EXHIBIT 99.5
FORM OF STOCKHOLDERS' LOCK-UP AGREEMENT
Orion Power Holdings, Inc.
Lock-up Agreement
November 17, 2000
Xxxxxxx, Xxxxx & Co.
Credit Suisse First Boston Corporation
Deutsche Bank Securities Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Re: Orion Power Holdings, Inc. - Lock-Up Agreement
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Ladies and Gentlemen:
The undersigned understands that Xxxxxxx, Xxxxx & Co., Credit Suisse
First Boston Corporation, Deutsche Bank Securities Inc., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated and Xxxxxx Xxxxxxx & Co. Incorporated,
as representatives (the "Representatives"), propose to enter into an
underwriting agreement (the "Underwriting Agreement") on behalf of the
several Underwriters named in Schedule I to such agreement (collectively,
the "Underwriters"), with Orion Power Holdings, Inc., a Delaware
corporation (the "Company"), providing for a public offering of the Common
Stock of the Company (the "Shares") pursuant to a Registration Statement on
Form S-1 filed with the Securities and Exchange Commission (the "SEC").
In consideration of the agreement by the Underwriters to offer and
sell the Shares, and of other good and valuable consideration the receipt
and sufficiency of which is hereby acknowledged, the undersigned agrees
that, during the period beginning from the date of the final Prospectus
covering the public offering of the Shares and continuing to and including
the date 180 days after the date of such final Prospectus, the undersigned
will not offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of any shares of Common
Stock of the Company, or any options or warrants to purchase any shares of
Common Stock of the Company, or any securities convertible into,
exchangeable for or that represent the right to receive shares of Common
Stock of the Company, whether now owned or hereinafter acquired, owned
directly by the undersigned (including holding as a custodian) or with
respect to which the undersigned has beneficial ownership within the rules
and regulations of the SEC (collectively the "Undersigned's Shares").
The foregoing restriction is expressly agreed to preclude the
undersigned from engaging in any hedging or other transaction which is
designed to or which reasonably could be expected to lead to or result in a
sale or disposition of the Undersigned's Shares even if such Shares would
be disposed of by someone other than the undersigned. Such prohibited
hedging or other transactions would include without limitation any short
sale or any purchase, sale or grant of any right (including without
limitation any put or call option) with respect to any of the Undersigned's
Shares or with respect to any security that includes, relates to, or
derives any significant part of its value from such Shares.
Notwithstanding the foregoing, the undersigned may (a) exercise stock
options and warrants and acquire shares with respect thereto, provided that
such shares are subject to the provisions of this Lock-Up Agreement, and
(b) transfer the Undersigned's Shares (i) as a bona fide gift or gifts,
provided that the donee or donees thereof agree to be bound in writing by
the restrictions set forth herein, (ii) to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the
undersigned, provided that the trustee of the trust agrees to be bound in
writing by the restrictions set forth herein, and provided further that any
such transfer shall not involve a disposition for value, or (iii) with the
prior written consent of Xxxxxxx, Xxxxx & Co. on behalf of the
Underwriters. For purposes of this Lock-Up Agreement, "immediate family"
shall mean any relationship by blood, marriage or adoption, not more remote
than first cousin. In addition, notwithstanding the foregoing, if the
undersigned is a corporation, the corporation may transfer the capital
stock of the Company to any wholly-owned subsidiary of such corporation;
provided, however, that in any such case, it shall be a condition to the
transfer that the transferee execute an agreement stating that the
transferee is receiving and holding such capital stock subject to the
provisions of this Agreement and there shall be no further transfer of such
capital stock except in accordance with this Agreement, and provided
further that any such transfer shall not involve a disposition for value.
The undersigned now has, and, except as contemplated by clause (a) or (b)
above, for the duration of this Lock-Up Agreement will have, good and
marketable title to the Undersigned's Shares, free and clear of all liens,
encumbrances, and claims whatsoever other than as described in the
Prospectus (as defined in the Underwriting Agreement). The undersigned also
agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of the
Undersigned's Shares except in compliance with the foregoing restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this Lock-Up Agreement in proceeding toward consummation of
the offering. The undersigned further understands that this Lock-Up
Agreement is irrevocable and shall be binding upon the undersigned's heirs,
legal representatives, successors, and assigns.
[signature page attached]
Very truly yours,
GS CAPITAL PARTNERS III, L.P. GS CAPITAL PARTNERS II, L.P.
By: GS Advisors III, L.L.C., By: GS Advisors, L.L.C.,
Its General Partner Its General Partner
BY: /s/ Xxxx X. Xxxxxx, Vice President BY: /s/ Xxxx X. Xxxxxx,
Vice President
GS CAPITAL PARTNERS III OFFSHORE, L.P. GS CAPITAL PARTNERS II
By: GS Advisors III, L.L.C., OFFSHORE, L.P.
Its General Partner BY: GS Advisors II, L.L.C.,
Its General Partner
BY: /s/ Xxxx X. Xxxxxx, Vice President BY: /s/ Xxxx X. Xxxxxx,
Vice President
XXXXXXX, SACHS & CO. VERWALTUNGS, XXXXXXX, XXXXX & CO. VERWALTUNGS,
Gmbh Gmbh
By: /s/ Xxxxxx X. Xxxxxxxxx, Managing BY: /s/ Xxxxxx X. Xxxxxxxxx,
Director Managing Director
/s/ Xxxx X. Xxxxxx, Registered Agent /s/ Xxxx X. Xxxxxx,
Registered Agent
STONE STREET FUND 1998, L.P. XXXXXX XXXXXX XXXX 0000, X.X.
By: Stone Street 1998, L.L.C., By: Xxxxxx Xxxxxx 0000, X.X.X.,
Its General Partner Its General Partner
BY: /s/ Xxxx X. Xxxxxx, Vice President BY: /s/ Xxxx X. Xxxxxx,
Vice President
STONE STREET FUND 0000, X.X. XXXXXX XXXXXX SPECIAL OPPORTUNITIES
By: Xxxxx Xxxxxx 0000, X.X.X., XXXX 0000, L.P.
Its General Partner By: Xxxxxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxxx Xxxx
0000, L.L.C.,
BY: /s/ Xxxx X. Xxxxxx, Vice President Its General Partner
BY: /s/ Xxxx X. Xxxxxx, Vice
President
