UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant
to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 8, 2015 (September 4, 2015)
TECO ENERGY,
INC.
(Exact name of registrant as specified in its charter)
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Florida |
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1-8180 |
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59-2052286 |
(State or other jurisdiction
of incorporation) |
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(Commission
File Number) |
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(IRS Employer
identification No.) |
702 N. Franklin Street, Tampa, Florida 33602
(Address of principal executive offices) (Zip code)
Registrants telephone number, including area code: (813) 228-1111
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
x |
Soliciting material pursuant to Rule 14a-12 under the Securities Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01 |
Entry into a Material Definitive Agreement. |
As previously announced, on
September 4, 2015, TECO Energy, Inc., a Florida corporation (TECO Energy), Emera Inc., a Nova Scotia corporation (Emera), and Emera US Inc., a Florida corporation (Merger Sub), entered into an Agreement and
Plan of Merger (the Merger Agreement). The following description of the Merger Agreement is not a complete description thereof and is qualified in its entirety by reference to the full text of the Merger Agreement, which is attached
hereto as Exhibit 2.1 and is incorporated herein by reference.
Upon the terms and subject to the conditions set forth in the Merger
Agreement, which has been unanimously approved and adopted by the board of directors of TECO Energy, at the effective time, Merger Sub will merge with and into TECO Energy (the Merger) with TECO Energy continuing as the surviving
corporation (the Surviving Corporation).
Pursuant to the Merger Agreement, upon the closing of the Merger, each issued and
outstanding share of TECO Energy common stock will be cancelled and converted automatically into the right to receive $27.55 in cash, without interest (the Merger Consideration).
Upon the closing of the Merger, each outstanding option to purchase shares of TECO Energy common stock under TECO Energys stock plans,
whether vested or unvested, will be cancelled and converted into the right to receive a lump-sum cash payment equal to the product of the excess, if any, of (1) the Merger Consideration over (2) the per-share exercise price of such
option, multiplied by the total number of shares of TECO Energy common stock underlying such option. Upon the closing of the Merger, each outstanding restricted share of, or restricted share unit with respect to, TECO Energy common stock will
vest (with any performance goals deemed achieved at the maximum level) and will be cancelled and converted automatically into the right to receive a lump-sum cash payment equal to the Merger Consideration. Each such payment will be made upon the
closing, except that the post-closing portion of each such payment with respect to each restricted share unit granted to employees after September 4, 2015 will be made as promptly as practicable following the vesting date applicable to such unit.
The closing of the Merger is subject to certain conditions, including, among others, (i) approval of TECO Energy shareholders
representing a majority of the outstanding shares of TECO Energy common stock, (ii) expiration or termination of the applicable Hart-Scott-Rodino Act waiting period, (iii) receipt of all required regulatory approvals, including from the
Federal Energy Regulatory Commission, the New Mexico Public Regulation Commission and the Committee on Foreign Investment in the United States, (iv) the absence of any law or judgment that prevents, makes illegal or prohibits the closing of the
Merger, (v) the absence of any material adverse effect with respect to TECO Energy and (vi) subject to certain exceptions, the accuracy of the representations and warranties of, and compliance with covenants by, each of the parties to the
Merger Agreement.
The Merger Agreement contains customary representations, warranties and covenants of TECO Energy, Emera and Merger Sub.
The Merger Agreement contains covenants by TECO Energy, among others, that (i) TECO Energy will conduct its business in the ordinary course during the interim period between the execution of the Merger Agreement and the closing of the Merger
and (ii) TECO Energy will not engage in certain transactions during such interim period. The Merger Agreement contains covenants by Emera, among others, that Emera will use its reasonable best efforts to take all actions necessary to obtain all
governmental and regulatory approvals.
In addition, the Merger Agreement requires Emera (i) to maintain TECO Energys historic levels of community involvement and charitable contributions and support in TECO Energys
existing service territories, (ii) to maintain TECO Energys headquarters in Tampa, Florida, (iii) to honor current union contracts in accordance with their terms and (iv) to provide each continuing non-union employee, for a period of
two years following the closing of the Merger, with a base salary or wage rate no less favorable than, and incentive compensation and employee benefits, respectively, substantially comparable in the aggregate to those, that they received as of
immediately prior to the closing.
TECO Energy is also subject to a no shop restriction that limits its ability to solicit
alternative acquisition proposals or provide nonpublic information to, and engage in discussion with, third parties, except under limited circumstances to permit TECO Energys board of directors to comply with its fiduciary duties.
The Merger Agreement contains certain termination rights for both TECO Energy and Emera. Either party may terminate the Merger Agreement if
(i) the closing of the Merger has not occurred by September 30, 2016 (subject to a 6-month extension if required to obtain necessary regulatory approvals), (ii) a law or judgment preventing or prohibiting the closing of the Merger has
become final, (iii) TECO Energys shareholders do not approve the Merger or (iv) TECO Energys board of directors changes its recommendation so that it is no longer in favor of the Merger. If either party terminates the Merger
Agreement because TECO Energys board of directors changes its recommendation, TECO Energy must pay Emera a termination fee of $212,500,000. If the Merger Agreement is terminated under certain other circumstances, including the failure to
obtain required regulatory approvals, Emera must pay TECO Energy a termination fee of $326,900,000.
The Merger Agreement has been
included to provide TECO Energys shareholders with information regarding its terms and is not intended to provide any other factual information about TECO Energy, Emera or Merger Sub. The Merger Agreement contains representations and
warranties by each of the parties to the Merger Agreement, which are made solely for the benefit of the other parties to the Merger Agreement. The representations and warranties in the Merger Agreement (i) are not intended to be treated as
categorical statements of fact but rather as a way of allocating risk to one of the parties if any such representation or warranty proves to be inaccurate, (ii) may have been qualified in the Merger Agreement by disclosures that were made to
the other party in connection with the negotiation of the applicable agreement, (iii) may be subject to standards of materiality applicable to the parties to the Merger Agreement that differ from what might be viewed as material to shareholders
of such party and (iv) were made only as of the date of the Merger Agreement or such other date or dates as may be specified in the Merger Agreement. TECO Energys shareholders should not rely on the representations, warranties and
covenants, or any descriptions thereof, as characterizations of the actual state of facts or condition of TECO Energy, Emera or Merger Sub.
Item 7.01 |
Regulation FD Disclosure. |
On September 8, 2015, TECO Energy and Emera released an investor
presentation regarding the Merger. A copy of that investor presentation is attached hereto as Exhibit 99.1.
Item 9.01 |
Financial Statements and Exhibits. |
(d) Exhibits.
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Exhibit No. |
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of September 4, 2015, by and among TECO Energy, Emera and Merger Sub* |
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99.1 |
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Investor Presentation of TECO Energy and Emera, dated September 8, 2015 |
* |
Schedules attached to the Merger Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. TECO Energy will furnish the omitted schedules to the Securities and Exchange Commission upon request by
the Commission. |
Information Concerning Forward-Looking Statements
This document contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Statements that are not
historical facts, including statements about beliefs, expectations, estimates, projections, goals, forecasts, assumptions, risks and uncertainties, are forward-looking statements. Forward-looking statements are often characterized by the use of
words such as believes, estimates, expects, projects, may, intends, plans, anticipates, pro forma, predicts, seeks,
could, would, will, can, continue or potential and the negative of these terms or other comparable or similar terminology or expressions. In addition, forward-looking statements
include references to TECO Energys anticipated capital expenditures, liquidity and financing requirements, projected operating results, future environmental matters and regulatory and other plans.
TECO Energy cautions readers that any forward-looking statement is not a guarantee of future performance and that actual results could differ materially from
those contained in any forward-looking statement. Such forward-looking statements include, but are not limited to, statements about the anticipated benefits of the proposed Merger involving TECO Energy and Emera, including future financial or
operating results of TECO Energy, TECO Energys or Emeras plans, objectives, expectations or intentions, the expected timing of completion of the Merger and other statements that are not historical facts. Important factors that could
cause actual results to differ materially from those indicated by any such forward-looking statements include risks and uncertainties relating to the following: (i) the risk that TECO Energy may be unable to obtain shareholder approval for the
Merger or that Emera or TECO Energy may be unable to obtain governmental and regulatory approvals required for the Merger, or required governmental and regulatory approvals may delay the Merger; (ii) the risk that a condition to the closing of
the Merger may not be satisfied; (iii) the timing to consummate the proposed Merger; (iv) disruption from the proposed Merger making it more difficult to maintain relationships with customers, employees, regulators or suppliers;
(v) the diversion of management time and attention on the Merger; (vi) general worldwide economic conditions and related uncertainties; (vii) the effect and timing of changes in laws or in governmental regulations (including
environmental laws and regulations); (viii) the timing and extent of changes in interest rates, commodity prices and demand and market prices for electricity; and (ix) other factors discussed or referred to in the Risk Factors
section of TECO Energys most recent Annual Report on Form 10-K filed with the Securities and Exchange Commission. Additional risks and uncertainties will be discussed in the proxy statement and other materials that TECO Energy will file with
the SEC in connection with the Merger. There can be no assurance that the Merger will be completed, or if it is completed, that it will close within the anticipated time period or that the expected benefits of the Merger will be realized. Each
forward-looking statement speaks only as of the date of the particular statement, and TECO Energy does not undertake any obligation to update or revise its forward-looking statements, whether as a result of new information, future events or
otherwise.
Additional Information and Where to Find It
The proposed Merger will be submitted to shareholders of TECO Energy for their consideration. In connection with the Merger, TECO Energy will file a proxy
statement and other materials with the U.S. Securities and Exchange Commission (the SEC). This material is not a substitute for the proxy statement or any other document that TECO Energy may send to its shareholders in connection with
the proposed Merger.
TECO ENERGYS SHAREHOLDERS ARE ADVISED TO READ THE PROXY STATEMENT FOR THE PROPOSED MERGER WHEN IT IS
FILED, AND ANY AMENDMENT OR SUPPLEMENT THERETO THAT MAY BE FILED, WITH THE SEC BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT TECO ENERGY AND THE MERGER. All such documents, when filed, are available free of charge at the SECs website
(www.sec.gov) or upon request by contacting TECO Energy, Investor Relations, by telephone at 1-800-810-2032 or via email at investorrelations@tecoenergy.com. TECO Energys filings with the SEC are also available on TECO Energys website at
http://investor.tecoenergy.com/investors/SEC-Filings/default.aspx.
Participants in the Solicitation
TECO Energy and its directors and executive officers are deemed to be participants in any solicitation of TECO Energys shareholders in connection with
the proposed Merger. Information about TECO Energys directors and executive officers is available in TECO Energys definitive proxy statement, dated March 11, 2015, for its 2015 annual meeting of shareholders, and in TECO
Energys Annual Report on Form 10-K for the fiscal year ended December 31, 2014.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
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TECO ENERGY, INC. |
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Date: September 8, 2015 |
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By: |
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/s/ Charles A. Attal, III |
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Name: |
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Charles A. Attal, III |
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Title: |
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Senior Vice President-General Counsel and
Chief Legal Officer |
EXHIBIT INDEX
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Exhibit No. |
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of September 4, 2015, by and among TECO Energy, Emera and Merger Sub* |
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99.1 |
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Investor Presentation of TECO Energy and Emera, dated September 8, 2015 |
Exhibit 2.1
Execution Version
AGREEMENT AND PLAN OF MERGER
by
and among
TECO ENERGY, INC.,
EMERA INC.
and
EMERA US INC.
Dated as of
September 4, 2015
TABLE OF CONTENTS
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Page |
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ARTICLE I |
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THE MERGER |
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SECTION 1.01 |
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The Merger |
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2 |
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SECTION 1.02 |
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The Effective Time |
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2 |
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SECTION 1.03 |
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The Closing |
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2 |
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SECTION 1.04 |
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Effects of the Merger |
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2 |
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SECTION 1.05 |
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Organizational Documents |
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2 |
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SECTION 1.06 |
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Surviving Corporation Directors and Officers |
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2 |
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SECTION 1.07 |
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Plan of Merger |
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3 |
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ARTICLE II |
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EFFECT ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES AND
BOOK-ENTRY SHARES |
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SECTION 2.01 |
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Effect of Merger on Capital Stock |
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3 |
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SECTION 2.02 |
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Payment for Shares |
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4 |
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SECTION 2.03 |
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Equity Awards |
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7 |
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ARTICLE III |
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REPRESENTATIONS AND WARRANTIES OF THE COMPANY |
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SECTION 3.01 |
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Organization, Standing and Power |
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9 |
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SECTION 3.02 |
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Company Subsidiaries |
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9 |
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SECTION 3.03 |
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Capital Structure |
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10 |
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SECTION 3.04 |
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Authority; Execution and Delivery; Enforceability |
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11 |
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SECTION 3.05 |
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No Conflicts; Consents |
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11 |
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SECTION 3.06 |
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Company Reports; Financial Statements |
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12 |
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SECTION 3.07 |
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Absence of Certain Changes or Events |
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14 |
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SECTION 3.08 |
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Taxes |
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14 |
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SECTION 3.09 |
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Employee Benefits |
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15 |
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SECTION 3.10 |
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Labor and Employment Matters |
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17 |
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SECTION 3.11 |
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Litigation |
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17 |
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SECTION 3.12 |
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Compliance with Applicable Laws |
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17 |
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SECTION 3.13 |
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Takeover Statutes |
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18 |
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SECTION 3.14 |
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Environmental Matters |
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18 |
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SECTION 3.15 |
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Contracts |
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19 |
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SECTION 3.16 |
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Real Property |
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19 |
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SECTION 3.17 |
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Intellectual Property |
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19 |
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SECTION 3.18 |
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Insurance |
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19 |
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SECTION 3.19 |
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Regulatory Status |
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20 |
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SECTION 3.20 |
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Brokers Fees and Expenses |
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20 |
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SECTION 3.21 |
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Opinion of Financial Advisor |
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20 |
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SECTION 3.22 |
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No Additional Representations |
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20 |
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ARTICLE IV |
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REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB |
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SECTION 4.01 |
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Organization, Standing and Power |
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21 |
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SECTION 4.02 |
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Authority; Execution and Delivery; Enforceability |
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21 |
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SECTION 4.03 |
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No Conflicts; Consents |
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SECTION 4.04 |
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Litigation |
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SECTION 4.05 |
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Compliance with Applicable Laws |
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SECTION 4.06 |
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Financing |
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23 |
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SECTION 4.07 |
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Brokers Fees and Expenses |
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SECTION 4.08 |
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Merger Sub |
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24 |
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SECTION 4.09 |
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Ownership of Company Common Stock; Interested Shareholder |
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SECTION 4.10 |
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Regulatory Status |
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SECTION 4.11 |
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No Additional Representations |
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ARTICLE V |
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COVENANTS RELATING TO CONDUCT OF BUSINESS |
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SECTION 5.01 |
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Conduct of Business |
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SECTION 5.02 |
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Proceedings |
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SECTION 5.03 |
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No Solicitation by the Company; Company Board Recommendation |
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SECTION 5.04 |
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Financing |
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SECTION 5.05 |
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Financing Cooperation |
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ARTICLE VI |
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ADDITIONAL AGREEMENTS |
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SECTION 6.01 |
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Preparation of the Proxy Statement; Company Shareholders Meeting |
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SECTION 6.02 |
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Access to Information; Confidentiality |
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SECTION 6.03 |
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Further Actions; Regulatory Approvals; Required Actions |
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SECTION 6.04 |
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Transaction Litigation |
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SECTION 6.05 |
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Section 16 Matters |
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SECTION 6.06 |
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Governance Matters |
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SECTION 6.07 |
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Public Announcements |
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SECTION 6.08 |
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Fees, Costs and Expenses |
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SECTION 6.09 |
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Indemnification, Exculpation and Insurance |
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SECTION 6.10 |
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Employee Matters |
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SECTION 6.11 |
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Merger Sub |
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SECTION 6.12 |
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Takeover Statutes |
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ARTICLE VII |
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CONDITIONS PRECEDENT |
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SECTION 7.01 |
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Conditions to Each Partys Obligation to Effect the Transactions |
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SECTION 7.02 |
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Conditions to Obligations of the Company |
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SECTION 7.03 |
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Conditions to Obligations of Parent and Merger Sub |
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ARTICLE VIII |
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TERMINATION, AMENDMENT AND WAIVER |
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SECTION 8.01 |
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Termination Rights |
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51 |
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SECTION 8.02 |
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Effect of Termination; Termination Fees |
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SECTION 8.03 |
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Amendment |
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SECTION 8.04 |
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Extension; Waiver |
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56 |
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SECTION 8.05 |
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Procedure for Termination, Amendment, Extension or Waiver |
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56 |
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ARTICLE IX |
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GENERAL PROVISIONS |
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SECTION 9.01 |
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Nonsurvival of Representations, Warranties, Covenants and Agreements; Contractual Nature of Representations and Warranties |
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56 |
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SECTION 9.02 |
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Notices |
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57 |
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SECTION 9.03 |
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Definitions |
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SECTION 9.04 |
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Interpretation |
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58 |
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SECTION 9.05 |
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Severability |
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SECTION 9.06 |
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Counterparts |
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SECTION 9.07 |
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Entire Agreement; No Third-Party Beneficiaries |
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59 |
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SECTION 9.08 |
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Governing Law |
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60 |
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SECTION 9.09 |
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Assignment |
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60 |
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SECTION 9.10 |
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Specific Enforcement |
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60 |
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SECTION 9.11 |
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Jurisdiction; Venue |
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SECTION 9.12 |
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Waiver of Jury Trial |
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61 |
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SECTION 9.13 |
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Construction |
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62 |
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SECTION 9.14 |
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Financing Sources |
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62 |
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Exhibits
Exhibit A Definitions
iii
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this Agreement), dated as of September 4, 2015, is by and among TECO Energy, Inc.,
a Florida corporation (the Company), Emera Inc., a Nova Scotia corporation (Parent), and Emera US Inc., a Florida corporation (Merger Sub and, together with the Company and Parent, the
Parties).
RECITALS
WHEREAS, the Parties intend that, upon the terms and subject to the conditions set forth herein, at the Effective Time, Merger Sub will merge
with and into the Company, with the Company surviving such merger;
WHEREAS, the board of directors of the Company (the Company
Board) has (a) determined that it is in the best interests of the Company and its shareholders, and declared it advisable, for the Company to enter into this Agreement, (b) adopted this Agreement and approved the Companys
execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and (c) resolved to recommend that the Companys shareholders approve this Agreement;
WHEREAS, the board of directors of Parent has (a) determined that it is in the best interests of Parent and its shareholders, and
declared it advisable, for Parent to enter into this Agreement and (b) adopted this Agreement and approved Parents execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this
Agreement;
WHEREAS, the board of directors of Merger Sub has (a) determined that it is in the best interests of Merger Sub and its
shareholder, and declared it advisable, for Merger Sub to enter into this Agreement, (b) adopted this Agreement and approved Merger Subs execution, delivery and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement and (c) resolved to recommend that Emera US Holdings Inc. (EUSHI), in its capacity as Merger Subs sole shareholder, approve this Agreement;
WHEREAS, EUSHI has approved this Agreement by written consent in its capacity as the sole shareholder of Merger Sub; and
WHEREAS, the Company, Parent and Merger Sub desire to make certain representations, warranties, covenants and agreements specified herein in
connection with this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and
agreements set forth herein, and subject to the conditions set forth herein, and each intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
THE MERGER
SECTION 1.01 The Merger. At the Effective Time, upon the terms and subject to the conditions set forth herein, Merger Sub shall be
merged with and into the Company in accordance with the Florida Business Corporation Act (the FBCA) and this Agreement (the Merger), and the separate corporate existence of Merger Sub shall cease. The Company
shall be the surviving corporation in the Merger (sometimes referred to herein as the Surviving Corporation).
SECTION 1.02 The Effective Time. As soon as practicable on the Closing Date, the Company shall deliver to the Department of State
of the State of Florida articles of merger with respect to the Merger, in such form as is required by, and executed in accordance with, the relevant provisions of the FBCA (the Articles of Merger). The Merger shall become
effective at the time the Articles of Merger are duly filed with the Department of State of the State of Florida in accordance with the FBCA or at such later time as is permissible in accordance with the FBCA and, as the Parties may mutually agree,
as specified in the Articles of Merger (the time the Merger becomes effective, the Effective Time).
SECTION 1.03
The Closing. Unless this Agreement has been terminated in accordance with Section 8.01, the consummation of the Merger (the Closing) shall take place at the offices of Skadden, Arps, Slate, Meagher &
Flom LLP, 4 Times Square, New York, New York 10036 at 10:00 a.m. New York City time on a date to be mutually agreed to by the Parties, which date shall be no later than the third Business Day after the satisfaction or waiver of the conditions to the
Closing set forth in Article VII (except for those conditions to the Closing that by their terms are to be satisfied at the Closing but subject to the satisfaction or waiver of such conditions) unless another time, date or place is mutually
agreed to in writing by the Parties. The date on which the Closing occurs is referred to herein as the Closing Date.
SECTION 1.04 Effects of the Merger. The Merger shall have the effects specified herein and in the applicable provisions of the
FBCA, including Section 607.1106 thereof.
SECTION 1.05 Organizational Documents. As of the Effective Time, the articles
of incorporation of the Surviving Corporation shall be amended and restated to be the same as the articles of incorporation of Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended as provided therein and in
accordance with applicable Law, except that the name of the Surviving Corporation shall be TECO Energy, Inc. As of the Effective Time, the bylaws of the Surviving Corporation shall be amended and restated to be the same as the bylaws of
Merger Sub, as in effect immediately prior to the Effective Time, until thereafter amended as provided therein and in accordance with applicable Law, except that the name of the Surviving Corporation shall be TECO Energy, Inc.
SECTION 1.06 Surviving Corporation Directors and Officers. As of the Effective Time, (i) the directors of Merger Sub as of
immediately prior to the Effective Time shall be the directors of the Surviving Corporation and (ii) the officers of the Company as of immediately prior to the Effective Time shall be the officers of the Surviving Corporation, in each case
until their successors have been duly elected or appointed or until their earlier death, resignation or removal.
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SECTION 1.07 Plan of Merger. This Article I and Article II and, solely
to the extent necessary under the FBCA, the other provisions of this Agreement shall constitute a plan of merger for purposes of the FBCA.
ARTICLE II
EFFECT ON CAPITAL
STOCK; EXCHANGE OF CERTIFICATES AND
BOOK-ENTRY SHARES
SECTION 2.01 Effect of Merger on Capital Stock.
(a) Cancellation of Treasury Stock and Parent-Owned Stock; Conversion of Company Common Stock; Conversion of Merger Sub Common Stock.
At the Effective Time, by virtue of the Merger and without any action on the part of the Company, Parent, Merger Sub or any holder of shares of Company Common Stock:
(i) each share of common stock, $1.00 par value, of the Company (Company Common Stock) that is owned by the
Company as treasury stock, if any, each share of Company Common Stock that is owned by a wholly owned Subsidiary of the Company, if any, and each share of Company Common Stock that is owned directly or indirectly by Parent or Merger Sub, if any,
immediately prior to the Effective Time shall no longer be outstanding and shall automatically be canceled and retired and shall cease to exist, and no consideration shall be delivered in exchange therefor;
(ii) subject to Section 2.01(b), each share of Company Common Stock issued and outstanding immediately prior to
the Effective Time (except for shares to be canceled and retired or converted in accordance with Section 2.01(a)(i) and Company Restricted Shares to be canceled and converted in accordance with Section 2.03(b)) shall be
converted automatically into the right to receive an amount in cash (without interest) equal to the Merger Consideration, payable as provided in Section 2.02, and, when so converted, shall automatically be canceled and retired and shall
cease to exist;
(iii) each share of common stock, par value $0.01 per share, of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into one share of common stock, $1.00 par value, of the Surviving Corporation and shall constitute the only outstanding shares of capital stock of the Surviving Corporation.
(b) Adjustments to Merger Consideration. If at any time during the period between the date of this Agreement and the Effective Time,
any change in the outstanding shares of capital stock of the Company (or any other securities convertible therefor or
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exchangeable thereto) shall occur as a result of any reclassification, stock split (including a reverse stock split), combination, exchange or readjustment of shares, or any stock dividend or
stock distribution with a record date during such period, or any similar event, the Merger Consideration and any other similarly dependent items shall be equitably adjusted to provide to Parent, Merger Sub, and the holders of Company Common Stock
the same economic effect as contemplated by this Agreement prior to such action.
SECTION 2.02 Payment for Shares.
(a) Paying Agent. Prior to the Effective Time, Parent and the Company shall mutually agree upon and appoint a bank or trust company to
act as paying agent (the Paying Agent) for the purpose of exchanging shares of Company Common Stock for the Merger Consideration in accordance with Section 2.01(a)(ii). At or prior to the Effective Time, Parent shall
irrevocably deposit or cause to be deposited with the Paying Agent, in trust for the benefit of the holders of Company Common Stock contemplated by Section 2.01(a)(ii), cash in an amount equal to the aggregate amount of the Merger
Consideration pursuant to Section 2.01(a)(ii) (the Payment Fund).
(b) Payment Procedures.
(i) Promptly after the Effective Time (but no later than two (2) Business Days after the Effective Time), the Paying
Agent will mail to each holder of record of a certificate representing outstanding shares of Company Common Stock immediately prior to the Effective Time (a Certificate) and to each holder of uncertificated shares of Company
Common Stock represented by book entry immediately prior to the Effective Time (Book-Entry Shares), in each case, whose shares were converted into the right to receive the Merger Consideration pursuant to
Section 2.01(a)(ii):
(1) a letter of transmittal, which shall specify that delivery shall be effected, and
that risk of loss and title to Certificates or Book-Entry Shares held by such holder will pass, only upon delivery of such Certificates or Book-Entry Shares to the Paying Agent and which shall be in form and substance reasonably satisfactory to
Parent and the Company, and
(2) instructions for use in effecting the surrender of such Certificates or Book-Entry Shares
in exchange for the Merger Consideration with respect to such shares.
(ii) Upon surrender to, and acceptance in
accordance with Section 2.02(b)(iii) by, the Paying Agent of a Certificate or Book-Entry Share, the holder thereof will be entitled to the Merger Consideration payable in respect of the number of shares of Company Common Stock formerly
represented by such Certificate or Book-Entry Share surrendered under this Agreement.
(iii) The Paying Agent will accept
Certificates or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to effect an orderly exchange of the Certificates and Book-Entry Shares in accordance with customary exchange practices.
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(iv) From and after the Effective Time, no further transfers may be made on the
records of the Company or its transfer agent of Certificates or Book-Entry Shares, and if any Certificate or Book-Entry Share is presented to the Company for transfer, such Certificate of Book-Entry Share shall be canceled against delivery of the
Merger Consideration payable in respect of the shares of Company Common Stock represented by such Certificate or Book-Entry Share.
(v) If any Merger Consideration is to be remitted to a name other than that in which a Certificate or Book-Entry Share is
registered, no Merger Consideration may be paid in exchange for such surrendered Certificate or Book-Entry Share unless:
(1) either (A) the Certificate so surrendered is properly endorsed, with signature guaranteed, or otherwise in proper
form for transfer or (B) the Book-Entry Share is properly transferred; and
(2) the Person requesting such payment
shall (A) pay any transfer or other Taxes required by reason of the payment to a Person other than the registered holder of the Certificate or Book-Entry Share or (B) establish to the satisfaction of the Paying Agent that such Tax has been
paid or is not payable.
(vi) At any time after the Effective Time until surrendered as contemplated by this
Section 2.02, each Certificate or Book-Entry Share shall be deemed to represent only the right to receive upon such surrender the Merger Consideration payable in respect of the shares of Company Common Stock represented by such
Certificate or Book-Entry Share as contemplated by Section 2.01(a)(ii). No interest will be paid or accrued for the benefit of holders of Certificates or Book-Entry Shares on the Merger Consideration payable in respect of the shares of
Company Common Stock represented by Certificates or Book-Entry Shares.
(c) No Further Ownership Rights in Company Common Stock.
(i) At the Effective Time, each holder of a Certificate, and each holder of Book-Entry Shares, will cease to have any
rights with respect to such shares of Company Common Stock, except, to the extent provided by Section 2.01, for the right to receive the Merger Consideration payable in respect of the shares of Company Common Stock formerly represented
by such Certificate or Book-Entry Shares upon surrender of such Certificate or Book-Entry Share in accordance with Section 2.02(b);
(ii) The Merger Consideration paid upon the surrender or exchange of Certificates or Book-Entry Shares in accordance with this
Section 2.02 will be deemed to have been paid in full satisfaction of all rights pertaining to the shares of Company Common Stock formerly represented by such Certificates or Book-Entry Shares.
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(d) Termination of Payment Fund. The Paying Agent will deliver to the Surviving
Corporation, upon the Surviving Corporations demand, any portion of the Payment Fund (including any interest and other income received by the Paying Agent in respect of all such funds) which remains undistributed to the former holders of
Certificates or Book-Entry Shares upon expiration of the period ending one (1) year after the Effective Time. Thereafter, any former holder of Certificates or Book-Entry Shares prior to the Merger who has not complied with this
Section 2.02 prior to such time, may look only to the Surviving Corporation for payment of his, her or its claim for Merger Consideration to which such holder may be entitled.
(e) Investment of Payment Fund. The Paying Agent shall invest any cash in the Payment Fund if and as directed by Parent;
provided that such investment shall be in obligations of, or guaranteed by, the United States of America, in commercial paper obligations of issuers organized under the Law of a state of the United States of America, rated A-1 or P-1 or
better by Moodys Investors Service, Inc. or Standard & Poors Ratings Service, respectively, or in certificates of deposit, bank repurchase agreements or bankers acceptances of commercial banks with capital exceeding
$10,000,000,000, or in mutual funds investing in such assets. Any interest and other income resulting from such investments shall be paid to, and be the property of, Parent. No investment losses resulting from investment of the Payment Fund shall
diminish the rights of any of the Companys shareholders to receive the Merger Consideration or any other payment as provided herein. To the extent there are losses with respect to such investments or the Payment Fund diminishes for any other
reason below the level required to make prompt cash payment of the aggregate funds required to be paid pursuant to the terms hereof, Parent shall reasonably promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment
Fund is at all times maintained at a level sufficient to make such cash payments.
(f) No Liability. None of the Company, Parent,
Merger Sub, the Surviving Corporation or the Paying Agent shall be liable to any Person in respect of any portion of the Payment Fund delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(g) Withholding Taxes. Each of Parent, the Surviving Corporation and the Paying Agent shall be entitled to deduct and withhold from
the consideration otherwise payable pursuant to this Agreement to any holder of Certificates, Book-Entry Shares, Company Stock Options or Company Restricted Shares such amounts as may be required to be deducted and withheld with respect to the
making of such payment under applicable Tax Law. Amounts so withheld and paid over to the appropriate taxing authority shall be treated for all purposes under this Agreement as having been paid to the holder of Certificates, Book-Entry Shares,
Company Stock Options or Company Restricted Shares, as applicable, in respect of which such deduction or withholding was made.
(h)
Lost, Stolen or Destroyed Certificates. If any Certificate formerly representing shares of Company Common Stock has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be
lost, stolen or destroyed and, if required by Parent, the posting by such Person of a bond, in such reasonable and customary amount as Parent may direct, as indemnity against any claim that may be made
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against it with respect to such Certificate, the Paying Agent shall deliver and pay, in exchange for such lost, stolen or destroyed certificate, the Merger Consideration payable in respect
thereof pursuant to this Agreement.
SECTION 2.03 Equity Awards.
(a) Each Company Stock Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, shall be cancelled and
converted, as of the Effective Time, into the right to receive a lump-sum cash payment equal to the product of (i) the excess, if any, of (1) the Merger Consideration, without interest, over (2) the per-share exercise price for such
Company Stock Option, multiplied by (ii) the total number of shares of Company Common Stock underlying such Company Stock Option (the Company Stock Option Consideration). All payments of Company Stock Option
Consideration shall be made by the Surviving Corporation, less applicable Tax withholdings, as promptly as practicable following the Effective Time (and in all events no later than the later of (A) five (5) Business Days following the
Closing Date and (B) the last day of the Surviving Corporations first regular payroll cycle following the Closing Date).
(b)
Each Company Restricted Share and each Company Restricted Share Unit that is granted after the date of this Agreement to non-employee directors of the Company that is outstanding immediately prior to the Effective Time shall become vested as of the
Effective Time and shall be cancelled and converted, as of the Effective Time, into the right to receive a lump-sum cash payment equal to the Merger Consideration, without interest (the Company Restricted Share Consideration). For
purposes of determining the number of Company Restricted Shares outstanding immediately prior to the Effective Time, any applicable performance objectives and bonus multipliers shall be deemed achieved immediately prior to the Effective Time at the
maximum payout level (without giving effect to any proration). All payments of Company Restricted Share Consideration (and the amount of any dividends associated with each such Company Restricted Share or Company Restricted Share Unit, as
applicable, outstanding immediately prior to the Effective Time) shall be made by the Surviving Corporation, less applicable Tax withholdings, as promptly as practicable following the Effective Time (and in all events no later than the later of
(i) five (5) Business Days following the Closing Date and (ii) the last day of the Surviving Corporations first regular payroll cycle following the Closing).
(c) Except as provided in Section 2.03(b), each Company Restricted Share Unit that is granted after the date hereof that is not
subject to performance objectives and that is outstanding immediately prior to the Effective Time shall be cancelled and converted, as of the Effective Time, into the right to receive a lump-sum cash payment equal to a prorated amount of the Merger
Consideration, without interest, and a Cash Service Award (as defined in Section 2.03(d)). The amount of such cash payment shall equal the product of (i) the sum of the Merger Consideration plus the amount of any dividend
equivalents associated with such Company Restricted Share Unit, multiplied by (ii) a fraction, the numerator of which is the number of days during the period beginning on January 1 of the year in which such Company Restricted Share Unit
was granted and ending on the Closing Date, and the denominator of which is 1,096. Such payment shall be made by the Surviving Corporation, less applicable Tax withholdings, as promptly as practicable following the Effective Time (and in all events
no later than the later of (x) five (5) Business Days following the Closing Date and (y) the last day of the Surviving Corporations first regular payroll cycle following the Closing).
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(d) Cash Service Award means a right to receive a cash payment in an amount
equal to the product of (i) the sum of the Merger Consideration plus the amount of any dividend equivalent associated with the applicable Company Restricted Share Unit, multiplied by (ii) a fraction, the numerator of which is the number of
days during the period commencing on the day after the Closing Date and ending on the last day of the vesting period applicable to such Company Restricted Share Unit, and the denominator of which is 1,096. Each Cash Service Award shall otherwise be
subject to the same terms and conditions as applied to the corresponding Company Restricted Share Unit as of immediately prior to the Effective Time under the applicable Company Stock Plan and award agreement, including vesting. Payment with respect
to each Cash Service Award shall be made by the Surviving Corporation, less applicable Tax withholdings, as promptly as practicable following the applicable vesting date.
(e) Each Company Restricted Share Unit that is granted after the date hereof that is subject to performance objectives and that is
outstanding immediately prior to the Effective Time shall be cancelled and converted, as of the Effective Time, into the right to receive a lump-sum cash payment equal to a prorated amount of the Merger Consideration, without interest, and an
Additional Cash Service Award (as defined in Section 2.03(f)). For purposes of determining the number of such Company Restricted Shares Units outstanding immediately prior to the Effective Time, any applicable performance objectives and
bonus multipliers shall be deemed achieved immediately prior to the Effective Time at the maximum payout level (without giving effect to any proration). The amount of such cash payment shall equal the product of (i) the sum of the Merger
Consideration plus the amount of any dividend equivalents associated with such Company Restricted Share Unit, multiplied by (ii) a fraction, the numerator of which is the number of days during the period beginning on January 1 of
the year in which such Company Restricted Share Unit was granted and ending on the Closing Date, and the denominator of which is 1,096. Such payment shall be made by the Surviving Corporation, less applicable Tax withholdings, as promptly as
practicable following the Effective Time (and in all events no later than the later of (x) five (5) Business Days following the Closing Date and (y) the last day of the Surviving Corporations first regular payroll cycle
following the Closing).
(f) Additional Cash Service Award means a right to receive a cash payment in an amount equal
to the product of (i) the sum of the Merger Consideration plus the amount of any dividend equivalent associated with the applicable Company Restricted Share Unit, multiplied by (ii) a fraction, the numerator of which is the number
of days during the period commencing on the day after the Closing Date and ending on the last day of the performance period applicable for the performance vesting measurement established under the award terms of such Company Restricted Share Unit,
and the denominator of which is 1,096. Each Additional Cash Service Award shall be subject to service vesting (but not performance vesting) based on the service-based terms and conditions that applied to the corresponding Company Restricted Share
Unit as of immediately prior to the Effective Time under the applicable Company Stock Plan and award agreement. Payment with respect to each Additional Cash Service Award shall be made by the Surviving Corporation, less applicable Tax withholdings,
as promptly as practicable following the applicable vesting date.
(g) Prior to the Effective Time, the Company Board or the appropriate
committee thereof shall adopt resolutions providing for, and shall take any other actions that are necessary to effect, the treatment of the Company Stock Options, the Company Restricted Shares and the Company Restricted Share Units as contemplated
by this Section 2.03.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (a) as set forth in the Company Reports publicly available and filed with or furnished to the SEC prior to the date of this
Agreement (excluding any statements that are predictive, cautionary or forward-looking in nature) or (b) subject to Section 9.04(j), as set forth in the corresponding section of the disclosure letter delivered by the Company to
Parent concurrently with the execution and delivery by the Company of this Agreement (the Company Disclosure Letter), the Company represents and warrants to Parent and Merger Sub as follows:
SECTION 3.01 Organization, Standing and Power. Each of the Company and the Companys Subsidiaries (the Company
Subsidiaries) is duly organized, validly existing and in active status or good standing, as applicable, under the laws of the jurisdiction in which it is organized (in the case of active status or good standing, to the extent such
jurisdiction recognizes such concept), except, in the case of the Company Subsidiaries, where the failure to be so organized, existing or in active status or good standing, as applicable, has not had and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Each of the Company and the Company Subsidiaries has all requisite entity power and authority to enable it to own, operate, lease or otherwise hold its properties and assets and to
conduct its businesses as presently conducted, except where the failure to have such power or authority would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Each of the
Company and the Company Subsidiaries is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership, operation or leasing of its properties make such qualification necessary, except in any such
jurisdiction where the failure to be so qualified or licensed would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company has made available to Parent true and complete
copies of the amended and restated articles of incorporation of the Company in effect as of the date of this Agreement (the Company Articles) and the bylaws of the Company in effect as of the date of this Agreement (the
Company Bylaws).
SECTION 3.02 Company Subsidiaries. All the outstanding shares of capital stock or voting
securities of, or other equity interests in, each Company Subsidiary have been validly issued and are fully paid and nonassessable and are owned by the Company, by another Company Subsidiary or by the Company and another Company Subsidiary, free and
clear of (a) all pledges, liens, charges, mortgages, encumbrances and security interests of any kind or nature whatsoever (collectively, Liens) and (b) any other restriction (including any restriction on the right to
vote, sell or otherwise dispose of such capital stock, voting securities or other equity interests), except, in the case of the foregoing clauses (a) and (b), as imposed by this Agreement, the Organizational Documents of the Company
Subsidiaries or applicable securities Laws. Section 3.02 of the Company Disclosure Letter sets forth, as of the date of this Agreement, a true
9
and complete list of the Company Subsidiaries. The Company has made available to Parent true and complete copies of the articles of incorporation and bylaws (or equivalent constituent documents)
of each Company Subsidiary in effect as of the date of this Agreement. Neither the Company nor any Company Subsidiary owns any shares of capital stock or voting securities of, or other equity interests in, any Person other than the Company
Subsidiaries.
SECTION 3.03 Capital Structure.
(a) The authorized capital stock of the Company consists of 400,000,000 shares of Company Common Stock and 10,000,000 shares of preferred
stock of the Company, $1.00 par value (the Company Preferred Stock). At the close of business on August 31, 2015, (i) 235,251,659 shares of Company Common Stock were issued and outstanding (of which 1,988,659 were
Company Restricted Shares), (ii) no shares of Company Preferred Stock were issued and outstanding and (iii) no shares of Company Common Stock were held by the Company in its treasury. At the close of business on August 31, 2015, an
aggregate of 2,419,563 shares of Company Common Stock were reserved and available for issuance pursuant to the Company Stock Plans. At the close of business on August 31, 2015, (i) Company Stock Options to purchase an aggregate of 355,098
shares of Company Common Stock were issued and outstanding, with a weighted average exercise price of $16.295 and (ii) an aggregate of 890,432 shares of Company Common Stock were issuable on the vesting of outstanding Company Restricted Shares
(assuming maximum attainment of the applicable performance goals and bonus multipliers).
(b) All outstanding shares of Company Common
Stock are, and all shares of Company Common Stock that may be issued upon the exercise of Company Stock Options or the vesting of Company Restricted Shares will be, when issued, duly authorized, validly issued, fully paid and nonassessable and not
subject to, or issued in violation of, any preemptive right. Except as set forth in this Section 3.03 or Section 3.03(b) of the Company Disclosure Letter or pursuant to the terms of this Agreement, there are not issued,
reserved for issuance or outstanding, and there are not any outstanding obligations of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, (i) any capital stock of the Company or any
Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or exercisable for shares of capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary or
(ii) any warrants, calls, options or other rights to acquire from the Company or any Company Subsidiary, or any other obligation of the Company or any Company Subsidiary to issue, deliver or sell, or cause to be issued, delivered or sold, any
capital stock or voting securities of, or other equity interests in, the Company or any Company Subsidiary (the foregoing clauses (i) and (ii), collectively, Equity Securities). Except pursuant to the Company Stock Plans,
there are not any outstanding obligations of the Company or any Company Subsidiary to repurchase, redeem or otherwise acquire any Equity Securities. There is no outstanding Indebtedness of the Company having the right to vote (or convertible into,
or exchangeable for, securities having the right to vote) on any matters on which shareholders of the Company may vote (Company Voting Debt). No Company Subsidiary owns any shares of Company Common Stock.
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SECTION 3.04 Authority; Execution and Delivery; Enforceability. The Company has all
requisite corporate power and authority to execute and deliver this Agreement, to perform its covenants and agreements hereunder and to consummate the Merger, subject, in the case of the Merger, to the receipt of the Company Shareholder Approval.
The Company Board has adopted resolutions, at a meeting duly called at which a quorum of directors of the Company was present, (a) determining that it is in the best interests of the Company and its shareholders, and declaring it advisable, for
the Company to enter into this Agreement, (b) adopting this Agreement and approving the Companys execution, delivery and performance of this Agreement and the consummation of the transactions contemplated thereby and (c) resolving to
recommend that the Companys shareholders approve this Agreement (the Company Board Recommendation) and directing that this Agreement be submitted to the Companys shareholders for approval at a duly held meeting of such
shareholders for such purpose (the Company Shareholders Meeting). Such resolutions have not been amended or withdrawn as of the date of this Agreement. Except for (i) the approval of this Agreement by the affirmative vote of
the holders of a majority of all of the outstanding shares of Company Common Stock entitled to vote at the Company Shareholders Meeting (the Company Shareholder Approval) and (ii) the filing of the Articles of Merger as
required by the FBCA, no other vote or corporate proceedings on the part of the Company or its shareholders are necessary to authorize, adopt or approve this Agreement or to consummate the Merger. The Company has duly executed and delivered this
Agreement and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, subject in all respects to the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other Laws relating to or affecting creditors rights generally and general equitable principles (whether considered in a proceeding in equity or at law)
(the Bankruptcy and Equity Exceptions).
SECTION 3.05 No Conflicts; Consents.
(a) The execution and delivery by the Company of this Agreement does not, and the performance by the Company of its covenants and agreements
hereunder and the consummation of the Merger will not, (i) subject to obtaining the Company Shareholder Approval, conflict with, or result in any violation of any provision of, the Company Articles, the Company Bylaws or the Organizational
Documents of any Company Subsidiary, (ii) subject to obtaining the Consents set forth in Section 3.05(a)(ii) of the Company Disclosure Letter (the Company Required Consents), conflict with, result in any violation
of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss of a material benefit under any Filed Company Contract or any
material Permit applicable to the business of the Company and the Company Subsidiaries or (iii) subject to obtaining the Company Shareholder Approval and the Consents referred to in Section 3.05(b) and making the Filings referred to
in Section 3.05(b), conflict with, or result in any violation of any provision of, any Judgment or Law, in each case, applicable to the Company or any Company Subsidiary or their respective properties or assets, except for, in the case
of the foregoing clauses (ii) and (iii), any matter that would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and would not prevent or materially impede, interfere with
or delay the consummation of the Merger.
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(b) No consent, waiver or Permit (Consent) of or from, or registration,
declaration, notice or filing (Filing) made to or with, any Governmental Entity is required to be obtained or made by the Company or any Company Subsidiary in connection with the Companys execution and delivery of this
Agreement or its performance of its covenants and agreements hereunder or the consummation of the Merger, except for the following:
(i) (1) the filing with the Securities and Exchange Commission (the SEC), in preliminary and definitive
form, of the Proxy Statement and (2) the filing with the SEC of such reports under, and such other compliance with, the Securities Exchange Act of 1934, as amended (the Exchange Act), or the Securities Act of 1933, as
amended (the Securities Act), and rules and regulations of the SEC promulgated thereunder, as may be required in connection with this Agreement or the Merger;
(ii) compliance with, Filings under and the expiration of any applicable waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder (the HSR Act) and such other Consents or Filings as are required to be obtained or made under any other Antitrust Law;
(iii) the filing of the Articles of Merger with the Department of State of the State of Florida and appropriate documents with
the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business;
(iv)
(1) Filings with, and the Consent of, the Federal Energy Regulatory Commission (the FERC) under Section 203 of the Federal Power Act (the FPA); (2) the CFIUS Approval, and Filings with respect thereto,
(3) the Filings with, and the Consent of, the New Mexico Public Regulation Commission (the NMPRC) and (4) and the other Filings and Consents set forth in Section 3.05(b)(iv) of the Company Disclosure Letter
(the Consents and Filings set forth in Section 3.05(b)(ii) and this Section 3.05(b)(iv), collectively, the Company Required Statutory Approvals);
(v) the Company Required Consents;
(vi) Filings and Consents as are required to be made or obtained under state or federal property transfer Laws or
Environmental Laws; and
(vii) such other Filings or Consents the failure of which to make or obtain would not have or
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect and would not prevent or materially impede, interfere with or delay the consummation of the Merger.
SECTION 3.06 Company Reports; Financial Statements.
(a) The Company has furnished or filed all reports, schedules, forms, statements and other documents (including exhibits and other
information incorporated therein) required to be furnished or filed by the Company with the SEC since January 1, 2014 (such documents, together will all exhibits, financial statements, including the Company Financial Statements, and schedules
thereto and all information incorporated therein by reference, but
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excluding the Proxy Statement, being collectively referred to as the Company Reports). Each Company Report (i) at the time furnished or filed, complied in all material
respects with the applicable requirements of the Exchange Act, the Securities Act or the Sarbanes-Oxley Act of 2002 (including the rules and regulations promulgated thereunder), as the case may be, and the rules and regulations of the SEC
promulgated thereunder applicable to such Company Report and (ii) did not at the time it was filed (or if amended or superseded by a filing or amendment prior to the date of this Agreement, then at the time of such filing or amendment) contain
any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Each of the
consolidated financial statements of the Company included in the Company Reports (the Company Financial Statements) complied at the time it was filed as to form in all material respects with applicable accounting requirements and
the published rules and regulations of the SEC with respect thereto, was prepared in accordance with United States generally accepted accounting principles (GAAP) (except, in the case of unaudited quarterly financial statements,
as permitted by Form 10-Q of the SEC) applied on a consistent basis during the periods and as of the dates involved (except as may be indicated in the notes thereto) and fairly present in all material respects, in accordance with GAAP, the
consolidated financial position of the Company and the Companys consolidated Subsidiaries as of the dates thereof and the consolidated results of their operations and cash flows for the periods shown (subject, in the case of unaudited
quarterly financial statements, to normal year-end audit adjustments).
(b) Neither the Company nor any Company Subsidiary has any
liability of any nature that is required by GAAP to be set forth on a consolidated balance sheet of the Company and the Company Subsidiaries, except liabilities (i) reflected or reserved against in the most recent balance sheet (including the
notes thereto) of the Company and the Company Subsidiaries included in the Company Reports filed prior to the date hereof, (ii) incurred in the ordinary course of business after June 30, 2015, (iii) incurred in connection with the
Merger or any other transaction or agreement contemplated by this Agreement or (iv) that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(c) The Company maintains a system of internal control over financial reporting (as defined in Rule 13a-15 or 15d-15, as
applicable, under the Exchange Act). Such internal control over financial reporting is effective in providing reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in
accordance with GAAP in all material respects. Except as has not had, and would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect, (i) the Company maintains disclosure controls and
procedures required by Rule 13a-15 or 15d-15 under the Exchange Act that are effective to ensure that information required to be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded, processed,
summarized and reported on a timely basis to the individuals responsible for the preparation of the Companys filings with the SEC and other public disclosure documents and (ii) the Company has disclosed, based on its most recent
evaluation prior to the date of this Agreement, to the Companys outside auditors and the audit committee of the Company Board (1) any significant deficiencies and material weaknesses in the design or operation of internal controls over
financial reporting (as defined in Rule 13a-15(f)
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under the Exchange Act) that are reasonably likely to adversely affect the Companys ability to record, process, summarize and report financial information and (2) any fraud, known to
the Company, whether or not material, that involves management or other employees who have a significant role in the Companys internal controls over financial reporting.
SECTION 3.07 Absence of Certain Changes or Events. From December 31, 2014 to the date of this Agreement, each of the Company
and the Company Subsidiaries has conducted its respective business in the ordinary course of business in all material respects, and during such period there has not occurred any fact, circumstance, effect, change, event or development that has had
or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
SECTION 3.08
Taxes.
(a) Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect:
(i) (1) each of the Company and each Company Subsidiary has timely filed, taking into
account any extensions, all Tax Returns required to have been filed and such Tax Returns are accurate and complete in all respects and (2) all Taxes shown to be due on such Tax Returns have been timely paid in full;
(ii) (1) neither the Company nor any Company Subsidiary has received written notice of any audit, examination, investigation
or other proceeding from any taxing authority for any amount of unpaid Taxes asserted against the Company or any Company Subsidiary, which have not been fully paid or settled and (2) with respect to any tax years open for audit as of the date
hereof, neither the Company nor any Company Subsidiary has granted any waiver of any statute of limitations with respect to, or any extension of a period for the assessment of, any Tax;
(iii) neither the Company nor any Company Subsidiary had any liabilities for unpaid Taxes as of the date of the latest balance
sheet included in the Company Financial Statements that had not been accrued or reserved on such balance sheet in accordance with GAAP and (2) neither the Company nor any Company Subsidiary has incurred any liability for Taxes since the date of
the latest balance sheet included in the Company Financial Statements except in the ordinary course of business;
(iv)
neither the Company nor any Company Subsidiary has any liability for Taxes of any Person (except for the Company or any Company Subsidiary) arising from the application of Treasury Regulation Section 1.1502-6 or any analogous provision of
state, local or foreign Law, or as a transferee or successor, by contract or otherwise;
(v) neither the Company nor any
Company Subsidiary is a party to or is otherwise bound by any Tax sharing, allocation or indemnification agreement or arrangement, except for such an agreement or arrangement (1) exclusively between or among the Company and Company
Subsidiaries, (2) with customers, vendors, lessors or other third parties entered into in the ordinary course of business and not primarily related to Taxes or (3) that as of the Closing Date is reasonably expected to terminate without any
further payments being required to be made;
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(vi) within the past three (3) years, neither the Company nor any Company
Subsidiary has been a distributing corporation or a controlled corporation in a distribution intended to qualify for tax-free treatment under Section 355 of the Code; and
(vii) neither the Company nor any Company Subsidiary has engaged in any listed transaction as defined in Treasury
Regulations Section 1.6011-4(b)(2) or Treasury Regulations Section 301.6111-2(b) in any tax year for which the statute of limitations has not expired.
(b) Except to the extent Section 3.09 relates to Taxes, the representations and warranties contained in this
Section 3.08 are the sole and exclusive representations and warranties of the Company relating to Taxes, and no other representation or warranty of the Company contained herein shall be construed to relate to Taxes.
SECTION 3.09 Employee Benefits.
(a) Section 3.09(a) of the Company Disclosure Letter sets forth a complete and accurate list, as of the date of this Agreement,
of each material Company Benefit Plan and each material Company Benefit Agreement.
(b) With respect to each material Company Benefit
Plan and material Company Benefit Agreement, the Company has made available to Parent, to the extent applicable, complete and accurate copies of (i) the plan document (or, if such arrangement is not in writing, a written description of the
material terms thereof), including any amendment thereto and any summary plan description thereof, (ii) each trust, insurance, annuity or other funding Contract related thereto, (iii) the most recent audited financial statement and
actuarial or other valuation report prepared with respect thereto, (iv) the most recent annual report on Form 5500 required to be filed with the Internal Revenue Service (the IRS) with respect thereto and (v) the most
recently received IRS determination letter or opinion. No Company Benefit Plan or Company Benefit Agreement is maintained outside the jurisdiction of the United States, or covers any Company Personnel residing or working outside of the United
States.
(c) Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material
Adverse Effect, (i) each Company Benefit Plan and each Company Benefit Agreement has been maintained in compliance with its terms and with the requirements prescribed by ERISA, the Code and all other applicable Laws, (ii) there are no
pending or, to the Knowledge of the Company, threatened proceedings against any Company Benefit Plan or Company Benefit Agreement or any fiduciary thereof, or the Company or any Company Subsidiary with respect to any Company Benefit Plan or Company
Benefit Agreement and (iii) all contributions, reimbursements, premium payments and other payments required to be made by the Company or any Company Commonly Controlled Entity to any Company Benefit Plan have been made on or before their
applicable due dates. Except as, individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, neither the Company nor any Company Commonly
15
Controlled Entity has engaged in, and to the Knowledge of the Company, there has not been, any non-exempt transaction prohibited by ERISA or by Section 4975 of the Code with respect to any
Company Benefit Plan or Company Benefit Agreement or their related trusts that would reasonably be expected to result in a liability of the Company or a Company Commonly Controlled Entity. Except as has not had and would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect, no Company Benefit Plan or Company Benefit Agreement is under audit or is the subject of an administrative proceeding by the IRS, the Department of Labor, or any other
Governmental Entity, nor is any such audit or other administrative proceeding, to the Knowledge of the Company, threatened.
(d)
Section 3.09(d) of the Company Disclosure Letter sets forth each Company Benefit Plan and Company Benefit Agreement that is subject to Section 302 or Title IV of ERISA or Section 412, 430 or 4971 of the Code. No Company Benefit
Plan or Company Benefit Agreement is a multiemployer plan, as defined in Section 3(37) of ERISA, or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of
ERISA, and neither the Company nor any Company Commonly Controlled Entity has contributed to or been obligated to contribute to any such plan within the six years preceding this Agreement. Except for matters that have not had and would not
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Company Commonly Controlled Entity has incurred any Controlled Group Liability (as defined below) that has not been
satisfied in full nor do any circumstances exist that could reasonably be expected to give rise to any Controlled Group Liability (except for the payment of premiums to the Pension Benefit Guaranty Corporation). For the purposes of this Agreement,
Controlled Group Liability means any and all liabilities (i) under Title IV of ERISA, (ii) under Section 302 of ERISA, (iii) under Sections 412, 430 and 4971 of the Code or (iv) as a result of a failure to
comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code.
(e) Each
Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code is so qualified and such plan has received a currently effective favorable determination letter or opinion to that effect from the IRS and, to the Knowledge
of the Company, there is no reason why any such determination letter should be revoked or not be reissued.
(f) Except for any
liabilities that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any Company Subsidiary has any liability for providing health, medical or other
welfare benefits after retirement or other termination of employment, except for coverage or benefits required to be provided under Section 4980(B)(f) of the Code or applicable Law.
(g) Except as expressly provided in this Agreement or as set forth in Section 3.09(g) of the Company Disclosure Letter, none of
the execution and delivery of this Agreement, the performance by either party of its covenants and agreements hereunder or the consummation of the Merger (alone or in conjunction with any other event, including any termination of employment on or
following the Effective Time) will (i) entitle any Company Personnel to any material compensation or benefit, (ii) accelerate the time of payment or vesting,
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or trigger any payment or funding, of any material compensation or benefit or trigger any other material obligation under any Company Benefit Plan or Company Benefit Agreement or
(iii) result in any payment that could, individually or in combination with any other such payment, not be deductible under Section 280G of the Code.
(h) The representations and warranties contained in this Section 3.09 are the sole and exclusive representations and warranties
of the Company relating to Company Benefit Plans or Company Benefit Agreements (including their compliance with any applicable Law) or ERISA, and no other representation or warranty of the Company contained herein shall be construed to relate to
Company Benefit Plans or Company Benefit Agreements (including their compliance with any applicable Law) or ERISA.
SECTION 3.10
Labor and Employment Matters. Except as set forth in Section 3.10 of the Company Disclosure Letter, neither the Company nor any Company Subsidiary is party to any collective bargaining agreement or similar labor union Contract
with respect to any of their respective employees (the Contracts set forth in Section 3.10 of the Company Disclosure Letter, the Company Union Contracts). To the Knowledge of the Company, no employees of the Company or
any Company Subsidiary are represented by any other labor union with respect to their employment for the Company or any Company Subsidiary. To the Knowledge of the Company, except as would not have or would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect, (a) there are no labor union representation or certification proceedings with respect to employees of the Company or any Company Subsidiary pending or threatened in writing to
be brought or filed with the National Labor Relations Board, and (b) there are no labor union organizing activities, with respect to employees of the Company or any Company Subsidiary. From January 1, 2014 until the date of this Agreement,
except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, there have been no labor union strikes, slowdowns, work stoppages or lockouts or other material labor disputes
pending or threatened in writing against or affecting the Company or any Company Subsidiary.
SECTION 3.11 Litigation. There
is no Claim before any Governmental Entity pending or, to the Knowledge of the Company, threatened against the Company or any Company Subsidiary that has had or would reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. There is no Judgment outstanding against or, to the Knowledge of the Company, investigation by any Governmental Entity of the Company or any Company Subsidiary or any of their respective properties or assets that has had or
would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. This Section 3.11 does not relate to Taxes; Company Benefit Plans or Company Benefit Agreements (including their compliance with
any applicable Law) or ERISA; Environmental Permits, Environmental Laws, Environmental Claims, Releases, Hazardous Materials or other environmental matters; or Intellectual Property, which are addressed in Sections 3.08, 3.09,
3.14 and 3.17, respectively.
SECTION 3.12 Compliance with Applicable Laws. Except as would not have or would
not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and the Company Subsidiaries are in compliance with all applicable Laws and all material Permits applicable to the business and
operations of the
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Company and the Company Subsidiaries. This Section 3.12 does not relate to Taxes; Company Benefit Plans or Company Benefit Agreements (including their compliance with any applicable
Law) or ERISA; Environmental Permits, Environmental Laws, Environmental Claims, Releases, Hazardous Materials or other environmental matters; or Intellectual Property, which are addressed in Sections 3.08, 3.09, 3.14 and
3.17, respectively.
SECTION 3.13 Takeover Statutes. Assuming that the representations and warranties of Parent and
Merger Sub contained in Section 4.09 are true and correct, the Merger is not subject to any fair price, moratorium, control-share acquisition, affiliated transaction or any other
antitakeover statute or regulation (each, a Takeover Statute) or any antitakeover provision in the Company Articles or Company Bylaws.
SECTION 3.14 Environmental Matters.
(a) Except for matters that have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material
Adverse Effect:
(i) the Company and the Company Subsidiaries are in compliance with all Environmental Laws, and, except
for matters that have been fully resolved, as of the date of this Agreement, neither the Company nor any Company Subsidiary has received any written communication from a Governmental Entity or other Person that alleges that the Company or any
Company Subsidiary is in violation of any Environmental Law or any Permit issued pursuant to Environmental Law (an Environmental Permit);
(ii) with respect to all material Environmental Permits necessary to conduct the respective operations of the Company or the
Company Subsidiaries as currently conducted, (1) the Company and each of the Company Subsidiaries have obtained and are in compliance with, or have filed timely applications for, all such Environmental Permits, (2) all such Environmental
Permits are valid and in good standing and (3) neither the Company nor any Company Subsidiary has received notice from any Governmental Entity seeking to modify, revoke or terminate, any such Environmental Permits;
(iii) there are no Environmental Claims pending or, to the Knowledge of the Company, threatened in writing against the Company
or any Company Subsidiary that have not been fully and finally resolved; and
(iv) to the Knowledge of the Company, there
are and have been no Releases of Hazardous Materials at any property currently owned, leased or operated by the Company or any Company Subsidiary that would reasonably be expected to form the basis of any Environmental Claim against the Company or
any Company Subsidiary.
(b) The representations and warranties contained in this Section 3.14 are the sole and exclusive
representations and warranties of the Company relating to Environmental Permits, Environmental Laws, Environmental Claims, Releases, Hazardous Materials or other environmental matters, and no other representation or warranty of the Company contained
herein shall be construed to relate to Environmental Permits, Environmental Laws, Environmental Claims, Releases, Hazardous Materials or other environmental matters.
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SECTION 3.15 Contracts.
(a) Except for this Agreement, Company Benefit Plans and Company Benefit Agreements, as of the date of this Agreement, neither the Company
nor any Company Subsidiary is a party to any Contract required to be filed by the Company as a material contract pursuant to Item 601(b)(10) of Regulation S-K under the Securities Act (a Filed Company
Contract) that has not been so filed.
(b) Except as would not have or would not reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect, (i) each Filed Company Contract is a valid, binding and legally enforceable obligation of the Company or one of the Company Subsidiaries, as the case may be, and, to the Knowledge of the
Company, of the other parties thereto, subject in all respects to the Bankruptcy and Equity Exceptions, (ii) to the Knowledge of the Company, each such Filed Company Contract is in full force and effect and (iii) as of the date hereof,
none of the Company or any Company Subsidiary is (with or without notice or lapse of time, or both) in breach or default under any such Filed Company Contract and, to the Knowledge of the Company, no other party to any such Filed Company Contract is
(with or without notice or lapse of time, or both) in breach or default thereunder.
SECTION 3.16 Real Property. Except as
would not have or would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, each of the Company and the Company Subsidiaries has either good title, in fee or valid leasehold, easement or other
rights, to the land, buildings, wires, pipes, structures and other improvements thereon and fixtures thereto necessary to permit it to conduct its business as currently conducted. This Section 3.16 does not relate to Environmental
Permits, Environmental Laws, Environmental Claims, Releases, Hazardous Materials or other environmental matters; or Intellectual Property, which are addressed in Section 3.14 and Section 3.17, respectively
SECTION 3.17 Intellectual Property.
(a) Except as would not have or would not be reasonably expected to have, individually or in the aggregate, a Company Material Adverse
Effect, to the Knowledge of the Company, (i) the Company and the Company Subsidiaries have the right to use all material Intellectual Property used in their business as presently conducted, and (ii) no person is violating any material
Intellectual Property owned by the Company and the Company Subsidiaries.
(b) The representations and warranties contained in this
Section 3.17 are the sole and exclusive representations and warranties of the Company relating to Intellectual Property, and no other representation or warranty of the Company contained herein shall be construed to relate to Intellectual
Property.
SECTION 3.18 Insurance. As of the date hereof, except as would not have or would not be reasonably likely to have,
individually or in the aggregate, a Company Material Adverse Effect, all material fire and casualty, general liability, director and officer, business interruption, product liability, and sprinkler and water damage insurance policies maintained by
the Company or any of its Subsidiaries (Insurance Policies) are in full force and effect and all premiums due with respect to all Insurance Policies have been paid.
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SECTION 3.19 Regulatory Status.
(a) The Company is a holding company under the Public Utility Holding Company Act of 2005 (PUHCA 2005). Except
as set forth in Section 3.19(a)(i) of the Company Disclosure Letter, none of the Company or the Company Subsidiaries is regulated as a public utility under the FPA. Except for the Company Subsidiaries set forth in
Section 3.19(a)(ii) of the Company Disclosure Letter (the Utility Subsidiaries), none of the Company Subsidiaries are regulated as a public utility or gas utility under applicable Law of the State of Florida or the
State of New Mexico or is subject to such regulation by any other state.
(b) All filings (except for immaterial filings) required to be
made by the Company or any Company Subsidiary since January 1, 2014, with the FERC, the FPSC and the NMPRC, as the case may be, have been made, including all forms, statements, reports, agreements and all documents, exhibits, amendments and
supplements appertaining thereto, including all rates, tariffs and related documents, and all such filings complied, as of their respective dates, with all applicable requirements of applicable statutes and the rules and regulations promulgated
thereunder, except for filings the failure of which to make or the failure of which to make in compliance with all applicable requirements of applicable statutes and the rules and regulations promulgated thereunder, would not reasonably be expected
to have, individually or in the aggregate, a Company Material Adverse Effect.
SECTION 3.20 Brokers Fees and Expenses.
Except for any Person set forth in Section 3.20 of the Company Disclosure Letter (each such Person, a Company Financial Advisor), the fees and expenses of which will be paid by the Company, no broker, investment
banker, financial advisor or other Person is entitled to any brokers, finders, financial advisors or other similar fee or commission in connection with the Merger based upon arrangements made by or on behalf of the Company.
SECTION 3.21 Opinion of Financial Advisor. The Company Board has received an opinion of each Company Financial Advisor to the
effect that, as of the date of such opinion and based upon and subject to the various matters, limitations, qualifications and assumptions set forth therein, the Merger Consideration to be paid to the holders of shares of Company Common Stock (other
than shares owned by the Company as treasury stock, shares that are owned by a wholly owned Subsidiary of the Company, or shares that are owned directly or indirectly by Parent or Merger Sub) pursuant to this Agreement is fair, from a financial
point of view, to such holders.
SECTION 3.22 No Additional Representations. Except for the representations and warranties
expressly set forth in Article IV (as modified by the Parent Disclosure Letter), the Company specifically acknowledges and agrees that neither Parent nor any of its Affiliates, Representatives or shareholders or any other Person makes,
or has made, any other express or implied representation or warranty whatsoever (whether at law (including at common law or by statute) or in equity). Except for the representations and warranties expressly set forth in this Article III (as
modified by the Company Disclosure Letter), the Company hereby expressly disclaims and negates (a) any other express or implied representation or warranty whatsoever
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(whether at law (including at common law or by statute) or in equity), including with respect to (i) the Company or the Company Subsidiaries or any of the Companys or the
Companys Subsidiaries respective businesses, assets, employees, Permits, liabilities, operations, prospects or condition (financial or otherwise) or (ii) any opinion, projection, forecast, statement, budget, estimate, advice or other
information (including information with respect to filings with and consents of any Governmental Entity (including the FERC, the FPSC or the NMPRC) or information with respect to the future revenues, results or operations (or any component thereof),
cash flows, financial condition (or any component thereof) or the future business and operations of the Company or the Company Subsidiaries, as well as any other business plan and cost-related plan information of the Company or the Company
Subsidiaries), made, communicated or furnished (orally or in writing), or to be made, communicated or furnished (orally or in writing), to Parent, its Affiliates or its Representatives, in each case, whether made by the Company or any of its
Affiliates, Representatives or shareholders or any other Person (this clause (ii), collectively, Company Projections) and (b) all liability and responsibility for any such other representation or warranty or any such Company
Projection.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB
Except as set forth in the disclosure letter delivered by Parent to the Company concurrently with the execution and delivery by Parent and
Merger Sub of this Agreement (the Parent Disclosure Letter), Parent and Merger Sub represent and warrant to the Company as follows:
SECTION 4.01 Organization, Standing and Power. Each of Parent and Merger Sub is duly organized, validly existing and in active
status or good standing, as applicable, under the laws of the jurisdiction in which it is organized (in the case of active status or good standing, to the extent such jurisdiction recognizes such concept). Each of Parent and Merger Sub has all
requisite entity power and authority to own, operate, lease or otherwise hold its properties and assets and to conduct its businesses as presently conducted, except where the failure to have such power or authority would not have or would not
reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Each of Parent and Merger Sub is duly qualified or licensed to do business in each jurisdiction where the nature of its business or the ownership,
operation or leasing of its properties make such qualification necessary, except in any such jurisdiction where the failure to be so qualified or licensed would not have or would not reasonably be expected to have, individually or in the aggregate,
a Parent Material Adverse Effect.
SECTION 4.02 Authority; Execution and Delivery; Enforceability. Each of Parent and Merger
Sub has all requisite power and authority to execute and deliver this Agreement, to perform its covenants and agreements hereunder and to consummate the Merger. The board of directors of Parent has adopted resolutions (a) determining that it is
in the best interests of Parent and its shareholders, and declaring it advisable, for Parent to enter into this Agreement and (b) adopting this Agreement and approving Parents execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated by this Agreement. Such resolutions have not been amended or withdrawn as of the date of this
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Agreement. The board of directors of Merger Sub has adopted resolutions determining that it is in the best interests of Merger Sub and its shareholder, and declaring it advisable, for Merger Sub
to enter into this Agreement, (ii) adopting this Agreement and approving Merger Subs execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement and (iii) resolving to
recommend that Parent, in its capacity as the sole shareholder of Merger Sub, approve this Agreement. Such resolutions have not been amended or withdrawn as of the date of this Agreement. No other corporate proceedings on the part of Parent or
Merger Sub are necessary to authorize, adopt or approve, as applicable, this Agreement or to consummate the Merger. Parent and Merger Sub have duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by
the Company, this Agreement constitutes the legal, valid and binding obligation of each of Parent and Merger Sub, enforceable against it in accordance with its terms, subject in all respects to the Bankruptcy and Equity Exceptions.
SECTION 4.03 No Conflicts; Consents.
(a) The execution and delivery of this Agreement by Parent and Merger Sub does not, and the performance by each of Parent and Merger Sub of
its covenants and agreements and the consummation of the Merger will not, (i) conflict with, or result in any violation of any provision of, the Organizational Documents of Parent or Merger Sub, (ii) subject to obtaining the Consents set
forth in Section 4.03(a)(i) of the Parent Disclosure Letter (the Parent Required Consents and, together with the Company Required Consents, the Required Consents), conflict with, result in any
violation of, or default (with or without notice or lapse of time, or both) under, or give rise to a right of termination, cancellation or acceleration of any material obligation or to the loss of a material benefit under any material Contract to
which Parent or Merger Sub is a party or by which any of their respective properties or assets is bound or any material Permit applicable to the business of Parent and its Affiliates or (iii) subject to obtaining the Consents referred to in
Section 4.03(b) and making the Filings referred to in Section 4.03(b), conflict with, or result in any violation of any provision of, any Judgment or Law, in each case, applicable to Parent or Merger Sub or their respective
properties or assets, except for, in the case of the foregoing clauses (ii) and (iii), any matter that would not have or would not be reasonably expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b) No Consent of or from, or Filing made to or with, any Governmental Entity, is required to be obtained or made by Parent or any Affiliate
of Parent in connection with Parents and Merger Subs execution and delivery of this Agreement or their performance of their covenants and agreements hereunder or the consummation of the Merger, except for the following:
(i) compliance with, Filings under and the expiration of any applicable waiting period under the HSR Act, and such other
Consents or Filings as are required to be made or obtained under any other Antitrust Law;
(ii) (1) Filings with, and the
Consent of, the FERC under Section 203 of the FPA, (2) the CFIUS Approval, and Filings with respect thereto, (3) the Filings with, and the Consent of, the NMPRC and (4) and the other Filings and Consents set forth in
Section 4.03(b)(ii) of the Parent Disclosure Letter (the Consents and Filings
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set forth in Section 4.03(b)(i) and this Section 4.03(b)(ii), collectively, the Parent Required Statutory Approvals and, together with the Company
Required Statutory Approvals, the Required Statutory Approvals);
(iii) the Parent Required Consents;
(iv) the filing of the Articles of Merger with the Department of State of the State of Florida and appropriate documents
with the relevant authorities of the other jurisdictions in which Parent and the Company are qualified to do business;
(v) Filings and Consents as are required to be made or obtained under state or federal property transfer Laws or Environmental
Laws; and
(vi) such other Filings and Consents the failure of which to make or obtain would not have or would not
reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
SECTION 4.04 Litigation.
There is no Claim before any Governmental Entity pending or, to the Knowledge of Parent, threatened against Parent, Merger Sub or any Affiliate of Parent that has had or would reasonably be expected to have, individually or in the aggregate, a
Parent Material Adverse Effect. There is no Judgment outstanding against or, to the Knowledge of Parent, investigation by any Governmental Entity of Parent, Merger Sub or any Affiliate of Parent or any of their respective properties or assets that
has had or would reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
SECTION 4.05
Compliance with Applicable Laws. Except as would not have or would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect, Parent and Merger Sub are in compliance with all applicable Laws and
material Permits applicable to the business and operations of Parent and Parents Affiliates.
SECTION 4.06 Financing.
Parent has delivered to the Company true and complete fully executed copies of (a) the commitment letters, dated as of September 4, 2015, among Parent and each of (i) JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC and
(ii) The Bank of Nova Scotia (the Commitment Letters) and (b) the fee letters, among Parent and each of (i) JPMorgan Chase Bank, N.A. and J.P. Morgan Securities LLC and (ii) The Bank of Nova Scotia, dated as of
September 4, 2015 (as redacted to remove only the fee amounts, pricing caps, the rates and amounts included in the market flex, the Redacted Fee Letters), in each case, including all exhibits, schedules, annexes
and amendments to such letters in effect as of the date of this Agreement (collectively, the Debt Letters), pursuant to which and subject to the terms and conditions thereof, each of the parties thereto (other than Parent) have
severally committed to lend the amounts set forth therein to Parent (the provision of such funds as set forth therein, the Financing) for the purposes set forth in such Debt Letters. The Debt Letters have not been amended,
restated or otherwise modified or waived prior to the execution and delivery of this Agreement, and the respective commitments contained in the Debt Letters have not been withdrawn, rescinded, amended, restated or otherwise modified in any respect
prior to the execution and delivery of this Agreement. As of the execution and delivery of this Agreement, the Debt Letters are in full force and effect and constitute the legal, valid and binding obligation of each of Parent and the other parties
thereto, subject in each case to the Bankruptcy and Equity
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Exceptions. There are no conditions precedent or contingencies directly or indirectly related to the funding of the Financing pursuant to the Debt Letters, other than as expressly set forth in
the Debt Letters. At the Closing, Parent and Merger Sub will have sufficient funds to pay all of Parents and Merger Subs obligations under this Agreement, including the payment of the Merger Consideration and all fees and expenses
expected to be incurred in connection therewith. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a breach or default on the part of Parent under the Debt Letters or any
other party to the Debt Letters. As of the date of this Agreement, except for any agreements relating to any alternative equity capital markets financing (which agreements do not contain any terms that would adversely affect the conditionality,
enforceability, termination, principal amount or availability of the Financing), there are no side letters or other agreements, Contracts, arrangements or understandings (written or oral) directly or indirectly related to the funding of the
Financing other than as expressly set forth in the Debt Letters. Parent has fully paid all commitment fees or other fees required to be paid on or prior to the date of this Agreement in connection with the Financing. As of the date of this
Agreement, Parent (1) is not aware of any fact, event or other occurrence that makes any of the representations or warranties of Parent in any of the Debt Letters inaccurate in any material respect and (2) has no reason to believe that any
of the conditions to the Financing contemplated by the Debt Letters will not be satisfied on a timely basis or that the Financing contemplated by the Debt Letters will not be made available on the Closing Date.
SECTION 4.07 Brokers Fees and Expenses. Except for any Person set forth in Section 4.07 of the Parent Disclosure
Letter, the fees and expenses of which will be paid by Parent, no broker, investment banker, financial advisor or other Person is entitled to any brokers, finders, financial advisors or other similar fee or commission in connection
with the Merger based upon arrangements made by or on behalf of Parent or Merger Sub.
SECTION 4.08 Merger Sub. The authorized
capital stock of Merger Sub consists of 10,000,000 shares of common stock, par value $0.01 per share. All outstanding shares of capital stock of Merger Sub are duly authorized, validly issued, fully paid and nonassessable. EUSHI owns all of the
outstanding shares of capital stock of Merger Sub. Parent owns, directly or indirectly, all of the outstanding shares of capital stock of EUSHI. Merger Sub has been incorporated solely for the purpose of merging with and into the Company and taking
action incident to the Merger and this Agreement. Merger Sub has no assets, liabilities or obligations and has not, since the date of its formation, carried on any business or conducted any operations, except, in each case, as arising from the
execution of this Agreement, the performance of its covenants and agreements hereunder and matters ancillary thereto. EUSHI has approved this Agreement by written consent in its capacity as the sole shareholder of Merger Sub.
SECTION 4.09 Ownership of Company Common Stock; Interested Shareholder. Neither Parent, any Subsidiary of Parent nor any other
Affiliate of Parent (i) of beneficially owns (as such term is defined for purposes of Section 13(d) of the Exchange Act) any shares of Company Common Stock or any other Equity Securities or (ii) is an interested
shareholder (as defined in FBCA § 607.0901). Neither Parent, any Subsidiary of Parent nor any of their respective Affiliates are a Person referred to in FBCA § 607.1302(2)(d).
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SECTION 4.10 Regulatory Status. Parent is a public utility holding company under
PUHCA 2005. Merger Sub is not a public utility holding company under PUHCA 2005.
SECTION 4.11 No Additional Representations.
Except for the representations and warranties expressly set forth in Article III (as modified by the Company Disclosure Letter), each of Parent and Merger Sub (a) specifically acknowledges and agrees that neither the Company nor any
of its Affiliates, Representatives or shareholders nor any other Person makes, or has made, any other express or implied representation or warranty whatsoever (whether at law (including at common law or by statute) or in equity), including with
respect to the Company or the Company Subsidiaries or any of the Companys or the Companys Subsidiaries respective businesses, assets, employees, Permits, liabilities, operations, prospects, condition (financial or otherwise) or any
Company Projection, and hereby expressly waives and relinquishes any and all rights, Claims or causes of action (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) based on, arising
out of or relating to any such other representation or warranty or any Company Projection, (b) specifically acknowledges and agrees to the Companys express disclaimer and negation of any such other representation or warranty or any
Company Projection and of all liability and responsibility for any such other representation or warranty or any Company Projection and (c) expressly waives and relinquishes any and all rights, Claims and causes of action (whether in contract or
in tort or otherwise, or whether at law (including at common law or by statute) or in equity) against (i) the Company in connection with accuracy, completeness or materiality of any Company Projection and (ii) any Affiliate of the Company
or any of the Companys or any such Affiliates respective Representatives or shareholders or any other Person, and hereby specifically acknowledges and agrees that such Persons shall have no liability or obligations, based on, arising out
of or relating to this Agreement or the negotiation, execution, performance or subject matter hereof, including (1) for any alleged nondisclosure or misrepresentations made by any such Person or (2) in connection with accuracy,
completeness or materiality of any Company Projection. Each of Parent and Merger Sub acknowledges and agrees that (A) it has conducted to its satisfaction its own independent investigation of the transactions contemplated hereby (including with
respect to the Company and the Company Subsidiaries and their respective businesses, operations, assets and liabilities) and, in making its determination to enter into this Agreement and proceed with the transactions contemplated hereby, has relied
solely on the results of such independent investigation and the representations and warranties of the Company expressly set forth in Article III (as modified by the Company Disclosure Letter), and (B) except for the representations and
warranties of the Company expressly set forth in Article III (as modified by the Company Disclosure Letter), it has not relied on, or been induced by, any representation, warranty or other statement of or by the Company or any of its
Affiliates, Representatives or shareholders or any other Person, including any Company Projection or with respect to the Company or the Company Subsidiaries or any of the Companys or the Companys Subsidiaries respective businesses,
assets, employees, Permits, liabilities, operations, prospects or condition (financial or otherwise) or any Company Projection, in determining to enter into this Agreement and proceed with the transactions contemplated hereby.
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ARTICLE V
COVENANTS RELATING TO CONDUCT OF BUSINESS
SECTION 5.01 Conduct of Business.
(a) Conduct of Business by the Company. Except for matters set forth in Section 5.01 of the Company Disclosure Letter or
otherwise contemplated or required by this Agreement, or as required by a Governmental Entity (including pursuant to a Judgment issued by the FERC, the FPSC or the NMPRC) or by applicable Law, or as contemplated by the Proceedings, or with the prior
written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed), from the date of this Agreement until the Effective Time, the Company shall use commercially reasonable efforts to, and to cause each Company
Subsidiary to, (x) conduct its business in the ordinary course of business in all material respects and (y) to the extent consistent with the foregoing clause (x), preserve intact, in all material respects, its business organization
and existing relationships with Governmental Entities. In addition, and without limiting the generality of the foregoing, except as set forth in the Company Disclosure Letter or otherwise contemplated or required by this Agreement, or as required by
a Governmental Entity (including pursuant to a Judgment issued by the FERC, the FPSC or the NMPRC) or by applicable Law, or as contemplated by the Proceedings, or with the prior written consent of Parent (which consent shall not be unreasonably
withheld, conditioned or delayed), from the date of this Agreement until the Effective Time, the Company shall not, and shall not permit any Company Subsidiary to, do any of the following:
(i) declare, set aside or pay any dividends on, or make any other distributions (whether in cash, stock or property or any
combination thereof) in respect of, any of its capital stock, other equity interests or voting securities, except for (1) quarterly cash dividends payable by the Company or any Company Subsidiary in respect of shares of Company Common Stock on
a schedule consistent with the Companys past practices and in an amount per share of Company Common Stock not in excess of (A) $0.225 for quarterly dividends payable on or before December 31, 2015, (B) $0.230 for quarterly
dividends payable after December 31, 2015 and on or before December 31, 2016 and (C) $0.235 for quarterly dividends payable after December 31, 2016, (2) dividends and distributions by a direct or indirect Company Subsidiary
to its parent and (3) a stub period dividend to holders of record of Company Common Stock as of immediately prior to the Effective Time equal to the product of (A) the number of days from the record date for payment of the last
quarterly dividend paid by the Company prior to the Effective Time, multiplied by (B) a daily dividend rate determined by dividing the amount of the last quarterly dividend prior to the Effective Time by ninety-one (91);
(ii) amend any of its Organizational Documents (except for immaterial or ministerial amendments);
(iii) except as permitted by Section 5.01(a)(v) or for transactions among the Company and the Company Subsidiaries
or among the Company Subsidiaries, split, combine, consolidate, subdivide or reclassify any of its capital stock, other equity interests or voting securities, or securities convertible into or exchangeable
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or exercisable for capital stock or other equity interests or voting securities, or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for its
capital stock, other equity interests or voting securities;
(iv) repurchase, redeem or otherwise acquire, or offer to
repurchase, redeem or otherwise acquire, any capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary or any securities of the Company or any Company Subsidiary convertible into or exchangeable or
exercisable for capital stock or voting securities of, or equity interests in, the Company or any Company Subsidiary, or any warrants, calls, options or other rights to acquire any such capital stock, securities or interests, except for (1) the
acquisition by the Company of shares of Company Common Stock (A) in the open market to satisfy its obligations under all Company Benefit Plans or under the Companys dividend reinvestment and stock purchase plan (the Company
DRIP) and (B) in connection with the surrender of shares of Company Common Stock by holders of Company Stock Options in order to pay the exercise price thereof, (2) the withholding of shares of Company Common Stock to satisfy Tax
obligations with respect to awards granted pursuant to the Company Stock Plans and (3) the acquisition by the Company of awards granted pursuant to the Company Stock Plans in connection with the forfeiture of such awards;
(v) issue, deliver, sell, grant, pledge or otherwise encumber or subject to any Lien any Equity Securities or Company Voting
Debt, in each case, except for the issuance of (1) Company Restricted Shares on the terms permitted under this Agreement, (2) shares of Company Common Stock upon the exercise of Company Stock Options or pursuant to the vesting of Company
Restricted Shares, in each case outstanding on the date of this Agreement and in accordance with their terms on the date of this Agreement or granted after the date of this Agreement pursuant to the foregoing clause (1), or (3) shares of
Company Common Stock under the Company DRIP;
(vi) (1) grant to any Company Personnel any increase in compensation or
benefits (including paying to any Company Personnel any amount not due) except in the ordinary course of business and consistent with past practices, (2) grant to any Company Personnel any increase in change-in-control, severance, retention or
termination pay, or enter into or amend any change-in-control, severance, retention or termination agreement with any Company Personnel, (3) establish, adopt, enter into, amend in any material respect or terminate any Company Union Contract or
Company Benefit Plan or Company Benefit Agreement (or any plan or agreement that would be a Company Union Contract, Company Benefit Plan or Company Benefit Agreement if in existence on the date hereof), in each case, except in the ordinary course of
business consistent with past practices or (4) take any action to accelerate the time of vesting, funding or payment of any compensation or benefits under any Company Benefit Plan or Company Benefit Agreement, except in the case of the
foregoing clauses (1) through (4) for actions required pursuant to the terms of any Company Benefit Plan or Company Benefit Agreement existing on the date hereof, or as required by the terms and conditions of this Agreement;
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(vii) make any material change in financial accounting methods, principles or
practices, except to the extent as may have been required by a change in applicable Law or GAAP or by any Governmental Entity (including the SEC or the Public Company Accounting Oversight Board);
(viii) make any acquisition or disposition of a material asset or business (including by merger, consolidation or acquisition
of stock or assets), except for (1) any acquisition or disposition for consideration that is individually not in excess of $15,000,000 and in the aggregate not in excess of $50,000,000 or (2) any disposition of obsolete or worn-out
equipment in the ordinary course of business;
(ix) incur any Indebtedness, except for (1) Indebtedness incurred in
the ordinary course of business, (2) as reasonably necessary to finance any capital expenditures permitted under Section 5.01(a)(x), (3) Indebtedness in replacement of existing Indebtedness, (4) guarantees by the Company
of existing Indebtedness of any wholly owned Company Subsidiary, (5) guarantees and other credit support by the Company of obligations of any Company Subsidiary in the ordinary course of business consistent with past practice,
(6) borrowings under existing revolving credit facilities (or replacements thereof on comparable terms) or existing commercial paper programs in the ordinary course of business or (7) Indebtedness in amounts necessary to maintain the
capital structure of the Company Subsidiaries, as authorized by the FPSC or NMPRC, and to maintain the present capital structure of the Company consistent with past practice in all material respects;
(x) make, or agree or commit to make, any capital expenditure, except for capital expenditures (1) in the ordinary course
of business, (2) in accordance with the capital plan set forth in Section 5.01(a)(x) of the Company Disclosure Letter, plus a 10% variance for each principal category set forth in such capital plan or (3) with respect to
any capital expenditure not addressed by the foregoing clauses (1) or (2), not to exceed $50,000,000 in any twelve (12) month period;
(xi) (1) modify or amend in any material respect, or terminate or waive any material right under, any Filed Company
Contract (except for (A) any modification, amendment, termination or waiver in the ordinary course of business or (B) a termination without material penalty to the Company or the appropriate Company Subsidiary) or (2) without limiting
Parents obligations under Section 6.03, enter into any Contract that, from and after the Closing, purports to bind Parent and its Subsidiaries (other than the Company and the Company Subsidiaries);
(xii) make or change any material Tax election, change any material method of Tax accounting, settle or compromise any
material Tax liability or refund or amend any material Tax Return, in each case, except as may be required by GAAP;
(xiii) waive, release, assign, settle or compromise any material Claim against the Company or any Company Subsidiary, except
for (1) waivers, releases, assignments, settlements or compromises in the ordinary course of business or (2) waivers, releases, assignments, settlements or compromises that (A) with respect to the
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payment of monetary damages, the amount of monetary damages to be paid by the Company or the Company Subsidiaries does not exceed (I) the amount with respect thereto reflected on the Company
Financial Statements (including the notes thereto) or (II) $30,000,000, in the aggregate, in excess of the proceeds received or to be received from any insurance policies in connection with such payment or (B) with respect to any nonmonetary
terms and conditions thereof, would not have or would not reasonably be expected to have, individually or in the aggregate, a material effect on the continuing operations of the Company and the Company Subsidiaries (taken as a whole); or
(xiv) enter into any Contract to do any of the foregoing.
(b) Emergencies. Notwithstanding anything to the contrary herein, the Company may, and may cause any Company Subsidiary to, take
reasonable actions in compliance with applicable Law (i) with respect to any operational emergencies (including any restoration measures in response to any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or
weather-related event, circumstance or development), equipment failures, outages or an immediate and material threat to the health or safety of natural Persons or (ii) as the Company deems prudent based on Good Utility Practice.
(c) No Control of the Companys Business. Parent acknowledges and agrees that (i) nothing contained herein is intended to
give Parent, directly or indirectly, the right to control or direct the operations of the Company or any Company Subsidiary prior to the Effective Time and (ii) prior to the Effective Time, the Company shall exercise, consistent with the terms
and conditions of this Agreement, complete control and supervision over its and the Company Subsidiaries respective operations.
(d) Advice of Changes. Each of Parent and the Company shall promptly advise the other orally and in writing of any change or event
that would prevent any of the conditions precedent described in Article VII from being satisfied.
(e) TECO Coal. In the
event that the Company has not, by thirty (30) days after the date of this Agreement, sold or otherwise disposed of (whether by liquidation, dissolution, merger, consolidation, equity sale, asset sale, reorganization, recapitalization or
otherwise) all of the capital stock or equity interests in, or assets of, TECO Coal LLC (TECO Coal) and all of the Subsidiaries of Lightning Coal, the Company shall consult with Parent prior to entering into any material
transaction involving TECO Coal with respect thereto, including providing Parent with an opportunity to review any transaction agreement providing for a disposition of (whether by liquidation, dissolution, merger, consolidation, equity sale, asset
sale, reorganization, recapitalization or otherwise)TECO Coal, and shall consider in good faith any of Parents comments and suggestions with respect thereto. In the event that the Company has not disposed of, or entered into a binding
commitment to dispose of (whether by liquidation, dissolution, merger, consolidation, equity sale, asset sale, reorganization, recapitalization or otherwise), TECO Coal by thirty (30) days prior to the anticipated Closing Date, if requested by
Parent, the Company shall, and shall cause TECO Coal to, reasonably cooperate with Parent to structure and pursue a disposition of (whether by liquidation, dissolution, merger, consolidation, equity sale, asset sale, reorganization, recapitalization
or otherwise) TECO Coal to be effected after the Closing; provided that the Company shall not be required, prior to Closing, to enter into any binding commitment to dispose of (whether by liquidation, dissolution, merger, consolidation,
equity sale, asset sale, reorganization, recapitalization or otherwise) TECO Coal.
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SECTION 5.02 Proceedings. Between the date of this Agreement and the Closing, the
Company and the Company Subsidiaries may (a) continue to pursue the rate cases and other proceedings set forth in Section 5.02 of the Company Disclosure Letter, (b) with the prior written consent of Parent (such consent not to
be unreasonably withheld, delayed or conditioned), initiate new rate cases, or any other proceeding that would reasonably be expected to affect the authorized capital structure or authorized return on equity of any Company Subsidiary or materially
affect the return on equity of any Company Subsidiary in an adverse manner, with Governmental Entities and (c) initiate any other proceeding with Governmental Entities in the ordinary course of business (the foregoing clauses (a), (b) and
(c), collectively, the Proceedings) and (d) notwithstanding anything to the contrary herein, initiate any other proceedings with Governmental Entities or take any other action contemplated by or described in any filings or
other submissions filed or submitted in connection with the Proceedings prior to the date of this Agreement. Notwithstanding the foregoing, without the prior written consent of Parent (such consent not to be unreasonably withheld, delayed or
conditioned), the Company and the Company Subsidiaries will not enter into any settlement or stipulation in respect of any Proceeding initiated prior to the date of this Agreement if such settlement or stipulation would affect the authorized capital
structure or authorized return on equity of any Company Subsidiaries or materially affect the return on equity of any Company Subsidiary in an adverse manner.
SECTION 5.03 No Solicitation by the Company; Company Board Recommendation.
(a) The Company shall not, and shall not authorize any of its Affiliates or any of its and their respective officers, directors, principals,
partners, managers, members, attorneys, accountants, agents, employees, consultants, financial advisors or other authorized representatives (collectively, Representatives) to, (i) directly or indirectly solicit, initiate or
knowingly encourage, induce or facilitate any Company Takeover Proposal or any inquiry or proposal that would reasonably be expected to lead to a Company Takeover Proposal, in each case, except for this Agreement and the transactions contemplated
hereby, or (ii) directly or indirectly participate in any discussions or negotiations with any Person (except for the Companys Affiliates and its and their respective Representatives or Parent and Parents Affiliates and its and
their respective Representatives) regarding, or furnish to any such Person, any nonpublic information with respect to, or cooperate in any way with any such Person with respect to, any Company Takeover Proposal or any inquiry or proposal that would
reasonably be expected to lead to a Company Takeover Proposal. The Company shall, and shall cause its Affiliates and its and their respective Representatives to, immediately cease and cause to be terminated all existing discussions or negotiations
with any Person (except for the Companys Affiliates and its and their respective Representatives or Parent and Parents Affiliates and its and their respective Representatives) conducted heretofore with respect to any Company Takeover
Proposal, request the prompt return or destruction of all confidential information previously furnished and immediately terminate all physical and electronic data room access previously granted to any such Person or its Representatives.
Notwithstanding anything to the contrary herein, at any time prior to obtaining the Company Shareholder Approval, in response
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to the receipt of a bona fide written Company Takeover Proposal made after the date of this Agreement that does not result from a breach (other than an immaterial breach) of this
Section 5.03(a) by the Company and that the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) constitutes or could reasonably be expected to lead to a Superior Company
Proposal, the Company and its Representatives may (1) furnish information with respect to the Company and the Company Subsidiaries to the Person making such Company Takeover Proposal (and its Representatives) (provided that all such
information has previously been provided to Parent or is provided to Parent prior to or substantially concurrently with the provision of such information to such Person) pursuant to a customary confidentiality agreement and (2) participate in
discussions regarding the terms of such Company Takeover Proposal, including terms of a Company Acquisition Agreement with respect thereto, and the negotiation of such terms with the Person making such Company Takeover Proposal (and such
Persons Representatives). Without limiting the foregoing, it is agreed that any violation of the restrictions set forth in this Section 5.03(a) by any Representative of the Company or any of its Affiliates, in each case, at the
Companys direction, shall constitute a breach of this Section 5.03(a) by the Company. Notwithstanding anything to the contrary herein, the Company may grant a waiver, amendment or release under any confidentiality or standstill
agreement to the extent necessary to allow a confidential Company Takeover Proposal to be made to the Company or the Company Board so long as the Company promptly notifies Parent thereof after granting any such waiver, amendment or release.
(b) Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), and except for the
public disclosure of a Recommendation Change Notice, neither the Company Board nor any committee thereof shall (i) withdraw, change, qualify, withhold or modify in any manner adverse to Parent, or propose publicly to withdraw, change, qualify,
withhold or modify in any manner adverse to Parent, the Company Board Recommendation, (ii) adopt, approve or recommend, or propose publicly to adopt, approve or recommend, any Company Takeover Proposal, (iii) fail to include in the Proxy
Statement the Company Board Recommendation or (iv) take any formal action or make any recommendation or public statement in connection with a tender offer or exchange offer (except for a recommendation against such offer or a customary
stop, look and listen communication of the type contemplated by Rule 14d-9(f) under the Exchange Act) (any action in the foregoing clauses (i)(iv) being referred to as a Company Adverse Recommendation Change).
Except as set forth in Section 5.03(a), Section 5.03(c) and Section 5.03(e), neither the Company Board nor any committee thereof shall authorize, permit, approve or recommend, or propose publicly to authorize,
permit, approve or recommend, or allow the Company or any of its Affiliates to execute or enter into, any letter of intent, memorandum of understanding, agreement in principle, agreement or commitment constituting, or that would reasonably be
expected to lead to, any Company Takeover Proposal, or requiring, or that would reasonably be expected to cause, the Company to abandon or terminate this Agreement (a Company Acquisition Agreement).
(c) Notwithstanding anything to the contrary herein, at any time prior to obtaining the Company Shareholder Approval, the Company Board may
make a Company Adverse Recommendation Change if (i) a Company Intervening Event has occurred or (ii) the Company has received a Superior Company Proposal that does not result from a breach (other than an immaterial breach) of
Section 5.03(a) by the Company and, in each case, if the Company Board determines in good faith (after consultation with outside legal counsel and a financial
31
advisor) that the failure to effect a Company Adverse Recommendation Change as a result of the occurrence of such Company Intervening Event or in response to the receipt of such Superior Company
Proposal, as the case may be, would reasonably likely be inconsistent with the Company Boards fiduciary duties under applicable Law; provided, however, that the Company Board may not make such Company Adverse Recommendation
Change unless (1) the Company Board has provided prior written notice to Parent (a Recommendation Change Notice) that it is prepared to effect a Company Adverse Recommendation Change in response to the occurrence of a Company
Intervening Event or the receipt of a Superior Company Proposal, which notice shall, in the case of a Company Adverse Recommendation Change in response to the receipt of a Superior Company Proposal, at the Companys option, either attach the
most current draft of any Company Acquisition Agreement with respect to such Superior Company Proposal or include a summary of the material terms and conditions of such Superior Company Proposal, (2) if requested by Parent, during the three
(3) Business Day period after delivery of the Recommendation Change Notice, the Company and its Representatives negotiate in good faith with Parent and its Representatives regarding any revisions to this Agreement committed to in writing by
Parent and (3) at the end of such three (3) Business Day period and taking into account any changes to the terms of this Agreement committed to in writing by Parent (it being understood and agreed that if Parent has committed in writing to
any changes to the terms of this Agreement and there has been any subsequent amendment to any material term of such Superior Company Proposal, the Company Board shall provide a new Recommendation Change Notice and an additional three
(3) Business Day period from the date of such notice shall apply), the Company Board determines in good faith (after consultation with outside legal counsel and a financial advisor) that the failure to make such a Company Adverse Recommendation
Change would reasonably likely be inconsistent with its fiduciary duties under applicable Law.
(d) The Company shall promptly (and in
any event no later than the later of (i) twenty-four (24) hours or (ii) 5 p.m. New York City time on the next Business Day) advise Parent orally and in writing of any Company Takeover Proposal, the material terms and conditions of any
such Company Takeover Proposal and the identity of the Person making any such Company Takeover Proposal. The Company shall keep Parent reasonably informed in all material respects on a reasonably current basis of the material terms and status
(including any change to the terms thereof) of any Company Takeover Proposal.
(e) Nothing contained in this Section 5.03
shall prohibit the Company from (i) complying with Rule 14d-9 and Rule 14e-2 promulgated under the Exchange Act or (ii) making any disclosure to the shareholders of the Company if, in the good-faith judgment of the Company Board
(after consultation with outside legal counsel) failure to so disclose would reasonably likely be inconsistent with its obligations under applicable Law.
(f) For purposes of this Agreement:
(i) Company Takeover Proposal means any proposal or offer (whether or not in writing), with respect to any
(1) merger, consolidation, share exchange, other business combination, recapitalization, liquidation, dissolution or similar transaction involving the Company, (2) sale, lease, contribution or other disposition, directly or indirectly
(including by way of merger, consolidation, share exchange, other business combination, partnership, joint venture, sale of capital stock of or other equity
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interests in a Company Subsidiary or otherwise) of any business or assets of the Company or the Company Subsidiaries representing 30% or more of the consolidated revenues, net income or assets of
the Company and the Company Subsidiaries, taken as a whole, (3) issuance, sale or other disposition, directly or indirectly, to any Person (or the shareholders of any Person) or group of securities (or options, rights or warrants to purchase,
or securities convertible into or exchangeable for, such securities) representing 30% or more of the voting power of the Company, (4) transaction (including any tender offer or exchange offer) in which any Person (or the shareholders of any
Person) would acquire (in the case of a tender offer or exchange offer, if consummated), directly or indirectly, beneficial ownership, or the right to acquire beneficial ownership, or formation of any group which beneficially owns or has the right
to acquire beneficial ownership of, 30% or more of any class of capital stock of the Company or (5) any combination of the foregoing.
(ii) Superior Company Proposal means a bona fide written Company Takeover Proposal (provided
that for purposes of this definition, the applicable percentage in the definition of Company Takeover Proposal shall be 50.1% rather than 30% or more), which the Company Board determines in good faith, after consultation with
outside legal counsel and a financial advisor, and taking into account the legal, financial, regulatory and other aspects of such Company Takeover Proposal and such other factors that are deemed relevant by the Company Board, is more favorable to
the holders of Company Common Stock than the transactions contemplated by this Agreement (after taking into account any proposed revisions to the terms of this Agreement that are committed to in writing by Parent (including pursuant to
Section 5.03(c)).
(iii) Company Intervening Event means any fact, circumstance, effect,
change, event or development that (1) is unknown to or by the Company Board as of the date hereof (or if known, the magnitude or material consequences of which were not known or understood by the Company Board as of the date of this Agreement)
and (2) becomes known to or by the Company Board prior to obtaining the Company Shareholder Approval.
SECTION 5.04
Financing.
(a) Parent shall, and shall cause its Affiliates to, take, or cause to be taken, all actions, and to do, or cause to
be done, all things necessary to consummate the Financing, or any Substitute Financing, as promptly as possible following the date of this Agreement (and, in any event, no later than the Closing Date), including (i) (1) maintaining in
effect the Debt Letters and complying with all of their respective obligations thereunder and (2) negotiating, entering into and delivering definitive agreements with respect to the Financing reflecting the terms contained in the Debt Letters
(or with other terms agreed by Parent and the Financing Parties, subject to the restrictions on amendments of the Debt Letters set forth below), so that such agreements are in effect no later than the Closing, and (ii) satisfying on a timely
basis all the conditions to the Financing and the definitive agreements related thereto that are applicable to Parent and its Affiliates.
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(b) In the event that all conditions set forth in Sections 7.01 and 7.03 have been
satisfied or waived or, upon funding shall be satisfied or waived, Parent and its Affiliates shall cause the Persons providing the Financing (the Financing Parties) to fund on the Closing Date the Financing, to the extent the
proceeds thereof are required to consummate the Merger and the other transactions contemplated hereby, and shall enforce its rights under the Debt Letters (including in the event of any breach or purported breach thereof and including by taking
enforcement action to cause such lenders and the other Financing Parties to fund such Financing). Parent shall not, and shall cause its Affiliates not to, take or refrain from taking, directly or indirectly, any action that would reasonably be
expected to result in a failure of any of the conditions contained in the Debt Letters or in any definitive agreement related to the Financing. Parent shall not, and shall cause its Affiliates not to, object to the utilization of any market
flex provisions by any Financing Party.
(c) Parent shall keep the Company reasonably informed on a current and timely basis of the
status of Parents efforts to obtain the Financing and to satisfy the conditions thereof, including advising and updating the Company, in a reasonable level of detail, with respect to status, proposed closing date and material terms of the
definitive documentation related to the Financing, providing copies of then current drafts of the credit agreement and other primary definitive documents and giving the Company prompt notice of any material change (adverse or otherwise) with respect
to the Financing. Without limiting the foregoing, Parent shall notify the Company promptly (and in any event within one (1) Business Day) if at any time prior to the Closing Date:
(i) any Debt Letter expires or is terminated for any reason (or if any Person attempts or purports to terminate or repudiate
any Debt Letter, whether or not such attempted or purported termination or repudiation is valid);
(ii) Parent obtains
knowledge of any breach or default or any threatened breach or default (or any event or circumstance that, with or without due notice, lapse of time or both, would reasonably be expected to give rise to any breach or default) by any party to any
Debt Letter or any definitive document related to the Financing of any provisions of the Debt Letters or any definitive document related to the Financing;
(iii) Parent receives any communication (written or oral) from any Person with respect to any (1) actual, potential or
threatened breach, default, termination or repudiation by any party to the Debt Letters or any definitive document related to the Financing of any provisions of the Debt Letters or any definitive document related to the Financing or (2) dispute
or disagreement between or among any parties to the Debt Letters;
(iv) any Financing Party refuses to provide or
expresses (orally or in writing) an intent to refuse to provide all or any portion of the Financing contemplated by the Debt Letters on the terms set forth therein (or expresses (orally or in writing) that such Person does not intend to enter into
all or any portion of definitive documentation related to the Financing or to consummate the transactions contemplated thereby); or
(v) there occurs any event or development that could reasonably be expected to adversely impact the ability of Parent to
obtain all, or any portion of, the Financing contemplated by the Debt Letters on the terms and conditions, in the manner or from the sources contemplated by any of the Debt Letters or the definitive documents related to the Financing or if at any
time for any other reason Parent no longer believes in good faith that it will be able to obtain all or any portion of the Financing on the terms and conditions, in the manner or from the sources contemplated by any of the Debt Letters or the
definitive documents related to the Financing.
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(d) As soon as reasonably practicable (but in any event within two (2) Business Days after
the date the Company delivers to Parent a written request therefor), Parent shall provide any information reasonably requested by the Company relating to any circumstance referred to in Section 5.04(c)(i)(v) of the immediately
preceding sentence.
(e) Parent may amend, modify, terminate, assign or agree to any waiver under the Debt Letters (including to add
lenders, arrangers, agents, bookrunners, managers and other financing sources) without the prior written approval of the Company; provided that Parent shall not, without Companys prior written consent, permit any such amendment,
modification, assignment, termination or waiver to be made to, or consent to any waiver of, any provision of or remedy under the Debt Letters which would (1) reduce the aggregate amount of the Financing (including by increasing the amount of
fees to be paid or original issue discount), (2) impose new or additional conditions to the Financing or otherwise expand, amend, modify or waive any of the conditions to the Financing or (3) otherwise expand, amend, modify or waive any
provision of the Debt Letters in a manner that in any such case would reasonably be expected to (A) delay or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date,
(B) adversely impact the ability of Parent to enforce its rights against the Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (C) adversely affect the ability of Parent to
timely consummate the Merger and the other transactions contemplated hereby. In the event that new debt or equity commitment letters or fee letters are entered into in accordance with any amendment, replacement, supplement or other modification of
the Debt Letters permitted pursuant to this Section 5.04(e), such new commitment letters or fee letters shall be deemed to be a part of the Financing and deemed to be the Debt Letters for all purposes of this
Agreement. Parent shall promptly deliver to the Company copies of any termination, amendment, modification, waiver or replacement of the Debt Letters.
(f) If funds in the amounts set forth in the Debt Letters, or any portion thereof, become unavailable, Parent shall, and shall cause its
Affiliates, as promptly as practicable following the occurrence of such event to (i) notify the Company in writing thereof, (ii) obtain substitute financing sufficient to enable Parent to consummate the Merger and the other transactions
contemplated hereby in accordance with its terms (the Substitute Financing) and (iii) obtain a new financing commitment letter that provides for such Substitute Financing and, promptly after execution thereof, deliver to the
Company true, complete and correct copies of the new commitment letter and the related fee letters (in redacted form reasonably satisfactory to the Persons providing such Substitute Financing removing only the fee amounts, pricing caps, the rates
and amounts included in the market flex) and related definitive financing documents with respect to such Substitute Financing; provided, however, that any such Substitute Financing
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shall not, without the prior written consent of the Company, (1) reduce the aggregate amount of the Financing (including by increasing the amount of fees to be paid or original issue
discount), (2) impose new or additional conditions to the Financing or otherwise expand, amend, modify or waive any of the conditions to the Financing or (3) otherwise expand, amend, modify or waive any provision of the Debt Letters in a
manner that in any such case would reasonably be expected to (A) delay or make less likely the funding of the Financing (or satisfaction of the conditions to the Financing) on the Closing Date, (B) adversely impact the ability of Parent to
enforce its rights against the Financing Parties or any other parties to the Debt Letters or the definitive agreements with respect thereto or (C) adversely affect the ability of Parent to timely consummate the Merger and the other transactions
contemplated hereby. Upon obtaining any commitment for any such Substitute Financing, such financing shall be deemed to be a part of the Financing and any commitment letter for such Substitute Financing shall be deemed the Debt
Letters for all purposes of this Agreement.
(g) Parent shall pay, or cause to be paid, as the same shall become due and payable,
all fees and other amounts that become due and payable under the Debt Letters.
(h) Notwithstanding anything contained in this Agreement
to the contrary, Parent and Merger Sub expressly acknowledge and agree that neither Parents nor Merger Subs obligations hereunder are conditioned in any manner upon Parent or Merger Sub obtaining the Financing, any Substitute Financing
or any other financing.
SECTION 5.05 Financing Cooperation.
(a) From the date hereof until the Closing (or the earlier termination of this Agreement pursuant to Section 8.01), subject to
the limitations set forth in this Section 5.05, and unless otherwise agreed by Parent, the Company will use its reasonable best efforts to cooperate with Parent as reasonably requested by Parent in connection with Parents
arrangement of the Financing (which, solely for purposes of this Section 5.05, shall include any alternative equity or debt capital markets financings contemplated by the Debt Letters). Such cooperation will include using reasonable best
efforts to:
(i) make appropriate officers reasonably available, with appropriate advance notice, for participation in
bank meetings, due diligence sessions, meetings with ratings agencies and road shows, reasonable assistance in the preparation of confidential information memoranda, private placement memoranda, prospectuses and similar documents as may be
reasonably requested by Parent or any Financing Party, in each case, with respect to information relating to the Company and its Subsidiaries in connection with customary marketing efforts of Parent for all or any portion of the Financing;
(ii) furnish Parent and the Financing Parties with copies of such financial data with respect to the Company and its
Subsidiaries which is prepared by the Company in the ordinary course of business as is reasonably requested by Parent or any Financing Party and is customarily required for the arrangement and syndication of financings similar to the Financing
committed pursuant to the Debt Letters; and
(iii) request that the Companys independent accountants participate in
drafting sessions and accounting due diligence sessions and cooperate with the Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or in connection with a customary offering of securities, including the
type described in the Commitment Letters, consistent with their customary practice, including requesting that they provide customary consents and comfort letters (including negative assurance comfort) to the extent required in connection
with the marketing and syndication of Financing (including as set forth in the Debt Letters as in effect on the date of this Agreement) or as are customarily required in an underwritten offering of securities of the type described in the Debt
Letters;
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provided, further, that nothing in this Agreement shall require the Company to cause the delivery
of (1) legal opinions or reliance letters or any certificate as to solvency or any other certificate necessary for the Financing, other than as allowed by Section 5.05(a)(iii), (2) any audited financial information or any
financial information prepared in accordance with Regulation S-K or Regulation S-X under the Securities Act of 1933, as amended, or any financial information in a form not customarily prepared by the
Company with respect to such period or (3) any financial information with respect to a month or fiscal period that has not yet ended or has ended less than forty-five 45 days prior to the date of such request.
(b) Notwithstanding anything to the contrary contained in this Agreement (including this Section 5.05): (i) nothing in this
Agreement (including this Section 5.05) shall require any such cooperation to the extent that it would (1) require the Company to pay any commitment or other fees, reimburse any expenses or otherwise incur any liabilities or give
any indemnities prior to the Closing, (2) unreasonably interfere with the ongoing business or operations of the Company or the Company Subsidiaries, (3) require the Company or any of the Company Subsidiaries to enter into or approve any
agreement or other documentation effective prior to the Closing or agree to any change or modification of any existing agreement or other documentation that would be effective prior to the Closing or (4) require the Company, any of the Company
Subsidiaries or any of their respective boards of directors (or equivalent bodies) to approve or authorize the Financing, and (ii) no action, liability or obligation (including any obligation to pay any commitment or other fees or reimburse any
expenses) of the Company, its Subsidiaries, or any of their respective Representatives under any certificate, agreement, arrangement, document or instrument relating to the Financing shall be effective until the Closing.
(c) Parent shall (i) promptly upon request by the Company, reimburse the Company for all of its fees and expenses (including fees and
expenses of counsel and accountants) incurred by the Company, any of the Company Subsidiaries, any of its or their Representatives in connection with any cooperation contemplated by this Section 5.05 and (ii) indemnify and hold
harmless the Company, the Company Subsidiaries and its and their Representatives against any claim, loss, damage, injury, liability, judgment, award, penalty, fine, Tax, cost (including cost of investigation), expense (including fees and expenses of
counsel and accountants) or settlement payment incurred as a result of, or in connection with, such cooperation or the Financing and any information used in connection therewith.
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ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.01 Preparation of the Proxy Statement; Company Shareholders Meeting.
(a) As promptly as reasonably practicable following the date of this Agreement, unless the Company Board has made a Company Adverse
Recommendation Change, the Company shall prepare and cause to be filed with the SEC a proxy statement to be mailed to the shareholders of the Company relating to the Company Shareholders Meeting (together with any amendments or supplements thereto,
the Proxy Statement) in preliminary form. Each of Parent and Merger Sub shall furnish all information concerning itself and its Affiliates to the Company, and provide such other assistance, as may be reasonably requested by the
Company or the Companys outside legal counsel in connection with the preparation, filing and distribution of the Proxy Statement.
(b) The Company agrees that (i) none of the information supplied or to be supplied by the Company for inclusion or incorporation by
reference in the Proxy Statement will, at the date it is first mailed to the Companys shareholders or at the time of the Company Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading and (ii) except with respect to any information supplied to the Company by Parent or Merger Sub
for inclusion or incorporation by reference in the Proxy Statement, the Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations of the SEC promulgated thereunder. Parent
and Merger Sub agree that none of the information supplied or to be supplied by Parent or Merger Sub for inclusion or incorporation by reference in the Proxy Statement will, at the date it is first mailed to the Companys shareholders or at the
time of the Company Shareholders Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under
which they are made, not misleading.
(c) The Company shall promptly notify Parent after the receipt of any comments from the SEC with
respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement and shall provide Parent with copies of all correspondence between it and its Affiliates and Representatives, on the one hand, and the SEC, on the other
hand. Unless the Company Board has made a Company Adverse Recommendation Change:
(i) each of the Company and Parent shall
use its reasonable best efforts (1) to respond as promptly as reasonably practicable to any comment from the SEC with respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement and (2) to have the SEC
advise the Company as promptly as reasonably practicable that the SEC has no further comments on the Proxy Statement;
(ii) the Company shall file the Proxy Statement in definitive form with the SEC and cause such definitive Proxy Statement to
be mailed to the shareholders of the Company as promptly as reasonably practicable after the SEC advises the Company that the SEC has no further comments on the Proxy Statement; and
(iii) the Company shall include the Company Board Recommendation in the preliminary and definitive Proxy Statements.
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Notwithstanding anything to the contrary herein, prior to filing the Proxy Statement in preliminary form with the
SEC, responding to any comment from the SEC with respect to, or any request from the SEC for amendments or supplements to, the Proxy Statement or mailing the Proxy Statement in definitive form to the shareholders of the Company, the Company shall
provide Parent with an opportunity to review and comment on such document or response and consider in good faith any of Parents comments thereon. Unless the Company Board has made a Company Adverse Recommendation Change, (1) each Party
shall use its reasonable best efforts to have the SEC advise the Company, as promptly as reasonably practicable after the filing of the preliminary Proxy Statement, that the SEC has no further comments on the Proxy Statement, and (2) each of
the Company and Parent shall also take any other action (except for qualifying to do business in any jurisdiction in which it is not now so qualified) required to be taken under the Securities Act, the Exchange Act, any applicable foreign or state
securities or blue sky Laws and the rules and regulations thereunder in connection with the Merger.
(d) If, prior to the
Effective Time, any event occurs with respect to Parent or any Parent Subsidiary, or any change occurs with respect to other information supplied by Parent for inclusion in the Proxy Statement, that is required to be described in an amendment of, or
a supplement to, the Proxy Statement, Parent shall promptly notify the Company of such event, and Parent and the Company shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement so that either
such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made,
not misleading, and, as required by Law, in disseminating the information contained in such amendment or supplement to the Companys shareholders. Nothing in this Section 6.01(d) shall limit the obligations of any Party under
Section 6.01(a).
(e) If prior to the Effective Time, any event occurs with respect to the Company or any Company Subsidiary,
or any change occurs with respect to other information supplied by the Company for inclusion in the Proxy Statement, that is required to be described in an amendment of, or a supplement to, the Proxy Statement, the Company shall promptly notify
Parent of such event, and the Company and Parent shall cooperate in the prompt filing with the SEC of any necessary amendment or supplement to the Proxy Statement so that either such document would not include any misstatement of a material fact or
omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they are made, not misleading and, as required by Law, in disseminating the
information contained in such amendment or supplement to the Companys shareholders. Nothing in this Section 6.01(e) shall limit the obligations of any Party under Section 6.01(a).
(f) Unless the Company Board has made a Company Adverse Recommendation Change, (i) the Company shall, as soon as practicable after the
mailing of the
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definitive Proxy Statement to the shareholders of the Company, duly call, give notice of, convene and hold the Company Shareholders Meeting and (ii) the Company shall use its reasonable
efforts to solicit the Company Shareholder Approval.
(g) Parent shall be responsible for 100% of the fees, costs and expenses (except
for the fees, costs and expenses of the Companys advisors), including any filings fees, associated with the preparation, filing and mailing of the Proxy Statement.
SECTION 6.02 Access to Information; Confidentiality.
(a) Subject to applicable Law and the Confidentiality Agreement, the Company shall, and shall cause each of the Company Subsidiaries to,
afford to Parent and its Representatives reasonable access (at Parents sole cost and expense), during normal business hours and upon reasonable advance notice, during the period from the date of this Agreement until the earlier of the
Effective Time or termination of this Agreement pursuant to Section 8.01, to the Companys material properties, books, contracts, commitments, personnel and records, and during such period, the Company shall, and shall cause the
Company Subsidiaries to, make available promptly to Parent (i) to the extent not publicly available, a copy of each material Filing made by it during such period pursuant to the requirements of securities Laws or filed with or sent to the SEC,
the FERC, the FPSC, the NMPRC or any other Governmental Entity and (ii) all other material information concerning its business, properties and personnel as such Parent may reasonably request; provided, however, that the Company
may withhold from Parent or its Representatives any document or information that the Company believes is subject to the terms of a confidentiality agreement with a third party (provided that the Company shall use its commercially reasonable
efforts to obtain the required consent of such third party to disclose such document or information) or subject to any attorneyclient privilege (provided that the Company shall use its commercially reasonable best efforts to allow the
disclosure of such document or information (or as much of it as possible) in a manner that does not result in a loss of attorneyclient privilege) or is commercially sensitive (as determined in the Companys reasonable discretion);
provided, further, that Parent and its Representatives shall not have the right to collect any air, soil, surface water or ground water samples or perform any invasive or destructive air sampling on, under, at or from any of the
properties owned, leased or operated by the Company or any Company Subsidiary. Except for incidents caused by the Companys or its Affiliates intentional misconduct, Parent shall indemnify the Company and its Affiliates and
Representatives from, and hold the Company and its Affiliates and Representatives harmless against, any and all Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs, expenses, including attorneys fees
and disbursements, and the cost of enforcing this indemnity arising out of or resulting from any access provided pursuant to this Section 6.02(a).
(b) All documents and information exchanged pursuant to this Section 6.02 shall be subject to the letter agreement, dated as of
July 14, 2015, between the Company and Parent (the Confidentiality Agreement). If this Agreement is terminated pursuant to Section 8.01, the Confidentiality Agreement shall automatically be deemed to be amended
and restated such that (i) Section 6 (Standstill) of the Confidentiality Agreement shall remain in effect for eighteen (18) months after the date of such termination, as if the Parties had never entered into this Agreement, and
(ii) the other provisions of the Confidentiality Agreement shall remain in effect for two (2) years after such termination, as if the Parties had never entered into this Agreement.
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SECTION 6.03 Further Actions; Regulatory Approvals; Required Actions.
(a) Subject to the terms and conditions of this Agreement, each of the Parties shall take, or cause to be taken, all actions, and do, or
cause to be done, and assist and cooperate with the other Parties in doing, all things necessary to cause the conditions to the Closing set forth in Article VII to be satisfied as promptly as reasonably practicable or to effect the Closing as
promptly as reasonably practicable, including (i) making all necessary Filings with Governmental Entities or third parties, (ii) obtaining the Required Consents and all other third-party Consents that are necessary, proper or advisable to
consummate the Merger, (iii) obtaining the Required Statutory Approvals and all other Consents of Governmental Entities that are necessary, proper or advisable to consummate the Merger and (iv) executing and delivering any additional
instruments that are necessary, proper or advisable to consummate the Merger. Parent shall be responsible for 100% of the fees, costs and expenses (except for the fees, costs and expenses of the Companys advisors), including any filing fees,
associated with any Filings or Consents contemplated by this Section 6.03.
(b) In connection with and without limiting the
generality of Section 6.03(a), each of Parent and the Company shall:
(i) make or cause to be made, in
consultation and cooperation with the other, as promptly as practicable after the date of this Agreement, (1) an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger, (2) all other necessary
Filings relating to the Merger with other Governmental Entities under any other Antitrust Law and (3) all draft and final filings required in connection with the CFIUS Approval in accordance with 31 C.F.R. Part 800;
(ii) make or cause to be made, as promptly as practicable after the date of this Agreement and in any event within thirty
(30) days after the date of this Agreement, all necessary Filings to the FERC relating to the Merger;
(iii) make or
cause to be made, as promptly as practicable after the date of this Agreement and in any event within forty-five (45) days after the date of this Agreement, all necessary Filings with other Governmental Entities relating to the Merger,
including any such Filings necessary to obtain any Required Statutory Approval;
(iv) furnish to the other all assistance,
cooperation and information reasonably required for any such Filing and in order to achieve the effects set forth in this Section 6.03;
(v) unless prohibited by applicable Law or by a Governmental Entity, give the other reasonable prior notice of any such Filing
and, to the extent reasonably practicable, of any communication with any Governmental Entity relating to the Merger (including with respect to any of the actions referred to in this Section 6.03(b)) and, to the extent reasonably
practicable, permit the other to review and discuss in advance, and consider in good faith the views of, and secure the participation of, the other in connection with any such Filing or communication;
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(vi) respond as promptly as practicable under the circumstances to any inquiries
received from any Governmental Entity or any other authority enforcing applicable Antitrust Laws for additional information or documentation in connection with antitrust, competition or similar matters (including a second request under
the HSR Act) and not extend any waiting period under the HSR Act or enter into any agreement with any such Governmental Entity or other authorities not to consummate the Merger, except with the prior written consent of the other Party;
(vii) provide any information requested by CFIUS or any other agency or branch of the U.S. government in connection with the
CFIUS review or investigation of the transactions contemplated by this Agreement; and
(viii) unless prohibited by
applicable Law or a Governmental Entity, to the extent commercially reasonably practicable, (1) not participate in or attend any formal meeting with any Governmental Entity in respect of the Merger without the other Party, (2) keep the
other Party apprised with respect to any meeting or substantive conversation with any Governmental Entity in respect of the Merger, (3) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written
communications explaining or defending this Agreement or the Merger, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity and (4) furnish the other Party with copies of all
substantive correspondence, Filings and communications (and memoranda setting forth the substance thereof) between it and its Affiliates and their respective Representatives on the one hand, and any Governmental Entity or members of any Governmental
Entitys staff, on the other hand, with respect to this Agreement or the Merger; provided that the Parties shall be permitted to redact any correspondence, Filing or communication to the extent such correspondence, Filing or
communication contains commercially sensitive information.
(c) Parent shall not, and shall cause its Affiliates not to, take any action,
including acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, other business combination, asset, stock or equity purchase, or otherwise), that could reasonably be expected to adversely
affect obtaining or making any Consent or Filing contemplated by this Section 6.03 or the timely receipt thereof. In furtherance of and without limiting any of Parents covenants and agreements under this Section 6.03,
Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment that may be asserted by a Governmental Entity pursuant to any Antitrust Law with respect to the Merger or in connection with granting any Required Statutory
Approval so as to enable the Closing to occur as soon as reasonably possible, which such reasonable best efforts shall include the following:
(i) defending through litigation on the merits, including appeals, any Claim asserted in any court or other proceeding by any
Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing;
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(ii) proposing, negotiating, committing to and effecting, by consent decree,
hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or businesses of Parent or its Affiliates or the Company or the Company Subsidiaries, including entering into customary ancillary agreements on
commercially reasonable terms relating to any such sale, divestiture, licensing or disposition;
(iii) agreeing to any
limitation on the conduct of Parent or its Affiliates (including, after the Closing, the Surviving Corporation and the Company Subsidiaries); and
(iv) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following:
(1) obtaining all Required Statutory Approvals as soon as reasonably possible and in any event before the End Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned any Judgment, whether temporary,
preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise
have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing.
(d) In addition, Parent hereby (i) agrees that, from and after the Closing, it shall cause the Company and each Company Subsidiary
subject to the New Mexico Order to comply with all of their respective obligations under the New Mexico Order and (ii) agrees to take any and all actions required or requested by the NMPRC to confirm such agreement.
(e) Parent shall promptly notify the Company and the Company shall notify Parent of any notice or other communication from any Person
alleging that such Persons Consent is or may be required in connection with the Merger.
SECTION 6.04 Transaction
Litigation. The Company shall promptly notify Parent of any shareholder litigation arising from this Agreement or the Merger that is brought against the Company or members of the Company Board (Transaction Litigation). The
Company shall reasonably consult with Parent with respect to the defense or settlement of any Transaction Litigation and shall not settle any Transaction Litigation without Parents consent (not to be unreasonably withheld, conditioned or
delayed).
SECTION 6.05 Section 16 Matters. Prior to the Effective Time, the Company shall take all such steps as may be
required to cause any dispositions of Company Common Stock (including derivative securities with respect to Company Common Stock) directly resulting from the Merger by each individual who will be subject to the reporting requirements of
Section 16(a) of the Exchange Act with respect to the Company immediately prior to the Effective Time to be exempt under Rule 16b-3 promulgated under the Exchange Act.
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SECTION 6.06 Governance Matters.
(a) Parent shall cause the Surviving Corporation to maintain its headquarters in Tampa, Florida. Parent shall cause each Utility Subsidiary
and each New Mexico Subsidiary to maintain its headquarters in the location of its headquarters as of immediately prior to the Closing.
(b) From and after the Effective Time, Parent shall cause the Surviving Corporation and the Company Subsidiaries to maintain historic levels
of community involvement and charitable contributions and support in the existing service territories of the Company and the Company Subsidiaries, including as set forth on Section 6.06(b) of the Company Disclosure Letter.
(c) As of the Effective Time, Parent shall cause two (2) members of the Company Board to be appointed as members of the boards of
directors of each of Tampa Electric Company and New Mexico Gas Company, Inc.
SECTION 6.07 Public Announcements. Except with
respect to (a) a Company Adverse Recommendation Change, a Recommendation Change Notice, a Company Takeover Proposal, a Superior Company Proposal or any matter related to any of the foregoing, (b) any dispute between or among the Parties
regarding this Agreement or the transactions contemplated hereby, (c) a press release or other public statement that is consistent in all material respects with previous press releases, public disclosures or public statements made by a Party in
accordance with this Agreement, including in investor conference calls, SEC Filings, Q&As or other publicly disclosed documents, in each case under this clause (d), to the extent such disclosure is still accurate, Parent and the Company shall
consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other written public statement with respect to this Agreement or the Merger and shall not issue any such press release or
make any such written public statement prior to such consultation, except as such Party reasonably concludes may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange
or national securities quotation system. The Company and Parent agree that the initial press release to be issued with respect to this Agreement or Merger shall be in a form agreed to by the Parties. Nothing in this Section 6.07 shall
limit the ability of any Party to make internal announcements to its respective employees that are consistent in all material respects with the prior public disclosures regarding the transactions contemplated by this Agreement.
SECTION 6.08 Fees, Costs and Expenses. Except as provided otherwise in this Agreement, including Section 6.01(g),
Section 6.03(a) and Article VIII, all fees, costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the Party incurring such fees, costs or expenses, whether or
not the Closing occurs.
SECTION 6.09 Indemnification, Exculpation and Insurance.
(a) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions
occurring at or prior to the Effective Time now existing in favor of the current or former directors, officers or employees of
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the Company and the Company Subsidiaries as provided in their respective Organization Documents and any indemnification or other similar Contracts of the Company or any Company Subsidiary, in
each case, as in effect on the date of this Agreement, shall continue in full force and effect in accordance with their terms (it being agreed that after the Closing such rights shall be mandatory rather than permissive, if applicable), and Parent
shall cause the Surviving Corporation and the Company Subsidiaries to perform their respective obligations thereunder. Without limiting the foregoing, from and after the Effective Time, the Surviving Corporation agrees that it will indemnify and
hold harmless each individual who is as of the date of this Agreement, or who becomes prior to the Effective Time, a director, officer or employee of the Company or any Company Subsidiary or who is as of the date of this Agreement, or who thereafter
commences prior to the Effective Time, serving at the request of the Company or any Company Subsidiary as a director, officer or employee of another Person (the Company Indemnified Parties), against all claims, losses,
liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys fees and disbursements, incurred in connection with any Claim, whether civil, criminal, administrative or investigative (including
with respect to matters existing or occurring at or prior to the Effective Time (including this Agreement and the transactions and actions contemplated hereby)), arising out of or pertaining to the fact that the Company Indemnified Party is or was a
director, officer or employee of the Company or any Company Subsidiary or is or was serving at the request of the Company or any Company Subsidiary as a director, officer or employee of another Person, whether asserted or claimed prior to, at or
after the Effective Time, to the fullest extent permitted under applicable Law. In the event of any such Claim, (i) each Company Indemnified Party will be entitled to advancement of expenses incurred in the defense of any such Claim from Parent
within ten (10) Business Days after receipt by Parent from the Company Indemnified Party of a request therefor; provided that any Person to whom expenses are advanced provides an undertaking, if and only to the extent required by
applicable Law or the Surviving Corporations Organizational Documents, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to indemnification and (ii) the Surviving Corporation
shall cooperate in good faith in the defense of any such matter.
(b) In the event that Parent or the Surviving Corporation or any of its
successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its
properties and assets to any Person, then, and in each such case, Parent or the Surviving Corporation, as the case may be, shall cause proper provision to be made so that the successors and assigns of Parent or the Surviving Corporation, as the case
may be, assume the covenants and agreements set forth in this Section 6.09.
(c) For a period of six (6) years from and
after the Effective Time, the Surviving Corporation shall either cause to be maintained in effect the current policies of directors and officers liability insurance and fiduciary liability insurance maintained by the Company or its
Subsidiaries or provide substitute policies for the Company and its current and former directors and officers who are currently covered by the directors and officers and fiduciary liability insurance coverage currently maintained by the
Company, in either case, of not less than the existing coverage and having other terms not less favorable to the insured persons than the directors and officers liability insurance and fiduciary liability insurance coverage currently
maintained by the Company with respect to claims arising from facts or events that
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occurred on or before the Effective Time (with insurance carriers having at least an A rating by A.M. Best with respect to directors and officers liability insurance and
fiduciary liability insurance), except that in no event shall the Surviving Corporation be required to pay with respect to such insurance policies in respect of any one policy year more than 300% of the aggregate annual premium most recently paid by
the Company prior to the date of this Agreement (the Maximum Amount), and if the Surviving Corporation is unable to obtain the insurance required by this Section 6.09(c) it shall obtain as much comparable insurance as
possible for the years within such six (6) year period for an annual premium equal to the Maximum Amount, in respect of each policy year within such period. In lieu of such insurance, prior to the Closing Date the Company may, at its option,
purchase a tail directors and officers liability insurance policy and fiduciary liability insurance policy for the Company and its current and former directors, officers and employees who are currently covered by the
directors and officers and fiduciary liability insurance coverage currently maintained by the Company, such tail to provide coverage in an amount not less than the existing coverage and to have other terms not less favorable to the
insured persons than the directors and officers liability insurance and fiduciary liability insurance coverage currently maintained by the Company with respect to claims arising from facts or events that occurred on or before the
Effective Time for a period of not less than six (6) years; provided that in no event shall the cost of any such tail policy in respect of any one policy year exceed the Maximum Amount. The Surviving Corporation shall maintain such
policies in full force and effect, and continue to honor the obligations thereunder.
(d) The provisions of this Section 6.09
(i) shall survive consummation of the Merger, (ii) are intended to be for the benefit of, and will be enforceable by, each indemnified or insured party (including the Company Indemnified Parties), his or her heirs and his or her
representatives and (iii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise.
(e) From and after the Effective Time, Parent shall guarantee the prompt payment of the obligations of the Surviving Corporation and the
Company Subsidiaries under this Section 6.09.
SECTION 6.10 Employee Matters.
(a) During the period commencing at the Effective Time and ending on the two (2) year anniversary of the Effective Time (the
Continuation Period), Parent shall, and shall cause the Surviving Corporation to, provide each individual who is employed by the Company or a Company Subsidiary immediately prior to the Effective Time and who remains employed
thereafter by the Surviving Corporation, Parent or any of their Subsidiaries (each, a Company Employee) who is not covered by a Company Union Contract and who remains a Company Employee with (i) a base salary or wage rate
that is no less favorable than that provided to the Company Employee immediately prior to the Effective Time, (ii) aggregate incentive compensation opportunities that are substantially comparable, in the aggregate, to those provided to the
Company Employee immediately prior to the Effective Time and (iii) employee benefits that are substantially comparable, in the aggregate, to those provided to the Company Employee immediately prior to the Effective Time. During the Continuation
Period, Parent shall, and shall cause the Surviving Corporation to, provide each Company Employee who
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experiences a termination of employment with the Surviving Corporation, Parent or any of their Subsidiaries severance benefits that are no less favorable than those set forth in
Section 6.10(a)(1) of the Company Disclosure Letter. During the three-year period following the Continuation Period, Parent shall, or shall cause the Surviving Corporation to, treat Company Employees with respect to the payment of base
salary or wage rate, incentive compensation opportunities, employee benefits and severance benefits no less favorably in the aggregate than similarly situated employees of the Parent and its Subsidiaries. Prior to the third anniversary of the
Closing Date, Parent shall not, and shall cause the Surviving Corporation to not, terminate or amend in any manner that is materially adverse to the participants therein, any of the Company Benefit Plans listed on Section 6.10(a)(2) of
the Company Disclosure Letter. During the three-year period following the third anniversary of the Closing Date, subject to Section 6.10(d)(ii), Parent shall, or shall cause the Surviving Corporation to, treat retirees of the Company and its
Subsidiaries with respect to the provision of post-retirement welfare benefits no less favorably than similarly situated retirees of the Parent and its Subsidiaries. Except as provided on Section 6.10(a)(3) of the Company Disclosure
Letter, as soon as practicable following the end of the fiscal year in which the Effective Time occurs, Parent shall, or shall cause the Surviving Corporation to, pay each Company Employee who remains employed with the Surviving Corporation, Parent
or any of their Subsidiaries through the applicable payment date an annual cash bonus for such fiscal year in an amount determined based on the level of attainment of the applicable performance criteria under the bonus plan in which such Company
Employee participated as of immediately prior to the Effective Time.
(b) With respect to each Company Employee who is covered by a
Company Union Contract, Parent shall, and shall cause the Surviving Corporation to, continue to honor the Company Union Contracts, in each case as in effect at the Effective Time, in accordance with their terms (it being understood that this
sentence shall not be construed to limit the ability of Parent or the Surviving Corporation to amend or terminate any such Company Union Contract, to the extent permitted by the terms of the applicable Company Union Contract and applicable Law). The
provisions of this Section 6.10 shall be subject to any applicable provisions of the Company Union Contracts and applicable Law in respect of such Company Employee, to the extent the provisions of this Section 6.10 are
inconsistent with or otherwise in conflict with the provisions of any such Company Union Contract or applicable Law.
(c) At the
Effective Time, Parent shall, or shall cause the Surviving Corporation to, assume and honor in accordance with their terms all of the Companys and all of the Company Subsidiaries employment, severance, retention, termination and
change-in-control plans, policies, programs, agreements and arrangements (including any change-in-control severance agreement or other arrangement between the Company and any Company Employee) maintained by the Company or any Company Subsidiary, in
each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the Merger (either alone or in combination with any other event), it being understood that this sentence shall not be
construed to limit the ability of Parent or the Surviving Corporation to amend or terminate any such plans, policies, programs, agreements, or arrangements, to the extent permitted by the terms of the applicable plan, policy, program, agreement or
arrangement. For purposes of any Company Benefit Plan or Company Benefit Agreement containing a definition of change in control, change of control or similar term that relates to a transaction at the level of the Company, the
Closing shall be deemed to constitute a change in control, change of control or such similar term.
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(d) With respect to all employee benefit plans of Parent, the Surviving Corporation or any of
their Subsidiaries, including any employee benefit plan (as defined in Section 3(3) of ERISA) (including any vacation, paid time-off and severance plans), each Company Employees service with the Company or any Company
Subsidiary (as well as service with any predecessor employer of the Company or any such Company Subsidiary, to the extent service with the predecessor employer was recognized by the Company or such Company Subsidiary and is accurately reflected
within a Company Employees records) shall be treated as service with Parent, the Surviving Corporation or any of their Subsidiaries for all purposes, including determining eligibility to participate, level of benefits, vesting and benefit
accruals, except (i) to the extent that such service was not recognized under the corresponding Company Benefit Plan immediately prior to the Effective Time, (ii) for purposes of any defined benefit retirement plan, any retiree welfare
benefit plan, any grandfathered or frozen plan or any plan under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (iii) to the extent that such recognition would result in any
duplication of benefits for the same period of service.
(e) Parent shall, and shall cause the Surviving Corporation to, use commercially
reasonable efforts to waive, or cause to be waived, any pre-existing condition limitations, exclusions, actively at work requirements and waiting periods under any welfare benefit plan maintained by Parent, the Surviving Corporation or any of their
Subsidiaries in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Effective Time, except to the extent that such pre-existing condition limitations, exclusions, actively-at-work requirements
and waiting periods would not have been satisfied or waived under the corresponding Company Benefit Plan immediately prior to the Effective Time. Parent shall, or shall cause the Surviving Corporation to, use commercially reasonable efforts to
recognize the dollar amount of all co-payments, deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Effective Time occurs for purposes of satisfying such
years deductible and co-payment limitations under the relevant welfare benefit plans in which they will be eligible to participate from and after the Effective Time.
(f) Notwithstanding anything to the contrary herein, the provisions of this Section 6.10 are solely for the benefit of the
parties to this Agreement, and no provision of this Section 6.10 is intended to, or shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise and no Company
Personnel or any other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of this Agreement or have the right to enforce the provisions hereof including in respect of continued employment (or resumed
employment). Nothing contained herein shall alter the at-will employment relationship of any Company Employee.
SECTION 6.11
Merger Sub.
(a) Prior to the Effective Time, Merger Sub shall not engage in any activity of any nature except for activities
related to or in furtherance of the Merger.
(b) Parent hereby (i) guarantees the due, prompt and faithful payment performance and
discharge by Merger Sub of, and compliance by Merger Sub with, all of the covenants and agreements of Merger Sub under this Agreement and (ii) agrees to take all actions necessary, proper or advisable to ensure such payment, performance and
discharge by Merger Sub hereunder.
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SECTION 6.12 Takeover Statutes. If any Takeover Statute or similar statute or
regulation becomes applicable to this Agreement or the Merger, the Company and the Company Board shall grant such approvals and take such actions as are reasonably appropriate to ensure that the Merger may be consummated as promptly as practicable
on the terms contemplated by this Agreement.
ARTICLE VII
CONDITIONS PRECEDENT
SECTION 7.01 Conditions to Each Partys Obligation to Effect the Transactions. The obligation of each Party to effect the
Closing is subject to the satisfaction or waiver (by such Party) at or prior to the Closing of the following conditions:
(a) Company
Shareholder Approval. The Company Shareholder Approval shall have been obtained.
(b) Required Statutory Approvals. The
Required Statutory Approvals, including the expiration or termination of any waiting period applicable to the Merger under the HSR Act, shall have been obtained at or prior to the Effective Time and such approvals shall have become Final Orders. For
purposes of this Section 7.01(b), a Final Order means a Judgment by the relevant Governmental Entity that (1) has not been reversed, stayed, enjoined, set aside, annulled or suspended and is in full force and
effect, (2) with respect to which, if applicable, any mandatory waiting period prescribed by Law before the Merger may be consummated has expired and (3) as to which all conditions to the consummation of the Merger prescribed by Law have
been satisfied.
(c) No Legal Restraints. No Law and no Judgment, whether preliminary, temporary or permanent, shall be in effect
that prevents, makes illegal or prohibits the consummation of the Merger (any such Law or Judgment, a Legal Restraint).
SECTION 7.02 Conditions to Obligations of the Company. The obligation of the Company to effect Closing is further subject to the
satisfaction or waiver (by the Company) at or prior to the Closing of the following conditions:
(a) Representations and
Warranties. The representations and warranties of Parent and Merger Sub contained herein shall be true and correct (without giving effect to any limitation as to materiality or Parent Material Adverse Effect set forth
therein) at and as of the Effective Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of any such representation or warranty to be true
and correct (without giving effect to any limitation as to materiality or Parent Material Adverse Effect set forth therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Parent
Material Adverse Effect.
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(b) Performance of Covenants and Agreements of Parent and Merger Sub. Parent and Merger
Sub shall have performed in all material respects all material covenants and agreements required to be performed by them under this Agreement at or prior to the Closing.
(c) Officers Certificate. The Company shall have received a certificate signed on behalf of Parent by an executive officer of
Parent certifying the satisfaction by Parent and Merger Sub of the conditions set forth in Section 7.02(a) and Section 7.02(b).
SECTION 7.03 Conditions to Obligations of Parent and Merger Sub. The obligations of Parent and Merger Sub to consummate the Merger
is further subject to the satisfaction or waiver (by Parent and Merger Sub) at or prior to the Closing of the following conditions:
(a)
Representations and Warranties. (i) The representations and warranties of the Company contained herein (except for the representations and warranties contained in Section 3.03) shall be true and correct (without giving effect
to any limitation as to materiality or Company Material Adverse Effect set forth therein) at and as of the Effective Time as if made at and as of such time (except to the extent expressly made as of an earlier date, in which
case as of such earlier date), except where the failure of any such representation or warranty to be true and correct (without giving effect to any limitation as to materiality or Company Material Adverse Effect set forth
therein), individually or in the aggregate, has not had and would not reasonably be expected to have a Company Material Adverse Effect, and (ii) the representations and warranties of the Company contained in Section 3.03 shall be
true and correct at and as of the Closing Date as if made at and as of such time (except to the extent expressly made as of an earlier date, in which case as of such earlier date), except where the failure of any such representation or warranty to
be true and correct would be de minimis.
(b) Performance of Covenants and Agreements of the Company. The Company shall have
performed in all material respects all material covenants and agreements required to be performed by it under this Agreement at or prior to the Closing.
(c) Absence of Company Material Adverse Effect. Since the date of this Agreement, no fact, circumstance, effect, change, event or
development that, individually or in the aggregate, has had or would reasonably be expected to have Company Material Adverse Effect shall have occurred and be continuing.
(d) Officers Certificate. Parent shall have received a certificate signed on behalf of the Company by an executive officer of
the Company certifying the satisfaction by the Company of the conditions set forth in Section 7.03(a), Section 7.03(b) and Section 7.03(c).
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ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.01 Termination Rights.
(a) Termination by Mutual Consent. The Company and Parent shall have the right to terminate this Agreement at any time prior to the
Effective Time, whether before or after receipt of the Company Shareholder Approval, by mutual written consent.
(b) Termination by
Either the Company or Parent. Each of the Company and Parent shall have the right to terminate this Agreement, at any time prior to the Effective Time, whether before or after the receipt of the Company Shareholder Approval, if:
(i) the Closing shall not have occurred by 5:00 p.m. New York City time on September 30, 2016 (the End
Date); provided that if, prior to the End Date, all of the conditions to the Closing set forth in Article VII have been satisfied or waived, as applicable, or shall then be capable of being satisfied (except for any
condition set forth in Section 7.01(b) or Section 7.01(c)), either the Company or Parent may, prior to 5:00 p.m. New York City time on the End Date, extend the End Date to a date that is six (6) months after the End Date
(and if so extended, such later date being the End Date); provided, further, that neither the Company nor Parent may terminate this Agreement or extend the End Date pursuant to this Section 8.01(b) if it (or, in the case of
Parent, Merger Sub) is in breach of any of its covenants or agreements and such breach has caused or resulted in either (1) the failure to satisfy the conditions to the obligations of the terminating Party to consummate the Merger set forth in
Article VII prior to the End Date or (2) the failure of the Closing to have occurred prior to the End Date;
(ii) the condition set forth in Section 7.01(c) is not satisfied and the Legal Restraint giving rise to such
nonsatisfaction has become final and nonappealable; provided, however, that the right to terminate this Agreement under this Section 8.01(b)(ii) shall not be available to any Party if such failure to satisfy the condition
set forth in Section 7.01(c) is the result of a failure of such Party to comply with its obligations pursuant to Section 6.03; or
(iii) the Company Shareholder Approval is not obtained at the Company Shareholders Meeting duly convened (unless such Company
Shareholders Meeting has been adjourned, in which case at the final adjournment thereof).
(c) Termination by the Company. The
Company shall have the right to terminate this Agreement:
(i) in the event that the Company Board has made a Company
Adverse Recommendation Change, so long as (1) the Company has complied in all material respects with its obligations under Section 5.03(c) and (2) the Company prior to or concurrently with such termination pays to Parent the
Company Termination Fee in accordance with Section 8.02(b)(ii); provided, however, that the Company shall not have the right to terminate this Agreement under this Section 8.01(c)(i) after the Company
Shareholder Approval is obtained at the Company Shareholders Meeting;
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(ii) if Parent or Merger Sub breaches or fails to perform any of its covenants
or agreements contained herein, or if any of the representations or warranties of Parent or Merger Sub contained herein fails to be true and correct, which breach or failure (1) would give rise to the failure of a condition set forth in
Section 7.01, Section 7.02(a) or Section 7.02(b), as applicable, and (2) is not reasonably capable of being cured by Parent or Merger Sub by the End Date (as it may be extended pursuant
Section 8.01(b)(i)) or is not cured by Parent within thirty (30) days after receiving written notice from the Company of such breach or failure; provided, however, that the Company shall not have the right to terminate
this Agreement under this Section 8.01(c) if the Company is then in breach of any covenant or agreement contained herein or any representation or warranty of the Company contained herein then fails to be true and correct such that the
conditions set forth in Section 7.03(a) or Section 7.03(b), as applicable, could not then be satisfied; or
(iii) if (1) all of the conditions set forth in Section 7.01 and Section 7.02 have been satisfied
or waived in accordance with this Agreement as of the date that the Closing should have been consummated pursuant to Section 1.03 (except for those conditions that by their terms are to be satisfied at the Closing), (2) Parent and
Merger Sub do not complete the Closing on the day that the Closing should have been consummated pursuant to Section 1.03, (3) a Financing Failure has occurred and (4) Parent and Merger Sub fail to consummate the Closing within
five (5) Business Days following their receipt of written notice from the Company requesting such consummation.
(d) Termination
by Parent. Parent shall have the right to terminate this Agreement:
(i) in the event that the Company Board or a
committee thereof has made a Company Adverse Recommendation Change; provided, however, that Parent shall not have the right to terminate this Agreement under this Section 8.01(d) after the Company Shareholder Approval is
obtained at the Company Shareholders Meeting; or
(ii) if the Company breaches or fails to perform any of its covenants or
agreements contained herein, or if any of the representations or warranties of the Company contained herein fails to be true and correct, which breach or failure (1) would give rise to the failure of a condition set forth in
Section 7.01, Section 7.03(a) or Section 7.03(b), as applicable, and (2) is not reasonably capable of being cured by the Company by the End Date (as it may be extended pursuant Section 8.01(b)(i))
or is not cured by the Company within thirty (30) days after receiving written notice from Parent of such breach or failure; provided, however, that Parent shall not have the right to terminate this Agreement under this
Section 8.01(d)(ii) if Parent is then in breach of any covenant or agreement contained herein or any representation or warranty of Parent contained herein then fails to be true and correct such that the conditions set forth in
Section 7.02(a) or Section 7.02(b), as applicable, could not then be satisfied.
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SECTION 8.02 Effect of Termination; Termination Fees.
(a) In the event of termination of this Agreement by either Parent or the Company as provided in Section 8.01, this Agreement
shall forthwith become void and have no effect, without any liability or obligation on the part of the Company or Parent (or any shareholder, Affiliate or Representative thereof), whether arising before or after such termination, based on, arising
out of or relating to this Agreement or the negotiation, execution, performance or subject matter hereof (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity), except for (i) the
last sentence of Section 6.02(a), the last sentence of Section 6.02(b), Section 6.08, this Section 8.02 and Article IX, which provisions shall survive such termination and (ii) subject
to Section 8.02(d), liability of any Party (whether or not the terminating Party) for any Willful Breach of this Agreement prior to such termination but solely to the extent such liability arises out of a Willful Breach by such Party of
any covenant or agreement set forth herein that gave rise to the failure of a condition set forth in Article VII. The liabilities described in the preceding sentence shall survive the termination of this Agreement.
(b) Termination Fees.
(i) If (1) (A) either Parent or the Company terminates this Agreement pursuant to Section 8.01(b)(i)
and, at the time of such termination, any of the conditions set forth in Section 7.01(b) or, in connection with the Required Statutory Approvals, Section 7.01(c) shall have not been satisfied, (B) either Parent or the
Company terminates this Agreement pursuant to Section 8.01(b)(ii) (if, and only if, the applicable Legal Restraint giving rise to such termination arises in connection with the Required Statutory Approvals) or (C) if the Company
terminates this Agreement pursuant to Section 8.01(c)(ii) based on a failure by Parent to perform its covenants or agreements under Section 6.03, and in each case of the foregoing clauses (A), (B) and (C), at the time of
such termination, all other conditions to the Closing set forth in Section 7.01(a), Section 7.03(a), Section 7.03(b) and Section 7.03(c) shall have been satisfied or waived (except for (I) those
conditions that by their nature are to be satisfied at the Closing but which conditions would be satisfied or would be capable of being satisfied if the Closing Date were the date of such termination or (II) those conditions that have not been
satisfied as a result of a breach of this Agreement by Parent), or (2) the Company terminates this Agreement pursuant to Section 8.01(c)(iii), then Parent shall pay to the Company a fee of $326,900,000 in cash (the Parent
Termination Fee). Parent shall pay the Parent Termination Fee to the Company (to an account designated in writing by the Company) no later than three (3) Business Days after the date of the applicable termination.
(ii) If the Company terminates this Agreement pursuant to Section 8.01(c)(i) or Parent terminates this Agreement
pursuant to Section 8.01(d)(i), the Company shall pay to Parent a fee of $212,500,000 in cash (the Company Termination Fee). The Company shall pay the Company Termination Fee to Parent (to an account designated in
writing by Parent) prior to or concurrently with such termination of this Agreement by the Company pursuant to Section 8.01(c)(i) or no later than three (3) Business Days after the date of such termination of this Agreement by
Parent pursuant to Section 8.01(d)(i).
(iii) If (1) either Parent or the Company terminates this
Agreement pursuant to Section 8.01(b)(iii), (2) prior to the Company Shareholders Meeting, a Company Takeover Proposal shall have been publicly disclosed and, as of the Company Shareholders Meeting, such Company Takeover Proposal
shall not have been withdrawn and (3) within nine (9) months after the termination of this Agreement, the Company shall have entered into a definitive agreement with respect to, or consummated, a Company Takeover Proposal (whether or not
the same Company Takeover Proposal referred to in clause (2)), then the Company shall pay the Company Termination Fee to Parent (to an account designated in writing by Parent) within two (2) Business Days after the earlier of the date the
Company enters into such definitive agreement or consummates such Company Takeover Proposal. For purposes of clause (3) of this Section 8.02(b)(iii), the term Company Takeover Proposal shall have the meaning assigned to
such term in Section 5.01, except that the applicable percentage in the definition of Company Takeover Proposal shall be 50.1% rather than 30% or more.
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(c) The Parties acknowledge that the agreements contained in Section 8.02(b) are an
integral part of the transactions contemplated by this Agreement, and that, without these agreements, the parties would not enter into this Agreement. If Parent fails to promptly pay an amount due pursuant to Section 8.02(b)(i), or the
Company fails to promptly pay an amount due pursuant to Section 8.02(b)(ii) or Section 8.02(b)(iii), and, in order to obtain such payment, Parent, on the one hand, or the Company, on the other hand, commences a Claim that
results in a Judgment against the Company for the amount set forth in Section 8.02(b)(ii) or Section 8.02(b)(iii), or any portion thereof, or a Judgment against Parent for the amount set forth in
Section 8.02(b)(i), or any portion thereof, the Company shall pay to Parent, on the one hand, or Parent shall pay to the Company, on the other hand, its costs and expenses (including reasonable attorneys fees and the fees and
expenses of any expert or consultant engaged by the Company) in connection with such Claim, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at the prime rate of
JPMorgan Chase Bank, N.A. in effect on the date such payment was required to be made. Any amount payable pursuant to Section 8.02(b) shall be paid by the applicable Party by wire transfer of same-day funds prior to or on the date such
payment is required to be made under Section 8.02(b).
(d) Without limiting any rights of the Company under
Section 9.10 prior to the termination of this Agreement pursuant to Section 8.01, if this Agreement is terminated under circumstances in which Parent is obligated to pay the Parent Termination Fee under
Section 8.02(b)(i), upon payment of the Parent Termination Fee and, if applicable, the costs and expenses of the Company pursuant to Section 8.02(c) in accordance herewith, Parent shall have no further liability with respect
to this Agreement or the transactions contemplated hereby to the Company or the holders of the Company Common Stock, and payment of the Parent Termination Fee and such costs and expenses by Parent shall be the Companys sole and exclusive
remedy for any Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys fees and disbursements, suffered or incurred by the Company, the Company Subsidiaries or any other
Person in connection with this
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Agreement, the transactions contemplated hereby (and the termination thereof) or any matter forming the basis for such termination, and the Company shall not have, and expressly waives and
relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity), including against any Financing Source Party; provided that, regardless
of whether Parent pays or is obligated to pay the Parent Termination Fee, nothing in this Section 8.02(d) shall release Parent from liability for a Willful Breach of this Agreement. If this Agreement is terminated under circumstances in
which the Company is obligated to pay the Company Termination Fee under Section 8.02(b)(ii) or Section 8.02(b)(iii), upon payment of the Company Termination Fee and, if applicable, the costs and expenses of Parent pursuant to
Section 8.02(c) in accordance herewith, the Company shall have no further liability with respect to this Agreement or the transactions contemplated hereby to Parent, Merger Sub or any of their respective Affiliates or Representatives,
and payment of the Company Termination Fee and such costs and expenses by the Company shall be Parents sole and exclusive remedy for any Claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses,
including attorneys fees and disbursements, suffered or incurred by Parent, Parents Subsidiaries and any other Person in connection with this Agreement, the transactions contemplated hereby (and the termination thereof) or any matter
forming the basis for such termination, and Parent and Merger Sub shall not have, and each expressly waives and relinquishes, any other right, remedy or recourse (whether in contract or in tort or otherwise, or whether at law (including at common
law or by statute) or in equity). The Parties acknowledge and agree that in no event shall the Company or Parent, as applicable, be required to pay the Company Termination Fee or the Parent Termination Fee, as applicable, on more than one occasion.
(e) For purposes of this Agreement, Willful Breach means a breach that is a consequence of an act or omission
undertaken by the breaching Party with the Knowledge that the taking of or the omission of taking such act would, or would reasonably be expected to, cause or constitute a material breach of this Agreement; provided that, without limiting the
meaning of Willful Breach, the Parties acknowledge and agree that any failure by any Party to consummate the Merger and the other transactions contemplated hereby after the applicable conditions to the Closing set forth in Article VII
have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, which conditions would be capable of being satisfied at the time of such failure to consummate the Merger) shall constitute a Willful
Breach of this Agreement. For the avoidance of doubt, in the event that all applicable conditions to the Closing set forth in Article VII have been satisfied or waived (except for those conditions that by their nature are to be satisfied
at the Closing, which conditions would be capable of being satisfied at the time of such failure to consummate the Merger) but Parent fails to close for any reason, including for failure to have the necessary financing to close, such failure to
close shall be considered a Willful Breach. Parent and Merger Sub acknowledge and agree that, without in any way limiting the Companys rights under Section 9.10, recoverable damages of the Company hereunder shall not be limited to
reimbursement of expenses or out-of-pocket costs but shall also include the benefit of the bargain lost by the shareholders of the Company (including lost premium), taking into consideration relevant matters, including the total amount
payable to the Companys shareholders under this Agreement and the time value of money, which, in each case, shall be deemed in such event to be damages of the Company and shall be recoverable by the Company on behalf of its shareholders.
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SECTION 8.03 Amendment. This Agreement may be amended by the parties at any time
before or after receipt of the Company Shareholder Approval; provided, however, that (a) after receipt of the Company Shareholder Approval, there shall be made no amendment that by Law requires further approval by the shareholders
of the Company without the further approval of such shareholders, (b) no amendment shall be made to this Agreement after the Effective Time, (c) except as provided above, no amendment of this Agreement shall require the approval of the
shareholders of Parent or the shareholders of the Company and (d) no amendments to or waivers of any DFS Provision shall be effective without the written consent of the Financing Source Parties. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the Parties.
SECTION 8.04 Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the performance of any of the obligations or other acts of the other parties, (b) waive any inaccuracies in the representations and warranties contained herein or in any document
delivered pursuant to this Agreement, (c) subject to Section 8.03(a), waive compliance with any covenants and agreements contained herein or (d) waive the satisfaction of any of the conditions contained herein. Any agreement on
the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such Party. The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of such rights.
SECTION 8.05 Procedure for Termination, Amendment, Extension or Waiver. A
termination of this Agreement pursuant to Section 8.01, an amendment of this Agreement pursuant to Section 8.03 or an extension or waiver pursuant to Section 8.04 shall, in order to be effective, require, in the
case of the Company, Parent or Merger Sub, action by its respective board of directors or the duly authorized designee of its board of directors. Termination of this Agreement prior to the Effective Time shall not require the approval of the
shareholders of the Company. The Party desiring to terminate this Agreement pursuant to Section 8.01 shall give written notice of such termination to the other Parties in accordance with Section 9.02, specifying the provision
of this Agreement pursuant to which such termination is effected.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.01 Nonsurvival of Representations, Warranties, Covenants and Agreements; Contractual Nature of Representations and
Warranties. None of the representations or warranties contained herein or in any instrument delivered pursuant to this Agreement shall survive, and all rights, Claims and causes of action (whether in contract or in tort or otherwise, or whether
at law (including at common law or by statute) or in equity) with respect thereto shall terminate at, the Effective Time. Except for any covenant or agreement that by its terms contemplates performance after the Effective Time, none of the covenants
or agreements of the Parties contained herein shall survive, and all rights, Claims and causes of action (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) with respect to such
covenants and agreements shall terminate at, the Effective Time. The Parties hereby acknowledge and agree that (a) all representations and warranties set forth in this Agreement are contractual in nature only, (b) no Person is asserting
the truth or accuracy of
56
any representation or warranty set forth in this Agreement, (c) if any such representation or warranty (as modified by the applicable Disclosure Letter) should prove untrue, the
Parties only rights, Claims or causes of action shall be to exercise the specific rights set forth in Section 7.02(a), Section 7.03(a), Section 8.01(c)(ii) and Section 8.01(d)(ii), as and if
applicable, and (d) the Parties shall have no other rights, Claims or causes of action (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) based on, arising out of or related to
any such untruth of any such representation or warranty.
SECTION 9.02 Notices. All notices and other communications under
this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt by other than automatic means, whether electronic or otherwise), (b) when sent by facsimile or email
(with written confirmation of transmission) or (c) one (1) Business Day following the day sent by an internationally recognized overnight courier (with written confirmation of receipt), in each case, at the following addresses, facsimile
numbers and email addresses (or to such other address, facsimile number or email address as a Party may have specified by notice given to the other Party pursuant to this provision):
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To Parent or Merger Sub: |
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Emera Inc. |
5151 Terminal Road |
Halifax, Nova Scotia, Canada |
B3J 1A1 |
Facsimile: |
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(902) 428-6171 |
Attention: |
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Corporate Secretary |
Email: |
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stephen.aftanas@emera.com |
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with a copy (which shall not constitute notice) to: |
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Davis Polk & Wardwell LLP |
450 Lexington Avenue |
New York, New York 10017 |
Facsimile: |
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(212) 701-5800 |
Attention: |
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William H. Aaronson |
Email: |
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william.aaronson@davispolk.com |
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To the Company: |
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TECO Energy, Inc. |
TECO Plaza |
702 N. Franklin Street |
Tampa, Florida 33602 |
Facsimile: |
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(813) 228-132 |
Attention: |
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Charles A. Attal, III |
Email: |
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caattal@tecoenergy.com |
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with a copy (which shall not constitute notice) to: |
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Skadden, Arps, Slate, Meagher & Flom LLP |
4 Times Square |
New York, New York 10036 |
Facsimile: |
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(917) 777-2136 (917) 777-3207 |
Attention: |
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Sheldon Adler |
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Marie Gibson |
Email: |
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sheldon.adler@skadden.com |
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marie.gibson@skadden.com |
SECTION 9.03 Definitions. For purposes of this Agreement, each capitalized term has the meaning
given to it, or specified, in Exhibit A.
SECTION 9.04 Interpretation.
(a) Time Periods. When calculating the period of time before which, within which or following which any act is to be done or step
taken pursuant to this Agreement, (i) the date that is the reference date in calculating such period shall be excluded and (ii) if the last day of such period is a not a Business Day, the period in question shall end on the next succeeding
Business Day.
(b) Dollars. Unless otherwise specifically indicated, any reference herein to $ means U.S. dollars.
(c) Gender and Number. Any reference herein to gender shall include all genders, and words imparting the singular number only shall
include the plural and vice versa.
(d) Articles, Sections and Headings. When a reference is made herein to an Article or a
Section, such reference shall be to an Article or a Section of this Agreement unless otherwise indicated. The table of contents and headings contained herein are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
(e) Include. Whenever the words include, includes or
including are used herein, they shall be deemed to be followed by the words without limitation.
(f)
Hereof. The words hereof, hereto, hereby, herein and hereunder and words of similar import when used herein shall refer to this Agreement as a whole and not to any particular
provision of this Agreement.
(g) Extent. The word extent in the phrase to the extent shall mean the
degree to which a subject or other thing extends, and such phrase shall not mean simply if.
(h) Contracts; Laws. Any
Contract or Law defined or referred to herein means such Contract or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated.
58
(i) Persons. References to a person are also to its permitted successors and assigns.
(j) Exhibits and Disclosure Letters. The Exhibits to this Agreement and the Disclosure Letters are hereby incorporated and made a
part hereof and are an integral part of this Agreement. Each of the Company and Parent may, at its option, include in the Company Disclosure Letter or the Parent Disclosure Letter, respectively, items that are not material in order to avoid any
misunderstanding, and such inclusion, or any references to dollar amounts herein or in the Disclosure Letters, shall not be deemed to be an acknowledgement or representation that such items are material, to establish any standard of materiality or
to define further the meaning of such terms for purposes of this Agreement or otherwise. Any matter set forth in any section of the Disclosure Letters shall be deemed to be referred to and incorporated in any section to which it is specifically
referenced or cross-referenced and also in all other sections of the such Disclosure Letter to which such matters application or relevance is reasonably apparent. Any capitalized term used in any Exhibit or any Disclosure Letter but not
otherwise defined therein shall have the meaning given to such term herein.
(k) Reflected On or Set Forth In. An item arising
with respect to a specific representation, warranty, covenant or agreement shall be deemed to be reflected on or set forth in the Company Financial Statements included in the Company Reports, to the extent any such phrase
appears in such representation, warranty, covenant or agreement if (i) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statement reasonably related to the subject matter of such
representation or (ii) such item and the amount thereof is otherwise reasonably identified on such balance sheet or financial statement (or the notes thereto).
SECTION 9.05 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by
any rule or Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any Party or such Party waives its rights under this Section 9.05 with respect thereto. Upon any determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties
shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that transactions contemplated by this Agreement are fulfilled to the extent
possible.
SECTION 9.06 Counterparts. This Agreement may be executed in one or more counterparts (including by means of
facsimile or email in .pdf format), all of which shall be considered one and the same agreement, and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties.
SECTION 9.07 Entire Agreement; No Third-Party Beneficiaries. This Agreement, taken together with the Company Disclosure Letter and
the Confidentiality Agreement (except Paragraphs 4 and 5 thereof), constitutes the entire agreement, and supersedes all prior agreements and understandings, both written and oral, between or among the Parties with respect to the Merger. Except
(a) for the right of the Company on behalf of its shareholders to pursue damages (including claims for damages contemplated by the last sentence of Section
59
8.02(e)) in the event of Parents or Merger Subs breach of this Agreement (whether or not this Agreement has been terminated pursuant to Article VIII), and (b) after
the Effective Time, for Section 2.01, Section 2.03, the last sentence of Section 6.02(a) and Section 6.09, each Party agrees that (i) their respective representations, warranties, covenants and
agreements set forth herein are solely for the benefit of the other Parties, in accordance with and subject to the terms of this Agreement and (ii) this Agreement is not intended to, and does not, confer upon any Person other than the Parties
any rights or remedies hereunder, including the right to rely upon the representations and warranties set forth herein. The Financing Parties and each of their respective Affiliates and their respective current, former and future direct or indirect
equity holders, controlling persons, stockholders, agents, Affiliates, members, managers, general or limited partners, assignees or representatives (collectively, the Financing Source Parties) shall be express third-party
beneficiaries with respect to Section 8.02(d), Section 8.03, this Section 9.07, Section 9.08, Section 9.11(b), Section 9.12 and Section 9.14 (collectively, the
DFS Provisions).
SECTION 9.08 Governing Law. This Agreement, and all Claims or causes of action of the
Parties (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) that may be based on, arise out of or relate to this Agreement or the negotiation, execution, performance or subject matter
hereof, shall be governed by and construed in accordance with the laws of the State of Florida, without regard to principles of conflict of laws, except as otherwise set forth in the Debt Letters as in effect as of the date of this Agreement, all
matters relating to the interpretation, construction, validity and enforcement (whether at law, in equity, in contract, in tort, or otherwise) against any of the Financing Source Parties in any way relating to the Debt Letters or the performance
thereof or the Financing, shall be exclusively governed by, and construed in accordance with, the domestic Law of the State of New York without giving effect to any choice or conflict of law provision or rule whether of the State of New York or any
other jurisdiction that would cause the application of Law of any jurisdiction other than the State of New York.
SECTION 9.09
Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned, in whole or in part, by operation of law or otherwise, by any of the Parties without the prior written consent of the
other Parties. Any purported assignment without such consent shall be void; provided that Parent may make as assignment of its rights (but not its obligations) under this Agreement to any Financing Party without the prior written consent of
the Company. Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties and their respective successors and assigns.
SECTION 9.10 Specific Enforcement. The Parties acknowledge and agree that irreparable damage would occur in the event that any of
the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached and that monetary damages, even if available, would not be an adequate remedy therefor. It is accordingly agreed that, at any time
prior to the termination of this Agreement pursuant to Article VIII, the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the performance of terms and provisions of
this Agreement, including the right of a Party to cause each other Party to consummate the Merger and the other transactions contemplated by this Agreement, in any court referred to in Section
60
9.11, without proof of actual damages (and each Party hereby waives any requirement for the securing or posting of any bond in connection with such remedy), this being in addition to any
other remedy to which they are entitled at law or in equity. The Parties further agree not to assert that a remedy of specific enforcement is unenforceable, invalid, contrary to Law or inequitable for any reason, nor to assert that a remedy of
monetary damages would provide an adequate remedy for any such breach. If any Party brings any Claim to enforce specifically the performance of the terms and provisions of this Agreement when expressly available to such Party pursuant to the terms
of this Agreement, then, notwithstanding anything to the contrary herein, the End Date shall automatically be extended by the period of time between the commencement of such Claim and the date on which such Claim is fully and finally resolved.
SECTION 9.11 Jurisdiction; Venue.
(a) All Claims arising from, under or in connection with this Agreement shall be raised to and exclusively determined by the courts of the
State of Florida located in Hillsborough County or, if such court disclaims jurisdiction, the U.S. District Court for the Middle District of Florida, Tampa Division, to whose jurisdiction and venue the Parties unconditionally consent and submit.
Each Party hereby irrevocably and unconditionally waives any objection to the laying of venue of Claim arising out of this Agreement in such court and hereby further irrevocably and unconditionally waives and agree not to plead or claim in any such
court that any such Claim brought in any such court has been brought in an inconvenient forum. Each Party further agree that service of any process, summons, notice or document by U.S. registered mail to the respective addresses set forth in
Section 9.02 hereof shall be effective service of process for any Claim brought against such Party in any such court.
(b)
Notwithstanding anything to the contrary in this Agreement (including this Section 9.11), each Party agrees that it will not bring or support any action, cause of action, claim, cross-claim or third-party claim of any kind or
description, whether in law or in equity, whether in contract or in tort or otherwise, against the Financing Source Parties in any way relating to this Agreement, including any dispute arising out of the Debt Letters or the performance thereof or
the Financing, in any forum other than the Supreme Court of the State of New York, County of New York, or, if under applicable law exclusive jurisdiction is vested in the Federal courts, the United States District Court for the Southern District of
New York (and of the appropriate appellate courts therefrom).
SECTION 9.12 Waiver of Jury Trial. EACH PARTY HEREBY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR OTHER PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE MERGER (INCLUDING ANY PROCEEDING AGAINST THE FINANCING SOURCE PARTIES
ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED HEREBY, THE DEBT LETTERS, THE FINANCING OR THE PERFORMANCE OF SERVICES WITH RESPECT THERETO). EACH PARTY (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
61
OTHER PARTIES HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVER AND CERTIFICATIONS IN THIS SECTION 9.12.
SECTION 9.13 Construction. Each of the Parties has participated in the drafting and negotiation of this Agreement. If an ambiguity
or question of intent or interpretation arises, this Agreement must be construed as if it is drafted by all the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of authorship of any of the
provisions of this Agreement.
SECTION 9.14 Financing Sources. Notwithstanding anything to the contrary contained in this
Agreement, except for claims by Parent or the Merger Sub against the Financing Source Parties pursuant to the Debt Letters and any definitive documents related thereto, (a) none of the Parties nor any of their respective Subsidiaries,
Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders shall have any rights or claims against any Financing Source Party, in any way relating to this Agreement or any of the transactions contemplated by this
Agreement, or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Letters or the performance thereof or the financings
contemplated thereby, whether at law or equity, in contract, in tort or otherwise and (b) no Financing Source Party shall have any liability (whether in contract, in tort or otherwise) to any Party or any of their respective subsidiaries,
Affiliates, directors, officers, employees, agents, partners, managers, members or stockholders for any obligations or liabilities of any Party under this Agreement or for any claim based on, in respect of, or by reason of, the transactions
contemplated hereby and thereby or in respect of any oral representations made or alleged to have been made in connection herewith or therewith, including any dispute arising out of or relating in any way to the Debt Letters or the performance
thereof or the financings contemplated thereby, whether at law or equity, in contract, in tort or otherwise.
[SIGNATURE
PAGES FOLLOW]
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IN WITNESS WHEREOF, the Parties have duly executed this Agreement, each as of the date first
written above.
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TECO ENERGY, INC. |
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By: |
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/s/ John B. Ramil |
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Name: |
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John B. Ramil |
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Title: |
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President and Chief Executive Officer |
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EMERA INC. |
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By: |
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/s/ Christopher Huskilson |
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Name: |
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Christopher Huskilson |
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Title: |
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President and CEO |
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By: |
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/s/ Scott Balfour |
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Name: |
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Scott Balfour |
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Title: |
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Executive Vice President and CFO |
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EMERA US INC. |
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By: |
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/s/ Christopher Huskilson |
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Name: |
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Christopher Huskilson |
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Title: |
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President and CEO |
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By: |
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/s/ Bruce A. Marchand |
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Name: |
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Bruce A. Marchand |
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Title: |
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Vice-President |
[SIGNATURE PAGE TO AGREEMENT
AND PLAN OF MERGER]
EXHIBIT A
DEFINED TERMS
Section 1.01 Certain Defined Terms. For purposes of this Agreement, each of the following terms has the meaning specified
in this Section 1.01 of Exhibit A:
Affiliate of any Person means another Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first Person. For purposes of this definition, control (including the terms controlled by and
under common control with) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or
otherwise. Solely for purposes of Sections 4.03, 4.04, and 4.05, the Person set forth on Exhibit A of the Parent Disclosure Letter and any of its Affiliates shall be deemed an Affiliate of Parent.
Antitrust Laws means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission
Act, as amended, all applicable state, foreign or supranational antitrust Laws and all other applicable Laws issued by a Governmental Entity that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of
monopolization or restraint of trade or lessening of competition through merger or acquisition.
Business Day means any
day except for (a) a Saturday or a Sunday or (b) a day on which banking and savings and loan institutions are authorized or required by Law to be closed in Tampa, Florida or New York, New York.
CFIUS means the Committee on Foreign Investment in the United States.
CFIUS Approval means (a) a written notice issued by CFIUS that it has concluded a review or investigation of the
notification voluntarily provided pursuant to the DPA, with respect to the transactions contemplated by this Agreement and has terminated all action under Section 721 of the DPA or (b) if CFIUS has sent a report to the President of the
United States requesting the Presidents decision and (i) the President has announced a decision not to take any action to suspend or prohibit the transactions contemplated by this Agreement or (ii) having received a report from CFIUS
requesting the Presidents decision, the President has not taken any action after fifteen (15) days from the date the President received such report from CFIUS.
Claim means any demand, claim, suit, action, legal proceeding (whether at law or in equity) or arbitration.
Code means the Internal Revenue Code of 1986, as amended.
Company Benefit Agreement means each employment, consulting, bonus, incentive or deferred compensation, equity or
equity-based compensation, severance, change-in-control, retention, termination or other material Contract between the Company or any Company Subsidiary, on the one hand, and any Company Personnel, on the other hand.
A-1
Company Benefit Plan means each (a) employee benefit plan (as defined in
Section 3(3) of ERISA, whether or not subject to ERISA) or post-retirement or employment health or medical plan, program, policy or arrangement, (b) bonus, incentive or deferred compensation or equity or equity-based compensation plan,
program, policy or arrangement, (c) severance, change-in control, retention or termination plan, program, policy or arrangement or (d) other compensation, pension, retirement, savings or other benefit plan, program, policy or arrangement,
in each case, sponsored, maintained, contributed to or required to be maintained or contributed to by the Company or any Company Subsidiary for the benefit of any Company Personnel, or for which the Company or any Company Subsidiary has any direct
or indirect liability.
Company Commonly Controlled Entity means any person or entity that, together with the Company,
is treated as a single employer under Section 414 of the Code.
Company Material Adverse Effect means any fact,
circumstance, effect, change, event or development that has a material adverse effect on the business, properties, financial condition or results of operations of the Company and the Company Subsidiaries, taken as a whole; provided that no
fact, circumstance, effect, change, event or development resulting from or arising out of any of the following, individually or in the aggregate, shall constitute or be taken into account in determining whether a Company Material Adverse Effect has
occurred: (a) any change or condition affecting any industry in which the Company or any Company Subsidiary operates, including electric generating, transmission or distribution industries or the industry or natural gas distribution, production
or transmission industries (including, in each case, any changes in the operations thereof); (b) system-wide changes or developments in electric transmission or distribution systems; (c) any change in customer usage patterns or customer
selection of third-party suppliers for electricity; (d) any change affecting any economic, legislative or political condition or any change affecting any securities, credit, financial or other capital markets condition, in each case in the
United States, in any foreign jurisdiction or in any specific geographical area; (e) any failure in and of itself by the Company or any Company Subsidiary to meet any internal or public projection, budget, forecast, estimate or prediction in
respect of revenues, earnings or other financial or operating metrics for any period; (f) any change attributable to the announcement, execution or delivery of this Agreement or the pendency of the Merger, including (i) any action taken by
the Company or any Company Subsidiary that is required or contemplated pursuant to this Agreement, or is consented to by Parent, or any action taken by Parent or any Affiliate thereof, to obtain any Consent from any Governmental Entity to the
consummation of the Merger and the result of any such actions, (ii) any Claim arising out of or related to this Agreement (including shareholder litigation), (iii) any adverse change in supplier, employee, financing source, shareholder,
regulatory, partner or similar relationships resulting therefrom or (iv) any change that arises out of or relates to the identity of Parent or any of its Affiliates as the acquirer of the Company; (g) any change or condition affecting the
market for commodities, including any change in the price or availability of commodities; (h) any change in the market price, credit rating or trading volume of shares of Company Common Stock on the NYSE or any change affecting the ratings or
the ratings outlook for the Company or any Company Subsidiary, (i) any change in applicable Law, regulation or GAAP (or authoritative interpretation thereof); (j) geopolitical conditions, the outbreak or escalation of hostilities, any
act of war, sabotage or terrorism, or any escalation or worsening of any such act of war, sabotage or terrorism threatened or underway as of the date of this
A-2
Agreement; (k) any fact, circumstance, effect, change, event or development resulting from or arising out of or affecting the national, regional, state or local engineering or construction
industries or the wholesale or retail markets for commodities, materials or supplies (including equipment supplies, steel, concrete, electric power, fuel, coal, natural gas, water or coal transportation) or the hedging markets therefor, including
any change in commodity prices; (l) any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development; (m) any finding of fact or order contained in any FERC, FPSC or NMPRC
Judgment issued prior to the date hereof and applicable to the Company or the Company Subsidiaries; (n) any change or effect arising from (i) any rate cases, including the Proceedings, (ii) any requirements imposed by any Governmental
Entities as a condition to obtaining the Company Required Statutory Approvals or the Parent Required Statutory Approvals or (iii) any other requirements or restrictions imposed by the FERC, FPSC or NMPRC on the Company or the Company
Subsidiaries; or (o) any fact, circumstance, effect, change, event or development that results from any shutdown or suspension of operations at any power plant from which the Company or any Company Subsidiary obtains electricity or facilities
from which the Company or any Company Subsidiary obtains natural gas; provided, however, that any fact, circumstance, effect, change, event or development set forth in clauses (a), (b), (c), (d), (g), (i), (j) and (n)(iii) above
may be taken into account in determining whether a Company Material Adverse Effect has occurred solely to the extent such fact, circumstance, effect, change, event or development has a materially disproportionate adverse effect on the Company and
the Company Subsidiaries, taken as a whole, as compared to other entities (if any) engaged in the relevant business in the geographic area affected by such fact, circumstance, effect, change, event or development (in which case, only the incremental
disproportionate impact may be taken into account in determining whether there has been, or would be, a Company Material Adverse Effect, to the extent such change is not otherwise excluded from being taken into account by clauses (a)(o) of
this definition).
Company Personnel means any current or former director, officer or employee of the Company or any
Company Subsidiary.
Company Restricted Share means any restricted share of Company Common Stock granted under any
Company Stock Plan prior to the date hereof.
Company Restricted Share Unit means any restricted unit equivalent of a
restricted share of Company Common Stock granted under any Company Stock Plan after the date hereof.
Company Stock
Option means any option to purchase shares of Company Common Stock under any Company Stock Plan.
Company Stock
Plans means, collectively, the TECO Energy, Inc. 2010 Equity Incentive Plan, the TECO Energy, Inc. 2004 Equity Incentive Plan, the TECO Energy, Inc. 1997 Director Equity Plan, the TECO Energy, Inc. Amended and Restated 1996 Equity
Incentive Plan and the TECO Energy, Inc. 1996 Equity Incentive Plan, each as amended and in effect from time to time.
A-3
Contract means any written or oral contract, lease, license, evidence of
indebtedness, mortgage, indenture, purchase order, binding bid, letter of credit, security agreement, undertaking or other agreement that is legally binding.
Disclosure Letters means, collectively, the Company Disclosure Letter and the Parent Disclosure Letter.
DPA means the Defense Production Act of 1950, as amended.
Environmental Claim means any Claim against, or any investigation as to which the Company or any Company Subsidiary has
received written notice of, the Company or any Company Subsidiary asserted by any Person alleging liability (including potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) or responsibility arising out of, based on or resulting from (a) the presence or Release of or exposure to any Hazardous Materials at any location, whether or not owned or operated by the Company or any
Company Subsidiary, or (b)any violation or alleged violation of Environmental Law or any Environmental Permit.
Environmental
Laws means all applicable Laws issued, promulgated by or with any Governmental Entity relating to pollution or protection of or damage to the environment (including ambient air, surface water, groundwater, land surface, subsurface and
sediments), natural resources, endangered or threatened species, the climate or human health and safety as it relates to exposure to hazardous or toxic materials, including Laws relating to the exposure to Hazardous Materials.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Financing Failure means a refusal, for any reason, of the Financing Parties to provide the Financing in full or any other
failure, for any reason, of the Financing to be provided in full, in each case, pursuant to, and in accordance with the terms and conditions of, the Debt Letters (or if definitive agreements relating to the Financing have been entered into, pursuant
to such agreements).
FPSC means the Florida Public Service Commission.
Good Reason, with respect to any individual, has the meaning set forth in the Company Benefit Agreements listed in
Item 22 of Section 3.09(a) of the Company Disclosure Letter that is applicable to such individual.
Good Utility
Practice means (a) any of the practices, methods and acts engaged in or approved by a significant portion of the electric generating, transmission or distribution industries or the industry or natural gas distribution, production or
transmission industries, as applicable, during the relevant time period or (b) any of the practices, methods or acts that, in the exercise of reasonable judgment in light of the facts known at the time the decision was made, could have been
expected to accomplish the desired result at a reasonable cost consistent with good business practices, reliability, safety and expedition; provided that Good Utility Practice is not intended to be limited to optimum practices, methods or
acts to the exclusion of all others but rather to be acceptable practices, methods or acts generally accepted in the geographic location of the performance of such practice, method or act.
A-4
Governmental Entity means any U.S. or foreign federal, state, provincial or
local governmental authority, court, government or self-regulatory organization, commission, tribunal or organization or any regulatory, administrative or other agency, or any political or other subdivision, department or branch of any of the
foregoing, including any governmental, quasi-governmental or nongovernmental body administering, regulating, or having general oversight over gas, electricity, power or other energy-related markets, or any court, arbitrator, arbitration panel or
similar judicial body.
Hazardous Materials means (a) petroleum, coal tar and other hydrocarbons and any
derivatives or by-products, explosive or radioactive materials or wastes, asbestos in any form, polychlorinated biphenyls, urea formaldehyde insulation, chlorofluorocarbons and other ozone-depleting substances and (b) any other chemical,
material, substance or waste that is regulated as a pollutant, a contaminant, hazardous or toxic under any Environmental Law.
Indebtedness means, with respect to any Person, without duplication, (a) all obligations of such Person for borrowed
money (other than intercompany indebtedness), (b) all obligations of such Person evidenced by bonds, debentures, notes or similar instruments, (c) all obligations of such Person evidenced by letters of credit, bankers acceptances or
similar facilities to the extent drawn upon by the counterparty thereto, (d) all capitalized lease obligations of such Person and (d) all guarantees or other assumptions of liability for any of the foregoing.
Intellectual Property means all intellectual property and industrial property rights of any kind or nature, including all
U.S. and foreign trademarks, service marks, service names, internet domain names, trade dress and trade names, and all goodwill associated therewith and symbolized thereby, patents and all related continuations, continuations-in-part, divisionals,
reissues, reexaminations, substitutions, and extensions thereof, trade secrets, registered and unregistered copyrights and works of authorship, proprietary rights in databases to the extent recognized in any given jurisdiction, and registrations and
applications for registration of any of the foregoing.
Judgment means a judgment, order, decree, ruling, writ,
assessment or arbitration award of a Governmental Entity of competent jurisdiction.
Knowledge of any Person that is
not an individual means, with respect to any matter in question, the actual knowledge of such Persons executive officers.
Law means any domestic or foreign, federal, state, provincial or local statute, law, ordinance, rule, binding
administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree or other requirement of any Governmental Entity, including the rules and regulations of the NYSE, the FERC, the FPSC and the NMPRC.
Merger Consideration means $27.55 in cash.
A-5
New Mexico Order means the NMPRCs Final Order, dated August 13,
2014, In the Matter of the Application of TECO Energy, Inc., New Mexico Gas Company, Inc. and Continental Energy Systems, LLC, for Approval of TECO Energy, Inc.s Acquisition of New Mexico Gas Intermediate, Inc. and All Other Approvals Required
to Consummate and Implement the Acquisition, Case No. 13-00231-UT.
New Mexico Subsidiaries means New Mexico Gas
Intermediate, Inc. and New Mexico Gas Company, Inc.
NYSE means the New York Stock Exchange.
Organizational Documents means any corporate, partnership or limited liability organizational documents, including
certificates or articles of incorporation, bylaws, certificates of formation, operating agreements (including limited liability company agreement and agreements of limited partnership), certificates of limited partnership, partnership agreements,
shareholder agreements and certificates of existence, as applicable.
Parent Material Adverse Effect means any fact,
circumstance, effect, change, event or development that has or would reasonably be expected to have a material and adverse effect on the ability of Parent or Merger Sub to consummate, or that would reasonably be expected to prevent or materially
impede, interfere with or delay Parent or Merger Subs consummation of, the transactions contemplated by this Agreement.
Permit means a franchise, license, permit, authorization, variance, exemption, order, registration, clearance or approval
of a Governmental Entity.
Person means any natural person, firm, corporation, partnership, company, limited liability
company, trust, joint venture, association, Governmental Entity or other entity.
Release means any release, spill,
emission, leaking, dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching or migration into or through the environment (including ambient air, surface water, groundwater, land surface, subsurface and sediments).
Subsidiary of any Person means another Person, an amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a majority of its Board of Directors or other governing body (or, if there are no such voting interests, more than 50% of the equity interests of which) is owned directly or indirectly
by such first Person.
Tax Return means all Tax returns, declarations, statements, reports, schedules, forms and
information returns and any amended Tax return relating to Taxes.
Taxes means all taxes, customs, tariffs, imposts,
levies, duties, fees or other like assessments or charges of a similar nature imposed by a Governmental Entity, together with all interest, penalties and additions imposed with respect to such amounts.
Workforce Amount means the number of Company Employees at Closing.
A-6
Section 1.02 Other Defined Terms. In addition to the defined terms set forth
in Section 1.01 of this Exhibit A, each of the following capitalized terms has the respective meaning specified in the Section set forth opposite such term below:
|
|
|
Term |
|
Section |
|
|
Additional Cash Service Award |
|
2.03(f) |
Agreement |
|
Preamble |
Articles of Merger |
|
1.02 |
Bankruptcy and Equity Exceptions |
|
3.04 |
Book-Entry Shares |
|
2.02(b)(i) |
Cash Service Award |
|
2.03(d) |
Certificate |
|
2.02(b)(i) |
Closing |
|
1.03 |
Closing Date |
|
1.03 |
Commitment Letter |
|
4.06 |
Company |
|
Preamble |
Company Acquisition Agreement |
|
5.03(b) |
Company Adverse Recommendation Change |
|
5.03(b) |
Company Articles |
|
3.01 |
Company Board |
|
Recitals |
Company Board Recommendation |
|
3.04 |
Company Bylaws |
|
3.01 |
Company Common Stock |
|
2.01(a)(i) |
Company Disclosure Letter |
|
Article III |
Company DRIP |
|
5.01(a)(iv) |
Company Employee |
|
6.10(a) |
Company Financial Advisor |
|
3.20 |
Company Financial Statements |
|
3.06(a) |
Company Indemnified Parties |
|
6.09(a) |
Company Intervening Event |
|
5.03(f)(iii) |
Company Preferred Stock |
|
3.03(a) |
Company Projections |
|
3.22 |
Company Reports |
|
3.06(a) |
Company Required Consents |
|
3.05(a) |
Company Required Statutory Approvals |
|
3.05(b)(iv) |
Company Restricted Share Consideration |
|
2.03(b) |
Company Shareholder Approval |
|
3.04 |
Company Shareholders Meeting |
|
3.04 |
Company Stock Option Consideration |
|
2.03(a) |
Company Subsidiaries |
|
3.01 |
Company Takeover Proposal |
|
5.03(f)(i) |
Company Termination Fee |
|
8.02(b)(ii) |
Company Union Contracts |
|
3.10 |
Company Voting Debt |
|
3.03(b) |
Confidentiality Agreement |
|
6.02(b) |
Consent |
|
3.05(b) |
A-7
|
|
|
Continuation Period |
|
6.10(a) |
Controlled Group Liability |
|
3.09(d) |
Debt Letters |
|
4.06 |
DFS Provisions |
|
9.07 |
Effective Time |
|
1.02 |
End Date |
|
8.01(b)(i) |
Environmental Permit |
|
3.14(a)(i) |
Equity Securities |
|
3.03(b) |
EUSHI |
|
Recitals |
Exchange Act |
|
3.05(b)(i) |
FBCA |
|
1.01 |
FERC |
|
3.05(b)(iv) |
Filed Company Contract |
|
3.15(a) |
Filing |
|
3.05(b) |
Final Order |
|
7.01(b) |
Financing |
|
4.06 |
Financing Parties |
|
5.04(b) |
Financing Source Parties |
|
9.07 |
FPA |
|
3.05(b)(iv) |
GAAP |
|
3.06(a) |
HSR Act |
|
3.05(b)(ii) |
Insurance Policies |
|
3.18 |
IRS |
|
3.09(b) |
Legal Restraint |
|
7.01(c) |
Liens |
|
3.02 |
Maximum Amount |
|
6.09(c) |
Merger |
|
1.01 |
Merger Sub |
|
Preamble |
NMPRC |
|
3.05(b)(iv) |
Parent |
|
Preamble |
Parent Disclosure Letter |
|
IV |
Parent Material Adverse Effect |
|
9.03 |
Parent Required Consents |
|
4.03(a) |
Parent Required Statutory Approvals |
|
4.03(b)(ii) |
Parent Termination Fee |
|
8.02(b)(i) |
Parties |
|
Preamble |
Paying Agent |
|
2.02(a) |
Proceedings |
|
5.02 |
Proxy Statement |
|
6.01(a) |
PUHCA 2005 |
|
3.19(a) |
Payment Fund |
|
2.02(a) |
Recommendation Change Notice |
|
5.03(c) |
Redacted Fee Letter |
|
4.06 |
Representatives |
|
5.03(a) |
Required Consents |
|
4.03(a) |
Required Statutory Approvals |
|
4.03(b)(ii) |
A-8
|
|
|
SEC |
|
3.05(b)(i) |
Securities Act |
|
3.05(b)(i) |
Substitute Financing |
|
5.04(f) |
Superior Company Proposal |
|
5.03(f)(ii) |
Surviving Corporation |
|
1.01 |
Takeover Statute |
|
3.13 |
TECO Coal |
|
5.01(e) |
Transaction Litigation |
|
6.04 |
Utility Subsidiaries |
|
3.19(a) |
Willful Breach |
|
8.02(e) |
A-9
Emera to Acquire TECO Energy Tampa, FL Sept. 8, 2015 LIFE RUNS ON ENERGY ® Exhibit 99.1 |
2 Forward Looking Statements The Private Securities Litigation Reform Act of 1995 provides a safe
harbor for forward-looking statements. Certain information included in this presentation contains
statements that are forward-looking, including statements relating to the
acquisition of TECO
Energy by Emera. Such statements are based on Emeras and TECO Energys current expectations, and the companies do not undertake any obligation to update or
revise such statements, except as may be required by law. Such forward-looking
information involves important risks and uncertainties that could
significantly affect anticipated results in the future, accordingly, such
results may differ from those expressed
in any forward-looking statements made by Emera and TECO Energy. For more information regarding these risks and uncertainties, review the Risk Factors
section of the TECO Energy Annual Report on Form 10-K for the period ended Dec. 31,
2014, Emeras
continuous disclosure materials filed from time to time with Canadian
securities regulatory authorities, and the safe harbor statement in the press release
related to the acquisition made Sept. 4, 2015.
LIFE RUNS ON ENERGY ® |
LIFE RUNS
ON ENERGY ®
3
John Ramil President and CEO TECO Energy |
4 Emera Acquisition of TECO Energy $10.4 billion transaction Includes the assumption of ~ $3.9 billion of debt $27.55 per share all cash 48% premium to the unaffected share price of July 15 25% premium to the unaffected 52-week high price Transaction recognizes the value of TECO Energy Rewards shareholders for their confidence LIFE RUNS ON ENERGY ® |
5 Emera Acquisition of TECO Energy Emera committed to TECO Energy team members and communities they serve Support communities at the same level as TECOs current level TECO Energy, Tampa Electric and Peoples Gas headquarters to remain in Tampa, New Mexico Gas Co. headquarters to remain in Albuquerque Operating boards in Florida and New Mexico Rates at Tampa Electric, Peoples Gas and New Mexico Gas Co. are unchanged LIFE RUNS ON ENERGY ® |
LIFE RUNS
ON ENERGY ®
6
Emera
Acquisition of TECO Energy
Closing expected by mid-2016
Typical regulatory approvals required
FERC, New Mexico Public Regulation Commission, Hart-Scott-Rodino review, Committee on Foreign Investment in the United States Emera committed to comply with all conditions in the New Mexico Gas Co. acquisition approval |
LIFE RUNS
ON ENERGY ®
7
Chris Huskilson President and CEO Emera |
LIFE RUNS
ON ENERGY ®
8
Our patient approach, and disciplined
investment criteria have resulted in a
pure-play regulated utility transaction
that we expect to be significantly
accretive for Emeras shareholders and
one that advances our strategic
objectives. We have found our ideal
match in TECO Chris Huskilson, President & CEO, Emera Inc. Significantly accretive to EPS: approx. 5% accretive in first full year 1 , growing to >10% accretive by third full year 1 Accelerates growth of regulated earnings and cash flows: Pro forma earnings ~80% regulated Enhances ability to support 8% dividend growth target through 2019 and beyond Expands regulatory platform to include natural gas distribution Increases scale; making Emera a top 20 North American regulated utility. 1 Current management estimate based on certain assumptions, including, among others, a stable currency exchange environment; see Forward
Looking Statements
Excludes one-time transaction costs. |
LIFE RUNS
ON ENERGY ®
9
Pro forma Emera asset map Pipelines Pro forma Operating Companies Nova Scotia Power (vertically integrated utility) Emera Maine (transmission and distribution) Emera Caribbean Emera Newfoundland / Labrador Transmission Tampa Electric (vertically integrated utility) Peoples Gas (regulated natural gas distribution company) New Mexico Gas Co. Gas (regulated natural gas distribution company) Pro forma 2.4 million customers Grand Bahama Power Company Grand Bahama Florida Florida Dominican Republic Barbados Light & Power Company, DOMLEC, Lucelec Power plants Transmission lines New Mexico |
LIFE
RUNS ON ENERGY ®
10
Committing to local communities
Customers Commitment to honor all stipulations in respect of 2014 TECO acquisition of New
Mexico Gas Commitment to a high level of customer service and operational excellence Continuing to invest in cleaner, reliable and affordable energy Communities Continued investment in Florida and New Mexico communities Preservation of existing Florida and New Mexico headquarter locations Local operating company board of directors in Florida and New Mexico Employees Commitment to TECOs existing employees Seek to retain existing management team and employees Important company values alignment |
LIFE
RUNS ON ENERGY ®
11
Financing strategy supports existing
credit profile Transaction supported by USD$6.5bn fully committed bridge loans and upfront convertible debenture financing Bridges led by J.P. Morgan and Scotiabank Long term acquisition financing expected to be structured to maintain existing credit rating profile Successful upfront convertible debenture financing provides CAD$2.2bn of equity; expected to fully address Emeras common equity financing needs for the acquisition Expected ranges for financing plan: Most of the preferred share and debt financing targeted in USD$, providing significant natural
currency hedge Incremental common equity financing through 2016, if any, in support of capital expenditures
remains modest and consistent with previous estimates of between CAD$0 and
CAD$300mm Common Equity and
available sources USD$1.7bn USD$2.1bn Preferred Equity USD$0.8bn USD$1.2bn Debt USD$3.4bn USD$3.8bn CAD$2.2bn of equity assumes exercise in full of over-allotment equivalent to approx. USD$1.7bn
1 1 |
LIFE
RUNS ON ENERGY ®
12
Q3 2015 Q4 2015 Q1 2016 Mid 2016 Merger announcement TECO shareholder merger approval Initiate regulatory filings in New Mexico and with U.S. federal regulatory agencies 1 New Mexico and applicable U.S. federal regulatory approvals File proxy statement Develop and initiate transition implementation plans Expected transaction close Note: Emera shareholder vote is not required 1 U.S. federal approval required from FERC; filings required under HSR and with CFIUS
Tentative timeline to obtain regulatory approvals and close
|
LIFE
RUNS ON ENERGY ®
13
Emera
Acquisition of TECO Energy
Conclusion Testament to value built in TECO Energy Delivers a significant premium to our shareholders TECO Energy to enjoy the benefits of increased scale Creates new opportunities for team members |
Q&A LIFE RUNS ON ENERGY ® |
LIFE
RUNS ON ENERGY ®
Additional Information and Where to Find It
The proposed Acquisition will be submitted to
shareholders of TECO Energy for their consideration. In connection with the Acquisition, TECO Energy will file a proxy statement and other materials with the U.S. Securities and
Exchange Commission (the
SEC). This press release is not a substitute for the proxy statement or any other document that TECO Energy may send to its shareholders in connection with the proposed Transaction.
TECO ENERGY SHAREHOLDERS ARE ADVISED TO READ THE PROXY
STATEMENT FOR THE PROPOSED ACQUISITION WHEN
IT IS FILED, AND ANY AMENDMENT OR SUPPLEMENT
THERETO THAT MAY BE FILED, WITH THE SEC BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT TECO
ENERGY AND THE ACQUISITION. All such documents, when filed, are
available free of charge at the SECs website
(www.sec.gov) or upon request by contacting TECO Energy, Investor Relations, by telephone at 1-800-810-2032 or via email at investorrelations@tecoenergy.com.
TECO Energys filings with the SEC
are also available on TECO Energys website at http://investor.tecoenergy.com/investors/SEC- Filings/default.aspx. Participants in the Solicitation Emera, TECO Energy and their respective directors, executive officers and certain other members of management
and employees may be deemed to be
participants in the solicitation of proxies in respect of the proposed transaction. Information regarding Emeras directors and executive officers is available in its Management Information Circular
statement filed on March 5, 2015 in connection with its
2015 annual meeting of shareholders, and information regarding TECO Energys directors and executive officers is available in its proxy statement filed with the
SEC on March 11, 2015 in connection with
its 2015 annual meeting of shareholders. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security
holdings or otherwise, will be contained
in the proxy statement and other relevant materials to be filed with the SEC when they become available. |
LIFE
RUNS ON ENERGY ®
TECO Energy
LIFE RUNS ON ENERGY ® |
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