NEXTERAENERGY.JPG


UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549


FORM 8-K


CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934



Date of earliest event reported: May 20, 2018



Commission
File
Number
 
Exact name of registrant as specified in its
charter, address of principal executive offices
and registrant’s telephone number
 
IRS Employer
Identification
Number
1-8841
 
NEXTERA ENERGY, INC.
 
59-2449419
 
 
700 Universe Boulevard
Juno Beach, Florida 33408
(561) 694-4000
 
 

State or other jurisdiction of incorporation or organization: Florida

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))





SECTION 1 - REGISTRANT’S BUSINESES AND OPERATIONS

Item 1.01 Entry into a Material Definitive Agreement.

On May 21, 2018, NextEra Energy, Inc. (NEE), announced that it had entered into definitive agreements (acquisition agreements), each dated as of May 20, 2018, with The Southern Company and certain of its affiliates (Southern) to acquire Gulf Power Company (Gulf Power) and Florida City Gas (FCG).

Gulf Power Acquisition

On May 20, 2018, NEE and 700 Universe, LLC, a Delaware limited liability company and a wholly owned subsidiary of NEE (purchaser), entered into a stock purchase agreement (Gulf Power agreement) with Southern, pursuant to which the purchaser will, subject to the terms and conditions set forth therein, acquire the outstanding common shares of Gulf Power for approximately $5.75 billion in cash less approximately $1.4 billion of Gulf Power debt, subject to certain adjustments.

Southern, the purchaser and NEE have each made customary representations, warranties and covenants in the Gulf Power agreement. The parties have also agreed to cooperate with each other and use reasonable best efforts to make all filings and obtain all consents, approvals and authorizations of all governmental entities to the extent required by law in connection with the execution, delivery and performance of the Gulf Power agreement and the consummation of the transactions contemplated thereby, subject to specified limitations.

Consummation of the Gulf Power acquisition is subject to certain conditions, including (i) receipt of required regulatory approvals, including approvals from, among others, the Federal Energy Regulatory Commission (FERC) and the expiration or early termination of the waiting period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (HSR Act), and (ii) the absence of a legal restraint prohibiting consummation of the Gulf Power acquisition. Each of NEE’s and the purchaser’s obligation, on the one hand, and Southern’s obligation, on the other hand, to consummate the Gulf Power acquisition is also subject to additional conditions, including, subject to certain exceptions, (i) the accuracy of the representations and warranties of the other party (subject to specified materiality qualifications), (ii) the performance in all material respects by the other party of its obligations under the Gulf Power agreement, and (iii) the absence of a purchaser burdensome condition or a seller burdensome condition, as applicable. The obligation of NEE and the purchaser to consummate the Gulf Power acquisition is also subject to the condition that no material adverse effect with respect to Gulf Power has occurred.

The Gulf Power agreement may be terminated by either the purchaser or Southern under certain circumstances, including if the sale is not consummated by June 28, 2019 (subject to extension to December 31, 2019, if all of the conditions to closing, other than the conditions related to obtaining regulatory approvals, have been satisfied). The Gulf Power agreement further provides that, upon the termination thereof, (i) under specified circumstances, the purchaser will be required to pay Southern a termination fee of $100 million or $200 million (such amount depending on the specific circumstances of such termination) and (ii) upon certain other specified circumstances, Southern will be required to pay the purchaser a termination fee of $100 million.

The foregoing description of the Gulf Power agreement is qualified in its entirety by reference to the Gulf Power agreement, which is filed as Exhibit 2(a) hereto, and is incorporated into this report by reference.

Florida City Gas Acquisition

On May 20, 2018, NEE and the purchaser entered into a stock purchase agreement (the FCG agreement) with NUI Corporation (gas seller) and Southern Company Gas (gas parent) pursuant to which the purchaser will, subject to the terms and conditions set forth therein, acquire the outstanding common shares of the entity that owns FCG for approximately $530 million in cash, subject to certain adjustments.

The gas seller, the purchaser and NEE have each made customary representations, warranties and covenants in the FCG agreement. The parties have also agreed to cooperate with each other and use reasonable best efforts to make all filings and obtain all consents, approvals and authorizations of all governmental entities to the extent required by law in connection with execution, delivery and performance of the FCG agreement and the consummation of the transactions contemplated thereby, subject to the specified limitations.

Consummation of the FCG acquisition is subject to certain conditions, including (i) the expiration or early termination of the waiting period under the HSR Act, (ii) the absence of a legal restraint prohibiting consummation of the FCG acquisition and (iii) the consummation of Southern’s previously announced dispositions of the Elizabethtown Gas and Elkton Gas assets, which are also owned by the entity that owns FCG. Each of NEE’s and the purchaser’s obligation, on the one hand, and the gas seller’s obligation, on the other hand, to consummate the FCG acquisition is also subject to additional conditions, including, subject to certain exceptions, (i) the accuracy of the representations and warranties of the other party (subject to specified materiality qualifications) and (ii) the performance in all material respects by the other party of its obligations under the FCG agreement. NEE’s and the purchaser’s obligation to consummate the FCG acquisition is also subject to the absence of a purchaser burdensome condition and the condition that no material adverse effect with respect to the business of FCG has occurred.


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The FCG agreement may be terminated by either the purchaser or the gas seller under certain circumstances, including if (i) the FCG acquisition is not consummated by December 31, 2018 (subject to extension to March 31, 2019, if all of the conditions to closing, other than the conditions related to obtaining regulatory approvals, have been satisfied) or (ii) 21 days after the termination of either of the gas seller’s agreements for the sale of the Elizabethtown Gas assets and the Elkton Gas assets.

The foregoing description of the FCG agreement is qualified in its entirety by reference to the FCG agreement, which is filed as Exhibit 2(b) hereto, and is incorporated into this report by reference.

The above description of the acquisition agreements has been included to provide investors with information regarding their terms. The acquisition agreements contain representations and warranties made by and to the parties thereto as of specific dates. The statements embodied in those representations and warranties were made for the purpose of allocating risk between the parties rather than establishing matters as facts and are subject to qualifications and limitations agreed upon by the parties in connection with negotiating the terms of the acquisition agreements. In addition, certain representations and warranties were made as of a specified date and may be subject to a contractual standard of materiality different from those generally applicable to investors.


CAUTIONARY STATEMENTS REGARDING FORWARD-LOOKING INFORMATION

This document contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Forward-looking statements are typically identified by words or phrases such as “may,” “will,” “anticipate,” “estimate,” “expect,” “project,” “intend,” “plan,” “believe,” “predict,” and “target” and other words and terms of similar meaning. Forward-looking statements involve estimates, expectations, projections, goals, forecasts, assumptions, risks and uncertainties. NEE cautions readers that any forward-looking statement is not a guarantee of future performance and that actual results could differ materially from those contained in any forward-looking statement. Such forward-looking statements include, but are not limited to, statements about the anticipated benefits of the proposed acquisitions from Southern of Gulf Power, Florida City Gas and their ownership interests in two gas-fired plants (Southern Company assets), including future financial or operating results of NEE or the Southern Company assets, NEE’s or the Southern Company assets’ plans, objectives, expectations or intentions, the expected timing of completion of the transactions, the value of the transactions, as of the completion of the transactions or as of any other date in the future, and other statements that are not historical facts. Important factors that could cause actual results to differ materially from those indicated by any such forward-looking statements include risks and uncertainties relating to: the risk that NEE or Southern may be unable to obtain governmental and regulatory approvals required for the transactions, or required governmental and regulatory approvals may delay the transactions or result in the imposition of conditions that could cause the parties to abandon the transactions; the risk that a condition to closing of the transactions may not be satisfied; the expected timing to consummate the proposed transactions; the risk that the businesses will not be integrated successfully; disruption from the transactions making it more difficult to maintain relationships with customers, employees or suppliers; the diversion of management time and attention on transaction-related issues; general worldwide economic conditions and related uncertainties; the effect and timing of changes in laws or in governmental regulations (including environmental); fluctuations in trading prices of securities of NEE and in the financial results of NEE or the Southern Company assets; the timing and extent of changes in interest rates, commodity prices and demand and market prices for electricity or gas; and other factors discussed or referred to in the “Risk Factors” section of NEE’s or Southern’s most recent Annual Reports on Form 10-K filed with the Securities and Exchange Commission. Additional risks and uncertainties are identified and discussed in NEE’s and Southern's reports filed with the SEC and available at the SEC’s website at www.sec.gov. Each forward-looking statement speaks only as of the date of the particular statement and NEE does not undertake any obligation to update or revise its forward-looking statements, whether as a result of new information, future events or otherwise.


SECTION 9 - FINANCIAL STATEMENTS AND EXHIBITS

Item 9.01 Financial Statements and Exhibits

(d) Exhibits


Exhibit
Number
 
Description
2(a)*
 
2(b)*
 
 
 
 
*
 
Schedules attached to each Stock Purchase Agreement have been omitted pursuant to Item 601(b)(2) of Regulation S-K. NEE will furnish the omitted schedules to the Securities and Exchange Commission upon request by the Commission.


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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Date: May 23, 2018

NEXTERA ENERGY, INC.
(Registrant)
 
 
CHARLES E. SIEVING
Charles E. Sieving
Executive Vice President and General Counsel of
NextEra Energy, Inc.


4
EXECUTION VERSION

Exhibit 2(a)





STOCK PURCHASE AGREEMENT

by and among


THE SOUTHERN COMPANY,


700 UNIVERSE, LLC

and


NEXTERA ENERGY, INC.



_____________________________________

Dated as of May 20, 2018
























TABLE OF CONTENTS

 
 
 
 
Page

ARTICLE I DEFINITIONS; INTERPRETATION..........................................................................7
1.1
Defined Terms.........................................................................................................7
1.2
Other Definitions..................................................................................................18
1.3
Other Interpretive Matters....................................................................................20
ARTICLE II THE SALE AND PURCHASE.................................................................................21
2.1
Sale and Purchase of Shares.................................................................................21
2.2
Closing Payment...................................................................................................22
2.3
Closing..................................................................................................................22
2.4
Closing Payment Adjustments..............................................................................23
2.5
Post-Closing Statement.........................................................................................23
2.6
Reconciliation of Post-Closing Statement............................................................24
2.7
Post-Closing Adjustment......................................................................................25
2.8
Withholding..........................................................................................................26
ARTICLE III REPRESENTATIONS AND WARRANTIES OF SELLER....................................26
3.1
Organization and Qualification; No Subsidiaries.................................................26
3.2
Capitalization of the Company.............................................................................27
3.3
Authority Relative to this Agreement...................................................................27
3.4
Consents and Approvals; No Violations...............................................................28
3.5
Company SEC Documents; Financial Statements................................................28
3.6
Absence of Certain Changes or Events.................................................................30
3.7
Sufficiency of Assets............................................................................................30
3.8
Company Material Contracts................................................................................30
3.9
Legal Proceedings.................................................................................................31
3.10
Compliance with Law; Orders..............................................................................31
3.11
Real Property.........................................................................................................32
3.12
Employee Benefits................................................................................................32
3.13
Labor and Employee Matters................................................................................33
3.14
Taxes.....................................................................................................................34
3.15
Environmental Matters.........................................................................................35
3.16
Brokers..................................................................................................................36



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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

3.17
Regulatory Compliance........................................................................................36
3.18
Insurance...............................................................................................................37
3.19
Information Security.............................................................................................37
3.20
No Other Representations or Warranties; No Reliance........................................37
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF PURCHASER AND
PARENT..........................................................................................................................................38
4.1
Organization and Qualification.............................................................................38
4.2
Authority Relative to this Agreement...................................................................38
4.3
Consents and Approvals; No Violations...............................................................39
4.4
Legal Proceedings.................................................................................................39
4.5
Brokers..................................................................................................................39
4.6
Financial Capability..............................................................................................40
4.7
Investment Decision.............................................................................................40
4.8
Independent Investigation.....................................................................................40
4.9
No Other Representations or Warranties; No Reliance........................................40
ARTICLE V ADDITIONAL AGREEMENTS...............................................................................41
5.1
Conduct of Business.............................................................................................41
5.2
Access to Information...........................................................................................44
5.3
Confidentiality......................................................................................................44
5.4
Further Assurances................................................................................................46
5.5
Required Actions...................................................................................................46
5.6
Consents................................................................................................................49
5.7
Public Announcements.........................................................................................49
5.8
Intercompany Accounts........................................................................................49
5.9
Settlement of Intercompany Arrangements..........................................................49
5.10
Guarantees............................................................................................................50
5.11
Usage of Certain Marks........................................................................................50
5.12
Alternative Transactions.......................................................................................51
5.13
Release..................................................................................................................51
5.14
Litigation Support.................................................................................................52


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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

5.15
Financing Covenant..............................................................................................53
5.16
Treatment of Certain Indebtedness.......................................................................54
5.17
Form Ancillary Documents...................................................................................54
5.18
Indemnification of Directors and Officers............................................................54
5.19
Insurance...............................................................................................................55
5.20
Dispatch Procedures.............................................................................................55
ARTICLE VI EMPLOYEE MATTERS COVENANTS................................................................56
6.1
Compensation and Employee Benefits.................................................................56
6.2
Benefit Plan Assets and Liabilities Generally.......................................................57
6.3
Retirement Plans...................................................................................................58
6.4
Labor and Employment Law Matters...................................................................61
6.5
Disability Employees............................................................................................62
6.6
Third-Party Beneficiary Rights.............................................................................62
6.7
Charitable Contributions.......................................................................................62
ARTICLE VII TAX MATTERS.....................................................................................................63
7.1
Tax Indemnification by Seller...............................................................................63
7.2
Tax Indemnification by Purchaser........................................................................63
7.3
Survival.................................................................................................................63
7.4
Straddle Tax Periods.............................................................................................64
7.5
Tax Returns...........................................................................................................64
7.6
Refunds and Credits..............................................................................................65
7.7
Tax Contests..........................................................................................................65
7.8
Cooperation and Exchange of Information...........................................................66
7.9
Tax Sharing Agreements.......................................................................................67
7.10
Tax Treatment of Payments..................................................................................67
7.11
Transfer Taxes.......................................................................................................67
7.12
Timing of Payments..............................................................................................68
7.13
Tax Matters Coordination.....................................................................................68
7.14
Tax Elections.........................................................................................................68
7.15
Tax Disputes.........................................................................................................68


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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

7.16
Purchaser Tax Acts................................................................................................69
ARTICLE VIII CONDITIONS TO CLOSING..............................................................................69
8.1
Conditions to Each Party’s Closing Obligations...................................................69
8.2
Conditions to Purchaser’s and Parent’s Closing Obligations...............................69
8.3
Conditions to Seller’s Closing Obligation............................................................70
8.4
Frustration of Closing Conditions.........................................................................71
ARTICLE IX TERMINATION......................................................................................................71
9.1
Termination...........................................................................................................71
9.2
Notice of Termination...........................................................................................72
9.3
Termination Fees...................................................................................................72
9.4
Effect of Termination............................................................................................74
9.5
Extension; Waiver.................................................................................................75
ARTICLE X INDEMNIFICATION................................................................................................75
10.1
Survival of Representations, Warranties, Covenants and Agreements.................75
10.2
Indemnification by Seller......................................................................................76
10.3
Indemnification by Parent.....................................................................................76
10.4
Indemnification Procedures..................................................................................77
10.5
Exclusive Remedy.................................................................................................79
10.6
Additional Indemnification Provisions.................................................................79
10.7
Limitation on Consequential Damages.................................................................80
10.8
Mitigation..............................................................................................................80
ARTICLE XI GENERAL PROVISIONS.......................................................................................80
11.1
Amendment...........................................................................................................80
11.2
Waivers and Consents...........................................................................................80
11.3
Notices..................................................................................................................80
11.4
Assignment...........................................................................................................82
11.5
No Third Party Beneficiaries................................................................................82
11.6
Expenses...............................................................................................................82
11.7
Governing Law.....................................................................................................82
11.8
Severability...........................................................................................................82


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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

11.9
Entire Agreement..................................................................................................82
11.10
Delivery.................................................................................................................83
11.11
Waiver of Jury Trial..............................................................................................83
11.12
Submission to Jurisdiction....................................................................................83
11.13
Specific Performance............................................................................................83
11.14
Disclosure Generally.............................................................................................84
11.15
Provision Respecting Legal Representation.........................................................84
11.16
Privilege................................................................................................................84































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Exhibits
Exhibit A: Manual
Exhibit B: Form of Transition Services Agreement
Exhibit C: Certain Form Ancillary Documents

Schedules
Schedule I:     Accounting Principles
Disclosure Letters
Seller Disclosure Letter

































-vi-



STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this “ Agreement ”), dated as of May 20, 2018, is by and among The Southern Company, a Delaware corporation (“ Seller ”), 700 Universe, LLC, a Delaware limited liability company (“ Purchaser ”), and NextEra Energy, Inc., a Florida corporation (“ Parent ”). Seller, Purchaser and Parent are each referred to individually in this Agreement as a “ Party ” and collectively as the “ Parties ”.
RECITALS
WHEREAS, Seller owns, of record and beneficially, all of the outstanding common shares, without par value (the “ Shares ”), of Gulf Power Company, a Florida corporation (the “ Company ”);
WHEREAS, the Shares represent all of the outstanding equity interests of the Company;
WHEREAS, Seller desires to sell and transfer, and Purchaser desires to purchase, all of Seller’s right, title and interest in and to the Shares for the Purchase Price, subject to the terms and conditions of this Agreement; and
WHEREAS, Seller, Purchaser and Parent desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, Seller, Purchaser and Parent hereby agree as follows:
ARTICLE I

DEFINITIONS; INTERPRETATION

1.1      Defined Terms . For the purposes of this Agreement, the following terms shall have the following meanings:
Action ” shall mean any claim, action, demand, suit, arbitration, litigation or proceeding (including any state regulatory proceeding) by or before any Governmental Entity, whether civil, criminal, administrative, regulatory or otherwise, and whether at law or in equity.
Actual Fraud ” means common law fraud (and not a constructive fraud or negligent misrepresentation or omission) by a Person in connection with the negotiation of this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby.
Affiliate ” shall mean, with respect to any Person, any other Person that directly or indirectly, controls, is controlled by, or is under common control with such Person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of





securities or partnership or other ownership interests, by contract or otherwise; provided that, from and after the Closing, (a) the Company shall not be considered an Affiliate of Seller or any of Seller’s Affiliates and (b) none of Seller or any of Seller’s Affiliates shall be considered an Affiliate of the Company.
Ancillary Agreements ” shall mean the Transition Services Agreement and items (a), (b) and (c) of the definition of “Form Ancillary Documents.”
Business Day ” shall mean any day other than Saturday, Sunday, or any day on which banks in the City of New York or the State of Florida are authorized or required by Law to be closed.
CapEx Shortfall Amount ” shall mean the amount, if any, equal to the difference between (a) 95% of the Cumulative CapEx Target, minus (b) the actual amount spent by Seller or any of its Affiliates (including the Company) on capital expenditures after the date of this Agreement and prior to the Closing Date; provided , however , that if the amount calculated pursuant to clause (b) is greater than the amount calculated pursuant to clause (a), the “CapEx Shortfall Amount” shall be zero.
CapEx Tables ” shall mean the tables setting forth the monthly and cumulative capital expenditure targets for that portion of 2018 falling after the date of this Agreement and for 2019, set forth in Section 5.1(a)(iii)(y)(I) of the Seller Disclosure Letter .
Closing Month CapEx Target ” shall mean, in the CapEx Tables, the amount set forth in the row labeled “Monthly Capital” corresponding to the month and year in which the Closing Date occurs.
COBRA Continuation Coverage ” shall mean the continuation of group health plan coverage required under Sections 601 through 608 of ERISA, and Section 4980B of the Code and any comparable continuation of group health plan coverage required by applicable state or local Law.
Code ” shall mean the U.S. Internal Revenue Code of 1986.
Company Benefit Plan ” shall mean each Seller Benefit Plan that is either (a) sponsored or maintained by the Company or (b) maintained by the Seller Group exclusively for the benefit of Company Employees.
Company Employee ” shall mean an employee of the Company as of the date hereof who is included on the list of Company Employees provided by Seller pursuant to Section ‎3.13(d) , provided that the term “Company Employee” shall (x) also include an employee who is hired by, or transferred to, the Company following the date of this Agreement in accordance with Section ‎5.1(a)(iii)(y)(C) and (y) not include any individual whose employment with the Company is terminated prior to the Closing.
Company Marks ” shall mean all registered and unregistered trademarks, service marks, trade names, logos, Internet domain names, websites, social media accounts or Internet keywords (e.g., Google AdWords), and any applications for registration of any of the foregoing, together
- 8 -




with all goodwill associated with each of the foregoing, owned or used by the Company (except, for the avoidance of doubt, any Seller Marks).
Company Material Adverse Effect ” shall mean any fact, circumstance, effect, change, event or development (each an “ Effect ” and, collectively, “ Effects ”) that, individually or in the aggregate with other Effects, has, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, results of operations or financial condition of the Company, taken as a whole or (b) the ability of Seller to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis; provided , however , that, in the case of clause (a) only, none of the following Effects shall be taken into account, individually or in the aggregate, in determining whether there has been a Company Material Adverse Effect: (i) the announcement or pendency of this Agreement and the transactions contemplated hereby ( provided that the exception in this clause (i) shall not be deemed to apply to references to “Company Material Adverse Effect” in Section ‎3.4 ), (ii) any action required to be taken by the Company pursuant to this Agreement or consented to in writing by each Party or any Action arising out of or related to this Agreement, or any action taken by Purchaser, Seller or the Company in accordance with this Agreement to obtain any Required Regulatory Approval and the results of such action, including any Effect resulting from any term or condition in any Order relating to any Required Regulatory Approval or any assertion by a Governmental Entity that any approval (other than the Required Regulatory Approvals) is required from such Governmental Entity, (iii) any failure to meet any internal or published projections, forecasts, estimates or predictions in respect of recoveries, revenues, earnings or other financial or operating metrics for any period ( provided that the underlying causes for such failure shall be taken into account), (iv) any change after the date hereof generally affecting the conditions in international, national or regional economies, financial markets, capital markets or commodities markets, including changes in interest rates or exchange rates, (v) any change after the date hereof in international, national, regional or local regulatory, political or legislative conditions generally, including the outbreak or escalation of hostilities or any acts of war, sabotage or terrorism, (vi) any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development or acts of God, (vii) any change after the date hereof in applicable Law, regulation or GAAP (or authoritative interpretation thereof) and (viii) any Effect arising after the date hereof generally affecting the electric generating, transmission or distribution industries (including, in each case, any general changes in the operations thereof); provided further , that with respect to clauses (iv), (v), (vii) and (viii), such Effect shall not be excluded to the extent (and solely to the extent) it disproportionately affects the Company, taken as a whole, as compared to other vertically integrated regulated electric utility companies.
Confidentiality Agreement ” shall mean the confidentiality letter agreement, dated January 12, 2018, by and between Seller and Purchaser.
Confidential Information ” shall have the meaning ascribed to such term in the Confidentiality Agreement.
Contract ” shall mean any lease, contract, license, arrangement, option, instrument, note, bond, mortgage, indenture, deed of trust, agreement, commitment or other obligation, whether written or oral, excluding any Permit or Seller Benefit Plan.
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Cumulative CapEx Target ” shall mean the sum of (a) in the CapEx Tables, the amount set forth in the row labeled “Cumulative Capital” corresponding to the month immediately preceding the month and year in which the Closing Date occurs, plus (b) the Elapsed Portion of the Closing Month CapEx Target.
Easements ” shall mean all easements, license agreements, railroad crossing rights, rights-of-way, leases for rights-of-way, and similar use and access rights.
Elapsed Portion ” shall mean, with respect to the month during with the Closing Date occurs, the number of days elapsed during such month through (and including) the Closing Date divided by the total number of calendar days in such month.
Encumbrances ” shall mean any mortgages, deeds of trust, pledges, liens, claims, charges, security interests, conditional and installment sale agreements, activity and use limitations, Easements, covenants, encumbrances, obligations, limitations, title defects, deed restrictions, preferential purchase rights or options, adverse claims of interest and any other restrictions of any kind, including restrictions on use, transfer, receipt of income, or exercise of any other attribute of ownership.
Environment ” shall mean all or any of the following media: soil, land surface and subsurface strata, surface waters (including navigable waters, streams, ponds, drainage basins, and wetlands), groundwater, drinking water supply, stream sediments, ambient air (including the air within buildings and the air within other natural or man-made structures above or below ground), plant and animal life, and any other natural resource.
Environmental Claims ” shall mean any and all Actions arising pursuant to any Environmental Laws or Environmental Permits, or arising from the presence, Release, or threatened Release (or alleged presence, Release, or threatened Release) into the Environment of any Hazardous Materials, including any and all claims by any Governmental Entity or by any Person for enforcement, cleanup, remediation, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation, or injunctive relief pursuant to any Environmental Law.
Environmental Laws ” shall mean any and all Laws regulating or relating to, or imposing liability with respect to, pollution or the protection of human health and safety (as it relates to exposure to Hazardous Materials), or Environment, or damage to natural resources, including Laws relating to Releases and threatened Releases or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Materials.
Environmental Permits ” shall mean all permits, registrations, certifications, licenses, franchises, exemptions, approvals, consents, waivers, water rights or other authorizations of Governmental Entities issued under or with respect to applicable Environmental Laws.
ERISA ” shall mean the Employee Retirement Income Security Act of 1974.
Estimated CapEx Shortfall Amount ” shall mean the amount of the CapEx Shortfall Amount set forth in the Estimated Closing Statement.
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Estimated Working Capital Adjustment Amount ” shall mean an amount, which may be positive or negative, equal to (a) the amount of Working Capital set forth in the Estimated Closing Statement minus (b) the Target Working Capital.
Exchange Act ” shall mean the Securities Exchange Act of 1934.
Final Ancillary Documents ” shall mean (a) the Form Ancillary Agreements (other than item (c) and item (e) thereof), (b) such other documents that Seller and Purchaser may otherwise agree to be in lieu of (in whole or in part) or in addition to the items included in the preceding clause (a), and (c) such modifications to the documents listed in the preceding clauses (a) and (b), and such other documents, as are necessary to obtain the approval of the FERC pursuant to Section 203 of the FPA for the transactions contemplated by this Agreement; provided , however , that each of items (h), (i), (j) and (l) of the Form Ancillary Documents shall constitute a “Final Ancillary Document” only if such document does not conform to the applicable pro forma agreement on file with the FERC.
Final Working Capital Adjustment Amount ” shall mean an amount, which may be positive or negative, equal to (a) the amount of Working Capital set forth in the Final Closing Statement minus (b) the Target Working Capital.
Form Ancillary Documents ” shall mean the following agreements and documents (with items (a), (b) and (c) in the forms attached to Exhibit C , and item (d) in the form attached to Exhibit B ):
(a)
     Appendix A to the Southern Company System Intercompany Interchange Agreement;
(b)
     the Transmission Service Coordination Agreement;
(c)
the Transition Coordination Agreement;
(d)
the Transition Services Agreement;
(e
)      the Dispatch Contracts, each in the form agreed pursuant to Section 5.20 ;
(f)
a new open access transmission tariff for the Company, reflecting the terms of the Transmission Service Coordination Agreement;
(g)
modifications to the Southern Companies Open Access Transmission Tariff, consistent with the terms of the Transmission Service Coordination Agreement and other such changes not inconsistent with the Transmission Services Coordination Agreement necessary to effectuate this Agreement;
(h)
     Network Integration Transmission Service Agreement for transmission service provided to the Company on the Seller’s system consistent with the terms of the Transmission Services Coordination Agreement;

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(i)
Network Integration Transmission Service Agreement for transmission service provided to the Seller on the Company’s system, consistent with the terms of the Transmission Services Coordination Agreement;
(j)
Firm Point-to-Point Transmission Service Agreements for transmission service provided to the Company on the Seller’s system, for each of the “Grandfathered Resources” identified in the Transmission Service Coordination Agreement, consistent with the terms of the Transmission Services Coordination Agreement;
(k)
Amendment to the Transmission Facility Cost Allocation Tariff of Southern Company Services, Inc., consistent with the terms of the Transmission Services Coordination Agreement;
(l)
Certain amended service agreements under that Transmission Facility Cost Allocation Agreement, consistent with the terms of the Transmission Services Coordination Agreement;
(m)
a new tariff for the Company for the sale of capacity, energy and ancillary services at market-based rates; and
(n)
modifications to the Southern Companies tariff for the sale of capacity, energy and ancillary services at market-based rates.
FPSC ” shall mean the Florida Public Service Commission.    
GAAP ” shall mean generally accepted accounting principles in the United States, consistently applied throughout the periods involved.
Gas SPA ” shall mean that certain Stock Purchase Agreement by and among NUI Corporation, Southern Company Gas, Purchaser and Parent, dated as of the date hereof.
Governmental Entity ” shall mean any foreign, domestic, supranational, federal, territorial, state or local governmental entity, quasi-governmental entity, court, tribunal, judicial or arbitral body, commission, board, bureau, agency or instrumentality, or any regulatory, administrative or other department, agency, or any political or other subdivision, department or branch of any of the foregoing.
Hazardous Material ” shall mean: (a) any chemicals, materials, substances, or wastes which are now or hereafter defined as or included in the definition of “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “toxic substance,” “extremely hazardous substance,” “pollutant,” “contaminant,” or words of similar import under applicable Environmental Laws; (b) any petroleum, petroleum products (including crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas useable for fuel (or mixtures of natural gas and such synthetic gas), or oil and gas exploration or production waste, polychlorinated biphenyls, asbestos-containing materials, mercury, and lead- based paints; and (c) any other chemical, material, substances, waste, or mixture thereof which is prohibited, limited, or regulated by Environmental Laws.
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HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
IIC Transition Period ” means the period following the Closing during which the Company participates in the Southern Company System Intercompany Interchange Agreement, dated as of May 1, 2007, by and among the Company, Seller and certain Affiliates of Seller.

Indebtedness ” shall mean, with respect to a Person, without duplication, and determined in each case in accordance with the Accounting Principles: (a) any indebtedness for borrowed money, whether current, short-term or long-term, secured or unsecured, including obligations evidenced by a note, bond, debenture or similar instruments; (b) any obligations in respect of interest rate hedging arrangements; (c) any obligations in respect of letters of credit or bank guarantees; (d) any obligations issued or assumed as the deferred purchase price of any property or services (other than trade credit incurred in the ordinary course of business); and (e) any guarantee by such Person of any obligations of another Person of the types described in the foregoing clauses (a) through (d).
Intellectual Property ” shall mean (a) any U.S. or foreign patents, copyrights, all registered and unregistered trademarks, service marks, trade names, logos, Internet domain names, websites, social media accounts or Internet keywords (e.g., Google AdWords), mask works, and other similar intangible rights throughout the world, and applications or registrations for any of the foregoing, (b) any protectable or proprietary interest, whether registered or unregistered, in know how, trade secrets, database rights, software, operating and manufacturing procedures, designs, specifications and the like, (c) any protectable or proprietary interest in any similar intangible asset of a technical, scientific or creative nature, and (d) any protectable or proprietary interests in or to any documents or other tangible media containing any of the foregoing.
IRS ” shall mean the U.S. Internal Revenue Service.
Knowledge of Seller ” shall mean the actual knowledge of the Persons listed on Section ‎1.1(b) of the Seller Disclosure Letter .
Law ” shall mean any federal, state, local, foreign or supranational law, statute, regulation, ordinance or rule.
Liability ” shall mean all Indebtedness, obligations and other liabilities of any nature, whether absolute, accrued, matured, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due.
Loss ” or “ Losses ” shall mean any Liability, including, costs and expenses of any and all Actions, assessments, judgments, settlements or compromises relating thereto, reasonable attorneys’ fees, reasonable disbursements, interest, penalties and all expenses incurred in investigating, preparing or defending against any Action commenced or threatened or any Order in connection therewith.
made available ” shall mean that such information, document or material was provided for review by Purchaser or its representatives in the electronic data site established on behalf of the Company and to which Purchaser or its representatives has been given access in connection
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with the transactions contemplated by this Agreement on or before 12:01 a.m. New York time on the last day preceding the date hereof (and was not removed prior to the date hereof).
Manual ” means the Separate Dispatch Procedures Manual for Plant Scherer Units 1 and 2 in the form of Exhibit A hereto.

Order ” shall mean any charge, decree, ruling, determination, directive, award, order, judgment, writ, injunction or stipulation of a Governmental Entity.
Organizational Documents ” shall mean, with respect to any Person, (a) the articles or certificate of formation, incorporation or organization (or the equivalent organizational documents) of such Person and (b) the bylaws or limited liability company agreement or regulations (or the equivalent governing documents) of such Person.
Pension Participant ” shall mean each person (a) who is a participant in the Seller Pension Plan, and (b) who is either (i) a Company Employee or (ii) a former employee whose employment with the Company or its Affiliates terminated for any reason prior to or as of the Closing and who (x) was employed by the Company as of his or her last day of employment and (y) is included on the list of Pension Participants provided by Seller pursuant to Section ‎3.13(d) , as it may be updated in accordance with Section 5.1(a)(iii)(y)(C) .
Permits ” shall mean all licenses, permits, franchises, approvals, registrations, authorizations, consents or Orders of any Governmental Entity (other than the Required Regulatory Approvals and Environmental Permits).
Permitted Encumbrances ” shall mean (a) statutory Encumbrances of landlords and mechanics’, carriers’, workmen’s, repairmen’s, warehousemen’s, materialmen’s or other like Encumbrances arising or incurred in the ordinary course of business, (b) Encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (c) Encumbrances for Taxes, assessments or other governmental charges or levies that are not due or payable or that are being contested by appropriate Actions or that may thereafter be paid without material penalty and for which adequate reserves have been established, (d) Encumbrances disclosed on or reflected in the Company Financial Statements, (e) with respect to real property, defects or imperfections of title not materially interfering with the ordinary conduct of the business of the Company, as a whole, (f) restrictions under the leases, subleases and similar agreements with respect to the Real Property, none of which materially interferes with the ordinary conduct of the business of the Company, as a whole, (g) any Easements, covenants, rights-of-way, restrictions of record and other similar charges not materially interfering with the ordinary conduct of the business of the Company, taken as a whole, (h) any conditions that would be shown by a current, accurate survey or physical inspection of any Real Property, (i) zoning, entitlement, land use, environmental, building and other similar restrictions, none of which materially interferes with the ordinary conduct of the business of the Company, as a whole, (j) Encumbrances that have been placed by any developer, landlord or other third party on property owned by third parties over which the Company has easement rights and subordination or similar agreements relating thereto, not materially interfering with the ordinary conduct of the business of the Company, as a whole, (k) Encumbrances incurred or deposits made in connection with workers’ compensation,
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unemployment insurance or other types of social security, (l) all rights of any Person under condemnation, eminent domain or similar proceedings, which are pending or threatened prior to Closing, (m) all Encumbrances arising under approvals obtained by the Company and related to the business of the Company that have been issued by any Governmental Entities, (n) Encumbrances arising under any lease or sublease for Leased Real Property and (o) nonexclusive licenses to Intellectual Property granted in the ordinary course of business.
Person ” shall mean an individual, partnership (general or limited), corporation, limited liability company, joint venture, association or other form of business organization (whether or not regarded as a legal entity under applicable Law), trust or other entity or organization, including a Governmental Entity.
Plants EIPA ” shall mean that certain Equity Interest Purchase Agreement by and among Southern Power Company, Purchaser and Parent, dated as of the date hereof.
Plant Scherer Units 1 and 2 ” means units 1 and 2 of the Robert W Scherer Power Plant located in Monroe County, Georgia.
Plant Scherer Unit 3 ” means unit 3 of the Robert W Scherer Power Plant located in Monroe County, Georgia.
Post-Closing Tax Period ” shall mean any taxable period beginning after the Closing Date, and, in the case of any Straddle Tax Period, the portion of such period beginning immediately after the Closing Date.
Pre-Closing Tax Period ” shall mean any taxable period ending on or prior to the Closing Date and, in the case of any Straddle Tax Period, the portion of such period ending on and including the Closing Date.
Property Taxes ” shall mean real, personal and intangible ad valorem property Taxes.
Purchase Price ” shall mean the aggregate amount determined pursuant to Section ‎‎2.2 , as it may be adjusted pursuant to Section ‎2.7 .
Purchaser Material Adverse Effect ” shall mean any Effect that, individually or in the aggregate with other Effects, has, or would reasonably be expected to have, a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis.
Real Property ” shall mean the fee interests in real property held by the Company, including buildings, structures, pipelines, other improvements, and fixtures located thereon (the “ Owned Real Property ”), the leasehold and subleasehold interests under the leases and subleases of real property held by Company (the “ Leased Real Property ”), and the Easements in favor of the Company, including buildings, structures, pipelines, other improvements and fixtures located thereon.

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Release ” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous Materials into the Environment.
Repayment Debt ” shall mean the Indebtedness of the Company held by third parties and intercompany Indebtedness, in each case, extinguished at or prior to the Closing pursuant to Section ‎5.16 , as set forth on Section ‎1.1(c) of the Seller Disclosure Letter .
Representative ” shall have the meaning ascribed to such term in the Confidentiality Agreement.
Required Regulatory Approvals ” shall mean the approvals set forth on Section ‎1.1(d) of the Seller Disclosure Letter .
Sarbanes-Oxley Act ” shall mean the Sarbanes-Oxley Act of 2002.
SEC ” shall mean the U.S. Securities and Exchange Commission.
Securities Act ” shall mean the U.S. Securities Act of 1933.
Seller Benefit Plan ” shall mean all employee benefit plans (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree health or life insurance, supplemental retirement, superannuation, gratuity, jubilee, provident fund, employment, severance, retention, termination, change in control, welfare, post-employment, profit-sharing, disability, health, vacation, sick leave benefits, fringe benefits or other benefit plans, programs, agreements or arrangements, (a) that are sponsored, maintained, contributed to or required to be maintained or contributed to by Seller or any of its Affiliates, in each case providing benefits to any Company Employee, or (b) under which the Company has any Liability or any obligation to contribute (whether actual or contingent).
Seller Group ” shall mean Seller and its Affiliates.
Seller Marks ” shall mean all registered and unregistered trademarks, service marks, trade names, logos, designs, four-color combination of red, green, white and blue trademarks that are distinctive to Seller or any of its Affiliates, service marks, Internet domain names, websites, social media accounts or Internet keywords (e.g., Google AdWords), and any applications for registration of any of the foregoing, together with all goodwill associated with each of the foregoing, owned or used by Seller or its Affiliates, including all trademarks that include the term “Southern Company” and all trademarks used in conjunction with or related thereto, or containing or comprising the foregoing, and any logos, designs or four-color combination of red, green, white and blue elements used with any of the trademarks listed above, including but not limited to the triangular logo, and any trademarks confusingly similar thereto or dilutive thereof (including any word or expression similar thereto or constituting an abbreviation or extension thereof); provided , however , “Seller Marks” shall not include the items set forth on Section ‎1.1(e) of the Seller Disclosure Letter .
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Seller Pension Materials ” means the Aon Hewitt document provided by Seller to Purchaser entitled Basis for Measuring Retirement Benefit Obligations and Costs at Year-End 2017, delivered on January 30, 2018.
Straddle Tax Period ” shall mean any taxable period that begins on or before the Closing Date and ends after the Closing Date.
Subsidiary ” shall mean, with respect to any Person, any other Person, whether incorporated or unincorporated, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions or (b) such first Person is a general partner or managing member.
Target Working Capital ” shall mean the amount set forth on Annex A of the Target Working Capital Statement and designated as the “Target Working Capital” of the Company.
Tax ” shall mean any tax of any kind, including any federal, state, local or foreign income, profits, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security (or similar), production, franchise, gross receipts, payroll, sales, employment, use, property, excise, value added, estimated, stamp, alternative or add-on minimum, environmental or withholding tax, and any other duty, assessment or governmental charge, in each case in the nature of a tax, imposed by any Governmental Entity, together with all interest, penalties and additional amounts imposed with respect to such amounts.
Tax Claim ” shall mean any Tax Proceeding (a) that, if pursued successfully, would reasonably be expected to serve as the basis for a claim for indemnification under ‎Article ‎VII or (b) relating to a Pre-Closing Tax Period or Straddle Tax Period of the Company or any of its Subsidiaries.
Tax Cuts and Jobs Act ” shall mean an act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018 (Pub.L. 115-97).
Tax Proceeding ” shall mean any audit, examination, contest, litigation or other Action relating to Taxes.
Tax Return ” shall mean any return, declaration, report, election, claim for refund or information return or statement filed or required or permitted to be filed with any taxing authority relating to Taxes, including any schedule or attachment thereto or any amendment thereof.
Transition Services Agreement ” shall mean the Transition Services Agreement to be entered into at the Closing substantially in the form of Exhibit B hereto.
United States ” or “ U.S. ” shall mean the United States of America and its territories and possessions.
Unregulated Non-Retail Business ” shall mean any assets or business of the Seller or any of its Affiliates (other than the Company) other than (a) the assets or businesses of Alabama
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Power Company, Atlanta Gas Light Company, Chattanooga Gas Company, Georgia Power Company, Mississippi Power Company, Northern Illinois Gas Company (d/b/a Nicor Gas Company), Pivotal Utility Holdings, Inc. d/b/a Elizabethtown Gas, Pivotal Utility Holdings, Inc. d/b/a Elkton Gas, Pivotal Utility Holdings, Inc. d/b/a Florida City Gas, and Virginia Natural Gas, Inc. (collectively, the “ Regulated Subsidiaries ”) and (b) the assets or businesses of Seller and its Affiliates (other than the Company) used primarily in the retail electric or gas provider business, or (c) assets, the costs of which are included in rates of any of the Regulated Subsidiaries.
WARN Act ” shall mean the federal Worker Adjustment Retraining and Notification Act of 1988 and similar state or local Laws related to plant closing, relocations and mass layoffs.
Working Capital ” shall mean Current Assets less Current Liabilities, in each case, as defined in the Accounting Principles and in accordance with the Target Working Capital Statement.
1.2      Other Definitions . The following terms shall have the meanings defined in the Section indicated:
Term      Section

ABO.........................................................................................................................................‎6.3‎(b)
Accounting Principles..............................................................................................................‎‎2.4(b)
Acquisition Proposals.................................................................................................................‎5.12
Agreement...........................................................................................................................Preamble
Cap.........................................................................................................................................‎‎10.2(b)
Closing..........................................................................................................................................‎2.1
Closing Date.............................................................................................................................‎2.3(a)
Closing Payment Adjustments......................................................................................................‎2.2
Combined Tax Return...............................................................................................................‎‎7.5(a)
Company...............................................................................................................................Recitals
Company Confidential Information.........................................................................................‎‎5.3(a)
Company Financial Statements................................................................................................‎3.5(a)
Company Material Contracts....................................................................................................‎‎3.8(a)
Company SEC Documents.......................................................................................................‎3.5(a)
Continuation Period..................................................................................................................‎‎6.1(a)
Controlling Party......................................................................................................................7.7(b)
D&O Indemnified Parties.......................................................................................................‎‎5.18(a)
Direct Loss.........................................................................................................‎....................10.4(d)
Dispatch Contracts......................................................................................................................‎‎5.20
Dispatch Procedures....................................................................................................................‎‎5.20
Effect.....................................................................Definition of Company Material Adverse Effect
Enforceability Exceptions.............................................................................................................‎‎3.3
Estimated Closing Statement....................................................................................................‎‎2.4(a)
FCC Pre-Approvals.......................................................................................................................‎3.4
FERC............................................................................................................................................‎3.4
Final Closing Statement...........................................................................................................‎‎2.6(c)
FPA................................................................................................................................................‎‎3.4

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Indemnifying Party.................................................................................................................10.4(a)
Indemnitee..............................................................................................................‎‎................10.4(a)
Independent Accounting Firm..................................................................................................‎‎2.6(c)
Initial Closing Statement.........................................................................................................‎‎.2.5(a)
Intercompany Arrangements.........................................................................................................‎5.9
IT Systems..................................................................................................................................‎‎3.19
Labor Agreement....................................................................................................................‎‎3.13(a)
Leased Real Property.............................................................................Definition of Real Property
Legal Restraints........................................................................................................................‎8.1(a)
NERC.....................................................................................................................................‎‎3.17(a)
New Plan..................................................................................................................................‎‎6.1(a)
Non-Controlling Party..............................................................................................................‎7.7(b)
Nonqualified Benefits Participants...........................................................................................‎6.3‎(d)
Notice of Disagreement............................................................................................................‎‎2.6(a)
Outside Date.........................................................................................................................‎‎9.1(b)(i)
Owned Real Property.............................................................................Definition of Real Property
Parent..................................................................................................................................Preamble
Parent DC Trust........................................................................................................................‎6.3‎(d)
Parent DCP...............................................................................................................................‎6.3‎(d)
Parent FSA Plan........................................................................................................................‎‎6.2(c)
Parent Pension Plan..................................................................................................................‎6.3‎(b)
Parent SBP................................................................................................................................‎6.3‎(d)
Parent SERP..............................................................................................................................‎6.3‎(d)
Parent’s 401(k) Plan.................................................................................................................‎‎6.3(a)
Parties..................................................................................................................................Preamble
Party....................................................................................................................................Preamble
PBGC......................................................................................................................................‎3.12‎(e)
Pension Transfer Amount.........................................................................................................‎6.3(b)
Pension Transfer Date..............................................................................................................‎6.3‎(b)
Post-Closing Adjustment..............................................................................................................‎‎2.7
Pre-Closing Insurance.................................................................................................................‎‎5.19
Pre-Closing Separate Tax Return.............................................................................................‎7.5(a)
Protection Period......................................................................................................................6.3(c)
Purchaser.............................................................................................................................Preamble
Purchaser Burdensome Condition............................................................................................‎5.5(d)
Purchaser Fundamental Representations..................................................................................‎‎8.3(a)
Purchaser Indemnified Parties................................................................................................‎‎10.2(a)
Purchaser Tax Indemnified Parties...............................................................................................‎‎7.1
Purchaser Termination Fee.......................................................................................................‎9.3(b)
Regulated Subsidiaries...........................................Definition of Unregulated Non-Retail Business
Regulatory Termination Fee.....................................................................................................‎‎9.3(a)
Releasees................................................................................................................................‎‎5.13(a)
Resolution Period.....................................................................................................................‎‎2.6(b)
Retiree Welfare Participant.......................................................................................................‎6.3‎(c)
Sale................................................................................................................................................‎2.1
Section 205...............................................................................................................................5.5(g)


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Section 414(l) Amount.............................................................................................................‎6.3‎(b)
Seller...................................................................................................................................Preamble
Seller Burdensome Condition...................................................................................................‎5.5(e)
Seller Change in Control Plan..................................................................................................‎6.3‎(d)
Seller DC Trust.........................................................................................................................‎6.3‎(d)
Seller DCP................................................................................................................................‎6.3‎(d)
Seller Disclosure Letter......................................................................................................Article ‎III
Seller FSA Plan.........................................................................................................................‎6.2(c)
Seller Fundamental Representations........................................................................................‎‎8.2(a)
Seller Indemnified Parties......................................................................................................‎‎10.3(a)
Seller Indemnified Taxes..............................................................................................................‎‎7.1
Seller Pension Plan...................................................................................................................‎6.3‎(b)
Seller SBP................................................................................................................................‎6.3‎(d)
Seller SERP..............................................................................................................................‎6.3‎(d)
Seller Tax Indemnified Parties......................................................................................................‎7.2
Seller Termination Fee..............................................................................................................‎9.3(a)
Seller Welfare Trust.................................................................................................................3.12‎(j)
Seller’s 401(k) Plan..................................................................................................................‎6.3(a)
Shares....................................................................................................................................Recitals
Substituted Guarantees................................................................................................................‎‎5.10
Target Working Capital Statement...........................................................................................‎‎2.4(b)
Tax Dispute.............................................................................................................................‎‎7.15(a)
Tax Referee............................................................................................................................‎7.15(b)
Third Party Claim...................................................................................................................‎‎10.4(a)
Third Party Claim Notice.......................................................................................................‎‎10.4(a)
Threshold................................................................................................................................10.2(b)
Transfer Taxes.............................................................................................................................‎‎7.11
Willful Breach...............................................................................................................................‎9.4

1.3      Other Interpretive Matters . Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation apply.
(a)      Appendices, Exhibits and Schedules . Unless otherwise expressly indicated, any reference in this Agreement to an “Exhibit” or “Schedule” refers to an Exhibit or Schedule to this Agreement. The Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein are defined as set forth in this Agreement. In the event of conflict or inconsistency, this Agreement shall prevail over any Exhibit or Schedule.
(b)      Time Periods . When calculating the period of time before which, within which, following or after which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period will be excluded. If the last day of such period is a non-Business Day, the period in question will end on the next succeeding Business Day.



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(c)      Gender and Number . Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the singular includes the plural, and the plural includes the singular.
(d)      Certain Terms . The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement (including the Exhibits and Schedules to this Agreement) as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it. The words “to the extent” when used in reference to a liability or other matter, means that the liability or other matter referred to is included in part or excluded in part, with the portion included or excluded determined based on the portion of such liability or other matter exclusively related to the subject or period. The word “or” shall be disjunctive but not exclusive. A reference to any Party or to any party to any other agreement or document shall include such party’s successors and permitted assigns. A reference to any legislation or to any provision of any legislation shall include any amendment to, and any modification or reenactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder as amended through such specific date). The phrase “ordinary course of business” refers to the ordinary course of business of the Company and not of Seller and its Affiliates generally. References to “$” shall mean U.S. dollars and references to “written” or “in writing” include in electronic form. Any reference to “days” shall mean calendar days unless Business Days are expressly specified.
(e)      Headings . The division of this Agreement into Articles, Sections, and other subdivisions, and the insertion of headings are for convenience of reference only and do not affect, and will not be utilized in construing or interpreting, this Agreement. All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified.
(f)      Joint Participation . The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II

THE SALE AND PURCHASE
2.1      Sale and Purchase of Shares . Upon the terms and subject to the conditions set forth in this Agreement, at the closing of the transactions contemplated by this Agreement (the “ Closing ”), Seller shall transfer, convey, assign and deliver, or cause to be transferred, conveyed, assigned and delivered, to Purchaser, and Purchaser shall, and Parent shall cause Purchaser to,
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purchase and acquire from Seller, the Shares, free and clear of all Encumbrances, other than Encumbrances under applicable securities Laws (the “ Sale ”).
2.2      Closing Payment. In consideration for the Shares, at the Closing, Purchaser shall, and Parent shall cause Purchaser to, deliver to Seller (and/or one or more of Seller’s designees), in cash, an aggregate of (a) $5,750,000,000.00, plus (b) the Estimated Working Capital Adjustment Amount, if any, less (c) the amount, if any, of Indebtedness of the Company set forth in the Estimated Closing Statement less (d) the Estimated CapEx Shortfall Amount, if any (the amounts in (b), (c) and (d) together, the “ Closing Payment Adjustments ”).
2.3      Closing .
(a)      The Closing shall take place (i) at the offices of Jones Day, 1420 Peachtree Street, Atlanta, Georgia 30309, at 10:00 a.m., Atlanta time, on the third Business Day after the date on which all of the conditions set forth in ‎Article ‎VIII (other than those conditions that by their nature are to be fulfilled or, to the extent permitted by applicable Law, waived on the Closing Date, but subject to the fulfillment or, to the extent permitted by applicable Law, waiver of those conditions) are fulfilled or, to the extent permitted by applicable Law, waived or (ii) at such other place, time or date as may be mutually agreed upon in writing by Seller and Purchaser; provided , however , that if the Closing Date would otherwise fall in the last 14 calendar days of any financial quarter of Parent, the Closing shall at Purchaser’s written election occur on the first Business Day of the next succeeding financial quarter of Parent ( provided that, if Purchaser makes such an election, the date on which the Closing would have otherwise been required to occur shall be deemed the “Closing Date” for the purposes of calculating the CapEx Shortfall Amount). The date on which the Closing occurs is referred to as the “ Closing Date .” The Closing shall be deemed to have occurred at 11:59 p.m. Atlanta time on the Closing Date.
(b)      At or prior to the Closing:
(i)      Seller shall deliver or cause to be delivered to Purchaser:
(A)      certificates evidencing the Shares, duly endorsed in blank or with stock powers duly executed in proper form for transfer;
(B)      the certificate required to be delivered pursuant to Section ‎8.2(d) ;
(C)      each of the Final Ancillary Documents to which any member of the Seller Group is a party, duly executed by the applicable member of the Seller Group;
(D)      resignations, effective as of the Closing Date, of those directors of the Company as the Purchaser may request;
(E)      a duly executed certificate of non-foreign status of Seller, dated the Closing Date, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B);

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(F)      an IRS Form W-9, Request for Taxpayer Identification Number and Certificate, duly executed by an officer of Seller; and
(G)      evidence reasonably satisfactory to Purchaser that Seller has paid, or caused to be paid, the Repayment Debt.
(ii)      Parent shall cause Purchaser to:
(A)      pay to Seller (or to any Affiliate designated by Seller) by wire transfer, to the account or accounts designated by Seller (or by such Affiliate) in the notice accompanying the Estimated Closing Statement, immediately available funds in the aggregate amount determined pursuant to, and in accordance with, Section ‎‎2.2 ; and
(B)      deliver to Seller the certificate required to be delivered pursuant to Section ‎‎8.3(c) .
2.4      Closing Payment Adjustments .
(a)      Not less than five Business Days prior to the anticipated Closing Date, Seller shall provide Purchaser with a statement with a written estimate of each of (i) Working Capital, (ii) Indebtedness of the Company and (iii) the CapEx Shortfall Amount, in each case as of the Closing (the “ Estimated Closing Statement ”), which shall be accompanied by a notice that sets forth (A) Seller’s determination of the Closing Payment Adjustments and the Purchase Price after giving effect to the Closing Payment Adjustments and (B) the account or accounts to which Purchaser shall transfer the Purchase Price pursuant to Section ‎‎2.3 . For the avoidance of doubt, the estimate of the Indebtedness of the Company as of the Closing set forth on the Estimated Closing Statement shall give effect to the repayment of Repayment Debt pursuant to Section ‎5.16 , which repayment shall have been completed at or prior to the Closing.
(b)      The Estimated Closing Statement shall be prepared in accordance with the Accounting Principles attached as Schedule I hereto (the “ Accounting Principles ”) and in accordance with GAAP, in each case, applied consistently with their application in connection with the preparation of the Company Financial Statements. It is understood and agreed that Annex A of Schedule I sets forth the calculation of the Target Working Capital (the “ Target Working Capital Statement ”).
(c)      From and after the delivery of the Estimated Closing Statement until the day prior to the Closing Date, Seller shall, and shall cause the Company to, (i) reasonably assist Purchaser and its Representatives in Purchaser’s review of the Estimated Closing Statement and (ii) make available the Representatives responsible for preparing the Estimated Closing Statement to discuss the Estimated Closing Statement with Purchaser. Seller shall consider in good faith any comments on the Estimated Closing Statement submitted by Purchaser.
2.5      Post-Closing Statement .
(a)      Within 60 days after the Closing Date, Purchaser shall prepare in good faith and deliver to Seller statements of (i) Working Capital, (ii) Indebtedness of the Company, and (iii) the CapEx Shortfall Amount, in each case as of the Closing (collectively, the “ Initial
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Closing Statement ”). The Initial Closing Statement shall be prepared in accordance with the Accounting Principles and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Company Financial Statements.
(b)      Following the Closing through the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall be permitted to access and review the books, records and work papers of the Company, and Purchaser shall, and shall cause its Affiliates (including the Company) and its and their respective employees, accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in connection with such review, including by providing access to such books, records and work papers and making available personnel to the extent reasonably requested; provided , that the accountants of Purchaser and its Affiliates shall not be obliged to make any books, records or work papers available to Seller and its Affiliates except in accordance with such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c)      Purchaser agrees that, following the Closing through the date that the Final Closing Statement becomes final and binding, it will not take or permit to be taken any actions with respect to any accounting books, records, policies or procedures on which the Company Financial Statements or the Initial Closing Statement is based, or on which the Final Closing Statement is to be based, that would impede or delay the determination of the amount of Working Capital, Indebtedness of the Company as of the Closing or the CapEx Shortfall Amount or the preparation of any Notice of Disagreement or the Final Closing Statement in the manner and utilizing the methods provided by this Agreement.
2.6      Reconciliation of Post-Closing Statement .
(a)      Seller shall notify Purchaser in writing no later than 30 days after Seller’s receipt of the Initial Closing Statement if Seller disagrees with the Initial Closing Statement, which notice shall describe the basis for such disagreement (the “ Notice of Disagreement ”). If no Notice of Disagreement is delivered to Purchaser by such time, then the Initial Closing Statement shall become final and binding upon the Parties in accordance with Section ‎2.6(c) .
(b)      During the 30 days immediately following the delivery of a Notice of Disagreement (the “ Resolution Period ”), Seller and Purchaser shall seek to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement.
(c)      If, at the end of the Resolution Period, Seller and Purchaser have been unable to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement, Seller and Purchaser shall submit all matters that remain in dispute with respect to the Notice of Disagreement to Grant Thornton LLP (the “ Independent Accounting Firm ”). Within 30 days after submission of such matters to the Independent Accounting Firm, the Independent Accounting Firm shall make a final determination in accordance with the Accounting Principles and the terms and definitions of this Agreement and based solely on the written submissions of the Parties, binding on the Parties, of the appropriate amount of each of

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the matters that remain in dispute as indicated in the Notice of Disagreement that Seller and Purchaser have submitted to the Independent Accounting Firm. With respect to each disputed matter, such determination, if not in accordance with the position of either Seller or Purchaser, shall not be in excess of the higher, or less than the lower, of the amounts advocated by Seller in the Notice of Disagreement or by Purchaser in the Initial Closing Statement with respect to such disputed matter. The Independent Accounting Firm shall not review or make any determination with respect to any matter other than the matters that remain in dispute as indicated in the Notice of Disagreement. The statements of (i) Working Capital, (ii) Indebtedness of the Company and (iii) the CapEx Shortfall Amount that are final and binding on the Parties, as determined either through agreement of the Parties pursuant to Section ‎2.6(a) or Section ‎2.6(b) or through the action of the Independent Accounting Firm pursuant to this Section ‎2.6(c) , are referred to as the “ Final Closing Statement .”
(d)      All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller, on the one hand, and Purchaser on the other hand. During the review by the Independent Accounting Firm, each of Purchaser and Seller shall, and shall cause its respective Affiliates (including, in the case of Purchaser, the Company) and its and their respective employees, accountants and other representatives to, each make available to the Independent Accounting Firm interviews with such personnel, and such information, books and records and work papers, as may be reasonably requested by the Independent Accounting Firm to fulfill its obligations under Section ‎2.6(c) ; provided , that the accountants of Seller or Purchaser shall not be obliged to make any work papers available to the Independent Accounting Firm except in accordance with such accountants’ normal disclosure procedures and then only after such Independent Accounting Firm has signed a customary agreement relating to such access to work papers. In acting under this Agreement, the Independent Accounting Firm shall act as an expert and not an arbitrator.
(e)      The process set forth in Section ‎‎2.5 and this Section ‎‎2.6 shall be the sole and exclusive remedy of any of the Parties and their respective Affiliates for any disputes related to the Closing Payment Adjustments, the Post-Closing Adjustment and the calculations and amounts on which they are based or set forth in the related statements and notices delivered in connection therewith. For the avoidance of doubt, the calculations to be made pursuant to Section ‎‎2.5 and this Section ‎‎2.6 and the Closing Payment Adjustments and Post-Closing Adjustment are not intended to be used to adjust for errors or omissions that may be found with respect to the Company Financial Statements or any inconsistencies between the Company Financial Statements or the Accounting Principles, on the one hand, and GAAP, on the other hand. After the determination of the Final Closing Statement, none of the Parties shall have the right to make any claim based upon the preparation of the Final Closing Statement or the calculation of Working Capital, Indebtedness or the CapEx Shortfall Amount as of the Closing (even if subsequent events or subsequently discovered facts would have affected the determination of the Final Closing Statement or the calculations of Working Capital, Indebtedness or the CapEx Shortfall Amount had such subsequent events or subsequently discovered facts been known at the time of the determination of the Final Closing Statement).
2.7      Post-Closing Adjustment . The “ Post-Closing Adjustment ” shall be equal to (a) (i) the Final Working Capital Adjustment Amount minus (ii) the Estimated Working Capital Adjustment Amount minus (b) (i) the amount of Indebtedness of the Company set forth in the
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Final Closing Statement minus (ii) the amount of Indebtedness of the Company set forth in the Estimated Closing Statement minus (c) (i) the CapEx Shortfall Amount set forth in the Final Closing Statement minus (ii) the Estimated CapEx Shortfall Amount. If the Post-Closing Adjustment is a positive amount, then Purchaser shall, and Parent shall cause Purchaser to, pay in cash to Seller (or one or more Affiliates designated by Seller) the amount of the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative amount, then Seller (or an Affiliate designated by Seller) shall pay in cash to Purchaser the absolute value of the amount of the Post-Closing Adjustment. Any such payment pursuant to this Section ‎‎2.7 shall be made within ten Business Days after the determination of the Final Closing Statement by wire transfer of immediately available funds.
2.8      Withholding . Purchaser shall be entitled to deduct and withhold from any payment made pursuant to this Agreement such amounts as are required to be deducted and withheld with respect to such payment under the Code, or any other provision of applicable Law; provided , that prior to making any such deduction or withholding, Purchaser shall notify Seller of its intent to withhold amounts from such payments no less than 10 Business Days prior to the Closing or, if later, as soon as reasonably practicable and shall reasonably cooperate with Seller to establish an applicable exemption from such deduction or withholding, if available. To the extent that any amounts are so withheld, such withheld amounts (i) will be remitted by Purchaser to the applicable taxing authority and (ii) will be treated for all purposes of this Agreement as having been paid to the Person in respect of which such withholding was made.
ARTICLE III

REPRESENTATIONS AND WARRANTIES OF SELLER
Except as set forth in (a) the reports, schedules, forms, statements and other documents filed by the Company with, or furnished to, the SEC and publicly available on or following January 1, 2016 (excluding any disclosures of factors or risks contained or references therein under the captions “Risk Factors” or “Forward-Looking Statements” and any other similar general, predictive or cautionary statements) or (b) the disclosure letter delivered to Purchaser prior to the execution of this Agreement (the “ Seller Disclosure Letter ”), Seller hereby represents and warrants to Parent and Purchaser as follows:
3.1      Organization and Qualification; No Subsidiaries . The Company is a corporation duly incorporated, validly existing and in good standing under the Laws of the State of Florida. Each of the Company’s Subsidiaries is duly incorporated, validly existing and in good standing under the Laws of its jurisdiction of incorporation. The Company and its Subsidiaries have all requisite corporate power and authority to carry on their respective businesses as now being conducted and are qualified to do business and are in good standing as a foreign corporation in each jurisdiction where the conduct of their businesses requires such qualification, except, in each case, for any such failures that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Section 3.1 of the Seller Disclosure Letter sets forth a correct and complete list of the Company’s Subsidiaries, each of which is under the exclusive direct or indirect control of the Company or its designees. Other than as set forth in Section 3.1 of the Seller Disclosure Letter , the Company does not own any equity interests in any Person. Seller has made available to Purchaser correct and complete copies of the

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Organizational Documents of the Company and the Organizational Documents of the Company’s Subsidiaries, in each case, in effect as of the date of this Agreement.
3.2      Capitalization of the Company .
(a)      The Shares are duly authorized, validly issued, fully paid and nonassessable and owned by Seller, free and clear of all Encumbrances (other than any Encumbrances under applicable securities Laws). The Shares were not issued in violation of any Organizational Document of the Company and Seller has good and valid title and ownership, of record and beneficially, to the Shares. The Shares represent all of the outstanding common shares and all of the outstanding equity interests of the Company. No Person owns any equity interest, directly or indirectly, of the Company (other than Seller).
(b)      Except for the Shares, there are no shares of common stock, preferred stock or other equity interests of the Company issued and outstanding or held in treasury, and there are no preemptive or other outstanding rights, subscriptions, options, warrants, stock appreciation rights, redemption rights, repurchase rights, convertible, exercisable, or exchangeable securities or other agreements, arrangements or commitments of any character relating to the issued or unissued share capital or other equity ownership interest in the Company or any other securities or obligations convertible or exchangeable into or exercisable for, or giving any Person a right to subscribe for or acquire, any securities of the Company, and no securities evidencing such rights are authorized, issued or outstanding. The Company has no outstanding bonds, debentures, notes or other obligations that provide the holders thereof the right to vote (or are convertible or exchangeable into or exercisable for securities having the right to vote) with the sole stockholder of the Company on any matter.
3.3      Authority Relative to this Agreement . Seller has, and each member of the Seller Group will have prior to the Closing, all necessary corporate power and authority to execute, deliver and perform this Agreement and the Final Ancillary Documents to which it is a party and to consummate the transactions contemplated by this Agreement and the Final Ancillary Documents to which it is a party in accordance with the terms hereof and thereof. The execution, delivery and performance by Seller and each member of the Seller Group of this Agreement and the Final Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been, or will be prior to the Closing, duly and validly authorized by all necessary action on part of Seller, and no other proceedings on the part of Seller or any member of the Seller Group are, or will be as of immediately preceding the Closing, necessary to authorize the execution, delivery and performance, as applicable, of this Agreement or any Final Ancillary Document to which it is a party. This Agreement has been duly and validly executed and delivered by Seller, and, assuming the due authorization, execution and delivery of this Agreement by Parent and Purchaser, constitutes, and each Final Ancillary Document to which Seller or any member of the Seller Group is a party, when executed and delivered by the members of the Seller Group party thereto, and, assuming the due authorization, execution and delivery of such Final Ancillary Document by Parent, Purchaser or its applicable Affiliate party thereto, will constitute, a valid, legal and binding agreement of the applicable members of the Seller Group, enforceable against each such member in accordance with its terms, subject to the effect of any applicable Laws relating to bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or preferential transfers, or similar Laws relating
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to or affecting creditors’ rights generally, or general principles of equity (collectively, the “ Enforceability Exceptions ”).
3.4      Consents and Approvals; No Violations . No filing with or notice to, and no consent or approval of, any Governmental Entity is required on the part of Seller or any member of the Seller Group for the execution, delivery and performance by Seller of this Agreement or any Final Ancillary Document to which Seller or such member of the Seller Group is a party or the consummation by Seller and its Affiliates of the transactions contemplated hereby or thereby, except: (a) compliance with any applicable requirements of the HSR Act, (b) the consent and approval of the Federal Energy Regulatory Commission (the “ FERC ”) under Section 203 of the Federal Power Act (the “ FPA ”) or Section 205 of the FPA, as applicable, (c) pre-approvals of license transfers with the Federal Communications Commission (the “ FCC Pre-Approvals ”), (d) the authorizations or approvals listed on Section ‎3.4 of the Seller Disclosure Letter or (e) any permit, declaration, filing, authorization, registration, consent or approval, the failure to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. Assuming compliance with the items described in clauses (a) through (e) of the preceding sentence, neither the execution, delivery or performance by Seller of this Agreement or any Final Ancillary Document to which Seller or any member of the Seller Group is a party, nor the consummation by Seller of the transactions contemplated hereby or thereby will (i) conflict with or result in any breach or violation of any provision of its Organizational Documents or the Organizational Documents of the Company, (ii) result in a breach or violation of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to the creation of any Encumbrance, except for Permitted Encumbrances, or any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any Contract or any Permit of the Company or (iii) violate any Law applicable to the Company or any of its properties or assets, except, in the case of clauses (ii) or (iii), for breaches, violations, defaults, Encumbrances or rights of termination, amendment, cancellation or acceleration that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
3.5      Company SEC Documents; Financial Statements .
(a)      Since December 31, 2015, the Company has timely filed with (or furnished to) the SEC all forms, reports, schedules, statements, exhibits and other documents (including exhibits, financial statements and schedules thereto and all other information incorporated therein and amendments and supplements thereto) required by it to be filed (or furnished) under the Exchange Act or the Securities Act (collectively, the “ Company SEC Documents ”). As of its filing (or furnishing) date and, if amended prior to the date of this Agreement, as of the date of each such amendment, each Company SEC Document complied in all material respects with the applicable requirements of the Exchange Act and the Securities Act, as the case may be. As of its filing date (or if amended or superseded by a filing or amendment prior to the date of this Agreement, then as of the time of such filing or amendment), each Company SEC Document filed pursuant to the Exchange Act did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. Each Company SEC Document that is a registration statement, as amended or supplemented, if applicable, filed pursuant to the Securities Act, as of
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the date such registration statement or amendment became effective prior to the date of this Agreement, did not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading. The audited balance sheets and statements of capitalization of the Company as of December 31, 2017 and 2016 and the related statements of income, comprehensive income, common stockholder’s equity, and cash flows for each of the three years in the period ended December 31, 2017, and the related notes (collectively, the “ Company Financial Statements ”) (i) have been prepared in accordance with GAAP applied on a consistent basis during the periods involved (except as may be indicated in the notes thereto and except, in the case of the unaudited interim statements, as may be permitted under Form 10-Q of the Exchange Act) and (ii) fairly present in all material respects the financial position, the stockholders’ equity, the results of operations and cash flows of the Company as of the times and for the periods referred to therein (except as may be indicated in the notes thereto and subject, in the case of unaudited interim financial statements, to normal and recurring year-end adjustments). There are no outstanding or unresolved comments in comment letters received from the SEC staff with respect to any of the Company SEC Documents, and, to the Knowledge of Seller, none of the Company SEC Documents is subject to an active SEC review.
(b)      The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act.
(c)      The Company maintains a system of internal control over financial reporting (as defined in Rules 13a-15(f) and 15d-15(f) of the Exchange Act) designed to provide reasonable assurance regarding the reliability of the Company’s financial reporting and the preparation of financial statements for external purposes in conformity with GAAP. The Company has disclosed to the Company’s external auditors (a) any “significant deficiencies” or “material weaknesses” (as such terms are defined in Auditing Standard No. 5 of the Public Company Accounting Oversight Board) in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect the Company’s ability to record, process, summarize and report financial information and (b) any fraud, whether or not material, that involves management or other employees who have a significant role in the Company’s internal control over financial reporting.
(d)      The Company maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) designed to ensure that all information required to be disclosed by the Company in the reports that the Company files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the rules and forms of the SEC, and that all such information is accumulated and communicated to management as appropriate to allow timely decisions regarding required disclosure and to make the certifications of the chief executive officer and chief financial officer of the Company, as applicable, required under the Exchange Act with respect to such reports.
(e)      Except for liabilities or obligations (i) as (and to the extent) reflected or reserved against in the Company’s audited balance sheet as of December 31, 2017 (or the notes thereto) included in the Company SEC Documents prior to the date of this Agreement, (ii) incurred in the ordinary course of business consistent with past practice since December 31, 2017, (iii) required or contemplated to be incurred by this Agreement or (iv) that have not had,

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and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, the Company has no Liabilities.
(f)      Since December 31, 2015, (i) neither Seller nor the Company has received any written or, to the Knowledge of Seller, oral complaint, allegation, assertion or claim regarding accounting, internal accounting controls, auditing practices, procedures, methodologies or methods of the Company, or unlawful accounting or auditing matters with respect to the Company and (ii) no attorney representing Seller or its Subsidiaries (including the Company), whether or not employed by Seller or its Subsidiaries, has reported evidence of a violation of securities Laws, breach of fiduciary duty or similar violation by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents to the Seller’s or the Company’s Board of Directors or any of the respective committees thereof or to the general counsel or chief executive officer of Seller or the Company or any Subsidiary of Seller pursuant to the rules of the SEC adopted under Section 307 of the Sarbanes-Oxley Act, except, in each case, as has not resulted in, and that would not reasonably be expected to result in, (x) any material adjustment or change to the Company Financial Statements or (y) a finding of a “significant deficiency” or a “material weakness” (as such terms are defined in Auditing Standard No. 5 of the Public Company Accounting Oversight Board).
3.6      Absence of Certain Changes or Events . Except as contemplated by this Agreement, since December 31, 2017 through the date of this Agreement, (a) the business of the Company has been conducted in all material respects in the ordinary course of business consistent with past practice and (b) there has not occurred any Company Material Adverse Effect.
3.7      Sufficiency of Assets . Upon consummation of the transactions contemplated by this Agreement, taking into account all of the Form Ancillary Documents (or, as of the Closing, the Final Ancillary Documents) and any Intercompany Arrangements set forth on Section 5.9 of the Seller Disclosure Letter , the Company will own or have the right to use all of the assets, properties and rights necessary to conduct in all material respects the business of the Company as it is currently being conducted.
3.8      Company Material Contracts .
(a)      For purposes of this Agreement, the following Contracts to which the Company is a party shall be deemed to constitute “ Company Material Contracts ”:
(i)      each material Contract, ordinance, or other grant of any municipal, town or county franchise of the Company (the “ Franchises ”);
(ii)      all Contracts that individually involve expenditures by the Company in excess of $20,000,000 in the 12 months preceding the date of this Agreement;
(iii)      all Contracts that individually involve the receipt of payments by the Company in excess of $20,000,000 in the 12 months preceding the date of this Agreement;
(iv)      all Contracts for, or relating to, Indebtedness of the Company in excess of $20,000,000;

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(v)      all Contracts granting to any Person any right or option to purchase or otherwise acquire any assets (other than immaterial assets and immaterial inventory, excluding electricity, in the ordinary course) of the Company (including the Shares), including rights of first option, rights of first refusal, or other preferential purchase rights;
(vi)      all Contracts that, upon consummation of the transactions contemplated hereby, would limit the ability of Purchaser or its Affiliates to compete in any line of business or with any Person or in any geographic area or during any period of time (other than limitations that in the aggregate are immaterial);
(vii)      all partnership, joint venture and joint ownership Contracts, and all similar material Contracts (however named) of the Company involving a sharing of assets, profits, losses, costs or liabilities with a third party (including, for the purposes of this Section ‎3.8(a)(vii) , any Contract with Seller or any of its Subsidiaries that cannot be terminated without cause); and
(viii)      each other Contract that is a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the Securities Act).
(b)      Section ‎3.8(a) of the Seller Disclosure Letter sets forth a list of each Company Material Contract as of the date hereof, except for such Franchises, the absence of which would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (provided that such Franchises have been made available to Purchaser). Except as set forth in Section ‎3.8(b) of the Seller Disclosure Letter , Seller has made available to Purchaser true and complete copies of all such Company Material Contracts.
(c)      Except as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, (i) each Company Material Contract is a legal, valid and binding obligation of the Company and, to the Knowledge of Seller, each counterparty and is in full force and effect, subject to the Enforceability Exceptions, and (ii) neither the Company nor, to the Knowledge of Seller, any other party thereto, is in breach of, or in default under, any such Company Material Contract.
3.9      Legal Proceedings . Except as set forth on Section ‎3.9 of the Seller Disclosure Letter , there are no Actions existing, pending or, to the Knowledge of Seller, threatened in writing against the Company or any of its assets or properties (including the Subsidiaries of the Company), and there are no Orders outstanding against the Company or any of its assets or properties (including the Subsidiaries of the Company), in each case, that would reasonably be expected to have a Company Material Adverse Effect or would reasonably be expected to result in the issuance of an Order restraining, enjoining or otherwise prohibiting or delaying the transactions contemplated by this Agreement.
3.10      Compliance with Law; Orders .
(a)      The Company and its Subsidiaries are, and at all times since December 31, 2015, have been, in compliance with all Laws, Orders and Permits applicable to the Company and its Subsidiaries, except for violations which would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
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3.11      Real Property . Except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect, the Company has on the date of this Agreement (and at the Closing will have) good fee simple title to the Owned Real Property and all improvements thereon and valid leasehold interests in the Leased Real Property and all improvements thereon (to the extent leased by the Company), free and clear of all Encumbrances except Permitted Encumbrances and the Encumbrances listed on Section ‎3.11 of the Seller Disclosure Letter.
3.12      Employee Benefits .
(a)      Section 3.12(a) of the Seller Disclosure Letter sets forth a list as of the date hereof of each material Seller Benefit Plan and of each Company Benefit Plan.
(b)      With respect to each material Seller Benefit Plan and each Company Benefit Plan (whether or not material), Seller has made available to Purchaser, to the extent applicable, (i) the written document evidencing such plan or, with respect to any such plan that is not in writing, a written description of the material terms thereof, and all amendments or material supplements thereto, (ii) the summary plan description, together with each summary of material modifications, (iii) the annual report (Form 5500, including schedules and attachments) filed with the IRS for the last plan year, and the most recently received IRS determination letter, (iv) any related trust agreements, insurance contracts or documents of any other funding arrangements, and (v) the most recently prepared actuarial report or financial statement.
(c)      All material contributions or premiums required to be made by the Company or the Seller Group to any Seller Benefit Plan have been timely made or accrued.
(d)      No Seller Benefit Plan is a “multiemployer plan” within the meaning of Section 3(37) of ERISA or a plan that has two or more contributing sponsors at least two of whom are not under common control, within the meaning of Section 4063 of ERISA, and there are no circumstances or events that could result in any material Liability to the Company with respect to such a plan or a “pension plan” within the meaning of Section 3(2) of ERISA, other than as contemplated by Section ‎6.3(b) .
(e)      With respect to the Seller Pension Plan: (i) there does not exist any failure to meet the “minimum funding standard” of Section 412 of the Code or 302 of ERISA (whether or not waived); (ii) such plan is not in “at-risk” status for purposes of Section 430 of the Code; (iii) the most recent actuarial report prepared by such plan’s actuary was based upon reasonable actuarial assumptions and was accurate in all material respects as of the valuation date of such report, and there has not been a material change in the present value of accrued benefits under such plan or the fair market value of the assets allocable to such accrued benefits since the most recent valuation date; (iv) no reportable event within the meaning of Section 4043(c) of ERISA has occurred; (v) all premiums to the Pension Benefit Guaranty Corporation (the “ PBGC ”) have been timely paid in full; (vi) no Liability under Title IV of ERISA related to plan termination has been or is expected to be incurred by Seller or any of its ERISA Affiliates; and (vii) the PBGC has not instituted proceedings to terminate any such plan (nor has any material correspondence been received from a Governmental Entity) and, to the Knowledge of Seller, no circumstances exist which could serve as a basis for the institution of such proceedings.
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(f)      Each Seller Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received from the IRS a favorable determination letter (or in the case of a master or prototype plan, a favorable opinion letter or in the case of a volume submitter plan, a favorable advisory letter) as to its qualification under Section 401(a) of the Code, and nothing has occurred that would be reasonably expected to materially adversely affect the qualified or exempt status of such Seller Benefit Plan or trust, nor is the consummation of the transactions provided for by this Agreement reasonably expected to have any such effect.
(g)      Each Seller Benefit Plan is being, and has been, operated and administered in accordance with ERISA, the Code and all other applicable Laws and regulations thereunder and in accordance with its terms, except as would not reasonably be expected, individually or in the aggregate, to have a Company Material Adverse Effect.
(h)      Except as set forth on Section ‎3.12(h) of the Seller Disclosure Letter , neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement (whether alone or in connection with other events) will (i) entitle any Company Employee to compensation or benefits or any increase in compensation or benefits, (ii) accelerate the time of any payment or vesting or result in any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, increase the amount payable under or result in any other obligation pursuant to, any Seller Benefit Plan or (iii) constitute an event described in Section 280G(b)(2)(A)(i) of the Code.
(i)      Seller and its Affiliates have reserved the right to amend, terminate or modify at any time all plans or arrangements providing for retiree health or life insurance coverage or other retiree welfare benefits, and no representations or commitments have been made in the past 15 years through plan documents, employee or retiree communications from Seller, its Affiliates, or a predecessor entity of either or in Labor Agreements (upon expiration thereof or pursuant to bargaining), that would limit the right of Seller or Purchaser or their respective Affiliates to amend, terminate or modify any such benefits.
(j)      All of the assets held in the Gulf Power Company Post-Retirement Welfare Benefits Trust (the “ Seller Welfare Trust ”) are dedicated to the Retiree Welfare Participants and, as of December 31, 2017, had a fair market value of $478,929 as determined by Seller’s plan actuaries, Aon Hewitt, under ASC 715 using appropriate actuarial and valuation methods. All of the assets held in the Gulf Power Company 401(h) account under the Seller Pension Plan (the “ Seller 401(h) Account ”) are dedicated to the Retiree Welfare Participants and, as of December 31, 2017 had a fair market value of $19,171,604 as determined by Seller’s plan actuaries, Aon Hewitt, under ASC 715 using appropriate actuarial and valuation methods. None of the assets in the Seller Welfare Trust or Seller 401(h) Account as of December 31, 2017 have been transferred out of the Seller Welfare Trust or Seller 401(h) Account, as applicable, or reallocated to individuals who are not Retiree Welfare Participants.
3.13      Labor and Employee Matters.
(a)      Other than in the ordinary course of business consistent with past practice, Seller and its Affiliates have not, during the one-year period preceding the date of this Agreement, transferred (i) any employee of an Affiliate of Seller (other than the Company) to the
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Company or (ii) any employee of the Company to an entity of Seller and its Affiliates other than the Company. Section ‎‎3.13(a) of the Seller Disclosure Letter sets forth a list of all collective bargaining agreements, as well as any side agreements, amendments or memoranda relating to the Company Employees (each, a “ Labor Agreement ”). Seller does not have any employees and has not had any employees during the one-year period preceding the date of this Agreement. None of the Subsidiaries of the Company (x) currently employ, or have ever employed, any employee or (y) have any Liability in respect of the employment of any employee.
(b)      Seller and its Affiliates have complied with the WARN Act, to the extent applicable, except to the extent such failure to comply would not result in Purchaser or any of its Affiliates having any Liability.
(c)      No group of Company Employees or labor organization (with respect to any Company Employees) has made a pending demand for recognition or certification, and there are and have been no representation or certification proceedings or petitions seeking a representation proceeding, with the National Labor Relations Board or any other labor relations tribunal or authority, nor have any such demands, proceedings or petitions been brought or filed or threatened to be brought or filed within the past two years. There are not now, nor have there been at any time within the last two years, any actual or threatened organizing activities, strikes, work stoppages, slowdowns, lockouts, material arbitrations or material grievances, or other material labor disputes against or involving the Company, except as would not, individually or in the aggregate, be reasonably likely to have a Company Material Adverse Effect. The Company is (and, with respect to the Company Employees, the Seller and its Affiliates are) in compliance in all material respects with all Labor Agreements and with all applicable Laws in respect of employment and employment practices, terms and conditions of employment, wages and hours and occupational safety and health.
(d)      Seller has made available to Parent a true and complete list, as of the date hereof, of all Company Employees and all Pension Participants.
3.14      Taxes .
(a)      All material Tax Returns required to be filed by, or with respect to, the Company have been timely filed (taking into account extensions), and all Tax Returns filed by, or with respect to, the Company are accurate and complete in all material respects.
(b)      All material Taxes required to be paid by, or with respect to, the Company have been duly and timely paid or will be duly and timely paid by the due date thereof.
(c)      The Company has not received within the past three years prior to the date hereof any written notice of any actions for the assessment or collection of any material Taxes.
(d)      There are no Encumbrances for material Taxes against any assets of the Company or the Shares, other than Permitted Encumbrances.
(e)      No claim has been made within the last six years by any Governmental Entity in a jurisdiction where the Company does not file Tax Returns that the Company is or may be subject to taxation by such jurisdiction.
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(f)      The Company has not waived any statute of limitations with respect to any material amounts of Tax or agreed to any extension of time with respect to any material Tax assessment or deficiency.
(g)      No Tax Proceeding with respect to any material Taxes of the Company is existing, pending or being threatened in writing.
(h)      The Company is not liable for any material Taxes of any other Person as a result of successor liability or transferee liability (whether pursuant to Treasury Regulations Section 1.1502-6 or any analogous provision of state, local, or foreign Law, Contract or otherwise).
(i)      The Company has materially complied with all applicable Laws relating to the collection and withholding of Taxes.
(j)      The Company is not, nor reasonably could be expected to be, required to include any material item of income in, or exclude any material item of deduction from, taxable income for any Post-Closing Tax Period, as a result of any (i) change in method of accounting pursuant to Section 481 of the Code or the Treasury Regulations promulgated thereunder (or any similar or analogous provision of state, local or foreign Law) made prior to the Closing, (ii) installment sale or open transaction disposition made or entered into prior to the Closing, (iii) intercompany transaction made or entered into prior to the Closing or excess loss account, in each case, described in Treasury Regulations under Section 1502 of the Code (or any similar or analogous provision of state, local or foreign Law), (iv) prepaid amount received prior to the Closing, (v) “closing agreement” within the meaning of Section 7121 of the Code (or any similar or analogous provision of state, local or foreign Law) entered into prior to the Closing or (vi) election pursuant to Section 108(i) of the Code.
(k)      Since the date two years prior to the date hereof, the Company has not been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 355(a) of the Code.
(l)      The Company has not participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4.
(m)      The Company does not own any equity interest in any entity treated as a partnership for purposes of Treasury Regulations Section 301.7701-3, any entity treated as a trust for purposes of Treasury Regulations Section 301.7701-4, any “controlled foreign corporation” within the meaning of Section 957 of the Code or any other “flowthrough” entity.
3.15      Environmental Matters . Except for such matters that would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect:
(a)      All Environmental Permits that are necessary for the operation of the business of the Company as it is currently being operated have been obtained or timely applied for and are in full force and effect, and the Company is in compliance with the requirements of all applicable Environmental Laws.

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(b)      Except for matters that have been fully resolved or are set forth on Section ‎3.15(b) of the Seller Disclosure Letter , the Company is not, nor since December 31, 2015 has, been subject to any consent decree, agreement, or Order with any Governmental Entity arising under Environmental Laws, or received any written notice or report regarding any actual or alleged violation of Environmental Laws, or any liabilities or potential liabilities, including any investigatory, remedial, or corrective obligations, arising under Environmental Laws.
(c)      Except as set forth on Section ‎3.15(c) of the Seller Disclosure Letter , to the Knowledge of Seller, there is and has been no Release from, in, on, or beneath any of the Real Property (except as permitted pursuant to Environmental Laws or Environmental Permits) that would reasonably be expected to form the basis for any Environmental Claims against the Company.
(d)      Except as set forth on Section ‎3.15(d) of the Seller Disclosure Letter , there are no Environmental Claims existing, pending, threatened in writing or, to the Knowledge of Seller, threatened orally, against the Company that have not been fully and finally resolved.
(e)      Seller or the Company has made available to Purchaser copies of all Phase I and Phase II environmental assessments prepared since December 31, 2015 and that are in its possession that describe environmental matters that would reasonably be expected to be material to the Company.
3.16      Brokers . Seller will be solely responsible for the fees and expenses of any broker, finder or investment banker entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Seller or any of its Affiliates.
3.17      Regulatory Compliance .
(a)      (i) Seller is a “public utility holding company” under the Public Utility Holding Company Act of 2005 (including the regulations of FERC thereunder) and (ii) the Company is a “Public Utility” and “Electric Utility” as those terms are defined in Title XXVII, Section 366.02 of the annotated statutes of the State of Florida. The Company is subject to regulation (i) as an “electric public utility” pursuant to the rules and regulations promulgated by the FPSC, (ii) by FERC as a “transmitting utility” under the Federal Power Act and (iii) by the North American Electric Reliability Corporation (“ NERC ”). The Company holds all franchises granted by municipalities and other Governmental Entities for the placement of utility facilities in or along public rights of way that are required to conduct the business of the Company. The Company is not party to any ongoing enforcement actions by the FPSC, the FERC or the NERC, except for such regulatory proceedings and enforcement actions that have not had and would not have, individually or in the aggregate, a Company Material Adverse Effect. Since December 31, 2015, the Company has operated in accordance with its Rules and Regulations for Electric Service approved by the FPSC in all material respects.
(b)      All filings required to be made by the Company since December 31, 2015, with FERC and the FPSC, as the case may be, have been made, including all forms, statements, reports, agreements and all documents, exhibits, amendments and supplements appertaining
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thereto, including all rates, tariffs and related documents, and all such filings complied, as of their respective dates, with all applicable requirements of applicable statutes and the rules and regulations promulgated thereunder, except for filings the failure of which to make or the failure of which to make in compliance with all applicable requirements of applicable statutes and the rules and regulations promulgated thereunder, would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
3.18      Insurance .
(a)      Except as would not reasonably be likely, individually or in the aggregate, to have a Company Material Adverse Effect, (i) the Company is insured with reputable insurers or is self-insured against such risks and in such amounts as Seller reasonably has determined to be prudent and consistent with industry practice, and the Company is in compliance in all material respects with its insurance policies and is not in default under any such policy, (ii) each such policy is in full force and effect and (iii) no written notice of cancellation, termination or nonrenewal (other than written notices of nonrenewals received in the ordinary course of business) has been received by the Company with respect to any such insurance policy.
(b)      Within the five years immediately preceding the date hereof and as of the date hereof, there has been no claim filed by the Company under the Pre-Closing Insurance for which the total damages (including amounts paid by the applicable insurer and the Company) exceeded $3,000,000. Section ‎3.18 of the Seller Disclosure Letter sets forth a list of open claims, as of the date hereof, made by the Company under the Pre-Closing Insurance, or of which the Company has notice and intends to make a claim, or could file a claim if it met the deductibles or self-insured retentions, under the Pre-Closing Insurance, in each case, for which the probable and reasonably estimable damages (including amounts expected to be paid by the applicable insurer and the Company) as of the date hereof exceed $100,000.
3.19      Information Security . The Company has taken, or one or more of the Company’s Affiliates have taken on the Company’s behalf, commercially reasonable steps to protect the material information technology systems currently used in the conduct of the business of the Company (the “ IT Systems ). The Company has in place, or one or more of the Company’s Affiliates have in place on the Company’s behalf, commercially reasonable disaster recovery plans, procedures and facilities for the IT Systems and have taken commercially reasonable steps to safeguard the security of the IT Systems. To the Knowledge of Seller, there have been no unauthorized intrusions or breaches of the security of the IT Systems since December 31, 2015 that, pursuant to any applicable Law, would require the Company to notify customers or employees of such breach or intrusion.
3.20      No Other Representations or Warranties; No Reliance . Except for the representations and warranties expressly set forth in this ‎ Article ‎III , neither Seller nor any other Person on behalf of Seller has made, and Seller hereby expressly disclaims and negates, any other express or implied representation or warranty whatsoever (whether at law (including at common law or by statute) or in equity) with respect to Seller or the Company or any matter relating to any of them, including their respective businesses, affairs, assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any other information made available to Parent, Purchaser or any of their representatives by or on behalf of
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Seller, and any such representations or warranties are expressly disclaimed. Seller acknowledges and agrees that, except for the representations and warranties contained in Article ‎IV , neither Parent, Purchaser nor any other Person on behalf of Parent or Purchaser has made or makes, and Seller has not relied upon, any representation or warranty, whether express or implied, with respect to Parent, Purchaser, their Affiliates or any matter relating to any of them, including their respective businesses, affairs, assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any other information provided or otherwise furnished to Seller or any of its representatives by or on behalf of Parent or Purchaser, and that any such representations or warranties are expressly disclaimed. Seller acknowledges and agrees that neither Parent, Purchaser nor any other Person on behalf of Parent or Purchaser has made or makes, and Seller has not relied upon, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to Seller or any of its representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of Parent, Purchaser or their respective Affiliates (including the reasonableness of the assumptions underlying any of the foregoing), whether or not included in any management presentation or in any other information made available to Seller, its Affiliates or any of their respective representatives or any other Person, and that any such representations or warranties are expressly disclaimed.
ARTICLE IV

REPRESENTATIONS AND WARRANTIES
OF PURCHASER AND PARENT
Except as set forth in the reports, schedules, forms, statements and other documents filed by Parent with, or furnished to, the SEC and publicly available on or following January 1, 2016 (excluding any disclosures of factors or risks contained or references therein under the captions “Risk Factors” or “Forward-Looking Statements” and any other similar general, predictive or cautionary statements), each of Purchaser and Parent hereby represents and warrants to Seller as follows:
4.1      Organization and Qualification . Each of Parent and Purchaser is an entity duly organized, validly existing and in good standing under the Laws of the jurisdiction of its organization and each of Parent and Purchaser has all requisite power and authority to carry on its businesses as now being conducted and is qualified to do business and is in good standing as a legal entity in each jurisdiction where the conduct of its business requires such qualification, except, in each case, for any such failures that would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
4.2      Authority Relative to this Agreement . Each of Parent and Purchaser has all necessary power and authority to execute, deliver and perform this Agreement and the Final Ancillary Documents to which it is a party and to consummate the transactions contemplated by this Agreement and the Final Ancillary Documents to which it is a party in accordance with the terms hereof and thereof. The execution, delivery and performance by Parent and Purchaser of this Agreement and the Final Ancillary Documents to which it is a party, and the consummation of the transactions contemplated hereby and thereby, have been duly and validly authorized by
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all necessary action on part of Parent and Purchaser, and no other proceedings on the part of Parent or Purchaser are necessary to authorize the execution, delivery and performance, as applicable, of this Agreement. This Agreement has been duly and validly executed and delivered by Parent and Purchaser, and, assuming the due authorization, execution and delivery of this Agreement by Seller, constitutes, and each Final Ancillary Document to which Parent or Purchaser is a party, when executed and delivered by Parent, Purchaser and/or their applicable Affiliate party thereto, and, assuming the due authorization, execution and delivery of such Final Ancillary Document by the applicable member of the Seller Group, will constitute, a valid, legal and binding agreement of Parent, Purchaser and/or its applicable Affiliates, enforceable against Parent, Purchaser and/or such Affiliates in accordance with its terms, subject to the Enforceability Exceptions.
4.3      Consents and Approvals; No Violations . No filing with or notice to, and no consent or approval of, any Governmental Entity is required on the part of Parent, Purchaser or any of their Affiliates for the execution, delivery and performance by Parent, Purchaser and/or their Affiliates, as applicable, of this Agreement or any Ancillary Agreement to which such Person is a party or the consummation by Parent, Purchaser and/or their Affiliates, as applicable, of the transactions contemplated hereby or thereby, except (a) compliance with any applicable requirements of the HSR Act, (b) the consent and approval of FERC under Section 203 of the FPA or Section 205 of the FPA, as applicable, (c) the FCC Pre-Approvals, (d) compliance with Permits from any Governmental Entity or (e) any such permit, declaration, filing, authorization, registration, consent or approval, the failure to make or obtain would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. Assuming compliance with the items described in clauses (a) through (e) of the preceding sentence, neither the execution, delivery or performance by Parent, Purchaser and/or their Affiliates, as applicable, of this Agreement or any Final Ancillary Document to which such Person is a party, nor the consummation by Parent, Purchaser and/or their Affiliates, as applicable, of the transactions contemplated hereby or thereby will (i) conflict with or result in any breach or violation of any provision of Parent’s or Purchaser’s Organizational Documents, (ii) result in a breach or violation of, or constitute (with or without due notice or lapse of time or both) a default (or give rise to the creation of any Encumbrance, except for Permitted Encumbrances, or any right of termination, amendment, cancellation or acceleration) under, any of the terms, conditions or provisions of any material Contract or material Permit to which Parent, Purchaser or any of their respective properties or assets are bound or (iii) violate any Law applicable to Parent, Purchaser or any of their Affiliates or any of their respective properties or assets, except, in the case of clauses (ii) or (iii), for breaches, violations, defaults, Encumbrances or other rights that would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
4.4      Legal Proceedings . There is no Action existing, pending or, to the knowledge of Purchaser, threatened in writing, against Parent or Purchaser except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect. No Order has been imposed on Parent or Purchaser except as would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
4.5      Brokers . Purchaser or one of its Affiliates will be solely responsible for the fees and expenses of any broker, finder or investment banker entitled to any brokerage, finder’s or

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other fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser or any of its Affiliates.
4.6      Financial Capability . Purchaser will have available on the Closing Date funds sufficient to pay the Purchase Price and all expenses and other amounts payable pursuant to this Agreement, and will be able to pay all such amounts and otherwise perform the obligations of Purchaser under this Agreement. In no event shall the receipt or availability of any funds or financing by Purchaser or any of its Affiliates or any other financing or other transactions be a condition to any of Purchaser’s obligations hereunder.
4.7      Investment Decision . Purchaser is acquiring the Shares for investment and not with a view toward or for the resale in connection with any distribution thereof, or with any present intention of distributing or selling such Shares . Purchaser acknowledges that the Shares have not been registered under the Securities Act or any other federal, state, foreign or local securities Law, and agrees that such Shares may not be sold, transferred, offered for sale, pledged, distributed, hypothecated or otherwise disposed of without registration under the Securities Act, except pursuant to an exemption from such registration available under the Securities Act, and in compliance with any other federal, state, foreign or local securities Law, in each case, to the extent applicable. Purchaser is an “accredited investor” within the meaning of Rule 501(a) of the Securities Act, is able to bear the economic risk of holding the Shares for an indefinite period and has sufficient knowledge and experience in financial and business matters so as to be capable of evaluating the merits and risk of its investment in the Shares.
4.8      Independent Investigation . Purchaser has such knowledge and experience in financial and business matters as is required for evaluating the merits and risks of its purchase of the Shares and is capable of such evaluation. Purchaser acknowledges and agrees that it has conducted its own independent review and analysis, and, based thereon, has formed an independent judgment concerning the business, affairs, assets, liabilities, conditions, results of operations and prospects of the Company.
4.9      No Other Representations or Warranties; No Reliance . Except for the representations and warranties expressly set forth in this ‎ Article ‎IV , none of Parent, Purchaser or any other Person on behalf of Parent or Purchaser has made, and Parent and Purchaser each hereby expressly disclaims and negates any other express or implied representation or warranty whatsoever (whether at law (including at common law or by statute) or in equity) with respect to Parent, Purchaser, their respective Affiliates or any matter relating to any of them, including their respective businesses, affairs, assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any other information provided to Seller or any of its representatives by or on behalf of Parent or Purchaser, and any such representations or warranties are expressly disclaimed . Each of Parent and Purchaser acknowledges and agrees that, except for the representations and warranties contained in ‎ Article ‎III , neither Seller nor any other Person on behalf of Seller has made or makes, and Parent and Purchaser have not relied upon, any representation or warranty, whether express or implied, with respect to Seller, its Affiliates or any matter relating to any of them, including their respective businesses, affairs, assets, liabilities, financial condition or results of operations, or with respect to the accuracy or completeness of any other information made available to Parent, Purchaser or any of their representatives by or on behalf of Seller , and that any such representations or warranties are
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expressly disclaimed . Each of Parent and Purchaser acknowledges and agrees that neither Seller nor any other Person on behalf of Seller has made or makes, and Parent and Purchaser have not relied upon, any representation or warranty, whether express or implied, with respect to any projections, forecasts, estimates or budgets made available to Parent, Purchaser or any of their representatives of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of Seller or its Affiliates (including the reasonableness of the assumptions underlying any of the foregoing) , whether or not included in any management presentation or in any other information made available to Parent, Purchaser, their Affiliates or any of their respective representatives or any other Person, and that any such representations or warranties are expressly disclaimed .
ARTICLE V

ADDITIONAL AGREEMENTS
5.1      Conduct of Business .
(a)      Except (i) as expressly contemplated in this Agreement or required by applicable Law or Order, (ii) to the extent necessary to respond to operational emergencies, failures or outages ( provided that the Company provides notice to the Purchaser as soon as practicable), or (iii) as otherwise described in Section ‎5.1 of the Seller Disclosure Letter , during the period from the date of this Agreement to the Closing, Seller will, and will cause the Company and its Subsidiaries to, (x) operate the business of the Company in the ordinary course of business consistent with past practice in all material respects, use commercially reasonable efforts to preserve intact the business of the Company and preserve the goodwill and relationships with customers, suppliers, and others having business dealings with the Company and (y) not, without the prior written consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed):
(A)      sell, lease (as lessor), transfer, or otherwise dispose of any of the assets of the Company or any of its Subsidiaries, other than (1) the use or sale of inventory in the ordinary course of business consistent with past practice and on an arm’s-length basis to a third party, (2) the disposal of obsolete assets in the ordinary course of business consistent with past practice and on an arm’s-length basis to a third party, (3) pursuant to Contracts with third parties in effect on the date of this Agreement to the extent made available to Purchaser, (4) in connection with settlements, compromises, consent decrees or settlement agreements otherwise permitted under this Section ‎5.1(a) , (5) the disposal of assets of the Company or its Subsidiaries, in either case, having an aggregate value of less than $10,000,000 in the ordinary course of business consistent with past practice or (6) the transfer, sale or disposal of spare parts to an Affiliate in compliance with applicable Law in the ordinary course of business consistent with past practice in an amount not to exceed $10,000,000;
(B)      enter into any Contract that would if in effect on the date hereof be a Company Material Contract or that would involve expenditures by the Company or payments to the Company in excess of $10,000,000 in the aggregate in any 12-month period that is not terminable by the Company upon less than 180 days’ notice without penalty, or terminate, assign, relinquish any material rights under, or amend any of the Company Material Contracts

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(other than (1) with respect to terminations, assignments and relinquishments, in the ordinary course of business consistent with past practice, (2) Intercompany Arrangements pursuant to Section ‎5.9 or Repayment Debt pursuant to Section ‎5.16 , in each case to be terminated prior to the Closing, (3) any Contract entered into in connection with a change in the interest rate determination method for tax-exempt revenue bonds issued for the benefit of the Company and (4) any Contract entered into, assigned or amended to effect any action otherwise permitted pursuant to this Section ‎5.1(a) ); provided , that, with respect to any amendment to a Company Material Contract, Seller will use its reasonable best efforts to provide such amendment to Purchaser within 5 Business Days (and, in any event, as soon as reasonably practicable) following the date of such amendment;
(C)      except as may be required by any Seller Benefit Plan as in effect on the date hereof or as expressly contemplated by Article ‎VI , (1) increase the base pay or aggregate benefits provided to any Company Employee, except for increases in base pay and aggregate benefits in the ordinary course of business consistent with past practice, (2) adopt, enter into or amend any Company Benefit Plan, (3) accelerate the vesting or payment of benefits under any Company Benefit Plan, (4) change any actuarial or other assumption used to calculate funding obligations with respect to any Seller Benefit Plan that would increase Liabilities of Purchaser or its Affiliates, other than in the ordinary course of business consistent with past practice, or transfer assets held in the Seller Welfare Trust or Seller 401(h) Account out of the Seller Welfare Trust or Seller 401(h) Account, as applicable, or reallocate such assets to individuals who are not Retiree Welfare Participants, (5) (i) with respect to Seller or its Affiliates (other than the Subsidiaries of the Company), hire any new employees who would be Company Employees, other than in the ordinary course of business consistent with past practice, and (ii) with respect to the Subsidiaries of the Company, hire any employees, or (6) transfer the employment of any employee of any Affiliate of Seller in a manner that would alter whether such employee is classified as a Company Employee; provided , that, between the date hereof and the Closing, Seller shall notify Parent as soon as reasonably practicable of any changes to the lists made available to Purchaser pursuant to Sections ‎3.13(d) or ‎6.3(b) as a result of the hire or transfer of an employee to the Company or its Subsidiaries in accordance with this Section ‎5.1(a)(iii)(y)‎(C) or the termination of an employee’s employment with the Company or its Subsidiaries;
(D)      (1) amend or propose to amend the Company’s or its Subsidiaries’ Organizational Documents, (2) adjust, split, reverse split, combine, subdivide, reclassify, redeem, repurchase or otherwise acquire any capital stock of the Company or (3) declare, set aside or pay any non-cash dividend or non-cash distribution to any Person with respect to the Company;
(E)      create, incur, assume or guarantee Indebtedness of the Company in the ordinary course of business consistent with past practice in excess of $10,000,000, except for (1) borrowings under any of the Company’s existing credit facilities incurred in the ordinary course of business consistent with past practice, (2) in connection with the Southern Company Funding Corporation’s commercial paper program in the ordinary course of business consistent with past practice, (3) refinancing of existing Indebtedness of the Company consistent with past practice or by only including terms consistent with past practice, and (4) Repayment Debt;


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(F)      issue, sell, pledge or dispose of, or agree to issue, sell, pledge or dispose of, any equity or voting securities or interests, or any options, warrants, convertible securities or other rights of any kind to acquire any shares of the Company’s capital stock, including the Shares, or other equity or voting securities or interests rights of any kind or any debt securities which are convertible into or exchangeable for such capital stock;
(G)      make any change in financial accounting methods, principles or practices of the Company, except (1) as required by any change in GAAP (or any interpretation thereof) or (2) for any change required to be made under GAAP or applicable Law to the consolidated financial accounting methods, principles or practices of the Seller Group as a whole;
(H)      other than such actions as are otherwise required by applicable Tax Law or required under guidance issued by the IRS and/or the United States Department of Treasury subsequent to the date hereof with respect to provisions of the Tax Cuts and Jobs Act, (1) make, change or revoke any material Tax election, (2) change any Tax accounting period, (3) adopt or change any material method of Tax accounting, (4) settle or compromise any audit, Action or assessment in respect of a material amount of Taxes, (5) apply for any Tax ruling or (6) amend any Tax return;
(I)      fail to make capital expenditures in the ordinary course of business pursuant to the capital expenditures plan in Section ‎5.1(a)(iii)(y)‎(I) of the Seller Disclosure Letter during the time periods specified therein;
(J)      dissolve, adopt a plan of complete or partial liquidation, or effect a restructuring or recapitalization, with respect to the Company or its Subsidiaries;
(K)      institute or settle or compromise any material Action, or enter into any material Order, consent decree or settlement agreement with any Governmental Entity, in any way relating to the business of the Company, including any Action arising out of or in connection with the enactment of the Tax Cuts and Jobs Act;
(L)      make any investment in or acquisition of any assets, properties or businesses for consideration in excess of $25,000,000 in the aggregate, other than (1) purchases of inventory and supplies in the ordinary course of business consistent with past practice and on an arm’s-length basis from third parties or (2) the capital expenditures set forth on Section ‎5.1(a)(iii)(y)‎(I) of the Seller Disclosure Letter ;
(M)      subject any material asset to any Encumbrance, other than Permitted Encumbrances or Encumbrances that will be released at or prior to the Closing; or
(N)      agree or commit to do or take any action described in this Section ‎5.1(a) .
(b)      Nothing contained in this Agreement shall give Purchaser, directly or indirectly, the right to control or direct Seller’s or any of its Affiliates’ (including the Company’s) businesses or operations . Nothing contained in this Agreement shall give Seller,

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directly or indirectly, the right to control or direct Purchaser’s or any of its Affiliates’ businesses or operations.
5.2      Access to Information .
(a)      Seller shall, and shall cause the Company to, during ordinary business hours and upon reasonable notice (i) give Purchaser and its representatives reasonable access to the Company and (ii) permit Purchaser and its representatives to make such reasonable inspections thereof as Purchaser may reasonably request; provided , however , that (A) any such inspection will be conducted in such a manner as not to materially interfere with the operations of the Company or any other Person and (B) neither Seller nor the Company shall be required to take any action which would constitute or result in a waiver of the attorney-client privilege or violate any Contract or applicable Law. If any material is withheld pursuant to the preceding sentence, Seller shall, to the extent possible without violating legal restrictions or risking a loss of attorney client privilege, inform Purchaser as to the general nature of what is being withheld. Purchaser shall indemnify and hold harmless Seller from and against any Losses incurred by Seller, its Affiliates or its or their representatives by any action of Purchaser or its Representatives while present on any premises to which Purchaser is granted access hereunder. Notwithstanding anything in this Section ‎5.2(a) to the contrary, (x) Purchaser will not have access to personnel records if such access could, in Seller’s good faith judgment, subject Seller to risk of liability or otherwise violate applicable Law, including the Health Insurance Portability and Accountability Act of 1996 and (y) any inspection relating to environmental matters by or on behalf of Purchaser will be strictly limited to visual inspections and site visits commonly included in the scope of “Phase 1” level environmental inspections, and Purchaser shall not have any right to perform or conduct any other investigation or inspection, including sampling or testing at, in, on, around or underneath any of the Real Property.
(b)      For a period of seven years after the Closing Date, each Party and its representatives will have reasonable access to all of the books and records relating to the Company in the possession of the other Party, and to the employees of the other Party, to the extent that such access may reasonably be required by such Party in connection with any Action. Such access will be afforded by the applicable Party upon receipt of reasonable advance notice and during normal business hours, and will be conducted in such a manner as not to interfere with the operation of the business of any Party or its respective Affiliates. The Party exercising the right of access hereunder will be solely responsible for any costs or expenses incurred by either Party in connection therewith. Each Party shall retain such books and records for a period of seven years from the Closing Date.
5.3      Confidentiality .
(a)      For a period of two years following the Closing, each of Parent and Purchaser will, and will cause their respective Affiliates and the Purchaser’s Representatives to, hold all of Seller’s Confidential Information in strict confidence and not disclose any of Seller’s Confidential Information to any Person other than its Affiliates and its Representatives; provided , however , that upon the Closing, the provisions of (x) this Section ‎5.3 and (y) the Confidentiality Agreement will, in each case, expire with respect to any information to the extent related to the Company (“ Company Confidential Information ”).

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(b)      Notwithstanding the foregoing Section ‎5.3(a) , Parent or Purchaser may disclose Seller’s Confidential Information to the extent that such information (i) becomes publicly available after the Closing other than as a result of a disclosure, directly or indirectly, by Parent, Purchaser or their respective Representatives in violation of this Agreement, (ii) becomes available to Parent or Purchaser after the Closing on a non-confidential basis from a source that Parent or Purchaser, as applicable, reasonably believes is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation or (iii) is developed by Parent or Purchaser independently after the Closing without use of any of Seller’s Confidential Information. In the event that Parent, Purchaser or their respective Representatives are requested pursuant to, or required by, applicable Law to disclose any of Seller’s Confidential Information, Parent, Purchaser or such Representative, as applicable, shall promptly notify Seller so that Seller may seek a protective order or other appropriate remedy, and Parent, Purchaser or such Representative, as applicable, will cooperate with Seller in such effort. In the absence of such protective order or other remedy, Parent, Purchaser or such Representative, as applicable, will furnish only that portion of Seller’s Confidential Information which it is advised by counsel is legally required (after consulting with Seller and its counsel as to such disclosure and the nature and wording of such disclosure) and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to such Confidential Information.
(c)      If the transactions contemplated hereby are not consummated, at Seller’s request, Parent and Purchaser will promptly return to Seller or destroy all copies of any Confidential Information in accordance with the terms of, and as required by, the Confidentiality Agreement.
(d)      For a period of two years following the Closing, Seller will, and will cause its Affiliates and its Representatives to, hold (x) all of Purchaser’s Confidential Information and (y) all Company Confidential Information, in each case, in strict confidence and not disclose any of Purchaser’s Confidential Information or Company Confidential Information to any Person other than its Affiliates and Representatives; provided , however , that the terms “Confidential Information” and “Company Confidential Information” shall not include information that (i)  becomes publicly available after the Closing other than as a result of a disclosure, directly or indirectly, by Seller or its Representatives in violation of this Agreement, (ii) becomes available to Seller after the Closing on a non-confidential basis from a source that Seller reasonably believes is not prohibited from disclosing such information by a legal, contractual or fiduciary obligation or (iii) is developed by Seller independently after the Closing and without use of Purchaser’s Confidential Information or Company Confidential Information. In the event that Seller or its Representatives are requested pursuant to, or required by, applicable Law to disclose any of Purchaser’s Confidential Information or any Company Confidential Information, Seller or its applicable Representative shall promptly notify Purchaser so that Purchaser may seek a protective order or other appropriate remedy, and Seller (or its applicable Representative) will cooperate with Purchaser in such effort. In the absence of such protective order or other remedy, Seller or its applicable Representative will furnish only that portion of Purchaser’s Confidential Information and/or Company Confidential Information which it is advised by counsel is legally required (after consulting with Purchaser and its counsel as to such disclosure and the nature and wording of such disclosure) and will exercise all reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to such Confidential Information and/or Company Confidential Information.

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5.4      Further Assurances . Subject to the terms and conditions of this Agreement, at any time or from time to time after the Closing, each of Seller, Parent and Purchaser shall, and shall cause their respective Affiliates to, execute and deliver such other documents and instruments, provide such materials and information and take such other actions as may reasonably be necessary, proper or advisable, to the extent permitted by Law, to fulfill its obligations under this Agreement and to cause the Sale and other transactions contemplated hereby to occur.
5.5      Required Actions .
(a)      Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby.
(b)      Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and making of any applications and filings (including the content, terms and conditions of such applications and filings) with any Governmental Entity, the resolution of any investigation or other inquiry of any Governmental Entity, the process for obtaining any consents, registrations, approvals, permits and authorizations of any Governmental Entity (including the Required Regulatory Approvals), and the making or discussing of any and all proposals relating to any regulatory commitments of Purchaser, Seller, their respective Affiliates or business, or with any Governmental Entity, its staff, intervenors or customers, in each case, in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller will cause the Company to coordinate, with respect to the scheduling and conduct of all meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided , however , to the fullest extent practicable and permitted by Law, in connection with any communications, meetings, or other contacts, oral or written, with any Governmental Entity in connection with the transactions contemplated hereby, each of Seller and Purchaser shall (and will cause its Affiliates to): (i) inform the other Party in advance of any such communication, meeting, or other contact which such Party or any of its Affiliates proposes or intends to make, including the subject
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matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) consult and cooperate with the other Party, and to take into account the comments of the other Party in connection with any of the matters covered by Section ‎5.5(a) ; (iii) permit representatives of the other Party to participate to the maximum extent possible in any such communications, meetings, or other contacts; (iv) notify the other Party of any oral communications with any Governmental Entity relating to any of the foregoing; and (v) provide the other Party with copies of all written communications with any Governmental Entity relating to any of the foregoing. Nothing in this Section ‎5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ordinary course of business.
(c)      Without limiting the foregoing, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action, including (i) acquiring any asset, property, business or Person (by way of merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section ‎‎5.5 . In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section ‎5.5 , each of Purchaser and Seller shall, and shall cause their respective Affiliates to use reasonable best efforts to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity in connection with obtaining the Required Regulatory Approvals, in each case, so as to enable the Closing to occur as promptly as practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition or Seller Burdensome Condition, and proposing alternative conditions upon which the Required Regulatory Approvals would be provided, (D) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of (1) with respect to Purchaser, any assets or business of Purchaser or its Affiliates or of the Company, and (2) with respect to Seller, any Unregulated Non-Retail Business, in each case, including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to take any other action as may be required by a Governmental Entity in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any event before the Outside Date, (2) avoiding the entry of, or having vacated, lifted, dissolved, reversed or overturned, any Order, whether temporary, preliminary or permanent, that is in effect that prohibits, prevents or restricts consummation of, or impedes, interferes with or delays, the Closing and (3) effecting the expiration or termination of any waiting period, which would otherwise have the effect of preventing, prohibiting or restricting consummation of the Closing or impeding, interfering with or delaying the Closing. Notwithstanding anything in this Agreement to the contrary, the entry into any settlement with a Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments regarding a Required Regulatory Approval of any Party or their Affiliates, must be mutually agreed

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between Seller and Purchaser, provided that nothing in this sentence shall modify or diminish any of Seller’s or Purchaser’s obligations under this Section ‎5.5 .
(d)      Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Purchaser nor any of its Affiliates shall be required to, and neither Seller nor the Company nor any of their respective Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to, or take any action, in each case, that, individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of Purchaser and its Affiliates (including the Company), taken as a whole, after giving effect to the Sale; provided , that Purchaser and its Affiliates (including the Company) shall be deemed to be the same size as the Company for purposes of this Section ‎5.5(d) (any such action or requirement, a “ Purchaser Burdensome Condition ”); and provided further , any regulatory mitigation action taken by Purchaser in connection with the transactions contemplated by the Plants EIPA or any mitigation ordered relating directly to the transactions contemplated by the Plants EIPA shall not be taken into account in the determination of whether there has been a Purchaser Burdensome Condition. For the avoidance of doubt, none of the exclusions set forth in the definition of “Company Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section ‎5.5(d) .
(e)      Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Seller nor any of its Affiliates shall be required to, and neither Purchaser nor any of its Affiliates shall, in connection with obtaining the Required Regulatory Approvals or setting such filings for hearing, settlement or other investigation, consent to, or take any action, in each case, that, (i) would require Seller or any of its Affiliates (other than the Company) to commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of any assets or business, other than any assets or business of the Unregulated Non-Retail Business, (ii) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of Seller’s remaining electric businesses, other than the Unregulated Non-Retail Business, taken as a whole, after giving effect to the Sale; provided , that for the purposes of this clause (ii) such remaining electric businesses shall be deemed to be the same size as the Company; (iii) individually or in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of the Unregulated Non-Retail Business, taken as a whole; provided , that for the purposes of this clause (iii) the Unregulated Non-Retail Business shall be deemed to be the same size as the Company, or (iv) individually or in the aggregate, would have a material adverse effect on the manner in which the remaining transmission or generation assets of Seller or any of its Affiliates are operated, including a change in control over such operations (any such action or requirement in (i), (ii), (iii) or (iv), a “ Seller Burdensome Condition ”); and provided , further , that none of the obligations of Seller or any of its Affiliates set forth in or contemplated by the Ancillary Agreements (in, for the avoidance of doubt, the forms attached to this Agreement), the matters set forth in Section 5.20 or the matters set forth in Section 5.20(a)(ii) of the Seller Disclosure Letter shall be taken into account in the determination of whether there has been a Seller Burdensome Condition.

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(f)      Notwithstanding the foregoing or anything else in this Agreement to the contrary, neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing.
(g)      In furtherance, and not in limitation, of Sections ‎5.5(a) , ‎5.5(b) and ‎5.5(c) , but subject to the limitations set forth in Section ‎5.5(d) (with respect to Purchaser and its Affiliates) and Section ‎5.5(e) (with respect to Seller and its Affiliates), Seller and Purchaser will, and will cause their respective Affiliates to, cooperate with each other and use reasonable best efforts to cause the FERC to accept for filing pursuant to Section 205 of the Federal Power Act, 18 U.S.C. s. 824d (“ Section 205 ”) the Final Ancillary Documents.
5.6      Consents . Seller shall, and shall cause the Company to, reasonably cooperate with Purchaser to obtain any consents required from third parties in connection with the consummation of the transactions contemplated by this Agreement under Company Material Contracts or Permits at or prior to the Closing. Notwithstanding anything to the contrary contained herein, neither Seller nor Purchaser, nor any of their respective Affiliates, shall have any obligation to make any payments or incur any Liability to obtain any consents of third parties contemplated by this Section ‎‎5.6 , and the failure to receive any such consents shall not be taken into account with respect to whether any condition to the Closing set forth in ‎ Article ‎VIII shall have been fulfilled (but the accuracy of Section 3.4 will be taken into account).
5.7      Public Announcements . Purchaser and Seller shall consult with each other before issuing, and give each other a reasonable opportunity to review and comment upon, any press release or other written public statements with respect to the Sale, and shall not issue any such press release or make any such written public statement prior to such consultation, except as such party reasonably concludes (after consultation with outside counsel) to be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system. For the avoidance of doubt, nothing contained in this Agreement shall limit a Party’s (or its respective Affiliates’) rights to disclose the existence of this Agreement and the general nature of the transaction described herein on any earnings call or in similar discussions with financial media or analysts, stockholders and other members of the investment community, provided that such disclosures are consistent in all material respects with disclosures previously made pursuant to this Section ‎5.7 .
5.8      Intercompany Accounts . At or prior to the Closing, all intercompany accounts between Seller and/or any of its Affiliates, on the one hand, and the Company, on the other hand, shall be settled except as set forth on Section ‎5.8 of the Seller Disclosure Letter .
5.9      Settlement of Intercompany Arrangements . At or prior to the Closing, all Contracts (other than those Contracts set forth on Section ‎5.9 of the Seller Disclosure Letter ) between the Company, on the one hand, and Seller and its Affiliates, on the other hand (collectively, the “ Intercompany Arrangements ”) shall be settled or terminated, without any party having any continuing obligations or liability to the other. No such Intercompany Arrangement (including any provision thereof which purports to survive termination) shall be of any further force or effect after the Closing and Purchaser and its Affiliates (including, for the
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avoidance of doubt, after the Closing, the Company) shall be released from all Liabilities thereunder.
5.10      Guarantees . Purchaser shall use its commercially reasonable efforts to cause itself, one of its Affiliates or the Company to be substituted in all respects for Seller and any of its Affiliates, and for Seller and its Affiliates to be released, effective as of the Closing, in respect of, or otherwise terminate (and cause Seller and its Affiliates to be released in respect of), all obligations of Seller and any of its Affiliates under each of the guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations of such Persons related to the Company that are set forth on Section ‎5.10 of the Seller Disclosure Letter (collectively, the “ Substituted Guarantees ”). For any of the guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations of Seller and any of their respective Affiliates related to the Company for which Purchaser or the Company, as applicable, is not substituted in all respects for Seller and its Affiliates (or for which Seller and its Affiliates are not released) effective as of the Closing and that cannot otherwise be terminated effective as of the Closing without causing an adverse effect on the Company (with Seller and its Affiliates to be released in respect thereof), (a) Seller shall, or shall cause its applicable Affiliates, to keep in place such Substituted Guarantees (“ Continuing Guarantees ”), (b) Purchaser shall continue to use its commercially reasonable efforts and shall cause the Company to use its commercially reasonable efforts to effect such substitution or termination and release with respect to the Continuing Guarantees as promptly as practical after the Closing and (c) Purchaser or Parent shall reimburse Seller for all amounts paid or incurred by Seller or its Affiliates to the extent any guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations are called upon and Seller or any of its Affiliates make any payment or are obligated to reimburse the issuing thereof. In addition, commencing on the date that is six months after the Closing Date, on the last Business Day of each three month period following the Closing Date until such time as no Continuing Guarantees remain outstanding, Purchaser shall pay Seller or its designee a fee in respect of each Continuing Guarantee equal to the amount of fees Seller or such applicable Affiliate would have incurred if it posted a letter of credit in respect of the amounts covered by such Continuing Guaranty for such three month period (or, with respect to any Continuing Guarantee outstanding for a portion, but not all, of such three month period, for such portion of such three month period). Without limiting the foregoing, neither Purchaser nor any of its Affiliates shall extend or renew any Contract containing or underlying a Continuing Guarantee unless, prior to or concurrently with such extension or renewal, Purchaser or one of its Affiliates (including the Company) is substituted in all respects for Seller and any of its Affiliates under such Continuing Guarantee. For purposes of this Section 5.10 , “commercially reasonable efforts” will be limited to offering to provide to the applicable beneficiary of a Substituted Guarantee, and providing such beneficiary, such replacement guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations as are substantially similar in form and substance to the Substituted Guarantees.
5.11      Usage of Certain Marks . As soon as reasonably practicable, and in any event within 150 days following Closing, Purchaser shall, and shall cause the Company to, cease using Seller Marks, including removing Seller Marks from any properties or assets relating to the Company. Except for the limited transitional use of Seller Marks as immediately set forth above, Purchaser shall not, and shall cause the Company not to, use Seller Marks belonging to Seller or

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any Affiliate thereof immediately following the Closing, and Purchaser acknowledges that it and its Affiliates have no rights whatsoever to use Seller Marks or related Intellectual Property of Seller and its Affiliates. In addition, as soon as reasonably practicable, and in any event within 150 days following Closing, Seller shall, and shall cause its Affiliates to, cease using Company Marks, including removing Company Marks from any properties or assets relating to Seller and its Affiliates, and Seller shall not, and shall cause its Affiliates not to, use Company Marks or any logos, trademarks or trade names belonging to the Company or any Affiliate thereof immediately following the Closing, and Seller acknowledges that it and its Affiliates have no rights whatsoever to use Company Marks or such logos, trademarks or trade names or related Intellectual Property of the Company and its Affiliates. Notwithstanding Purchaser’s right to use Seller Marks and Seller’s right to use Company Marks for the time periods set forth above, each Party agrees that (a) neither Purchaser nor any of its Affiliates shall be deemed an agent, representative or joint venture partner of Seller, (b) neither Seller nor any of its Affiliates shall be deemed an agent, representative or joint venture partner of Purchaser, (c) Seller and its Affiliates shall retain sole and exclusive ownership of Seller Marks and all goodwill and rights related thereto, (d) Purchaser and its Affiliates shall retain sole and exclusive ownership of Company Marks and all goodwill and rights related thereto, (e) Purchaser and its Affiliates shall not knowingly take any action in respect of Seller Marks that would adversely affect Seller or its Affiliates, or the interest of Seller or its Affiliates in the Seller Marks and (f) Seller and its Affiliates shall not knowingly take any action in respect of Company Marks that would adversely affect the Company or its Affiliates, or the interest of Company or its Affiliates in the Company Marks.
5.12      Alternative Transactions . From and after the date of this Agreement until the earlier of the Closing Date or the termination of this Agreement, Seller shall not, directly or indirectly, solicit, negotiate with, provide any nonpublic information regarding the Company to, enter into any Contract with, or in any manner encourage, any proposal of, any Person (other than Purchaser and its Affiliates) relating to a potential acquisition of all or a material portion of the equity interests or assets of the Company, whether by merger, sale of stock, sale of assets or otherwise (collectively, “ Acquisition Proposals ”). Notwithstanding the foregoing, nothing in this Section ‎5.12 is intended to restrict or limit Seller or any of Seller’s Affiliates from entering into, engaging in or consummating any transaction not involving the Company, its business or its assets. Seller shall immediately cease all communications with any such Person that may be ongoing with respect to an Acquisition Proposal as of the date hereof and request that each such Person promptly return or destroy all confidential information furnished to such Person by or on behalf of Seller in connection with any such Acquisition Proposal.
5.13      Release .
(a)      Effective as of the Closing and except as otherwise expressly set forth in this Agreement (including Section ‎5.13(c) ), the Gas SPA, the Plants EIPA or in any of the Final Ancillary Documents, Seller, on behalf of itself and each of its respective Affiliates and each of their respective successors and assigns, hereby irrevocably, unconditionally and completely waives and releases and forever discharges Purchaser and each of its respective Affiliates, and each of their respective heirs, executors, administrators, successors and assigns (such released Persons, the “ Releasees ”), of and from all debts, demands, Actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, claims and other Liabilities whatsoever of
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every name and nature, both in law and in equity, arising out of or related to the Company or its business prior to the Closing Date. Seller shall not make, and Seller shall not permit any of its Affiliates or their respective representatives to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against any of Purchaser’s or its Affiliates’ or any of their Releasees with respect to any Liabilities or other matters released pursuant to this Section ‎5.13 .
(b)      Effective as of the Closing and except as otherwise expressly set forth in this Agreement (including Section ‎5.13(c) ), the Gas SPA, the Plants EIPA or in any of the Final Ancillary Documents, Parent and Purchaser, on behalf of themselves and each of their respective Affiliates (including the Company following the Closing) and each of their respective successors and assigns, hereby irrevocably, unconditionally and completely waives and releases and forever discharges Seller and each of its respective Affiliates, and each of their respective Releasees, of and from all debts, demands, Actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, claims and other Liabilities whatsoever of every name and nature, both in law and in equity, arising out of or in connection with any breach by Seller or any director or officer of the Company of any fiduciary duty in their capacity as an equityholder, director or officer of the Company prior to the Closing Date. Neither Parent nor Purchaser shall make, and neither Parent nor Purchaser shall permit any of their respective Affiliates or their respective representatives to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against any of Seller or its Affiliates or any of their Releasees with respect to any Liabilities or other matters released pursuant to this Section ‎‎5.13 .
(c)      Notwithstanding the foregoing, Section ‎5.13(a) and Section ‎5.13(b) shall not constitute a release from, waiver of, or otherwise apply to the terms of (i) this Agreement, the Gas SPA, the Plants EIPA or any Final Ancillary Document or any Liability or Contract expressly contemplated by this Agreement, the Gas SPA, the Plants EIPA or any Final Ancillary Document to be in effect after the Closing, or any enforcement thereof or (ii) any other Contract, arrangement or other matter arising between Parent, Purchaser and their respective Affiliates, on the one hand, and Seller and its Affiliates, on the other hand, in the ordinary course of their respective businesses.
5.14      Litigation Support . If and for so long as Seller, Parent, Purchaser or any of their respective Affiliates are prosecuting, contesting or defending any Action by a third party in connection with (a) any transactions contemplated under this Agreement or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction relating to, in connection with, or arising from this Agreement or the Company, Parent, Purchaser or Seller, as the case may be, shall, and shall cause its Affiliates, including the Company, if applicable (and its and their officers and employees) to, cooperate with the other Party and its Affiliates and their respective counsel (at the expense of the requesting Party) in such prosecution, contest or defense, including making available its personnel and providing such testimony and access to its books and records as shall be reasonably necessary in connection with such prosecution, contest or defense.


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5.15      Financing Covenant .
(a)      Parent agrees to use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to arrange and on or prior to the Closing Date obtain any debt financing necessary for Purchaser to consummate the transactions contemplated by this Agreement.
(b)      Seller agrees to use reasonable best efforts to provide, and to cause the Company and its Subsidiaries to provide, such cooperation as is reasonably requested by Purchaser, at Purchaser’s expense and solely as an accommodation to Purchaser, in connection with the arrangement of any financing to be consummated with respect to the transactions contemplated hereby (it being agreed and understood that it is not a condition to Closing under this Agreement for Purchaser to obtain any financing); provided that such requested cooperation does not (i) unreasonably interfere with the ongoing operations of the Company, (ii) cause any breach of this Agreement or cause any condition of this Agreement not to be satisfied, (iii) conflict with, violate or breach any applicable Law, the Organizational Documents of the Company or any material Contract to which the Company is a party, (iv) result in a waiver of the attorney-client privilege or the protection of attorney work-product ( provided that the withholding party shall use its reasonable best efforts to allow for such access (or as much of it as possible) in a manner that does not result in a loss of attorney-client privilege) or (v) require participation by Seller in any road shows. If any material is withheld by the Company pursuant to this Section ‎5.15(b) , the Company shall, to the extent possible without violating legal restrictions or risking a loss of attorney client privilege, inform Purchaser as to the general nature of what is being withheld. All information exchanged pursuant to this Section ‎5.15(b) shall be subject to the Confidentiality Agreement (it being understood and agreed that Purchaser will be permitted to disclose such information to any financing sources or prospective financing sources that are or may become parties to any financing to be consummated with respect to the transactions contemplated hereby (and, in each case, to their respective counsel and auditors) so long as such information is furnished by Purchaser subject to customary confidentiality undertakings in connection with such financing). Notwithstanding the foregoing or anything in this Agreement to the contrary, (A) neither Seller nor the Company shall have any Liability under any Contract or other document related to such financing or otherwise be required to incur any Liability in connection with such financing and (B) no obligations of the Company under any Contract or other document relating to such financing shall be effective unless and until the Closing occurs.
(c)      Purchaser shall promptly, upon request by Seller, reimburse Seller and its Affiliates (including the Company) for all reasonable and documented out-of-pocket costs and expenses (including reasonable attorneys’ fees) incurred by any of them in connection with such cooperation or otherwise in connection with any such financing. Purchaser shall indemnify and hold harmless Seller and its Affiliates and their respective representatives from and against any and all Losses suffered or incurred by them in connection with any such financing and any information utilized in connection therewith, except with respect to (i) historical information furnished in writing by the Company, including financial statements, or (ii) any fraud of the Company or any of its Subsidiaries.


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5.16      Treatment of Certain Indebtedness . Seller shall, and shall cause its applicable Subsidiaries to, deliver all notices and take other actions required to facilitate (a) the termination of commitments in respect of the Repayment Debt at or prior to the Closing Date, (b) repayment in full of all obligations in respect of such Repayment Debt at or prior to the Closing Date and (c) release of any Encumbrances and guarantees in connection therewith at or prior to the Closing Date.
5.17      Final Ancillary Documents . Purchaser and Seller shall commence discussions in good faith within 15 Business Days following the date of this Agreement to establish a migration plan with respect to matters contemplated by the Ancillary Agreements. At or prior to the Closing, each of Seller, Parent and Purchaser shall, or shall cause their respective applicable Affiliates to, execute and deliver, and cause the effectiveness of, each of the Final Ancillary Documents.
5.18      Indemnification of Directors and Officers .
(a)      For a period of six years commencing on the Closing Date, Purchaser shall, and shall cause the Company to: (i) indemnify, defend and hold harmless, all of the past and present directors, officers and employees of the Company (in all of their capacities) (collectively, the “ D&O Indemnified Parties ”) against any and all Losses incurred in respect of acts or omissions occurring at or prior to the Closing to the fullest extent permitted by Law or provided under the Company’s Organizational Documents in effect on the date hereof, (ii) without limitation of clause (i), to the fullest extent permitted by applicable Law, cause to be maintained in effect the provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors, officers and employees contained in the Organizational Documents of the Company that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement and (iii) not settle, compromise or consent to the entry of any judgment in any proceeding or threatened proceeding (and in which indemnification could be sought by a D&O Indemnified Party hereunder), unless such settlement, compromise or consent (A) includes an unconditional release of such D&O Indemnified Party from all liability arising out of such proceeding or (B) provides solely for monetary damages to be paid by Purchaser or the Company pursuant to this Section ‎5.18(a) , or such D&O Indemnified Party otherwise consents in writing to the entry of such judgment, and cooperates in the defense of such proceeding or threatened proceeding.
(b)      The obligations of Purchaser and the Company under this ‎ Section ‎5.18 shall not be terminated, amended or modified in any manner so as to adversely affect any D&O Indemnified Party (including their successors, heirs and legal representatives) to whom this ‎ Section ‎5.18 applies without the written consent of such affected D&O Indemnified Party (it being expressly agreed that the D&O Indemnified Parties to whom this ‎ Section ‎5.18 applies shall be third party beneficiaries of this ‎ Section ‎5.18 , and this ‎ Section ‎5.18 shall be enforceable by such D&O Indemnified Parties and their respective successors, heirs and legal representatives and shall be binding on all successors and assigns of Purchaser and the Company).
(c)      If Purchaser or, following the Closing, the Company, or any of their respective successors or assigns (i) shall consolidate with or merge into any other corporation or entity and shall not be the continuing or surviving corporation or entity of such consolidation or

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merger or (ii) shall transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions shall be made so that the successors and assigns of Purchaser, the Company or any of their respective successors or assigns, as the case may be, shall assume all of the obligations set forth in this Section ‎5.18 .
(d)      The rights of the D&O Indemnified Parties under this ‎ Section ‎5.18 shall be in addition to any rights such D&O Indemnified Parties may have under the Organizational Documents of the Company, or under any applicable contracts or Laws, and Purchaser shall, and shall cause the Company to, honor and perform under all indemnification agreements entered into by the Company.
5.19      Insurance . With respect to events, circumstances or claims relating to the Company or its business that occurred or existed prior to the Closing Date that result or are reasonably expected to result in losses in excess of (a) $3,000,000 and are covered by Seller’s or its Affiliates’ occurrence-based property insurance or third-party liability insurance, or $1,000,000 and are covered by Seller’s or its Affiliates’ occurrence based workers’ compensation insurance policies that apply to the Company or the locations at which the Company is operated (collectively, the “Pre-Closing Insurance”), Purchaser or its applicable Subsidiary may make claims under the Pre-Closing Insurance to the extent such coverage and limits are available to the Company under the Pre-Closing Insurance and, with respect to occurrence-based property insurance and third-party liability insurance, any such claim is known prior to the date that is six months after the Closing. By making any claims under the Pre-Closing Insurance, Purchaser agrees to reimburse, or cause its applicable subsidiary to reimburse, Seller or its Affiliates for any direct costs incurred by any of them as a direct result of such claims; and Purchaser or its applicable Subsidiary shall exclusively bear the amount of any “deductibles” or net retentions associated with such claims under the Pre-Closing Insurance and shall be liable for all uninsured or uncovered amounts of such claims (but, for the avoidance of doubt, shall not bear any liability for any increases in premiums or other costs for the insurance policies of Seller or its Affiliates).
5.20      Dispatch Procedures .
(a)      From the date of this Agreement, the Parties will negotiate in good faith and use commercially reasonable efforts to agree to, prior to the Closing Date, (i) dispatch procedures for Plant Scherer Unit 3 to be applied immediately following the IIC Transition Period (the “ Dispatch Procedures ”) in accordance with the terms of this Section ‎5.20 and set forth in an amendment agreement in respect of any existing operating agreement for Plant Scherer Unit 3 as may be necessary to ensure that the Dispatch Procedures are legally binding obligations of certain Persons, including the Company and Georgia Power Company, and (ii) an amendment to the existing operating agreement for, and such other Contracts relating to, Plant Daniel necessary to implement the terms set forth in Section 5.20(a)(ii) of the Seller Disclosure Letter as legally binding obligations of certain Persons, including the Company and Mississippi Power Company (collectively, including any changes to such Contracts that may be required by the FERC (but subject to the limitations set forth in this Section 5.5 as to the Parties’ obligations to agree or commit to such changes), the “ Dispatch Contracts ”).

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(b)      In furtherance of the foregoing, the Parties agree to adopt and follow the procedures in the Manual with respect to Plant Scherer Unit 3 to the extent practicable, including the principles related to cost allocation and cost responsibility and the scope and limitations on the dispatch rights set forth in the Manual; provided , however , that the Parties acknowledge that the operating characteristics of Plant Scherer Unit 3 are unique to that plant and, therefore, the procedures in the Manual may have to be modified to accommodate the needs and limitations of the Parties following the Closing.
(c)      At or prior to the Closing, each of Seller, Parent and Purchaser shall, and shall cause their respective Affiliates to, execute and deliver each of the Dispatch Contracts.

ARTICLE VI

EMPLOYEE MATTERS COVENANTS
6.1      Compensation and Employee Benefits .
(a)      Compensation and Benefits Comparability . For a period commencing on the Closing Date and expiring at the end of the first full calendar year following the year in which the Closing Date occurs (the “ Continuation Period ”), Parent will provide to each Company Employee, for so long as such Company Employee remains employed during the Continuation Period, (i) base pay and annual incentive compensation opportunity that are not less than such Company Employee’s base pay and annual incentive compensation opportunity immediately prior to the Closing and (ii) employee benefits that are no less favorable in the aggregate than the employee benefits (including equity-based compensation, severance benefits, the non-qualified deferred compensation benefits identified in Section ‎6.3(c) , and other employee benefits specifically required pursuant to this Article ‎VI ) provided to such Company Employee immediately prior to the Closing, it being understood that the provisions of this sentence shall cease to apply with respect to a Company Employee upon termination of such Company Employee’s employment with Parent and its Affiliates, and that Parent need not replicate specific items of compensation and employee benefits and may satisfy its obligations through a different combination of compensation and employee benefits than are provided prior to the Closing Date. If any Company Employee’s employment is terminated without cause during the Continuation Period, subject to such Company Employee’s execution and non-revocation of a release of claims, Parent will provide such Company Employee with severance benefits pursuant to the terms of Parent’s applicable severance plan or policy (which shall provide benefits at least as favorable as those available to the Company Employee pursuant to the Gulf Power Company 2017 Separation Pay Plan); provided , however , that the calculation of any such severance benefits shall take into account such Company Employee’s service with Seller or an Affiliate of Seller. Following the Closing Date, Seller shall have no liability with respect to severance benefits for Company Employees arising out of Parent’s failure to comply with its obligations under this Section ‎6.1(a) , and Purchaser shall be obligated to pay the benefit for and indemnify and hold harmless Seller and its Affiliates from any claim by or on behalf of any Company Employee for any severance benefits that are payable due to Parent’s failure to comply with its obligations under this Section ‎6.1(a) . The form and terms of any particular benefit plan offered by Parent (a “ New Plan ”) shall be as determined by Parent, subject to the
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foregoing and the other provisions of this Article ‎VI . Notwithstanding the foregoing, this Section ‎6.1(a) shall not apply to any Company Employee covered by a Labor Agreement, the terms and conditions of whose employment shall be as set out in the applicable Labor Agreement (as it may be amended from time to time) and applicable Law.
(b)      Service Credit . Parent will recognize the service and seniority of each of the Company Employees recognized by Seller for all benefits purposes, including eligibility for, vesting and accrual of, and determination of the levels of such benefits. However, service will not be recognized (i) to the extent it would result in duplication of benefits for the same period of service, (ii) except as expressly provided in Section 6.3(b) , under defined benefit pension plans or (iii) for purposes of grandfathered benefits.
(c)      Welfare Plans . Parent will use reasonable best efforts to waive or cause the waiver of any limitation on benefits relating to pre-existing conditions, actively-at-work exclusions, evidence of insurability, and waiting periods for the Company Employees under a New Plan providing medical, life or disability benefits, to the extent that such limitations are waived or otherwise inapplicable to a Company Employee under any comparable plan of Seller as of the Closing Date. All healthcare expenses incurred by Company Employees or any eligible dependent thereof, including any alternate recipient pursuant to qualified medical child support orders, in the portion of the calendar year preceding the Closing Date that were qualified to be taken into account for purposes of satisfying any deductible or out-of-pocket limit under any Seller health care plans will be taken into account for purposes of satisfying any deductible or out-of-pocket limit under the healthcare plan of Parent for such calendar year. Seller will use reasonable best efforts to provide such information to Parent. Seller will be responsible for making available COBRA Continuation Coverage to any current and former employees of Seller, including Company Employees, or to any qualified beneficiaries of such employees, who become entitled to COBRA Continuation Coverage as a result of loss of group health plan coverage under a Seller Benefit Plan. Parent will be responsible for making available COBRA Continuation Coverage to any Company Employees (and their qualified beneficiaries) who become entitled to such COBRA Continuation Coverage on or after the Closing as a result of their loss of group health plan coverage under any New Plan.
(d)      Vacation . From and after the Closing, Parent shall, and shall cause its Affiliates to, assume and honor all accrued but unused vacation and other paid time-off of the Company Employees; provided , however , if Seller or any of its Affiliates is required under applicable Law to make a payment in settlement of accrued vacation or paid time off of any Company Employee, Parent shall make or reimburse and hold harmless the Seller Group for such payment. For the calendar year in which the Closing Date occurs, Parent shall, or shall cause its Affiliates to, assume and honor all supplemental paid vacation time purchased by Company Employees pursuant to the Seller vacation purchase option, subject to Seller’s provision of sufficient information for Parent and its Affiliates to provide such benefits.
6.2      Benefit Plan Assets and Liabilities Generally .
(a)      Seller Benefit Plans . From and after the Closing, the Company Employees shall cease to be active participants in the Seller Benefit Plans that are not Company Benefit Plans. Except as otherwise expressly set forth in this Article ‎VI , the Seller Group shall

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assume or retain, and indemnify and hold harmless Parent and its Affiliates (including the Company) in respect of, all assets and Liabilities related to Seller Benefit Plans that are not Company Benefit Plans.
(b)      Company Benefit Plans . Except as specifically set forth herein, the Company shall assume or retain all assets and Liabilities related to all Company Benefit Plans. Prior to Closing, Seller shall cause any assets and Liabilities that do not relate to Company Employees to be transferred to Seller Benefit Plans that are not Company Benefit Plans.
(c)      Flexible Spending Accounts . As of the Closing Date, with respect to each Company Employee participating immediately prior to Closing in any Company Benefit Plan that is a health flexible spending account or dependent care flexible spending account plan (the “ Seller FSA Plans ”), Seller will, or will cause the Company to, transfer from the Seller FSA Plans to the applicable health flexible spending account or dependent care flexible spending account plan designated by Parent (the “ Parent FSA Plan ”) the account balances (positive or negative) of such Company Employees. Each Company Employee will be permitted to continue to have payroll deduction made as most recently elected by him or her under the applicable Seller FSA Plan. As soon as reasonably practicable following the Closing Date, but not later than ten days after the Closing Date, Seller will provide Parent with a reconciliation of the underspent and overspent flexible spending accounts of Company Employees in the Seller FSA Plans. Amounts forfeited by Company Employees in the Parent FSA Plan at the end of the plan year during which the Closing occurs will be assets of Parent.
(d)      Wellness Program Benefits . Seller and Parent shall cooperate in good faith to ensure that following the Closing Date, Parent shall provide each Company Employee who has earned wellness rewards prior to Closing, including wellness rewards in the form of a balance in a health reimbursement arrangement that is a Seller Benefit Plan, but has been unable to use such amounts to pay for qualifying medical expenses under the Seller Benefit Plans due to the occurrence of the Closing Date subsequent to satisfaction of the wellness requirements, with a wellness reward employee benefit (which may, but need not, take the form of a health reimbursement arrangement) that provides a substantially comparable value to the applicable earned but unused amount.
(e)      Incentive Program . Within 30 days following the Closing Date, Seller or one of its Affiliates shall pay to each Company Employee who is a participant in an annual cash performance pay program of the Company, Seller, or an Affiliate of Seller (a “ PPP ”) the amount of compensation accrued, but not paid, through the Closing Date with respect to the applicable PPP, which amount shall be no less than that required to be paid pursuant to the Seller Change in Control Plan (as defined in Section 6.3(d) below). For the avoidance of doubt, Parent and its Affiliates (including the Company and its Subsidiaries) shall have no Liabilities in respect of the applicable PPP for the period elapsed through the Closing Date, all of which shall be retained by Seller or its Affiliates (other than the Company and its Subsidiaries).
6.3      Retirement Plans .
(a)      Seller shall fully vest all Company Employees in their account balances under the retirement savings plan in which such Company Employees participate (the “ Seller’s

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401(k) Plan ”), effective as of the Closing. Effective as of the Closing, Parent shall maintain or designate, or cause to be maintained or designated, a defined contribution plan and related trust intended to be qualified under Sections 401(a), 401(k) and 501(a) of the Code (the “ Parent’s 401(k) Plan ”). Effective as of the Closing, the Company Employees shall cease participation in Seller’s 401(k) Plan. The Company Employees shall be eligible to participate and shall commence participation in Parent’s 401(k) Plan in accordance with the terms of Parent’s 401(k) Plan. Seller and Parent shall cooperate to permit each Company Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) to Parent’s 401(k) Plan in cash in an amount equal to the full account balance distributed to such Company Employee from Seller’s 401(k) Plan. Parent will use reasonable best efforts to permit such rollover contributions in the form of notes representing an employee loan under Seller’s 401(k) Plan and Parent shall take (or cause to be taken) any and all reasonable action as may be required to provide that Company Employees may continue to service any such loans through payroll deductions after the Closing.
(b)      With regard to The Southern Company Pension Plan or the successor plan thereto (the “ Seller Pension Plan ”), each Pension Participant shall cease to be a participant under such plan effective as of the Closing. Seller shall fully vest all Company Employees participating in the Seller Pension Plan effective as of the Closing. Effective as of the Closing, Parent shall have in effect a defined benefit pension plan intended to be tax-qualified (the “ Parent Pension Plan ” which may, for the avoidance of doubt, be a preexisting plan of Parent) in which the Pension Participants shall be eligible to participate. As soon as practicable (but, subject to the final sentence of this Section 6.3(b) , in no event more than 35 days) after the Closing (the “ Pension Transfer Deadline ”), Seller shall cause the calculation and transfer to the Parent Pension Plan of assets equal to (i) the amount required to be transferred pursuant to Section 414(l) of the Code and such other applicable Law, as determined using the actuarial assumptions and methodology consistent with those used by Seller in its measurement of the accumulated benefit obligation of the Seller Pension Plan under Accounting Standards Codification Section 715 (the “ ABO ”) with respect to the Pension Participants as of the Closing (which actuarial assumptions and methodology are set forth in the Seller Pension Materials), subject to any changes made to such actuarial assumptions and methodology in the ordinary course of business consistent with past practice that are acceptable to the actuaries of Seller and Parent or, if applicable, the Chief Actuary under the procedures contemplated by Section 6.3(e) , and subject to any requirements under such Section of the Code and ERISA (the “ Section 414(l) Amount ”); plus (ii) for the period between the Closing and the date such assets are transferred (the “ Pension Transfer Date ”), an interest increment on the unpaid Section 414(l) Amount at the rate equal to the yield on the three-month U.S. Treasury Bill rate as of the Closing (such rate of interest, the “ Interest Rate ”); less (iii) any benefit payments that are made from the Seller Pension Plan to each Pension Participant for the period between the Closing and the Pension Transfer Date; less (iv) any costs or expenses incurred by Seller in respect of Pension Participant benefits of the Seller Pension Plan for the period between the Closing and the Pension Transfer Date (the sum of (i) through (iv), the “ Pension Transfer Amount ”). The transfer of the amount from the Seller Pension Plan to the Parent Pension Plan shall be made in cash. The Parent Pension Plan shall recognize and credit all service (including for purposes of benefit accrual) of the Pension Participants credited under the Seller Pension Plan with respect to the accrued benefits transferred. Following such transfer from the Seller Pension Plan to the Parent Pension Plan, the Seller Pension Plan shall have no liability to or with respect to any Pension Participant
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with respect to their accrued benefits under the Seller Pension Plan, and Parent shall indemnify and hold harmless Seller and its Affiliates from all liabilities, costs and expenses that may result to Seller or such Affiliates or the Seller Pension Plan from any claim by or on behalf of any Pension Participant for any benefit payable under the Seller Pension Plan. To the extent that the amount of assets transferred to the Parent Pension Plan pursuant to this Section 6.3(b) is less than the ABO (such as because of the operation of Section 414(l) of the Code), Seller shall pay Parent the difference in cash (plus interest at the Interest Rate for the period from the Closing Date through the date of such payment) no later than the Pension Transfer Deadline (or, if later, the date of final transfer pursuant to the final sentence of this Section 6.3(b) ). Notwithstanding the foregoing, if the asset transfer contemplated by this Section 6.3(b) is not made by the Pension Transfer Deadline, then no later than the Pension Transfer Deadline, Seller shall transfer to the Parent Pension Plan an amount in cash equal to 90% of Seller’s actuaries’ reasonable estimate of the Pension Transfer Amount, and Seller shall transfer the remaining amount in cash contemplated to be transferred by this Section 6.3(b) (for the avoidance of doubt, including interest at the Interest Rate for the period from the Closing Date through the date of such transfer) within 90 days following the Closing Date (or such later time as contemplated by Section 6.3(e) ).
(c)      Parent shall provide each former employee who was employed by the Company as of his or her last day of employment and retired prior to the Closing and is included on a list provided by Seller to Parent prior to the date hereof, as such list is updated through Closing pursuant to Section 5.1(a)(iii)(y)(C) (a “ Retiree Welfare Participant ”) with benefits that are equivalent to those benefits that would have been available to such Retiree Welfare Participant had he or she remained covered under the Southern Company Services, Inc. Healthcare Plan for Retirees, the Southern Company Services, Inc. Retiree Life Insurance Plan or the Southern Company Services, Inc. Health and Welfare Benefits Plan, as applicable, as in effect on the date hereof, for the period beginning immediately following the Closing and ending on the fifth anniversary thereof (such period, the “ Protection Period ”). Notwithstanding the foregoing, Parent may change the benefits provided to Retiree Welfare Participants during the Protection Period, as long as the replacement benefits for each Retiree Welfare Participant has an actuarial value that is no less than the actuarial value of the Seller Retiree Welfare Benefits for such Retiree Welfare Participant and there is no reduction in the employer contribution to such benefits. For the avoidance of doubt, Retiree Welfare Participants who are grandfathered or capped immediately prior to Closing, will continue to be considered grandfathered or capped, as applicable, during the Protection Period, regardless of how such categories may be defined with respect to Parent Retirees. After the expiration of the Protection Period, Parent may continue to provide retiree health and welfare benefits to Retiree Welfare Participants provided that Parent must treat Retiree Welfare Participants consistent with the manner in which it treats similarly situated (in terms of age and tenure of service (after giving effect to crediting of service for service with the Company before the Closing)) retirees of Parent and its Affiliates (“ Parent Retirees ”). As soon as practicable following the Closing, the assets held in the Seller Welfare Trust (plus interest at the Interest Rate for the period from the Closing Date through the date of such transfer), shall be transferred to a voluntary employees beneficiary association plan maintained by Parent (the “ Parent Welfare Trust ”). The Seller Welfare Trust assets shall be transferred in cash. In addition, as soon as practicable after the Closing, the assets held in the Seller 401(h) Account shall be transferred to the Parent Pension Plan (plus interest at the Interest Rate for the period from the Closing Date through the date of such transfer). The Seller 401(h)

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Account assets shall be transferred in cash. For the Protection Period, Parent shall, or shall cause an Affiliate to, allow otherwise eligible Retiree Welfare Participants to enroll in the retiree medical benefits contemplated under this Section 6.3(c) .
(d)      With regard to The Southern Company Supplemental Executive Retirement Plan (the “ Seller SERP ”), The Southern Company Supplemental Benefit Plan (the “ Seller SBP ”), and the Southern Company Deferred Compensation Plan (the “ Seller DCP ”), and pursuant to the Southern Company Change in Control Benefits Protection Plan (the “ Seller Change in Control Plan ”), Seller shall fully vest all Company Employees and all Pension Participants participating in the Seller SERP, the Seller SBP, and the Seller DCP (collectively, the “ Nonqualified Benefits Participants ”), and, as soon as practicable following the date hereof, Seller shall fund the Southern Company Deferred Compensation Trust (the “ Seller DC Trust ”) as required by the Seller Change in Control Plan with respect to the Company Employees and all Pension Participants (subject to the provisions of Section 6.3(e) ). Effective as of the Closing, each Nonqualified Benefits Participant shall cease to be a participant under the Seller SERP, the Seller SBP, and the Seller DCP, and Parent shall provide each Nonqualified Benefits Participant with the benefits that are accrued as of the Closing in respect of service prior to the Closing on the payment terms that apply as of the date hereof to such Nonqualified Benefits Participant under the Seller SERP, the Seller SBP, and the Seller DCP (such benefits provided by Parent, the “ Parent SERP ”, the “ Parent SBP ”, and the “ Parent DCP ”). Effective as of the Closing, Parent shall establish a trust (the “ Parent DC Trust ”) substantially similar to the Seller DC Trust to hold assets to pay benefits to Nonqualified Benefits Participants under the Parent SERP, the Parent SBP, and the Parent DCP. As soon as practicable following the Closing, the assets and the liabilities associated with the Nonqualified Benefits Participants in the Seller DC Trust (plus interest at the Interest Rate for the period from the Closing Date through the date of such transfer) shall be transferred to the Parent DC Trust. The Seller DC Trust assets shall be transferred in cash.
(e)      Seller shall cause its actuaries to provide Parent a report of the actuaries’ determinations under Sections 6.3‎(b) , 6.3(c) and 6.3(d) within 90 days of the Closing Date and any back-up information reasonably required by Parent to confirm the accuracy of such determinations. If Parent disputes the accuracy of any calculation, Parent and Seller shall cooperate to identify the basis for such disagreement and act in good faith to resolve such dispute. To the extent that a dispute is unresolved after a 45-day period following identification of such dispute, the calculations shall be verified by the Chief Actuary, Retirement, of AON Hewitt (the “ Chief Actuary ”). The decision of the Chief Actuary shall be final, binding and conclusive on Seller and Parent. Seller and Parent shall share equally the costs of the Chief Actuary incurred in connection with its determination pursuant to this Section 6.3(e) . Any amounts that the Chief Actuary determines are required to be paid as a result of its determination under this Section 6.3(e) shall be paid within 30 days following the Chief Actuary’s determination (plus interest at the Interest Rate for the period from the Closing Date through the date of such payment).
6.4      Labor and Employment Law Matters .
(a)      Parent and Seller shall, and shall cause their Affiliates to, cooperate to take all steps, on a timely basis, as are required under applicable Law or any Labor Agreement to

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notify, consult with, or negotiate the effect, impact, terms or timing of the transactions contemplated by this Agreement with each union, labor board, employee group, or Governmental Entity where so required under applicable Law. Seller shall regularly review with Parent the progress of the notifications, consultations and negotiations with each union, labor board, employee group and Governmental Entity regarding the effect, impact or timing of the transactions contemplated by this Agreement.
(b)      Seller shall provide to Parent on the Closing Date, a written list of all terminations of Company Employees that occurred within the 90-day period prior to the Closing Date. Parent will indemnify Seller and its Affiliates, from and against any Liabilities that may be incurred by Seller under the WARN Act arising at or after the Closing as a result of any action or omission of Parent or its Affiliates occurring following the Closing.
6.5      Disability Employees. Prior to the Closing, Seller shall cause the employment of each employee of the Company who is on long-term disability leave as of the Closing (a “ Disability Employee ”) to be transferred to an Affiliate of Seller other than the Company. Parent shall make an offer of employment to any such Disability Employee who otherwise would have been a Company Employee and who returns to active employment during the Continuation Period. A Disability Employee shall not be considered a Company Employee unless and until his or her employment commences with Parent or its Affiliates. A Company Employee who is on short-term disability leave as of the Closing who subsequently qualifies for long-term disability benefits shall receive long-term disability benefits pursuant to the applicable Seller Benefit Plan (under which Seller and its Affiliates shall retain all Liabilities) and not pursuant to a long-term disability benefit plan of Parent or its Affiliates; provided , however , Purchaser shall reimburse Seller or its Affiliate, as applicable, promptly after receipt of any accounting statement from Seller, for any long-term disability premium payments made by Seller or its Affiliates with respect to each such Company Employee for the period from Closing through the date on which such Company Employee’s elimination period ends (or if sooner, when such Company Employee returns to work and ceases to be eligible for long-term disability benefits with respect to the disability for which the Company Employee was on short-term disability leave as of the Closing).
6.6      Third-Party Beneficiary Rights . This Article ‎VI is included for the sole benefit of the Parties and their respective transferees and permitted assigns and does not and shall not create any right in any Person, including any current or former employee of any Affiliate of Seller or the Company Employee, who is not a Party. Nothing contained in this Agreement (express or implied) (a) is intended to create or amend, or to require Parent or its Affiliates to establish or maintain, any employee benefit plan or arrangement or (b) is intended to confer upon any individual any right to employment for any period of time, or any right to a particular term or condition of employment. No current or former employee of any Affiliate of Seller or any Company Employee, including any beneficiary or dependent of the foregoing, or any other Person not a Party, shall be entitled to assert any claim against Parent, Seller or any of their respective Affiliates under this Article ‎VI .
6.7      Charitable Contributions . For a period of five years after the Closing Date, Purchaser will cause the Subsidiaries of the Company to make charitable disbursements only in the Company’s retail service area.

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ARTICLE VII

TAX MATTERS
7.1      Tax Indemnification by Seller . Effective as of and after the Closing Date, Seller shall pay or cause to be paid, and shall indemnify Purchaser and its Affiliates (including the Company from and after the Closing Date) (collectively, the “ Purchaser Tax Indemnified Parties ”) and hold each Purchaser Tax Indemnified Party harmless from and against (a) any Taxes (i) of the Company or any of its Subsidiaries for any Pre-Closing Tax Period (allocated in respect of a Straddle Tax Period in accordance with Section ‎‎7.4 ); (ii) of any member of the Seller Group (other than the Company or any of its Subsidiaries) for any period, (iii) of Seller or any other Person (other than the Company or any of its Subsidiaries) for which the Company or any of its Subsidiaries is or becomes liable (under Treasury Regulation Section 1.1502-6 or under any similar provision of state, local or foreign Law) as a result of having joined as a member (or having been required to join as a member) of any consolidated, combined, affiliated, aggregate or unitary group prior to the Closing; (iv) of any Person (other than the Company or any of its Subsidiaries) for which the Company or any of its Subsidiaries is or becomes liable as a transferee or successor, as a result of a Contract (other than this Agreement) or otherwise by operation of Law; (v) arising out of or resulting from any breach of any covenant or agreement of Seller or the Company contained in this Agreement; (vi) for which Seller is responsible pursuant to Section ‎7.11 or (vii) resulting from the transactions contemplated by this Agreement, other than Transfer Taxes that are the responsibility of Purchaser pursuant to Section ‎7.11 ; and (b) any reasonable out-of-pocket costs and expenses, including reasonable legal fees and expenses attributable to any item described in clause (a) of this Section 7.1 (any such Taxes described in this Section ‎‎7.1 , “ Seller Indemnified Taxes ”). Notwithstanding any other provision of this Agreement, Seller Indemnified Taxes shall not include any Taxes taken into account in determining the payment pursuant to Section ‎2.2 or the Post-Closing Adjustment pursuant to Article ‎II .
7.2      Tax Indemnification by Purchaser . Effective as of and after the Closing Date, Purchaser shall pay or cause to be paid, and shall indemnify the Seller Group (collectively, the “ Seller Tax Indemnified Parties ”) and hold each Seller Tax Indemnified Party harmless from and against (a) any Taxes (i) of the Company for any Post-Closing Tax Period (allocated in respect of a Straddle Tax Period in accordance with Section ‎7.4 ); (ii) arising out of or resulting from any breach of any covenant or agreement of Purchaser or Parent contained in this Agreement; or (iii) for which Purchaser is responsible under Section ‎7.11 ; and (b) any reasonable out-of-pocket costs and expenses, including reasonable legal fees and expenses attributable to any item described in clause (a) of this Section ‎7.2 , provided , however , that Purchaser shall not be responsible for any Seller Indemnified Taxes.
7.3      Survival . The indemnification obligations, covenants and agreements pursuant to this Article ‎VII shall survive the Closing until 30 days after the expiration of the applicable statute of limitations period (giving effect to any extension thereof) with respect to the Tax item to which an indemnity claim relates. Notwithstanding the foregoing, any indemnification obligation with respect to any claim asserted pursuant to Section ‎7.1 or ‎ 7.2 hereof in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the

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indemnified Party to the indemnifying Party prior to the expiration date of the survival period provided in the preceding sentence shall survive until finally resolved.
7.4      Straddle Tax Periods . To the extent permitted or required by applicable Law, the taxable year of the Company and each of its Subsidiaries that begins before and includes the Closing Date shall be treated as closing on (and including) the Closing Date. To the extent the foregoing is not permitted or required by applicable Law, for purposes of this Agreement, in the case of any Straddle Tax Period, (a) Property Taxes of the Company or its applicable Subsidiary allocable to the Pre-Closing Tax Period shall be equal to the amount of such Property Taxes for the entire Straddle Tax Period multiplied by a fraction, the numerator of which is the number of calendar days during the Straddle Tax Period that are in the Pre-Closing Tax Period and the denominator of which is the number of calendar days in the entire Straddle Tax Period, and (b) Taxes (other than Property Taxes) of the Company or its applicable Subsidiary allocable to the Pre-Closing Tax Period shall be computed as if such taxable period ended as of the end of the day on the Closing Date and in a manner consistent with past practices of the applicable entity (or of Seller with respect to such entity); provided , that exemptions, allowances or deductions that are calculated on an annual basis (including depreciation and amortization deductions) shall be allocated between the period ending on the Closing Date and the period beginning after the Closing Date in proportion to the number of days in each period.
7.5      Tax Returns .
(a)      Seller shall prepare or shall cause to be prepared (i) any combined, consolidated or unitary Tax Return that includes any member of the Seller Group, on the one hand, and the Company or any of its Subsidiaries, on the other hand (a “ Combined Tax Return ”) and (ii) any Tax Return (other than any Combined Tax Return) that is required to be filed by or with respect to the Company or any of its Subsidiaries for any taxable period that ends on or before the Closing Date (a “ Pre-Closing Separate Tax Return ”). Seller shall timely file or cause to be timely filed any Combined Tax Return and any Pre-Closing Separate Tax Return that is required to be filed on or before the Closing Date (taking into account any extensions). In the case of any such Combined Tax Return and any Pre-Closing Separate Tax Return, Seller shall prepare or cause to be prepared such Tax Return in a manner consistent with past practices of the relevant entity (or of Seller with respect to such entity). Seller shall prepare and deliver, or cause to be delivered, to Purchaser all Pre-Closing Separate Tax Returns that are required to be filed after the Closing Date at least 30 days prior to the due date for filing such Tax Returns (taking into account any extensions), or as early as possible before such due date if, at the time of Closing, any such Tax Return is due in less than 30 days, together with payment for any Seller Indemnified Taxes shown as due on such Tax Returns not less than five Business Days before such Taxes are due, and Purchaser shall timely file or cause to be timely filed such Tax Returns and timely pay any Taxes shown to be due with such Tax Returns.
(b)      Purchaser shall prepare and timely file or cause to be prepared and timely filed all Tax Returns with respect to the Company and its Subsidiaries for Straddle Tax Periods. Purchaser shall deliver to Seller for its review and comment a copy of any such Tax Return that is required to be filed by or with respect to the Company or any of its Subsidiaries for any Straddle Tax Period before the later of (i) as soon as reasonably practicable and (ii) 30 days prior to the due date thereof (taking into account any extensions) accompanied by a statement
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calculating in reasonable detail Seller’s indemnification obligation, if any, pursuant to Section ‎7.1 . If for any reason Seller does not agree with Purchaser’s calculation of its indemnification obligation, Seller shall notify Purchaser of its disagreement within 15 days of receiving a copy of the Tax Return and Purchaser’s calculation (but in any event within a reasonable period of time prior to the last date for timely filing such Tax Return). Seller and Purchaser shall use commercially reasonable efforts to settle the dispute with respect to such indemnification obligation promptly. If Seller and Purchaser are unable to resolve any dispute prior to the due date of such Tax Return (giving effect to valid extensions), Purchaser shall file the Tax Return as originally prepared (but, reflecting any items on which Seller and Purchaser have agreed), and the dispute resolution provisions of Section ‎7.15 shall apply.
(c)      Notwithstanding anything to the contrary in this Agreement or any Final Ancillary Document, except to the extent such Tax Return relates solely to the Company, (i) Seller shall not be required to provide any Person with any consolidated, combined or unitary Tax Return of Seller and (ii) Purchaser shall not be required to provide any Person with any consolidated, combined, affiliated, aggregate or unitary Tax Return (or copy thereof) of Purchaser.
7.6      Refunds and Credits . Seller shall be entitled to any refunds or credits of or against any Seller Indemnified Taxes for which Seller is responsible under Section ‎7.1 . Purchaser shall be entitled to any refunds or credits of or against any Taxes other than refunds or credits to which Seller is entitled pursuant to the foregoing sentence. Any refunds or credits of Taxes of the Company or any of its Subsidiaries for any Straddle Tax Period shall be equitably apportioned between Seller and Purchaser in accordance with the principles set forth in Section ‎7.4 and the first two sentences of this Section ‎7.6 . Notwithstanding the foregoing, Purchaser shall (and Seller shall not) be entitled to a refund or credit to the extent such refund or credit was reflected in, reserved for or taken into account in the determination of the payment pursuant to Section ‎2.2 or the Post-Closing Adjustment pursuant to Article ‎II . Each Party actually receiving or realizing a refund or credit of Taxes to which the other Party is entitled under this Section ‎‎7.6 shall pay, or cause its Affiliates to pay, to the Party so entitled the amount of such refund or credit (including any interest paid thereon and net of any Taxes and other reasonable out-of-pocket expenses to the Party receiving such refund or credit in respect of the receipt or accrual of such refund or credit) in readily available funds within 15 days of the actual receipt of the refund or credit or the application of such refund or credit against amounts otherwise payable. If any such refund or credit in respect of which a Party made a payment to the other Party pursuant to this Section ‎‎7.6 is subsequently disallowed or reduced, such other Party shall promptly repay the amount of such refund or credit received, to the extent disallowed or reduced, to the Party that made such payment, together with any interest, penalties or other charges imposed thereon by the applicable taxing authority.
7.7      Tax Contests .
(a)      If any taxing authority asserts a Tax Claim, then the Party first receiving notice of such Tax Claim shall provide prompt written notice thereof to the other Party; provided , however , that the failure of such Party to give such prompt notice shall not relieve the other Party of any of its obligations under this Article ‎VII , except to the extent that the other Party is prejudiced by such failure. Such notice shall specify in reasonable detail the basis for

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such Tax Claim and shall include a copy of the relevant portion of any correspondence received from the taxing authority.
(b)      In the case of a Tax Proceeding of or with respect to the Company or any of its Subsidiaries for any Pre-Closing Tax Period or any Straddle Tax Period (in each case, other than a Tax Proceeding described in Section ‎7.7(c) ), the Controlling Party shall have the right and obligation to conduct, at its own expense, such Tax Proceeding; provided , however , that (i) the Controlling Party shall provide the non-Controlling Party with a timely and reasonably detailed account of each stage of such Tax Proceeding, (ii) the Controlling Party shall consult with the Non-Controlling Party before taking any significant action in connection with such Tax Proceeding, (iii) the Controlling Party shall consult with the Non-Controlling Party and offer the Non-Controlling Party an opportunity to comment before submitting any written materials prepared or furnished in connection with such Tax Proceeding, (iv) the Controlling Party shall defend such Tax Proceeding diligently and in good faith as if it were the only party in interest in connection with such Tax Proceeding, (v) the Non-Controlling Party shall be entitled to participate in such Tax Proceeding, and (vi) the Controlling Party shall not settle, compromise or abandon any such Tax Proceeding without obtaining the prior written consent of the Non-Controlling Party, which consent shall not be unreasonably withheld, conditioned or delayed; provided , further , however , that the Controlling Party shall not have any obligations (and the Non-Controlling Party shall not have any rights) under the immediately foregoing proviso with respect to any portion of such Tax Proceeding (and any actions, written materials, meetings or conferences relating exclusively thereto) that could not reasonably be expected to affect the liability of, or otherwise have an adverse effect on, the Non-Controlling Party or any of its Affiliates. For purposes of this Agreement, “ Controlling Party ” shall mean Seller in the case of any Tax Proceeding of or with respect to the Company for any Pre-Closing Tax Period or, in the case of any Tax Proceeding of or with respect to the Company for any Straddle Tax Period, Seller if Seller and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Tax Proceeding, or Purchaser if Purchaser and its Affiliates are reasonably expected to bear the greater Tax liability in connection with such Tax Proceeding; and “ Non-Controlling Party ” means whichever of Seller or Purchaser is not the Controlling Party with respect to such Tax Proceeding.
(c)      Notwithstanding anything to the contrary in this Agreement, Seller shall have the exclusive right to control in all respects, and neither Purchaser nor any of its Affiliates shall be entitled to participate in, any Tax Proceeding with respect to any consolidated, combined or unitary Tax Return of Seller, provided , however , that Seller shall notify Purchaser to the extent any such Tax Proceeding involves any issues that would materially adversely affect the Purchaser Tax Indemnified Parties, shall keep Purchaser reasonably appraised of the status of such Tax Proceeding with respect to such issues, shall consult with Purchaser regarding such issues, shall consider any comments of Purchaser in good faith and shall otherwise act in good faith with respect to such issues.
7.8      Cooperation and Exchange of Information .
(a)      Not more than 60 days after the receipt of a request from Purchaser, Seller shall, and shall cause its Affiliates to, provide to Purchaser a package of Tax information materials, including schedules and work papers, requested by Purchaser to enable Purchaser to

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prepare and file all Tax Returns required to be prepared and filed by it with respect to the Company and its Subsidiaries. Seller shall prepare such package completely and accurately, in good faith and in a manner consistent with Seller’s past practice.
(b)      Each Party shall, and shall cause its Affiliates to, provide to the other Party such cooperation, documentation and information as either of them reasonably may request in (i) preparing and filing any Tax Return, amended Tax Return or claim for refund, (ii) determining a liability for Taxes or an indemnity obligation under this Article ‎VII or a right to refund of Taxes or (iii) conducting any Tax Proceeding. Such cooperation, documentation and information shall include providing necessary powers of attorney, copies of all relevant portions of relevant Tax Returns, together with all relevant portions of relevant accompanying schedules and relevant work papers, relevant documents relating to rulings or other determinations by taxing authorities and relevant records concerning the ownership and Tax basis of property and other relevant information that any such Party may possess. Each Party shall make its employees reasonably available on a mutually convenient basis at its own cost to provide an explanation of any documents or information so provided.
(c)      Each Party shall retain (to the extent in its possession or the possession of its Affiliates) all Tax Returns, schedules and work papers, and all material records and other documents relating to Tax matters, of the Company and its Subsidiaries for its Tax periods ending on or prior to or including the Closing Date until the later of (x) the expiration of the statute of limitations for the Tax periods to which the Tax Returns and other documents relate, or (y) eight years following the due date (without extension) for such Tax Returns. Thereafter, the Party holding such Tax Returns or other documents may dispose of them unless the other Party provides reasonable notice and requests the opportunity to take possession of any portion of such Tax Returns and other documents that relate solely to the Company or any of its Subsidiaries at such other Party’s own expense ( provided , that any such notice must in any event be made in writing at least 60 days prior to such disposition).
7.9      Tax Sharing Agreements . On or before the Closing Date, the rights and obligations of the Company and its Subsidiaries pursuant to all Tax sharing agreements or arrangements (other than this Agreement), if any, to which such entity, on the one hand, and any member of the Seller Group, on the other hand, are parties, shall terminate, and neither any member of the Seller Group, on the one hand, nor the Company or any of its Subsidiaries, on the other hand, shall have any rights or obligations to each other after the Closing in respect of such agreements or arrangements.
7.10      Tax Treatment of Payments . Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or foreign Law), Seller, Purchaser, the Company and their respective Affiliates shall treat any and all payments under this Article ‎VII , Section ‎‎2.7 and ‎ Article ‎X as an adjustment to the Purchase Price for Tax purposes.
7.11      Transfer Taxes . Notwithstanding anything to the contrary in this Agreement, each of Purchaser and Seller shall pay, when due, and be responsible for, one half of any sales, use, transfer, real property transfer, registration, documentary, stamp, value added or similar Taxes imposed on or payable in connection with the transactions contemplated by this

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Agreement (“ Transfer Taxes ”). The Party responsible under applicable Law for filing any Tax Returns with respect to such Transfer Taxes shall prepare and timely file such Tax Returns (after providing the other Party a reasonable opportunity to comment) and promptly provide a copy of such Tax Return to the other Party. Seller and Purchaser shall, and shall cause their respective Affiliates to, cooperate to timely prepare and file any such Tax Returns or other filings relating to such Transfer Taxes, including any claim for exemption or exclusion from the application or imposition of any Transfer Taxes; provided , that, notwithstanding any of the foregoing, neither Party nor their respective Affiliates shall be required to file any claim for exemption or exclusion from the application or imposition of any Transfer Taxes, or any claim for any reduction thereof, if such Party determines in its reasonable discretion that the filing of such claim or any related action would have an adverse effect on such Party or any of its Affiliates.
7.12      Timing of Payments . Any indemnity payment required to be made pursuant to this Article ‎VII shall be made within ten days after the indemnified Party makes written demand upon the indemnifying Party, but in no case earlier than five days prior to the date on which the relevant Taxes or other amounts are required to be paid to the applicable taxing authority.
7.13      Tax Matters Coordination . Notwithstanding anything to the contrary in this Agreement, indemnification with respect to Taxes and the procedures relating thereto shall be governed exclusively by this Article ‎VII , and the provisions of Article ‎X shall not apply.
7.14      Tax Elections . The Parties agree that no elections pursuant to Code sections 336(e), 338(g) or 338(h)(10) will be made by Seller, any Affiliate of Seller, Purchaser, any Affiliate of Purchaser, or the Company, with respect to the Sale.
7.15      Tax Disputes .
(a)      If any dispute between the Parties should arise regarding their respective rights and obligations pursuant to this Article ‎VII (a “ Tax Dispute ”), Seller and Purchaser shall use commercially reasonable efforts to settle such Tax Dispute.
(b)      If, within 30 days, such commercially reasonable efforts do not resolve such Tax Dispute, Seller and Purchaser shall submit all matters that remain in dispute with respect to such Tax Dispute to Ernst & Young (the “ Tax Referee ”). Within 30 days after submission of such matters to the Tax Referee, the Tax Referee shall make a final determination pursuant to such procedures as the Tax Referee deems advisable. The Tax Referee shall resolve the Tax Dispute according to such procedures as the Tax Referee deems advisable and shall furnish written notice to the Parties of its resolution of any such Tax Dispute as soon as practicable, but in any event no later than 45 days after its acceptance of the matter for resolution. Any such resolution by the Tax Referee shall be consistent with the terms of this Agreement, and if so consistent shall be conclusive and binding on the Parties.
(c)      The fees and expenses relating to the work, if any, to be performed by the Tax Referee shall be borne equally by Seller, on the one hand, and Purchaser, on the other hand. During the review by the Tax Referee, each of Purchaser and Seller shall, and shall cause its respective Affiliates (including, in the case of Purchaser, the Company and its Subsidiaries) and its and their respective employees, accountants and other representatives to, each make available
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to the Tax Referee interviews with such personnel and such information, books and records and work papers, as may be reasonably requested by the Tax Referee to fulfill its obligations under this Section ‎7.15 ; provided , that the accountants of Seller or Purchaser shall not be obliged to make any work papers available to the Tax Referee except in accordance with such accountants’ normal disclosure procedures and then only after such Tax Referee has signed a customary nondisclosure agreement relating to such access to work papers.
7.16      Purchaser Tax Acts . None of Purchaser or any of its Affiliates (including, after the Closing, the Company and its Subsidiaries) shall, following the Closing (including the portion of the Closing Date after the Closing), other than an action taken in the ordinary course of business, required by applicable Law, or contemplated hereunder, take any of the following actions, without the prior written consent of Seller (which consent shall not be unreasonably withheld, conditioned or delayed): (a) make any Tax election, or change in tax accounting period or method, with an effective date on or prior to the Closing Date or during a Straddle Tax Period, (b) amend any Tax Return for a Pre-Closing Tax Period or a Straddle Tax Period, (c) initiate or execute any voluntary disclosure agreement or similar agreement with any Tax authority with respect to a Pre-Closing Tax Period of the Company or any of its Subsidiaries, or (d) extend the statute of limitations with respect to any Tax Return filed with respect to the Company for any Pre-Closing Tax Period or Straddle Tax Period, in the case of clauses (c) and (d), that could reasonably be expected to create any Tax obligation for which Seller would be liable under this Agreement. Upon the request of Purchaser or any of its Affiliates, Seller and its Affiliates on the one hand, and Purchaser and its Affiliates on the other hand, shall cooperate in good faith to determine, in advance of any proposed action by Purchaser or any of its Affiliates that may be described in this Section 7.16 , the amount of any income or gain that would be described in this Section ‎7.16 as a result of such proposed action.
ARTICLE VIII

CONDITIONS TO CLOSING
8.1      Conditions to Each Party’s Closing Obligations . The respective obligations of each Party to effect the transactions contemplated hereby are subject to the fulfillment or, to the extent permitted by applicable Law, joint waiver, by the Parties at or prior to the Closing of the following conditions:
(a)      No Injunctions . No Governmental Entity of competent authority and jurisdiction shall have issued an Order or enacted a Law that remains in effect that prohibits or makes illegal the consummation of the transactions contemplated hereby (collectively, the “ Legal Restraints ”).
(b)      Regulatory Approvals . The Required Regulatory Approvals shall have been obtained.
8.2      Conditions to Purchaser’s and Parent’s Closing Obligations . Purchaser’s and Parent’s respective obligations to effect the transactions contemplated hereby are subject to the fulfillment or, to the extent permitted by applicable Law, waiver by Purchaser and Parent, at or prior to the Closing of the following additional conditions:
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(a)      Representations and Warranties . (i) The representations and warranties of Seller set forth in Section ‎‎3.1 (the first two sentences only), Section ‎‎3.2 and Section ‎‎3.3 (such representations, the “ Seller Fundamental Representations ”) shall be true and correct in all but de minimis respects as of the Closing, as if made at and as of the Closing (or, if made as of a specific date, as of such date), (ii) the representation and warranty of the Seller set forth in Section ‎3.6(b) shall be true and correct as of the Closing, as if made at and as of the Closing, and (iii) each of the other representations and warranties of Seller contained in ‎Article ‎III (disregarding all qualifications as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the Closing as if made at and as of the Closing (or, if made as of a specific date, as of such date), except in the case of this clause (iii), where the failure of such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
(b)      Covenants and Agreements . The covenants and agreements of Seller to be performed at or before the Closing in accordance with this Agreement shall have been performed in all material respects.
(c)      No Company Material Adverse Effect . Since the date of this Agreement, no Company Material Adverse Effect shall have occurred.
(d)      Officer’s Certificate . Purchaser and Parent shall have received a certificate from Seller, signed on its behalf by an executive officer of Seller and dated the Closing Date, to the effect that the conditions set forth in Section ‎8.2(a) , Section ‎8.2(b) and Section ‎8.2(c) have been fulfilled.
(e)      No Purchaser Burdensome Condition . No Governmental Entity of competent jurisdiction and authority shall have issued an Order in connection with any Required Regulatory Approval that remains in effect and imposes a Purchaser Burdensome Condition.
(f)      Execution and Delivery of Final Ancillary Documents and Dispatch Contracts . Seller or its applicable Affiliate shall have executed and delivered to Parent or its applicable Affiliate each of the Final Ancillary Documents and the Dispatch Contracts, each of which shall be in full force and effect as of the Closing.
8.3      Conditions to Seller’s Closing Obligation . Seller’s obligations to effect the transactions contemplated hereby are subject to the fulfillment or, to the extent permitted by applicable Law, waiver by Seller, at or prior to the Closing of the following additional conditions:
(a)      Representations and Warranties . (i) The representations and warranties of Purchaser and Parent set forth in Section ‎4.1 and Section ‎‎4.2 (collectively, the “ Purchaser Fundamental Representations ”) shall be true and correct in all but de minimis respects as of the Closing as if made at and as of the Closing (or, if made as of a specific date, as of such date) and (ii) each of the other representations and warranties of Purchaser contained in ‎Article ‎IV (disregarding all qualifications as to materiality or Purchaser Material Adverse Effect contained therein) shall be true and correct as of the Closing as if made at and as of the Closing (or, if made as of a specific date, as of such date), except in the case of this clause (ii), where the failure of

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such representations and warranties to be true and correct would not reasonably be expected to have, individually or in the aggregate, a Purchaser Material Adverse Effect.
(b)      Covenants and Agreements . The covenants and agreements of Purchaser and Parent to be performed at or before the Closing in accordance with this Agreement shall have been performed in all material respects.
(c)      Officer’s Certificate . Seller shall have received a certificate from each of Purchaser and Parent, signed on such Party’s behalf by an executive officer of Purchaser or Parent, as applicable, stating that the conditions specified in Section ‎8.3(a) and Section ‎8.3(b) have been fulfilled.
(d)      Seller Burdensome Condition . No Governmental Entity of competent jurisdiction and authority shall have issued an Order in connection with any Required Regulatory Approval that remains in effect and imposes a Seller Burdensome Condition.
(e)      Execution and Delivery of Final Ancillary Documents . Parent or its applicable Affiliate shall have executed and delivered to Seller or its applicable Affiliate each of the Final Ancillary Documents, each of which shall be in full force and effect as of the Closing.
8.4      Frustration of Closing Conditions . No Party may rely on the failure of any condition set forth in Section ‎8.1 , Section ‎8.2 or Section ‎8.3 , as the case may be, either as a basis for not consummating the Sale or any of the other transactions contemplated by this Agreement, or as a basis for terminating this Agreement, if such failure was caused by such Person’s or its Affiliates’ failure to act in good faith or to use the efforts to cause the Closing to occur that are required by this Agreement.
ARTICLE IX

TERMINATION
9.1      Termination . This Agreement may be terminated at any time prior to the Closing:
(a)      by mutual written consent of Seller and Purchaser; or
(b)      by either Seller or Purchaser, if:
(i)      the Closing shall not have occurred on or before June 28, 2019 (the “ Outside Date ”); provided , that the right to terminate this Agreement under this clause (i) shall not be available to (x) any Party whose failure to perform in any material respect any of its covenants or agreements contained in this Agreement has been the cause of, or has resulted in, the failure of the Closing to occur on or before such date or (y) a Party if the other Party has filed (and is then pursuing) an Action seeking specific performance as permitted by Section ‎11.13 ; provided , further , that if, as of the end of the day on June 27, 2019, the condition to the Closing set forth in Section ‎‎8.1(b) , has not been fulfilled but all other conditions to the Closing have been fulfilled or are capable of being fulfilled at the Closing, then the Outside Date will be December 31, 2019, and; provided , further , that if the Outside Date would otherwise occur during the
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pendency of the notice period contemplated by Section ‎9.3(a)(ii)(B), Section ‎9.3(b)(ii)(B) , or clause (y) of the proviso to Section 9.3(b) then the Outside Date shall be automatically extended until the expiration of such notice period;
(ii)      Seller (in the case of a termination by Purchaser) or Parent or Purchaser (in the case of a termination by Seller) shall have breached or failed to perform in any material respect any of its respective representations, warranties, covenants or other agreements contained in this Agreement, and such breach or failure to perform (A) would give rise to the failure of a condition set forth in Section ‎8.2(a) or ‎8.2(b) (in the case of termination by Purchaser) or Section ‎8.3(a) or ‎8.3(b) (in the case of termination by Seller), and (B) (1) is incapable of being cured prior to the Outside Date or (2) if capable of being cured prior to the Outside Date, has not been cured prior to the earlier of (x) 60 days after the date on which Seller or Purchaser, as applicable, receives notice of such alleged breach or failure to perform from the party seeking termination, stating such party’s intention to terminate this agreement pursuant to Section ‎9.1(b)(ii) and the basis for such termination and (y) the Outside Date; provided , that the right to terminate this Agreement under this Section ‎9.1(b)(ii) shall not be available to any Party if such Party is then in breach in any material respect of any of its respective representations, warranties, covenants or other agreements contained in this Agreement;
(iii)      the condition in Section ‎8.1(a) is not satisfied and the Legal Restraint giving rise to the non-satisfaction shall have become final and non-appealable; provided , that the right to terminate this Agreement under this Section ‎9.1(b)(iii) shall not be available to any Party if such Party shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement with respect to such Legal Restraint, including Section ‎‎5.5 ; or
(iv)      any Governmental Entity that must grant a Required Regulatory Approval shall have denied such grant, and such denial shall have become final and non-appealable; provided , that the right to terminate this Agreement under this Section ‎9.1(b)(iv) shall not be available to any Party if such Party shall have breached or failed to perform in any material respect any of its covenants or other agreements contained in this Agreement with respect to such consent, authorization or approval, including Section ‎‎5.5 .
9.2      Notice of Termination . In the event of termination of this Agreement by either or both of Seller and Purchaser pursuant to Section ‎9.1, written notice of such termination shall be given by the terminating Party to the other.
9.3      Termination Fees .
(a)      Seller Termination Fee . In the event that (i) this Agreement is terminated pursuant to (A) Section ‎9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section ‎8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section ‎8.1(b) have not been satisfied, (B) Section ‎9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity
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that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C) Section ‎9.1(b)(iv) and (ii) the conditions in Section ‎8.1(a) and Section ‎8.1(b) would have been satisfied but for (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition (other than pursuant to clause (i) of the definition thereof) or (B) Seller’s failure to perform in any material respect its obligations under Section ‎5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject to Section ‎9.3(c) , Seller will by way of compensation, pay to Purchaser an amount equal to $100,000,000 (the “ Seller Termination Fee ”) by wire transfer (to an account designated by Purchaser) of immediately available funds (x) prior to or concurrently with such termination in the event of a termination by Seller or (y) no later than five Business Days following such termination in the event of a termination by Purchaser. In no event will Seller be required to pay the Seller Termination Fee other than in the instance described in this Section ‎9.3(a) and in no event will Seller be required to pay the Seller Termination Fee on more than one occasion. The Parties acknowledge that the Seller Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Purchaser and Parent for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Purchaser receives the Seller Termination Fee pursuant to this Section ‎9.3(a) , receipt of the Seller Termination Fee will be the sole and exclusive remedy of Purchaser, Parent and their respective Affiliates against Seller and its Affiliates and their respective Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or in connection with the transactions contemplated hereby, and upon receipt of the Seller Termination Fee, none of the foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise.
(b)      Purchaser Termination Fee . In the event that: (i) this Agreement is terminated pursuant to (A) Section ‎9.1(b)(i) at a time when only the conditions (other than those conditions that by their nature are to be satisfied at the Closing, but which conditions would be capable of being satisfied if the Closing Date were the date of such termination) in Section ‎8.1(a) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or Section ‎8.1(b) have not been satisfied, (B) Section ‎9.1(b)(iii) (but only if the applicable Legal Restraint relates to a Required Regulatory Approval or is in connection with the assertion by a Governmental Entity that an approval (other than the Required Regulatory Approvals) is required from such Governmental Entity) or (C)  Section ‎9.1(b)(iv) ; and (ii) the conditions in Section ‎8.1(a) and Section ‎8.1(b) failed to be satisfied other than as a result of (A) Seller’s failure to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller’s failure to perform in any material respect its obligations under Section ‎5.5 (written notice of which failure to perform was provided by Purchaser to Seller at least 30 days prior to the termination of this Agreement), then, subject to Section ‎9.3(c) , Parent will pay, or cause to be paid, by way of compensation to Seller an amount equal to $100,000,000 (the “ Regulatory Termination Fee ”); provided , however , that, if this Agreement has been terminated in the circumstances set forth in the preceding clause (i) and the conditions in Section ‎8.1(a) and Section ‎8.1(b) would have been satisfied but for

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(x) Purchaser’s failure to agree or to commit to undertake a Purchaser Burdensome Condition or (y) Purchaser’s failure to perform in any material respect its obligations under in Section ‎‎5.5 (written notice of which failure to perform was provided by Seller to Purchaser at least 30 days prior to the termination of this Agreement), then, subject to Section ‎9.3(c) , Parent will pay, or shall cause to be paid, by way of compensation to Seller an amount equal to $200,000,000 (the “ Purchaser Termination Fee ”). If the Regulatory Termination Fee or the Purchaser Termination Fee becomes due and payable in accordance with this Section ‎9.3(b) , then such fee shall be paid in each case by wire transfer (to an account designated by Seller) of immediately available funds (I) prior to or concurrently with such termination in the event of a termination by Purchaser or (II) no later than five Business Days following such termination in the event of a termination by Seller. In no event will Parent be required to pay the Purchaser Termination Fee or Regulatory Termination Fee other than in the circumstances described in this Section ‎9.3(b) and in no event will Parent be required to pay both the Purchaser Termination Fee and the Regulatory Termination Fee. In the event that both the Purchaser Termination Fee and the Regulatory Termination Fee are payable pursuant to this Section ‎9.3(b) , then Seller shall only be entitled to receive, and Purchaser shall only be required to pay, the Purchaser Termination Fee. In addition, Parent shall not be required to pay the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, on more than one occasion. The Parties acknowledge that each of the Purchaser Termination Fee and the Regulatory Termination Fee will not constitute a penalty but is liquidated damages, in a reasonable amount that will compensate Seller for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement, which amount would otherwise be impossible to calculate with precision. Except in the case of Willful Breach or Actual Fraud, in any circumstance in which Seller receives the Purchaser Termination Fee or the Regulatory Termination Fee, as the case may be, pursuant to this Section ‎9.3(b) , receipt of such fee will be the sole and exclusive remedy of Seller and its Affiliates and their respective Representatives against Purchaser, Parent and their respective Affiliates and Representatives for any loss suffered as a result of any breach of any representation, warranty, covenant or agreement in this Agreement or in connection with the transactions contemplated hereby, and upon receipt of the Purchaser Termination Fee or the Regulatory Termination Fee, none of the foregoing Persons will have any further liability or obligation relating to or arising out of this Agreement or the transactions contemplated hereby, whether in equity or at law, in contract, in tort or otherwise.
(c)      Anything to the contrary in Section ‎9.3(a) or Section ‎9.3(b) notwithstanding: (i) Purchaser shall not be entitled to receive, and Seller shall not be obligated to pay, the Seller Termination Fee in the event that (A) Purchaser has failed to agree or to commit to undertake a Purchaser Burdensome Condition or (B) Purchaser has failed to perform in any material respect any of its obligations under Section ‎‎5.5 and the conditions in Section ‎8.1(a) and Section ‎8.1(b) would have been satisfied but for such failure; and (ii) Seller shall not be entitled to receive, and Purchaser shall not be obligated to pay, the Purchaser Termination Fee or Regulatory Termination Fee in the event that (A) Seller has failed to agree or to commit to undertake a Seller Burdensome Condition or (B) Seller has failed to perform in any material respect any of its obligations under Section ‎‎5.5 and the conditions in Section ‎8.1(a) and Section ‎8.1(b) would have been satisfied but for such failure.
9.4      Effect of Termination . In the event of termination of this Agreement by either or both of Seller and Purchaser pursuant to Section ‎9.1 , this Agreement shall terminate and become void and have no effect, and there shall be no liability on the part of any Party, except as set forth
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in Section ‎9.3 and the Confidentiality Agreement; provided , that termination of this Agreement shall not relieve any Party from liability for Willful Breach or Actual Fraud. For purposes hereof, “ Willful Breach ” shall mean a breach that is a consequence of a deliberate act or deliberate failure to act undertaken by the breaching Party with the knowledge that the taking of, or failure to take, such act would cause the failure of the transactions contemplated by this Agreement to be consummated; provided that, without limiting the meaning of Willful Breach, the Parties acknowledge and agree that any failure by any Party to consummate the Sale after the applicable conditions to the Closing set forth in Article ‎VIII have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, and which conditions would be capable of being satisfied at the time of such failure to consummate the Sale) shall constitute a Willful Breach of this Agreement by such Party. For the avoidance of doubt, (a) in the event that all applicable conditions to the Closing set forth in Article ‎VIII have been satisfied or waived (except for those conditions that by their nature are to be satisfied at the Closing, and which conditions would be capable of being satisfied at the time of such failure to consummate the Sale), but Purchaser fails to close for any reason, such failure to close shall be considered a Willful Breach by Purchaser and (b) Parent and Purchaser acknowledge that the availability or unavailability of financing for the transactions contemplated by this Agreement shall have no effect on Purchaser’s obligations hereunder. Notwithstanding anything to the contrary contained herein, the provisions of Section ‎3.20 , Section ‎‎4.9 , Section ‎5.3(c) , Section ‎‎5.7 , Section ‎9.3 , ‎Article ‎XI , and this Section ‎9.4 shall survive any termination of this Agreement.
9.5      Extension; Waiver . At any time prior to the Closing, either Seller or Purchaser may (but shall not be required to) (a) extend the time for performance of any of the obligations or other acts of the other Party, (b) waive any inaccuracies in the representations and warranties of the other Party contained in this Agreement or in any document delivered by the other Party pursuant to this Agreement or (c) subject to applicable Law, waive compliance with any of the agreements or conditions of the other Party contained in this Agreement. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the Party granting such extension or waiver sent in accordance with Section ‎11.3 and referencing this Section of the Agreement.
ARTICLE X

INDEMNIFICATION
10.1      Survival of Representations, Warranties, Covenants and Agreements .
(a)      The Seller Fundamental Representations and Purchaser Fundamental Representations shall survive the Closing until the 12-month anniversary thereof. All other representations and warranties contained in this Agreement shall expire upon the Closing.
(b)      The covenants and agreements to be performed at or prior to Closing contained in Sections 5.1 (other than Section 5.1(a)(iii)(y)(I) ), ‎5.2 , ‎5.3 , ‎5.6 , ‎5.8 , ‎5.9 , ‎5.10 and ‎5.16 shall survive the Closing until the 12-month anniversary thereof, and written notice of a claim for breach of such covenant or agreement must be given by Purchaser to Seller or by Seller to Purchaser, as applicable, in accordance with the provisions hereof on or prior to such 12-

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month anniversary, and any other covenant and agreement contained herein that by its terms is to be performed solely at or prior to Closing shall expire at the Closing. Any covenant and agreement to be performed, in whole or in part, after the Closing shall survive the Closing in accordance with its terms.
(c)      Notwithstanding the foregoing, any claims asserted in connection with this Agreement in good faith with reasonable specificity (to the extent known at such time) and in writing by notice from the non-breaching Party to the breaching Party prior to the expiration date of the applicable survival period shall not thereafter be barred by the expiration of the relevant representation or warranty and such claims shall survive until finally resolved.
10.2      Indemnification by Seller .
(a)      Subject to the provisions of this ‎Article ‎X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article ‎II ) and indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII ), effective as of and after the Closing, Seller shall indemnify and hold harmless Purchaser and its Affiliates, and each of their respective directors, officers, employees, agents and representatives (collectively, the “ Purchaser Indemnified Parties ”), from and against any and all Losses incurred or suffered by any of the Purchaser Indemnified Parties arising out of or related to:
(i)      any breach of any Seller Fundamental Representation, at and as of the Closing as though made at and as of the Closing, or any breach of the representation and warranty made in Section ‎3.16 ;
(ii)      any breach of any covenant or agreement of Seller contained in this Agreement to be performed prior to the Closing; and
(iii)      any breach of any covenant or agreement of Seller contained in this Agreement to be performed, in whole or in part, after the Closing.
(b)      Notwithstanding any other provision to the contrary (except with respect to indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII )): (i) Seller shall not be required to indemnify or hold harmless any Purchaser Indemnified Party against, or reimburse any Purchaser Indemnified Party for, any Losses pursuant to Section ‎10.2(a)(ii) , solely to the extent such Losses arise out of or relate to a breach of Section ‎5.1 , until the aggregate amount of the Purchaser Indemnified Parties’ Losses under Section ‎10.2(a)(ii) exceeds $20,000,000 (the “ Threshold ”), after which Seller shall be obligated for the Purchaser Indemnified Parties’ Losses under Section ‎10.2(a)(ii) for the full amount of such Losses, from the first dollar thereof and without regard to the Threshold; and (ii) the cumulative indemnification obligations of Seller under Section ‎10.2(a) shall in no event exceed, in aggregate, the Purchase Price (the “ Cap ”).
10.3      Indemnification by Parent .
(a)      Subject to the provisions of this Article ‎X and except with respect to Closing Payment Adjustments (which shall be governed exclusively by Article ‎II ) and indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII ), effective as of
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and after the Closing, Parent shall, and shall cause the Company to, indemnify and hold harmless Seller and its Affiliates, and each of their respective directors, officers, employees, agents and representatives (collectively, the “ Seller Indemnified Parties ”), from and against any and all Losses incurred or suffered by any of the Seller Indemnified Parties arising out of or related to:
(i)      any breach of any Purchaser Fundamental Representations, at and as of the Closing as though made at and as of the Closing, contained in ‎Article ‎IV ;
(ii)      any breach of any covenant or agreement of Purchaser contained in this Agreement to be performed prior to the Closing; and
(iii)      any breach of any covenant or agreement of Purchaser contained in this Agreement to be performed, in whole or in part, after the Closing.
(b)      Notwithstanding any other provision to the contrary (except with respect to indemnification for Taxes (which shall be governed exclusively by ‎Article ‎VII )), the cumulative indemnification obligations of Parent and the Company under Section ‎10.3(a) shall in no event exceed, in aggregate, the Cap.
10.4      Indemnification Procedures .
(a)      Third Party Claims . If any Person entitled to receive indemnification under this Agreement (an “ Indemnitee ”) receives notice of any demand or claim by any Person who is neither a Party nor an Affiliate of a Party (a “ Third Party Claim ”) which has or could reasonably give rise to a right of indemnification hereunder, or for which the Indemnitee may claim a right to indemnification hereunder from the other Party (the “ Indemnifying Party ”), the Indemnitee will promptly give written notice (a “ Third Party Claim Notice ”) of such Third Party Claim to the Indemnifying Party. Any such Third Party Claim Notice shall (i) describe the nature, facts and circumstances of the Third Party Claim in reasonable detail, (ii) state the estimated amount of the indemnifiable Loss that has been or may be sustained by the Indemnitee, if practicable, (iii) state the method and computation thereof and (iv) contain specific reference to the provision or provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The Indemnitee shall provide the Indemnifying Party with such other information known to it or in its possession with respect to the Third Party Claim as the Indemnifying Party may reasonably request. The Indemnifying Party, at its sole cost and expense, will have the right, upon written notice to the Indemnitee within 30 days (or such earlier time as may be required by the nature of the Third Party Claim) of receiving a Third Party Claim Notice, to assume the defense of the Third Party Claim through counsel reasonably satisfactory to the Indemnitee; provided , that the Indemnitee shall be entitled to retain its own counsel, at its expense, and the Indemnitee may assume control of the defense of the Third Party Claim, if at the Indemnifying Party’s expense (i) upon the advice of Indemnitee’s counsel, a conflict of interest exists (or would reasonably be expected to arise) that would make it inappropriate for the same counsel to represent both the Indemnifying Party and Indemnitee in connection with a Third Party Claim, (ii) the Indemnifying Party fails to diligently prosecute the defense of the Third Party Claim or (iii) such Third Party Claim (A) seeks non-monetary relief or (B) involves criminal or quasi criminal allegations, and, provided further , that if the aggregate dollar amount of the Third Party Claim, together with all other Third Party Claims of which the Indemnifying
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Party is aware or has received Third Party Claim Notices, and all costs and expenses reasonably estimated to be incurred in connection with the defense thereof, would exceed the Cap, the Indemnitee may, at its option, and to the extent in excess of the Cap at its sole cost and expense, assume the defense of the Third Party Claim with counsel of its choice upon written notice to the Indemnifying Party within 15 days of receiving a Third Party Claim Notice.
(b)      Defense of Third Party Claims . If the Indemnifying Party assumes the defense of a Third Party Claim pursuant to Section ‎10.4(a) , the Indemnifying Party will diligently pursue such defense, and will keep the Indemnitee reasonably informed with respect to such defense. The Indemnitee shall, and shall cause its Affiliates to, cooperate with the Indemnifying Party and its counsel, including making available to the Indemnifying Party all witnesses, pertinent records, materials and information in the Indemnitee’s possession or under the Indemnitee’s control relating thereto as is reasonably required by the Indemnifying Party. The Indemnitee will have the right to participate in such defense, including appointing separate counsel, but the costs of such participation shall be borne solely by the Indemnitee. Subject to Section ‎10.4(a) , the Indemnifying Party will, in consultation with the Indemnitee, make all decisions and determine all actions to be taken with respect to the defense and settlement of the Third Party Claim; provided , however , that the Indemnifying Party shall not pay, compromise, settle, or otherwise dispose of such Third Party Claim without the prior written consent of the Indemnitee, which consent shall not be unreasonably withheld, conditioned or delayed, provided that it will not be deemed to be unreasonable for an Indemnitee to withhold its consent if (A) such payment, compromise, settlement or disposition does not involve solely the payment of money, (B) such payment, compromise, settlement or disposition does not involve solely the payment of money by the Indemnifying Party without recourse to the Indemnitee, (C) such payment, compromise, settlement or disposition involves a finding or admission of violation of any Law, Order or Permit or rights of any Person by the Indemnitee or its Affiliates, or (D) such payment, compromise, settlement or disposition does not contain an unconditional release of the Indemnitee from the subject matter of such payment, compromise, settlement or disposition. In no event will the Indemnifying Party have authority to agree, without the consent of the Indemnitee, to any relief binding on the Indemnitee other than the payment of money damages by the Indemnifying Party without recourse to the Indemnitee.
(c)      Failure to Assume Defense . If the Indemnifying Party elects not to defend such Third Party Claim, fails to timely notify the Indemnitee in writing of its election to defend, or fails to diligently prosecute the defense of such Third Party Claim, the Indemnitee may defend such Third Party Claim and seek indemnification for any and all indemnifiable Losses based upon, arising from or relating to such Third Party Claim; provided , however , that the Indemnitee shall not pay, compromise, settle, or otherwise dispose of such Third Party Claim without the prior written consent of the Indemnifying Party (which consent shall not be unreasonably withheld, conditioned or delayed).
(d)      Direct Losses . Any claim by an Indemnitee on account of an indemnifiable Loss that does not result from a Third Party Claim (a “ Direct Loss ”) will be asserted by giving the Indemnifying Party prompt written notice thereof, (i) describing the nature, facts and circumstances of such indemnifiable Loss in reasonable detail, (ii) stating the amount of the indemnifiable Loss that has been or may be sustained by the Indemnitee, if practicable, (iii) stating the method and computation thereof, and (iv) containing specific
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reference to the provision or provisions of this Agreement in respect of which such right of indemnification is claimed or arises. The Indemnitee shall provide the Indemnifying Party with such other information with respect to the Direct Loss as the Indemnifying Party may reasonably request and shall cooperate with the Indemnifying Party and its counsel, including permitting reasonable access to books, records, and personnel, in connection with determining the validity of any claim for indemnification by the Indemnitee and in otherwise resolving such matters. The Indemnifying Party will have a period of 30 Business Days within which to respond to such claim of a Direct Loss. If the Indemnifying Party rejects such claim, or does not respond within such period, the Indemnitee may seek enforcement of its rights to indemnification under this Agreement.
(e)      Delay . A failure to give timely notice as provided in this Section ‎‎10.4 will affect the rights or obligations of a Party hereunder only to the extent that, as a result of such failure, the Party entitled to receive such notice was actually prejudiced as a result of such failure. Notwithstanding the foregoing, no claim for indemnification first made after the expiration of the applicable survival period with respect to the representation, warranty or covenant on which such claim is based set forth in Section ‎‎10.1 will be valid and any such claim shall be deemed time-barred.
10.5      Exclusive Remedy. Except with respect to the matters covered by Sections ‎‎2.5 through ‎‎2.7 (which shall be governed exclusively by such sections) and with respect to any matter relating to Taxes (which shall be governed exclusively by ‎ Article ‎VII ) and except for the Parties’ right to seek and obtain any equitable relief pursuant to Section ‎11.13 , the Parties acknowledge and agree that, following the Closing, the indemnification provisions of Sections ‎‎10.2 and ‎‎ 10.3 shall be the sole and exclusive remedies of the Parties for any Liabilities or Losses (including any Liabilities or Losses from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise and whether predicated on common law, statute, strict liability, or otherwise) that each Party may at any time suffer or incur, or become subject to, as a result of, or in connection with the Sale or the other transactions contemplated hereby, including any breach of any representation or warranty in this Agreement by any Party, or any failure by any Party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement (but excluding the Form Ancillary Documents). In furtherance of the foregoing, Seller and Purchaser hereby waive, on behalf of themselves and the other Seller Indemnified Parties and Purchaser Indemnified Parties, respectively, to the fullest extent permitted by applicable Law, any and all other rights, claims and causes of action (including rights of contribution, rights of recovery arising out of or relating to any Environmental Laws, claims for breach of contract, breach of representation or warranty, negligent misrepresentation and all other claims for breach of duty) that may be based upon, arise out of, or relate to the Company, this Agreement, the negotiation, execution or performance of this Agreement (including any tort or breach of contract claim or cause of action based upon, arising out of, or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), or the transactions contemplated hereby, known or unknown, foreseen or unforeseen, which exist or may arise in the future, that it may have against the other arising under or based upon any Law, common law, or otherwise.
10.6      Additional Indemnification Provisions . With respect to each indemnification obligation contained in this Article ‎X , all Losses shall be net of indemnity proceeds that have
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been recovered by the indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if indemnification proceeds in respect of such facts are recovered by the indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent that the indemnification payment made exceed the Losses incurred), and the indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to seek recovery under all indemnity provisions covering such Losses to the same extent as it would if such Losses were not subject to indemnification hereunder.
10.7      Limitation on Consequential Damages . Notwithstanding anything to the contrary elsewhere in this Agreement or provided for under any applicable Law, no Party will be liable to the other Party, either in contract or in tort, for any consequential, incidental, indirect, special, or punitive damages of the other Party, including business interruption, loss of future revenue, profits or income, diminution in value or loss of business reputation or opportunity, relating to the breach or alleged breach hereof or otherwise, whether or not the possibility of such damages has been disclosed to the other Party in advance or could have been reasonably foreseen by such other Party, and, in particular, no “multiple of profits,” “multiple of cash flow,” “multiple of assets” or similar valuation methodology shall be used in calculating the amount of any indemnifiable Losses. The exclusion of consequential, incidental, indirect, special, and punitive damages as set forth in the preceding sentence does not apply to any such damages actually paid to a third parties by Purchaser or Seller, as the case may be, in connection with Losses that may be indemnified pursuant to this ‎ Article ‎X after Closing.
10.8      Mitigation . Each of the Parties agrees to use its commercially reasonable efforts to mitigate its respective Losses upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Losses that are indemnifiable hereunder, and no Indemnifying Party shall be liable for any Losses to the extent they arise out of or result from the indemnified Party’s failure to use commercially reasonable efforts to mitigate such Losses.
ARTICLE XI

GENERAL PROVISIONS
11.1      Amendment . This Agreement may be amended, modified, or supplemented only by written agreement of Seller, Purchaser and Parent.
11.2      Waivers and Consents . Except as otherwise provided in this Agreement, any failure of Seller, Parent or Purchaser to comply with any obligation, covenant, agreement or condition herein may be waived by the Person entitled to the benefits thereof only by a written instrument signed by such Person granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement, or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
11.3      Notices . All notices and other communications hereunder will be in writing and will be deemed given (a) when received, if delivered personally, (b) when sent, if sent by facsimile transmission ( provided , that the sender receives confirmation of successful

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transmission) or by electronic mail or (c) when received, if mailed by overnight courier or certified mail (return receipt requested), postage prepaid, in each case, to the Party being notified at such Party’s address indicated below (or at such other address for a Party as is specified by like notice):
(a)      If to Seller:
The Southern Company
30 Ivan Allen Jr. Boulevard, N.W.
Atlanta, Georgia 30308
Attention: James Y. Kerr, Executive Vice President, General Counsel and Chief Compliance Officer
Email:        jykerr@southernco.com
Facsimile No: (404) 506-0212
with a copy (which shall not constitute notice) to:

Jones Day
1420 Peachtree Street
Atlanta, Georgia 30309-3053
Attention:    William B. Rowland
        William J. Zawrotny
Email:        wbrowland@jonesday.com
        wjzawrotny@jonesday.com
Facsimile No: (404) 581-8330
(b)      If to Purchaser or Parent:
NextEra Energy, Inc.
700 Universe Blvd.
Juno Beach, FL 33408
Attention:     Mark Hickson

        Charles E. Sieving
Email:        mark.hickson@nee.com

        charles.sieving@nee.com
Facsimile No: (561) 694-3337
with a copy (which shall not constitute notice) to:
Wachtell, Lipton, Rosen & Katz
51 West 52
nd Street
New York, New York 10019
Attention:    Edward D. Herlihy

        Brandon C. Price
        John L. Robinson
Email:        EDHerlihy@wlrk.com
        BCPrice@wlrk.com

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        JLRobinson@wlrk.com
Facsimile No: (212) 403-2000
11.4      Assignmen t. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of Seller, Purchaser and Parent and their respective successors and permitted assigns, but neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned by Seller, Purchaser or Parent, without the prior written consent of Seller (in the case of an assignment by Purchaser or Parent) or of Purchaser (in the case of assignment by Seller). Notwithstanding the foregoing, each of Seller, Parent and Purchaser shall be permitted to assign its respective rights and obligations under this Agreement, individually or collectively, to one or more of its wholly owned, direct or indirect Subsidiaries with prior written notice to the other Parties; provided , however , that no such assignment shall relieve a Party of, or constitute a discharge of, any of such Party’s liabilities and obligations under this Agreement.
11.5      No Third Party Beneficiaries . Except for Sections ‎‎5.13 , ‎ 5.18 , ‎ 7.1 , ‎‎ 7.2 , ‎‎ 10.2 and ‎‎ 10.3 in each case which are intended to benefit, and to be enforceable by, the parties specified therein, this Agreement, together with the Ancillary Agreements and the Exhibits and Schedules hereto, are not intended to confer in or on behalf of any Person not a Party (and their successors and assigns) any rights, benefits, causes of action or remedies with respect to the subject matter or any provision hereof.
11.6      Expenses . Except as otherwise set forth in this Agreement, whether the transactions contemplated by this Agreement are consummated or not, all legal and other costs and expenses incurred in connection with this Agreement and the transactions contemplated by this Agreement shall be paid by the Party incurring such costs and expenses unless expressly otherwise contemplated in this Agreement.
11.7      Governing Law . This Agreement (as well as any claim or controversy arising out of or relating to this Agreement or the transactions contemplated hereby) shall be governed by and construed in accordance with the Laws of the State of Delaware, without regard to the conflicts of laws rules thereof that would otherwise require the Laws of another jurisdiction to apply.
11.8      Severability . Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction.
11.9      Entire Agreement . This Agreement will be a valid and binding agreement of the Parties only if and when it is fully executed and delivered by Seller, Purchaser and Parent, and until such execution and delivery no legal obligation will be created by virtue hereof. This Agreement, the Confidentiality Agreement and the Ancillary Agreements (and, if the Closing occurs, the Final Ancillary Documents), together with the Exhibits and Schedules hereto and thereto and the certificates and instruments delivered hereunder or in accordance herewith, embodies the entire agreement and understanding of Seller, Purchaser and Parent in respect of the transactions contemplated by this Agreement. This Agreement, the Confidentiality Agreement and the Ancillary Agreements (and, if the Closing occurs, the Final Ancillary
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Documents) supersede all prior agreements and understandings between Seller, on the one hand, and Purchaser or Parent, on the other hand, with respect to the matters contemplated hereby. Neither this Agreement, the Confidentiality Agreement nor any Ancillary Agreement (nor, if the Closing occurs, the Form Ancillary Documents) shall be deemed to contain or imply any restriction, covenant, representation, warranty, agreement or undertaking of Seller, Purchaser or Parent with respect to the transactions contemplated hereby or thereby other than those expressly set forth herein or therein or in any document required to be delivered hereunder or thereunder.
11.10      Delivery . This Agreement, and any certificates and instruments delivered hereunder or in accordance herewith, may be executed in multiple counterparts (each of which will be deemed an original, but all of which together will constitute one and the same instrument). Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (.pdf) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
11.11      Waiver of Jury Trial . EACH OF THE PARTIES HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE ANCILLARY AGREEMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
11.12      Submission to Jurisdiction . Each of Seller, Purchaser and Parent irrevocably agrees that any Action arising out of or relating to this Agreement brought by the other Party (or any of their respective successors or assigns) shall be brought and determined in any state or federal court sitting in the State of Delaware, and each of Seller, Purchaser and Parent hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such Action arising out of or relating to this Agreement and the transactions contemplated hereby. Each of Seller, Purchaser and Parent agrees not to commence any Action relating thereto except in the courts described above in Delaware, other than Actions in any court of competent jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described herein. Each of Seller, Purchaser and Parent further agrees that notice as provided herein shall constitute sufficient service of process and each of Seller, Purchaser and Parent further waives any argument that such service is insufficient. Each of Seller, Purchaser and Parent hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Action arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described herein for any reason, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) that (i) the Action in any such court is brought in an inconvenient forum, (ii) the venue of such Action is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
11.13      Specific Performance . Each of Seller, Purchaser and Parent agrees that irreparable damage would occur in the event that any of the provisions of this Agreement were
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not performed in accordance with their specific terms or were otherwise breached. Accordingly, each of Seller, Purchaser and Parent shall be entitled to specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any state or federal court sitting in the State of Delaware, this being in addition to any other remedy to which they are entitled at law or in equity. Each of Seller, Purchaser and Parent hereby further waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any Law to post security as a prerequisite to obtaining equitable relief.
11.14      Disclosure Generally . Notwithstanding anything to the contrary contained in the Seller Disclosure Letter or in this Agreement, the information and disclosures contained in any Seller Disclosure Letter shall be deemed to be disclosed and incorporated by reference with respect to any other representation or warranty of Seller for which applicability of such information and disclosure is reasonably apparent on its face. The fact that any item of information is disclosed in any Seller Disclosure Letter shall not be construed to mean that such information is required to be disclosed by this Agreement. Such information and the dollar thresholds set forth herein shall not be used as a basis for interpreting the terms “material” or “Company Material Adverse Effect” or other similar terms in this Agreement.
11.15      Provision Respecting Legal Representation . Each Party agrees, on its own behalf and on behalf of its Affiliates, that Baker Botts L.L.P., Balch & Bingham LLP, Beggs & Lane RLLP, Gibson, Dunn & Crutcher LLP, Jones Day and Troutman Sanders LLP may serve as counsel to Seller and the Company in connection with the negotiation, preparation, execution and delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby, and that, following consummation of the transactions contemplated hereby and thereby, Baker Botts L.L.P., Balch & Bingham LLP, Beggs & Lane RLLP, Gibson, Dunn & Crutcher LLP, Jones Day and Troutman Sanders LLP (or any successors) may serve as counsel to Seller or any Affiliate or representative of Seller, in connection with any Action or obligation arising out of or relating to the transactions contemplated hereby and thereby notwithstanding such prior representation of the Company, and each Party consents thereto and waives any conflict of interest arising therefrom.
11.16      Privilege . Purchaser, for itself and its Affiliates, and its and its Affiliates’ respective successors and assigns, hereby irrevocably and unconditionally acknowledges and agrees that all attorney-client privileged communications between Seller, the Company and their respective current or former Affiliates or representatives and their counsel, including Baker Botts L.L.P., Balch & Bingham LLP, Beggs & Lane RLLP, Gibson, Dunn & Crutcher LLP, Jones Day and Troutman Sanders LLP, made before the consummation of the Closing to the extent relating to the negotiation, preparation, execution, delivery of this Agreement and the Ancillary Agreements and the consummation of the transactions contemplated hereby and thereby which, immediately before the Closing, would be deemed to be privileged communications and would not be subject to disclosure to Purchaser (or would otherwise not be disclosable to Purchaser without losing any such right of privilege) in connection with any Action arising out of or relating to this Agreement or otherwise, shall continue after the Closing to be privileged communications with such counsel and neither Purchaser nor any of its Affiliates (including after the Closing, the Company) shall seek to obtain the same by any process on the grounds that the
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privilege attaching to such communications belongs to Purchaser or the Company or on any other grounds.
[Remainder of page intentionally left blank]









































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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of Seller, Purchaser and Parent as of the date first set forth above.


 
 
THE SOUTHERN COMPANY
 
 
 
 
 
 
 
 
 
 
By:
Thomas A. Fanning
 
Name:
Thomas A. Fanning
 
Title:
Chairman, President and
 
 
Chief Executive Officer
 
 
 
 
 
 
 
 
 
 
700 UNIVERSE, LLC
 
 
 
 
 
 
 
 
 
 
By:
James L. Robo
 
Name:
James L. Robo
 
Title:
President & Chief Executive Officer
 
 
 
 
 
 
 
 
 
 
NEXTERA ENERGY, INC.
 
 
 
 
 
 
 
 
 
 
By:
James L. Robo
 
Name:
James L. Robo
 
Title:
Chairman, President and Chief
 
 
Executive Officer














[Signature Page to Stock Purchase Agreement – Electric]


EXECUTION VERSION
Exhibit 2(b)








STOCK PURCHASE AGREEMENT

by and among


NUI CORPORATION,


SOUTHERN COMPANY GAS,


700 UNIVERSE, LLC


and


NEXTERA ENERGY, INC.


__________________________________

Dated as of May 20, 2018
































TABLE OF CONTENTS

 
 
 
 
Page

ARTICLE I
DEFINITIONS; INTERPRETATION..............................................................1
1.1
Defined Terms.........................................................................................................1
1.2
Other Definitions..................................................................................................10
1.3
Other Interpretive Matters....................................................................................13
ARTICLE II
THE SALE AND PURCHASE......................................................................14
2.1
Sale and Purchase of Shares.................................................................................14
2.2
Closing Payment...................................................................................................14
2.3
Closing..................................................................................................................14
2.4
Closing Payment Adjustments..............................................................................15
2.5
Post-Closing Statement.........................................................................................16
2.6
Reconciliation of Post-Closing Statement............................................................17
2.7
Post-Closing Adjustment......................................................................................18
2.8
Withholding..........................................................................................................18
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SELLER..........................18
3.1
Organization and Qualification; No Subsidiaries.................................................19
3.2
Capitalization of the Company.............................................................................19
3.3
Authority Relative to This Agreement..................................................................19
3.4
Consents and Approvals; No Violations...............................................................20
3.5
Financial Statements.............................................................................................20
3.6
Absence of Certain Changes or Events.................................................................21
3.7
Title.......................................................................................................................21
3.8
Sufficiency of Assets............................................................................................21
3.9
Business Material Contracts.................................................................................21
3.10
Legal Proceedings.................................................................................................22
3.11
Compliance with Law; Orders; Permits................................................................23
3.12
Real Property.........................................................................................................23
3.13
Employee Benefits................................................................................................23
3.14
Labor and Employee Matters................................................................................25
3.15
Taxes.....................................................................................................................26
3.16
Environmental Matters.........................................................................................27

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TABLE OF CONTENTS

 
 
 
 
Page

3.17
Brokers..................................................................................................................28
3.18
Elizabethtown APA and Elkton APA....................................................................28
3.19
Insurance...............................................................................................................28
3.20
Information Security.............................................................................................29
3.21
No Other Representations or Warranties; No Reliance........................................29
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PURCHASER
AND PARENT...............................................................................................30
4.1
Organization and Qualification.............................................................................30
4.2
Authority Relative to This Agreement..................................................................30
4.3
Consents and Approvals; No Violations...............................................................30
4.4
Legal Proceedings.................................................................................................31
4.5
Brokers..................................................................................................................31
4.6
Financial Capability..............................................................................................31
4.7
Investment Decision.............................................................................................31
4.8
Independent Investigation.....................................................................................32
4.9
No Other Representations or Warranties; No Reliance........................................32
ARTICLE V
ADDITIONAL AGREEMENTS...................................................................32
5.1
Conduct of Business.............................................................................................32
5.2
Access to Information...........................................................................................35
5.3
Confidentiality......................................................................................................36
5.4
Further Assurances................................................................................................37
5.5
Required Actions...................................................................................................37
5.6
Consents................................................................................................................40
5.7
Public Announcements.........................................................................................40
5.8
Intercompany Accounts........................................................................................40
5.9
Settlement of Intercompany Arrangements..........................................................40
5.10
Guarantees............................................................................................................40
5.11
Usage of Certain Marks........................................................................................41
5.12
Alternative Transactions.......................................................................................42
5.13
Release..................................................................................................................42



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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

5.14
Litigation Support.................................................................................................43
5.15
Withheld Business Material Contracts..................................................................43
5.16
Assignment of Excluded Liabilities......................................................................44
5.17
Elizabethtown Closing and Elkton Closing..........................................................44
5.18
Migration Plan......................................................................................................44
5.19
Treatment of Certain Indebtedness.......................................................................45
5.20
LNG Plant Contracts.............................................................................................45
ARTICLE VI
EMPLOYEE MATTERS COVENANTS......................................................45
6.1
Compensation and Employee Benefits.................................................................45
6.2
Benefit Plan Assets and Liabilities Generally.......................................................47
6.3
Retirement Plans...................................................................................................48
6.4
Labor and Employment Law Matters...................................................................50
6.5
Disability Employees............................................................................................51
6.6
Third-Party Beneficiary Rights.............................................................................51
ARTICLE VII
TAX MATTERS.............................................................................................52
7.1
Tax Indemnification by Seller Parent and Seller..................................................52
7.2
Tax Indemnification by Purchaser........................................................................52
7.3
Survival.................................................................................................................52
7.4
Straddle Tax Periods.............................................................................................53
7.5
Tax Returns...........................................................................................................53
7.6
Refunds and Credits..............................................................................................54
7.7
Tax Contests..........................................................................................................54
7.8
Cooperation and Exchange of Information...........................................................55
7.9
Tax Sharing Agreements.......................................................................................56
7.10
Tax Treatment of Payments..................................................................................56
7.11
Transfer Taxes.......................................................................................................56
7.12
Timing of Payments..............................................................................................57
7.13
Tax Matters Coordination.....................................................................................57
7.14
Tax Elections.........................................................................................................57
7.15
Tax Disputes.........................................................................................................57


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TABLE OF CONTENTS
(continued)

 
 
 
 
Page

7.16
Purchaser Tax Acts................................................................................................58
ARTICLE VIII
CONDITIONS TO CLOSING.......................................................................58
8.1
Conditions to Each Party’s Closing Obligations...................................................58
8.2
Conditions to Purchaser’s and Parent’s Closing Obligations...............................58
8.3
Conditions to Seller’s Closing Obligation............................................................59
8.4
Frustration of Closing Conditions.........................................................................60
ARTICLE IX
TERMINATION.............................................................................................60
9.1
Termination...........................................................................................................60
9.2
Notice of Termination...........................................................................................61
9.3
Effect of Termination............................................................................................61
9.4
Extension; Waiver.................................................................................................62
ARTICLE X
INDEMNIFICATION....................................................................................62
10.1
Survival of Representations, Warranties, Covenants and Agreements.................62
10.2
Indemnification by Seller Parent and Seller.........................................................63
10.3
Indemnification by Parent and the Company........................................................64
10.4
Indemnification Procedures..................................................................................65
10.5
Exclusive Remedy.................................................................................................67
10.6
Additional Indemnification Provisions.................................................................67
10.7
Limitation on Consequential Damages.................................................................68
10.8
Mitigation..............................................................................................................68
ARTICLE XI
GENERAL PROVISIONS.............................................................................69
11.1
Amendment...........................................................................................................69
11.2
Waivers and Consents...........................................................................................69
11.3
Notices..................................................................................................................69
11.4
Assignment...........................................................................................................70
11.5
No Third Party Beneficiaries................................................................................70
11.6
Expenses...............................................................................................................70
11.7
Governing Law.....................................................................................................71
11.8
Severability...........................................................................................................71
11.9
Entire Agreement..................................................................................................71
-iv-




TABLE OF CONTENTS
(continued)

 
 
 
 
Page

11.10
Delivery.................................................................................................................71
11.11
Waiver of Jury Trial..............................................................................................71
11.12
Submission to Jurisdiction....................................................................................71
11.13
Specific Performance............................................................................................72
11.14
Disclosure Generally.............................................................................................72
11.15
Provision Respecting Legal Representation.........................................................72
11.16
Privilege................................................................................................................73




































-v-






Exhibits
Exhibit A: Form of Transition Services Agreement
Exhibit B: Form of Common Interest and Cooperation Agreement
Schedules

Schedule I: Accounting Principles and Target Working Capital

Disclosure Letters
Seller Disclosure Letter





































-vi-



STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this “ Agreement ”), dated as of May 20, 2018, is by and among NUI Corporation, a New Jersey corporation (“ Seller ”), 700 Universe, LLC, a Delaware limited liability company (“ Purchaser ”), NextEra Energy, Inc., a Florida corporation (“ Parent ”), and, solely for the limited purposes expressly set forth in Article X and Article VII , Southern Company Gas, a Georgia corporation (“ Seller Parent ”). Seller, Purchaser and Parent are each referred to individually in this Agreement as a “ Party ” and, collectively, as the “ Parties ”.
RECITALS
WHEREAS, Seller owns, of record and beneficially, all of the outstanding common shares, without par value (the “ Shares ”), of Pivotal Utility Holdings, Inc., a New Jersey corporation (the “ Company ”);
WHEREAS, the Shares represent all of the outstanding equity interests of the Company;
WHEREAS, the Company owns all the assets constituting an operating division known as Florida City Gas;
WHEREAS, Seller desires to sell and transfer, and Purchaser desires to purchase, all of Seller’s right, title and interest in and to the Shares for the Purchase Price, subject to the terms and conditions of this Agreement; and
WHEREAS, Seller, Purchaser and Parent desire to make certain representations, warranties, covenants and agreements in connection with this Agreement.
NOW, THEREFORE, in consideration of the mutual promises hereinafter set forth and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, Seller, Purchaser and Parent hereby agree as follows:
ARTICLE I

DEFINITIONS; INTERPRETATION
1.1      Defined Terms . For the purposes of this Agreement, the following terms shall have the following meanings:
Action ” shall mean any claim, action, demand, suit, arbitration, litigation or proceeding (including any state regulatory proceeding) by or before any Governmental Entity, whether civil, criminal, administrative, regulatory or otherwise, and whether at law or in equity.
Actual Fraud ” means common law fraud (and not a constructive fraud or negligent misrepresentation or omission) by a Person in connection with the negotiation of this Agreement or the Ancillary Agreements, or the transactions contemplated hereby or thereby.







Affiliate ” shall mean, with respect to any Person, any other Person that directly or indirectly, controls, is controlled by, or is under common control with such Person. As used in this definition, “ contro l” (including, with its correlative meanings, “ controlled by ” and “ under common control with ”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of securities or partnership or other ownership interests, by contract or otherwise; provided that, from and after the Closing, (a) the Company shall not be considered an Affiliate of Seller or any of Seller’s Affiliates and (b) none of Seller or any of Seller’s Affiliates shall be considered an Affiliate of the Company.
Ancillary Agreements ” shall mean the Transition Services Agreement and the Common Interest and Cooperation Agreement, in each case in the forms attached hereto.
Business ” shall mean the business and operations of the Florida City Gas operating division of the Company, as conducted at the date of this Agreement and reflected in the Business Financial Statements.
Business Day ” shall mean any day other than Saturday, Sunday, or any day on which banks in the City of New York or the State of Florida are authorized or required by Law to be closed.
Business Employee ” shall mean an employee of the Company as of the date hereof who is included on the list of Business Employees provided by Seller pursuant to Section 3.14(d) , who is physically located in the territory of the Business and whose primary work functions are in support of the Business, provided that the term “Business Employee” shall (a) also include an employee who is hired by, or transferred to, the Company following the date of this Agreement in accordance with Section 5.1(a)(y)(C) and (b) not include any individual whose employment with the Company is terminated prior to the Closing.
Business Marks ” shall mean all registered and unregistered trademarks, service marks, trade names, logos, Internet domain names, websites, social media accounts or Internet keywords ( e.g ., Google AdWords), and any applications for registration of any of the foregoing, together with all goodwill associated with each of the foregoing, owned or used by the Company in connection with the Business, including all trademarks that include the terms set forth on Section 1.1(a) of the Seller Disclosure Letter and all trademarks used in conjunction with or related thereto or containing or comprising the foregoing, including any trademarks confusingly similar thereto or dilutive thereof (including any word or expression similar thereto or constituting an abbreviation or extension thereof); provided , however , that “Business Marks” shall not include any Seller Marks.
Business Material Adverse Effect ” shall mean any fact, circumstance, effect, change, event or development (each an “ Effect ” and, collectively, “ Effects ”) that, individually or in the aggregate with other Effects, has, or would reasonably be expected to have, a material adverse effect on (a) the business, assets, results of operations or financial condition of the Business, taken as a whole, or the Company, taken as a whole (but disregarding any Excluded Liabilities), or (b) the ability of Seller to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis; provided , however , that in the case of

- 2 -




clause (a) only, none of the following Effects shall be taken into account, individually or in the aggregate, in determining whether there has been a Business Material Adverse Effect: (i) the announcement or pendency of this Agreement and the transactions contemplated hereby, (ii) any action required to be taken by the Company pursuant to this Agreement or consented to in writing by each Party or any Action arising out of or related to this Agreement or any action taken by Purchaser, Seller or the Company in accordance with this Agreement to obtain any Required Regulatory Approval and the results of such action, including any Effect resulting from any term or condition in any Order relating to any Required Regulatory Approval or any assertion by a Governmental Entity that any approval (other than a Required Regulatory Approval) is required from such Governmental Entity, (iii) any failure to meet any internal or published projections, forecasts, estimates or predictions in respect of recoveries, revenues, earnings or other financial or operating metrics for any period ( provided that the underlying causes for such failure shall be taken into account), (iv) any change after the date hereof generally affecting the conditions in international, national or regional economies, financial markets, capital markets or commodities markets, including changes in interest rates or exchange rates, (v) any change after the date hereof in international, national, regional or local regulatory, political or legislative conditions generally, including the outbreak or escalation of hostilities or any acts of war, sabotage or terrorism, (vi) any hurricane, tornado, tsunami, flood, earthquake or other natural disaster or weather-related event, circumstance or development or acts of God, (vii) any change after the date hereof in applicable Law, regulation or GAAP (or authoritative interpretation thereof) or (viii) any Effect arising after the date hereof generally affecting the natural gas local distribution industry (including any general changes in the operations thereof); provided , further , that with respect to clauses (v), (vii) and (viii), such Effect shall not be excluded to the extent (and solely to the extent) it disproportionately affects the Business, taken as a whole, as compared to other businesses operating in the natural gas local distribution industry.
COBRA Continuation Coverage ” shall mean the continuation of group health plan coverage required under sections 601 through 608 of ERISA, and section 4980B of the Code and any comparable continuation of group health plan coverage required by applicable state or local Law.
Code ” shall mean the U.S. Internal Revenue Code of 1986.
Company Benefit Plan ” shall mean each Seller Benefit Plan that is either (a) sponsored or maintained by the Company or (b) maintained by the Seller Group exclusively for the benefit of Business Employees.
Confidential Information ” shall have the meaning ascribed to such term in the Confidentiality Agreement.
Confidentiality Agreement ” shall mean the confidentiality letter agreement, dated January 12, 2018, by and between The Southern Company, a Delaware corporation, and Purchaser.



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Contract ” shall mean any lease, contract, license, arrangement, option, instrument, note, bond, mortgage, indenture, deed of trust, agreement, commitment or other obligation, whether written or oral, excluding any Permit or Seller Benefit Plan.
Easements ” shall mean all easements, license agreements, railroad crossing rights, rights-of-way, leases for rights-of-way, and similar use and access rights related to the Business.
Electric SPA ” shall mean that certain Stock Purchase Agreement by and among The Southern Company, a Delaware corporation, Purchaser and Parent, dated as of the date hereof.
Elizabethtown APA ” shall mean that certain Asset Purchase Agreement by and between the Company and South Jersey Industries, Inc., dated as of October 15, 2017, relating to the Elizabethtown Gas operating division of the Company.
Elizabethtown Closing ” shall have the meaning ascribed to the term Closing, as such term is defined in the Elizabethtown APA.
Elkton APA ” shall mean that certain Asset Purchase Agreement by and between the Company and South Jersey Industries, Inc., dated as of October 15, 2017, relating to the Elkton Gas operating division of the Company.
Elkton Closing ” shall have the meaning ascribed to the term Closing, as such term is defined in the Elkton APA.
Encumbrances ” shall mean any mortgages, deeds of trust, pledges, liens, claims, charges, security interests, conditional and installment sale agreements, activity and use limitations, Easements, covenants, encumbrances, obligations, limitations, title defects, deed restrictions, preferential purchase rights or options, adverse claims of interest and any other restrictions of any kind, including restrictions on use, transfer, receipt of income, or exercise of any other attribute of ownership.
Environment ” shall mean all or any of the following media: soil, land surface and subsurface strata, surface waters (including navigable waters, streams, ponds, drainage basins, and wetlands), groundwater, drinking water supply, stream sediments, ambient air (including the air within buildings and the air within other natural or man-made structures above or below ground), plant and animal life, and any other natural resource.
Environmental Claims ” shall mean any and all Actions arising pursuant to any Environmental Laws or Environmental Permits, or arising from the presence, Release, or threatened Release (or alleged presence, Release, or threatened Release) into the Environment of any Hazardous Materials, including any and all claims by any Governmental Entity or by any Person for enforcement, cleanup, remediation, removal, response, remedial or other actions or damages, contribution, indemnification, cost recovery, compensation, or injunctive relief pursuant to any Environmental Law.
Environmental Laws ” shall mean any and all Laws regulating or relating to, or imposing liability with respect to, pollution or the protection of human health and safety (as it relates to exposure to Hazardous Materials), or the Environment, or damage to natural resources, including
- 4 -




Laws relating to Releases and threatened Releases or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of Hazardous Materials.
Environmental Permits ” shall mean all permits, registrations, certifications, licenses, franchises, exemptions, approvals, consents, waivers, water rights or other authorizations of Governmental Entities issued under or with respect to applicable Environmental Laws.
ERISA ” shall mean the Employee Retirement Income Security Act of 1974.
Estimated Working Capital Adjustment Amount ” shall mean an amount, which may be positive or negative, equal to (a) the amount of Working Capital set forth in the Estimated Closing Statement minus (b) the Target Working Capital.
Excluded Liabilities ” shall mean Liabilities of the Company to the extent not solely related to the Business, and including any Liabilities related to or arising out of, whether incurred prior to, on or after the Closing, (a) the matters described on Section 3.5(b)(i) of the Seller Disclosure Letter or (b) the Elizabethtown Gas or the Elkton Gas operating divisions of the Company.
Final Working Capital Adjustment Amount ” shall mean an amount, which may be positive or negative, equal to (a) the amount of Working Capital set forth in the Final Closing Statement minus (b) the Target Working Capital.
GAAP ” shall mean generally accepted accounting principles in the United States, consistently applied throughout the periods involved.
Governmental Entity ” shall mean any foreign, domestic, supranational, federal, territorial, state or local governmental entity, quasi-governmental entity, court, tribunal, judicial or arbitral body, commission, board, bureau, agency or instrumentality, or any regulatory, administrative or other department, agency, or any political or other subdivision, department or branch of any of the foregoing.
Hazardous Material ” shall mean (a) any chemicals, materials, substances, or wastes which are now or hereafter defined as or included in the definition of “hazardous substance,” “hazardous material,” “hazardous waste,” “solid waste,” “toxic substance,” “extremely hazardous substance,” “pollutant,” “contaminant,” or words of similar import under applicable Environmental Laws; (b) any petroleum, petroleum products (including crude oil or any fraction thereof), natural gas, natural gas liquids, liquefied natural gas or synthetic gas useable for fuel (or mixtures of natural gas and such synthetic gas), or oil and gas exploration or production waste, polychlorinated biphenyls, asbestos-containing materials, mercury, and lead-based paints; and (c) any other chemical, material, substances, waste, or mixture thereof which is prohibited, limited, or regulated by Environmental Laws.
HSR Act ” shall mean the Hart-Scott Rodino Antitrust Improvements Act of 1976.
Indebtedness ” shall mean, with respect to a Person, without duplication and determined in each case in accordance with the Accounting Principles: (a) any indebtedness for borrowed
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money, whether current, short-term or long-term, secured or unsecured, including obligations evidenced by a note, bond, debenture or similar instruments; (b) any obligations in respect of letters of credit or bank guarantees; (c) any obligations in respect of hedging arrangements; (d) any obligations issued or assumed as the deferred purchase price of any property or services (other than trade credit incurred in the ordinary course of business); (e) any capital lease obligations; (f) any overdrafts of cash accounts; (g) any guarantee by such Person of any obligations of another Person of the types described in the foregoing clauses (a) through (f); and (h) customer deposits, in each case, including accrued and unpaid interest, prepayment charges or premium thereon.
Intellectual Property ” shall mean (a) any U.S. or foreign patents, copyrights, all registered and unregistered trademarks, service marks, trade names, logos, Internet domain names, websites, social media accounts or Internet keywords ( e.g. , Google AdWords), mask works, and other similar intangible rights throughout the world, and applications or registrations for any of the foregoing, (b) any protectable or proprietary interest, whether registered or unregistered, in know how, trade secrets, database rights, software, operating and manufacturing procedures, designs, specifications and the like, (c) any protectable or proprietary interest in any similar intangible asset of a technical, scientific or creative nature, and (d) any protectable or proprietary interests in or to any documents or other tangible media containing any of the foregoing.
Intercompany Debt ” shall mean the Indebtedness of the Company held by Affiliates of the Company.
IRS ” shall mean the U.S. Internal Revenue Service.
Knowledge of Seller ” shall mean the actual knowledge of the Persons listed on Section 1.1(b) of the Seller Disclosure Letter .
Law ” shall mean any federal, state, local, foreign or supranational law, statute, regulation, ordinance or rule.
Liability ” shall mean all Indebtedness, obligations and other liabilities of any nature, whether absolute, accrued, matured, contingent (or based upon any contingency), known or unknown, fixed or otherwise, or whether due or to become due.
LNG Facility ” shall mean the liquefied natural gas facility described in the 2017 rate case with respect to the Business.
LNG Plant Contract ” shall mean any Contract in relation to the development or construction of the LNG Facility.
Loss ” or “ Losses ” shall mean any Liability, including, costs and expenses of any and all Actions, assessments, judgments, settlements or compromises relating thereto, reasonable attorneys’ fees, reasonable disbursements, interest, penalties and all expenses incurred in investigating, preparing or defending against any Action commenced or threatened or any Order in connection therewith.

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made available ” shall mean that such information, document or material was provided for review by Purchaser or its representatives in the electronic data site established on behalf of the Company and to which Purchaser or its representatives has been given access in connection with the transactions contemplated by this Agreement on or before 12:01 a.m. New York time on the last day preceding the date hereof (and was not removed prior to the date hereof); provided , however , that any redacted portions of any such materials, documents or information shall not be deemed to have been “made available” to Purchaser or its representatives.
Order ” shall mean any charge, decree, ruling, determination, directive, award, order, judgment, writ, injunction or stipulation of a Governmental Entity.
Organizational Documents ” shall mean, with respect to any Person, (a) the articles or certificate of formation, incorporation or organization (or the equivalent organizational documents) of such Person and (b) the bylaws or limited liability company agreement or regulations (or the equivalent governing documents) of such Person.
Pension Participant ” shall mean each person (a) who is a participant in the Seller Pension Plan, and (b) who is either (i) a Business Employee or (ii) a former employee whose employment with the Company or its Affiliates terminated for any reason prior to or as of the Closing, and who (A) was employed by the Company as of his or her last day of employment and whose primary work functions as of his or her last day of employment were in support of the Business and (B) is included on the list of Pension Participants provided by Seller pursuant to Section 3.14(d) , as it may be updated in accordance with Section 5.1(a)(y)(C) .
Permits ” shall mean all licenses, permits, franchises, approvals, registrations, authorizations, consents or Orders of any Governmental Entity, other than the Required Regulatory Approvals and the Environmental Permits.
Permitted Encumbrances ” shall mean (a) statutory Encumbrances of landlords and mechanics’, carriers’, workmen’s, repairmen’s, warehousemen’s, materialmen’s or other like Encumbrances arising or incurred in the ordinary course of business, (b) Encumbrances arising under original purchase price conditional sales contracts and equipment leases with third parties entered into in the ordinary course of business, (c) Encumbrances for Taxes, assessments or other governmental charges or levies that are not due or payable or that are being contested by appropriate Actions or that may thereafter be paid without material penalty and for which adequate reserves have been established, (d) Encumbrances disclosed on or reflected in the Business Financial Statements, (e) with respect to real property, defects or imperfections of title not materially interfering with the ordinary conduct of the Business as a whole, (f) restrictions under the leases, subleases and similar agreements with respect to the Real Property, none of which materially interferes with the ordinary conduct of the Business as a whole, (g) any Easements, covenants, rights-of-way, restrictions of record and other similar charges not materially interfering with the ordinary conduct of the Business as a whole, (h) any conditions that would be shown by a current, accurate survey or physical inspection of any Real Property, (i) zoning, entitlement, land use, environmental, building and other similar restrictions, none of which materially interferes with the ordinary conduct of the Business as a whole, (j) Encumbrances that have been placed by any developer, landlord or other third party on property owned by third parties over which the Company has easement rights and subordination
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or similar agreements relating thereto, not materially interfering with the ordinary conduct of the Business as a whole, (k) Encumbrances incurred or deposits made in connection with workers’ compensation, unemployment insurance or other types of social security, (l) all rights of any Person under condemnation, eminent domain or similar proceedings, which are pending or threatened prior to Closing, (m) all Encumbrances arising under approvals obtained by the Company and related to the Business which have been issued by any Governmental Entities, (n) Encumbrances arising under any lease or sublease for Leased Real Property and (o) nonexclusive licenses to Intellectual Property granted in the ordinary course of business.
Person ” shall mean an individual, partnership (general or limited), corporation, limited liability company, joint venture, association or other form of business organization (whether or not regarded as a legal entity under applicable Law), trust or other entity or organization, including a Governmental Entity.
Plants EIPA ” shall mean that certain Equity Interest Purchase Agreement by and among Southern Power Company, Purchaser and Parent, dated as of the date hereof.
Post-Closing Tax Period ” shall mean any taxable period beginning after the Closing Date, and, in the case of any Straddle Tax Period, the portion of such period beginning immediately after the Closing Date.
Pre-Closing Tax Period ” shall mean any taxable period ending on or prior to the Closing Date and, in the case of any Straddle Tax Period, the portion of such period ending on and including the Closing Date.
Property Taxes ” shall mean real, personal and intangible ad valorem property Taxes.
Purchase Price ” shall mean the aggregate amount determined pursuant to Section 2.2 , as it may be adjusted pursuant to Section ‎2.7 .
Purchaser Material Adverse Effect ” shall mean any Effect that, individually or in the aggregate with other Effects, has, or would reasonably be expected to have, a material adverse effect on the ability of Purchaser to perform its obligations under this Agreement or consummate the transactions contemplated hereby on a timely basis.
Real Property ” shall mean the fee interests in real property held by the Company, including buildings, structures, pipelines, other improvements, and fixtures located thereon, in each case as relating to the Business (the “ Owned Real Property ”), the leasehold and subleasehold interests of the Company under the leases and subleases of real property relating to the operation of the Business (the “ Leased Real Property ”), and the Easements in favor of the Company relating to the operation of the Business, including buildings, structures, pipelines, other improvements and fixtures located thereon.
Release ” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing of Hazardous Materials into the Environment.

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Representative ” shall have the meaning ascribed to such term in the Confidentiality Agreement.
Required Regulatory Approvals ” shall mean the approvals set forth on Section 1.1(c) of the Seller Disclosure Letter .
Securities Act ” shall mean the U.S. Securities Act of 1933.
Seller Benefit Plan ” shall mean all employee benefit plans (within the meaning of Section 3(3) of ERISA, whether or not subject to ERISA) and all bonus, stock option, stock purchase, restricted stock, incentive, deferred compensation, retiree health or life insurance, supplemental retirement, superannuation, gratuity, jubilee, provident fund, employment, severance, retention, termination, change in control, welfare, post-employment, profit-sharing, disability, health, vacation, sick leave benefits, fringe benefits or other benefit plans, programs, agreements or arrangements, (a) that are sponsored, maintained, contributed to or required to be maintained or contributed to by Seller or any of its Affiliates, in each case providing benefits to any Business Employee, or (b) under which the Company has any Liability or any obligation to contribute (whether actual or contingent).
Seller Group ” shall mean Seller and its Affiliates.
Seller Marks ” shall mean all registered and unregistered trademarks, service marks, trade names, logos, designs or four-color combination of red, green, white and blue trademarks that are distinctive to Seller or any of its Affiliates, service marks and logos, Internet domain names, websites, social media accounts or Internet keywords ( e.g. , Google AdWords), and any applications for registration of any of the foregoing, together with all goodwill associated with each of the foregoing, owned or used by Seller or its Affiliates (other than Company), including all trademarks that include the term “Southern Company,” “Southern Company Gas” or “AGL Resources” and all trademarks used in conjunction with or related thereto or containing or comprising the foregoing, and any logos, designs or four-color combination of red, green, white and blue elements used with any of the trademarks listed above, including, but not limited to, the triangular logo, and any trademarks confusingly similar thereto or dilutive thereof (including any word or expression similar thereto or constituting an abbreviation or extension thereof); provided , however , that “Seller Marks” shall not include the items set forth on Section 1.1(a) of the Seller Disclosure Letter .
Seller Pension Materials ” means the Aon Hewitt document provided by Seller to Purchaser entitled Basis for Measuring Retirement Benefit Obligations and Costs at Year-End 2017, delivered on January 30, 2018.
Straddle Tax Period ” shall mean any taxable period that begins on or before the Closing Date and ends after the Closing Date.
Subsidiary ” shall mean, with respect to any Person, any other Person, whether incorporated or unincorporated, of which (a) such first Person directly or indirectly owns or controls at least a majority of the securities or other interests having by their terms ordinary voting power to elect a majority of the board of directors or others performing similar functions or (b) such first Person is a general partner or managing member.
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Target Working Capital ” shall mean the amount set forth on Annex A of the Target Working Capital Statement and designated as the “Target Working Capital” of the Company.
Tax ” shall mean any tax of any kind, including any federal, state, local or foreign income, profits, license, severance, occupation, windfall profits, capital gains, capital stock, transfer, registration, social security (or similar), production, franchise, gross receipts, payroll, sales, employment, use, property, excise, value added, estimated, stamp, alternative or add-on minimum, environmental or withholding tax, and any other duty, assessment or governmental charge, in each case in the nature of a tax, imposed by any Governmental Entity, together with all interest, penalties and additional amounts imposed with respect to such amounts.
Tax Claim ” shall mean any Tax Proceeding (a) that, if pursued successfully, would reasonably be expected to serve as the basis for a claim for indemnification under Article VII or (b) relating to a Pre-Closing Tax Period or Straddle Tax Period of the Company.
Tax Cuts and Jobs Act ” shall mean an act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018 (Pub.L. 115-97).
Tax Proceeding ” shall mean any audit, examination, contest, litigation or other Action relating to Taxes.
Tax Return ” shall mean any return, declaration, report, election, claim for refund or information return or statement filed or required or permitted to be filed with any taxing authority relating to Taxes, including any schedule or attachment thereto or any amendment thereof.
Transition Services Agreement ” shall mean the Transition Services Agreement to be entered into at the Closing substantially in the form of Exhibit A hereto.
United States ” or “ U.S. ” shall mean the United States of America and its territories and possessions.
WARN Act ” shall mean the federal Worker Adjustment Retraining and Notification Act of 1988 and similar state or local Laws related to plant closings, relocations and mass layoffs.
Working Capital ” shall mean Current Assets less Current Liabilities, in each case, as defined in the Accounting Principles, in accordance with the Target Working Capital Statement.
1.2      Other Definitions . The following terms shall have the meanings defined in the Section indicated:
ABO.........................................................................................................................................6.3(b)
Accounting Principles..............................................................................................................2.4(b)
Acquisition Proposals.................................................................................................................5.12
Agreement...........................................................................................................................Preamble
Business Confidential Information...........................................................................................5.3(a)
Business Financial Statements.................................................................................................3.5(a)
Business Material Contracts.....................................................................................................3.9(a)


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Cap...................................................................................................................................10.2(b)(iii)
Closing..........................................................................................................................................2.1
Closing Date.............................................................................................................................2.3(a)
Closing Payment Adjustments......................................................................................................2.2
Combined Tax Return...............................................................................................................7.5(a)
Common Interest and Cooperation Agreement......................................................................5.16(b)
Company...............................................................................................................................Recitals
Continuation Period..................................................................................................................6.1(a)
Continuing Guarantees............................................................................................................... 5.10
control.............................................................................................................Definition of Affiliate
controlled by....................................................................................................Definition of Affiliate
Controlling Party......................................................................................................................7.7(b)
De Minimis Amount..........................................................................................................
10.2(b)(ii)
Direct Loss..............................................................................................................................10.4(e)
Disability Employee.....................................................................................................................6.5
Effect......................................................................Definition of Business Material Adverse Effect
Effects.....................................................................Definition of Business Material Adverse Effect
Enforceability Exceptions............................................................................................................3.3
Estimated Closing Statement...................................................................................................2.4(a)
Final Closing Statement...........................................................................................................2.6(c)
Franchises.............................................................................................................................3.9(a)(i)
Fundamental Indemnification Matters..............................................................................10.2(b)(ii)
Indemnifying Party.................................................................................................................10.4(a)
Indemnitee..............................................................................................................................10.4(a)
Independent Accounting Firm..................................................................................................2.6(c)
Initial Closing Statement..........................................................................................................2.5(a)
Intercompany Arrangements.........................................................................................................5.9
Interest Rate..............................................................................................................................6.3(b)
IT Systems..................................................................................................................................3.19
Labor Agreement....................................................................................................................3.14(a)
Leased Real Property.............................................................................Definition of Real Property
Legal Restraints........................................................................................................................8.1(a)
New Plan..................................................................................................................................6.1(a)
Non-Controlling Party..............................................................................................................7.7(b)
Nonqualified Benefits Participants...........................................................................................6.3(d)
Notice of Disagreement........................................................................................................9.1(b)(i)
Outside Date........................................................................................................................9.1(b)(1)
Owned Real Property.............................................................................Definition of Real Property
Parent..................................................................................................................................Preamble
Parent DC Trust........................................................................................................................6.3(d)
Parent DCP...............................................................................................................................6.3(d)
Parent FSA Plan........................................................................................................................6.2(c)
Parent NSP................................................................................................................................6.3(d)
Parent Pension Plan..................................................................................................................6.3(b)
Parent Retirees..........................................................................................................................6.3(c)
Parent SBP................................................................................................................................6.3(d)

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Parent SERP..............................................................................................................................6.3(d)
Parent Welfare Trust.................................................................................................................6.3(c)
Parent’s 401(k) Plan.................................................................................................................6.3(a)
Parties..................................................................................................................................Preamble
Party....................................................................................................................................Preamble
PBGC......................................................................................................................................3.13(e)
Pension Transfer Amount.........................................................................................................6.3(b)
Pension Transfer Date..............................................................................................................6.3(b)
Pension Transfer Deadline.......................................................................................................6.3(b)
Post-Closing Adjustment..............................................................................................................2.7
PPP............................................................................................................................................6.2(e)
Pre-Closing Insurance............................................................................................................3.19(b)
Pre-Closing Separate Tax Return.........................................................................................7.5(a)(ii)
Protection Period......................................................................................................................6.3(c)
Purchaser.............................................................................................................................Preamble
Purchaser Burdensome Condition............................................................................................5.5(d)
Purchaser Fundamental Representations..................................................................................8.3(a)
Purchaser Indemnified Parties................................................................................................10.2(a)
Purchaser Tax Indemnified Parties...............................................................................................7.1
Releasees................................................................................................................................5.13(a)
Resolution Period.....................................................................................................................2.6(b)
Retiree Welfare Participant.......................................................................................................6.3(c)
Retiree Welfare Participant Assets..........................................................................................3.13(j)
Sale................................................................................................................................................2.1
Section 414(l) Amount.............................................................................................................6.3(b)
Seller...................................................................................................................................Preamble
Seller DC Trust........................................................................................................................6.3(d)
Seller DCP................................................................................................................................6.3(d)
Seller Disclosure Letter......................................................................................................Article III
Seller FSA Plans.......................................................................................................................6.2(c)
Seller Fundamental Representations........................................................................................8.2(a)
Seller Indemnified Parties......................................................................................................10.3(a)
Seller Indemnified Taxes..........................................................................................................7.1(b)
Seller NSP.................................................................................................................................6.3(d)
Seller Parent........................................................................................................................Preamble
Seller Pension Plan...................................................................................................................6.3(b)
Seller SBP.................................................................................................................................6.3(d)
Seller SERP..............................................................................................................................6.3(d)
Seller Tax Indemnified Parties.....................................................................................................7.2
Seller Welfare Trust.................................................................................................................3.13(j)
Seller’s 401(k) Plan..................................................................................................................6.3(a)
Shares....................................................................................................................................Recitals
Substituted Guarantees................................................................................................................5.10
Target Working Capital Statement...........................................................................................2.4(b)
Tax Dispute.............................................................................................................................7.15(a)
Tax Referee............................................................................................................................7.15(b)


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Third Party Claim...................................................................................................................10.4(a)
Third Party Claim Notice.......................................................................................................10.4(a)
Threshold...........................................................................................................................10.2(b)(ii)
Transfer Taxes.............................................................................................................................7.11
under common control with............................................................................Definition of Affiliate
Willful Breach...............................................................................................................................9.3
Withheld Business Material Contracts.................................................................................... 3.9(b)

1.3      Other Interpretive Matters . Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation apply.
(a)      Appendices, Exhibits and Schedules . Unless otherwise expressly indicated, any reference in this Agreement to an “Exhibit” or “Schedule” refers to an Exhibit or Schedule to this Agreement. The Exhibits and Schedules to this Agreement are hereby incorporated and made a part hereof as if set forth in full herein and are an integral part of this Agreement. Any capitalized terms used in any Exhibit or Schedule but not otherwise defined therein are defined as set forth in this Agreement. In the event of conflict or inconsistency, this Agreement shall prevail over any Exhibit or Schedule.
(b)      Time Periods . When calculating the period of time before which, within which, following or after which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period will be excluded. If the last day of such period is a non-Business Day, the period in question will end on the next succeeding Business Day.
(c)      Gender and Number . Whenever the context requires, the gender of all words used in this Agreement includes the masculine, feminine, and neuter, and the singular includes the plural, and the plural includes the singular.
(d)      Certain Terms . The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement (including the Exhibits and Schedules to this Agreement) as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires. The word “including” or any variation thereof means “including, without limitation” and does not limit any general statement that it follows to the specific or similar items or matters immediately following it. The words “to the extent” when used in reference to a liability or other matter, means that the liability or other matter referred to is included in part or excluded in part, with the portion included or excluded determined based on the portion of such liability or other matter exclusively related to the subject or period. The word “or” shall be disjunctive but not exclusive. A reference to any Party or to any party to any other agreement or document shall include such party’s successors and permitted assigns. A reference to any legislation or to any provision of any legislation shall include any amendment to, and any modification or reenactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto (provided, that for purposes of any representations and warranties contained in this Agreement that are made as of a specific date, references to any statute shall be deemed to refer to such statute and any rules or regulations promulgated thereunder, as amended through such specific date). The phrase “ordinary course of business” or “ordinary course” refers to the ordinary course of business of the Business and

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not of Seller and its Affiliates generally. References to “$” shall mean U.S. dollars and references to “written” or “in writing” include in electronic form. Any reference to “days” shall mean calendar days unless Business Days are expressly specified.
(e)      Headings . The division of this Agreement into Articles, Sections, and other subdivisions, and the insertion of headings are for convenience of reference only and do not affect, and will not be utilized in construing or interpreting, this Agreement. All references in this Agreement to any “Section” are to the corresponding Section of this Agreement unless otherwise specified.
(f)      Joint Participation . The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement.
ARTICLE II

THE SALE AND PURCHASE
2.1      Sale and Purchase of Shares . Upon the terms and subject to the conditions set forth in this Agreement, at the closing of the transactions contemplated by this Agreement (the “ Closing ”), Seller shall transfer, convey, assign and deliver, or cause to be transferred, conveyed, assigned and delivered, to Purchaser, and Purchaser shall, and Parent shall cause Purchaser to, purchase and acquire from Seller the Shares, free and clear of all Encumbrances, other than Encumbrances under applicable securities Laws (the “ Sale ”).
2.2      Closing Payment . In consideration for the Shares, at the Closing, Purchaser shall, and Parent shall cause Purchaser to, deliver to Seller (and/or one or more of Seller’s designees), in cash, an aggregate of (a) $530,000,000, plus (b) the Estimated Working Capital Adjustment Amount if any, minus (c) the amount, if any, of Indebtedness of the Company set forth in the Estimated Closing Statement (the amounts in (b) and (c) together, the “ Closing Payment Adjustments ”).
2.3      Closing .
(a)      The Closing shall take place (i) at the offices of Jones Day, 1420 Peachtree Street, Atlanta, Georgia 30309, at 10:00 a.m., Atlanta time, on the third Business Day after the date on which all of the conditions set forth in Article VIII (other than those conditions that by their nature are to be fulfilled or, to the extent permitted by applicable Law, waived on the Closing Date, but subject to the fulfillment or, to the extent permitted by applicable Law, waiver of those conditions) are fulfilled or, to the extent permitted by applicable Law, waived, or (ii) at such other place, time or date as may be mutually agreed upon in writing by Seller and Purchaser. The date on which the Closing occurs is referred to as the “ Closing Date .” The Closing shall be deemed to have occurred at 11:59 p.m. Atlanta time on the Closing Date.
(b)      At or prior to the Closing:
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(i)      Seller shall deliver or cause to be delivered to Purchaser:
(A)      the certificate required to be delivered pursuant to Section 8.2(d) ;
(B)      each of the Ancillary Agreements to which any member of the Seller Group is a party, duly executed by the applicable member of the Seller Group;
(C)      resignations, effective as of the Closing Date, of all of the directors of the Company;
(D)      a duly executed certificate of non-foreign status of Seller, dated the Closing Date, substantially in the form of the sample certification set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv)(B);
(E)      an IRS Form W-9, Request for Taxpayer Identification Number and Certificate, duly executed by an officer of Seller; and
(F)      evidence reasonably satisfactory to Purchaser that Seller has paid, settled or cancelled, or caused to be paid, settled or cancelled, (1) the Indebtedness listed on Section 3.5(c) of the Seller Disclosure Letter (or caused such Indebtedness to be assigned to and assumed by an Affiliate of Seller (other than the Company) in accordance with Section 5.16(a) ) and (2) the Intercompany Debt.
(ii)      Parent shall cause Purchaser to:
(A)      pay to Seller (or to any Affiliate designated by Seller) by wire transfer, to the account or accounts designated by Seller (or by such Affiliate) in the notice accompanying the Estimated Closing Statement, immediately available funds in the aggregate amount determined pursuant to, and in accordance with, Section ‎2.2 ; and
(B)      deliver to Seller the certificate required to be delivered pursuant to Section ‎8.3(c) .
2.4      Closing Payment Adjustments .
(a)      Not less than five Business Days prior to the anticipated Closing Date, Seller shall provide Purchaser with a statement with a written estimate of each of (i) Working Capital and (ii) Indebtedness of the Company, in each case as of the Closing (the “ Estimated Closing Statement ”), which shall be accompanied by a notice that sets forth (A) Seller’s determination of the Closing Payment Adjustments and the Purchase Price after giving effect to the Closing Payment Adjustments and (B) the account or accounts to which Purchaser shall transfer the Purchase Price pursuant to Section 2.3 . For the avoidance of doubt, the estimate of the Indebtedness of the Company as of the Closing set forth on the Estimated Closing Statement shall give effect to the repayment, settlement or cancellation of Intercompany Debt pursuant to Section 5.8 , which repayment shall have been completed at or prior to the Closing.

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(b)      The Estimated Closing Statement shall be prepared in accordance with the Accounting Principles attached as Schedule I hereto (the “ Accounting Principles ”) and in accordance with GAAP, in each case, applied consistently with their application in connection with the preparation of the Business Financial Statements. It is understood and agreed that Annex A of Schedule I sets forth the calculation of the Target Working Capital (the “ Target Working Capital Statement ”).
(c)      From and after the delivery of the Estimated Closing Statement until the day prior to the Closing Date, Seller shall, and shall cause the Company to, (i) reasonably assist Purchaser and its Representatives in Purchaser’s review of the Estimated Closing Statement and (ii) make available the Representatives responsible for preparing the Estimated Closing Statement to discuss the Estimated Closing Statement with Purchaser. Seller shall consider in good faith any comments on the Estimated Closing Statement submitted by Purchaser.
2.5      Post-Closing Statement .
(a)      Within 60 days after the Closing Date, Purchaser shall prepare in good faith and deliver to Seller statements of (i) Working Capital and (ii) Indebtedness of the Company, in each case as of the Closing (collectively, the “ Initial Closing Statement ”). The Initial Closing Statement shall be prepared in accordance with the Accounting Principles and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Business Financial Statements.
(b)      Following the Closing through the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall be permitted to access and review the books, records and work papers of the Company or relating to the Business, and Purchaser shall, and shall cause its Affiliates (including the Company) and its and their respective employees, accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in connection with such review, including by providing access to such books, records and work papers and making available personnel to the extent reasonably requested; provided that the accountants of Purchaser and its Affiliates shall not be obliged to make any books, records or work papers available to Seller and its Affiliates except in accordance with such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c)      Purchaser agrees that, following the Closing through the date that the Final Closing Statement becomes final and binding, it will not take or permit to be taken any actions with respect to any accounting books, records, policies or procedures on which the Business Financial Statements or the Initial Closing Statement is based, or on which the Final Closing Statement is to be based, that would impede or delay the determination of the amount of Working Capital or Indebtedness of the Company, in each case, as of the Closing or the preparation of any Notice of Disagreement or the Final Closing Statement in the manner and utilizing the methods provided by this Agreement.


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2.6      Reconciliation of Post-Closing Statement .
(a)      Seller shall notify Purchaser in writing no later than 30 days after Seller’s receipt of the Initial Closing Statement if Seller disagrees with the Initial Closing Statement, which notice shall describe the basis for such disagreement (the “ Notice of Disagreement ”). If no Notice of Disagreement is delivered to Purchaser by such time, then the Initial Closing Statement shall become final and binding upon the Parties in accordance with Section ‎2.6(c) .
(b)      During the 30 days immediately following the delivery of a Notice of Disagreement (the “ Resolution Period ”), Seller and Purchaser shall seek to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement.
(c)      If, at the end of the Resolution Period, Seller and Purchaser have been unable to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement, Seller and Purchaser shall submit all matters that remain in dispute with respect to the Notice of Disagreement to Grant Thornton LLP (the “ Independent Accounting Firm ”). Within 30 days after submission of such matters to the Independent Accounting Firm, the Independent Accounting Firm shall make a final determination in accordance with the Accounting Principles and the terms and definitions of this Agreement and based solely on the written submissions of the Parties, binding on the Parties, of the appropriate amount of each of the matters that remain in dispute as indicated in the Notice of Disagreement that Seller and Purchaser have submitted to the Independent Accounting Firm. With respect to each disputed matter, such determination, if not in accordance with the position of either Seller or Purchaser, shall not be in excess of the higher, or less than the lower, of the amounts advocated by Seller in the Notice of Disagreement or by Purchaser in the Initial Closing Statement with respect to such disputed matter. The Independent Accounting Firm shall not review or make any determination with respect to any matter other than the matters that remain in dispute as indicated in the Notice of Disagreement. The statements of (i) Working Capital and (ii) Indebtedness of the Company that are final and binding on the Parties, as determined either through agreement of the Parties pursuant to Section 2.6(a) or Section ‎2.6(b) or through the action of the Independent Accounting Firm pursuant to this Section 2.6(c) , are referred to as the “ Final Closing Statement .”
(d)      All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller, on the one hand, and Purchaser, on the