or profits, or the giving or withholding of proxies.
If the Stockholder Nominee has been such a party, a description of the
parties to such contracts, arrangements or understandings is set forth below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
9. The Stockholder Nominee's associates beneficially own, directly or
indirectly, the following securities of the Company:
Description of
Associate Name Address Security Amount Owned
---------------- --------------- --------------- -----------------
---------------- --------------- --------------- -----------------
---------------- --------------- --------------- -----------------
---------------- --------------- --------------- -----------------
10. The Stockholder Nominee beneficially owns, directly or indirectly, the
following amounts of each class of securities of any parent or subsidiary of the
Company:
Description of Security Quantity Owned
----------------------- --------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
------------------------------------------------- ----------------------
11. Set forth below is a description of any transaction, or series of similar
transactions, since the beginning of the Company's last fiscal year, or any
currently proposed transaction, or series of similar transactions, to which the
Company or any of its subsidiaries was or is to be a party, in which the amount
involved exceeds $60,000 and in which the Stockholder Nominee had, or will have,
a direct or indirect material interest, including a description of the nature of
the Stockholder Nominee's interest in the transaction(s), the amount of such
transaction(s) and, where practicable, the amount of such person's interest in
the transaction(s):
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
12. Except as set forth below, neither the Stockholder Nominee (nor any
associate of the Stockholder Nominee) has any arrangement or understanding with
any person with respect to any future employment by the Company or its
affiliates or with respect to any future transactions to which the Company or
any of its affiliates will or may be a party:
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--------------------------------------------------------------------------------
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Submitted by:
Westar Industries, Inc.
By: _______________________________
Name: _______________________________
Title: _______________________________
Date: _______________________________
