EXHIBIT 10(bb)(5)
FIRST AMENDMENT TO TEXAS GENCO OPTION AGREEMENT
This First Amendment to Texas Genco Option Agreement (this
"Amendment"), entered into this 21st day of February, 2003, but effective as of
December 31, 2000, between CenterPoint Energy, Inc., a Texas corporation
("CenterPoint Energy" or "Regco"), and Reliant Resources, Inc., a Delaware
corporation ("Resources");
WHEREAS, Reliant Energy, Incorporated and Resources executed
that certain Texas Genco Option Agreement, dated as of December 31, 2000 (the
"Agreement");
WHEREAS, on August 31, 2002, CenterPoint Energy became the
successor to the rights and obligations of Reliant Energy, Incorporated under
the Agreement pursuant to the corporate restructuring of Reliant Energy,
Incorporated contemplated in that Agreement;
WHEREAS, CenterPoint Energy and Resources desire to amend the
Agreement in certain respects;
NOW THEREFORE, the parties, in consideration of the
premises and for good and valuable consideration agree as follow:
1. Definitions.
Capitalized terms used herein and not defined shall have the
meaning given in the Agreement.
2. Amendment to Section 2.1.
Section 2.1 of the Agreement, Organization of ▇▇▇▇▇ ▇▇, is amended
by deleting the reference therein to "December 31, 2001" and substituting
therefor "September 1, 2002."
3. Amendment to Section 2.4.
Section 2.4 of the Agreement, Genco Employee Matters, is amended
by deleting the reference therein to "January 1, 2002" and substituting therefor
"September 1, 2002."
4. Amendment to Section 3.1.
The penultimate sentence of the first paragraph of Section 3.1
shall be amended to read: "The Control Premium Amount shall apply to the extent
that the PUCT includes up to a 10% control premium in the valuation of Texas
Genco pursuant to Section 39.262(h)(3) of the Utilities Code and shall equal the
proportional amount of the control premium applicable to the Shares.
5. Amendment to Section 3.2.
Section 3.2 of the Agreement, Exercise of Option, is amended to
read:
Resources may exercise the Option by giving written notice
thereof to Regco during the Option Period. Subject to compliance with
Section 3.3, and to satisfaction of the Regulatory Conditions to
Exercise, delivery of and payment for the Shares (assuming the Option
has been so exercised) shall be made at 10:00 A.M., Houston time, on
the later of (a) the forty-fifth (45th) business day (or the next
business day after the expiration of 45 days in the event the 45th day
is a bank holiday) following the giving of such notice (or such other
date as the parties agree) and (b) the first business day following the
satisfaction of the Regulatory Conditions to Exercise (satisfaction of
which shall be a condition precedent to such delivery and payment)
(which date shall be the "Option Closing Date"), provided that if the
amount of any Control Premium Amount included in the exercise price has
not been determined by Final Order of the PUCT prior to the date for
delivery and payment so determined, the payment made on the date so
determined shall exclude any Control Premium Amount and such Control
Premium Amount shall be paid in immediately available funds no later
than 5 business days after the PUCT issues a Final Order determining
market value under Section 39.262(h)(3) of the Utilities Code. Delivery
of the Shares shall be made to Resources on the Option Closing Date
against payment by Resources of the purchase price by wire transfer
payable in same-day funds to the account specified by Regco. Delivery
of the Shares shall be made by delivery to Resources of stock
certificates representing the Shares, accompanied by appropriate stock
powers or other instruments in proper form to effect such transfer. If
Resources determines prior to the Option Period and within one year
prior to the anticipated Option Closing Date that it intends in good
faith, subject to economic conditions and other reasonable assumptions
identified at such time, to exercise the Option, it and Regco shall
make all appropriate regulatory filings, including filings under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act ("H-S-R") and the Nuclear
Regulatory Commission, with a view to obtaining required approvals or
expiration or termination of the applicable waiting period prior to the
Option Exercise Date. Regco and Resources shall use commercially
reasonable efforts to cause all other Regulatory Conditions to Exercise
to be satisfied as promptly as practicable after the Option Exercise
Date.
If Resources exercises the Option by giving notice as provided
above, Resources shall be entitled to rescind its exercise of the
Option by notice given to Regco on or before the 45th day following the
Option Exercise Date if Resources has been unable by that date to
secure financing for its purchase of the Shares on terms reasonably
acceptable to Resources, despite the exercise by Resources of
commercially reasonable efforts to obtain such financing. Upon the
giving of such notice of rescission by Resources, the Option Period
shall be deemed to have expired without the exercise of the Option.
If the Option Closing Date has not occurred by the
last day of the sixteenth (16th) month after the month in which the
Option Exercise Date occurs, the rights of the parties under this
Agreement shall terminate.
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6. Amendment of Section 3.6.
Section 3.6 of the Agreement, Prohibitions on Market Activity, is
amended to read: "Prior to the later of (a) the Option Exercise Date; (b) if the
Option is not exercised, the Option Expiration Date; or (c) the conclusion of
the trading period for the Genco Stock as determined pursuant to Section
39.262(h)(3), neither Regco, Resources nor Genco shall, directly or indirectly
through any Subsidiary or other Person, purchase, sell, contract to purchase or
sell, or otherwise acquire or dispose of any shares of Genco Common Stock or any
options, warrants, rights, convertible securities or other securities
convertible into or exercisable or exchangeable for Common Stock, except as may
be necessary to effectuate this Agreement.
7. Amendment to Section 6.1.
Section 6.1 of the Agreement, Genco IPO or Genco Spinoff, is
amended by deleting the reference to "June 30, 2002" and substituting therefor
"January 9, 2003."
8. Amendment to Section 7.9.
Section 7.9 of the Agreement, Dividends; No Repurchases of Capital
Stock, is deleted and the following Section 7.9 is substituted therefor:
7.9 Dividends; No Repurchases of Capital Stock
For the period beginning on the Genco Public Ownership Date,
the Genco Board of Directors shall establish a dividend policy under
which it will distribute to its shareholders a dividend based on
Genco's earnings and cash flows, subject to any limitations under
corporate law or applicable regulatory restrictions, its financial
condition and other factors the Board of Directors deems relevant. The
dividend shall be set annually for each calendar year on or before
December 31 of the immediately preceding calendar year. The initial
annual dividend for 2003 will be $1.00. The dividend as established may
be revised during any calendar year in the event the Genco Board of
Directors reasonably concludes that circumstances would warrant a
change or that an adjustment is required to the dividend to satisfy its
obligations to the corporation. However, the dividend may only be
increased by up to 10 percent once during any calendar year. Such
dividend amount shall be paid through regular quarterly cash dividends
complying with this Section 7.9 ("Regular Cash Dividends"). If the
Option is exercised, Resources agrees that it will maintain this
dividend policy so long as Resources owns less than 100% of Genco
common stock.
If Resources exercises the Option, the purchase price for the
Shares shall be adjusted for the difference between:
(a) the actual earnings of Genco per share from the Genco
Public Ownership Date to the Option Closing Date (the Earnings Period),
multiplied by the number of Shares, and
(b) the dividends per share paid by Genco to Regco during
the Earnings Period multiplied by the Shares.
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To the extent dividends paid for each Share during
the Earnings Period have been less than the actual per share earnings
of Genco during the Earnings Period, the Option Price shall be adjusted
upward for the difference; and to the extent dividends paid for each
Share during the Earnings Period exceed the actual earnings of Genco
per Share during the Earnings Period, the option price shall be
credited with that difference. If and to the extent financial
statements are not available to permit the earnings for the entire
Earnings Period to be calculated at the date any such payment is to be
made, the payment shall be made as promptly thereafter as practicable.
Earnings for any portion of a month shall be calculated by pro rating
earnings for the entire month based on the number of days in the
applicable portion of such month.
From and after the Genco Public Ownership Date, Genco
will not declare, set aside or pay any dividend payable in cash, stock
or property, except for (a) Regular Cash Dividends, or (b) dividends
payable solely in Genco Common Stock for which, if occurring during the
Pricing Period, an adjustment is made pursuant to Section 3.1. Genco
will not, and will not permit any of its Subsidiaries to, purchase or
otherwise acquire for value any shares of Genco Common Stock.
9. Amendment to Section 7.13.1.
Section 7.13.1 is amended by deleting the reference therein to "15
days" and by substituting therefor "45 days."
10. Amendment to Section 8.1.
Section 8.1 of the Agreement, Board Composition, is amended by the
addition of the following at the end of the Section:
If the Option is exercised, Regco agrees it will, subject to the
satisfaction of the Regulatory Conditions to Exercise and the
expiration of the 45-day rescission period set forth in Section
3.2, cause the shares of common stock of Genco owned or controlled
by Regco to be voted in favor of nominees for Director proposed by
Resources so that a majority of the Board of Directors as of the
Option Closing Date will be nominees of Resources.
11. No Implied Amendments. Except as specifically amended by this
Amendment, the Agreement shall remain in full force and effect in accordance
with its terms and is hereby ratified and confirmed.
12. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned, by their officers
thereunto duly authorized, have executed this Amendment to the Texas Genco
Option Agreement as of the day and year first above written.
CENTERPOINT ENERGY, INC. RELIANT RESOURCES, INC.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇ ▇▇▇▇▇▇
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