SUPPORT AGREEMENT
EXECUTION
COPY
SUPPORT
AGREEMENT, dated as of December 15, 2010 (this “Agreement”),
by and among the parties listed on the signature page(s) hereto (collectively,
the “Stockholders”
and each individually, a “Stockholder”)
and Dynegy Inc., a Delaware corporation (the “Company”).
Capitalized terms used and not otherwise defined herein shall have the
respective meanings ascribed to them in the Merger Agreement (as defined
below).
RECITALS
WHEREAS,
as of the date hereof, each Stockholder beneficially owns that number of Shares
and options to purchase Shares (the “Call Options”) set forth opposite its names
on Schedule I
hereto (such Shares, and any other Equity Interests, hereafter acquired by any
Stockholder as the date hereof and prior to the termination of this Agreement,
whether upon the exercise of options (including the Call Options), warrants or
rights, the conversion or exchange of convertible or exchangeable securities, or
by means of purchase, dividend, distribution, split-up, recapitalization,
combination, exchange of shares or the like, gift, bequest, inheritance or as a
successor in interest in any capacity or otherwise, being referred to herein
collectively as the “Subject
Securities”);
WHEREAS,
concurrently with the execution of this Agreement, IEH Merger Sub LLC, a
Delaware limited liability company (the “Parent”),
IEP Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of
Parent (“Merger
Sub”), and the Company are entering into an Agreement and Plan of Merger,
dated as of the date hereof (as it may be amended from time to time, the “Merger
Agreement”);
WHEREAS,
the Merger Agreement provides that, upon the terms and subject to the conditions
thereof, Parent will commence an Offer to purchase all of the issued and
outstanding Shares at the Offer Price, and, subject to the satisfaction or
waiver of certain conditions set forth in the Merger Agreement, Merger Sub will
merge with and into the Company (the “Merger”)
and the Company will become a wholly owned subsidiary of Parent;
WHEREAS,
the Merger Agreement also provides that the Merger may be consummated regardless
of whether the Offer is completed, but if the Offer is not completed, the Merger
will only be consummated following adoption of the Merger Agreement
by the stockholders of the Company in accordance with applicable Law;
and
WHEREAS,
as a condition to the willingness of the Company to enter into the Merger
Agreement, the Company has required that the Stockholders agree to enter into
this Agreement.
NOW,
THEREFORE, in consideration of the premises and the representations, warranties,
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
Section
1. Voting and Transfer of
Subject Securities; Waiver of Appraisal Rights. Each
Stockholder covenants and agrees that until the termination of this Agreement in
accordance with the terms hereof, such Stockholder will comply with all
obligations applicable to Affiliates of Parent set forth in Section 7.13 of the
Merger Agreement.
Section
2. Representations and
Warranties of the Stockholders. Each Stockholder, jointly and
severally, represents and warrants to the Company that:
(a) Organization and Good
Standing. Each Stockholder is a legal entity duly organized,
validly existing and in good standing (with respect to jurisdictions that
recognize the concept of good standing) under the Laws of the jurisdiction of
its organization.
(b) Corporate
Authority. Each Stockholder has all requisite corporate,
limited partnership or other power and authority to execute, deliver and perform
this Agreement, with no limitations, qualifications or restrictions on such
power, and the execution, delivery and performance of this Agreement have been
duly authorized by all necessary action and do not contravene any provision of
such Stockholder’s charter, partnership agreement, operating agreement or
similar organizational documents, any law, regulation, rule, decree, order,
judgment or contractual restriction binding on such Stockholder or its
assets.
(c) Governmental
Approvals. All consents, approvals, authorizations, permits
of, filings with and notifications to, any governmental authority necessary for
the due execution, delivery and performance of this Agreement by each
Stockholder have been obtained or made and all conditions thereof have been duly
complied with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with the
execution, delivery or performance of this Agreement. other than in connection
with the requirements of the Exchange Act and where such violations or failures
to make or obtain any filing with or notification to, or consents, approvals,
authorizations, permits of, any governmental authority would not, individually
or in the aggregate, materially impair the ability of the Stockholder to perform
this Agreement.
(d) Enforceability. This
Agreement constitutes a legal, valid and binding obligation of each Stockholder
enforceable against each Stockholder in accordance with its terms, subject to
(i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting creditors’ rights
generally, and (ii) general equitable principles (whether considered in a
proceeding in equity or at law).
(e) Subject
Securities. As of the date hereof and at all times prior to
the termination of this Agreement, each Stockholder beneficially owns (as
determined pursuant to Rule 13d-3 under the Exchange Act) the Subject Securities
set forth on Schedule
I opposite to the name of each Stockholder. As of the date
hereof, the Subject Securities constitute all of the Shares and Call Options
which each Stockholder beneficially owns, and in the case of the Shares, has the
power to vote or direct the votes. The Subject Securities and the
Call Options are all of the Shares or Equity Interests in which Xxxx X. Icahn,
the Stockholders or any of their respective Affiliates have beneficial
ownership, and in the case of the Shares, voting rights. Except for
this Agreement, the Subject Securities are now and at all times during the term
hereof will be, held by the each Stockholder, free and clear of all liens,
proxies, powers of attorney, voting trusts and voting agreements and
arrangements (collectively, “liens”).
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Section
3. Representations and
Warranties of the Company. Company represents and warrants to
Stockholders that:
(a) Organization and Good
Standing. The Company is a legal entity duly organized,
validly existing and in good standing (with respect to jurisdictions that
recognize the concept of good standing) under the Laws of the jurisdiction of
its organization.
(b) Corporate
Authority. The Company has all requisite corporate, limited
partnership or other power and authority to execute, deliver and perform this
Agreement and the execution, delivery and performance of this Agreement have
been duly authorized by all necessary action and do not contravene any provision
of the Company’s charter, partnership agreement, operating agreement or similar
organizational documents, any law, regulation, rule, decree, order, judgment or
contractual restriction binding on the Company or its assets.
(c) Governmental
Approvals. All consents, approvals, authorizations, permits
of, filings with and notifications to, any governmental authority necessary for
the due execution, delivery and performance of this Agreement by the Company
have been obtained or made and all conditions thereof have been duly complied
with, and no other action by, and no notice to or filing with, any governmental
authority or regulatory body is required in connection with the execution,
delivery or performance of this Agreement, other than in connection with the
requirements of the Exchange Act and where such violations or failures to make
or obtain any filing with or notification to, or consents, approvals,
authorizations, permits of, any governmental authority would not, individually
or in the aggregate, materially impair the ability of the Company to perform
this Agreement.
(d) Enforceability. This
Agreement constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, subject to (i) the
effects of bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium or other similar laws affecting creditors’ rights generally, and (ii)
general equitable principles (whether considered in a proceeding in equity or at
law).
Section
4. Termination. This
Agreement shall terminate immediately at and as of the Voting Termination
Date.
Section
5. Call
Options. The parties acknowledge that, notwithstanding
anything to the contrary herein, the Subject Securities include Call Options
which the Stockholder cannot vote and which cannot be exercised prior to the
satisfaction or waiver of, if the Offer has not been terminated in accordance
with the Merger Agreement, the Regulatory Condition, or, if the Offer has been
terminated in accordance with the Merger Agreement, the condition set forth in
Section 8.3(c) of the Merger Agreement.
Section
6. Miscellaneous.
(a) Entire
Agreement. This Agreement (including any schedules hereto) and
the Merger Agreement constitute the entire agreement, and supersede all other
prior agreements, understandings, representations and warranties both written
and oral, among the parties, with respect to the subject matter
hereof. The parties hereto may modify or amend this Agreement, by
written agreement executed and delivered by duly authorized officers of the
respective parties
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(b) Notices. Any
notice, request, instruction or other document to be given hereunder by any
party to the others shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, by facsimile or by overnight
courier:
(i) if
to a Stockholder:
c/o Icahn
Associates Corp
000 Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxx,
XX 00000
Attention: Deputy
General Counsel
Fax.: (000)
000-0000
Attention: Chief
Financial Officer
Fax.: (000)
000-0000
(ii) if
to the Company to:
Dynegy
Inc.
0000
Xxxxxxxxx, Xxxxx 0000
Xxxxxxx,
XX 00000
Attention: General
Counsel
Fax: (000)
000-0000
(iii) with
a copy to:
Xxxxxxxx
& Xxxxxxxx LLP
000 Xxxxx
Xxxxxx
Xxx Xxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxxxxxx
Fax: (000)
000-0000
or to
such other persons or addresses as may be designated in writing by the party to
receive such notice as provided above. Any notice, request,
instruction or other document given as provided above shall be deemed given to
the receiving party upon actual receipt, if delivered personally; three (3)
business days after deposit in the mail, if sent by registered or certified
mail; upon confirmation of successful transmission if sent by facsimile and
received by 5:00 p.m. New York time on a business day (otherwise the next
business day) (provided that if given by facsimile such notice, request,
instruction or other document shall be followed up within one (1) business day
by dispatch pursuant to one of the other methods described herein); or on the
next business day after deposit with an overnight courier, if sent by an
overnight courier.
(c) No Third Party
Beneficiaries. This Agreement is not intended to, and does
not, confer upon any Person other than the parties hereto any rights or remedies
hereunder, including the right to rely upon the representations and warranties
set forth herein.
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(d) Assignment. Except
as provided in Section 1 hereof, neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of all of the other parties and any such
assignment without such prior written consent shall be null and
void. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties hereto
and their respective successors and permitted assigns.
(e) Mutatis
Mutandis. Sections 10.4, 10.5, 10.12 and 10.13 of the Merger
Agreement shall apply to this Agreement, mutatis mutandis, as if it
had been fully set forth herein.
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IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the date
first written above.
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HIGH
RIVER LIMITED PARTNERSHIP
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By: Xxxxxx
Investments LLC, its general
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Partner
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By:
Barberry Corp., its sole stockholder
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Vice President
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ICAHN
PARTNERS LP
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing Director
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ICAHN
PARTNERS MASTER FUND LP
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing Director
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ICAHN
PARTNERS MASTER FUND II LP
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing Director
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ICAHN
PARTNERS MASTER FUND III LP
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By:
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/s/ Xxxxxxx X. Xxxxxxxx |
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Name:
Xxxxxxx X. Xxxxxxxx
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Title:
Senior Managing
Director
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[Support
Agreement Signature Page]
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
signed individually or by its respective duly authorized officer as of the date
first written above.
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DYNEGY
INC.
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By:
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/s/ Xxxxx X. Xxxxxxxxxx |
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Name:
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Xxxxx X. Xxxxxxxxxx |
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Title:
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Chairman, President and Chief Executive Officer |
[Support
Agreement Signature Page]
Schedule
I
Stockholder
Beneficial Ownership
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Stockholder
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Number of Shares
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Number of Call Options
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High
River Limited Partnership
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2,399,999 | 1,208,442 | ||||||
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Icahn
Partners LP
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3,653,675 | 1,857,034 | ||||||
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Icahn
Partners Master Fund LP
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4,145,343 | 2,092,971 | ||||||
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Icahn
Partners Master Fund II LP
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1,215,577 | 590,137 | ||||||
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Icahn
Partners Master Fund III LP
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585,406 | 293,628 | ||||||
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Total
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12,000,000 | 6,042,212 | ||||||
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