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Enron Mail |
Carlos:
I have visited with Lance Schuler on this matter. The kind of provision yo= u=20 are talking about would need to be approved by Mark Metts, Tim Detmering, t= he=20 President and General Counsel of ENA ( Lance has Haedicke's proxy to sign o= ff=20 for ENA), and the President and General Counsel of every affiliate that wou= ld=20 be bound by the provision. I suggest when you get in that you get a copy o= f=20 the corporate policy on this kind of thing from Lance. I trust all is well with you and your family. Congratulations on the birth= . Jeff =09Carlos Sole@ENRON =0904/02/2001 01:40 PM =09=09=20 =09=09 To: Jeffrey T Hodge/HOU/ECT@ECT =09=09 cc: kay.mann@enron.com, Fred Mitro/HOU/ECT@ECT, Ben Jacoby/HOU/ECT@E= CT,=20 Sharon Hausinger/Enron@EnronXGate =09=09 Subject: Non-Compete Provision Binding Affiliates Jeff, I am working on the divestiture of a project company that had been=20 developing a power plant site in Illinois and as part of our proposed=20 purchase and sale agreement, the purchaser has requested a non-compete=20 obligation of 2.5 years with respect to the project and project company tha= t=20 we are selling that would bind both ENA and its Affiliates. I recall that= =20 previously there was a policy which required certain approvals (including= =20 Mark Metts of Corporate Development) for non-compete agreements that were= =20 binding on other entities beyond the immediate business unit involved in th= e=20 transaction. Could you help us out and let us know whom we need to contact= . =20 Thanks.=20 PS I am working on a legal risk memo for this transaction and will forward= =20 it to you a draft later today or early tomorrow as we are hoping to DASH an= d=20 close on it by the end of this week. Section 7.9 Due Diligence; Competitive Activities.=20 (a) NOTWITHSTANDING ANYTHING STATED IN THIS PURCHASE AGREEMENT TO THE=20 CONTRARY, PURCHASER AGREES THAT (A) SELLER RELATED PARTIES HAVE MADE NO=20 REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS TO OR WITH PURCHASER= =20 RELATED PARTIES RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY, OTHER THA= N=20 THOSE EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT AND (B) PURCHASER=20 RELATED PARTIES HAVE NOT RELIED UPON ANY REPRESENTATIONS, WARRANTIES,=20 COVENANTS OR AGREEMENTS RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY,= =20 OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS PURCHASE AGREEMENT. PURCHASER= =20 ADDITIONALLY ACKNOWLEDGES THAT IT HAS CONDUCTED ITS OWN EVALUATION OF ALL= =20 ASPECTS (INCLUDING, WITHOUT LIMITATION, ENGINEERING, ENVIRONMENTAL,=20 TRANSMISSION, ACCOUNTING, REGULATORY AND LEGAL) OF THE COMPANY AND THE=20 PROJECT, AND IS RELYING SOLELY ON SUCH INVESTIGATION AND EVALUATION OF SUCH= =20 MATTERS IN DETERMINING WHETHER OR NOT TO ACQUIRE THE INTERESTS. =20 ADDITIONALLY, PURCHASER HAS INDEPENDENTLY EVALUATED THE RISKS ASSOCIATED WI= TH=20 THE DEVELOPMENT OF THE PROJECT AND THE PROSPECTS RELATING TO OBTAINING=20 REQUIRED PERMITS, CONTRACTS, AGREEMENTS, AND ARRANGEMENTS NECESSARY FOR THE= =20 SUCCESSFUL DEVELOPMENT AND OPERATION THEREOF AND IS RELYING SOLELY ON SUCH= =20 INVESTIGATION AND EVALUATION OF SUCH MATTERS IN DETERMINING WHETHER OR NOT = TO=20 ACQUIRE THE INTERESTS. PURCHASER ACKNOWLEDGES THAT THE KENDALL PROJECT=20 DOCUMENTS DO NOT REPRESENT OR PROVIDE FOR ALL OF THE ASSETS, PERMITS,=20 CONTRACTS, AND AGREEMENTS NECESSARY FOR THE PROJECT, AND, EXCEPT AS OTHERWI= SE=20 EXPRESSLY PROVIDED IN THIS PURCHASE AGREEMENT, SELLER MAKES NO REPRESENTATI= ON=20 OR WARRANTY AS TO THE ABILITY OF PURCHASER OR THE COMPANY TO OBTAIN THE SAM= E=20 OR ANY OF THE TERMS THEREOF, OR AS TO THE ABILITY OR LIKELIHOOD THAT ANY OF= =20 THE OTHER PARTIES TO ANY OF SUCH DOCUMENTS SHALL PERFORM IN ACCORDANCE WITH= =20 THE TERMS THEREOF. (b) SELLER HEREBY AGREES THAT FOR A PERIOD OF ONE YEAR[THIRTY MONTHS]=20 FOLLOWING THE CLOSING, SELLER WILL NOT DIRECTLY OPPOSE ANY ACTION BY=20 PURCHASER OR THE COMPANY BEFORE THE CITY OF YORKVILLE OR KENDALL COUNTY=20 AUTHORITIES IN CONNECTION WITH THE DEVELOPMENT OF THE PROJECT NO SELLER=20 RELATED PARTY SHALL (i) TAKE OR SUPPORT ANY ACTION INTENDED BY SUCH SELLER= =20 RELATED PARTY TO (A) IMPEDE THE COMPANY=01,S ABILITY TO DEVELOP THE PROJECT= IN=20 THE MANNER CONTEMPLATED BY THE KENDALL PROJECT DOCUMENTS, (B) DELAY=20 COMPLETION OF THE PROJECT BY THE COMPANY, OR (C) MATERIALLY INCREASE THE=20 COMPANY=01,S COST TO COMPLETE THE PROJECT, OR (ii) TAKE OR SUPPORT ANY POSI= TION=20 IN ANY PROCEEDING BEFORE ANY GOVERNMENTAL AUTHORITY DIRECTLY RELATING TO TH= E=20 PROJECT THAT (A) CONTESTS OR SEEKS TO CONDITION THE ISSUANCE OF ANY=20 AUTHORIZATION, APPROVAL OR CONSENT SOUGHT BY THE COMPANY OR PURCHASER, (B)= =20 CHALLENGES THE VALIDITY OF ANY AUTHORIZATION, APPROVAL OR CONSENT OBTAINED = BY=20 THE COMPANY OR PURCHASER OR (C) IS IN OPPOSITION TO THAT ASSERTED BY=20 PURCHASER. EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION 7.9(b) AND SUBJE= CT=20 TO COMPLIANCE BY SELLER WITH ITS OTHER EXPRESS OBLIGATIONS IN THIS PURCHASE= =20 AGREEMENT, (i) EACH OF THE SELLER RELATED PARTIES MAY ENGAGE IN WHATEVER=20 ACTIVITIES IT CHOOSES (INCLUDING DEVELOPMENT ACTIVITIES OR POWER PROJECTS)= =20 REGARDLESS OF WHETHER THE SAME ARE COMPETITIVE WITH THE PURCHASER OR THE=20 COMPANY, WITHOUT HAVING OR INCURRING ANY OBLIGATION TO DISCLOSE SUCH=20 ACTIVITIES TO PURCHASER OR THE COMPANY OR TO OFFER TO PURCHASER OR THE=20 COMPANY ANY INTEREST IN SUCH ACTIVITIES AND (ii) NEITHER THIS PURCHASE=20 AGREEMENT NOR ANY ACTIVITY UNDERTAKEN PURSUANT HERETO SHALL PREVENT SELLER= =20 RELATED PARTIES FROM ENGAGING IN SUCH ACTIVITIES, OR REQUIRE SELLER RELATED= =20 PARTIES TO DISCLOSE SUCH PARTICIPATION TO PURCHASER OR THE COMPANY, AND AS = A=20 MATERIAL PART OF THE CONSIDERATION FOR THE EXECUTION OF THIS PURCHASE=20 AGREEMENT BY SELLER, PURCHASER HEREBY WAIVES, RELINQUISHES, AND RENOUNCES A= NY=20 SUCH RIGHT OR CLAIM OF NOTICE OR PARTICIPATION IN SUCH ACTIVITIES. Carlos Sole' Senior Counsel Enron North America Corp. 1400 Smith Street Houston, Texas 77002-7361 (713) 345-8191 (phone) 713 646-3393 (fax)
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