THEREOF IN A TRANSACTION THAT WOULD VIOLATE THE SECURITIES ACT OR
THE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION.
5.
TRIGGERING EVENT AND INDEMNITY
(A)
IN THE EVENT (I) WESTERN RESOURCES, INC. ("WESTERN RESOURCES"), A
KANSAS CORPORATION, AND ITS AFFILIATES CEASE TO OWN MORE THAN 50% OF WESTAR'S
VOTING
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STOCK AND, AT THE DIRECTION OF POI'S BOARD OF DIRECTORS, POI REQUESTS WESTAR IN
WRITING TO REPURCHASE THE SHARES FROM POI OR (II) WESTAR CEASES TO OWN MORE THAN
50% OF POI'S VOTING STOCK (EACH OF CLAUSE (I) AND (II) BEING A "TRIGGERING
EVENT"), WESTAR AND POI AGREE TO PROMPTLY TAKE SUCH STEPS AS ARE NECESSARY OR
APPROPRIATE TO RESCIND THIS AGREEMENT AB INITIO.
(B)
TO EFFECT SUCH RESCISSION, WESTAR SHALL REPURCHASE THE SHARES FROM
POI AND POI SHALL DELIVER TO WESTAR, AGAINST PAYMENT THEREFOR OF THE AMOUNT
REFERRED TO IN THE NEXT SENTENCE, ANY AND ALL CERTIFICATES REPRESENTING THE
SHARES TO WESTAR AND EXECUTE A STOCK POWER IN THE NAME AT WESTAR FOR EACH
CERTIFICATE OR OTHERWISE PROPERLY ENDORSE SUCH CERTIFICATES TO WESTAR.
WESTAR
SHALL, NO LATER THAN 10 DAYS FROM THE TRIGGERING EVENT, PAY TO POI UPON RECEIPT
OF THE SHARES THE GREATER OF (I) NET BOOK VALUE OF THE SHARES AND (II) THE
PURCHASE PRICE OF $1,518,672.13 PLUS INTEREST ON SUCH AMOUNT AT A PER ANNUM RATE
EQUAL TO LIBOR PLUS 375 BASIS POINTS CALCULATED FROM THE DATE OF THIS AGREEMENT.
(C)
WESTAR AGREES TO INDEMNIFY AND HOLD POI, ITS DIRECTORS AND
OFFICERS HARMLESS AGAINST ANY AND ALL LOSSES, DAMAGES LIABILITIES OR CLAIMS THAT
ARISE OUT OF OR BASED ON POI'S OWNERSHIP OF THE SHARES AND PERFORMANCE UNDER
THIS AGREEMENT.
WESTAR ALSO AGREES TO REIMBURSE POI FOR EXPENSES INCURRED IN
CONNECTION WITH THE RECISSION TRANSACTION CONTEMPLATED BY THIS SECTION 5.
6.
ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto
relating to the subject matter hereof. There are no terms, obligations,
covenants, representations, statements or conditions other than those contained
herein or in exhibits or other instruments delivered or to be delivered pursuant
to the terms hereof. No variation or modification of this Agreement nor waiver
of any of the terms and provisions hereof shall be deemed valid unless in
writing and signed by the parties hereto.
7.
NO THIRD PARTY BENEFICIARY
Each party hereto intends that this Agreement shall not benefit or create any
right or cause of action in or on behalf of any person other than the parties
hereto.
8.
SUCCESSORS AND ASSIGNS
All terms and provisions of this Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and the respective successors and assigns;
provided,
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however, that this Agreement may not be assigned by either party hereto without
the written consent of the other party.
9.
GOVERNING LAW
The construction, performance, execution and enforcement of this Agreement and
any dispute, whether in contract or tort, of whatsoever nature arising out of or
in connection with