Exhibit 10.4
AMENDMENT TO EXCHANGE AGREEMENT
This AMENDMENT TO EXCHANGE AGREEMENT (this "Amendment") dated as of
November 19, 2001 is by and between Enron Corp., an Oregon corporation
("Enron"), and Dynegy Inc., an Illinois corporation ("Dynegy").
RECITALS
A. On November 9, 2001, Enron and Dynegy entered into an Exchange
Agreement (the "Exchange Agreement").
B. The parties to the Exchange Agreement now desire to amend the
Exchange Agreement as specified below.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and other good and valuable consideration, the sufficiency of which is
hereby acknowledged, the parties hereby agree as follows:
1. Section 5.3. of the Exchange Agreement is hereby amended in
its entirety to provide as follows:
5.3. LISTING APPLICATION.
(a) Enron shall promptly prepare and submit to the
New York Stock Exchange ("NYSE") a listing application covering the
shares of Enron Common Stock issuable pursuant to the exercise of the
Enron Exchange Option and the Dynegy Exchange Option and shall use
commercially reasonable best efforts to obtain, prior to the exercise
of the Enron Exchange Option or the Dynegy Exchange Option, approval
for the listing of such shares of Enron Common Stock on the NYSE,
subject to official notice of issuance.
(b) If required pursuant to the rules of the New York
Stock Exchange, Enron shall take all action necessary, in accordance
with applicable law and its articles of incorporation and bylaws, to
convene a meeting of its shareholders as promptly as practicable to
consider and vote upon the issuance of the shares of Enron Common Stock
pursuant to the exercise of the Enron Exchange Option and the Dynegy
Exchange Option. Enron shall recommend approval of such matters and use
its commercially reasonable best efforts to solicit from its
shareholders proxies in favor of such matters.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
signed by their respective officers thereunto duly authorized, all as of the day
and year first written above.
ENRON CORP.,
an Oregon corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Authorized Agent
DYNEGY INC.,
an Illinois corporation
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X Xxxxxxx
Title: Authorized Agent
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