Exhibit 2
SUPPORT AGREEMENT
SUPPORT AGREEMENT, dated as of December 15, 2010 (this "Agreement"), by and
among the parties listed on the signature page(s) hereto (collectively, the
"Stockholders" and each individually, a "Stockholder") and Dynegy Inc., a
Delaware corporation (the "Company"). Capitalized terms used and not otherwise
defined herein shall have the respective meanings ascribed to them in the Merger
Agreement (as defined below).
RECITALS
WHEREAS, as of the date hereof, each Stockholder beneficially owns that
number of Shares and options to purchase Shares (the "Call Options") set forth
opposite its names on Schedule I hereto (such Shares, and any other Equity
Interests, hereafter acquired by any Stockholder as the date hereof and prior to
the termination of this Agreement, whether upon the exercise of options
(including the Call Options), warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise, being referred to herein collectively as the "Subject
Securities");
WHEREAS, concurrently with the execution of this Agreement, IEH Merger Sub
LLC, a Delaware limited liability company (the "Parent"), IEP Merger Sub Inc., a
Delaware corporation and wholly-owned subsidiary of Parent ("Merger Sub"), and
the Company are entering into an Agreement and Plan of Merger, dated as of the
date hereof (as it may be amended from time to time, the "Merger Agreement");
WHEREAS, the Merger Agreement provides that, upon the terms and subject to
the conditions thereof, Parent will commence an Offer to purchase all of the
issued and outstanding Shares at the Offer Price, and, subject to the
satisfaction or waiver of certain conditions set forth in the Merger Agreement,
Merger Sub will merge with and into the Company (the "Merger") and the Company
will become a wholly owned subsidiary of Parent;
WHEREAS, the Merger Agreement also provides that the Merger may be
consummated regardless of whether the Offer is completed, but if the Offer is
not completed, the Merger will only be consummated following adoption of the
Merger Agreement by the stockholders of the Company in accordance with
applicable Law; and
WHEREAS, as a condition to the willingness of the Company to enter into the
Merger Agreement, the Company has required that the Stockholders agree to enter
into this Agreement.
NOW, THEREFORE, in consideration of the premises and the representations,
warranties, covenants and agreements contained herein, the parties hereto hereby
agree as follows:
Section 1. Voting and Transfer of Subject Securities; Waiver of Appraisal
Rights. Each Stockholder covenants and agrees that until the termination of this
Agreement in accordance with the terms hereof, such Stockholder will comply with
all obligations applicable to Affiliates of Parent set forth in Section 7.13 of
the Merger Agreement.
Section 2. Representations and Warranties of the Stockholders. Each
Stockholder, jointly and severally, represents and warrants to the Company that:
(a) Organization and Good Standing. Each Stockholder is a legal entity duly
organized, validly existing and in good standing (with respect to jurisdictions
that recognize the concept of good standing) under the Laws of the jurisdiction
of its organization.
(b) Corporate Authority. Each Stockholder has all requisite corporate,
limited partnership or other power and authority to execute, deliver and perform
this Agreement, with no limitations, qualifications or restrictions on such
power, and the execution, delivery and performance of this Agreement have been
duly authorized by all necessary action and do not contravene any provision of
such Stockholder's charter, partnership agreement, operating agreement or
similar organizational documents, any law, regulation, rule, decree, order,
judgment or contractual restriction binding on such Stockholder or its assets.
(c) Governmental Approvals. All consents, approvals, authorizations,
permits of, filings with and notifications to, any governmental authority
necessary for the due execution, delivery and performance of this Agreement by
each Stockholder have been obtained or made and all conditions thereof have been
duly complied with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with the
execution, delivery or performance of this Agreement. other than in connection
with the requirements of the Exchange Act and where such violations or failures
to make or obtain any filing with or notification to, or consents, approvals,
authorizations, permits of, any governmental authority would not, individually
or in the aggregate, materially impair the ability of the Stockholder to perform
this Agreement.
(d) Enforceability. This Agreement constitutes a legal, valid and binding
obligation of each Stockholder enforceable against each Stockholder in
accordance with its terms, subject to (i) the effects of bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors' rights generally, and (ii) general equitable principles
(whether considered in a proceeding in equity or at law).
(e) Subject Securities. As of the date hereof and at all times prior to the
termination of this Agreement, each Stockholder beneficially owns (as determined
pursuant to Rule 13d-3 under the Exchange Act) the Subject Securities set forth
on Schedule I opposite to the name of each Stockholder. As of the date hereof,
the Subject Securities constitute all of the Shares and Call Options which each
Stockholder beneficially owns, and in the case of the Shares, has the power to
vote or direct the votes. The Subject Securities and the Call Options are all of
the Shares or Equity Interests in which Xxxx X. Icahn, the Stockholders or any
of their respective Affiliates have beneficial ownership, and in the case of the
Shares, voting rights. Except for this Agreement, the Subject Securities are now
and at all times during the term hereof will be, held by the each Stockholder,
free and clear of all liens, proxies, powers of attorney, voting trusts and
voting agreements and arrangements (collectively, "liens").
Section 3. Representations and Warranties of the Company. Company
represents and warrants to Stockholders that:
(a) Organization and Good Standing. The Company is a legal entity duly
organized, validly existing and in good standing (with respect to jurisdictions
that recognize the concept of good standing) under the Laws of the jurisdiction
of its organization.
(b) Corporate Authority. The Company has all requisite corporate, limited
partnership or other power and authority to execute, deliver and perform this
Agreement and the execution, delivery and performance of this Agreement have
been duly authorized by all necessary action and do not contravene any provision
of the Company's charter, partnership agreement, operating agreement or similar
organizational documents, any law, regulation, rule, decree, order, judgment or
contractual restriction binding on the Company or its assets.
(c) Governmental Approvals. All consents, approvals, authorizations,
permits of, filings with and notifications to, any governmental authority
necessary for the due execution, delivery and performance of this Agreement by
the Company have been obtained or made and all conditions thereof have been duly
complied with, and no other action by, and no notice to or filing with, any
governmental authority or regulatory body is required in connection with the
execution, delivery or performance of this Agreement, other than in connection
with the requirements of the Exchange Act and where such violations or failures
to make or obtain any filing with or notification to, or consents, approvals,
authorizations, permits of, any governmental authority would not, individually
or in the aggregate, materially impair the ability of the Company to perform
this Agreement.
(d) Enforceability. This Agreement constitutes a legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws affecting
creditors' rights generally, and (ii) general equitable principles (whether
considered in a proceeding in equity or at law).
Section 4. Termination. This Agreement shall terminate immediately at and
as of the Voting Termination Date.
Section 5. Call Options.The parties acknowledge that, notwithstanding
anything to the contrary herein, the Subject Securities include Call Options
which the Stockholder cannot vote and which cannot be exercised prior to the
satisfaction or waiver of, if the Offer has not been terminated in accordance
with the Merger Agreement, the Regulatory Condition, or, if the Offer has been
terminated in accordance with the Merger Agreement, the condition set forth in
Section 8.3(c) of the Merger Agreement.
Section 6. Miscellaneous.
(a) Entire Agreement. This Agreement (including any schedules hereto) and
the Merger Agreement constitute the entire agreement, and supersede all other
prior agreements, understandings, representations and warranties both written
and oral, among the parties, with respect to the subject matter hereof. The
parties hereto may modify or amend this Agreement, by written agreement executed
and delivered by duly authorized officers of the respective parties.
(b) Notices. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, by
facsimile or by overnight courier:
(i) if to a Stockholder:
c/o Icahn Associates Corp
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Deputy General Counsel
Fax: (000) 000-0000
Attention: Chief Financial Officer
Fax: (000) 000-0000
(ii) if to the Company to:
Dynegy Inc.
0000 Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
(iii) with a copy to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxxx Xxxxxxxxxxxxx
Fax: (000) 000-0000
or to such other persons or addresses as may be designated in writing by the
party to receive such notice as provided above. Any notice, request, instruction
or other document given as provided above shall be deemed given to the receiving
party upon actual receipt, if delivered personally; three (3) business days
after deposit in the mail, if sent by registered or certified mail; upon
confirmation of successful transmission if sent by facsimile and received by
5:00 p.m. New York time on a business day (otherwise the next business day)
(provided that if given by facsimile such notice, request, instruction or other
document shall be followed up within one (1) business day by dispatch pursuant
to one of the other methods described herein); or on the next business day after
deposit with an overnight courier, if sent by an overnight courier.
(c) No Third Party Beneficiaries. This Agreement is not intended to, and
does not, confer upon any Person other than the parties hereto any rights or
remedies hereunder, including the right to rely upon the representations and
warranties set forth herein.
(d) Assignment. Except as provided in Section 1 hereof, neither this
Agreement nor any of the rights, interests or obligations under this Agreement
may be assigned or delegated, in whole or in part, by operation of law or
otherwise by any of the parties hereto without the prior written consent of all
of the other parties and any such assignment without such prior written consent
shall be null and void. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by, the parties
hereto and their respective successors and permitted assigns.
(e) Mutatis Mutandis. Sections 10.4, 10.5, 10.12 and 10.13 of the Merger
Agreement shall apply to this Agreement, mutatis mutandis, as if it had been
fully set forth herein.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
HIGH RIVER LIMITED PARTNERSHIP
By: Xxxxxx Investments LLC, its
general partner
By: Barberry Corp., its sole
stockholder
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
ICAHN PARTNERS LP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Managing Director
ICAHN PARTNERS MASTER FUND LP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Managing Director
ICAHN PARTNERS MASTER FUND II LP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Managing Director
ICAHN PARTNERS MASTER FUND III LP
By: /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Managing Director
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
DYNEGY INC.
By: /s/ Xxxxx X. Xxxxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Chairman, President, and
Chief Executive Officer
Schedule I
Stockholder Beneficial Ownership
Stockholder Number of Shares Number of Call Options
----------- ---------------- ----------------------
High River Limited Partnership 2,399,999 1,208,442
Icahn Partners LP 3,653,675 1,857,034
Icahn Partners Master Fund LP 4,145,343 2,092,971
Icahn Partners Master Fund II LP 1,215,577 590,137
Icahn Partners Master Fund III LP 585,406 293,628
TOTAL 12,000,000 6,042,212
