Exhibit 10(l)1
EQUITY AGREEMENT
EQUITY AGREEMENT, dated December 21, 1995, by and between
Xxxxxxx Transportation, Inc., a Delaware corporation (the "Seller")
and an indirect wholly-owned subsidiary of Xxxxxxx Inc., a
corporation continued under the laws of Canada (the "Guarantor"),
Guarantor and Western Resources, Inc., a Kansas corporation (the
"Purchaser"). Certain capitalized terms used herein are defined in
Section 9.7 hereof.
W I T N E S S E T H :
WHEREAS, the Seller owns, in the aggregate, 30,800,000
common shares, par value of $.10 per share (the "Common Stock"), of
ADT Limited, a corporation organized under the laws of Bermuda (the
"Company");
WHEREAS, the Seller, Guarantor and the Purchaser are
parties to a Stock Purchase Agreement dated as of the date hereof
(as modified, amended and supplemented in accordance with its
terms, the "Stock Purchase Agreement"), pursuant to which, subject
to the terms and conditions set forth therein, the Seller has
agreed to sell to the Purchaser and the Purchaser has agreed to
purchase from the Seller 15,400,000 shares of Common Stock (the
"Shares") on the Closing Date (as determined under the Stock
Purchase Agreement);
WHEREAS, the Seller desires to grant to the Purchaser an
option to purchase 15,400,000 shares of Common Stock (the "Option
Shares"), upon the terms and subject to the conditions set forth
herein; and
WHEREAS, the Seller, Guarantor and the Purchaser also
desire to set forth their agreements with respect to certain rights
which exist between them with respect to the Shares and the Option
Shares.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants hereinafter set forth, the parties hereto,
intending to be legally bound, hereby agree as follows:
I. OPTION
1.1 Grant of Option to Purchase Option Shares. The
Seller hereby irrevocably grants to the Purchaser an option to
purchase at any time on or after the Closing Date (as defined in
the Stock Purchase Agreement) and prior to May 15, 1997, the Option
Shares at a price per share of Common Stock of the greater of
(i) $14.00 per share of Common Stock, subject to adjustment as
provided herein (the "Floor Price"), and (ii) the Market Price per
share of Common Stock at the time the Purchaser delivers a notice
of exercise pursuant to Section 1.2, subject to adjustment as
provided herein (the "Exercise Price") (such option is referred to
herein as the "Option").
1.2 Exercise of the Option. The Option may be exercised
by the Purchaser by delivering to the Seller at least 5 Business
Days in advance of the exercise date specified in the notice (the
"Exercise Date") written notice of such exercise, signed by the
Purchaser.
1.3 Exercise Price; Payment.
(a) The Exercise Price shall consist of (i) cash,
or (ii) at Purchaser's option, (A) a 6% promissory note due
January 10, 1999 substantially in the form of Exhibit A hereto (the
"Note") of the Purchaser in an aggregate principal amount, at the
Purchaser's option, of up to $150,000,000 and (B) an amount of cash
equal to the balance of the Exercise Price. Purchaser may not
issue the Note in satisfaction of a portion of the Exercise Price
if, at the date of delivery of notice of the Exercise Date,
Purchaser's First Mortgage Notes are rated less than investment
grade by either Standard & Poor's Corporation or Xxxxx'x Investors
Service, Inc.
(b) On the Exercise Date at the Closing (as defined
in Section 6.1), the Purchaser shall, as required by
Section 1.3(a), (i) deliver to the Seller a duly executed Note and
(ii) pay to the Seller any cash consideration by wire transfer of
immediately available funds to such bank account as the Seller
shall specify in writing to Purchaser not later than three Business
Days prior to the Exercise Date, against evidence that the
Purchaser has been entered in the register of members of the
Company and delivery to the Purchaser by the transfer agent of the
Company of a certificate or certificates representing the Option
Shares (subject to adjustment as provided herein), free and clear
of all liens, claims, security interests or encumbrances whatsoever
(including, without limitation, any voting trust or similar
agreement affecting the right to vote the Options Shares), and, if
required, bearing a customary legend reflecting that the Option
Shares have not been registered under the Securities Act, such
legend, if any, and certificate in form and substance satisfactory
to the Purchaser and in such name or names designated by the
Purchaser.
(c) Following the Exercise Date, and for a period
equal to the shorter of (a) twenty days after the Exercise Date and
(b) the time of a public announcement by a third party unaffiliated
with the Purchaser that it intends to acquire the entire share
capital of the Company, Purchaser and its affiliates will not
publicly announce that they intend to acquire the entire share
capital of the Company at a fixed price per share of common stock
unless they pay to Seller in cash the difference between such price
and the Exercise Price; provided, however, that such additional
payment shall only be made if Purchaser and its affiliates
consummate such transaction at a price equal to or greater than the
announced price.
1.4 Adjustments Generally. The Floor Price and the
number of shares of Common Stock (or other securities or property)
deliverable upon exercise of the Option shall be subject to
adjustment from time to time upon the occurrence of certain events,
as provided in Sections 1.5 to 1.10 hereof.
1.5 Common Stock Reorganization. If the Company shall
after the date hereof subdivide its outstanding shares of Common
Stock into a greater number of shares or consolidate its
outstanding shares of Common Stock into a smaller number of shares
(any such event being called a "Common Stock Reorganization"), then
(a) the Floor Price shall be adjusted, effective immediately after
the record date at which the holders of shares of Common Stock are
determined for purposes of such Common Stock Reorganization, to a
price determined by multiplying the Floor Price in effect
immediately prior to such record date by a fraction, the numerator
of which shall be the number of shares of Common Stock outstanding
on such record date before giving effect to such Common Stock
Reorganization and the denominator of which shall be the number of
shares of Common Stock outstanding after giving effect to such
Common Stock Reorganization, and (b) the number of shares of Common
Stock subject to purchase upon exercise of the Option shall be
adjusted, effective at such time, to a number determined by
multiplying the number of shares of Common Stock subject to
purchase immediately before such Common Stock Reorganization by a
fraction, the numerator of which shall be the number of shares
outstanding after giving effect to such Common Stock Reorganization
and the denominator of which shall be the number of shares of
Common Stock outstanding immediately before such Common Stock
Reorganization.
1.6 Common Stock Distribution. If the Company shall
after the date hereof issue or otherwise sell any shares of Common
Stock (otherwise than pursuant to a Common Stock Reorganization),
or any right to subscribe for or purchase Common Stock or a
security convertible into or exchangeable for Common Stock, or
issue any securities convertible into or exercisable for Common
Stock, such that the price per share of Common Stock so issued or
sold, or the price per share of Common Stock issuable upon
exercise, conversion or exchange, is less than the Fair Market
Value of the Common Stock on the date of any such issuance or the
date of announcement of any such issuance, the Purchaser and Seller
shall in good faith determine an adjustment to the Floor Price that
reflects the dilutive effect of any such issuance. In the event
that the Purchaser and Seller cannot agree to an adjustment,
Purchaser and Seller shall reduce their respective proposals to
writing and shall mutually designate a nationally recognized
investment bank to select one of the two proposals, as submitted,
as the final determination of the dispute. The fees and expenses
of the investment bank so selected shall be for the account of the
party whose proposal is not adopted by the investment bank.
1.7 Dividends. If the Company shall after the date
hereof issue or distribute to all or substantially all holders of
shares of Common Stock evidences of indebtedness, any other
securities of the Company or any cash, property or other assets,
and if such issuance or distribution does not constitute a Common
Stock Reorganization or a Common Stock Distribution (any such
nonexcluded event being herein called a "Dividend"), such Dividend
shall be held by the Seller in trust for the Purchaser. At the
time of the exercise of the Option, Purchaser shall have the option
to either (A) elect to receive any such Dividend in which event the
Market Price shall be increased by the Fair Market Value of the
Dividend at the time of its distribution or (B) elect not to
receive any such Dividend, in which event the Floor Price shall be
reduced by the Fair Market Value of the Dividend at the time of its
distribution.
1.8 Capital Reorganization. If after the date hereof
there shall be any consolidation or merger to which the Company is
a party, other than a consolidation or a merger in which the
Company is a continuing corporation and which does not result in
any reclassification of, or change (other than a Common Stock
Reorganization or a change in par value), in, outstanding shares of
Common Stock, or any sale or conveyance of the property of the
Company as an entirety or substantially as an entirety (any such
event being called a "Capital Reorganization"), then, effective
upon the effective date of such Capital Reorganization, the
Purchaser shall have the right to purchase, upon exercise of the
Option, the kind and amount of shares of stock and other securities
and property (including cash) which the Purchaser would have owned
or have been entitled to receive after such Capital Reorganization
if the Option had been exercised immediately prior to such Capital
Reorganization.
1.9 Certain Other Events. If any event occurs after the
date hereof as to which the foregoing Sections 1.5 to 1.8 of this
Article I are not strictly applicable or, if strictly applicable,
would not, in the good faith judgment of the Purchaser, fairly
protect the purchase right of the Option in accordance with the
essential intent and principles of such provisions, then the
Purchaser and the Seller shall make such adjustments in the
application of such provisions, in accordance with such essential
intent and principles, as shall be reasonably necessary to protect
such purchase rights as aforesaid, but in no event shall any such
adjustment have the effect of increasing the Floor Price or
decreasing the number of shares of Common Stock subject to purchase
upon exercise of the Option, or otherwise adversely affect the
holder of the Option.
1.10 Adjustment Rules. (a) Any adjustments pursuant to
Sections 1.5 to 1.9 of this Article I shall be made successively
whenever an event referred to herein shall occur.
(b) If the Company shall set a record date to
determine the holders of shares of Common Stock for purposes of a
Common Stock Reorganization, Common Stock Distribution, Dividend or
Capital Reorganization, and shall legally abandon such action prior
to effecting such Action, then no adjustment shall be made pursuant
to this Article I in respect of such action.
1.11 Reservation of Shares. The Seller will keep
available at all times the number of Option Shares deliverable from
time to time upon exercise of the Option, free and clear of all
liens, claims, security interests or encumbrances whatsoever.
II. VOTING RIGHTS WITH RESPECT TO OPTION SHARES
2.1 Proxy. The Seller hereby grants the Purchaser or a
corporate representative of the Purchaser an irrevocable proxy
deemed coupled with an interest, with full power of substitution,
effective as of the Closing Date (as defined in the Stock Purchase
Agreement) with the full right, power and authority to exercise all
voting and other rights of the Seller with respect to the Option
Shares at any annual, special, adjourned or postponed meeting of
the Company's shareholders, by written consent or otherwise;
provided that such proxy shall terminate with respect to all Option
Shares upon the expiration of the Option or the termination of this
Agreement. The Seller agrees to execute such additional forms of
proxy consistent with the terms of this Section 2.1 as the
Purchaser may request in order to more effectively vest in the
Purchaser the right to vote the Option Shares in accordance with
the Section 2.1. If at any time the holder of this proxy votes the
Option Shares in accordance with the Seller's written request, such
action shall not serve to revoke the proxy or to require the
Purchaser to vote in accordance with the Seller's request in future
votes. The Seller agrees that during the term of the proxy granted
pursuant to this Section 2.1 that the Seller will not directly or
indirectly deposit any Option Shares in a voting trust or subject
them to a voting agreement, grant any other proxy with respect
thereto or enter into any other arrangement of similar effect.
III. TAG ALONG RIGHTS
3.1 Sales by the Purchaser Subject to Tag-Along Rights.
(a) In the event that the Purchaser proposes at any time on or
before May 15, 1997 to effect a sale of more than 2,000,000 Shares
prior to the Exercise Date, then the Purchaser shall promptly give
written notice (the "Tag-Along Notice") to the Seller at least
thirty days prior to the closing of such sale. The Tag-Along
Notice shall describe in reasonable detail the proposed sale
including, without limitation, the name of, and the number of
Shares to be purchased by, the transferee, the purchase price of
each Share to be sold, any other significant terms of such sale and
the date such proposed sale is expected to be consummated.
(b) The Seller shall have the right, exercisable
upon irrevocable written notice to the Purchaser within five
Business Days after receipt of the Tag-Along Notice, to participate
in such sale of Shares on the same terms and conditions as set
forth in the Tag-Along Notice, including, without limitation, the
making of all representations, warranties, indemnifications and
similar agreements, and to sell any portion of the number of the
Option Shares but not more than the Seller's pro rata portion of
the Shares proposed to be sold. The Seller shall also pay its pro
rata portion of the reasonable out-of-pocket fees and expenses of
third parties incurred by the Purchaser in connection with any such
sale. The Seller shall indicate in its notice of election to the
Purchaser the number of Option Shares it desires to sell in such
sale, which number may not be in excess of one-half the number of
Shares proposed to be sold in the Tag-Along Notice. To the extent
the Seller exercises such right of participation in accordance with
the terms and conditions set forth in this Section 3.1, the number
of Shares that the Purchaser may sell in the transaction shall be
correspondingly reduced. Not later than two Business Days prior to
the date scheduled for such sale, the Purchaser shall confirm to
the Seller the number of Option Shares to be sold by the Seller in
such sale.
(c) The Seller shall effect its participation in
the sale by delivering on the date scheduled for such sale to the
Purchaser for delivery to the prospective transferee one or more
certificates, in proper form for transfer, which represent the
number of Option Shares which the Seller is entitled to sell in
accordance with this Section 3.1. In addition, the Seller shall
deliver such other documents and certificates as are required in
connection with such sale. Such stock certificate or certificates
that the Seller delivers to the Purchaser shall be delivered on
such date to such transferee in consummation of the sale of the
Option Shares pursuant to the terms and conditions specified in the
Tag-Along Notice, and the Purchaser shall concurrently therewith
remit to the Seller that portion of the sale proceeds to which the
Seller is entitled by reason of its participation in such sale.
The Purchaser's sale of Shares in any sale proposed in a Tag-Along
Notice shall be effected on the terms and conditions set forth in
such Tag-Along Notice.
(d) The exercise or non-exercise of the rights of
the Seller to participate in one or more sales of Shares made by
the Purchaser shall not adversely affect its rights to participate
in subsequent sales of Shares subject to this Section 3.1
IV. REPRESENTATIONS AND WARRANTIES OF THE SELLER AND THE GUARANTOR
The Seller and the Guarantor hereby represent and warrant
to the Purchaser as follows:
4.1 Organization and Good Standing. Each of the Seller
and the Guarantor are duly organized, validly existing and in good
standing under the laws of their respective jurisdictions of
incorporation.
4.2 Authority Relative to Agreement. Each of the Seller
and the Guarantor have all requisite power and authority to
execute, deliver and perform their respective obligations under
this Agreement and the Stock Purchase Agreement. The execution and
delivery by the Seller and the Guarantor of this Agreement and the
Stock Purchase Agreement, and the consummation by the Seller and
the Guarantor of the transactions contemplated hereby and thereby
(i) have been authorized by all necessary action on the part of the
Seller and the Guarantor, (ii) do not violate any provision of law
or regulation applicable to the Seller or the Guarantor and
(iii) do not conflict with or result in a breach of any provision
of, or constitute a default under, the certificate of incorporation
or bylaws of the Seller or the Guarantor, or any agreement, order,
judgment or decree binding upon the Seller or the Guarantor.
4.3 Consents and Approvals. No filing or registration
with, notification to, or authorization, consent or approval of,
any governmental authority is required by Seller or Guarantor in
connection with the execution and delivery of this Agreement and
the Stock Purchase Agreement, or the consummation of the
transactions contemplated hereby and thereby.
4.4 Effect of Agreement. This Agreement and the Stock
Purchase Agreement have been duly executed and delivered by the
Seller and the Guarantor and (assuming the due authorization,
execution and delivery by the Purchaser) constitute legal, valid
and binding obligations of the Seller and the Guarantor enforceable
against the Seller and the Guarantor in accordance with their
respective terms.
4.5 The Option Shares.
(a) The Seller owns all right, title and interest
in and to the Option Shares, free and clear of any liens, claims,
security interests or encumbrances whatsoever (including, without
limitation, any voting trust or similar arrangement affecting the
right to vote the Option Shares).
(b) The Seller will transfer and deliver to the
Purchaser on the Exercise Date at the Closing valid title to the
Option Shares, free and clear of any liens, claims, security
interests or encumbrances whatsoever (including, without
limitation, any voting trust or similar arrangement affecting the
right to vote the Options Shares).
V. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser hereby represents and warrants to the
Seller as follows:
5.1 Organization and Good Standing. The Purchaser is
duly organized, validly existing and in good standing under the
laws of the State of Kansas.
5.2 Authority Relative to Agreement. The Purchaser has
all requisite power and authority to (i) execute, deliver and
perform its obligations under this Agreement and the Stock Purchase
Agreement and (ii) subject to the consent of the KCC, issue the
Note to be issued by it in the manner and for the purposes
contemplated by this Agreement. The execution and delivery by the
Purchaser of this Agreement and the Stock Purchase Agreement, and
the consummation by the Purchaser of the transactions contemplated
hereby (including, subject to the consent of the KCC, the issuance
by the Purchaser of the Note pursuant hereto) and thereby (i) have
been authorized by all necessary action on the part of the
Purchaser, (ii) do not violate any provision of law or regulation
applicable to the Purchaser and (iii) do not conflict with or
result in a breach of any provision of, or constitute a default
under, the certificate of incorporation or bylaws of the Purchaser,
or any agreement, order, judgment or decree binding upon the
Purchaser.
5.3 Consents and Approvals. No filing or registration
with, notification to, or authorization, consent or approval of,
any governmental entity is required by Purchaser in connection
with the execution and delivery of this Agreement and the Stock
Purchase Agreement, or the consummation of the transactions
contemplated hereby or thereby, except (i) in connection with the
applicable requirements of the HSR Act, (ii) in connection with
filings under the Exchange Act and (iii) in connection with
obtaining the approval of the KCC with respect to the issuance of
the Note.
5.4 Effect of Agreement. This Agreement and the Stock
Purchase Agreement have been duly executed and delivered by the
Purchaser and (assuming the due authorization, execution and
delivery by the Seller and the Guarantor) constitute legal, valid
and binding obligations of the Purchaser enforceable against the
Purchaser in accordance with their respective terms.
VI. CLOSING
6.1 Closing Date. The closing with respect to the
transactions provided for in this Agreement (the "Closing") shall
take place at 10:00 a.m., local time, at the offices of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the
Exercise Date (or at such other time or location as the Purchaser
and the Seller may agree).
VII. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
7.1 General Survival. The representations and
warranties contained in this Agreement shall survive the Closing.
VIII. GUARANTEE
8.1 Guarantee. The Guarantor hereby irrevocably and
unconditionally guarantees the prompt and punctual performance by
Seller of each of its obligations under this Agreement and the
Stock Purchase Agreement.
IX. MISCELLANEOUS
9.1 Waivers and Amendments.
(a) This Agreement may not be amended, modified or
supplemented except by a written instrument executed by the parties
hereto. The provisions of this Agreement may be waived only by an
instrument in writing executed by the party granting the waiver.
The waiver by any party hereto of compliance with any provision of
this Agreement shall not operate or be construed as a further or
continuing waiver of such noncompliance or as a waiver of any other
or subsequent noncompliance.
(b) No failure on the part of any party to
exercise, and no delay in exercising, any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single
or partial exercise of such right, power or remedy by such party
preclude any other or further exercise thereof or the exercise of
any other right, power or remedy.
9.2 Fees and Expenses. Each party hereto shall be
responsible for its costs and expenses, including all fees and
expenses of attorneys, investment bankers, lenders, financial
advisors and accountants, in connection with the negotiation,
execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby, whether or not such
transactions are consummated.
9.3 Notices. Any and all notices, requests, consents or
any other communication provided for herein shall be made by hand
delivery, first-class mail (registered or certified, return receipt
requested), telecopier or overnight courier and, pending the
designation of another address, addressed as follows:
If to the Seller or the Guarantor at:
0000 Xxxxx Xxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx
Xxxxxxx, Xxxxxx 17R 3Y8
Fax No. - (000) 000-0000
Attn: Xxxx X. Xxxxxx, Esq.
If to the Purchaser at:
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
Fax No. - (000) 000-0000
Attn: Xxxxx Xxxxxx
with a copy to:
Xxxx X. Xxxxxxxxx, Esq.
000 Xxxxxx Xxxxxx
Xxxxxx, Xxxxxx
Fax No. - (000) 000-0000
Except as otherwise provided in this Agreement, each such notice
shall be deemed given at the time delivered.
9.4 Entire Agreement. This Agreement and the Stock
Purchase Agreement set forth the entire agreement and understanding
between the parties hereto with respect to the subject matter
hereof and supersede any prior negotiations, agreements,
understandings or arrangements between the parties hereto with
respect to the subject matter hereof.
9.5 Binding Effect; Benefits. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and
their respective successors. Nothing in this Agreement, expressed
or implied, is intended to confer on any person other than the
parties hereto, or their respective successors, any rights,
remedies, obligations or liabilities under or by reason of this
Agreement.
9.6 Assignability. This Agreement and any rights
pursuant hereto shall not be assignable by either party hereto
without the prior written consent of the other party; provided,
however, that Purchaser may assign its rights hereunder to any
wholly-owned subsidiary of the Purchaser.
9.7 Defined Terms. As used in this Agreement, the
following terms shall have the meanings set forth below:
(a) "Business Day" shall mean any day on which
banks are not required or authorized to close in New York City.
(b) "Closing Price" with respect to any security on
any day means (a) if such security is listed or admitted for
trading on a national securities exchange, the reported last sales
price regular way or, if no such reported sale occurs on such day,
the average of the closing bid and asked prices regular way on such
day, in each case as reported in the principal consolidated
transaction reporting system with respect to securities listed on
the principal national securities exchange on which such class of
security is listed or admitted to trading, or (b) if such security
is not listed or admitted to trading on any national securities
exchange, the last quoted sales price, or, if not so quoted, the
average of the high bid and low asked prices in the
over-the-counter market on such day as reported by NASDAQ or any
comparable system then in use or, if not so reported, as reported
by any New York Stock Exchange member firm reasonably selected by
the Purchaser for such purpose.
(c) "Fair Market Value" means the fair market value
of the business or property in question, as determined in good
faith by Purchaser and Seller, provided, however, that the Fair
Market Value of any security for which a Closing Price is available
shall be the Trading Market Price of such security. The Fair
Market Value of the Company shall be the Fair Market Value of the
Company and its subsidiaries as a going concern. Notwithstanding
the foregoing, if, at any date of determination of the Fair Market
Value of the Company, the Common Stock of any class shall then be
publicly traded, the Fair Market Value of the Company on such date
shall be the Trading Market Price on such date multiplied by the
number of shares of Common Stock then outstanding on a fully
diluted basis.
(d) "KCC" means the State Corporation Commission of
the State of Kansas.
(e) "Market Price" means the amount equal to the
average per share closing price (regular way) for a round lot of
the shares of Common Stock on the New York Stock Exchange (or, if
not listed on the New York Stock Exchange, such other principal
exchange or system in the United States on which the Common Stock
shall from time to time be traded) on each of the twenty (20)
trading days immediately preceding the delivery of notice of the
Exercise Date; provided, however, that if, within twenty (20)
trading days immediately preceding delivery of notice of the
Exercise Date, a third party unaffiliated with the Purchaser makes
a public announcement that it intends to acquire the entire share
capital of the Company at a fixed price per share of Common Stock,
Market Price shall mean the amount equal to the average per share
closing price (regular way) for a round lot of shares of Common
Stock on the New York Stock Exchange (or, if not listed on the New
York Stock Exchange, such other principal exchange or system in the
United States on which the Common Stock shall from time to time be
traded) on each trading day ended after such announcement, but in
no event more than the fixed price so announced.
(f) "Person" shall mean an individual, partnership,
corporation (including, without limitation, a business trust),
joint stock company, limited liability company trust,
unincorporated association, joint venture or other entity,
government or governmental authority.
(g) "Securities Act" means the Securities Act of
1933, as amended.
(h) "Trading Market Price" with respect to any
security on any day means the average of the daily Closing Prices
of a share or unit of such security for the 20 consecutive Business
Days ending on the most recent Business Day for which a Closing
Price is available; provided, however, that in the event that, in
the case of Common Stock, the Trading Market Price is determined
during a period following the announcement by the Company of (A) a
dividend or distribution of Common Stock, or (B) any subdivision,
combination or reclassification of Common Stock and prior to the
expiration of 20 Business Days after the ex-dividend date for such
dividend or distribution, or the record date for such subdivision,
combination or reclassification, then, and in each such case, the
Trading Market Price shall be appropriately adjusted to reflect the
current market price per share equivalent of Common Stock.
9.8 Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of law.
9.9 Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes
only and shall not affect the meaning or interpretation of this
Agreement.
9.10 Submission to Jurisdiction. (a) Each of the
parties hereto irrevocably consents that any action or proceeding
brought by the other party hereto in respect of the transaction
contemplated hereby may be brought in the courts of the State of
New York in the Borough of Manhattan or of the United States of
America for the Southern District of New York and, by execution and
delivery of this Agreement, the parties hereto hereby irrevocably
waive any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non
conveniens, which any of them may now or hereafter have to the
bringing of any such action or proceeding in such respective
jurisdiction.
(b) Each of the parties hereto irrevocably consents
to the service of process of any of the aforesaid courts in any
such action or proceeding by the mailing of copies thereof by
registered mail, postage prepaid, to such party at its address
provided herein.
9.11 Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the
same instrument; provided, however, that this Agreement shall not
be effective unless and until at least one counterpart is executed
and delivered by each party hereto.
9.12 Termination. Any party hereto shall be able to
terminate this Agreement and their obligations hereunder if the
Stock Purchase Agreement has been terminated pursuant to Section
10.12 thereof.
IN WITNESS WHEREOF, the parties hereto have duly executed
this Agreement on the day and year first above written.
XXXXXXX TRANSPORTATION, INC.
By:
Name:
Title:
XXXXXXX INC.
By:
Name:
Title:
WESTERN RESOURCES, INC.
By:
Name:
Title:
Exhibit A to
Equity Agreement
FORM OF PROMISSORY NOTE
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS,
AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER
SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR UNLESS AN
EXEMPTION FROM REGISTRATION IS AVAILABLE.
$[ ]
WESTERN RESOURCES, INC.
6% Promissory Note
Western Resources, Inc., a Kansas corporation (together
with its successors, the "Borrower"), for value received hereby
promises to pay to
XXXXXXX TRANSPORTATION, INC.
(the "Holder") the principal sum of
AMOUNT IN WORDS
by wire transfer of immediately available funds to the Holder's
account (the "Bank Account") at such bank in the United States as
may be specified in writing by the Holder to the Borrower at the
time of issuance of the Note, on January 10, 1999, in such coin or
currency of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts,
and to pay interest, semi-annually in arrears, on January 10 and
July 10 (unless such day is not a Business Day, in which event on
the next succeeding Business Day) (each an "Interest Payment Date")
of each year in which this Note remains outstanding, commencing
with the next January 10 or July 10 after issuance of this Note, on
the principal sum hereof outstanding in like coin or currency, at
the rate of 6% per annum, by wire transfer of immediately available
funds to the Bank Account from the most recent Interest Payment
Date to which interest has been paid on this Note, or if no
interest has been paid on this Note, from the date of issuance of
this Note, until payment in full of the principal sum hereof has
been made. Interest shall be computed on the basis of a 360-day
year and twelve months of 30 days.
This Note is a duly authorized Promissory Note of the
Borrower (the "Note") referred to in the Equity Agreement dated as
of December 21, 1995 between the Borrower and the Holder (as the
same may be amended from time to time in accordance with its terms,
the "Agreement").
1. Certain Terms Defined. All terms defined in the
Agreement and not otherwise defined herein shall have for purposes
hereof the meanings provided for therein.
2. Event of Default Defined; Acceleration of Maturity.
In case one or more of the following Events of Default (whatever
the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or
pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental
body) shall have occurred and be continuing:
(a) default in the payment of all or any part of the
principal on this Note as and when the same shall become due
and payable at maturity; or
(b) default in the payment of any installment of
interest upon this Note, as and when the same shall become due
and payable, and continuance of such default for a period of
10 days; or
(c) the Borrower shall commence a voluntary case or
other proceeding seeking liquidation, reorganization or other
relief with respect to itself or its debts under any
bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such
relief or to the appointment of or taking possession by any
such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for
the benefit of creditors, or shall fail generally to pay its
debts as they become due, or shall take any corporate action
to authorize any of the foregoing; or
(d) an involuntary case or other proceeding shall be
commenced against the Borrower seeking liquidation,
reorganization or other relief with respect to it or its debts
under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of
it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed
and unstayed for a period of 120 days; or an order for relief
shall be entered against the Borrower under the federal
bankruptcy laws as now or hereafter in effect;
then, and in each and every such case (other than under clauses
(iii) and (iv)), unless the principal of this Note shall have
already become due and payable, the Holder, by notice in writing to
the Borrower, may declare the entire principal amount of this Note
together with accrued interest thereon to be, and upon the
Borrower's receipt of such notice the entire principal amount of
this Note together with accrued interest thereon shall become,
immediately due and payable. If an Event of Default specified in
clause (iii) or (iv) occurs, the principal of and accrued interest
on this Note will be immediately due and payable without any
declaration or other act on the part of the Holder. The Holder may
rescind an acceleration and its consequences.
3. Prepayment of Note. The Borrower at its option may
at any time prepay all or any part of the principal amount of this
Note at a redemption price equal to 100.00% of the principal amount
of this Note so prepaid, together with accrued and unpaid interest
thereon through the day of prepayment.
4. Transfer Limitation. This Note may not be sold,
assigned, pledged, hypothecated or transferred in any manner
without the consent of Borrower.
5. Security. Subject to compliance with applicable
governmental regulations, the obligations of the Borrower to pay
interest and principal on this Note are secured by a pledge to the
Borrower, as agent for the Holder, of the minimum number of Option
Shares which will comply with applicable government regulations and
be not less than the outstanding principal amount of this Note
divided by the Exercise Price per Option Share paid by the
Borrower.
6. Miscellaneous. THIS NOTE SHALL BE DEEMED TO BE A
CONTRACT UNDER THE LAWS OF NEW YORK, AND FOR ALL PURPOSES SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD
TO CONFLICT OF LAW PRINCIPLES THEREOF. The parties hereto hereby
waive presentment, demand, notice, protest and all other demands
and notices in connection with the delivery, acceptance,
performance and enforcement of this Note, except as specifically
provided herein, and assent to extensions of the time of payment,
or forbearance or other indulgence without notice. The Borrower
and Holder hereby submit to the exclusive jurisdiction of the
United States District Court for the Southern District of New York
and of any New York state court sitting in New York City for
purposes of all legal proceedings arising out of or relating to
this Note. The Borrower and Holder irrevocably waive, to the
fullest extent permitted by law, any objection which either may now
or hereafter have to the laying of the venue of any such proceeding
brought in such a court and any claim that any such proceeding
brought in such a court has been brought in an inconvenient forum.
The Holder of this Note by acceptance of this Note agrees
to be bound by the provisions of this Note which are expressly
binding on such Holder.
IN WITNESS WHEREOF, the Borrower has caused this
instrument to be duly executed.
Dated: , 199
WESTERN RESOURCES, INC.
By:
Name:
Title:
