Exhibit 10.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
September 14, 2006, 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
(“ Shareholder ”).
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 ”;
capitalized terms used without definition herein having the
meanings ascribed thereto in the Merger Agreement).
WHEREAS, as of September 14,
2006, Shareholder owns and/or has the power to vote, as applicable,
the number and type of Shares (as defined in Section 5
below) set forth in Schedule I hereto;
WHEREAS, the Dynegy Board has, prior
to the execution of this Agreement, approved and adopted the Merger
Agreement, and such approvals and adoption have not been
withdrawn;
WHEREAS, approval of the Merger
Agreement by Dynegy’s stockholders is a condition to the
consummation of the Merger; and
WHEREAS, as a condition to entering
into the Merger Agreement, the Contributors have required that
Shareholder agree, and Shareholder has so agreed, to enter into
this Agreement;
NOW THEREFORE, in consideration of
the foregoing and the mutual covenants and agreements set forth
herein, the parties hereto agree as follows:
Section 1. Agreement to Vote.
(a) Shareholder hereby agrees to attend the Dynegy Special
Meeting (or any other meeting of stockholders of Dynegy at which
the matters contemplated by the Merger Agreement are to be
presented to a vote of stockholders of Dynegy), in person or by
proxy, and to vote (or cause to be voted) any voting securities of
Dynegy that as of the applicable record date Shareholder owns
beneficially and has the power to vote (or cause to be voted)
(including any such securities acquired hereafter) (collectively,
the “ Covered Shares ”) for approval and
adoption of: (i) the Merger Agreement, (ii) the Merger,
and (iii) to the extent submitted to the stockholders of
Dynegy for approval in connection with the Merger, the other
Transactions.
(b) Shareholder hereby agrees to
vote (or cause to be voted) any Covered Shares against any Dynegy
Takeover Proposal and any related action reasonably required in
furtherance thereof, at any meeting of stockholders of Dynegy
(including any adjournments or postponements thereof) called to
consider and vote on any Dynegy Takeover Proposal.
(c) To the extent inconsistent with
the foregoing provisions of this Section 1 or the other
provisions of this Agreement, Shareholder hereby revokes any and
all previous proxies with respect to the Covered Shares.
(d) Shareholder hereby agrees
(i) that it will not exercise any of its rights under Article
III, Section 7(B) of Dynegy’s By-laws with respect to
the transactions contemplated by the Merger Agreement and
(ii) the Second Amended and Restated Shareholder Agreement
dated as of May 26, 2006 between Dynegy and Shareholder (the
“ Shareholder Agreement ”) and the
Amended and Restated Registration Rights Agreement (Common Stock),
dated August 11, 2003, between Dynegy and Shareholder shall
terminate as of the Effective Time of the Merger.
(e) Nothing herein contained shall
(i) restrict, limit or prohibit any individual who may
represent Shareholder on the Dynegy Board from exercising (in his
or her capacity as a director or officer) his or her fiduciary
duties to the stockholders of Dynegy under applicable law, or
(ii) require any individual, in his or her capacity as an
officer of Dynegy, to take any action in contravention of, or omit
to take any action pursuant to, or otherwise take or refrain from
taking any actions which are inconsistent with, instructions or
directions of the Dynegy Board undertaken in the exercise of his or
her fiduciary duties, provided that nothing in this
Section 1(e) shall relieve or be deemed to relieve Shareholder
from its obligations under Sections 1 or 2 of this
Agreement.
Section 2. No Acquisition of
Shares. Shareholder hereby agrees that, from the date hereof to the
Closing Date, it will not acquire, directly or indirectly, any
voting securities of Dynegy or Newco.
Section 3. Other Covenants and
Agreements.
Each party shall execute and deliver
such additional instruments and other documents and shall take such
further actions as may be reasonably necessary or appropriate to
effectuate, carry out and comply with all of their obligations
under this Agreement. Without limiting the generality of the
foregoing, neither party shall enter into any agreement or
arrangement (or alter, amend or terminate any existing agreement or
arrangement) or take any other action (or fail to take any other
action) if such action (or failure) would materially impair the
ability of any party to effectuate, carry out or comply with all
the terms of this Agreement. Each of the Contributors hereby agrees
to cooperate with Shareholder in connection with any filings
required to be made by Shareholder in connection with the Merger
and the transactions contemplated thereby.
Section 4. Representations and
Warranties of the Contributors. Each Contributor represents and
warrants to Shareholder as follows: (a) this Agreement has
been duly authorized by all requisite entity action on the part of
such Contributor and its general partner, (b) this Agreement
has been duly executed and delivered by a duly authorized officer
of such Contributor and (c) this Agreement constitutes a valid
and binding agreement of such Contributor, enforceable against
it.
Section 5. Representations and
Warranties of Shareholder. Shareholder represents and warrants to
the Contributors as follows: (a) Shareholder has the corporate
power and authority to execute and deliver this Agreement,
(b) this Agreement has been duly executed and
deliver
