EXHIBIT 99.6
AGREEMENT
Agreement, dated as of November 13, 2000, between Orion Power
Holdings, Inc., a Delaware corporation (the "Company"), and the parties
listed in Appendix A hereto (collectively, the "Goldman Shareholders").
WITNESSETH:
WHEREAS, the Company is engaged in the acquisition, development,
ownership and operation of electric power generation facilities throughout
the United States;
WHEREAS, the Goldman Shareholders currently own a majority of the
outstanding shares of the Company's voting securities and, upon completion
of the Company's initial public offering of its common stock, will own a
substantial percentage of the outstanding voting securities of the Company;
WHEREAS, the Company's Certificate of Incorporation, as amended (the
"Certificate of Incorporation"), prohibits the Company from taking any
action while the Goldman Shareholders own a specified percentage of the
Company's outstanding voting securities or exercise a Controlling Influence
(as defined below) with respect to the Company, if such action would cause
the Goldman Shareholders or Xxxxxxx, Xxxxx & Co. and its Affiliates
(together with the Goldman Shareholders, the "Xxxxxxx Xxxxx Entities") to
be subject to material regulatory or other restrictions under either (a)
the Public Utility Holding Company Act of 1935, as amended ("PUHCA") or the
rules and regulations of the Securities and Exchange Commission thereunder
or (b) the Federal Power Act, as amended (the "FPA") or the rules and
regulations of the Federal Energy Regulatory Commission thereunder, as more
fully described in Article Tenth of the Certificate of Incorporation; and
WHEREAS, the Company and the Goldman Shareholders wish to set forth
their agreement regarding when the Company and the Goldman Shareholders
would attempt to structure a potential acquisition by the Company of voting
securities of a Person or an action by the Company that would otherwise be
prohibited under the Certificate of Incorporation without the prior written
consent of the Goldman Shareholders;
NOW, THEREFORE, in consideration of these premises and for other
valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Company and the Goldman Shareholders do hereby agree as
follows:
Section 1. Definitions: The following terms, when used herein, shall
have the meanings specified below:
(a) "Affiliate" shall mean, when used with respect to a specified
Person, another Person that directly or indirectly controls or is
controlled by or is under common control with the Person specified. For
this purpose, "control" of a Person shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through ownership of voting shares, by
contract or otherwise.
(b) "Controlling Influence" shall mean a "controlling influence"
(within the meaning of PUHCA) that would cause any of the Xxxxxxx Sachs
Entities to be deemed any of an "affiliate," a "subsidiary company" or a
"holding company" under PUHCA or subject to regulation under PUHCA.
(c) "Person" shall mean any natural person, corporation, limited
liability company, business trust, joint venture, association, company,
partnership or other entity.
(d) "Statutory Threshold" shall having the meaning set forth in
Article Tenth of the Certificate of Incorporation.
Section 2. Agreement. The Company and the Goldman Shareholders agree
that when the Xxxxxxx Sachs Entities are no longer a controlling
shareholder of the Company (including without limitation through the
exercise of a Controlling Influence) but still own a percentage of the
outstanding voting stock of the Company that is not less than the Statutory
Threshold, if the Company wishes to purchase voting securities of a Person
or take any other action that has been duly approved by the Board of
Directors but is prohibited by the Certificate of Incorporation without the
prior written consent of the Xxxxxxx Xxxxx Entities, then, upon the request
of the Company to the Xxxxxxx Sachs Entities, the Company and the Xxxxxxx
Xxxxx Entities will attempt in good faith (i) to structure any such
proposed acquisition of securities or proposed action in a manner which
avoids the imposition of material regulatory or other restrictions on the
Company or any of the Xxxxxxx Sachs Entities or (ii) if such structure is
not feasible, to restructure the Xxxxxxx Xxxxx Entities' then existing
ownership of the Company's voting securities in a manner which avoids the
imposition of material regulatory or other restrictions on the Company or
any of the Xxxxxxx Sachs Entities. Any structure developed pursuant to
clause (i) or (ii) of the preceding sentence must be reasonably
satisfactory to the Xxxxxxx Xxxxx Entities.
Section 3. Notices. (a) Notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight
courier service, mailed or sent by telecopy as follows:
(i) if to the Company, to: Xxxx Xxxxxx, General Counsel, Orion
Power Holdings, Inc., 0 Xxxx Xxxxxxx Xxxxxx, 00xx Xxxxx,
Xxxxxxxxx, XX 00000; and
(ii) if to any of the Xxxxxxx Xxxxx Entities, to: Xxxxxxx, Sachs
& Co., 00 Xxxxx Xxxxxx, Xxx Xxxx Xxxx 00000, attention:
Xxxxx X. Xxxxxxxxx.
All notices and other communications given to any party hereto in
accordance with the provisions of this Agreement shall be deemed to have
been given on the date of receipt if delivered by hand or overnight courier
service or sent by telecopy to such party as provided in this Section 3.
Section 4. Successors and Assigns. Whenever in this Agreement any of
the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of any party that are contained in
this Agreement shall bind and inure to the benefit of its successors and
assigns. The Goldman Shareholders may not assign their rights and
obligations under this Agreement to any Person without the prior written
consent of the Company; provided that the Goldman Shareholders shall be
permitted to assign their rights and obligations under this Agreement to
any of their respective Affiliates.
Section 5. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK WITHOUT
GIVING EFFECT TO CONFLICT OF LAW PROVISIONS.
Section 6. Severability. In the event any one or more of the
provisions contained in this Agreement should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of
the remaining provisions contained herein shall not in any way be affected
or impaired thereby.
Section 7. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall constitute an original but all of which
when taken together shall constitute but one contract.
Section 8. Headings. Section headings used herein are for convenience
of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers as of the day and year first
above written.
[INSERT SIGNATURE BLOCKS]
APPENDIX A
GS Capital Partners II, L.P.
GS Capital Partners II Offshore, X.X.
Xxxxxxx, Sachs & Co. Verwaltungs (as nominee for GS Capital Partners II
(Germany), CLP)
GS Capital Partners III, L.P.
GS Capital Partners III, Offshore
Xxxxxxx, Xxxxx & Co. Verwaltungs (as nominee for GS Capital Partners III
(Germany), CLP)
Bridge Street Fund 0000, X.X.
Xxxxxx Xxxxxx Special Opportunities Fund 0000, X.X.
Xxxxx Xxxxxx Fund 1998, X.X.
Xxxxx Street Fund 2000, L.P.
