Attached files
| file | filename |
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| 8-K - DYNEGY, INC. 8-K 3-7-2011 - DYNEGY INC. | form8-k.htm |
| EX-99.1 - EXHIBIT 99.1 - DYNEGY INC. | ex99_1.htm |
[Dynegy Letterhead]
IEH Merger Sub LLC
Icahn Enterprises Holdings L.P.
IEP Merger Sub Inc.
Icahn Partners LP
Icahn Partners Master Fund LP
Icahn Partners Master Fund II LP
Icahn Partners Master Fund III LP
High River Limited Partnership
Hopper Investments LLC
Barberry Corp.
Icahn Onshore LP
Icahn Offshore LP
Icahn Capital LP
IPH GP LLC
Icahn Enterprises L.P.
Icahn Enterprises G.P. Inc.
Beckton Corp.
Carl C. Icahn
c/o Icahn Enterprises Holdings L.P.
767 Fifth Avenue, 47th Floor
New York, NY 10153
Attention: Deputy General Counsel
March 8, 2011
Dear Ladies and Gentlemen:
This letter agreement (this “Agreement”) is made by and among IEH Merger Sub LLC, Icahn Enterprises Holdings L.P., IEP Merger Sub Inc., Icahn Partners LP, Icahn Partners Master Fund LP, Icahn Partners Master Fund II LP, Icahn Partners Master Fund III LP, High River Limited Partnership, Hopper Investments LLC, Barberry Corp., Icahn Onshore LP, Icahn Offshore LP, Icahn Capital LP, IPH GP LLC, Icahn Enterprises L.P., Icahn Enterprises G.P. Inc., Beckton Corp., Carl C. Icahn (the foregoing individuals and entities being collectively referred to herein as “Icahn” and each individually as a “Member”), and Dynegy Inc., a Delaware corporation (“Dynegy”).
1. Section 203 of the DGCL.
Dynegy hereby represents and warrants that the Board of Directors of Dynegy (the “Board”) has approved, for the purposes of Section 203 of the Delaware General Corporation Law (“DGCL”), from and after the date hereof, the Members collectively owning (as such term is defined under Section 203 of the DGCL) and acquiring voting stock of Dynegy in open market purchases, private transactions, the purchase or exercise of options, a tender offer or otherwise, up to, but not exceeding, 19.99999 percent of the outstanding voting stock of Dynegy (the “Ownership Threshold”), and subject to such limitation, becoming an “interested stockholder” for purposes of Section 203 of the DGCL, and entering into and becoming bound by this Agreement (such approval, together with this Agreement, the "203 Waiver"). Dynegy further acknowledges and irrevocably agrees that the 203 Waiver includes the approval of the Board that Dynegy and the Board shall not, and Dynegy and the Board agree that they shall not, at any time reduce or otherwise modify the 203 Waiver, including but not limited to the Ownership Threshold, without the Members’ prior written consent. The Members acknowledge that the 203 Waiver is limited as set forth in this Section 1 and is effective only to the extent of such limitation.
2. Representations and Warranties.
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a)
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Each Member, on behalf of himself or itself, as applicable, represents and warrants that (i) each Member has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and (ii) this Agreement has been duly and validly authorized, executed and delivered by each Member, constitutes a valid and binding obligation and agreement of each Member and is enforceable against each Member in accordance with its terms.
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b)
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Dynegy hereby represents and warrants that (i) it has the power and authority to execute, deliver and carry out the terms and provisions of this Agreement and to consummate the transactions contemplated hereby, and (ii) this Agreement has been duly and validly authorized, executed and delivered by Dynegy, constitutes a valid and binding obligation and agreement of Dynegy and is enforceable against Dynegy in accordance with its terms.
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3. Notice. 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:
if to Icahn or any Member:
c/o Icahn Enterprises Holdings L.P.
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Deputy General Counsel
Fax.: (212) 688-1158
if to Dynegy to:
Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, TX 77002
Attention: General Counsel
Fax: (713) 356-2185
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Joseph B. Frumkin
Krishna Veeraraghavan
Fax: (212) 558-3588
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.
4. Assignment. This Agreement shall not be assignable by operation of law or otherwise by a party without the consent of the other party. Subject to the foregoing sentence, this Agreement shall be binding upon, inure to the benefit of, and be enforceable by and against the successors and assigns of each party to this Agreement.
5. Amendment; Counterparts. Any amendment or modification of the terms and conditions set forth herein or any waiver of such terms and conditions must be agreed to in a writing signed by each party hereto. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same agreement. Signatures to this Agreement transmitted by facsimile transmission, by electronic mail in “portable document format” (“.pdf”) form, or by any other electronic means intended to preserve the original graphic and pictorial appearance of a document, will have the same effect as physical delivery of the paper document bearing the original signature.
6. Waiver. Neither the failure nor any delay by a party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder.
7. No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and is not enforceable by any other persons
8. Entire Agreement. This Agreement contains the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof and thereof.
9. Remedies. The parties to this Agreement agree that irreparable damage would occur if any provision of this Agreement were not strictly performed in accordance with its terms and that each party to this Agreement shall be entitled to an injunction to prevent breaches of this Agreement and to enforce specifically the performance of the provisions hereof in the Court of Chancery of the State of Delaware, in addition to any other remedy to which any party may be entitled at law or in equity.
10. Jurisdiction. The parties to this Agreement agree that any suit, action or proceeding to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement may be brought only in the Court of Chancery of the State of Delaware or a federal court located in Delaware, and each party irrevocably consents to the jurisdiction of such courts (and of the appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives any objection it may now or hereafter have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
11. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any conflict of law rules that would otherwise cause the application of the laws of any other state.
Please acknowledge your agreement and acceptance of the foregoing by countersigning this letter in the space provided below.
Agreed and accepted:
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DYNEGY INC.
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By
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/s/Kent R. Stephenson
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Name:
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Kent R. Stephenson
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Title:
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EVP & General Counsel
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Accepted and agreed:
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IEH MERGER SUB LLC
By: Icahn Enterprises Holdings L.P., Its Sole Member
By: Icahn Enterprises G.P. Inc., Its General Partner
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ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., Its General Partner
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By
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/s/ Edward Mattner
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By:
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/s/ Daniel Ninnivaggi
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Name:
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Edward Mattner
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Name:
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Daniel Ninnivaggi
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Title:
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Authorized Signatory
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Title:
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President
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IEP MERGER SUB INC.
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ICAHN PARTNERS LP
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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ICAHN PARTNERS MASTER FUND LP
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ICAHN PARTNERS MASTER FUND II LP
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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ICAHN PARTNERS MASTER FUND III LP
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BARBERRY CORP.
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, Its General Partner
By: Barberry Corp., Its Sole Member
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HOPPER INVESTMENTS LLC
By: Barberry Corp., Its Sole Member
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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ICAHN ONSHORE LP
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ICAHN OFFSHORE LP
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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ICAHN CAPITAL LP
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IPH GP LLC
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By
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/s/ Edward Mattner
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By:
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/s/ Edward Mattner
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Name:
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Edward Mattner
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Name:
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Edward Mattner
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Title:
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Authorized Signatory
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Title:
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Authorized Signatory
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ICAHN ENTERPRISES L.P.
By: Icahn Enterprises G.P. Inc., Its General Partner
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ICAHN ENTERPRISES G.P. INC.
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By
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/s/ Daniel Ninnivaggi
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By:
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/s/ Daniel Ninnivaggi
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Name:
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Daniel Ninnivaggi
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Name:
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Daniel Ninnivaggi
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Title:
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President
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Title:
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President
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BECKTON CORP.
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CARL C. ICAHN
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By
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/s/ Edward Mattner
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By:
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/s/ Carl C. Icahn
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Name:
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Edward Mattner
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Name:
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Carl C. Icahn
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Title:
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Authorized Signatory
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Title:
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