{"id":42982,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-amalgamation-aes-corp-and-aes-china.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-amalgamation-aes-corp-and-aes-china","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-amalgamation-aes-corp-and-aes-china.html","title":{"rendered":"Agreement and Plan of Amalgamation &#8211; AES Corp. and AES China Generating Co. Ltd."},"content":{"rendered":"<pre>\n                     AGREEMENT AND PLAN OF AMALGAMATION\n\n           THIS AGREEMENT AND PLAN OF AMALGAMATION, dated as of November\n12, 1996, between THE AES CORPORATION, a Delaware corporation ('AES'), and\nAES CHINA GENERATING CO. LTD., a Bermuda company ('Chigen'),\n\n                           W I T N E S S E T H :\n\n           WHEREAS, AES, upon the terms and subject to the conditions of\nthis Agreement and in accordance with the Bermuda Companies Act 1981, as\namended (the 'Companies Act'), intends to cause a Bermuda company to be\nformed as a wholly-owned subsidiary of AES ('Sub') to amalgamate with and\ninto Chigen (the 'Amalgamation');\n\n           WHEREAS, a Special Committee of the Board of Directors of Chigen\n(the 'Special Committee') comprised of the directors elected by the holders\nof the Class A Common Stock, par value $0.01 per share, of Chigen (the\n'Class A Common Stock') (a) has determined that the Amalgamation is in the\nbest interests of Chigen and the holders of the Class A Common Stock and\nhas approved and adopted this Agreement and the transactions contemplated\nhereby and (b) has recommended the approval and adoption of this Agreement\nand the approval of the Amalgamation by, and directed that this Agreement\nand the Amalgamation be submitted to a vote of, the shareholders of Chigen;\n\n           WHEREAS, the Board of Directors of AES has determined that the\nAmalgamation is in the best interests of AES and its stockholders and has\napproved and adopted this Agreement and approved the transactions\ncontemplated hereby;\n\n           WHEREAS, upon the terms and subject to the conditions set forth\nin this Agreement, each issued and outstanding share of Class A Common\nStock, other than shares owned directly or indirectly by AES and Dissenting\nShares (as defined in Section 2.01(d) below), will be canceled in\nconsideration of the right to receive a fraction of a share of AES Common\nStock, determined pursuant to the formula set forth in Section 2.01(c)\nbelow;\n\n           WHEREAS, in order for AES to be able to effectuate the\nAmalgamation, the shareholders of Chigen must approve the Amalgamation, and\nthe Special Committee and the Board of Directors of Chigen have agreed to\ncall the Chigen Special Meeting (as defined in Section 4.02 below) for that\npurpose;\n\n           WHEREAS, for U.S. federal income tax purposes, it is intended\nthat the Amalgamation shall qualify as a reorganization under Section\n368(a) of the United States Internal Revenue Code of 1986, as amended (the\n'Code'); and\n\n           WHEREAS, AES and Chigen desire to make certain representations,\nwarranties, covenants and agreements in connection with the Amalgamation\nand also to prescribe various conditions to the Amalgamation;\n\n           NOW, THEREFORE, in consideration of the representations,\nwarranties, covenants and agreements contained in this Agreement the\nparties agree as follows:\n\n                                 ARTICLE I\n                              The Amalgamation\n\n           SECTION 1.1. The Amalgamation. Upon the terms and subject to the\nconditions set forth in this Agreement, and in accordance with the\nCompanies Act, Sub shall be amalgamated with Chigen at the Effective Time\n(as defined in Section 1.03 below). Following the Amalgamation, Sub and\nChigen shall continue in the form of the amalgamated company (the\n'Amalgamated Company') and shall operate under the name AES China\nGenerating Co. Ltd. under the laws of Bermuda.\n\n           SECTION 1.2. Closing. The closing of the Amalgamation will take\nplace at 10:00 a.m. on a date to be specified by AES, which may be on, but\nshall be no later than the third business day after, the day on which there\nshall have been satisfaction or waiver of the conditions set forth in\nArticle V (the 'Closing Date'), at the offices of Chadbourne &amp; Parke LLP,\n30 Rockefeller Plaza, New York, New York 10112, unless another date or\nplace is agreed to in writing by the parties hereto.\n\n           SECTION 1.3. Effective Time. On the date hereof, or as soon as\npracticable thereafter, the parties shall file an application for the\nconsent of the Bermuda Minister of Finance, and on the Closing Date, or as\nsoon as practicable thereafter, the parties shall file an application for\nregistration of the Amalgamation with the Bermuda Registrar of Companies\nand any other appropriate documents (together, in any such case, the\n'Bermuda Applications') executed in accordance with the relevant provisions\nof the Companies Act and shall make all other filings or recordings\nrequired under the Companies Act. The Amalgamation shall become effective\nat such time as a certificate of amalgamation (the 'Certificate of\nAmalgamation') is duly issued by the Bermuda Registrar of Companies (the\ntime the Amalgamation becomes effective being the 'Effective Time').\n\n           SECTION 1.4. Effects of the Amalgamation. The effect of the\nAmalgamation shall be as provided in the applicable provisions of the\nCompanies Act.\n\n           SECTION 1.5. Memorandum of Association and Byelaws. (a) The\nmemorandum of association of Chigen as in effect immediately prior to the\nEffective Time shall be the memorandum of association of the Amalgamated\nCompany until thereafter changed or amended as provided therein or by\napplicable law.\n\n           (b) The Bye-laws of Sub as in effect at the Effective Time shall\nbe the bye-laws of the Amalgamated Company, until thereafter changed or\namended as provided therein or by applicable law. The registration number\nof the Amalgamated Company in Bermuda after the Effective Time shall be the\nsame registration number as that of Chigen immediately prior to the\nEffective Time.\n\n           SECTION 1.6. Directors. The directors of Sub immediately prior\nto the Effective Time shall be the directors of the Amalgamated Company,\nuntil the earlier of their resignation or removal or until their respective\nsuccessors are duly elected and qualified, as the case may be.\n\n           SECTION 1.7. Officers. The officers of Chigen immediately prior\nto the Effective Time shall become the officers of the Amalgamated Company,\nuntil the earlier of their resignation or removal or until their respective\nsuccessors are duly elected and qualified, as the case may be.\n\n                                 ARTICLE II\n\n           Effect of the Amalgamation on the Capital Stock of the\n              Constituent Companies; Exchange of Certificates\n\n           SECTION 2.1. Effect on Capital Stock. As of the Effective Time,\nby virtue of the Amalgamation and without any action on the part of the\nholder of any shares of Class A Common Stock, or Class B Common Stock, par\nvalue $0.01 per share, of Chigen (the 'Class B Common Stock' and together\nwith the Class A Common Stock, the 'Chigen Common Stock') or the holder of\nany shares of Sub:\n\n           (a) Capital Stock of Sub. Each share of the capital stock of Sub\nissued and outstanding immediately prior to the Effective Time shall be\nconverted into and become one fully paid and nonassessable share of Common\nStock of the Amalgamated Company.\n\n           (b) Cancellation of Treasury Stock and AES Owned Stock. Each\nshare of Chigen Common Stock that is owned by any subsidiary of Chigen and\neach share of Chigen Common Stock that is owned by AES, Sub or any other\nsubsidiary of AES shall automatically be canceled and shall cease to exist,\nand no consideration shall be delivered in exchange therefor.\n\n           (c) Cancellation of Class A Common Stock. Subject to Section\n2.01(d), each issued and outstanding share of Class A Common Stock (other\nthan shares to be canceled in accordance with Section 2.01(b)) shall be\ncanceled in consideration of the right to receive AES Common Stock in the\nratio of (i) 0.29 of a share of AES Common Stock or (ii) should the average\nclosing price of AES Common Stock on the New York Stock Exchange (the\n'NYSE') over the 15 consecutive trading day period ending at the close of\ntrading on the third trading day immediately prior to the date of the\nChigen Special Meeting (the 'Average Closing Price') be less than $45.00 or\nexceed $50.00, such fraction of a share of AES Common Stock (expressed as a\ndecimal rounded to the nearest one one-thousandth) as is determined by\ndividing $13.05 (if the Average Closing Price is less than $45.00) or\n$14.50 (if the Average Closing Price is greater than $50.00) by the Average\nClosing Price (the 'Exchange Ratio' or the 'Amalgamation Consideration').\nAs of the Effective Time, all such shares of Class A Common Stock shall no\nlonger be outstanding and shall automatically be canceled and retired and\nshall cease to exist, and each holder of a certificate representing any\nsuch shares of Class A Common Stock shall cease to have any rights with\nrespect thereto, except the right to receive the Amalgamation\nConsideration, without interest.\n\n           (d) Shares of Dissenting Shareholders. Notwithstanding anything\nin this Agreement to the contrary, any issued and outstanding shares of\nClass A Common Stock held by a person who did not vote in favor of the\nAmalgamation (a 'Dissenting Shareholder') and complies with all the\nprovisions of Bermuda law concerning the right of holders of Class A Common\nStock to dissent from the Amalgamation and require appraisal of their\nshares of Class A Common Stock ('Dissenting Shares') shall be canceled in\nconsideration for the right to receive such consideration as may be payable\nto such Dissenting Shareholder pursuant to the laws of Bermuda. Chigen\nshall give AES (i) prompt notice of any demands for appraisal of shares of\nClass A Common Stock received by Chigen and (ii) the opportunity to\nparticipate in and direct all negotiations and proceedings with respect to\nany such demands. Chigen shall not, without the prior written consent of\nAES, make any payment with respect to, or settle, offer to settle or\notherwise negotiate, any such demands.\n\n           SECTION 2.2. Payment for Cancellation of Class A Common Stock in\nthe Amalgamation. The manner of making payment for the cancellation of\nClass A Common Stock in the Amalgamation shall be as follows:\n\n           (a) At the Effective Time, AES shall make available to an\nexchange agent selected by AES and reasonably acceptable to Chigen (the\n'Exchange Agent'), for the benefit of those persons who immediately prior\nto the Effective Time were the holders of Class A Common Stock, a\nsufficient number of certificates representing shares of AES Common Stock\nrequired to effect the delivery of the aggregate Amalgamation Consideration\nrequired to be issued pursuant to Section 2.01 (the certificates\nrepresenting shares of AES Common Stock comprising such aggregate\nAmalgamation Consideration being hereinafter referred to as the 'Exchange\nFund'). The Exchange Agent shall, pursuant to irrevocable instructions,\ndeliver the shares of AES Common Stock contemplated to be issued pursuant\nto Section 2.01. The Exchange Fund shall not be used for any other purpose.\n\n           (b) Promptly after the Effective Time, the Exchange Agent shall\nmail to each registered holder (other than Dissenting Shareholders) of a\ncertificate or certificates which immediately prior to the Effective Time\nrepresented outstanding Class A Common Stock (the 'Certificates') (i) a\nform of letter of transmittal (which shall specify that delivery shall be\neffected, and risk of loss and title to the Certificates shall pass, only\nupon proper delivery of the Certificates to the Exchange Agent) and (ii)\ninstructions for use in effecting the surrender of the Certificates for\npayment therefor. Upon surrender of Certificates for cancellation to the\nExchange Agent, together with such letter of transmittal duly executed and\nany other required documents, the holder of such Certificates shall be\nentitled to receive for each of the shares of Class A Common Stock\nrepresented by such Certificates the Amalgamation Consideration and the\nCertificates so surrendered shall forthwith be canceled. Until so\nsurrendered, Certificates shall represent solely the right to receive the\nAmalgamation Consideration and any cash in lieu of fractional shares of AES\nCommon Stock as contemplated by Section 2.03 with respect to each of the\nshares of Class A Common Stock represented thereby. No dividends or other\ndistributions that are declared after the Effective Time on shares of AES\nCommon Stock and payable to the holders of record thereof after the\nEffective Time will be paid to persons entitled by reason of the\nAmalgamation to receive shares of AES Common Stock until such persons\nsurrender their Certificates. Upon such surrender, there shall be paid to\nthe person in whose name shares of AES Common Stock are issued any\ndividends or other distributions having a record date after the Effective\nTime and payable with respect to such shares of AES Common Stock between\nthe Effective Time and the time of such surrender. After such surrender\nthere shall be paid to the person in whose name shares of AES Common Stock\nare issued any dividends or other distributions on such shares of AES\nCommon Stock which shall have a record date after the Effective Time and\nprior to such surrender and a payment date after such surrender and such\npayment shall be made on such payment date. In no event shall the persons\nentitled to receive such dividends or other distributions be entitled to\nreceive interest on such dividends or other distributions. If any cash or\nany certificate representing shares of AES Common Stock is to be paid to or\nissued in a name other than that in which the Certificate surrendered in\nexchange therefor is registered, it shall be a condition of such exchange\nthat the Certificate so surrendered shall be properly endorsed and\notherwise in proper form for transfer and that the person requesting such\nexchange shall pay to the Exchange Agent any transfer or other taxes\nrequired by reason of the issuance of certificates of such shares of AES\nCommon Stock in a name other than that of the registered holder of the\nCertificate surrendered, or shall establish to the satisfaction of the\nExchange Agent that such tax has been paid or is not applicable.\nNotwithstanding the foregoing, neither the Exchange Agent nor any party\nhereto shall be liable to a holder of Class A Common Stock for any shares\nof AES Common Stock or dividends thereon or, in accordance with Section\n2.03, proceeds of the sale of fractional interests, delivered to a public\nofficial pursuant to applicable escheat law. The Exchange Agent shall not\nbe entitled to vote or exercise any rights of ownership with respect to\nshares of AES Common Stock held by it from time to time hereunder, except\nthat it shall receive and hold all dividends or other distributions paid or\ndistributed with respect to such shares of AES Common Stock for the account\nof the persons entitled thereto.\n\n           (c) Subject to the requirements of applicable law, certificates\nsurrendered for exchange by any person constituting an 'affiliate' of\nChigen for purposes of Rule 145 of the Securities Act of 1933, as amended\n(together with the rules and regulations promulgated thereunder, the\n'Securities Act') shall not be exchanged for certificates representing\nshares of AES Common Stock until AES has received from such person a\nwritten 'affiliate' agreement in a form reasonably acceptable to AES and\nChigen. Chigen shall use reasonable efforts to cause each such person to\ndeliver such written agreement to AES on or prior to the Closing Date.\n\n           (d) Any portion of the Exchange Fund which remains unclaimed by\nthe former shareholders of Chigen for one year after the Effective Time\nshall be delivered to AES, upon demand of AES, and any former shareholders\nof Chigen shall thereafter look only to AES for payment of their claim for\nthe Amalgamation Consideration for the shares or for any cash in lieu of\nfractional shares of AES Common Stock.\n\n           (e) If any Certificate shall have been lost, stolen or\ndestroyed, upon the making of an affidavit of that fact by the person\nclaiming such Certificate to be lost, stolen or destroyed and, if required\nby the Amalgamated Company, the execution of an indemnity agreement by such\nperson and\/or the posting by such person of a bond in such reasonable\namount as the Amalgamated Company may reasonably direct, as indemnity\nagainst any claim that may be made against it with respect to such\nCertificate, the Exchange Agent will issue in exchange for such lost,\nstolen or destroyed Certificate the shares of AES Common Stock, cash in\nlieu of fractional shares of AES Common Stock and unpaid dividends and\ndistributions on shares of AES Common Stock deliverable in respect thereof\npursuant to this Agreement.\n\n           SECTION 2.3. No Fractional Shares. No fractional shares of AES\nCommon Stock shall be issued in the Amalgamation and no fractional share\ninterests will entitle the owner thereof to vote or to any rights of a\nstockholder of AES. In lieu of any such fractional securities, each holder\nof shares of Class A Common Stock who would otherwise have been entitled to\na fraction of a share of AES Common Stock upon surrender of Certificates\nfor cancellation pursuant to this Article II, after aggregating all shares\nof AES Common Stock which such holder would be entitled to receive under\nSection 2.01(c), will be paid an amount in cash (without interest) equal to\nthe closing price per share of AES Common Stock on the trading day prior to\nthe day on which the Effective Time occurs multiplied by the fraction of a\nshare of AES Common Stock to which such holder would otherwise be entitled.\nAs soon as practicable after the determination of the amount of cash to be\npaid to former shareholders of Chigen in lieu of any fractional interests,\nthe Exchange Agent shall make available in accordance with this Agreement\nsuch amounts to such former shareholders.\n\n           SECTION 2.4. Transfer of Shares after the Effective Time. No\ntransfers of shares of Class A Common Stock shall be made on the share\ntransfer books of Chigen after the close of business on the day prior to\nthe date of the Effective Time.\n\n           SECTION 2.5. Stock Options. Pursuant to the AES China Generating\nLtd. Incentive Stock Option Plan (the 'Chigen Option Plan'), all\noutstanding options issued thereunder (the 'Chigen Options') shall, as of\nthe Effective Time, automatically and without any action on the part of the\nholder thereof, shall become options for AES Common Stock in accordance\nwith the formulae set forth in this Section. AES shall assume the Chigen\nOption Plan as of the Effective Time. The holders of such Options shall\ncontinue to have, and be subject to, the same terms and conditions set\nforth in the Chigen Option Plan and agreements pursuant to which such\nChigen Options were issued as in effect immediately prior to the Effective\nTime, except that, in accordance with Section 7.01 of the Chigen Option\nPlan, (i) such Chigen Options shall be exercisable for that number of whole\nshares of AES Common Stock equal to the product of the number of shares of\nClass B Common Stock covered by the Chigen Option immediately prior to the\nEffective Time multiplied by the Exchange Ratio rounded up to the nearest\nwhole number of shares of AES Common Stock, and (ii) the per share exercise\nprice for the shares of AES Common Stock issuable upon the exercise of such\nassumed Chigen Option shall be equal to the quotient determined by dividing\nthe exercise price per share of Class B Common Stock specified for such\nChigen Option under the Chigen Option Plan or agreement in effect\nimmediately prior to the Effective Time by the Exchange Ratio rounding the\nresulting exercise price down to the nearest whole cent. The date of grant\nfor such Chigen Option shall be the date on which the Chigen Option was\noriginally granted. At the Effective Time, AES shall reserve for issuance\nthe number of shares of AES Common Stock that will become issuable upon the\nexercise of such Chigen Options pursuant to this Section 2.05. Nothing in\nthis Section 2.05 shall affect the schedule of vesting (or the acceleration\nthereof) with respect to the Chigen Options to be assumed by AES as\nprovided in this Section 2.05. As soon as practicable after the Effective\nTime, AES shall file a registration statement or registration statements on\nForm S-8 (or any successor form), or another appropriate form with respect\nto the shares of AES Common Stock subject to such Chigen Options, and shall\nuse its best efforts to maintain the effectiveness of such registration\nstatement or registration statements (and maintain the current status of\nthe prospectus contained therein) for so long as such Chigen Options remain\noutstanding. It is the intention of the parties that, subject to applicable\nlaw, the Chigen Options assumed by AES qualify following the Effective Time\nas 'incentive stock options' (as defined in Section 422 of the Code) to the\nextent that the Chigen Options qualified as incentive stock options prior\nto the Effective Time and, accordingly, the provisions of this Section 2.05\nshall be deemed amended to the extent necessary to maintain such status of\nthe Chigen Options.\n\n           SECTION 2.6. Adjustments to Exchange Ratio, etc. The exchange\nratios set forth in Sections 2.01, 5.02(f) and 5.03(d) and any collar\namounts shall be adjusted to reflect fully the effect of any stock split\n(including a consolidation) of AES Common Stock or a dividend payable in\nAES Common Stock, or any other distribution of securities or dividend (in\ncash or otherwise) to holders of AES Common Stock (including, without\nlimitation, such a distribution made in connection with a recapitalization,\nreclassification, merger, consolidation, reorganization or similar\ntransaction, but excluding any regular quarterly dividend paid in cash)\noccurring or having a record date after the date hereof and prior to the\nEffective Time. ARTICLE III\n\n           Representations and Warranties\n\n           SECTION 3.1. Representations and Warranties of Chigen. Chigen\nrepresents and warrants to AES as follows:\n\n               (a) Organization, Standing and Corporate Power. Chigen is a\ncompany duly organized, validly existing and in compliance under the laws\nof Bermuda and has the requisite corporate power and authority to carry on\nits business as now being conducted. Chigen is duly qualified or licensed\nto do business and is in good standing in each jurisdiction in which the\nnature of its business or the ownership or leasing of its properties makes\nsuch qualification or licensing necessary, other than in such jurisdictions\nwhere the failure to be so qualified, licensed or in good standing\n(individually or in the aggregate) would not have a Material Adverse Effect\n(as defined in Section 7.03(c) below) in respect of Chigen.\n\n               (b) Subsidiaries. All the outstanding shares of capital\nstock, partnership interests or other equity interests owned by Chigen in\neach subsidiary in which Chigen has a direct or indirect interest are,\ndirectly or indirectly, free and clear of all Liens (as defined in Section\n7.03(b) below).\n\n               (c) Capital Structure. The authorized capital stock of\nChigen is substantially as described in the Chigen SEC Documents (as\ndefined in Section 3.01(e) below). All outstanding shares of capital stock\nof Chigen are, and all shares which may be issued will be, when issued,\nduly authorized, validly issued and fully paid and not subject to\npreemptive rights. There are no bonds, debentures, notes or other\nindebtedness of Chigen having the right to vote (or convertible into, or\nexchangeable for, securities having the right to vote) on any matters on\nwhich shareholders of Chigen may vote. Except as set forth above, as of the\ndate of this Agreement, there are no outstanding securities, options,\nwarrants, calls, rights, commitments, agreements, arrangements or\nundertakings of any kind to which Chigen is a party or by which it is bound\nobligating Chigen to issue, deliver or sell, or cause to be issued,\ndelivered or sold, additional shares of capital stock or other voting\nsecurities of Chigen or obligating Chigen to issue, grant, extend or enter\ninto any such security, option, warrant, call, right, commitment,\nagreement, arrangement or undertaking. There are not any outstanding\ncontractual obligations of Chigen to repurchase, redeem or otherwise\nacquire any shares of capital stock of Chigen.\n\n               (d) Authority; Noncontravention. Chigen has the requisite\ncorporate power and authority to enter into this Agreement and, subject to\nthe approval of the Amalgamation and this Agreement by the requisite vote\nof the holders of the outstanding shares of Chigen, to consummate the\ntransactions contemplated hereby. The execution and delivery of this\nAgreement by Chigen and the consummation by Chigen of the transactions\ncontemplated by this Agreement have been duly authorized by all necessary\ncorporate action on the part of Chigen, subject, in the case of this\nAgreement, to approval of the Amalgamation and this Agreement by the\nrequisite vote of the holders of the outstanding shares of Chigen Common\nStock. This Agreement has been duly executed and delivered by Chigen and,\nassuming this Agreement constitutes the valid and binding obligation of\nAES, this Agreement constitutes the valid and binding obligation of Chigen,\nenforceable against Chigen in accordance with its terms. The execution and\ndelivery of this Agreement does not, and the consummation of the\ntransactions contemplated by this Agreement and compliance with the\nprovisions of this Agreement will not, conflict with, or result in any\nviolation of, or default (with or without notice or lapse of time, or both)\nunder, or give rise to a right of termination, cancellation or acceleration\nof any obligation or to loss of a material benefit under, or result in the\ncreation of any Lien upon any of the properties or assets of Chigen or any\nof its subsidiaries under, (i) the Memorandum of Association or Bye-laws of\nChigen or the comparable charter or organizational documents of any of its\nsubsidiaries, (ii) any loan or credit agreement, note, bond, mortgage,\nindenture, lease or other agreement, instrument, permit, concession,\nfranchise or license applicable to Chigen or any of its subsidiaries or\ntheir respective properties or assets or (iii) subject to the governmental\nfilings and other matters referred to in the following sentence, any\njudgment, order, decree, statute, law, ordinance, rule or regulation\napplicable to Chigen or any of its subsidiaries or their respective\nproperties or assets, other than, in the case of clauses (ii) or (iii), any\nsuch conflicts, violations, defaults, rights or Liens that individually or\nin the aggregate would not (x) have a Material Adverse Effect in respect of\nChigen, (y) impair in any material respect the ability of Chigen to perform\nits obligations under this Agreement or (z) prevent the consummation of any\nof the transactions contemplated by this Agreement. No consent, approval,\norder or authorization of, or registration, declaration or filing with, any\nU.S. federal, state or local government or foreign government or any court,\nadministrative or regulatory agency or commission or other governmental\nauthority or agency, domestic or foreign (a 'Governmental Entity'), is\nrequired by Chigen or any of its subsidiaries in connection with the\nexecution and delivery of this Agreement by Chigen or the consummation by\nChigen of the transactions contemplated by this Agreement, except for (i)\nthe filing with the United States Securities and Exchange Commission (the\n'SEC') and the SEC's review of (x) the proxy statement relating to the\napproval by Chigen's shareholders of the Amalgamation and this Agreement\n(as amended or supplemented from time to time, the 'Proxy Statement') and\n(y) such other filings under the Securities and Exchange Act of 1934, as\namended (together with the rules and regulations promulgated thereunder,\nthe 'Exchange Act'), as may be required in connection with this Agreement\nand the transactions contemplated by this Agreement, (ii) any filings made\nin compliance with the rules and regulations of the NYSE and the Nasdaq\nNational Market System, (iii) the filing of the Bermuda Applications, and\nthe appropriate documents with the relevant authorities of other\njurisdictions in which Chigen is qualified to do business, (iv) such\nfilings as may be required by any applicable state securities or 'blue sky'\nlaws or state takeover laws, (v) such filings, consents, approvals, orders,\nregistrations and declarations as may be required under the laws of any\nforeign country in which Chigen or any of its subsidiaries conducts any\nbusiness or owns any assets, (vi) the consent of the Bermuda Minister of\nFinance to amalgamate Chigen with Sub, (vii) the issuance by the Bermuda\nRegistrar of Companies of the Certificate of Amalgamation, and (viii) such\nother consents, approvals, orders, authorizations, registrations,\ndeclarations and filings the failure of which to be obtained or made would\nnot, individually or in the aggregate (A) have a Material Adverse Effect in\nrespect of Chigen, (B) impair in any material respect the ability of Chigen\nto perform its obligations under this Agreement or (C) prevent or\nsignificantly delay the consummation of the transactions contemplated by\nthis Agreement.\n\n               (e) SEC Documents; Financial Statements. Chigen has filed\nall required reports, forms and other documents with the SEC since February\n23, 1994 (the 'Chigen SEC Documents'). As of their respective dates, (i)\nthe Chigen SEC Documents complied in all material respects with the\nrequirements of the Securities Act or the Exchange Act, as the case may be,\napplicable to such Chigen SEC Documents, and (ii) none of the Chigen SEC\nDocuments contained any untrue statement of a material fact or omitted to\nstate a material fact required to be stated therein or necessary in order\nto make the statements therein, in light of the circumstances under which\nthey were made, not misleading. Except to the extent that information\ncontained in any Chigen SEC Document has been revised or superseded by a\nlater-filed Chigen SEC Document filed and publicly available prior to the\ndate of this Agreement, none of the Chigen SEC Documents contains any\nuntrue statement of a material fact or omits to state any material fact\nrequired to be stated therein or necessary in order to make the statements\ntherein, in light of the circumstances under which they were made, not\nmisleading. The financial statements of Chigen included in the Chigen SEC\nDocuments comply as to form in all material respects with applicable\naccounting requirements and the published rules and regulations of the SEC\nwith respect thereto, have been prepared in accordance with United States\ngenerally accepted accounting principles ('GAAP') (except, in the case of\nunaudited statements, as permitted by Form 10-Q) applied on a consistent\nbasis during the periods involved (except as may be indicated in the notes\nthereto) and fairly present the consolidated financial position of Chigen\nand its consolidated subsidiaries as of the dates thereof and the\nconsolidated results of their operations and cash flows for the periods\nthen ended (subject, in the case of unaudited statements, to normal\nyear-end audit adjustments). Except as set forth in the Chigen SEC\nDocuments filed and publicly available prior to the date of this Agreement,\nand except for Chigen's planned offering of notes due 2006 (the 'Chigen\nDebt Offering') and except for liabilities and obligations incurred in the\nordinary course of business consistent with past practice since the date of\nthe most recent consolidated balance sheet included in the Chigen SEC\nDocuments filed and publicly available prior to the date of this Agreement\nand except for liabilities and obligations which would not, individually or\nin the aggregate, have a Material Adverse Effect in respect of Chigen,\nneither Chigen nor any of its subsidiaries has any liabilities or\nobligations of any nature (whether accrued, absolute, contingent or\notherwise) required by GAAP to be set forth on a consolidated balance sheet\nof Chigen and its consolidated subsidiaries or in the notes thereto.\n\n               (f) Absence of Certain Changes or Events. Except as\ndisclosed in the Chigen SEC Documents filed and publicly available prior to\nthe date of this Agreement, since November 30, 1995, and except for the\nChigen Debt Offering, Chigen has conducted its business only in the\nordinary course, and there has not been (i) any Material Adverse Change (as\ndefined in ss. 7.03(c) below) in respect of Chigen, (ii) any split,\ncombination or reclassification of any of its capital stock or any issuance\nor the authorization of any issuance of any other securities in respect of,\nin lieu of or in substitution for shares of its capital stock, (iii) (x)\nany granting by Chigen to any officer of Chigen of any increase in\ncompensation, except in the ordinary course of business consistent with\nprior practice, as was required under employment agreements in effect as of\nthe date of the most recent audited financial statements included in the\nChigen SEC Documents filed and publicly available prior to the date of this\nAgreement, (y) any granting by Chigen to any such officer of any increase\nin severance or termination pay, except as was required under employment,\nseverance or termination agreements in effect as of the date of the most\nrecent audited financial statements included in the Chigen SEC Documents\nfiled and publicly available prior to the date of this Agreement or (z) any\nentry by Chigen or any of its subsidiaries into any employment, severance\nor termination agreement with any such officer, (iv) any damage,\ndestruction or loss, whether or not covered by insurance, that has or\nreasonably could be expected to have a Material Adverse Effect in respect\nof Chigen or (v) any change in accounting methods, principles or practices\nby Chigen materially affecting its assets, liabilities or business, except\ninsofar as may have been required by a change in GAAP.\n\n               (g) Litigation. Except as disclosed in the Chigen SEC\nDocuments filed and publicly available prior to the date of this Agreement,\nthere is no suit, action or proceeding pending or, to the knowledge of\nChigen, threatened against Chigen or any of its subsidiaries that,\nindividually or in the aggregate, could reasonably be expected to have a\nMaterial Adverse Effect in respect of Chigen; it being understood that this\nrepresentation shall not include any litigation of the nature described in\nSection 5.02(a)(i) through (iv).\n\n               (h) Compliance with Applicable Laws. Each of Chigen and its\nsubsidiaries has in effect all foreign governmental approvals,\nauthorizations, certificates, filings, franchises, licenses, notices,\npermits and rights, including all authorizations under environmental laws\n('Permits'), necessary for it to own, lease or operate its properties and\nassets and to carry on its business as now conducted, and there has\noccurred no default under any such Permit, except for the lack of Permits\nand except for defaults under Permits which such lack or default\nindividually or in the aggregate would not have a Material Adverse Effect\nin respect of Chigen. Except as disclosed in the Chigen SEC Documents filed\nand publicly available prior to the date of this Agreement, Chigen and its\nsubsidiaries are in compliance with all applicable statutes, laws,\nordinances, rules, orders and regulations of any Governmental Entity,\nexcept for any noncompliance which individually or in the aggregate would\nnot have a Material Adverse Effect in respect of Chigen.\n\n               (i) Brokers; Schedule of Fees and Expenses. No broker,\ninvestment banker or financial advisor or other person, other than Merrill\nLynch &amp; Co., the fees and expenses of which will be paid by Chigen, is\nentitled to any broker's, finder's, financial advisor's or other similar\nfee or commission in connection with the transactions contemplated by this\nAgreement based upon arrangements made by or on behalf of Chigen. Chigen\nhas provided AES true and correct copies of all agreements between Chigen\nand Merrill Lynch &amp; Co.\n\n               (j) Opinion of Financial Advisor. Chigen has received the\nopinion of Merrill Lynch &amp; Co., to the effect that, as of the date of this\nAgreement, the consideration to be received in the Amalgamation by the\nholders of Class A Common Stock is fair to the holders of Class A Common\nStock from a financial point of view, and a complete and correct copy of\nsuch opinion has been, or promptly upon receipt thereof will be, delivered\nto AES.\n\n               (k) Board Recommendation. At a meeting duly called and held\nin compliance with Chigen's Bye-laws, (i) the Special Committee has adopted\na resolution approving the Amalgamation and recommended that the Board of\nDirectors of Chigen approve this Agreement and the transactions\ncontemplated hereby, (ii) the Board of Directors of Chigen has adopted a\nresolution (A) approving the Amalgamation, based on a determination that\nthe Amalgamation is in the best interests of Chigen and the holders of\nClass A Common Stock, and (B) approving and adopting this Agreement and the\ntransactions contemplated hereby and recommending approval and adoption of\nthis Agreement and the transactions contemplated hereby by the holders of\nClass A Common Stock.\n\n               SECTION 3.2. Representations and Warranties of AES. AES\nrepresents and warrants to Chigen as follows:\n\n               (a) Organization, Standing and Corporate Power. AES is a\ncorporation duly organized, validly existing and in good standing under the\nlaws of Delaware and has the requisite corporate power and authority to\ncarry on its business as now being conducted. AES is duly qualified or\nlicensed to do business and is in good standing in each jurisdiction in\nwhich the nature of its business or the ownership or leasing of its\nproperties makes such qualification or licensing necessary, other than in\nsuch jurisdictions where the failure to be so qualified or licensed\n(individually or in the aggregate) would not have a Material Adverse Effect\nin respect of AES. AES has delivered to Chigen complete and correct copies\nof its certificate of incorporation and by-laws, in each case as amended to\nthe date of this Agreement.\n\n               (b) Capital Structure. The authorized capital stock of AES\nis substantially as described in the AES SEC Documents (as defined in\nSection 3.02(d) below). AES does not own any shares of the Class A Common\nStock of Chigen.\n\n               (c) Authority; Noncontravention. AES has all requisite\ncorporate power and authority to enter into this Agreement and to\nconsummate the transactions contemplated by this Agreement. The execution\nand delivery of this Agreement and the consummation of the transactions\ncontemplated by this Agreement have been duly authorized by all necessary\ncorporate action on the part of AES. This Agreement has been duly executed\nand delivered by AES and, assuming this Agreement constitutes the valid and\nbinding obligation of Chigen, this Agreement constitutes a valid and\nbinding obligation of AES, enforceable against AES, as applicable, in\naccordance with its terms. The execution and delivery of this Agreement\ndoes not, and the consummation of the transactions contemplated by this\nAgreement and compliance with the provisions of this Agreement will not,\nconflict with, or result in any violation of, or default (with or without\nnotice or lapse of time, or both) under, or give rise to a right of\ntermination, cancellation or acceleration of any obligation or to loss of a\nmaterial benefit under, or result in the creation of any Lien upon any of\nthe properties or assets of AES under, (i) the certificate of incorporation\nor by-laws of AES, (ii) any loan or credit agreement, note, bond, mortgage,\nindenture, lease or other agreement, instrument, permit, concession,\nfranchise or license applicable to AES or (iii) subject to the governmental\nfilings and other matters referred to in the following sentence, any\njudgment, order, decree, statute, law, ordinance, rule or regulation\napplicable to AES or its properties or assets, other than, in the case of\nclauses (ii) or (iii), any such conflicts, violations, defaults, rights or\nLiens that (A) will have been waived prior to the Effective Time or (B)\nwould not individually or in the aggregate (x) have a Material Adverse\nEffect in respect of AES, (y) impair in any material respect the ability of\nAES to perform its obligations under this Agreement or (z) prevent the\nconsummation of any of the transactions contemplated by this Agreement. No\nconsent, approval, order or authorization of, or registration, declaration\nor filing with, any Governmental Entity is required by AES in connection\nwith the execution and delivery of this Agreement or the consummation by\nAES of any of the transactions contemplated by this Agreement, except for\n(i) the filing with the SEC of (x) the Registration Statement (as defined\nin Section 4.01 below), and (y) such other filings under the Exchange Act\nas may be required in connection with this Agreement and the transactions\ncontemplated by this Agreement, (ii) the SEC order declaring the\nRegistration Statement effective pursuant to Section 8(a) of the Securities\nAct, (iii) any filings made in compliance with the rules and regulations of\nthe NYSE and the Nasdaq National Market System, (iv) the filing of the\nBermuda Applications, and the appropriate documents with the relevant\nauthorities of other states in which Chigen is qualified to do business,\n(v) such filings as may be required by any applicable state securities or\n'blue sky' laws or state takeover laws, (vi) the consent of the Bermuda\nMinister of Finance to amalgamate Chigen with Sub, (vii) the issuance by\nthe Bermuda Registrar of Companies of the Certificate of Amalgamation, and\n(viii) such other consents, approvals, orders, authorizations,\nregistrations, declarations and filings the failure of which to be obtained\nor made would not, individually or in the aggregate (A) have a Material\nAdverse Effect in respect of AES, (B) impair the ability of AES to perform\nits obligations under this Agreement or (C) prevent or significantly delay\nthe consummation of any transaction contemplated by this Agreement.\n\n               (d) SEC Documents; Financial Statements. AES has filed all\nrequired reports, forms and other documents with the SEC since January 1,\n1994 (the 'AES SEC Documents'). As of their respective dates, (i) the AES\nSEC Documents complied in all material respects with the requirements of\nthe Securities Act or the Exchange Act, as the case may be, applicable to\nsuch AES SEC Documents, and (ii) none of the AES SEC Documents contained\nany untrue statement of a material fact or omitted to state a material fact\nrequired to be stated therein or necessary in order to make the statements\ntherein, in light of the circumstances under which they were made, not\nmisleading. Except to the extent that information contained in any AES SEC\nDocument has been revised or superseded by a later-filed AES SEC Document\nfiled and publicly available prior to the date of this Agreement, none of\nthe AES SEC Documents contains any untrue statement of a material fact or\nomits to state any material fact required to be stated therein or necessary\nin order to make the statements therein, in light of the circumstances\nunder which they were made, not misleading. The financial statements of AES\nincluded in the AES SEC Documents comply as to form in all material\nrespects with applicable accounting requirements and the published rules\nand regulations of the SEC with respect thereto, have been prepared in\naccordance with GAAP (except, in the case of unaudited statements, as\npermitted by Form 10-Q) applied on a consistent basis during the periods\ninvolved (except as may be indicated in the notes thereto) and fairly\npresent the consolidated financial position of AES and its consolidated\nsubsidiaries as of the dates thereof and the consolidated results of their\noperations and cash flows for the periods then ended (subject, in the case\nof unaudited statements, to normal year-end audit adjustments). Except as\nset forth in the AES SEC Documents filed and publicly available prior to\nthe date of this Agreement, and except for liabilities and obligations\nincurred in the ordinary course of business consistent with past practice\nsince the date of the most recent consolidated balance sheet included in\nthe AES SEC Documents filed and publicly available prior to the date of\nthis Agreement and except for liabilities and obligations which would not,\nindividually or in the aggregate, have a Material Adverse Effect in respect\nof AES, neither AES nor any of its subsidiaries has any liabilities or\nobligations of any nature (whether accrued, absolute, contingent or\notherwise) required by GAAP to be set forth on a consolidated balance sheet\nof AES and its consolidated subsidiaries or in the notes thereto. (e)\nAbsence of Certain Changes or Events. Except as disclosed in the AES SEC\nDocuments filed and publicly available prior to the date of this Agreement,\nsince December 31, 1995 AES has conducted its business only in the ordinary\ncourse, and there has not been (i) any Material Adverse Change in respect\nof AES, (ii) any split, combination or reclassification of any of its\ncapital stock or any issuance or the authorization of any issuance of any\nother securities in respect of, in lieu of or in substitution for shares of\nits capital stock, (iii) any damage, destruction or loss, whether or not\ncovered by insurance, that has or reasonably could be expected to have a\nMaterial Adverse Effect in respect of AES or (iv) any change in accounting\nmethods, principles or practices by AES materially affecting its assets,\nliabilities or business, except insofar as may have been required by a\nchange in GAAP.\n\n               (f) Litigation. Except as disclosed in the AES SEC Documents\nfiled and publicly available prior to the date of this Agreement, there is\nno suit, action or proceeding pending or, to the knowledge of AES,\nthreatened against AES or any of its subsidiaries that, individually or in\nthe aggregate, could reasonably be expected to have a Material Adverse\nEffect in respect of AES.\n\n               (g) Brokers. No broker, investment banker, financial advisor\nor other person, the fees and expenses of which will be paid by AES, is\nentitled to any broker's, finder's, financial advisor's or other similar\nfee or commission in connection with the transactions contemplated by this\nAgreement based upon arrangements made by or on behalf of AES.\n\n                                 ARTICLE IV\n\n                           Additional Agreements\n\n               SECTION 4.1. Registration Statement; Proxy Statement. (a)(i)\nAs promptly as practicable after the execution of this Agreement, AES and\nChigen shall prepare and file with the SEC a registration statement on Form\nS-4 (together with all amendments thereto, the 'Registration Statement') in\nconnection with the registration under the Securities Act of the shares of\nAES Common Stock to be issued to the holders of the Class A Common Stock\npursuant to the Amalgamation, including therein a proxy statement for use\nin connection with the Chigen Special Meeting (as defined in Section 4.02\nbelow) (the 'Proxy Statement'). AES and Chigen shall cooperate with each\nother in connection with any other filings with the SEC that any of them is\nobligated to make as a result of the transactions contemplated hereby. AES\nand Chigen each shall use all reasonable efforts to cause the Registration\nStatement to become effective (and to maintain such effectiveness until the\nAES Common Stock covered thereby has been issued) and the Proxy Statement\nto be reviewed by the SEC staff as promptly as practicable. Prior to the\neffective date of the Registration Statement, AES shall take all or any\naction required under any applicable federal or state securities laws in\nconnection with the issuance of shares of AES Common Stock pursuant to the\nAmalgamation. Each of Chigen and AES shall pay its own expenses incurred in\nconnection with the Registration Statement, the Proxy Statement, and the\nChigen Special Meeting, including, without limitation, the fees and\ndisbursements of their respective counsel, accountants and other\nrepresentatives, except that Chigen and AES each shall pay one-half of any\nprinting expenses incurred in connection therewith and AES shall pay any\nfiling fees with respect to the filing of the Proxy Statement with the SEC.\nChigen shall furnish all information concerning Chigen as AES may\nreasonably request in connection with such actions and the preparation of\nthe Registration Statement. As promptly as practicable after the\nRegistration Statement shall have become effective, Chigen shall mail the\nProxy Statement to its shareholders. The Proxy Statement shall include the\nrecommendation of the Special Committee and the recommendation of the Board\nof Directors of Chigen in favor of the Amalgamation, unless the Special\nCommittee has, in accordance with the terms of this Agreement, withdrawn or\nmodified its recommendation or approval of this Agreement.\n\n           (ii) No amendment or supplement to the Registration Statement or\n     the Proxy Statement will be made by AES or Chigen without the approval\n     of the other party, which shall not be unreasonably withheld. AES and\n     Chigen each will advise the other, promptly after it receives notice\n     thereof, of the time when the Registration Statement has become\n     effective or any supplement or amendment has been filed, the issuance\n     of any stop order, the suspension of the qualification of the AES\n     Common Stock issuable in connection with the Amalgamation for offering\n     or sale in any jurisdiction, or any request by the SEC for amendment\n     of the Registration Statement or the Proxy Statement or comments\n     thereon and responses thereto or requests by the SEC for additional\n     information.\n\n           (iii) AES shall promptly prepare and submit to the NYSE a\n     listing application covering the shares of AES Common Stock issuable\n     in the Amalgamation, and shall use its reasonable best efforts to\n     obtain, prior to the Effective Time, approval for the listing of such\n     AES Common Stock, subject to official notice of issuance, and Chigen\n     shall cooperate fully with AES with respect to such listing.\n\n           (b) AES represents, warrants and agrees that none of the\ninformation supplied or to be supplied by AES for inclusion or\nincorporation by reference in the Registration Statement (including the\nProxy Statement) shall, at (i) the time the Registration Statement is filed\nwith the SEC or declared effective, (ii) the time the Proxy Statement (or\nany amendment thereof or supplement thereto) is first mailed to the\nshareholders of Chigen, (iii) the time of the Chigen Special Meeting and\n(iv) the Effective Time, contain any untrue statement of a material fact or\nany statement which, at such time and in light of the circumstances under\nwhich it is made, is false or misleading with respect to any material fact,\nor omit to state any material fact required to be stated therein, or\nnecessary in order to make the statements therein not false or misleading.\nIf at any time prior to the Effective Time any event or circumstance\nrelating to AES or any subsidiary of AES, or their respective officers or\ndirectors, should be discovered by AES which should be set forth in an\namendment or a supplement to the Registration Statement or the Proxy\nStatement, AES shall promptly inform Chigen of such event or circumstance.\nNotwithstanding the foregoing, AES makes no representation or warranty with\nrespect to any information which is supplied for inclusion or incorporation\nby reference in the Registration Statement (including the Proxy Statement)\nby Chigen or any of its representatives and which is contained therein. All\ndocuments that AES is responsible for filing with the SEC in connection\nwith the transactions contemplated hereby will comply as to form and\nsubstance in all material respects with the applicable requirements of the\nSecurities Act and the Exchange Act.\n\n           (c) Chigen represents, warrants and agrees that none of the\ninformation supplied or to be supplied by Chigen for inclusion or\nincorporation by reference in the Registration Statement (including the\nProxy Statement) shall, at the respective times the Registration Statement\nis filed with the SEC or declared effective or the Proxy Statement\ncontained in the Registration Statement is first published, sent or given\nto the holders of Class A Common Stock, and at the Effective Time, contain\nany untrue statement of a material fact or any statement which, at such\ntime and in light of the circumstances under which it is made, is false or\nmisleading with respect to any material fact, or omit to state any material\nfact required to be stated therein, or necessary in order to make the\nstatements therein not false or misleading. If at any time prior to the\nEffective Time any event or circumstance relating to Chigen or any\nsubsidiary of Chigen, or their respective officers or directors, should be\ndiscovered by Chigen which should be set forth in an amendment or\nsupplement to the Registration Statement or the Proxy Statement, Chigen\nshall promptly inform AES of such event of circumstance. Notwithstanding\nthe foregoing, Chigen makes no representation or warranty with respect to\nany information which is supplied for inclusion or incorporation by\nreference in the Registration Statement (including the Proxy Statement) by\nAES or any of its representatives and which is contained therein. All\ndocuments that Chigen is responsible for filing with the SEC in connection\nwith the transactions contemplated hereby will comply as to form and\nsubstance in all material respects with the applicable requirements of the\nSecurities Act and the Exchange Act.\n\n           (d) Chigen and AES each hereby (i) consents to the use of its\nname and, on behalf of its subsidiaries and affiliates, the names of such\nsubsidiaries and affiliates, and to the inclusion of financial statements\nand business information relating to such party and its subsidiaries and\naffiliates (in each case, to the extent required by applicable securities\nlaws), in the Registration Statement and the Proxy Statement, (ii) agrees\nto use all reasonable efforts to obtain the written consent of any person\nor entity retained by it which may be required to be named (as an expert or\notherwise) in the Registration Statement or the Proxy Statement, and (iii)\nagrees to cooperate fully, and agrees to use all reasonable efforts to\ncause its subsidiaries and affiliates to cooperate fully, with any legal\ncounsel, investment banker, accountant or other agent or representative\nretained by any of the parties specified in clause (i) above in connection\nwith the preparation of any and all information required, as determined\nafter consultation with each party's counsel, to be disclosed by applicable\nsecurities laws in the Registration Statement or the Proxy Statement.\n\n           SECTION 4.2. Shareholders' Meetings. Chigen shall call a special\ngeneral meeting of its shareholders (the 'Chigen Special Meeting') as\npromptly as practicable for the purpose of voting upon the approval of this\nAgreement and the Amalgamation and Chigen shall use all commercially\nreasonable efforts to hold the Chigen Special Meeting as soon as\npracticable after the date on which the Registration Statement becomes\neffective. Unless the Special Committee has, in accordance with the terms\nof this Agreement, withdrawn or modified its recommendation or approval of\nthis Agreement, Chigen shall use all commercially reasonable efforts to\nsolicit from its shareholders proxies in favor of the approval of this\nAgreement and the Amalgamation, and shall take all other action reasonably\nnecessary or advisable to secure the vote or consent of shareholders\nrequired by the Companies Act to obtain such approvals. AES shall vote its\nshares of Class B Common Stock in favor of this Agreement and the\ntransactions contemplated hereby.\n\n           SECTION 4.3. No Solicitation. (a) Chigen shall not, nor shall it\npermit any of its subsidiaries to, nor shall it authorize or permit any\nofficer, director or employee of, or any investment banker, attorney or\nother advisor or representative of, Chigen or any of its subsidiaries to,\n(i) solicit or initiate, or encourage the submission of, any Takeover\nProposal (as hereinafter defined) or (ii) participate in any discussions or\nnegotiations regarding, or furnish to any person any information with\nrespect to, or take any other action to facilitate any inquiries or the\nmaking of any proposal that constitutes, or may reasonably be expected to\nlead to, any Takeover Proposal; provided, however, that, if in the opinion\nof the Special Committee, after consultation with counsel, such failure to\nact would be inconsistent with its fiduciary duties to Chigen or the\nholders of Class A Common Stock under applicable law, Chigen may, in\nresponse to an unsolicited Takeover Proposal, and subject to compliance\nwith Section 4.03(c), (A) furnish information with respect to Chigen to any\nperson pursuant to a confidentiality agreement and (B) participate in\nnegotiations regarding such Takeover Proposal. Without limiting the\nforegoing, it is understood that any violation of the restrictions set\nforth in the preceding sentence by any executive officer of Chigen or any\nof its subsidiaries or any investment banker, attorney or other advisor or\nrepresentative of Chigen or any of its subsidiaries, whether or not such\nperson is purporting to act on behalf of Chigen or any of its subsidiaries\nor otherwise, shall be deemed to be a breach of this Section 4.03(a) by\nChigen. For purposes of this Agreement, 'Takeover Proposal' means any\ninquiry, proposal or offer from any person relating to any direct or\nindirect acquisition or purchase of a substantial amount of assets of\nChigen or any of its subsidiaries (other than investors in the ordinary\ncourse of business) or of over 20% of any class of equity securities of\nChigen or any of its subsidiaries or any tender offer or exchange offer\nthat if consummated would result in any person beneficially owning 20% or\nmore of any class of equity securities of Chigen or any of its\nsubsidiaries, or any amalgamation, consolidation, business combination,\nsale of substantially all assets, recapitalization, liquidation,\ndissolution or similar transaction involving Chigen or any of its\nsubsidiaries other than the transactions contemplated by this Agreement, or\nany other transaction the consummation of which would reasonably be\nexpected to impede, interfere with, prevent or materially delay the\nAmalgamation or which would reasonably be expected to dilute materially the\nbenefits to AES of the transactions contemplated hereby.\n\n           (b) Except as set forth herein or as required by Bermuda law,\nthe Special Committee shall not (i) withdraw or modify, or propose to\nwithdraw or modify, in a manner adverse to AES or Sub, the approval or\nrecommendation by such Special Committee of the Amalgamation or this\nAgreement, (ii) approve or recommend, or propose to approve or recommend,\nany Takeover Proposal or (iii) enter into any agreement with respect to any\nTakeover Proposal. Notwithstanding the foregoing, if in the opinion of the\nSpecial Committee, after consultation with counsel, failure to do so would\nbe inconsistent with its fiduciary duties to Chigen or the holders of the\nClass A Common Stock under applicable law, the Special Committee may\n(subject to the terms of this and the following sentences) withdraw or\nmodify its approval or recommendation of the Amalgamation or this\nAgreement, approve or recommend a Superior Proposal (as hereinafter\ndefined), or enter into an agreement with respect to a Superior Proposal,\nin each case relating to the receipt of a Superior Proposal at any time\nafter the second business day following AES's receipt of written notice (a\n'Notice of Superior Proposal') advising AES that the Special Committee has\nreceived a Superior Proposal, specifying the material terms and conditions\nof such Superior Proposal and identifying the person making such Superior\nProposal; provided that Chigen shall not enter into an agreement with\nrespect to a Superior Proposal unless Chigen shall have furnished AES with\nwritten notice no later than 12:00 noon, New York City time, one day in\nadvance of any date that it intends to enter into such agreement (it being\nunderstood that such time periods may be concurrent). In addition, if\nChigen proposes to enter into an agreement with respect to any Takeover\nProposal, it shall concurrently with entering into such agreement pay, or\ncause to be paid, to AES the Expenses (as defined in Section 4.07(b)\nbelow). For purposes of this Agreement, a 'Superior Proposal' means any\nbona fide Takeover Proposal to acquire, directly or indirectly, for\nconsideration consisting of cash and\/or securities, more than 50% of the\nshares of Class A Common Stock then outstanding or all or substantially all\nthe assets of Chigen and otherwise on terms which the Special Committee\ndetermines in its good faith judgment (based on the advice of a financial\nadvisor of nationally recognized reputation) to be more favorable to Chigen\nor the holders of the Class A Common Stock than the Amalgamation.\n\n           (c) In addition to the obligations of Chigen set forth in\nSection 4.03(b), Chigen shall immediately advise AES orally and in writing\nof any request for information or of any Takeover Proposal, or any inquiry\nwith respect to or which could lead to any Takeover Proposal, the material\nterms and conditions of such request, Takeover Proposal or inquiry, and the\nidentity of the person making any such Takeover Proposal or inquiry. Chigen\nwill keep AES fully informed of the status and details (including\namendments or proposed amendments) of any such request, Takeover Proposal\nor inquiry.\n\n           (d) Nothing contained in this Section 4.03 shall prohibit Chigen\nfrom taking and disclosing to its  shareholders a position  contemplated by\nRule 14e-2(a)  under the Exchange Act or from making any  disclosure to the\nholders  of  Class  A  Common  Stock  if,  in the  opinion  of the  Special\nCommittee, after consultation with counsel, failure to so disclose would be\ninconsistent  with its fiduciary duties to Chigen or the holders of Class A\nCommon Stock under applicable law; provided that Chigen does not, except as\npermitted by Section 4.03(b) withdraw or modify,  or propose to withdraw or\nmodify,  its  position  with  respect  to the  Amalgamation  or  approve or\nrecommend, or propose to approve or recommend, a Takeover Proposal.\n\n           (e) For the purposes of determining compliance with the terms of\nthis Agreement, the parties hereto agree that the failure to take,\nfollowing receipt of a Takeover Proposal, an action which the Special\nCommittee reasonably believes is likely to result in a Superior Proposal\nwould be deemed to be a breach of the Special Committee's fiduciary duties.\n\n           SECTION 4.4. Access to Information; Confidentiality. Chigen\nshall, and shall cause each of its subsidiaries to, afford to AES, and to\nAES' officers, employees, accountants, counsel, financial advisers and\nother representatives, reasonable access during normal business hours\nduring the period prior to Effective Time to all their respective\nproperties, books, contracts, commitments, personnel and records and,\nduring such period, Chigen shall, and shall cause each of its subsidiaries\nto, furnish promptly to AES (a) a copy of each report, schedule,\nregistration statement and other document filed by it during such period\npursuant to the requirements of federal or state securities laws and (b)\nall other information concerning its business, properties and personnel as\nAES may reasonably request.\n\n           SECTION 4.5. Reasonable Efforts; Notification. (a) Upon the\nterms and subject to the conditions set forth in this Agreement, each of\nthe parties agrees to use all reasonable efforts to take, or cause to be\ntaken, all actions, and to do, or cause to be done, and to assist and\ncooperate with the other party in doing, all things necessary, proper or\nadvisable to consummate and make effective, in the most expeditious manner\npracticable, the Amalgamation and the transactions contemplated hereby,\nincluding (i) approvals from Governmental Entities and the making of all\nnecessary registrations and filings (including filings with Governmental\nEntities, if any) and the taking of all reasonable steps as may be\nnecessary to obtain an approval or waiver from, or to avoid an action or\nproceeding by, any Governmental Entity, (ii) the obtaining of all necessary\nconsents, approvals or waivers from third parties, (iii) the defending of\nany lawsuits or other legal proceedings, whether judicial or\nadministrative, challenging this Agreement or the consummation of any of\nthe transactions contemplated hereby, including seeking to have any stay or\ntemporary restraining order entered by any court or other Governmental\nEntity vacated or reversed and (iv) the execution and delivery of any\nadditional instruments necessary to consummate the transactions\ncontemplated hereby, and to fully carry out the purposes of, this\nAgreement. In connection with and without limiting the foregoing, Chigen\nand its Board of Directors shall (i) take all reasonable actions to ensure\nthat no state takeover statute or similar statute or regulation is or\nbecomes applicable to the Amalgamation, this Agreement, or any of the other\ntransactions contemplated hereby, and (ii) if any state takeover statute or\nsimilar statute or regulation becomes applicable to the Amalgamation, this\nAgreement, or the transactions contemplated hereby, take all reasonable\nactions to ensure that the Amalgamation and the transactions contemplated\nhereby may be consummated as promptly as practicable on the terms\ncontemplated by this Agreement and otherwise to minimize the effect of such\nstatute or regulation on the Amalgamation, this Agreement and the\ntransactions contemplated hereby. Notwithstanding the foregoing, Chigen,\nthe Special Committee and the Board of Directors of Chigen shall not be\nprohibited from taking any action permitted by the terms of this Agreement.\n\n           (b) Each of the parties shall give prompt notice to the other\nparties of (i) any material representation or warranty made by it contained\nin this Agreement that is qualified as to materiality becoming untrue or\ninaccurate in any respect or any such material representation or warranty\nthat is not so qualified becoming untrue or inaccurate in any material\nrespect or (ii) the failure by it to comply with or satisfy in any material\nrespect any material covenant, condition or agreement to be complied with\nor satisfied by it under this Agreement; provided, however, that no such\nnotification shall affect the representations, warranties, covenants or\nagreements of the parties or the conditions to the obligations of the\nparties under this Agreement.\n\n           SECTION 4.6. Employee Benefit Plans. AES and Chigen agree that\nany employee benefit or compensation plans, agreements or arrangements,\nincluding 'employee benefit plans' as defined in Section 3(3) of the\nEmployee Retirement Income Security Act of 1974, as amended ('ERISA'), to\nwhich Chigen or any subsidiary of Chigen is a party (together, the 'Chigen\nBenefit Plans') in effect at the date of this Agreement shall, to the\nextent practicable, remain in effect until otherwise determined after the\nEffective Time and, to the extent the Chigen Benefit Plans are not\ncontinued, it is the current nonbinding intent of the parties that employee\nbenefit plans of AES which are no less favorable, in the aggregate, to the\nemployees covered by such plans shall be provided. The parties shall take\nall actions necessary and appropriate to merge the AES China Generating Co.\nLtd. Profit Sharing and Employee Stock Ownership Plan (the 'Chigen Profit\nSharing Plan') into The AES Corporation Profit Sharing and Stock Ownership\nPlan if the Chigen Profit Sharing Plan has assets prior to the Effective\nTime.\n\n           SECTION 4.7. Fees and Expenses. (a) Except as provided below and\nin Section 4.01, all fees and expenses incurred in connection with the\nAmalgamation, this Agreement and the transactions contemplated hereby shall\nbe paid by the party incurring such fees or expenses, whether or not the\nAmalgamation is consummated.\n\n           (b) Chigen shall pay, or cause to be paid, in same day funds to\nAES all of AES's out-of-pocket expenses referred to in Section 4.07(a) in\nan amount up to but not to exceed $750,000 (the 'Expenses') upon demand if\n(i) AES terminates this Agreement under Section 6.01(d) as a result of the\noccurrence of an event under clause (ii) or (iii) of Section 6.01(d), (ii)\nChigen terminates this Agreement pursuant to Section 6.01(e) or (iii) prior\nto the termination of this Agreement (other than by Chigen pursuant to\nSection 6.01(f)), a Takeover Proposal shall have been made and within one\nyear of such termination, Chigen enters into an agreement with respect to,\napproves or recommends or takes any action to facilitate, such Takeover\nProposal. The amount of Expenses so payable shall be the amount set forth\nin an estimate delivered by AES, subject to upward or downward adjustment\n(not to be in excess of the amount set forth above) upon delivery of\nreasonable documentation therefor.\n\n           SECTION 4.8. Public Announcements. AES and Chigen will consult\nwith each other before issuing, and provide each other the opportunity to\nreview and comment upon, any press release or other public statements with\nrespect to the transactions contemplated by this Agreement, including the\nAmalgamation, and shall not issue any such press release or make any such\npublic statement prior to such consultation, except as may be required by\napplicable law, court process or by obligations pursuant to any listing\nagreement with any national securities exchange or national securities\nquotation system. The parties agree that the initial press release to be\nissued with respect to the transactions contemplated by this Agreement\nshall be in the form heretofore agreed to by the parties.\n\n           SECTION 4.9 Indemnification; Insurance. (a) Chigen shall not,\nand for a period of six years from and after the Effective Time AES and the\nAmalgamated Company shall not, amend the provisions of the Bye-Laws\nproviding for the indemnification of directors and officers of Chigen in\nany manner adverse to such directors and officers.\n\n           (b) For a period of six years after the Effective Time, AES\nshall cause to be maintained in effect the current policies of directors'\nand officers' liability insurance maintained by Chigen (provided that AES\nmay substitute therefor policies of at least the same coverage and amounts\ncontaining terms and conditions which are no less advantageous) with\nrespect to claims arising from facts or events which occurred before the\nEffective Time to the extent available.\n\n           The provisions of this Section 4.09 are intended to be for the\nbenefit of, and shall be enforceable by, each indemnified party, his or her\nheirs and representatives.\n\n           SECTION 4.10. Formation of Sub; Interim Operations of Sub;\nAmendment. (a) As soon as practicable, AES will cause the organization of\nSub as an exempted company limited by shares under the Companies Act, and\nwill deliver to Chigen complete and correct copies of Sub's memorandum of\nassociation and bye-laws.\n\n           (b) AES will form Sub solely for the purpose of engaging in the\ntransactions and not to engage in any business activities or conduct any\noperations other than in connection with the transactions contemplated\nhereby.\n\n           (c) As soon as practicable, AES and Chigen will agree, and AES\nwill cause Sub to agree, to an amendment to this Agreement whereby Sub will\nbecome a party to this Agreement. Such amendment will contain\nrepresentations, warranties, covenants and other agreements of Sub\nreasonably acceptable to AES and Chigen.\n\n           SECTION 4.11. Termination of the Stock Purchase and\nShareholder's Agreement. AES and Chigen agree that each of the Stock\nPurchase and Shareholder's Agreement, dated as of December 29, 1993, by and\nbetween AES and Chigen, and the Non-Competition and Non-Disclosure\nAgreement, dated as of December 29, 1993, and amended and restated as of\nFebruary 1, 1994, by and between AES and Chigen, shall be deemed terminated\nas of the Effective Time.\n\n                                 ARTICLE V\n\n                       Conditions to the Amalgamation\n\n           SECTION 5.1. Conditions to the Obligations of Each Party. The\nobligations of Chigen and AES to consummate the Amalgamation are subject to\nthe satisfaction of the following conditions:\n\n           (a) this Agreement and the transactions contemplated hereby\nshall have been approved and adopted by the requisite vote of the\nshareholders of Chigen in accordance with the Companies Act and Chigen's\nBye-laws;\n\n           (b) no Governmental Authority shall have enacted, issued,\npromulgated, enforced or entered any order, executive order, stay, decree,\njudgment or injunction (each an 'Order') or statute, rule or regulation\nwhich is in effect and which has the effect of making the Amalgamation\nillegal or otherwise prohibiting consummation of the Amalgamation;\n\n           (c) the Registration Statement shall have been declared\neffective, and no stop order suspending the effectiveness of the\nRegistration Statement shall be in effect;\n\n           (d) AES and Chigen shall have received from the NYSE evidence\nthat the shares of AES Common Stock to be issued to the shareholders of\nChigen in the Amalgamation shall be listed on the NYSE immediately\nfollowing the Effective Time;\n\n           (e) Chigen shall have received the consent of the Bermuda\nMinister of Finance to amalgamate with Sub;\n\n           (f) all other consents, authorizations, orders and approvals of\n(or filings or registrations with) any third party or governmental\ncommission, board or other regulatory body required in connection with the\nexecution, delivery and performance of this Agreement shall have been\nobtained or made, except for filings in connection with the Amalgamation\nand any other documents required to be filed after the Effective Time and\nexcept where the failure to have obtained or made any such consent,\nauthorization, order, approval, filing or registration would not have a\nMaterial Adverse Effect in respect of Chigen or AES following the Effective\nTime; and\n\n           (g) AES and Chigen shall have received an opinion of Chadbourne\n&amp; Parke LLP, special counsel to AES, in form and substance reasonably\nacceptable to AES and reasonably acceptable to Skadden, Arps, Slate,\nMeagher &amp; Flom LLP, special counsel to Chigen, substantially to the effect\nthat the Amalgamation will be treated for federal income tax purposes as a\nreorganization within the meaning of Section 368(a) of the Code and that\nAES, Sub and Chigen will each be a party to that reorganization within the\nmeaning of Section 368(b) of the Code.\n\n           SECTION 5.2. Conditions to the Obligations of AES and Sub. The\nobligations of AES and Sub to consummate the Amalgamation are subject to\nthe satisfaction or waiver by AES of the following further conditions:\n\n           (a) there shall not be threatened or pending by any Governmental\nEntity any suit, action or proceeding, (i) challenging the acquisition by\nAES of Chigen, seeking to restrain or prohibit the consummation of the\nAmalgamation or the performance of any of the other transactions\ncontemplated by this Agreement, or seeking to obtain from the Chigen or\nAES, any damages that are material in relation to Chigen and its\nsubsidiaries taken as whole, (ii) seeking to prohibit or limit the\nownership or operation by Chigen, AES or any of their respective\nsubsidiaries of a material portion of the business or assets of Chigen and\nits subsidiaries, taken as a whole, or AES and its subsidiaries, taken as a\nwhole, or to compel Chigen or AES to dispose of or hold separate any\nmaterial portion of the business or assets of Chigen and its subsidiaries,\ntaken as a whole, or AES and its subsidiaries, taken as a whole, as a\nresult of the Amalgamation or any of the other transactions contemplated by\nthis Agreement, (iii) seeking to prohibit AES or any other subsidiary of\nAES from effectively controlling in any material respect the business or\noperations of Chigen and its subsidiaries, taken as a whole, or (iv) which\notherwise is reasonably likely to have a Material Adverse Effect in respect\nof Chigen;\n\n           (b) there shall not be any statute, rule, regulation, judgment,\norder or injunction enacted, entered, enforced, promulgated or deemed\napplicable to the Amalgamation, or any other action shall be taken by any\nGovernmental Entity or court, that is reasonably likely to result, directly\nor indirectly, in any of the consequences referred to in clauses (i)\nthrough (iv) of paragraph (a) above;\n\n           (c) there shall not have occurred any Material Adverse Change in\nrespect of Chigen;\n\n           (d) all of the representations and warranties of Chigen set\nforth in this Agreement that are qualified as to materiality shall be true\nand correct and all such representations and warranties that are not so\nqualified shall be true and correct in all material respects, in each case\nas of the date of this Agreement and as of the Closing Date;\n\n           (e) Chigen shall not have failed to perform in any material\nrespect any material obligation or to comply in any material respect with\nany material agreement or covenant of Chigen to be performed or complied\nwith by it under this Agreement; and\n\n           (f) the fraction of a share of AES Common Stock to be received\nwith respect to each share of Class A Common Stock pursuant to Section\n2.01(c) shall not be more than 0.31 of a share.\n\n           SECTION 5.3. Conditions to the Obligations of Chigen. The\nobligation of Chigen to consummate the Amalgamation is subject to the\nsatisfaction or waiver by Chigen of the following further conditions:\n\n           (a) all of the representations and warranties of AES set forth\nin this Agreement that are qualified as to materiality shall be true and\ncorrect and all such representations and warranties that are not so\nqualified shall be true and correct in all material respects, in each case\nas of the date of this Agreement and as of the Closing Date;\n\n           (b) AES shall not have failed to perform in any material respect\nany material obligation or to comply in any material respect with any\nmaterial agreement or covenant of AES to be performed or complied with by\nit under this Agreement;\n\n           (c) Merrill Lynch &amp; Co. shall not have withdrawn the Opinion;\nand\n\n           (d) the fraction of a share of AES Common Stock to be received\nwith respect to each share of Class A Common Stock pursuant to Section\n2.01(c) shall not be less than 0.28 of a share.\n\n                                 ARTICLE VI\n\n                     Termination, Amendment and Waiver\n\n           SECTION 6.1. Termination. This Agreement may be terminated and\nthe Amalgamation and the other transactions contemplated hereby may be\nabandoned at any time prior to the Effective Time, notwithstanding any\nrequisite approval and adoption of this Agreement and the transactions\ncontemplated hereby, as follows:\n\n           (a) by mutual written consent duly authorized by the Boards of\nDirectors (including the Special Committee) of each of AES and Chigen;\n\n           (b) by either AES or Chigen: (i) if as a result of the failure,\noccurrence or existence of any of the conditions set forth in Article V of\nthis Agreement the Amalgamation shall not have occurred on or before March\n31, 1997; provided, however, that the right to terminate this Agreement\npursuant to this Section 6.01(b)(i) shall not be available to any party\nwhose failure to perform any of its obligations under this Agreement\nresults in the failure, occurrence or existence of any such condition; or\n(ii) if any Governmental Entity shall have issued an Order permanently\nenjoining, restraining or otherwise prohibiting the Amalgamation and such\nOrder shall have become final and nonappealable;\n\n           (c) by AES in the event of a breach by Chigen of any\nrepresentation, warranty, covenant or other agreement contained in this\nAgreement or any other development which (i) would give rise to the failure\nof a condition set forth in Sections 5.02(d) and 5.02(e) and (ii) cannot be\nor has not been cured within 30 days after the giving of written notice to\nChigen;\n\n           (d) by AES if (i) the Special Committee shall have withdrawn or\nmodified in a manner adverse to AES its approval or recommendation of the\nAmalgamation or this Agreement, (ii) the Special Committee shall have\napproved or recommended any Takeover Proposal or (iii) Chigen shall have\nentered into any agreement with respect to any Superior Proposal in\naccordance with Section 4.03(b) of this Agreement;\n\n           (e) by AES or Chigen if Chigen enters into a definitive\nagreement in accordance with Section 4.03, provided that Chigen has\ncomplied with all provisions thereof, including the notice provisions\ntherein, and provided that Chigen makes simultaneous payment of the\nExpenses; or\n\n           (f) by Chigen in the event of a breach by AES in any material\nrespect of any representation, warranty, covenant or other agreement\ncontained in this Agreement, which (A) would give rise to the failure of a\ncondition set forth in Sections 5.03(a) and 5.03(b) and (B) cannot be or\nhas not been cured within 30 days after the giving of written notice to\nAES, except, in any case, such failures which, in the aggregate, would not\nhave a Material Adverse Effect in respect of AES.\n\n           SECTION 6.2. Effect of Termination. In the event of termination\nof this Agreement by either Chigen or AES as provided in Section 6.01, this\nAgreement shall forthwith become void and have no effect, without any\nliability or obligation on the part of AES or Chigen, other than the\nprovisions of Section 3.01(i), Section 3.02(g), Section 4.01, Section 4.07,\nthis Section 6.02 and Article VII and except to the extent that such\ntermination results from the willful and material breach by a party of any\nof its representations, warranties, covenants or agreements set forth in\nthis Agreement.\n\n           SECTION 6.3. Amendment. This Agreement may be amended by the\nparties at any time. This Agreement may not be amended except by an\ninstrument in writing signed on behalf of each of the parties.\n\n           SECTION 6.4. Extension; Waiver. At any time prior to the\nEffective Time, the parties may (a) extend the time for the performance of\nany of the obligations or other acts of the other parties, (b) waive any\ninaccuracies in the representations and warranties contained in this\nAgreement or in any document delivered pursuant to this Agreement or (c)\nwaive compliance with any of the agreements or conditions contained in this\nAgreement. Any agreement on the part of a party to any such extension or\nwaiver shall be valid only if set forth in an instrument in writing signed\non behalf of such party. The failure of any party to this Agreement to\nassert any of its rights under this Agreement or otherwise shall not\nconstitute a waiver of those rights.\n\n           SECTION 6.5. Procedure for Termination, Amendment, Extension or\nWaiver. A termination of this Agreement pursuant to Section 6.01, an\namendment of this Agreement pursuant to Section 6.03, an extension or\nwaiver pursuant to Section 6.04, or any other action pursuant to this\nAgreement shall, in order to be effective, require, in the case of Chigen,\naction by the Special Committee, or action by the duly authorized designee\nof such Special Committee. Any action permitted to be taken by Chigen\npursuant to this Agreement may be taken by the Special Committee on behalf\nof Chigen.\n\n                                ARTICLE VII\n\n                             General Provisions\n\n           SECTION 7.1. Nonsurvival of Representations and Warranties;\nEffect of Breach of Representation or Warranty. (a) None of the\nrepresentations and warranties in this Agreement or in any instrument\ndelivered pursuant to this Agreement shall survive after the Effective\nTime. This Section 7.01(a) shall not limit any covenant or agreement of the\nparties which by its terms contemplates performance after such date.\n\n           (b) For all purposes of this Agreement, Chigen shall be deemed\nnot to have breached any of its representations and warranties if any\nsenior officer of AES (other than any such senior officer who is also an\nofficer of Chigen) has knowledge of such breach at the time this Agreement\nis delivered by AES. No party hereto shall have any liability for damages\nto the other party for the breach of any of its representations or\nwarranties contained herein, whether before or after the Effective Time; it\nbeing understood that the other party's sole remedy shall be to not\nconsummate the Amalgamation and\/or terminate this Agreement, in either\ninstance in accordance with the terms of this Agreement. Notwithstanding\nanything to the contrary contained in the previous sentence, this Section\n7.01(b) shall not limit AES's rights under Section 4.07(b).\n\n           SECTION 7.2. Notices. All notices, requests, claims, demands and\nother communications under this Agreement shall be in writing and shall be\ndeemed given if delivered personally or sent by overnight courier\n(providing proof of delivery) to the parties at the following addresses (or\nat such other address for a party as shall be specified by like notice):\n\n           (a) if to AES, to\n\n                  The AES Corporation\n                  1001 N. 19th Street\n                  Arlington, VA 22209\n                  Facsimile:  (703) 528-4510\n                  Attention:  William R. Luraschi, Esq.\n\n                  with copies to:\n\n                  Chadbourne &amp; Parke LLP\n                  30 Rockefeller Plaza\n                  New York, NY 10112\n                  Facsimile:  (212) 541-5369\n                  Attention:  Philip D. Beaumont, Esq.\n\n           (b)  if to Chigen, to\n\n                  AES China Generating Co. Ltd.\n                  9-F Allied Capital Resources Building\n                  32-38 Ice House Street\n                  Central Hong Kong\n                  Facsimile: 011-852-2530-1673\n                  Attention: Special Committee of the\n                  Class A Directors\n\n                  with copies to:\n\n                  Skadden, Arps, Slate, Meagher &amp; Flom LLP\n                  919 Third Avenue\n                  New York, New York  10022\n                  Facsimile: (212) 735-2000\n                  Attention: David J. Friedman, Esq.\n\n           SECTION 7.3. Definitions. For purposes of this Agreement:\n\n           (a) an 'affiliate' of any person means another person that\ndirectly or indirectly, through one or more intermediaries, controls, is\ncontrolled by, or is under common control with, such first person;\n\n           (b) 'Liens' means any and all pledges, claims, liens or\nencumbrances and security interests of any kind or nature whatsoever;\n\n           (c) 'Material Adverse Change' or 'Material Adverse Effect'\nmeans, when used in connection with Chigen or AES, any change or effect\nthat is materially adverse to the business, financial condition or results\nof operations of such party and its subsidiaries taken as a whole;\n\n           (d) 'person' means an individual, corporation, partnership,\njoint venture, association, trust, unincorporated organization or other\nentity;\n\n           (e) a 'subsidiary' of any person means another person, an amount\nof the voting securities, other voting ownership or voting partnership\ninterests of which is sufficient to elect at least a majority of its Board\nof Directors or other governing body (or, if there are no such voting\ninterests, 50% or more of the equity interests of which) is owned directly\nor indirectly by such first person;\n\n           (f) 'Superior Proposal' has the meaning assigned thereto in\nSection 4.03(b); and\n\n           (g) 'Takeover Proposal' has the meaning assigned thereto in\nSection 4.03(a).\n\n           SECTION 7.4. Interpretation. When a reference is made in this\nAgreement to a Section, Exhibit or Schedule, such reference shall be to a\nSection of, or an Exhibit or Schedule to, this Agreement unless otherwise\nindicated. The table of contents and headings contained in this Agreement\nare for reference purposes only and shall not affect in any way the meaning\nor interpretation of this Agreement. Whenever the words 'include',\n'includes' or 'including' are used in this Agreement, they shall be deemed\nto be followed by the words 'without limitation.'\n\n           SECTION 7.5. Counterparts. This Agreement may be executed in one\nor more counterparts, all of which shall be considered one and the same\nagreement and shall become effective when one or more counterparts have\nbeen signed by each of the parties and delivered to the other parties.\n\n           SECTION 7.6. Entire Agreement; No Third-Party Beneficiaries.\nThis Agreement constitutes the entire agreement, and supersedes all prior\nagreements and understandings, both written and oral, between the parties\nwith respect to the subject matter of this Agreement and except for the\nprovisions of Section 4.06 and Section 4.09, are not intended to confer\nupon any person other than the parties hereto any rights or remedies\nhereunder.\n\n           SECTION 7.7. Governing Law. This Agreement shall be governed by,\nand construed in accordance with, the laws of the State of New York,\nregardless of the laws that might otherwise govern under applicable\nprinciples of conflicts of laws thereof, except that all provisions in this\nAgreement relating to the authorization, effectuation and manner and effect\nof the Amalgamation shall be governed by the laws of Bermuda.\n\n           SECTION 7.8. Assignment. Neither this Agreement nor any of the\nrights, interests or obligations under this Agreement shall be assigned, in\nwhole or in part, by operation of law or otherwise by any of the parties\nwithout the prior written consent of the other party. Subject to the\npreceding sentence, this Agreement will be binding upon, inure to the\nbenefit of, and be enforceable by, the parties and their respective\nsuccessors and assigns.\n\n           SECTION 7.9. Enforcement. The parties agree that irreparable\ndamage would occur in the event that any of the provisions of this\nAgreement were not performed in accordance with their specific terms or\nwere otherwise breached. It is accordingly agreed that the parties shall be\nentitled to an injunction or injunctions to prevent breaches of this\nAgreement and to enforce specifically the terms and provisions of this\nAgreement in any court of the United States located in the State of New\nYork or in any New York state court, this being in addition to any other\nremedy to which they are entitled at law or in equity. In addition, each of\nthe parties hereto (a) consents to submit itself to the personal\njurisdiction of any federal court located in the State of New York or any\nNew York state court in the event any dispute arises out of this Agreement\nor any of the transactions contemplated by this Agreement, (b) agrees that\nit will not attempt to deny or defeat such personal jurisdiction by motion\nor other request for leave from any such court and (c) agrees that it will\nnot bring any action relating to this Agreement or any of the transactions\ncontemplated by this Agreement in any court other than a federal or state\ncourt sitting in the State of New York.\n\n\n           IN WITNESS WHEREOF, AES and Chigen have caused this Agreement to\nbe signed by their respective officers thereunto duly authorized, all as of\nthe date first written above.\n\nTHE AES CORPORATION\n\n\nBy:   \/s\/  Roger W. Sant\nName:   Roger W. Sant\nTitle:  Chairman Of the Board\n\n\nAES CHINA GENERATING CO. LTD.\n\n\nBy:  \/s\/ Paul T. Hanrahan\nName:   Paul T. Hanrahan\nTitle:  President and Chief\n          Executive\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6586],"corporate_contracts_industries":[9534],"corporate_contracts_types":[9622,9626],"class_list":["post-42982","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-aes-corp","corporate_contracts_industries-utilities__electric","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42982","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42982"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42982"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42982"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42982"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}