EXHIBIT 99.27
STOCKHOLDER AGREEMENT
This Stockholder Agreement dated as of September 26, 2001 is
by and between Reliant Resources, Inc., a corporation organized under the laws
of Delaware ("Parent"), and each of the parties listed on the signature pages
hereto (each, a "Stockholder").
WHEREAS, Orion Power Holdings, Inc., a company organized under
the laws of Delaware (the "Company"), Reliant Resources, Inc., a corporation
organized under the laws of Delaware and a wholly owned subsidiary of Parent
("Merger Sub"), and the Parent are entering into an Agreement and Plan of Merger
dated as of the date hereof (the "Merger Agreement");
WHEREAS, each Stockholder is the registered and beneficial
owner of that number of shares of common stock, par value $0.01, of the Company
(the "Company Common Stock") set forth opposite such Stockholder's name on Annex
A hereto; and
WHEREAS, as a condition to the willingness of Parent to enter
into the Merger Agreement, and as an inducement to it to do so, each Stockholder
has agreed for the benefit of Parent as set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained in this
Agreement, the parties hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. DEFINITIONS FROM MERGER AGREEMENT. Terms
defined in the Merger Agreement and used but not defined herein having the
meanings assigned to such terms in the Merger Agreement.
Section 1.02. STOCKHOLDER SHARES. With respect to each
Stockholder, the term "Stockholder Shares" shall mean (i) the Company Common
Stock owned by such Stockholder on the date hereof, (ii) any shares of stock of
the Company acquired by the Stockholder after the date hereof and (iii) any
capital stock, securities or other property into which any Stockholder Shares
shall have been or shall be converted or changed, whether by amendment to the by
laws or certificate of incorporation of the Company (or similar charter
documents), merger, consolidation, reorganization, capital change or otherwise.
ARTICLE II
COVENANTS OF THE STOCKHOLDER
Section 2.01. AGREEMENT TO VOTE. At any meeting of the
stockholders of the Company held prior to the earlier of (i) the Effective Time
of the Merger and (ii) the termination of the Merger Agreement in accordance
with its terms (such earlier time being herein referred to as the "Voting
Termination Date"), however called, and at every adjournment or postponement
thereof prior to the Voting Termination Date, or in connection with any written
consent of or any other action by the stockholders of the Company given prior to
the Voting Termination Date, each Stockholder shall vote or cause to be voted
such Stockholder's Stockholder Shares (a) in favor of the approval of the Merger
Agreement and each of the other transactions contemplated by the Merger
Agreement, and any actions required in furtherance hereof and thereof, and (b)
against any Acquisition Proposal that is inconsistent with the transactions
contemplated by the Merger Agreement. No Stockholder shall enter into any
agreement or understanding with any person prior to the Voting Termination Date,
directly or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of the Stockholder Shares in any manner inconsistent with
the preceding sentence.
Section 2.02. PROXIES AND VOTING AGREEMENTS. Each Stockholder
hereby revokes any and all previous proxies granted with respect to matters set
forth in Section 2.01. Prior to the Voting Termination Date, each Stockholder
shall not, directly or indirectly, except as contemplated hereby, grant any
proxies or powers of attorney with respect to matters set forth in Section 2.01,
deposit any of the Stockholder Shares or enter into a voting agreement with
respect to any of the Stockholder Shares.
Section 2.03. NO SOLICITATION.
(a) After the date hereof and prior to the Voting Termination
Date, each Stockholder and each of its subsidiaries shall not, and such
Stockholder shall direct and use its commercially reasonable efforts to cause
its and its subsidiaries' officers, directors, partners and employees, and any
attorney, accountant, investment banker, financial advisor or other agent
retained by it or any of its subsidiaries in their capacity as an agent or
representative of the Stockholder (collectively, the "Stockholder
Representatives") not to, directly or indirectly, initiate, solicit or negotiate
or provide nonpublic or confidential information to facilitate, any proposal or
offer (including, without limitation, any proposal or offer to Company
stockholders) with respect to an Acquisition Transaction, it being understood
for purposes of this Agreement that Xxxxxxx, Xxxxx & Co. is not and shall not be
deemed to be a Stockholder Representative to any Stockholder.
(b) Each Stockholder shall notify Parent orally and in
writing as soon as reasonably practicable after receipt of any Acquisition
Proposal which is directed to such Stockholder in its capacity as such. Each
Stockholder will (i) inform Parent, on a timely basis, of any material changes
or modifications in the material terms of any such Acquisition Proposal, and
(ii) provide to Parent as soon as reasonably practicable after receipt or
delivery thereof copies of all correspondence and other written material sent or
provided to such Stockholder in its capacity as such from any third party in
connection with any Acquisition Proposal. Any written notice under this Section
2.03 may be given by facsimile with receipt confirmed or by personal delivery.
(c) Each Stockholder in its capacity as such agrees that, to
the extent it has not already done so, it will immediately cease and cause to be
terminated any existing activities, discussions or negotiations by the
Stockholder in its capacity as such or any Stockholder Representative with any
person other than Parent conducted heretofore with respect to any Acquisition
Proposal.
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(d) Prior to the Voting Termination Date, no Stockholder in
its capacity as such shall enter into any agreement with any person that
provides for, or is designed to facilitate, an Acquisition Proposal.
(e) The provisions of this Section 2.03 do not prohibit or
restrict in any manner any Stockholder Representative who is also a director,
officer, employee, investment banker, financial advisor or other agent retained
by the Company or any of its subsidiaries from taking actions permitted by
Section 5.03 of the Merger Agreement or, if applicable, from performing his
duties (including fiduciary duties) as a director or officer of the Company.
Section 2.04. TRANSFER OF STOCKHOLDER SHARES BY THE
STOCKHOLDER. Prior to the Voting Termination Date, no Stockholder shall (a)
subject any of such Stockholder's Stockholder Shares to, or suffer to exist on
any of such Stockholder Shares, any lien, pledge, security interest, charge or
other encumbrance or restriction, other than pursuant to this Agreement, or (b)
sell, transfer, assign, convey or otherwise dispose of any interest in or title
to any of such Stockholder Shares or any options or warrants to acquire, or
securities convertible into, shares of Company Common Stock, other than a
disposition by operation of law pursuant to the Merger. Notwithstanding any
other provision in this Agreement, nothing in this Agreement shall prohibit the
Stockholder from transferring any of the Stockholder Shares or Warrants to any
affiliate of the Stockholder who agrees to be bound by the terms of this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF EACH STOCKHOLDER
Each Stockholder represents and warrants (severally but not
jointly) to Parent that:
Section 3.01. OWNERSHIP. Such Stockholder is as of the date
hereof the beneficial and legal owner of the Stockholder Shares set forth
opposite such Stockholder's name on Annex A to this Agreement, such Stockholder
has the sole right to vote such Stockholder Shares and there is no restriction
on rights of disposition or other lien, pledge, security interest, charge or
other encumbrance or restriction pertaining to such Stockholder Shares. None of
such Stockholder Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Stockholder
Shares, and no proxy, power of attorney or other authorization has been granted
with respect to any of such Stockholder Shares.
Section 3.02. AUTHORITY AND NON-CONTRAVENTION. Such
Stockholder is an entity duly formed and validly existing under the laws of the
jurisdiction in which it is formed or organized. Such Stockholder has the right,
power and authority, and such Stockholder has been duly authorized by all
necessary action (including consultation, approval or other action by or with
any other person), to execute, deliver and perform this Agreement and consummate
the transactions contemplated hereby. Such actions by such Stockholder (a)
require no action by or in respect of, or filing with, any Governmental Entity
with respect to the Stockholder, except such filings as may be required with the
SEC and (b) do not and will not contravene or constitute
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default under any provision of applicable law or regulation or any agreement,
judgment, injunction, order, decree or other instrument binding on such
Stockholder or result in the imposition of any lien, pledge, security interest,
charge or other encumbrance or restriction on any of the Stockholder Shares
(other than as provided in this Agreement with respect to such Stockholder
Shares).
Section 3.03. BINDING EFFECT. This Agreement has been duly
executed and delivered by such Stockholder and is the valid and binding
agreement of such Stockholder, enforceable against such Stockholder in
accordance with its terms, except as enforcement may be limited by bankruptcy,
insolvency, moratorium or other similar laws relating to creditors' rights
generally and by equitable principles to which the remedies of specific
performance and injunctive and similar forms of relief are subject.
Section 3.04. TOTAL SHARES. The Stockholder Shares set forth
opposite such Stockholder's name on Annex A hereto are the only shares of the
Company owned beneficially by such Stockholder or registered in the name of such
Stockholder as of the date hereof, and such Stockholder does not have any option
to purchase or right to subscribe for or otherwise acquire any securities of the
Company and has no other interest in or voting rights with respect to any other
securities of the Company, other than warrants to purchase Company Common Stock.
Section 3.05. FINDER'S FEES. No investment banker, broker or
finder is entitled to a commission or fee from the Company, Parent, or any other
party to the Merger Agreement in respect of this Agreement based upon any
arrangement or agreement made by or on behalf of such Stockholder, except as
otherwise provided in the Merger Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to each Stockholder that:
Section 4.01. CORPORATE POWER AND AUTHORITY. Parent is a
corporation duly formed and validly existing under the laws of Delaware. Parent
has all requisite corporate power and authority to enter into this Agreement and
to perform its obligations hereunder. The execution, delivery and performance by
Parent of this Agreement and the consummation by Parent of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Parent.
Section 4.02. BINDING EFFECT. This Agreement has been duly
executed and delivered by Parent and is the valid and binding agreement of
Parent, enforceable against Parent in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, moratorium or other
similar laws relating to creditors' rights generally and by equitable principles
to which the remedies of specific performance and injunctive and similar forms
of relief are subject.
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ARTICLE V
MISCELLANEOUS
Section 5.01. EXPENSES. Each party hereto shall pay its own
expenses (including, without limitation, the fees, costs and disbursements of
counsel and other advisors) incident to preparing for, entering into and
carrying out this Agreement and the consummation of the transactions
contemplated hereby, including, without limitation, any action at law or in
equity to enforce or interpret the terms of this Agreement.
Section 5.02. SPECIFIC PERFORMANCE. Each Stockholder agrees
that Parent would be irreparably damaged if for any reason such Stockholder
fails to perform any of such Stockholder's obligations under this Agreement, and
that Parent would not have an adequate remedy at law for money damages in such
event. Accordingly, Parent shall be entitled to seek specific performance and
injunctive and other equitable relief to enforce the performance of this
Agreement by any Stockholder. This provision is without prejudice to any other
rights that Parent may have against any Stockholder for any failure to perform
its obligations under this Agreement.
Section 5.03. NOTICES. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
to, or mailed by registered or certified mail (return receipt requested) if and
when received by, or sent via facsimile if and when received by, the parties at
the following addresses (or at such other address or addresses for a party as
shall be specified by like notice):
(a) if to Parent, to: with a copy to:
Reliant Resources, Inc. Xxxxx Xxxxx L.L.P.
0000 Xxxxxxxxx Xxx Xxxxx Xxxxx
Xxxxxxx, Xxxxx 00000 910 Louisiana
Attention: Xxxxxxx X. Xxxxx Xxxxxxx, Xxxxx 00000
Facsimile: 000-000-0000 Attention: Xxxxxxx X. Xxxxxx
Facsimile: 000-000-0000
(b) if to any Stockholder, to: with copies to:
Xxxxxxx, Sachs & Co. Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000 Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X'Xxxxx Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Section 5.04. INTERPRETATION. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement unless otherwise indicated. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the word "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words
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"without limitation." Unless the context otherwise requires, "or" is disjunctive
but not necessarily exclusive, and words in the singular include the plural and
in the plural include the singular. The term "person" is to be interpreted
broadly to include any corporation, partnership, trust, limited liability
company, government or other entity and any group (as used with respect to
Section 13(d) of the Exchange Act).
Section 5.05. COUNTERPARTS. This Agreement may be executed in
two or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when two or more counterparts have been
signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
Section 5.06. ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES.
This Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereto and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 5.07. GOVERNING LAW. This Agreement shall be governed
and construed in accordance with the laws of the State of New York, without
giving effect to the principles of conflicts of law thereof. In addition, each
of the parties hereto (a) consents to submit itself to the personal jurisdiction
of the Chancery Court or other Courts of the State of Delaware in the event any
dispute arises out of this Agreement or the transactions contemplated by this
Agreement, (b) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (c)
agrees that it will not bring any action relating to this Agreement or the
transactions contemplated by this Agreement in any court other than the Chancery
Court or other Courts of the State of Delaware, and each of the parties
irrevocably waives the right to trial by jury, and (d) each of the parties
irrevocably consents to service of process by first class certified mail, return
receipt requested, postage prepaid, to the address at which such party is to
receive notice.
Section 5.08. ASSIGNMENT. Neither this Agreement nor any of
the rights, interests or obligations hereunder shall be assigned by any of the
parties hereto (whether by operation of law or otherwise) without the prior
written consent of the other party. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. All costs and expenses
incurred in connection with this Agreement shall be paid by the party incurring
such cost or expense. Notwithstanding any other provision in this Agreement,
nothing in this Agreement shall prohibit the Stockholder from assigning this
Agreement without the consent of Parent to any affiliate of the Stockholder who
agrees to be bound by the terms of this Agreement.
Section 5.09. AMENDMENTS; TERMINATION. This Agreement may not
be modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto. This Agreement
shall terminate (a) upon the mutual agreement of the parties hereto or (b)
immediately upon the earliest of (x) the date on which the Merger Agreement is
terminated in accordance with its terms, (y) the Effective Time of the Merger,
and (z) an amendment to the Merger Agreement which has not been consented to in
writing in advance by each Stockholder, other than a ministerial amendment that
would not
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adversely affect any Stockholder or the consideration to be received under the
Merger Agreement.
Section 5.10. CERTAIN EVENTS. Each Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Stockholder
Shares set forth opposite such Stockholder's name in Annex A hereto and shall be
binding upon any person to which legal or beneficial ownership of such shares
shall pass, whether by operation of law or otherwise.
Section 5.11. SEVERABILITY. Whenever possible, each provision
or portion of any provision of this Agreement will be interpreted in such manner
as to be effective and valid but if any provision or portion of any provision of
this Agreement is held to be invalid, illegal or unenforceable in any respect,
such invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement will be reformed,
construed and enforced as if such invalid, illegal or unenforceable provision or
portion of any provision had never been contained herein. The parties shall
endeavor in good faith negotiations to replace any invalid, illegal or
unenforceable provision with a valid provision the effects of which come as
close as possible to those of such invalid, illegal or unenforceable provision.
Section 5.12. OBLIGATIONS. The obligations of the
Stockholders under this Agreement are several but not joint.
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IN WITNESS WHEREOF, the Parent and each Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
[SEE ATTACHED]
---------------------------------------------
By
----------------------------------------
Name:
Title:
RELIANT RESOURCES, INC.
By
----------------------------------------
Name:
Title:
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GS CAPITAL PARTNERS III, L.P.
BY: GS Advisors III, L.L.C.
Its General Partner
BY:
------------------------------------
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
BY: GS Advisors III, L.L.C.
Its General Partner
BY:
------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO. VERWALTUNGS GmbH
BY:
Name:
Title:
GS CAPITAL PARTNERS II, L.P.
BY: GS Advisors, L.L.C.
Its General Partner
BY:
------------------------------------
Name:
Title:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
BY: GS Advisors II, L.L.C.
Its General Partner
BY:
------------------------------------
Name:
Title:
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
BY:
------------------------------------
Name:
Title:
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XXXXX XXXXXX XXXX 0000, L.P.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
BY:
------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXX 0000, X.X.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
BY:
------------------------------------
Name:
Title:
XXXXX XXXXXX XXXX 0000, X.X.
BY: Xxxxx Xxxxxx 0000, X.X.X.
Its General Partner
BY:
------------------------------------
Name:
Title:
XXXXXX XXXXXX XXXXXXX XXXXXXXXXXXXX XXXX
0000, L.P.
BY: Bridge Street Special
Opportunities 2000, L.L.C.
Its General Partner
BY:
------------------------------------
Name:
Title:
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ANNEX A
Stockholder Shares Owned
----------- ------------
GS Capital Partners II, L.P.
14,984,097
GS Capital Partners II Offshore, L.P.
5,956,795
GS Capital Partners II Germany C.L.P.
552,685
GS Capital Partners III, L.P.
8,796,383
GS Capital Partners III Offshore, L.P.
2,418,232
GS Capital Partners III Germany C.L.P.
406,086
Stone Street Fund 1998, L.P.
000,000
Xxxxxx Xxxxxx Xxxx 0000, L.P.
000,000
Xxxxx Xxxxxx Xxxx 0000, L.P.
000,000
Xxxxxx Xxxxxx Special Opportunities Fund 2000, L.P.
131,720
--------------------
34,450,000
====================
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