EXHIBIT 10.9
FIRST AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This FIRST AMENDMENT TO REGISTRATION RIGHTS AGREEMENT (this
"Amendment") dated as of November 9, 2001, is by and between Dynegy Inc., an
Illinois corporation (the "COMPANY"), and Chevron U.S.A. Inc., a Pennsylvania
corporation ("STOCKHOLDER").
WHEREAS, the Company and the Stockholder are parties to the Registration
Rights Agreement dated as of June 14, 1999 (the "REGISTRATION RIGHTS AGREEMENT")
pursuant to which the Company granted the Stockholder registration rights
covering certain shares of the Company's Class B common stock, no par value per
share (the "CLASS B COMMON STOCK") owned by the Stockholder;
WHEREAS, pursuant to the Subscription Agreement (the "SUBSCRIPTION
AGREEMENT") dated the date hereof between Company and ChevronTexaco Corporation,
a Delaware corporation, Stockholder (or certain of its Affiliates) will purchase
in connection with the transactions contemplated in the Agreement and Plan of
Merger (the "ENRON MERGER AGREEMENT") dated the date hereof among the Company,
Enron Corp., an Oregon corporation ("ENRON"), and certain other entities, shares
of Series B Mandatorily Convertible Redeemable Preferred Stock of the Company
that may be convertible into additional shares of Class B Common Stock; and
WHEREAS, in connection with the Subscription Agreement, the Company and
the Stockholder desire to amend the Registration Rights Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by Stockholder and the Company, the parties hereto agree as
follows:
SECTION 1.
AMENDMENTS
1.1 AMENDMENT TO SECTION 1.1.
(a) The following definitions are added to Section 1.1 of the
Registration Rights Agreement:
"Enron Effective Time" shall have the meaning as set forth in the
Enron Merger Agreement.
"Enron Merger Agreement" shall have the meaning as set forth in the
preamble hereto.
(b) The definition for "Registrable Common Stock" is amended and
restated to read as follows:
"Registrable Common Stock" shall mean any Common Stock issuable upon
conversion of Class B Common Stock held or acquired (whether by
purchase, merger or otherwise) directly from the Company by
Stockholder (or its permitted assigns), and any securities issued or
issuable in respect
of any such Registrable Common Stock by way of any stock split or
stock dividend or in connection with any combination of shares,
recapitalization, merger, consolidation, reorganization or
otherwise.
(c) The definition for "Preferred Stock" is amended and restated to
read as follows:
"Preferred Stock" shall mean the Series B Convertible Preferred
Stock, no par value per share of the Company.
(d) The terms "BGAH" and "BG/NOVA Agreement" are deleted.
1.3 AMENDMENT TO SECTION 11.2.
Section 11.2 of the Registration Rights Agreement is amended and restated
to read as follows:
FAVORED NATIONS.
Except as herein provided, for a period of three years from the
Effective Time, the Company shall not provide registration rights to any
other party which, taken as a whole, are more favorable than those
provided to Stockholder hereunder, without also offering to Stockholder
such more favorable rights; provided, however, that the benefits of this
Section 11.2 shall not run to Stockholder if Stockholder holds less than
two percent (2%) of the then outstanding shares of Common Stock (treating
the Class B Common Stock and the Preferred Stock as if they had been
converted for purposes of this calculation). The Company shall give
Stockholder notice within 15 days after the execution of any agreement
(including the terms thereof) between the Company and a third party
relating to the requirement that the Company effect the registration of
the Company's equity securities under the Securities Act for a third
party.
1.4 AMENDMENT TO SECTION 11.7.
Section 11.7 of the Registration Rights Agreement is amended and restated
to read as follows:
This Agreement contains the entire understanding of the parties with
respect to the transactions contemplated hereby and supersedes all
agreements and understandings entered into prior to the execution hereof.
This Agreement may be modified only by a written instrument duly executed
by or on behalf of (i) the Company and (ii) each Holder. No breach of any
covenant, agreement, warranty or representation shall be deemed waived
unless expressly waived in writing by or on behalf of the party who might
assert such breach.
1.5 AMENDMENT TO SECTION 11.12.
Section 11.12 of the Registration Rights Agreement is amended and restated
to read as follows:
Nothing in this Agreement expressed or implied is intended or shall
be construed to confer any right or benefit upon any person, firm or
corporation other
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than Stockholder and the Company and their respective successors and
permitted assigns.
SECTION 2.
MISCELLANEOUS
2.1 MISCELLANEOUS.
The provisions of Sections 11.3, 11.4, 11.5, 11.6, 11.7, 11.8, 11.9,
11.10, 11.11, and 11.12 of the Registration Rights Agreement shall apply to this
Amendment.
2.2 ACKNOWLEDGEMENT.
The parties hereto acknowledge that NOVA and BG no longer own any shares
of the Company's Series A Convertible Preferred Stock, no par value per share.
2.3 NO OTHER CHANGES.
Except as expressly amended by the Amendment, all other terms, conditions,
rights and obligations under the Registration Rights Agreement shall remain in
full force and effect and shall govern this Amendment.
2.4 EFFECTIVE TIME.
This Amendment shall be effective at the Enron Effective Time and will be
null and void and of no effect upon the termination of the Enron Merger
Agreement in accordance with its terms.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, Stockholder and the Company have caused this Amendment
to be duly executed as of the date first above written.
DYNEGY INC.
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
--------------------------------
Title: Executive Vice President
--------------------------------
Address:
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
CHEVRON U.S.A. INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------
Title: Attorney-in-Fact
--------------------------------
Address:
0000 XxXxxxxx Xx.
Xxxxxxx, XX 00000
Attn: President of Chevron U.S.A. Inc.
Telecopier: (000) 000-0000
Fax: (000) 000-0000
with copies to:
Xxxxxx X. Xxxxxx, Esq.
Vice President and General Counsel
ChevronTexaco Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
and:
Xxxxx Xxxxxxx Xxx, Esq. and
Xxxxxx X. Xxxx, Esq.
Pillsbury Winthrop LLP
00 Xxxxxxx Xxxxxx
Xxxx Xxxxxx Xxx 0000
Xxx Xxxxxxxxx, XX 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
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