AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT DATED AS OF SEPTEMBER 14, 2006
EXHIBIT 10.2
EXECUTION
COPY
AMENDMENT
NO. 1
TO
THE
DATED
AS OF SEPTEMBER 14, 2006
This
Amendment No. 1 (this “Amendment”)
to the Registration Rights Agreement (as defined below) is made and entered into
as of August 9, 2009, among Dynegy Inc., a Delaware corporation formerly known
as Dynegy Acquisition, Inc. (the “Company”),
and LS Power Partners, L.P., a Delaware limited partnership (“LS Power
Partners”), LS Power Associates, L.P., a Delaware limited partnership
(“LS Power
Associates”), LS Power Equity Partners, L.P., a Delaware limited
partnership (“LS Power Equity
Partners”), LS Power Equity Partners PIE I, L.P, a Delaware limited
partnership (“LS Power Equity
Partners PIE I”) and LSP Gen Investors, L.P., a Delaware limited
partnership (“LSP Gen
Investors” and, together with LS Power Partners, LS Power Associates, LS
Power Equity Partners and LS Power Equity Partners PIE I, the “LS Power
Entities”).
RECITALS:
WHEREAS,
in connection with a business combination transaction, the Company and the LS
Power Entities entered into that certain Registration Rights Agreement dated
September 14, 2006 (the “Registration
Rights Agreement”) that grants, among other things, certain registration
rights to the LS Power Entities with respect to shares of Class A Common Stock
issuable upon the conversion of shares of Class B Common Stock held by
them;
WHEREAS,
the parties hereto desire to amend the Registration Rights
Agreement;
WHEREAS,
the parties hereto desire that this Amendment become effective subject to and
conditioned upon the closing of the transactions contemplated by the Purchase
Agreement (defined herein);
WHEREAS,
in connection with the closing of the transactions contemplated by the Purchase
Agreement, the shares of Class B Common Stock of the LS Power Entities as of the
Closing (as defined in the Purchase Agreement) (for the avoidance of doubt,
other than the Relinquished Shares (as defined in the Purchase Agreement)
assigned, conveyed, transferred and delivered to the Company at the Closing
pursuant to Section 2.1 of the Purchase Agreement) shall be converted into
shares of Class A Common Stock;
WHEREAS,
the parties intend for all of the LS Power Entities’ shares of Class A Common
Stock to be deemed Registrable Common Stock for all purposes under the
Registration Rights Agreement; and
WHEREAS,
the Company and the LS Power Entities deem it to be in their mutual best
interest to amend the Registration Rights Agreement on the terms provided
herein.
AGREEMENT:
NOW,
THEREFORE, in consideration of the foregoing Recitals and the mutual covenants
and agreements contained herein and in the Registration Rights Agreement, the
Company and the LS Power Entities hereby agree as follows:
1. Capitalized
Terms. All
capitalized terms used herein and not otherwise defined shall have the same
meanings ascribed to them in the Registration Rights Agreement.
2. Amendment to the
Registration Rights Agreement.
|
A.
|
Section
1 of the Registration Rights Agreement is amended by adding the following
definitions:
|
“Closing Date” shall
have the meaning set forth in the Purchase Agreement.
“New Shareholder
Agreement” means the Shareholder Agreement, dated as of August 9, 2009,
among the Company and the Shareholders party thereto.
“Outside Date” means
the date that is the earlier of (i) the first anniversary of the Closing Date
and (ii) the first date on which the Shareholders own, in the aggregate, less
than 10% of all of the outstanding shares of Class A Common Stock.
“Period One” means the
first one-hundred twenty (120) calendar days following the Closing Date provided that, in the event a suspension of
sales as contemplated by Section 6(d) occurs during the first one-hundred twenty
(120) calendar days, Period One shall be extended by a number of days equal to
the length of such suspension of sales.
“Piggy-Back
Registration” shall have the meaning set forth in Section
4(c).
“Piggy-Back Registration
Statement” means any registration statement utilized by the Company to
effectuate a Piggy-Back Registration as contemplated by Section
4(c).
“Purchase Agreement”
means the Purchase and Sale Agreement dated as of August 9, 2009 among the
Company, the Initial Shareholders and certain of their respective
Affiliates.
“Reference Date” means
the date that is the earlier of (i) the calendar day immediately following the
date on which Period One expires or (ii) the first date on which the
Shareholders own, in the aggregate, less than 10% of all of the outstanding
shares of Class A Common Stock.
|
B.
|
The
definition of “Registrable Common
Stock” in Section 1 of the Registration Rights Agreement is amended
and restated in its entirety as
follows:
|
“Registrable Common
Stock” means any Class A Common Stock held by the Shareholders as a
result of the conversion of Class B Common Stock on and as of the Closing Date,
and any securities issued or issuable in respect of such Registrable Common
Stock by way of any stock split or stock dividend or in connection with any
combination of shares, recapitalization, consolidation, reorganization or
otherwise.”
|
C.
|
Section
4(a) of the Registration Rights Agreement is amended by deleting the
number “$100,000,000” and replacing it with the following: “the lesser of
(x) $100,000,000 or (y) the then current market value of 40,000,000
shares of Class A Common Stock based on the closing price per share of
Class A Common Stock on the then applicable national securities exchange
or automated quotation system”.
|
|
D.
|
Section
4(b) of the Registration Rights Agreement is amended and restated in its
entirety as follows:
|
“The
Shareholders’ Representative shall provide written notice to the Company of the
LS Holders’ intent to effect an Underwritten Offering (the “Underwritten Offering
Notice”). In the event at the time the Underwritten Offering Notice is
given the Company is conducting or about to conduct a firmly underwritten
offering of Class A Common Stock (or securities convertible into Class A Common
Stock) with aggregate proceeds to the Company in excess of $100,000,000, the
Company may, by providing written notice to the Shareholders’ Representative
within five business days of receipt of the Underwritten Offering Notice, defer
(the “Deferral
Right”) the commencement of an Underwritten Offering for a period of up
to 60 days (the “Deferral Period”)
(and in such case may exercise its rights under Section 6(a)); provided, however, that the
Company may only exercise its Deferral Right on and after the Reference Date and
may not exercise its Deferral Right more than once per calendar year thereafter.
If the Company does not give timely notice to the Shareholders’ Representative
of its exercise of its Deferral Right with respect to any Underwritten Offering
hereunder, such Deferral Right shall be deemed not to have been exercised. After
the Company has exercised its Deferral Right for a calendar year, the
Shareholders’ Representative shall not be required to deliver Underwritten
Offering Notices thereafter in that calendar year.
|
E.
|
Section
4 of the Registration Rights Agreement is amended by adding a new
paragraph (c) as follows:
|
“(c) If
at any time (subject to the restrictions set forth in the New Shareholder
Agreement), the Company proposes to engage in an underwritten public offering of
shares of Class A Common Stock for its own account, then the Company shall give
written notice of such proposed underwritten public offering to the
Shareholders, which notice shall offer the Shareholders the opportunity to
include in such underwritten public offering such number of shares of
Registrable Common Stock as such holders may request in writing within 5
calendar days or, if the circumstances of such proposed underwritten public
offering so dictate, such shorter time as is reasonably practicable under the
circumstances but, in no event, less than 24 hours following receipt of such
notice (a “Piggy-Back
Registration”). The Company shall use its commercially
reasonable efforts to cause the managing underwriter or underwriters of such
proposed underwritten offering to permit the shares of Registrable Common Stock
requested to be included in a Piggy-Back Registration Statement on the same
terms and conditions as shares of Class A Common Stock being sold for the
Company’s own account and to permit the sale or other disposition of such shares
of Registrable Common Stock in accordance with the intended method(s) of
distribution thereof. All Shareholders proposing to participate in
such Piggy-Back Registration shall enter into an underwriting agreement in
customary form with the managing underwriter or underwriters
selected by the Company for such underwritten public offering; provided, however, that the
applicable Shareholders shall not be required to make any representations or
warranties in connection with any Piggy-Back Registration other than
representations and warranties as to (i) the applicable Shareholder’s
ownership of its Registrable Common Stock to be sold or transferred free and
clear of all liens, claims and encumbrances, (ii) the applicable
Shareholder’s power and authority to effect such transfer, (iii) such
matters pertaining to compliance with securities laws as may be reasonably
requested, (iv) if applicable, such Shareholder’s organization and good
standing, (v) the lack of conflict of such sales with the applicable
Shareholder’s material agreements and organizational documents and (vi) written
information relating to the applicable Shareholder that such Shareholder has
furnished in writing expressly for inclusion in such Piggy-Back
Registration Statement and; provided, further, that the
obligation of the applicable Shareholders to indemnify pursuant to any such
underwriting agreements shall be several, not joint and several, and the
liability of any Shareholder will be in proportion to, and limited to, the net
amount received by such Shareholder from the sale of such Shareholder’s
Registrable Common Stock pursuant to such Piggy-Back
Registration. The Company shall cause each Piggy-Back Registration
Statement and each prospectus relating thereto, and any amendment or supplement
thereto, as of each effective date of the applicable Piggy-Back Registration
Statement, prospectus, amendment or supplement, (i) to comply in all material
respects with the applicable requirements of the Securities Act and the rules
and regulations of the Commission and (ii) not to contain any untrue statement
of a material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading, except insofar as the same are made in reliance on, and in
conformity with, any information with respect to a Shareholder furnished in
writing to the Company by such Shareholder expressly for use
therein. Notwithstanding the foregoing, if, in the managing
underwriter’s or underwriters’ opinion, the dollar amount or number of shares of
Class A Common Stock which the Company desires to sell for its own account, when
taken together with shares of Registrable Common Stock as to which Piggy-Back
Registration has been requested by the Shareholders under this Section 4(c) plus
shares of Class A Common Stock held by any other Persons who wish to sell in
such underwritten public offering pursuant to written contractual piggy back
registration rights held by such Persons, is sufficiently large to materially
and adversely affect the success of such underwritten public offering, then the
number of shares to be offered for the account of the Company shall not be
affected, but the number of shares of Registrable Common Stock to be offered for
the accounts of the Shareholders and other holders of shares of Class A Common
Stock who have exercised written contractual piggy-back registration rights
shall be reduced pro rata to the extent necessary to reduce the total number of
shares to be included in such offering to the amount recommended by such
managing underwriter or underwriters. If, as a result of the
provisions of this Section 4(c), any Shareholder shall not be entitled to
include all Registrable Common Stock in a Piggy-Back Registration that the
Shareholder has requested to be so included, the Shareholder may withdraw its
request to include Registrable Common Stock in such Piggy-Back Registration
prior to the commencement of the offering.”
|
F.
|
Section
5(c) of the Registration Rights Agreement is amended and restated in its
entirety as follows:
|
“In
connection with the Shelf Registration Statements, each Underwritten Offering,
and each Piggy-Back Registration contemplated by this Agreement, the Company
will reimburse the Shareholders for the reasonable fees and disbursements of one
legal counsel.”
|
G.
|
Section
6(a) of the Registration Rights Agreement is amended by adding the
following sentence at the end of such
section:
|
“In no
event shall any Shareholder be obligated to enter into any “lock-up” agreement
pursuant to this Section 6(a) in respect of the period ending on or prior to the
Reference Date.”
|
H.
|
Section
7 of the Registration Rights Agreement is amended by: (i) replacing each
reference to “Shelf Registration Statement or Prospectus” with a reference
to “Shelf Registration Statement or Prospectus or Piggy-Back Registration
Statement or prospectus”, (ii) each reference to a “Shelf Registration
Statement” (other than as amended by the prior clause) with a reference to
a “Shelf Registration Statement or Piggy-Back Registration Statement” and
(iii) each reference to a “Shelf Registration” (other than as amended by
either of the two prior clauses) with a reference to a “Shelf Registration
or Piggy-Back Registration.”
|
|
I.
|
Section
10 of the Registration Rights Agreement is amended and restated in its
entirety as follows:
|
“This
Agreement shall terminate upon the later to occur of (a) the expiration of the
Limited Distributee Shelf Registration Period, (b) the expiration of the LS
Power Shelf Registration Period and (c) the Outside Date.”
3. Effectiveness of
Amendment.
|
A.
|
This
Amendment shall be effective as of, and on the date of, the Closing Date
(as such term is defined in the Purchase Agreement). If the
Purchase Agreement is terminated prior to the Closing Date, this Agreement
shall terminate and all rights and obligations of the parties hereunder
shall terminate without any liability of any party to any other party, and
the Registration Rights Agreement shall continue to remain in full force
and effect.
|
|
B.
|
Subject
to Section
3A, upon effectiveness of this Amendment, the Registration Rights
Agreement, as amended by this Amendment, is hereby ratified and
confirmed.
|
4. Counterparts. This
Amendment may be executed in multiple counterparts, each of which shall be
deemed an original and all of which shall constitute but one and the same
instrument.
[Signature
Pages To Follow]
EXHIBIT
10.2
IN WITNESS WHEREOF, the
parties hereto have executed this Amendment as of the date first above
written.
|
By:
|
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Executive
Vice President
|
||
|
LS
POWER PARTNERS, L.P.
|
|||
|
By:
|
LS
Power Development, LLC, its General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Vice
Chairman
|
||
|
LS
POWER ASSOCIATES, L.P.
|
|||
|
By:
|
LS
Power Development, LLC, its General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Vice
Chairman
|
||
|
LS
POWER EQUITY PARTNERS, L.P.
|
|||
|
By:
|
LS
Power Partners, L.P., its General Partner
|
||
|
By:
|
LS
Power Development, LLC, its General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Vice
Chairman
|
||
|
LS
POWER EQUITY PARTNERS PIE I, L.P.
|
|||
|
By:
|
LS
Power Partners, L.P., its General Partner
|
||
|
By:
|
LS
Power Development, LLC, its General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Vice
Chairman
|
||
|
LSP
GEN INVESTORS, L.P.
|
|||
|
By:
|
LS
Power Partners, L.P., its General Partner
|
||
|
By:
|
LS
Power Development, LLC, its General Partner
|
||
|
By:
|
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ | ||
|
Name:
|
▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇
|
||
|
Title:
|
Vice
Chairman
|
||
[Signature
Page to Amendment to Registration Rights Agreement]