EXHIBIT 10.8
SERIES B PREFERRED STOCK
SUBSCRIPTION AGREEMENT
BY AND BETWEEN
CHEVRONTEXACO CORPORATION
AND
DYNEGY INC.
DATED: NOVEMBER 9, 2001
SERIES B PREFERRED STOCK
SUBSCRIPTION AGREEMENT
This SERIES B PREFERRED STOCK SUBSCRIPTION AGREEMENT (this "AGREEMENT") is
entered into on November 9, 2001, by and between Dynegy Inc., an Illinois
corporation (the "COMPANY") and ChevronTexaco Corporation, a Delaware
corporation (the "BUYER").
WHEREAS, the Buyer desires to purchase from the Company, and the Company
desires to sell to the Buyer, the Shares (as defined herein), in accordance with
the terms and conditions of this Agreement; and
WHEREAS, this Agreement is being entered into in connection with the
Merger Agreement (as defined herein);
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties, and
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
"ACTION" means any action, lawsuit, proceeding, hearing, notice,
investigation, mediation, arbitration, complaint, claim or demand.
"AFFILIATE" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with another Person.
"AGREEMENT" is defined in the preamble.
"BUYER" is defined in the preamble.
"CHEVRON" means Chevron U.S.A., a Pennsylvania corporation.
"CLASS A COMMON STOCK" means the Class A Common Stock, no par value, of
the Company.
"CLASS B COMMON STOCK" means the Class B Common Stock, no par value, of
the Company.
"CLOSING" is defined in Section 2.3.
"CLOSING DATE" is defined in Section 2.3.
"COMMON STOCK" means the Class A Common Stock and the Class B Common
Stock.
"COMPANY" is defined in the preamble.
"CONVERSION SHARES" means those shares of Class B Common Stock into which
the Series B Preferred Stock will convert pursuant to Section 5 of the Statement
of Resolution, subject to adjustment as set forth in Section 5(e) of the
Statement of Resolution.
"ENRON" means Enron Corp., an Oregon corporation.
"GOVERNMENTAL AUTHORITY" means any governmental or regulatory authority or
agency, court or similar entity.
"MERGER" means the mergers contemplated by the Merger Agreement.
"MERGER AGREEMENT" means the Agreement and Plan of Merger, dated as of the
date hereof, by and among the Company, Enron and certain other entities.
"NORTHERN INVESTMENT" is defined in Section 2.3.
"PERSON" means a natural person, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Authority.
"PREFERRED STOCK" is defined in Section 3.8.
"PURCHASE PRICE" means $1,500,000,000.00.
"SERIES B PREFERRED STOCK" means the Series B Mandatorily Convertible
Redeemable Preferred Stock, no par value per share, of the Company.
"SHAREHOLDER AGREEMENT" means the Shareholder Agreement dated June 14,
1999 among the Company (f/k/a Energy Convergence Holding Company), Illinova
Corporation, an Illinois corporation, Dynegy Holdings Inc. (f/k/a Dynegy
Inc.), a Delaware corporation and Chevron.
"SHARES" means the 150,000 shares of Series B Preferred Stock to be
acquired by Buyer.
"STOCKHOLDER AGREEMENT" means the Stockholder Agreement dated as of the
date hereof among the Company, Stanford, Inc., a Delaware corporation, Enron and
Chevron.
"STATEMENT OF RESOLUTION" means the Statement of Resolution Establishing
Series of Series B Mandatorily Convertible Redeemable Preferred Stock of the
Company.
ARTICLE II
SUBSCRIPTION
2.1 PURCHASE AND SALE OF SHARES. On and subject to the terms and
conditions of this Agreement and subject to the terms and conditions of the
Shareholder Agreement, Buyer agrees to buy and the Company agrees to issue and
deliver to the Buyer, the Shares at the Closing for the consideration specified
in this Article II.
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2.2 PURCHASE PRICE. The Buyer agrees to pay to the Company the Purchase
Price in cash at the Closing.
2.3 THE CLOSING. The Company shall give the Buyer, at the address
specified in Section 6.6, written notice no later than three business day prior
to the date on which it intends to fund the purchase of shares of Series A
Convertible Preferred Stock, par value $1.00 per share, of Northern Natural Gas
Company (the "NORTHERN INVESTMENT"). The closing of the purchase and sale of the
Shares (the "CLOSING") shall take place simultaneously with the closing of the
Northern Investment at such place as the parties hereto and the parties to the
Northern Investment shall agree, subject to the satisfaction or waiver of all
conditions to the obligations of the parties to consummate the transactions to
take place at the Closing (other than conditions with respect to actions the
respective parties will take at the Closing itself). The date of the Closing is
referred to as the "CLOSING DATE."
2.4 DELIVERIES AT THE CLOSING. At the Closing:
(a) the Company will deliver to the Buyer the stock certificates
representing the Shares duly registered in the name of Buyer; and
(b) the Buyer will deliver to the Company the Purchase Price by wire
transfer of immediately available funds.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Buyer that the statements
contained in this Article III are correct and complete as of the date of this
Agreement (unless stated to relate to a specific date, in which case such
representations and warranties shall be correct and complete as of such specific
date) and will be correct and complete as of the Closing Date (as though made
then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article III unless stated to relate to a specific
date, in which case such representations and warranties shall be correct and
complete as of such specific date).
3.1 ORGANIZATION OF THE COMPANY. The Company is a corporation, duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization.
3.2 DUE AUTHORIZATION. The execution, delivery, and performance by the
Company of this Agreement:
(a) has been duly authorized by all necessary internal action and
does not require any consent, waiver, approval, order, authorization or
permit of, or registration, filing with or notification to any Person;
(b) does not conflict with or result in any material violation of or
the material breach of or constitute a material default (with notice or
lapse of time or both) under, or give rise to any right of termination,
purchase, first refusal, cancellation or acceleration or guaranteed
payments or a loss of a material benefit under, any order or judgment of
any Governmental Authority or any law or regulation, or any note, lease,
mortgage, license,
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agreement or other instrument or obligation to which the Company is a
party or by which it or its properties or assets may be bound; and
(c) does not conflict with or result in any violation of or the
breach of or constitute a default (with notice or lapse of time or both)
under, or give rise to any right of termination, purchase, first refusal,
cancellation or acceleration or guaranteed payments or a loss of a
material benefit under, any of the Company's organizational documents.
3.3 DUE EXECUTION. This Agreement has been duly executed and delivered by
a duly authorized officer of the Company.
3.4 LEGAL, VALID AND BINDING OBLIGATIONS. This Agreement constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except as such enforcement may be limited
by applicable bankruptcy, insolvency, moratorium and other laws affecting the
rights of creditors generally and by general principles of equity.
3.5 NO LITIGATION. There is no pending or, to the knowledge of the
Company, threatened action or proceeding before any court or other governmental
entity, or arbitrator by or against, or involving the Company or its Affiliates,
which questions or challenges the validity or enforceability of this Agreement
or any action taken or to be taken by the Company pursuant to this Agreement or
in connection with the transactions contemplated hereby.
3.6 BROKERS' FEE. The Company does not have any liability or obligation to
pay any fees or commissions to any broker, finder or agent with respect to the
transactions contemplated hereby for which the Buyer could become liable.
3.7 ORGANIZATIONAL DOCUMENTS. True and correct copies of the Amended and
Restated Articles of Incorporation and Amended and Restated Bylaws of the
Company have heretofore been delivered by the Company to the Buyer.
3.8 CAPITALIZATION. The authorized capital stock of the Company consists
of 900,000,000 shares of Class A Common Stock, 360,000,000 shares of Class B
Common Stock and 70,000,000 shares of preferred stock, no par value ("PREFERRED
STOCK"), of which 150,000 shares, upon the filing of the Statement of
Resolution, will be designated as Series B Preferred Stock. As of November 6,
2001, (i) 238,956,530 shares of Class A Common Stock were issued and
outstanding, (ii) 86,599,914 shares of Class B Common Stock were issued and
outstanding, and (iii) no shares of Preferred Stock were issued and outstanding.
All such issued and outstanding shares are duly authorized validly issued, fully
paid, nonassessable, and free of statutory preemptive rights. Except as set
forth in or contemplated by the Merger Agreement or the related Dynegy
Disclosure Letter or the Enron Disclosure Letter, there are no outstanding
subscriptions, options, rights, warrants, convertible securities, stock
appreciation rights, phantom equity, or other agreements or commitments
obligating the Company to issue, transfer, sell, redeem, repurchase or otherwise
acquire any shares of its capital stock of any class.
3.9 SERIES B PREFERRED STOCK AND CONVERSION SHARES. The Shares to be
issued and sold by the Company to the Buyer hereunder and, upon conversion
thereof, the Conversion
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Shares, have been duly and validly authorized and, when issued and delivered
against payment therefor as provided herein, or upon conversion, will be duly
and validly issued and fully paid and nonassessable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE BUYER
The Buyer represents and warrants to the Company that the statements
contained in this Article IV are correct and complete as of the date of this
Agreement (unless stated to relate to a specific date, in which case such
representations and warranties shall be correct and complete as of such specific
date) and will be correct and complete as of the Closing Date (as though made
then and as though the Closing Date were substituted for the date of this
Agreement throughout this Article IV unless stated to relate to a specific date,
in which case such representations and warranties shall be correct and complete
as of such specific date).
4.1 ORGANIZATION OF BUYER. The Buyer is a corporation, duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
organization.
4.2 DUE AUTHORIZATION. The execution, delivery, and performance by the
Buyer of this Agreement:
(a) has been duly authorized by all necessary internal action and
does not require any consent, waiver, approval, order, authorization or
permit of or registration, filing with or notification to any Person; and
(b) does not conflict with or result in any violation of or the
breach of or constitute a default (with notice or lapse of time or both)
under, the Buyer's organizational documents, any order or judgment of any
Governmental Authority or any law or regulation applicable to Buyer.
4.3 DUE EXECUTION. This Agreement has been duly executed and delivered by
a duly authorized officer of the Buyer.
4.4 LEGAL, VALID AND BINDING OBLIGATIONS. This Agreement constitutes the
legal, valid and binding obligation of the Buyer, enforceable against the Buyer
in accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium and other laws affecting the
rights of creditors generally and by general principles of equity.
4.5 NO LITIGATION. There is no pending or, to the knowledge of the Buyer,
threatened action or proceeding before any court or other governmental entity,
or arbitrator by or against, or involving Buyer or its Affiliates, which
questions or challenges the validity or enforceability of this Agreement or any
action taken or to be taken by Buyer pursuant to this Agreement or in connection
with the transactions contemplated hereby.
4.6 BROKERS' FEES. The Buyer does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated hereby for which the Company could become liable.
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4.7 SECURITIES LAWS. The Buyer:
(a) has been furnished with such information about the Company and
the Shares as it has requested and with such information as necessary to
comply with any and all applicable securities laws;
(b) has made its own independent inquiry and investigation into, and
based thereon, has formed an independent judgment concerning the Company
and the Shares;
(c) has adequate means of providing for its current needs and
possible contingencies and is able to bear the economic risks of this
investment and has a sufficient net worth to sustain a loss of its entire
investment in the Company in the event such loss should occur;
(d) has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of an
investment in the Company;
(e) is an "accredited" investor within the meaning of "accredited
investor" under Regulation D of the Securities Act of 1933, as currently
in effect;
(f) is not an underwriter or dealer; and
(g) is not acquiring the Shares with a view to distribution.
ARTICLE V
CONDITIONS TO OBLIGATION TO CLOSE
5.1 CONDITIONS TO OBLIGATION OF THE BUYER. The obligation of the Buyer to
consummate the transactions contemplated by this Agreement and to perform its
obligations under this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) the representations and warranties set forth in Article III
shall be true and correct in all material respects, except for those
representations and warranties contained in Section 3.9, which shall be
true and correct in all respects, at and as of the Closing Date; and the
Buyer shall have received a certificate from a duly authorized officer of
the Company as to the satisfaction of this condition;
(b) the Company shall have performed and complied with all of its
covenants hereunder in all material respects prior to the Closing; and the
Buyer shall have received a certificate from a duly authorized officer of
the Company as to the satisfaction of this condition;
(c) the Company will be prepared to make the deliveries contemplated
by Section 2.4;
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(d) the Buyer shall have received a certificate from the secretary
of the Company, certifying that the articles of incorporation and bylaws
of the Company have not been amended, since the date hereof;
(e) the Company shall have filed the Statement of Resolution with
the Secretary of State of the State of Illinois and shall have furnished
proof of acceptance of such filing reasonably satisfactory to Buyer; and
(f) the Shareholder Agreement and the Stockholder Agreement shall
be in full force and effect.
The Buyer may waive any condition specified in this Section 5.1 if it
executes a writing expressly so stating at or prior to the Closing.
5.2 CONDITIONS TO OBLIGATION OF THE COMPANY. The obligation of the Company
to consummate the transactions contemplated hereby and to perform its
obligations under this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) the representations and warranties set forth in Article IV shall
be true and correct in all material respects at and as of the Closing
Date;
(b) the Buyer shall have performed and complied with all of its
covenants hereunder in all material respects prior to the Closing; and the
Company shall have received a certificate from a duly authorized officer
of the Buyer as to the satisfaction of this condition; and
(c) the Buyer will be prepared to tender the Purchase Price against
receipt of the Shares.
The Company may waive any condition specified in this Section 5.2 if it
executes a writing expressly so stating at or prior to the Closing.
ARTICLE VI
MISCELLANEOUS
6.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each representation,
warranty and covenant of the parties contained in this Agreement shall survive
the Closing.
6.2 WAIVER OF COMPLIANCE; AMENDMENTS; CONSENTS. Any failure of a party to
comply with any obligation, covenant, agreement, or condition herein may be
waived by the other party; provided, however, that any such waiver may be made
only by a written instrument signed by the party granting such waiver, but such
waiver or failure to insist upon strict compliance with such obligation,
covenant, agreement, or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. This Agreement may be amended,
modified, or supplemented only by written agreement of the Company and Buyer.
Whenever this Agreement requires or permits consent by or on behalf of any party
hereto, such consent shall be given in writing in a manner consistent with the
requirements for a waiver of
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compliance as set forth in this Section 6.3, with appropriate notice in
accordance with Section 6.6.
6.3 ASSIGNMENT; THIRD PARTY BENEFICIARIES. This Agreement and all of the
provisions hereof shall be binding upon the parties hereto and their respective
successors and permitted assigns. Nothing in this Agreement, expressed or
implied, is intended or shall be construed to confer upon any Person other than
the parties hereto, and their respective successors and assigns any right,
remedy, or claim under or by reason of this Agreement or any provision herein
contained. The Buyer has the right to assign (and each successive assignee may
further assign) its rights under this Agreement to any Person, which such Person
by acceptance of such assignment shall be deemed to assume all liabilities,
indebtedness and obligations included in the rights assigned. The Company may
not assign its rights or obligations under this Agreement.
6.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Illinois (without regard to its conflicts of law
doctrines).
6.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
6.6 NOTICES. All notices or communications hereunder shall be in writing
(including facsimile or similar writing) addressed as follows:
If to the Company:
Dynegy Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to (such copy not to constitute notice):
Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P.
0000 Xxxxxxxx Xxxxx, Xxxxx Tower
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to the Buyer:
ChevronTexaco Corporation
000 Xxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
with a copy to (such copy not to constitute notice):
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
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii) one
business day after being deposited with a next-day courier, postage prepaid, or
(iii) three business days after being sent certified or registered mail, return
receipt requested, postage prepaid, in each case addressed as above (or to such
other address as such party may designate in writing from time to time).
6.7 HEADINGS. The article and section headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
6.8 ENTIRE AGREEMENT. This Agreement and the documents expressly
referenced herein embody the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings between the parties with
respect to such subject matter.
6.9 SEVERABILITY. If any one or more provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or, unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
6.10 FURTHER ASSURANCES. Each party to this Agreement agrees to execute
such documents or instruments, and to take such action, as the other party may
reasonably request after the date hereof in order to effectuate and perfect the
agreements contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
DYNEGY INC.
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxxx
--------------------------------------
Title: Chairman and Chief Executive Officer
--------------------------------------
CHEVRONTEXACO CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
--------------------------------------
Title: Attorney-in-Fact
-------------------------------------
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