EXHIBIT 99.5
SHAREHOLDER AGREEMENT
SHAREHOLDER AGREEMENT, dated as of November 9, 2001, by and between
Enron Corp., an Oregon corporation ("ENRON"), and Xxxxxxx X. Xxxxxx
("SHAREHOLDER").
WHEREAS, concurrently herewith, Dynegy Inc. ("DYNEGY"), Enron and
certain other entities are entering into an Agreement and Plan of Merger (as
amended or supplemented from time to time, the "MERGER AGREEMENT;" capitalized
terms used without definition herein having the meanings ascribed thereto in the
Merger Agreement);
WHEREAS, as of September 30, 2001, Shareholder owns and/or has the
power to vote, as applicable, the number and type of Shares (as defined in
Section 5) set forth in Schedule I hereto;
WHEREAS, the Board of Directors of Dynegy has, prior to the execution
of this Agreement, approved and adopted the Merger Agreement, and such approvals
and adoption have not been withdrawn;
WHEREAS, approval of the Merger Agreement by Dynegy's shareholders is a
condition to the consummation of the Mergers; and
WHEREAS, as a condition to its entering into the Merger Agreement,
Enron has required that Shareholder agrees, and Shareholder has so agreed, to
enter into this Agreement.
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
Section 1. Agreement to Vote. (a) Unless the Dynegy Board of Directors
shall have withdrawn its recommendation in favor of the Mergers, Shareholder
hereby agrees to attend the meeting of Dynegy shareholders at which the matters
contemplated by the Merger Agreement or this Agreement are to be presented to a
vote of shareholders of Dynegy, in person or by proxy, and to vote (or cause to
be voted) all Shares and any other voting securities of Dynegy that Shareholder,
directly or indirectly, owns or has the right to vote or direct the voting of
(including any such securities acquired hereafter but excluding any Shares or
other securities Shareholder has the right to acquire but has not acquired)
(collectively, the "COVERED SHARES") for approval and adoption of the following:
(i) the Merger Agreement and (ii) any related action reasonably required in
furtherance thereof. Unless the Dynegy Board of Directors shall have withdrawn
its recommendation in favor of the Mergers, Shareholder hereby further agrees
that until the Termination Date (as defined in Section 1(b)), he shall, from
time to time, in connection with any consent solicitation relating to the Merger
Agreement, timely execute and deliver (or cause to be timely executed and
delivered) a written consent with respect to any Covered Shares in favor of the
approval and adoption of the Merger Agreement and any action required in
furtherance thereof.
(b) From and after the date hereof until the Termination Date, unless
the Dynegy Board of Directors shall have withdrawn its recommendation of the
Mergers, Shareholder hereby agrees
to vote (or cause to be voted) any Covered Shares against any Dynegy Acquisition
Proposal and any related action reasonably required in furtherance thereof, at
any meeting of shareholders of Dynegy (including any adjournments or
postponements thereof) called to consider and vote on any Dynegy Acquisition
Proposal. Shareholder further agrees that, until the Termination Date, in
connection with any consent solicitation relating to a Dynegy Acquisition
Proposal, Shareholder will timely execute and deliver (or cause to be timely
executed and delivered) a written consent with respect to any Covered Shares
against any Dynegy Acquisition Proposal as contemplated by the immediately
preceding sentence. For purposes hereof, the term "TERMINATION DATE" shall mean
the first to occur of (a) the termination of the Merger Agreement and (b) the
date of consummation of the Mergers.
(c) Shareholder hereby revokes any and all previous proxies with
respect to any Covered Shares.
(d) Nothing herein contained shall (i) restrict, limit or prohibit
Shareholder, who is a director and officer of Dynegy, from exercising (in his
capacity as a director or officer) his fiduciary duties to the shareholders of
Dynegy under applicable law, or (ii) require Shareholder, in his capacity as an
officer of Dynegy, to take any action in contravention of, or omit to take any
action pursuant to, or otherwise take or refrain from taking any actions which
are inconsistent with, instructions or directions of the Board of Directors of
Dynegy undertaken in the exercise of his fiduciary duties, provided that nothing
in this Section 1(d) shall relieve or be deemed to relieve Shareholder from his
obligations under Sections 1 or 2.
Section 2. Disposition of Shares. From and after the date hereof until
the Termination Date, Shareholder hereby agrees that he will not, directly or
indirectly, sell, pledge, encumber, grant any proxy or enter into any voting or
similar agreement with respect to, transfer or otherwise dispose of
(collectively, "TRANSFER"), or agree or contract to Transfer, any Covered Shares
(or any interest therein) with respect to which Shareholder, directly or
indirectly, controls the right to Transfer; provided, however, that Shareholder
may Transfer his respective Covered Shares to an Affiliate (as defined below) of
Shareholder provided that such Affiliate agrees to be subject to the terms and
conditions set forth in this Agreement. For purposes of this Agreement,
"AFFILIATE" shall mean any corporation, partnership, limited liability company
or other entity that Shareholder directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under common control with,
Shareholder.
Section 3. Other Covenants and Agreements. Each party shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be reasonably necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this Agreement. Without
limiting the generality of the foregoing, neither party shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other action) if such
action (or failure) would materially impair the ability of any party to
effectuate, carry out or comply with all the terms of this Agreement. Enron
hereby agrees to cooperate with Shareholder in connection with any filings
required to be made by Shareholder in connection with the Mergers and the
transactions contemplated thereby.
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Section 4. Representations and Warranties of Enron. Enron represents
and warrants to Shareholder as follows: (a) each of this Agreement and the
Merger Agreement has been approved by the Board of Directors of Enron,
representing all necessary corporate action on the part of Enron, except for the
approval of Enron's shareholders contemplated by the Merger Agreement, (b) each
of this Agreement and the Merger Agreement has been duly executed and delivered
by a duly authorized officer of Enron, and (c) each of this Agreement and the
Merger Agreement constitutes a valid and binding agreement of Enron, enforceable
against Enron.
Section 5. Representations and Warranties of Shareholder. Shareholder
represents and warrants to Enron as follows: (a) Shareholder has the requisite
competence and authority to execute and deliver this Agreement, (b) this
Agreement has been duly executed and delivered by Shareholder, (c) this
Agreement constitutes the valid and binding agreement of such Shareholder, (d)
Shareholder has the full power and authority to vote, or execute a consent, with
respect to, all Covered Shares as contemplated hereby, (e) the securities of
Dynegy listed next to the name of Shareholder on Schedule I hereto are the only
securities of Dynegy owned by Shareholder and over which Shareholder has the
power to vote (or direct the voting) (collectively, the "SHARES"), (f)
Shareholder is the lawful owner of the Shares listed on Schedule I as owned by
him, free and clear of all liens, charges, encumbrances and commitments of every
kind, other than this Agreement, and has the power to vote (including by an
irrevocable power to vote or execution of a consent) such Shares without any
actions on the part of any other party, and (g) the execution and delivery by
Shareholder of this Agreement does not violate or breach any law, contract,
instrument, agreement or arrangement to which Shareholder is a party or by which
Shareholder is bound, except to the extent such violation or breach does not
prevent or delay performance of such Shareholder's obligations hereunder.
Section 6. Effectiveness. It is a condition precedent to the
effectiveness of this Agreement that the Merger Agreement shall have been duly
executed and delivered by the parties thereto. Any amendment or change to the
Merger Agreement that (i) changes the Merger Ratio, (ii) adds any cash or other
consideration to be paid to holders of Enron Common Stock, (iii) changes the
termination date of the Merger Agreement, or (iv) materially adversely affects
the Shareholder, will nullify the effectiveness of this Agreement and this
Agreement shall terminate immediately.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or three days after being mailed by
courier service that guarantees overnight delivery, in each case to the
applicable addresses set forth below:
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If to Enron:
Enron Corp.
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
Telecopy: (000) 000-0000
with copy to:
Xxxxxx & Xxxxxx, L.L.P.
000 Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx III, Esq.
Xxxxx X. Xxxxx, Esq.
Telecopy: (000) 000-0000
If to the Shareholder:
Xxxxxxx X. Xxxxxx
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
and:
Xxxxx Xxxxx L.L.P.
Xxx Xxxxx Xxxxx
000 Xxxxxxxxx
Xxxxxxx, Xxxxx 00000-0000
Attention: R. Xxxx Xxxxxxx, Esq.
J. Xxxxx Xxxxxxxx, Jr., Esq.
Telecopy: (000) 000-0000
and:
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Telecopy: (000) 000-0000
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Enron and Shareholder.
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(c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective heirs, successors and assigns, including without limitation any
corporate successor by merger or otherwise, or any party succeeding to the
ownership of (or power to vote) any Covered Shares.
(d) Entire Agreement. This Agreement (together with the Merger
Agreement) embodies the entire agreement and understanding between the parties
relating to the subject matter hereof and supersedes all prior agreements and
understandings relating to such subject matter. There are no representations,
warranties or covenants by the parties hereto relating to such subject matter
other than those expressly set forth in this Agreement and the Merger Agreement.
(e) Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in his or its sole discretion, apply to a court of competent jurisdiction
for specific performance or injunctive or such other relief as such court may
deem just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with his or its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of his or its right to exercise any such or other right, power or remedy
or to demand such compliance.
(i) Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto.
(j) Jurisdiction. Each party (a) consents to submit himself or itself
to the personal jurisdiction of any federal court located in the State of Texas
or any Texas state court if any
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action, suit or proceeding arises in connection with this Agreement and (b)
agrees that he or it will not attempt to defeat or deny such personal
jurisdiction by motion or other request for leave from any such court. Each
party hereto hereby waives any right to a trial by jury in connection with any
such action.
(k) Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Illinois to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or construction hereof. Whenever the context may
require, any pronoun used herein shall include the corresponding masculine,
feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Expenses. Enron and Shareholder shall bear his or its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties have duly executed this Shareholder
Agreement as of the date first above written.
ENRON CORP.
By: /s/ XXXXXXX X. XXXXX, XX.
------------------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
----------------------------------------
Title: Executive Vice President -
Finance and Treasurer
---------------------------------------
SHAREHOLDER
/s/ XXXXXXX X. XXXXXX
---------------------------------------------
Xxxxxxx X. Xxxxxx
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SCHEDULE I
SHARES
Dynegy Class A Common Stock 8,504,816
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