Exhibit 10.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of
September 14, 2006, by and among LS Power Associates, L.P., a
Delaware limited partnership; LSP Gen Investors, LP, 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; LS Power Partners, L.P., a Delaware limited
partnership (collectively, the “ Contributors
”) and the persons listed on the signature page hereto
(collectively, the “ Shareholders
”).
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, each 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withdrawn;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 each
Shareholder agree, and each 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) Each 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 such 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) Each 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, each Shareholder hereby revokes any
and all previous proxies with respect to the Covered
Shares.
(d) Nothing herein contained shall
(i) restrict, limit or prohibit any individual who is a
Shareholder and serves 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(d) shall relieve or be deemed to relieve any such
Shareholder from his or her obligations under Sections 1 or
2 of this Agreement.
Section 2. Disposition of
Shares. Each Shareholder hereby agrees that it will not directly or
indirectly transfer, sell, assign, convey, pledge, hypothecate,
encumber, grant any option to purchase, grant any proxy or enter
into any voting or similar agreement with respect to, or otherwise
dispose of (collectively, “ Transfer ”),
or agree or contract to Transfer, any Covered Shares (or any
interest therein), other than any such Transfer intended solely for
the purpose of planning for the orderly handling, disposition and
administration of such Shareholder’s estate.
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 its obligations under
this Agreement. Without limiting the generality of the foregoing,
no 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
the Shareholders in connection with any filings required to be made
by the Shareholders in connection with the Merger and the
transactions contemplated thereby.
Section 4. Representations and
Warranties of the Contributors. Each Contributor represents and
warrants to the Shareholders 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. Each Shareholder represents and warrants
to the Contributors as follows: (a) this Agreement has been
duly executed and delivered by such Shareholder, (b) this
Agreement constitutes the valid and binding agreement of such
Shareholder, (c) Shareholder has the full power and authority
to vote (or cause to be voted) all Covered Shares as contemplated
hereby, (d) the securiti
