Exhibit 4.5
LOCK-UP AGREEMENT
This Lock-Up Agreement (this “
Agreement ”), dated as of September 14,
2006, is by and among LSP Gen Investors, LP, a Delaware limited
partnership; LS Power Partners, LP, a Delaware limited partnership;
LS Power Associates, L.P., a Delaware limited partnership; LS Power
Equity Partners PIE I, LP, a Delaware limited partnership; LS Power
Equity Partners, L.P., a Delaware limited partnership
(collectively, the “ Contributors ”) and
Chevron U.S.A. Inc., a Pennsylvania corporation (“
CUSA ”);
WITNESSETH:
WHEREAS, concurrently herewith,
Dynegy Acquisition, Inc., a Delaware corporation (“
Newco ”), Falcon Merger Sub Co., an Illinois
corporation and a wholly owned subsidiary of Newco (“
Merger Sub ” and, together with Newco, the
“ Newco Entities ”), the Contributors,
and Dynegy Inc., an Illinois corporation (“
Dynegy ”), are entering into a Plan of Merger,
Contribution and Sale Agreement (as amended or supplemented from
time to time, the “ Merger Agreement
”);
WHEREAS, in connection with the
Merger Agreement, the Contributors and CUSA are parties to that
certain Voting Agreement dated as of the date hereof (the “
Voting Agreement ”);
WHEREAS, execution and delivery of
this Agreement is a condition to CUSA’s performance of its
obligations under the Voting Agreement;
WHEREAS, concurrently herewith,
Newco is entering into separate Registration Rights Agreements with
the Contributors and with CUSA (collectively, the “
Registration Rights Agreements ”);
WHEREAS, the Contributors and CUSA
desire to set forth certain agreements with respect to disposition
of Registrable Common Stock (as defined in the Registration Rights
Agreements) following the consummation of the Merger;
NOW, THEREFORE, in consideration of
the premises, each of the Contributors and CUSA hereby agree as
follows:
Section 1. Defined
Terms. Capitalized terms
used but not defined in this Agreement shall have the meanings
given them in the Merger Agreement.
Section 2. Representations
and Warranties. Each
party represents and warrants to each other party as follows:
(a) this Agreement has been duly authorized by all requisite
entity action on the part of such party (and, with respect to each
Contributor, its general partner), (b) this Agreement has been
duly executed and delivered by a duly authorized officer of such
party and (c) this Agreement constitutes a valid and binding
agreement of such party.
Section 3.
Contributors’ Lock-Up Agreement. Each of the Contributors hereby agrees that, in
the event (a) the Merger is consummated and (b) CUSA
shall have voted for approval and adoption of the Merger Agreement,
the Merger and the other Transactions in accordance with
Section 1(a) of the Voting Agreement (whether or not the
Voting Agreement was in effect
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at the time of such vote), until the expiration
of the LS Lock-Up Period (as hereinafter defined), it shall not
directly or indirectly transfer, sell, assign, convey, pledge,
hypothecate, encumber, grant any option to purchase, purchase any
option to sell, grant any proxy or enter into any voting or similar
agreement with respect to (collectively, “
Transfer ”) or agree or contract to Transfer
(including without limitation to any of such Contributor’s
direct or indirect owners) any Newco A Shares or Newco B Shares
(collectively, “ Newco Common Stock ”)
except in a transaction pursuant to this Section 3 or to the
extent a Transfer is required by any rule, regulation, order, writ
or decree of any governmental or regulatory authority or agency;
provided , however , that during the period beginning
from the date that is 180 days after the Closing Date (“
Day 180 ”) to the date that is 360 days after
the Closing Date, the Contributors may Transfer up to 21,250,000
Newco B Shares, with an additional 21,250,000 Newco B Shares
becoming Transferable on and after the first day of each succeeding
180-day period thereafter; provided , further ,
however , that if the Contributors Transfer collectively
fewer than the amount of Newco B Shares permitted to be Transferred
during any such 180-day period pursuant to this Section 3, an
unused amount of up to 21,250,000 Newco B Shares may be carried
over to the next succeeding 180-day period. For the avoidance of
doubt, in no event may the Contributors Transfer more than
42,500,000 Newco B Shares during any such 180-day period. The term
“ LS Lock-Up Period ” shall mean the
period from the Closing Date to the earliest to occur of
(a) the second anniversary of the Closing Date and
(b) the expiration the Lock-Up Period (as defined in the
Shareholder Agreement, without giving effect to any amendment,
waiver or modification thereto after the date hereof).
Notwithstanding the provisions of this Section 3,
(i) each Contributor may tender all or a part of the Newco
Common Stock directly owned by it to a third party at any time
pursuant to a tender offer of Newco Common Stock approved by the
Newco board of directors; and (ii) each Contributor may
(A) Transfer all or a part of the Newco Common Stock directly
owned by it to any Permitted Transferee (as defined in the
Shareholder Agreement, without giving effect to any amendment,
waiver or modification thereto after the date hereof) and
(B) on and after Day 180, in a transaction or series of
related transactions, distribute all or a part of the Newco Common
Stock or other Newco securities directly owned by it to any of its
direct or indirect owners (each, a “
Distributee ”) provided , that any such
Permitted Transferee and any such Distributee that is a Contributor
or an Affiliate (as hereinafter defined) of a Contributor (or a
director, officer, general partner or employee or any such person)
shall agree in writing with CUSA to be bound by all of the
transferor’s obligations under this Agreement. The term
“ Affiliate ” shall have the meaning
given such term in Rule 144 under the Securities Act of 1933,
as amended.
Section 4. Piggyback
Rights. In the event at
any time after Day 180 there shall not be available to the
Contributors and CUSA one or more shelf registration statements of
Newco on Form S-3 that would permit the offer and sale of
Newco Common Stock by the Contributors and CUSA from time to time
in accordance with the methods of distribution set forth in
Rule 415 under the Securities Act (any such period, a “
No-Shelf Period ”), then each Contributor and
CUSA shall have the right to participate in any underwritten
registered offering of Newco Common Stock by any other party to
this Agreement, as follows:
(a) In the event any Contributor or
CUSA determines to effect an underwritten registered offering (any
such offering, an “ Offering ”) of Newco
Common Stock (any such party, an “ Initiating
Seller ”), no fewer than 30 days prior to the
proposed date of such Offering, such Initiating Seller will deliver
written notice (an
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“ Offering
Notice ”) to each other party to this Agreement
identifying the material details of such Offering, including the
number of shares of Newco Common Stock the Initiating Seller
proposes to include therein.
(b) Any other party to this
Agreement shall have the right to elect
