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Oglethorpe Power Corp. v. Hartwell Energy Ltd. Partnership

Third party's sale of stock did not trigger defendant's right of first refusal under an agreement between plaintiff and defendant, since third party was not plaintiff's affiliate as defined in the agreement.

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Hartwell Energy Limited Partnership the Partnership sued Oglethorpe Power Corporation, seeking a declaratory judgment that a certain stock transfer did not trigger Oglethorpe’s right of first refusal under an agreement between the parties. The trial court granted summary judgment to the Partnership, and Oglethorpe appeals.1 For reasons discussed below, we affirm.

The essential facts in this case are undisputed. In June 1992, Oglethorpe and the Partnership entered into a long-term agreement the Agreement, under which Oglethorpe agreed to purchase electric power generated from the Partnership’s production facility in Hart County. At the time the Agreement was executed, the Partnership had one general partner and one limited partner, both of which were ultimately controlled by Transco Energy Company through a chain of subsidiary companies. The Agreement stated that “the continued control of the Partnership by Transco Energy is a material factor in Oglethorpe Power’s willingness to assume certain risks attendant to this Agreement,” and prohibited Transco Energy or its affiliates from selling their interests in the Partnership without Oglethorpe’s consent. The Agreement also gave Oglethorpe a right of first refusal in the event that the Partnership or one of its “Affiliates” desired to sell a “Transfer Interest,” as such terms were defined in the Agreement.

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