SUPPORT AGREEMENT
STRICTLY CONFIDENTIAL
February 25, 2007
Clean Power Income Fund and
Clean Power Operating Trust
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: H. Xxxxx Xxxxxxx
Dear Sirs:
On behalf of the Algonquin Power Income Fund ("APIF") and Algonquin
Power Trust ("APT"), we write to confirm APT's interest in making an offer to
purchase all of the issued and outstanding units, including the units issuable
upon the exchange of the exchangeable Class B units of Clean Power Limited
Partnership held by Canadian Environmental Energy Corporation ("CEEC"),
(collectively, the "Units") of Clean Power Income Fund ("CPIF") through the
issuance of 0.6152 APIF trust units and a Contingency Value Receipt (as defined
below) for each Unit (the "Offer Price"), based on an aggregate of 35,820,477
Units outstanding (on a fully diluted basis, exclusive of any Units issuable
upon conversion of any 6.75% convertible debentures due December 31, 2010 (the
"Debentures") of CPIF). A "Contingency Value Receipt" will be issued on the
terms set out in Schedule "B" hereto.
This letter agreement (this "Agreement") sets out (i) certain terms
and conditions of the Offer (as hereinafter defined), (ii) the agreement by the
board of trustees ("Board of Trustees") of Clean Power Operating Trust ("CPOT")
on behalf of CPOT and CPIF, among other things, to recommend that holders of
Units accept the Offer, and (iii) other obligations and commitments of CPIF,
CPOT, APIF and APT in connection with the Offer.
ARTICLE 1
THE OFFER
1.1 Subject to the terms and conditions of this Agreement, APT agrees to make
an offer to purchase 100% of the Units at the Offer Price per Unit (the "Offer",
which term shall include any one or more changes or variations to, or extensions
of, such Offer, including, without limitation, increasing the consideration,
waiving any condition or extending the date by which Units may be deposited, all
in accordance with this Agreement) on the following terms and conditions:
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(a) APT shall mail or cause to be mailed to all holders of Units as soon
as practicable, anticipated to be on or before 11:59 p.m. (Toronto
time) on March 15, 2007, but in any event on or before 11:59 p.m.
(Toronto time) on March 23, 2007, the Offer, which Offer shall be
made by way of a take-over bid circular in compliance with the
Securities Act (Ontario) and all other applicable securities laws,
regulations and rules and the policy statements, orders and rulings
of Canadian securities regulatory authorities (the "Securities
Laws") and other applicable laws (collectively, "Applicable Law")
and which Offer shall be subject to the conditions set forth in
Schedule "A" hereto. The mailing of the Offer Documents (as defined
below) shall be conditional on the following matters:
(i) that no Material Adverse Change or event or circumstance
which is reasonably likely to result in a Material Adverse
Change with respect to CPIF has occurred, other than any
Material Adverse Change (or any event or circumstance
involving a prospective Material Adverse Change) which has
been previously generally disclosed to the public or
disclosed or made available in writing prior to the date
hereof to either APT or APIF (including materials placed in
the data room prior to February 15, 2007 at 6:50 p.m.);
(ii) there has been no announcement of a Competing Transaction
(as defined below);
(iii) as of the date the Offer is to be made, there shall be no
breach of or non-compliance with any material covenant,
agreement or obligation of CPIF contained herein (in any
case, as determined by APT, acting reasonably);
(iv) that the trustees' circular prepared by the Board of
Trustees on behalf of CPIF shall be made available by CPIF
to be mailed to holders of Units at the same time, and in
the same package, as the other Offer Documents (as defined
below) and that in such trustees' circular the Board of
Trustees shall, subject to obtaining the fairness opinion
referred to in clause 1.1(a)(v) below, (A) make a unanimous
recommendation that holders of Units accept the Offer, and
(B) unanimously conclude that the Offer is fair, from a
financial point of view, to holders of Units (other than APT
or APIF);
(v) that the Offer is, in the opinion of the financial advisors
retained by CPOT, fair from a Financial point of view to
holders of Units (other than APT or APIF);
(vi) the Offer shall have been approved by CPIF's lenders in
respect of the Sun Life and BNS working capital credit
facilities; and
(vii) CEEC shall have exchanged its Class B units of Clean Power
Limited Partnership for Units and either exchanged for Units
or surrendered for cancellation the Special Voting Share of
Whitecourt Power Corp., on terms acceptable to APT, acting
reasonably.
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In this Agreement, a "Material Adverse Change", when used in
connection with a party, means any change, effect, event or
occurrence with respect to the condition (financial or otherwise),
assets, liabilities, obligations, businesses, operations or results
of operations of that party, its subsidiaries or affiliated entities
that is or could reasonably be expected to be, material and adverse
to that party, its subsidiaries and affiliated entities taken as a
whole (which, for greater certainty, shall not include changes in
the market price for the units of the party in and of themselves).
(b) The Offer shall expire on the 35th day following the date of mailing
of the Offer to the holders of Units, except that the Offer may be
extended by APT up to the Outside Date (as defined below) if the
conditions thereto set forth in Schedule "A" are not satisfied on or
by the date and time at which the Offer would otherwise expire;
(c) The documentation constituting the Offer to be mailed to unitholders
shall include the take-over bid circular and trustees' circular
(the "Offer Documents") and shall be prepared by APT and CPIF, as
applicable, in compliance with Applicable Law; and
(d) Subject to the satisfaction or waiver of the conditions set forth in
Schedule "A" and the terms hereof, APT shall, as soon as is
practicable in the circumstances and in any event within the time
periods required by Applicable Law, accept for payment and take up
and pay for all Units deposited and not withdrawn under the Offer.
For purposes hereof, "Effective Date" means the date upon which
Units deposited and not withdrawn under the Offer are taken up and
paid for by APT, which will not be later than May 14, 2007 or such
later date as may be agreed upon by the parties (the "Outside
Date").
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
2.1 REPRESENTATIONS AND WARRANTIES OF APT AND APIF. APT and APIF hereby
jointly and severally represent and warrant to CPIF and CPOT, and acknowledge
that CPIF and CPOT are relying on such representations and warranties, that:
(a) Existence. APT is an open-ended trust duly created and validly
subsisting under the laws of the Province of Ontario and APIF is an
open-ended mutual fund trust duly created and validly subsisting
under the laws of the Province of Ontario;
(b) Authorization. No approvals by the unitholders of APIF are required
pursuant to APIF's declaration of trust, as amended, in connection
with the execution of this Agreement or the completion of the
transactions contemplated herein and, upon the due execution and
delivery of this Agreement by CPIF and CPOT, this Agreement shall be
a valid and binding agreement of each of APT and APIF enforceable by
CPIF and/or CPOT against each of APT and APIF in accordance with its
terms, subject, however, to limitations with respect to enforcement
imposed by law in connection with bankruptcy or similar proceedings,
the equitable power of the courts to stay proceedings before them
and the execution of judgments and to the extent that
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equitable remedies, such as specific performance and injunction, are
in the discretion of the court from which they are sought;
(c) Reporting Issuer. APIF is a reporting issuer in good standing in all
provinces of Canada where such a concept exists and has not been
notified of nor is it aware of any material default or alleged
material default by it of requirements of Applicable Law;
(d) Authorized Capital and Outstanding Securities. The authorized
capital of APIF consists of an unlimited number of APIF units, of
which as at January 30, 2007 73,007,823 APIF units were issued and
outstanding. APIF also has Series 1 and Series 2 convertible
debentures with a principal amount of $84,980,000 and $60,000,000
outstanding, respectively, and Algonquin (AirSource) Power LP had as
at January 30, 2007 outstanding 3,120,704 units exchangeable (using
an exchange ratio of 1 to 0.9808) for an aggregate of 3,060,786 APIF
trust units. The continuous disclosure provided in respect of APIF
together with the information disclosed herein is accurate in all
material respects regarding issued and outstanding subscriptions,
options, warrants, conversion privileges, exchange rights or similar
options, calls, rights, commitments or agreements of any character
creating an obligation on the part of APIF to issue, deliver or sell
APIF units or other ownership interests in APIF;
(e) Continuous Disclosure Record. APIF's annual information forms,
management information circulars, financial statements and
accompanying management's discussion and analyses, material change
reports and other continuous disclosure documents filed on SEDAR
since January 1, 2006 (collectively, the "APIF Continuous Disclosure
Record"), at the time filed (and if amended or superseded by a
filing prior to the date of this Agreement then, on the date of such
filing), (i) did not contain any material misrepresentation (as
defined in Securities Laws), did not at the time they were filed
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 and (ii) complied in all
material respects with the requirements of Applicable Law. APIF has
not filed any confidential material change report with the Ontario
Securities Commission or any other securities regulator or any stock
exchange, which, as of the date hereof, remains confidential;
(f) Financial Statements. Since January 1, 2006, the annual audited
consolidated financial statements and the quarterly unaudited
consolidated financial statements of APIF, including the notes
thereto, included in the APIF Continuous Disclosure Record (the
"APIF Financial Statements") complied as to form in all material
respects with applicable accounting requirements in Canada and with
the published rules and regulations of applicable governing
entities, the Canadian securities regulatory authorities and the
Toronto Stock Exchange with respect thereto as of their respective
dates, and have been prepared in accordance with Canadian generally
accepted accounting principles applied on a basis consistent
throughout the periods indicated and consistent with each other
(except as may be indicated in the notes thereto) ("Canadian GAAP").
The APIF Financial Statements present fairly, in all
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material respects, the consolidated financial position, results of
operations and cash flows of APIF and its subsidiaries at the dates
and during the periods indicated therein (subject, in the case of
unaudited statements, to normal, recurring year-end adjustments and
the absence of notes thereto) and reflect in all material respects
appropriate and adequate reserves in respect of contingent
liabilities, if any, of APIF and its subsidiaries and affiliated
entities on a consolidated basis. There has been no change in APIF's
accounting policies, except as described in the notes to the APIF
Financial Statements;
(g) Material Changes. Since December 31, 2006, there has not been any
undisclosed event or circumstance which would be reasonably expected
to result in a Material Adverse Change with respect to APIF; and no
undisclosed claim, action, proceeding, litigation, investigation or
inquiry has been commenced or, to the knowledge of APIF. threatened
against APIF or any subsidiary which, if determined adversely,
would, individually or in the aggregate, be reasonably expected to
result in a Material Adverse Change for APIF;
(h) Listing and Tradeability of APIF Units. The units of APIF to be
provided as consideration in connection with the Offer will be duly
issued as fully paid and nonassessable and listed and posted for
trading on the Toronto Stock Exchange and will be freely tradeable
under Securities Laws; and
(i) Takeover Bid Circular. The takeover bid circular prepared by APT and
APIF in connection with the Offer will, when mailed, comply with
Applicable Law and constitute full, true and plain disclosure
concerning APIF and the Offer and will not omit to state a material
fact that is required to be stated or that is necessary to make a
statement not misleading in light of the circumstances in which it
is made, and will not contain any material misrepresentation (as
defined in Securities Laws) likely, if the Offer is consummated, to
be materially adverse to an acquiror of the APIF units.
2.2 REPRESENTATIONS AND WARRANTIES OF CPIF AND CPOT. CPIF and CPOT, jointly
and severally, hereby represent and warrant to APT and APIF, and acknowledge
that APT and APIF are relying on such representations and warranties, that:
(a) Existence. CPOT is an open-ended trust duly created and validly
subsisting under the laws of the Province of Ontario. CPIF is an
open-ended mutual fund trust duly created and validly subsisting
under the laws of the Province of Ontario;
(b) Authorization. No approvals of the unitholders of CPIF are required
in connection with the execution of this Agreement or the payment of
amounts pursuant to Section 3.9 and, upon the due execution and
delivery of this Agreement by APT and APIF, this Agreement shall be
a valid and binding agreement of each of CPIF and CPOT enforceable
by APT and/or APIF against each of CPIF and CPOT in accordance with
its terms, subject, however, to limitations with respect to
enforcement imposed by law in connection with bankruptcy or similar
proceedings, the equitable power of the courts to stay proceedings
before them and the execution of judgments and to the
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extent that equitable remedies, such as specific performance and
injunction, are in the discretion of the court from which they are
sought;
(c) Reporting Issuer. CPIF is a reporting issuer in good standing in all
provinces of Canada where such a concept exists and has not been
notified of nor is it aware of any material default or alleged
material default by it of requirements of Applicable Law;
(d) Continuous Disclosure Record. CPIF's annual information forms,
management information circulars, financial statements and
accompanying management's discussion and analyses, material change
reports and other continuous disclosure documents filed on SEDAR
since January 1, 2006 (collectively, the "CPIF Continuous Disclosure
Record"), at the time filed (and if amended or superseded by a
filing prior to the date of this Agreement then, on the date of such
filing), (i) did not contain any material misrepresentation (as
defined in Securities Laws), did not at the time they were filed
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 and (ii) complied in all
material respects with the requirements of Applicable Law. CPIF has
not filed any confidential material change report with the Ontario
Securities Commission or any other securities regulator or any stock
exchange, which, as of the date hereof, remains confidential;
(e) Financial Statements. Since January 1, 2006, the annual audited
consolidated financial statements and the quarterly unaudited
consolidated financial statements of CPIF, including the notes
thereto, included in the CPIF Continuous Disclosure Record (the
"CPIF Financial Statements") complied as to form in all material
respects with applicable accounting requirements in Canada and with
the published rules and regulations of applicable governing
entities, the Canadian securities regulatory authorities and the
Toronto Stock Exchange with respect thereto as of their respective
dates, and have been prepared in accordance with Canadian generally
accepted accounting principles applied on a basis consistent
throughout the periods indicated and consistent with each other
(except as may be indicated in the notes thereto). The CPIF
Financial Statements present fairly, in all material respects, the
consolidated financial position, results of operations and cash
flows of CPIF and its subsidiaries at the dates and during the
periods indicated therein (subject, in the case of unaudited
statements, to normal, recurring year-end adjustments and the
absence of notes thereto) and reflect in all material respects
appropriate and adequate reserves in respect of contingent
liabilities, if any, of CPIF and its subsidiaries and affiliated
entities on a consolidated basis. There has been no change in CPIF's
accounting policies, except as described in the notes to the CPIF
Financial Statements;
(f) Material Changes. Since December 31, 2006, there has not been any
undisclosed event or circumstance which would be reasonably expected
to result in a Material Adverse Change with respect to CPIF; and no
undisclosed claim, action, proceeding, litigation, investigation or
inquiry has been commenced or, to the knowledge of CPIF or CPOT,
threatened against CPIF or any subsidiary which, if determined
adversely,
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would, individually or in the aggregate, be reasonably expected to
result in a Material Adverse Change for CPIF;
(g) Trustees' Circular. The trustees' circular prepared by CPIF and CPOT
in connection with the Offer will, when mailed, comply with
Applicable Law and constitute full, true and plain disclosure
concerning the background to the Offer and will not omit to state a
material fact that is required to be stated or that is necessary to
make a statement not misleading in light of the circumstances in
which it is made, and will not contain any material
misrepresentation (as defined in Securities Laws) likely, if the
Offer is consummated, to be materially adverse to an acquiror of
APIF units;
(h) Authorized Capital and Outstanding Securities. The authorized
capital of CPIF consists of an unlimited number of Units, of which
as at the date hereof there were 35,368,597 units issued and
outstanding. CPIF also has the Debentures outstanding and
obligations to issue an aggregate of 451,880 Units pursuant to Class
B units of Clean Power Limited Partnership and a Special Voting
Share of Whitecourt Power Corp., both held by CEEC. The continuous
disclosure provided in respect of CPIF together with the information
disclosed herein is accurate in all material respects regarding
issued and outstanding subscriptions, options, warrants, conversion
privileges, exchange rights or similar options, calls, rights,
commitments or agreements of any character creating an obligation on
the part of CPIF to issue, deliver or sell Units or other ownership
interests in CPIF. The number of Units outstanding (together with
any Units in respect of which agreements exist which provide the
right for exchange into Units except with respect to the conversion
of any Debentures) is equal to 35,820,477 Units. The aggregate
principal amount of Debentures outstanding is equal to $55,000,000;
and
(i) Termination of Agreements and Personnel. The Letter Agreement (as
defined below) has not been amended, remains in force and effect and
no event of default or circumstances which, with the passage of time
or giving of notice, would lead to an event of default has occurred.
(j) Material Documents. CPIF and CPOT have publicly disclosed or
disclosed or made available in writing to APIF pursuant to the APMI
Confidentiality Agreement (as defined below), (including materials
placed in the data room prior to February 1, 2007) all material
contracts of CPIF or CPOT and all material reports on CPIF and CPOT
or their assets prepared by or on their behalf.
ARTICLE 3
COVENANTS OF CPIF AND CPOT
3.1 GENERAL. CPIF and CPOT hereby covenant that from the date hereof until the
earlier of: (i) APT having taken up and paid for Units deposited under the Offer
or APT having abandoned the Offer; or (ii) this Agreement having been terminated
pursuant to Article 5 hereof, CPIF and CPOT will:
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(a) except as expressly permitted herein, not intentionally take any
action of any kind which may materially reduce the likelihood of
success of or interfere with or delay the take up of and payment for
Units deposited under the Offer or the completion of the Offer;
notwithstanding the foregoing, CPIF shall retain the ability to
solicit, initiate, facilitate, encourage or entertain (including by
way of furnishing non-public information or entering into any form
of agreement, arrangement or understanding) enquiries or proposals
with third parties which may lead to a Competing Transaction (as
defined below) and shall be entitled to discuss and negotiate a
potential Competing Transaction with such third party, provided such
third party has entered into or enters into a confidentiality
agreement (a "Confidentiality Agreement") containing such terms and
conditions as are standard and customary in transactions of the same
nature as the Competing Transaction and not materially less onerous
to such third party than the confidentiality obligations of
Algonquin Power Management Inc. ("APMI") pursuant to the
confidentiality agreement dated June 27, 2006 between APMI and CPIF
(the "APMI Confidentiality Agreement") and provided that all such
information made available to the third party has (but for customary
confidentiality exclusions) been, or will promptly be, provided to
APT and APIF.
For the purposes hereof, "Competing Transaction" means an offer or a
proposal made to CPIF in writing at any time prior to the date which
is ten (10) days following the expiration of the Offer, (i) to
purchase or otherwise acquire all of the Units or all or
substantially all of the assets of CPIF, directly or indirectly,
(ii) that is made or proposed to be made by means of a take-over
bid, amalgamation or plan of arrangement and available to all
holders of Units or a sale of assets, assuming that the net proceeds
of such sale are distributed to holders of Units, and (iii) which
the Board of Trustees, with the advice of its financial advisors,
reasonably believes is superior to the Offer, taking into account,
without limitation, the consideration being offered, the risk of
consummation and the conditions contained for the benefit of the
offeror of the Competing Transaction and is prepared to recommend to
the holders of Units;
(b) except as otherwise permitted in Section 3.6 or 5.1, and subject to
the Board of Trustees receiving the fairness opinion referred to in
clause 1.l(a)(v) above, through its Board of Trustees, unanimously
recommend that its unitholders tender their Units to the Offer and
contemporaneously with the mailing of the Offer Documents, the Board
of Trustees shall issue and file a trustees' circular, including
such recommendation, in all jurisdictions where the same is required
in accordance with Applicable Law; notwithstanding the foregoing,
CPIF's and CPOT's obligations to support the Offer will be subject
at all times (up to the date of mailing of the Offer with respect to
Section 3.1(b)(v)) to the following:
(i) receipt of all necessary material regulatory consents,
waivers, approvals and orders required to be obtained in
connection with the Offer;
(ii) receipt of all material third party consents required to be
obtained in connection with the Offer;
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(iii) no legal or regulatory action to prohibit the Offer;
(iv) no Material Adverse Change or event or circumstances likely
to lead to a Material Adverse Change with respect to APIF or
APT, in the opinion of CPIF, acting reasonably; and
(v) CPIF being satisfied, acting reasonably, with the terms of
the Contingency Value Receipt;
(c) except as otherwise contemplated herein, use its reasonable
commercial efforts to assist APT and APIF to successfully complete
the transactions contemplated by this Agreement, including making
and/or co-operating with APT and APIF in making all requisite
regulatory filings and giving evidence in relation to such filings
and in obtaining receipt of all necessary material regulatory
consents, waivers, approvals and orders required to be obtained in
connection with the Offer and in obtaining receipt of all material
third party consents required to be obtained in connection with the
Offer and in mailing or otherwise making the Offer to holders of
Units and to ensure that the conditions of the Offer are satisfied
and keep APT informed on a timely basis concerning the process;
(d) provide, to the extent practicable, a list of holders (including
name, address and number of securities held) of all Units prepared
by CPIF or the transfer agent of CPIF and a list of holders of
options, convertible debentures or other securities evidencing a
right to acquire Units, if any (with full particulars as to the
purchase, exercise or conversion price, vesting and expiry date)
prepared by CPIF (as well as a security position listing from each
depositary, including The Canadian Depository for Securities
Limited) and deliver these lists to APT within two business days
after execution of this Agreement and obtain and deliver to APT
thereafter on demand supplemental lists setting out any changes
thereto, all such deliveries to be both in printed form and, if
available, in computer-readable format; and
(e) subject to the provisions of Section 3.6, promptly notify APT and
APIF of any material discussions with, or reports received from, any
financial analysts or holders of Units and members of the press
related to the Offer.
3.2 ONGOING ACCESS TO INFORMATION.
(a) Notwithstanding any pre-agreement investigation of CPIF conducted by
or on behalf of APT and APIF, CPIF shall give APT and APIF and their
authorized agents reasonable ongoing access during the term of this
Agreement, upon reasonable notice to CPIF, to all of CPIF's and its
subsidiaries' and affiliated entities' personnel, assets,
properties, books, records, agreements and commitments and shall
reasonably co-operate with APT and APIF and any such authorized
persons in their review and furnish such persons with all
information with respect to CPIF and its subsidiaries and affiliated
entities and their ongoing operations and activities as APT and/or
APIF or any person authorized by them may request, acting
reasonably, including, for
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greater certainty, information concerning outstanding payables and
liabilities (whether actual or contingent).
(b) APT and APIF agree that any information (the "Information") obtained
by them under Sections 3.1(a) and 3.2(a) or pursuant to the terms
of the APMI Confidentiality Agreement will not be used by them for
any purpose other than making and completing the Offer and that the
Information will be kept confidential by APT and APIF in accordance
with the terms of the APMI Confidentiality Agreement.
3.3 TAKE-OVER BID CIRCULAR AND TRUSTEES' CIRCULAR. APT shall provide CPIF with
a draft copy of the take-over bid circular relating to the Offer prior to the
mailing thereof and shall provide CPIF with a reasonable opportunity to review
and provide comments thereon. CPIF shall provide APT with a draft copy of any
trustees' circular to be issued prior to the mailing thereof and shall provide
APT with a reasonable opportunity to review and provide comments thereon.
3.4 OPERATION OF BUSINESS. During the period commencing on the date hereof and
continuing until the Effective Date, CPIF agrees (except as expressly
contemplated by this Agreement, or to the extent that APT or APIF shall
otherwise consent, which consent shall not be unreasonably withheld) that it
shall continue to conduct CPIF's business and those of its subsidiaries and
affiliated entities in the ordinary course consistent with past practice and
that it shall:
(a) not declare or pay any dividend or declare, authorize or make any
distribution of, on or in respect of any of its securities whether
payable in cash, securities or otherwise except distributions to
holders of Units (up to a maximum of $0.058334 per calendar month)
or interest paid on the Debentures, both as approved by the Board of
Trustees or CPLMP (as defined below) and in the normal course
consistent with past practice;
(b) with the exception of the redemption of Units for cash made in
accordance with the provisions of the CPIF trust declaration
(provided that the trustees of CPIF shall not have waived any
limitation on the monthly amount of such redemptions), not issue or
purchase or otherwise acquire any Units or Debentures or securities
convertible into, or rights, warrants or options to acquire, any
such Units or Debentures or other convertible or exchangeable
securities or attempt to induce any person to purchase such security
or right, other than pursuant to the Offer or as permitted in this
Agreement or make any other change in its capitalization;
(c) not grant to any trustee, director, officer or employee of CPIF or
any of its subsidiaries or any of its affiliated entities any
increase in compensation or in severance or termination pay or enter
into any employment or other agreement with any trustee, director,
officer or employee of CPIF or any subsidiary or affiliated entity;
(d) not amend its trust indenture in respect of the Units or the trust
indenture in respect of the Debentures;
(e) except as expressly contemplated by this Agreement, not enter into
any transaction or perform any act which might (i) interfere with or
delay the take up and payment for Units deposited under the Offer or
the completion of the Offer, or (ii) adversely
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affect CPIF's or CPOT's ability to perform its covenants and
agreements under this Agreement;
(f) not, nor permit any of its subsidiaries or affiliated entities to,
make any investments in other companies or entities or grant any
loans other than intercompany loans;
(g) without providing APT with prior written notification, not, nor
permit any of its subsidiaries or affiliated entities to:
(i) incur any additional indebtedness or other obligation nor
enter into any agreement, which has a monetary impact of
more than $5,000,000;
(ii) sell, lease or otherwise dispose of (other than in the
normal and ordinary course) any material portion of the
assets or business comprising CPIF, its subsidiaries and
affiliated entities; and
(iii) enter into any material commitment, contract, agreement or
transaction (including any sale of assets) or amend any
existing material commitment, contract, agreement or
transaction.
For clarification, other than its obligation to provide
notification, CPIF shall not require any approval from APT and/or
APIF to undertake any of the activities set out in Section 3.4(g)
and the provision of such notice shall be without prejudice to APT's
right to assert the occurrence of a Material Adverse Change with
respect to CPIF pursuant to the conditions set out in Schedule "A"
hereto.
The management agreement between Clean Power Inc. ("CPI") and CPOT dated October
31, 2001 (as amended) (the "Management Agreement") and the administration
agreement between CPI and CPIF dated October 31, 2001 (as amended) (the
"Administration Agreement") will be terminated upon the Effective Date in
accordance with the letter agreement dated June 7, 2006 (the "Letter Agreement")
between Clean Power Management LP ("CPMLP"), CPI and CPOT.
Prior to the expiry of the Offer, CPIF shall obtain undated resignations (which
will become effective only if APT acquires a majority of the Units outstanding
on the Effective Date) from all of the trustees of CPOT, the officers of CPIF,
if any, and all of the officers, directors and employees of CPMLP, CPI or any of
their affiliates who hold management positions with CPIF, CPOT or any of its
subsidiaries or investor entities that they hold by reason of their affiliation
with CPOT (other than representatives of CPI and its affiliates who are
directors and officers of Chapais Electrique Lirnitee) and CPIF shall obtain
releases from CPI and CPMLP with respect to any claims they may have against
CPIF and its subsidiaries and affiliated entities (other than (i) with respect
to existing indemnification obligations under agreements between such parties or
such parties and others and (ii) in respect of amounts payable to CPMLP pursuant
to either the Management Agreement or the Administration Agreement on account of
expenses paid on behalf of CPOT or CPIF or for services provided to CPOT or CPIF
in accordance with the terms thereof since the date of the last quarterly
invoice in accordance with past practice). On or immediately following the
Effective Date, the parties acknowledge and agree that the Board of Trustees
will be reconstituted to consist of nominees of APT, which shall be implemented
by the resignation of each of the trustees who is not a nominee of APT and the
appointment by the remaining quorum of trustees of an equal number of
- 12 -
nominees of APT to fill the vacancies so created (and effected without the
necessity for calling a unitholders' meeting). The foregoing is not intended to
deprive CPI, CPMLP or Clean Power Management GP Inc. or any of their respective
affiliates of the benefits of the Operating and Management Agreement between
Probyn Whitecourt Management Inc. and Whitecourt Power Limited Partnership dated
November 14, 2001 and the Operating, Management and Maintenance Agreement
between Probyn Power Services Inc. and Chapais Energie Societe en Commandite
dated March 1, 2001 and as renewed effective November 30, 2005.
Pursuant to Section 7 of the Letter Agreement, APT confirms that it is prepared
to consent to the payment referred to in such section being structured as a
purchase by CPOT (or an affiliate of CPOT) of the outstanding limited
partnership and general partnership units of Clean Power Management LP and the
outstanding shares of Clean Power Management GP Inc. for the aggregate
consideration and payable as set forth therein.
3.5 COMPLIANCE WITH LAW. In connection with the Offer, CPIF shall ensure
compliance by CPIF and its subsidiaries and affiliated entities with all
Applicable Law, including, without limitation, the timely filing of any press
release, material change report or other document with securities regulatory
authorities in accordance with Applicable Law.
3.6 COMPETING TRANSACTION. Subject to APT failing to exercise its rights
pursuant to Section 3.7 hereof, nothing shall prevent the Board of Trustees from
withdrawing, modifying or changing any recommendation regarding the Offer in
response to a bona fide Competing Transaction. Subject to Section 3.7, CPIF will
be under no obligation to notify APT of the receipt of any proposal or offer, or
any inquiry or contact with any person with respect thereto, which has been or
is made relating to the acquisition of Units or assets of CPIF, including a
proposal or offer in respect of which CPIF has entered into a Confidentiality
Agreement nor to notify APT upon becoming aware of a proposal which CPIF
reasonably believes if made in writing would be a Competing Transaction as
defined herein.
3.7 NOTIFICATION OF COMPETING TRANSACTION. Until the expiry of the Offer, CPIF
shall inform APT forthwith upon the Board of Trustees concluding that there is a
Competing Transaction that it is prepared to accept but shall not withdraw its
recommendation to support the Offer unless it has provided APT with notice in
writing that there is a Competing Transaction and APT, within two business days
after receipt of the notice contemplated above, does not publicly announce an
intention to amend the terms of the Offer and APT does not amend the Offer
promptly thereafter so that the Board of Trustees, with the advice of its
financial advisors, reasonably believes the amended Offer is at least equal to
the Competing Transaction, provided that, if more than one Competing Transaction
exists, the provisions of this Section 3.7 shall only apply to and be in respect
of the Competing Transaction that the Board of Trustees concludes is the
superior transaction and has so notified APT.
3.8 NO OUTSTANDING OPTIONS, ETC. Except for the (i) Debentures issued by CPIF
pursuant to the trust indenture dated as of June 29, 2004 between CPIF and
Computershare Trust Company of Canada and (ii) the Class B units of Clean Power
Limited Partnership and the one Special Voting Share of Whitecourt Power Corp.,
in each case, held by CEEC, CPIF represents and warrants to APT and APIF that
there are no outstanding options, warrants or other securities representing an
equity interest in CPIF or any of its subsidiaries or affiliated entities other
than the outstanding Units and
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that there are no outstanding securities convertible into or exchangeable for
Units of CPIF or an equity interest in any subsidiary or affiliated entity of
CPIF.
3.9 PAYMENTS TO APIF.
(a) COST REIMBURSEMENT AND FEE. If (i), except as permitted in Section
3.1(b) or 5.1, the Board of Trustees withdraws its support or
otherwise changes its recommendation to unitholders to accept the
Offer, provided that such withdrawal or change is not caused by
APT's failure to perform, in any material respect, its obligations
under this Agreement (it being acknowledged that APT is under no
obligation to increase the consideration per Unit under Section
3.7); (ii) CPIF or CPOT breaches this Agreement in any material
respect or any of the representations and warranties of CPIF and/or
CPOT set out in this Agreement were not true and correct in all
material respects as at the date of this Agreement or become untrue
or incorrect at any time prior to the Effective Date; (iii) if a
majority of the holders of Units do not accept the Offer; or (iv) a
Competing Transaction is completed within six months of the date
hereof, then, in recognition of the efforts of APT, CPIF will
reimburse APT in an amount equal to the actual out-of-pocket costs
and expenses incurred by APT, APMI and/or their affiliated entities
in connection with making the Offer up to $850,000 (the "Cost
Reimbursement") and, in the event Sections 3.9(a)(i), (ii) or (iv)
are applicable, also pay APT a fee equal to $1,750,000 (the "Fee").
(b) PAYMENT OF AMOUNTS.
The Cost Reimbursement and Fee set out in Section 3.9(a) above shall
be payable by CPIF as follows:
(i) the Cost Reimbursement will be paid within 10 business days
after the condition leading to the obligation for payment
pursuant to Section 3.9(a) comes into effect; and
(ii) the Fee will be paid upon the date which is:
(A) the earlier of July 31,2007 and, in the event Sections
3.9(a)(i) or (ii) are applicable, 10 business days
after the condition leading to the obligation for
payment pursuant to Section 3.9(a) came into effect;
or
(B) in the case of a Competing Transaction, the date of
completion of such Competing Transaction.
ARTICLE 4
COVENANTS OF APT AND APIF
4.1 GENERAL. APT hereby covenants to use all reasonable commercial efforts to
successfully complete the transactions contemplated by this Agreement, including
making and/or cooperating with CPIF in making all requisite regulatory filings,
including under the Competition Act (Canada),
- 14 -
and giving evidence in relation to such filings and in obtaining receipt of all
necessary material regulatory consents, waivers, approvals and orders required
to be obtained in connection with the Offer and in obtaining receipt of all
material third party consents required to be obtained in connection with the
Offer, and in mailing or otherwise making the Offer to holders of Units and to
ensure that the conditions of the Offer are satisfied and to keep CPIF informed
on a timely basis concerning the process.
4.2 MODIFICATION OF OFFER. APT agrees that it will not amend, modify or change
the Offer without the prior written consent of CPIF, other than to increase the
consideration under the Offer, extend the expiry date of the Offer, waive any
conditions to the Offer, comply with the legal obligations of APT or make such
other amendments, modifications or changes as will not be adverse to holders of
Units. APT shall provide a draft of any proposed amendment, modification or
change to the Offer and all instruments relating to the Contingency Value
Receipt to CPIF and shall consult with CPIF with respect to the terms and
conditions of such proposed amendment, modification or change of the Offer and
instruments relating to the Contingency Value Receipt.
4.3 DEBENTURES. If APT takes up Units under the Offer and the "Change of
Control" provisions under the trust indenture made as of June 29, 2004 between
CPIF and Computershare Trust Company of Canada apply, APIF covenants and agrees
to provide CPIF with sufficient funds to enable CPIF to purchase all Debentures
put to CPIF which are payable in cash in accordance with the terms of such trust
indenture.
4.4 DIRECTORS' AND OFFICERS' INSURANCE. If APT takes up and pays for Units
pursuant to the Offer, APT will cause CPIF to provide ongoing trailer or
discovery period insurance coverage for the current and past officers of CPIF
and trustees and officers of CPOT and directors and officers of Clean Power GP
Inc. and the directors and officers of subsidiaries and affiliated entities on
terms substantially equivalent to the terms of the currently applicable
directors' and officers' LIABILITY insurance coverage for a period of six years
after the Effective Date.
4.5 COMPLIANCE WITH LAW. In connection with the Offer, APT shall ensure
compliance with all Applicable Law. including, without limitation, the timely
filing of any required documents with securities regulatory authorities in
accordance with Applicable Law.
4.6 POST-TRANSACTION COVENANT. If APT takes up and pays for Units pursuant to
the Offer, APT will use commercially reasonable efforts to acquire the balance
of the Units that are not so tendered as soon as practicable after completion of
the Offer using the compulsory acquisition provisions under the CPIF trust
indenture governing the Units, if permitted to do so thereunder, and if APT
determines that it is unable to use such compulsory acquisition provisions, to
propose some other reorganization or combination of CPIF with APT or a
subsidiary or related entity of APT for a consideration per Unit of not less
than the Offer Price, if possible to do so under and subject to compliance with,
all Applicable Laws, rules and regulations.
4.7 JOINT AND SEVERAL LIABILITY OF APIF. APIF hereby agrees that it shall be
jointly and severally liable with APT in respect of the due and timely
performance by APT of its obligations hereunder. For greater certainty, APIF
acknowledges that it is primarily responsible for the performance of the
obligations of APT under this Agreement and that APIF is legally bound by the
terms of this Agreement in respect of its relationship with APT and
notwithstanding whether APT,
- 15 -
for whatever reason, is not able to fulfil its obligations under this Agreement.
APIF will provide APT with the number of units of APIF necessary to consummate
the Offer.
ARTICLE 5
TERMINATION
5.1 TERMINATION BY CPIF. CPIF, when not in default in the performance of its
obligations under this Agreement may, without prejudice to any other rights,
terminate this Agreement by notice to APT and APIF if:
(a) the Offer has not been made on or before the time provided for in
Section 1.1 of this Agreement:
(b) subject to Section 4.2, the Offer does not substantially conform or
is modified in a manner not to conform with the description thereof
in this Agreement;
(c) Units validly deposited under the Offer and not withdrawn have not,
for any reason whatsoever, been taken up and paid for on or before
the expiry of ten days after the expiry of the Offer;
(d) either of APT or APIF breaches this Agreement in any material
respect;
(e) any of the representations and warranties of APT and/or APIF set out
in this Agreement were not true and correct in all material respects
as at the date of this Agreement or become untrue or incorrect in
any material respect at any time prior to the Effective Date;
(f) a court of competent jurisdiction or a governmental, regulatory or
administrative agency or commission shall have issued an order,
decree or ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and non-appealable, provided
that CPIF shall have, upon becoming aware of such order, decree,
ruling or action, used all commercially reasonable efforts to remove
such order, decree or ruling or cease such action;
(g) the Cost Reimbursement and Fee contemplated in Section 3.9 shall
have been paid by CPIF to APT in accordance with the terms thereof;
(h) APT has been notified by CPIF of a Competing Transaction in
accordance with Section 3.7 and APT does not amend the Offer as
described in Section 3.7 within the time periods specified therein;
or
(i) Units have not been taken up and paid for under the Offer on or
before 5:00 p.m. (Toronto time) on May 14, 2007.
5.2 TERMINATION BY APT. APT, when not in default in the performance of its
obligations under this Agreement may, without prejudice to any other rights,
terminate this Agreement by notice to CPIF if:
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(a) the conditions precedent contained in Section 1.1(a) of this
Agreement are not satisfied or waived by APT at the time of the
making of the Offer or the conditions precedent contained in
Schedule "A" are not satisfied or waived by APT on or prior to the
expiry of the Offer;
(b) a court of competent jurisdiction or a governmental, regulatory or
administrative agency or commission shall have issued an order,
decree or ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting any of the transactions
contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and non-appealable, provided
that APT shall have, upon becoming aware of such order, decree,
ruling or action, used all commercially reasonable efforts to remove
such order, decree or ruling or cease such action;
(c) any of the representations and warranties of CPOT and/or CPIF set
out in this Agreement were not true and correct in all material
respects as at the date of this Agreement or become untrue or
incorrect in any material respect at any time prior to the Effective
Date;
(d) the circumstances entitling APT to payment under Section 3.9 are in
effect; or
(e) either of CPIF or CPOT breaches this Agreement in any material
respect.
5.3 MUTUAL TERMINATION. This Agreement may also be terminated by mutual
written consent of APT and CPIF.
5.4 EFFECT OF TERMINATION. In the event of the termination of this Agreement
as provided in this Article 5, this Agreement shall forthwith have no further
force or effect and there shall be no liability on the part of APT, APIF, CPIF
or CPOT hereunder except as set forth in Sections 3.2(b), 3.9 and 6.1 (provided
that in the case of Section 3.9, the right of payment in Section 3.9(a)(i) or
3.9(a)(ii) arose prior to the termination of this Agreement) and this Section
5.4, which provisions shall survive the termination of this Agreement.
ARTICLE 6
GENERAL
6.1 DISCLOSURE. Except as required by Applicable Law, or as required by any
competent governmental, judicial or other authority, or in accordance with the
requirements of any stock exchange, neither APIF nor CPIF shall make any public
announcement or statement with respect to this Agreement without the approval of
CPIF or APIF, as the case may be, which approval shall not be unreasonably
withheld or delayed. Each party shall provide the other with a copy of its
proposed disclosure prior to the release thereof. Moreover, the parties agree to
use their reasonable commercial efforts to consult with each other prior to
issuing each public announcement or statement with respect to this Agreement.
The parties agree that the initial press release announcing the entering into of
this Agreement shall be substantially in the form set out in Schedule "C"
annexed hereto.
6.2 ASSIGNMENT. This Agreement shall not be assignable by any party hereto
without the consent of the other parties, such consent not to be unreasonably
withheld or delayed.
-17-
6.3 TIME. Time shall be of the essence of this Agreement.
6.4 CURRENCY. All sums of money referred to in this Agreement shall mean and
refer to Canadian funds.
6.5 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Ontario and the federal laws of
Canada applicable therein.
6.6 ENTIRE AGREEMENT. This Agreement and the APMI Confidentiality Agreement
constitute the entire agreement and understanding between and among the parties
hereto with respect to the subject matter hereof and thereof and supersede any
prior agreement, representation or understanding with respect thereto.
6.7 AMENDMENTS. This Agreement may not be modified, amended, altered or
supplemented except upon the execution and delivery of a written agreement
executed by all of the parties hereto; provided, however, that APT may in its
sole discretion waive any condition herein which is solely for its benefit.
6.8 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of the parties
recognizes and acknowledges that this Agreement is an integral part of the
transactions contemplated in the Offer, that APT would not make the Offer, and
that CPIF would not agree to facilitate the Offer, unless this Agreement was
executed, and accordingly acknowledges and agrees that a breach by a party of
any covenants or other commitments contained in this Agreement will cause each
of the other parties to sustain injury for which it would not have an adequate
remedy at law for money damages. Therefore, each of the parties agrees that in
the event of any such breach, the aggrieved party shall be entitled to the
remedy of specific performance of such covenants or commitments and preliminary
and permanent injunctive and other equitable relief, in addition to any other
remedy to which it may be entitled, at law or in equity, and the parties further
agree to waive any requirement for the securing or posting of any bond in
connection with the obtaining of any such injunctive or other equitable relief.
6.9 NOTICES. Any notice, request, consent, agreement or approval which may or
is required to be given pursuant to this Agreement shall be in writing and shall
be sufficiently given or made if delivered or faxed, in the case of:
(a) APT or APIF, addressed as follows:
Algonquin Power Income Fund
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxx Xxxxxxxxx
Telecopier No.: (000) 000-0000
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with a copy to:
Blake, Xxxxxxx & Xxxxxxx LLP
Suite 2300
000 Xxx Xxxxxx
Xxxxxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: R. Xxxxxxx X. Xxxxxx
Telecopier No.: (000) 000-0000
(b) CPIF or CPOT, addressed as follows:
Clean Power Income Fund
00 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: H. Xxxxx Xxxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
Clean Power Management LP, by its general partner
Clean Power GP Inc.
00 Xxxxx Xxxxxx,
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
with a copy to:
XxXxxxxx Xxxxxxxx XXX
Xxxxx 0000
Xxxxxxx Xxxxxxxx Bank Tower
Toronto Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
- 19 -
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this section. The date of receipt of any
such notice, request, consent, agreement or approval shall be deemed to be the
date of delivery or telecopy (if during normal business hours or, if not, the
next business day).
6.10 EXPENSES. Except as expressly contemplated herein to the contrary, each of
the parties shall pay its legal, financial advisory and accounting costs and
expenses incurred in connection with the preparation, execution and delivery of
this Agreement and all documents and instruments executed or prepared pursuant
hereto and any other costs and expenses whatsoever and howsoever incurred.
6.11 BUSINESS DAY. A business day for the purpose of this Agreement shall mean
any day on which banks in the City of Toronto, Ontario are open for business. If
the last day of a period of days is not a business day, the period shall be
extended to the next following day which is a business day.
6.12 FURTHER ASSURANCES. The parties hereto shall take all steps as may be
required or desirable to consummate the Offer and each party shall provide such
further documents or instruments required by any other party as may be
reasonably necessary or desirable to give effect to the purpose of this
Agreement and to carry out its provisions, whether before or after the Effective
Date.
6.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts
which together shall be deemed to constitute one valid and binding agreement and
delivery of the counterparts may be effected by means of a telecopied
transmission.
6.14 LIABILITY OF TRUSTEES AND MANAGER OF CPOT. The parties hereto acknowledge
that the trustees and officers of CPOT are entering into this Agreement solely
in their capacity as trustees or officers of CPOT and the obligations of CPOT
hereunder shall not be personally binding upon any of the trustees, officers or
manager of CPOT, any unitholder of CPOT or any annuitant under a plan of which a
unitholder of CPOT is a trustee or carrier and that any recourse against the
trustees, officers or manager of CPOT or any unitholder of CPOT or such an
annuitant in any manner in respect of any indebtedness, liability or obligation
of CPOT arising hereunder or arising in connection herewith or from the matters
to which this Agreement relates, if any, including without limitation claims
based on negligence or otherwise tortious behaviour, shall be limited to, and
satisfied only out of, the Trust Property as defined in the Trust Indenture of
CPOT dated as of October 31, 2001, as amended.
6.15 LIABILITY OF CPMLP AND UNITHOLDERS OF CPIF. The parties hereto acknowledge
that CPMLP is entering into this Agreement solely in its capacity as agent on
behalf of CPIF and the obligations of CPIF hereunder shall not be personally
binding upon the trustee of CPIF, CPMLP, Clean Power GP Inc. or its officers,
any of the unitholders of CPIF or any annuitant under a plan of which such a
unitholder is a trustee or carrier and that any recourse against CPIF, the
trustee of CPIF, CPMLP, Clean Power GP Inc. or it officers, any unitholder of
CPIF or such an annuitant in any manner in respect any indebtedness, obligation
or liability of CPIF arising in connection herewith or from the matters to which
this Agreement relates, if any, including without limitation claims based on
negligence or otherwise tortious behaviour, shall be limited to, and satisfied
only out of, the Trust Property as defined in the Trust Indenture of the Fund
dated as of October 31,2001, as amended.
- 20 -
6.16 LIABILITY OF TRUSTEES AND UNITHOLDERS OF APIF. The parties hereto
acknowledge that APMI and an officer of APMI are entering into this Agreement
solely in its capacity as the manager of APIF and solely in his capacity as an
officer of APMI in its capacity as the manager of APIF and not in their personal
capacity and any recourse against APIF, the trustees of APIF, APMI, the officers
of APMI or any unitholders of APIF in any manner in respect of any indebtedness,
obligation or liability of APIF arising hereunder, arising in connection
herewith or from the matters to which this Agreement relates, if any, including,
without limitation, claims based on negligence or otherwise tortious behaviour,
shall be limited to, and be satisfied only out of, the assets of APIF.
6.17 LIABILITY OF TRUSTEE OF APT. The parties hereto acknowledge that APMI is,
and an officer of APMI are, entering into this Agreement solely in its capacity
as the manager of APT and not in its personal capacity and solely in his
capacity as an officer of APMI in its capacity as the manager of APT and not in
his personal capacity and any recourse against APT, the trustee of APT, APMI or
the officers of APMI in any manner in respect of any indebtedness, obligation or
liability of APT arising hereunder, arising in connection herewith or from the
matters to which this Agreement relates, if any, including, without limitation,
claims based on negligence or otherwise tortious behaviour, shall be limited to,
and be satisfied only out of, the assets of APT.
* * * * *
Yours truly,
ALGONQUIN POWER INCOME FUND, by ALGONQUIN POWER TRUST,
its manager, by its manager,
ALGONQUIN POWER MANAGEMENT ALGONQUIN POWER MANAGEMENT
INC. INC.
By: (signed) "Xxx Xxxxxxxxx" By: (signed) "Xxx Xxxxxxxxx"
------------------------------------ ---------------------------------
Name: Xxx Xxxxxxxxx Name: Xxx Xxxxxxxxx
Title: Authorized Signing Officer Title: Authorized Signing Officer
- 21 -
Accepted and agreed as of this 25th day of February, 2007.
CLEAN POWER INCOME FUND, by its CLEAN POWER OPERATING TRUST
Administrator
CLEAN POWER MANAGEMENT LP,
by its general partner By: (signed) "H. Xxxxx Xxxxxxx"
CLEAN POWER MANAGEMENT GP INC. ---------------------------------
Name: H. Xxxxx Xxxxxxx
Title: Chairman
By: (signed) "A. Xxxxxxx Xxxxxx"
------------------------------------
Name: A. Xxxxxxx Xxxxxx By: (signed) "Xxx X. Xxxxxxx"
Title: President ---------------------------------
Name: Xxx X. Xxxxxxx
Title: Chief Financial Officer
SCHEDULE "A"
CONDITIONS OF THE OFFER
APT reserves the right to withdraw or terminate the Offer and not
take up or pay for, or may extend the period of time during which the Offer is
open and postpone taking up and paying for, any Units deposited under the Offer,
if any of the following conditions have not been satisfied or waived at or prior
to the expiry time specified therein:
(a) greater than 66 2/3 % of the Units that are issued and outstanding
on the expiry of the Offer, other than Units already held at the
date of the Offer by or on behalf of APT or its affiliates, shall be
validly deposited and not withdrawn under the Offer, determined as
at the termination date of the Offer;
(b) all requisite regulatory and third party consents, waivers,
approvals and orders, including without limitation, those of any
securities regulatory authority, shall have been obtained on terms
satisfactory to APT, acting reasonably, except those which, if not
obtained, would not have a material adverse effect: (i) upon CPIF
and its subsidiaries and affiliated entities taken as a whole which,
if the Offer were consummated, would be materially adverse, in the
opinion of APT, acting reasonably, to APIF as the purchaser; or (ii)
upon APT's ability to own or exercise full rights of ownership with
respect to the Units;
(c) no action, suit or proceeding shall have been threatened or taken
before or by any court or governmental agency or other regulatory
authority or by any other person and no law, regulation or policy
shall have been proposed, enacted, promulgated or applied (i) to
cease trade, enjoin, prohibit or impose material limitations or
conditions on the Offer or the purchase by, or the sale to, APT of
the Units or the right of APT to own or exercise full rights of
ownership of the Units, (ii) which, if the Offer were consummated,
in the opinion of APT, acting reasonably, would materially and
adversely affect CPIF and its subsidiaries and affiliated entities
taken as a whole or (iii) which, if the Offer were consummated,
would, in the opinion of APT, acting reasonably, materially and
adversely affect APT's ability to effect a compulsory acquisition of
the remainder of the Units (assuming that at least 90% of the Units
that are issued and outstanding and Units issuable upon the
exchange, conversion or exercise of any outstanding Exchangeable
Securities (as defined in the trust indenture referred to below)
(other than Units and Units issuable upon the exchange, conversion
or exercise of Exchangeable Securities held at the date of the Offer
by or on behalf of APT or its associates or affiliates, as those
terms are defined in the Business Corporations Act (Ontario)) shall
have been validly deposited and not withdrawn under the Offer) on
the same terms as the Units acquired under the Offer pursuant to the
provisions of Section 3.26 of CPIF's trust indenture (the "Unit
Trust Indenture") dated October 31, 2001 between Computershare Trust
Company of Canada and Clean Power Inc. (a "Compulsory Acquisition")
or a subsequent going private transaction implemented by APT after
the Effective Date pursuant to which APT may seek to cause a special
meeting of unitholders of CPIF and APT or
- 2 -
affiliates of APT for the purposes of enabling APT to acquire all of
the Units not deposited under the Offer;
(d) there shall not have occurred (or, if there shall have previously
occurred, there shall not have been disclosed, generally or to
either APT or APIF or any of their affiliated entities in writing,
prior to the commencement of the Offer) any change (or any
condition, event or development involving a prospective change) in
or any effect, event or occurrence with respect to the business,
facilities, operations, assets, obligations, capitalization,
condition (financial or otherwise), results of operations,
prospects, licenses, permits, rights, privileges or liabilities,
whether contractual or otherwise, of CPIF and its subsidiaries and
affiliated entities taken as a whole which, if the Offer were
consummated, would, in the opinion of APT, acting reasonably, be
materially adverse to APIF as the purchaser (which, for greater
certainty, shall not include changes in the market price for the
Units in and of themselves);
(e) there shall not have occurred, developed or come into effect or
existence any event, action, state, condition or financial
occurrence of national or international consequence or any law,
regulation, action, government regulation, inquiry or other
occurrence of any nature whatsoever (excluding the Tax Fairness Plan
dealing with income trusts and other flow-through entities released
by the Department of Finance (Canada) on October 31, 2006, the
Notice of Ways and Means Motion setting out a distribution tax to be
applied on certain distributions and allocations from publicly-
traded trusts and partnerships adopted by the House of Commons on
November 7, 2006, the guidelines on "normal growth" and other
matters distributed by the Department of Finance (Canada) on
December 15, 2006 and the Draft Legislative Proposals to Implement
the Distribution Tax on Income Funds and Partnerships released by
the Department of Finance (Canada) on December 21, 2006) which, in
the opinion of APT, acting reasonably, materially adversely affects,
or may materially adversely affect, the financial condition,
business, operations, assets, affairs or prospects of CPIF and its
subsidiaries or affiliated entities, taken as a whole or which, if
the Offer were consummated, in the opinion of APT, acting
reasonably, would be materially adverse to APIF as the purchaser
(which, for greater certainty, shall not include changes in the
market price for the Units in and of themselves);
(f) the aggregate amount of expenses or liabilities incurred which are
or will become payable after December 31, 2006 by CPOT, CPIF and
their affiliated entities related to or in connection with (i) the
sale process or transaction contemplated by the Offer or responding
to any Competing Transactions, (ii) terminating any employees,
employment agreements or consulting contracts associated with
personnel located at CPIF's head office, (iii) retention bonuses
payable following closing of the transaction contemplated by the
Offer (iv) termination of office or equipment leases in respect of
CPIF's head office, and (v) amounts owing pursuant to the letter
agreement dated June 7, 2006 between Clean Power Management LP,
Clean Power Inc., CPOT and the independent trustees of CPOT has not,
in the aggregate, exceeded $5,475,000, as set forth in a certificate
of the Chief Financial Officer of CPIF delivered to APT two business
days prior to the expiry of the Offer;
- 3 -
(g) CPIF shall not have breached in any material respect any of its
covenants set out in the Support Agreement and none of the
representations and warranties of CPIF and/or CPOT set out in the
Support Agreement shall become untrue or incorrect in any material
respect, at any time prior to the Effective Date; and
(h) redemptions of Units pursuant to Article 6 of the Unit Trust
Indenture from the date the Offer is publicly announced to the
Effective Date do not exceed $1,000,000 in the aggregate.
The foregoing conditions are for the exclusive benefit of APT. APT
may assert any of the foregoing conditions at any time, regardless of the
circumstances giving rise to such assertion (including any action or inaction by
APT or any of its affiliates). APT may waive any of the foregoing conditions in
whole or in part at any time and from time to time, both before and after the
Effective Date, without prejudice to any other rights which APT may have. The
failure by APT at any time to exercise any of the foregoing rights shall not be
deemed a waiver of any such right and each such right shall be deemed an ongoing
right which may be asserted at any time and from time to time.
Any waiver of a condition or the withdrawal of the Offer will be
effective upon written notice or other communication confirmed in writing by APT
to that effect to a person selected by APT to act as depositary under the Offer
(the "Depositary") at its principal office in Xxxxxxx, Xxxxxxx. APT, forthwith
after giving any such notice, shall make a public announcement of such waiver or
withdrawal, will cause the Depositary as soon as practicable thereafter to
notify the unitholders of CPIF thereof and will provide a copy of the
aforementioned notice to the Toronto Stock Exchange. If the Offer is withdrawn,
APT shall not be obligated to take up or pay for any Units deposited under the
Offer and the Depositary will promptly return the certificates representing
deposited Units and related documents to the parties by whom they were
deposited.
SCHEDULE "B"
CONTINGENT VALUE RECEIPT AGREEMENT TERM SHEET
1. Definitions:
(a) "GRS FUNDS" means the US $7.593 million escrow account established
on September 15, 2006 by or on behalf of Clean Power Income Fund
("CPIF") on the sale of Gas Recovery Systems, LLC ("GRS"), plus the
amount of any refunds from ComEd which are paid to CPIF or PEET U.S.
Holdings Inc. ("PEET"), after deduction of all reasonable costs and
expenses incurred by APIF, CPIF or PEET, as seller, in dealing with
such escrow account and matters after deducting any amounts paid by
CPOT or PEET to the GRS Purchaser (as defined below) under the
membership interest purchase agreement;
(b) "GRS RELEASE DATE" means the latest date that claims may be made by
Fortistar Renewables Group LLC (the "GRS Purchaser") against the
escrow account;
(c) "WPPI" means the Wind Power Production Incentive program and
includes any similar or replacement program including the
replacement program contemplated by the Discussion Paper on the
ecoENERGY for Renewable Power Program dated January 2007;
(d) "WPPI FUNDS" means an amount equal to $3.436 million, representing
the net present value (using a discount rate of 8%) of a $2/MW-hr
increase for 10 years in WPPI, after deduction of all reasonable
costs and expenses incurred by or on behalf of APIF, the Holders and
CPIF in connection with obtaining such increase; provided that if
the increase in incentives is less than $2/MW hour or will be paid
for a period of less than 10 years, then the above amount will be
reduced pro rata; and further provided that the WPPI Date has
occurred within two years of the date units of CPIF are first taken
up and paid for under the offer;
(e) "WPPI DATE" means the date of receipt by CPIF of the first cheque
from NRCan respecting a to-be-agreed-upon increase in the WPPI
payments regarding the Erie Shores Wind Farm, which amount is paid
by NRCan pursuant to an unconditional binding written agreement
between CPIF and NRCan. It is understood that: (i) "NRCan" includes
any federal department or agency that administers WPPI payments and
(ii) that "an unconditional written binding agreement" includes any
legally binding obligation on NRCan to make the increased WPPI
payments; and
(f) "NET GRS CLAIMS" means the amount of any claims made by the GRS
Purchaser, as purchaser under the membership interest purchase
agreement, including, for greater certainty, any claims pursuant to
indemnification obligations with respect to the lawsuit by Hingham
Municipal Lighting Plant against GRS and others, after deduction of:
(i) 20% of the GRS Funds following the GRS Release Date; and
(ii) 20% of the WPPI Funds following the WPPI Date.
2. If the Offer is successful, Algonquin Power Trust ("APT") will cause
Algonquin Power Income Fund ("APIF") to issue contingent value
receipts ("CVRs") to all holders of CPIF units whose units are taken
up by APT under the Offer or whose units are acquired by or on
behalf of APT pursuant to a compulsory acquisition transaction or a
subsequent acquisition transaction completed within 120 days of the
Effective Date ("Holders").
3. APT shall arrange for APIF to contribute the following amounts (the
"Contingency Funds") to an account for payment to the Holders in
accordance with the terms set out below:
(a) 80% of the GRS Funds less the Net GRS Claims forthwith
following the GRS Release Date; and
(b) 80% of the WPPI Funds forthwith following the WPPI Date.
4. APIF and CPIF shall not be required to participate in the
preparation of any submissions respecting obtaining increased WPPI
incentive payments and shall not be required to assume any
additional obligations or liabilities in respect of obtaining same
nor consent to any amendments to the existing WPPI agreement (other
than in respect of increasing the amount of incentive payments as
contemplated above).
5. Any funds standing to the balance of the Contingency Funds shall be
distributed, pro-rata, to each beneficial Holder of record within
thirty (30) days of the occurrence of the GRS Release Date or WPPI
Date, respectively, after deduction of the reasonable costs incurred
by APIF in administering the register of Holders provided that, if
any claims have been made by the GRS Purchaser but not settled, a
reserve can be maintained in respect of such claims until settled.
6. CVRs will not be transferable (except upon death or other operation
of law).
7. APIF will administer the register of Holders of CVRs.
8. APIF/CPIF shall not be required to fund any of the costs or expenses
of obtaining any increase in the WIPPI incentive payments; provided
that if WIPPI Funds are payable then APIF shall pay to such parties
prosecuting same their reasonable costs and expenses incurred
relating thereto out of such WPPI Funds.
SCHEDULE "C"
FORM OF PRESS RELEASE
PRESS RELEASE
FOR IMMEDIATE RELEASE
ALGONQUIN POWER INCOME FUND PROPOSES TO ACQUIRE CLEAN POWER INCOME FUND
TORONTO, February o, 2007 - Algonquin Power Income Fund ("APIF") and Clean Power
Income Fund ("CPIF") announced today that they have entered into a support
agreement in respect of an offer (the "Offer") to be made by Algonquin Power
Trust ("APT"), the sole beneficiary of which is APIF, to acquire all of the
outstanding trust units of CPIF. The Offer values each unit of CPIF at $o per
unit, based on the last 20-day volume weighted average price of APIF units and
including the full value of the contingency value receipt ("CVR") described
below. The entering into of the support agreement has been approved by the
Boards of Trustees of both APIF and Clean Power Operating Trust ("CPOT"), the
sole beneficiary of which is CPIF.
The Offer will be made by way of a take-over bid with consideration equal to (a)
the issuance of o trust units of APIF for each CPIF trust unit (which represents
an equivalent value of $o based on the last 20-day volume weighted average price
of APIF units of $o) plus (b) a CVR, which receipt will entitle the holder
thereof, subject to certain conditions, to a payment in cash of an amount up to
approximately $o per CPIF trust unit. The CVRs represent the right to receive
80% of the balance (after deduction of all claims and costs) of both the
US$7.593 million reserve fund established by CPIF for claims made in connection
with the sale of Gas Recovery Systems, LLC and $3.436 million in the event Erie
Shores Wind Farm qualifies for Wind Power Production Incentive of $10/MwH.
The Board of Trustees of CPOT has, upon the recommendation from its Special
Committee and after consultation with its financial and legal advisors,
determined that the Offer is in the best interests of CPIF unitholders and has
agreed to support the Offer and recommend that CPIF unitholders accept the
Offer.
"The acquisition of CPIF is highly complementary to APIF and represents an
important step in the execution of APIF's continuing strategy to acquire high
quality, long-lived assets that generate stable and sustainable cash flows. The
CPIF assets are well positioned to complement APIF's existing technologies and
to leverage APIF's technical and operating expertise", commented Xxx Xxxxxxxxx,
a senior manager of APIF. "The acquisition enables APIF to minimize the impact
of the proposed changes to taxation policies for income trusts beyond 2011,
reduces APIF's foreign exchange exposure, and results in a longer average power
purchase agreement life for the combined portfolio." The acquisition of CPIF is
expected to be accretive to APIF.
Xxxx Xxx, Chairman of the Special Committee, stated that "this merger with APIF
represents the best outcome for CPIF unitholders and culminates a lengthy and
exhaustive unitholder value enhancement process undertaken over the course of
the past year. The transaction provides CPIF
unitholders ongoing participation in a stronger, larger and more liquid combined
entity. The Board believes that the transaction is in the best interest of CPIF
unitholders and has agreed to support the Offer and recommends that CPIF
unitholders accept the Offer. As part of the agreement signed today, CPIF has
retained the right to solicit alternative proposals from third parties during
the period the Offer is open for acceptance and to consider any proposals which
may arise."
Scotia Capital Inc., the financial advisor to CPOT, has provided an opinion to
the Board of Trustees of CPOT that the consideration to be received under the
proposed Offer is fair, from a financial point of view, to unitholders of CPIF.
The support agreement provides for the payment by CPIF of a break fee equal to
$1,750,000 plus the amount of third party costs incurred by APIF, to a maximum
of $850,000, under certain circumstances. The support agreement also
contemplates termination of the management agreement and the administration
agreement that Clean Power Management LP (the "Manager/Administrator") has with
CPOT and CPIF, respectively, under the terms previously agreed to between the
Manager/Administrator and CPOT.
It is anticipated that details of the Offer will be mailed to CPIF unitholders
on or before February o, 2007. The Offer is expected to be open for acceptance
for a period of 35 days from mailing unless withdrawn or extended. The Offer
will be conditional upon, among other things, at least 66 2/3% of the
outstanding CPIF trust units (other than trust units held at the date of the
Offer by or on behalf of APIF or its affiliates) being validly deposited under
the Offer and there not occurring any material adverse change in the business,
facilities, operations, assets or liabilities of CPIF and/or any of its
subsidiaries or affiliated entities, taken as a whole.
In addition to its trust units, CPIF has 6.75% convertible debentures
outstanding in the principal amount of $55 million (the "Convertible
Debentures"). APIF intends to make an offer by way of a take-over bid for the
acquisition of the Convertible Debentures and it is anticipated that APIF will
announce the terms of such additional offer prior to the expiry of the Offer.
Pursuant to the Trust Indenture governing the Convertible Debentures, holders of
Convertible Debentures may put their debentures to CPIF upon a change of control
and CPIF has the option to pay such debentures in cash or by delivering up CPIF
trust units. If CPIF elects to pay for any Convertible Debentures so delivered
in cash, APIF has set aside sufficient funds to enable CPIF to do so. The Offer
is not conditional upon the outcome of any offer or transaction involving the
Convertible Debentures.
CONFERENCE CALL
APIF will host a live conference call at [time] on [day], February o, 2007. To
participate by telephone, please call o or toll free at o across North America.
An archived telephone recording of the call will be available until February o,
2007 by calling o or o and using confirmation number o.
ABOUT ALGONQUIN POWER
Algonquin Power Income Fund is an open-ended investment trust that owns and has
interests in a diverse portfolio of power generating and infrastructure assets
across North America, including 47 hydroelectric facilities, five natural
gas-fired cogeneration facilities, 17 alternative fuels facilities and 15 water
reclamation and distribution facilities. Algonquin Power Income Fund was
established in 1997 to provide unitholders with sustainable, highly stable and
growing cash flows through a diversified portfolio of energy and infrastructure
assets. Algonquin Power Income Fund's units and convertible debentures are
traded on the Toronto Stock Exchange under the symbols APF.UN and
APF.DB/APF.DB.A respectively, and units are included in the S&P/TSX Composite
Index. More information about Algonquin Power Income Fund can be found at
xxxx.XxxxxxxxxXxxxx.xxx.
ABOUT CLEAN POWER
Clean Power Income Fund is an open-ended investment trust that is invested in 15
power generating facilities located in Xxxxxx, Xxxxxxx, Xxxxxxx, Xxxxxxx
Xxxxxxxx and four U.S. states with a total capacity of 303 MW. Three
environmentally preferred technologies -- windpower, waterpower and biomass --
deliver electricity almost exclusively under long-term sales contracts and at
minimal to zero fuel cost.
Clean Power Income Fund is the first income fund to be certified under the
Government of Canada's Environmental ChoiceM Program. Clean Power Income Fund's
units and convertible debentures are listed and posted for trading on the
Toronto Stock Exchange under the symbols "CLE.UN" and "CLE.DB", respectively.
More information about Clean Power Income Fund can be found at
xxx.xxxxxxxxxxxxxxxxxxxx.xxx.
For more information, contact:
Xxxxx Xxxxxxxxxx
Algonquin Power Income Fund
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxx, X0X 0X0
000-000-0000
Fax 000-000-0000
XXXX@XxxxxxxxxXxxxx.xxx
Clean Power Income Fund
00 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx X0X IJ8
I-866-XXX-XXX
Fax 000-000-0000
xxxx@xxxxxxxxxxxxxxxxxxxx.xxx