EXHIBIT B-1(d)
AMENDMENT NO. 4 TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 4, dated as of September 24, 2004, to the STOCK PURCHASE
AGREEMENT, dated as of February 2, 2004, is entered into by and among Ameren
Corporation, a Missouri corporation ("Purchaser"), Illinova Corporation, an
Illinois corporation ("Seller"), Illinova Generating Company, an Illinois
corporation ("IGC"), and Dynegy Inc., an Illinois corporation ("Dynegy").
Dynegy, IGC and Seller are referred to herein as the "Dynegy Parties".
W I T N E S S E T H:
WHEREAS, Purchaser and the Dynegy Parties entered into a Stock Purchase
Agreement, dated February 2, 2004, as amended by Amendment No. 1 dated as of
March 23, 2004, Amendment No. 2 dated as of April 30, 2004 and Amendment No. 3
dated as of May 31, 2004 (the "Amended Agreement"), providing for the sale to
Purchaser of all of the capital stock of Illinois Power Company, an Illinois
corporation, held by Seller, and IGC's 20% share of Electric Energy, Inc., an
Illinois corporation; and
WHEREAS, Purchaser and the Dynegy Parties wish to amend the Amended
Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and the mutual terms,
conditions and agreements set forth herein, the parties hereto hereby agree as
follows:
Section 1 Defined Terms. All capitalized terms used and not
defined herein have the meanings set forth in the Amended Agreement.
Section 2 Amendment to Section 5.3(d). Section 5.3(d) of the
Amended Agreement is amended by relabeling it as Section 5.3(d)(i) and
adding the following paragraph as Section 5.3(d)(ii): "Purchaser
acknowledges that IPC filed, on or about August 2, 2004, in Docket No.
ER04-1091-000, an application with FERC for the recovery of the MISO
exit fee and Alliance development costs previously incurred by IPC (in
each case with interest) (such amounts, collectively, the "MISO
Amounts"), and that FERC on September 20, 2004 issued an order granting
IPC's request for a return of all such MISO Amounts. From and after the
Closing, at Dynegy's direction and expense, Purchaser shall cause IPC
diligently to pursue the maximum recovery of the MISO Amounts from MISO
for the benefit of Dynegy. Purchaser further acknowledges that IPC may
at any time direct MISO to pay after the Closing any such MISO Amounts
directly to Dynegy, rather than to IPC. In the event that (i) any MISO
Amounts are recovered and received by IPC after the Closing, Purchaser
will pay, or will cause IPC to pay, all such amounts to Dynegy, by wire
transfer to Bank One Chicago, ABA Number 000000000, Account Name:
Dynegy Inc. New, Account Number 654204452, no later than the third
business day after any such receipt by IPC, and (ii) any MISO Amounts
are set-off or reduced by MISO (x) to the extent applicable to the
business conducted by or the operations of IPC or its Subsidiaries
after the Closing, including, without limitation, the participation of
IPC or its Subsidiaries in MISO (such as credits or prepaid amounts
applicable to periods after the Closing), or (y) to the extent
applicable to the business conducted by or the operations of Purchaser
or its Subsidiaries (other than IPC), whether before or after the
Closing, Purchaser will pay, or will cause IPC to pay, to Dynegy, by
wire transfer to Bank One Chicago, ABA Number 000000000, Account Name:
Dynegy Inc. New, Account Number 654204452, the amount of such set-off
or reduction no later than the third business day after MISO advises
IPC or Purchaser of such set-off or reduction."
Section 3 Amendments to Exhibit A.
(a) Exhibit A to the Amended Agreement is amended by adding
new items 12 and 13 to Section A thereof, immediately following item 11
of such Section A, to read in their entirety as follows:
"12. MISO Exit Fee and Alliance Development Costs:
In the event that any MISO Amounts have not been repaid,
returned or reimbursed to IPC prior to the Closing, such
unpaid, unreturned and unreimbursed MISO Amounts will not be
included in the calculation of Proposed Final Adjusted
Working Capital or Final Adjusted Working Capital as an
increase to current assets. For the avoidance of doubt,
neither the Adjusted Working Capital nor the Target Adjusted
Working Capital shall be increased or decreased by any such
MISO Amounts.
13. Effect of Asbestos Trust. The establishment and
funding of the trust referred to in Section 5.21(i) shall
have no effect on the calculation of Adjusted Working
Capital."
(b) The second paragraph of Section C of Exhibit A to the
Amended Agreement is hereby amended by deleting the reference to
"$25,000,000" and replacing it with "$26,000,000."
Section 4 Amendment to Section 5.21. Section 5.21 of the
Amended Agreement is amended by adding thereto the following as a new
Section 5.21(i):
"(i) At the Closing, each of Purchaser and Dynegy
will contribute $10 million in cash to the trust to be
established by Purchaser as contemplated on page 1 of Exhibit
B to the Final Order of the ICC in ICC Docket No. 04-0294."
Section 5 No Other Amendments. Except as set forth herein, the
Amended Agreement remains in full force and effect.
Section 6 Counterparts. This Agreement may be executed in one
or more counterparts, and by the parties in separate counterparts, each
of which when executed shall be deemed to be an original but all of
which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, Seller, IGC, Dynegy and Purchaser have caused this
Amendment No. 4 to the Original Agreement to be executed as of the date first
written above by their respective officers thereunto duly authorized.
ILLINOVA CORPORATION
By /s/ R. Xxxxx Xxxxx
------------------------------------
Name: R. Xxxxx Xxxxx
Title: Executive Vice President-
Administration and
Technology
ILLINOVA GENERATING COMPANY
By /s/ R. Xxxxx Xxxxx
------------------------------------
Name: R. Xxxxx Xxxxx
Title: Executive Vice President-
Administration and
and Technology
DYNEGY INC.
By /s/ R. Xxxxx Xxxxx
------------------------------------
Name: R. Xxxxx Xxxxx
Title: Executive Vice President-
Administration and
Technology
AMEREN CORPORATION
By /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
Governmental/Regulatory
Policy, General Counsel
and Secretary
