{"id":43398,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/exchange-agreement-dynegy-inc-and-enron-corp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"exchange-agreement-dynegy-inc-and-enron-corp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/exchange-agreement-dynegy-inc-and-enron-corp.html","title":{"rendered":"Exchange Agreement &#8211; Dynegy Inc. and Enron Corp."},"content":{"rendered":"<pre>\n                               EXCHANGE AGREEMENT\n\n         This EXCHANGE AGREEMENT (this \"Agreement\"), dated on November 9, 2001,\nis by and between Dynegy Inc., an Illinois corporation (\"Dynegy\"), and Enron\nCorp., an Oregon corporation (\"Enron\").\n\n         A. Merger Agreement. Concurrently with the execution of this Agreement,\nDynegy, Stanford, Inc., a Delaware corporation, Badin, Inc., an Oregon\ncorporation, Sorin, Inc., an Illinois corporation, and Enron entered into an\nAgreement and Plan of Merger (the \"Merger Agreement\").\n\n         NOW THEREFORE, in consideration of the mutual agreements contained\nherein and other good and valuable consideration, the sufficiency of which is\nhereby acknowledged, the parties hereby agree as follows:\n\n                                    ARTICLE I\n                                   DEFINITIONS\n\n         Section 1.1. Definitions. In this Agreement, unless there is something\nin the subject matter or context inconsistent therewith, the following terms\nshall have the respective meanings set out below (and grammatical variations of\nsuch terms shall have corresponding meanings):\n\n         \"Authorization\" shall mean any and all permits, licenses,\nauthorizations, orders, certificates, registrations or other approvals granted\nby any Governmental Authority.\n\n         \"Certificate of Designations\" means the Certificate of Designations of\nthe NNGC Preferred Stock.\n\n         \"Dynegy Acquisition Proposal\" shall have the meaning assigned to such\nterm in the Merger Agreement.\n\n         \"Dynegy Exchange Event\" means a termination of the Merger Agreement\npursuant to any of (i) Section 9.2(b) thereof after a public announcement of an\nEnron Acquisition Proposal whether or not the Enron Acquisition Proposal is\nstill pending or has been consummated, (ii) Section 9.3(c) thereof or (iii)\nSection 9.4(b) thereof.\n\n         \"Dynegy Exchange Option\" has the meaning specified in Section 2.1\nhereof.\n\n         \"Enron Acquisition Proposal\" shall have the meaning assigned to such\nterm in the Merger Agreement.\n\n         \"Enron Common Stock\" means the common stock, no par value, of Enron.\n\n         \"Enron Exchange Event\" means a termination of the Merger Agreement\npursuant to any of (i) Section 9.2(c) after a public announcement of a Dynegy\nAcquisition Proposal whether or not the Dynegy Acquisition Proposal is still\npending or has been consummated, (ii) Section 9.3(b) thereof or (iii) Section\n9.4(c) thereof.\n\n         \"Enron Exchange Option\" has the meaning specified in Section 2.2\nhereof.\n\n\n\n\n\n         \"Enron Merger Ratio\" has the meaning specified in Section 4.1 of the\nMerger Agreement.\n\n         \"Exchange Option Ratio\" has the meaning specified in Section 2.3\nhereof.\n\n         \"NNGC\" means Northern Natural Gas Corporation, a Delaware corporation.\n\n         \"NNGC Preferred Stock\" means the Series A Preferred Stock, par value\n$.01 per share, of NNGC.\n\n         \"Governmental Agency\" means any federal, state, local, foreign or other\ngovernmental agency, instrumentality, commission, authority, board or body.\n\n         \"Governmental Authority\" shall mean any Governmental Agency (other than\na court) of the United States, any foreign country, or any domestic or foreign\nstate, and any political subdivision thereof, and shall include any\nmultinational authority having governmental or quasi-governmental powers.\n\n         \"HSR Act\" shall mean the Hart-Scott-Rodino Antitrust Improvements Act\nof 1976, as amended.\n\n         \"Law\" shall mean all laws, statutes and ordinances of the United\nStates, any state of the United States, any foreign country, any foreign state\nand any political subdivision thereof, including all decisions of courts having\nthe effect of law in each such jurisdiction.\n\n         \"Material Adverse Effect\" shall have the meaning ascribed to such term\nin the Merger Agreement.\n\n         \"Merger\" shall have the meaning ascribed to such term in the Merger\nAgreement.\n\n         \"Option\" shall have the meaning ascribed to such term in the Option\nAgreement.\n\n         \"Option Agreement\" means the Option Agreement, dated as of the date\nhereof, among CGNN Holding Company, Inc., a Delaware corporation, MCTJ Holding\nCo. LLC, a Delaware limited liability company, Enron and Dynegy Holdings, Inc.,\na Delaware corporation.\n\n         \"Registration Rights Agreement\" means the Registration Rights\nAgreement, dated as of the date hereof, between Enron and Dynegy.\n\n         \"Regulation\" shall mean any rule or regulation of any Governmental\nAuthority having the effect of Law or of any rule or regulation of any\nself-regulatory organization.\n\n         Section 1.2. Interpretations Not Affected by Headings. The division of\nthis Agreement into articles, sections and other portions and the insertion of\nheadings are for convenience of reference only and shall not affect the\nconstruction or interpretation hereof. Unless otherwise indicated, all\nreferences to an \"Article\" or \"Section\" followed by a number refer to the\nspecified Article or Section of this Agreement. The terms \"this Agreement,\"\n\"hereof,\" \"herein\" and \"hereunder\" and similar expressions refer to this\nAgreement and not to any particular Article, Section or other portion hereof.\n\n\n                                       2\n\n\n\n         Section 1.3. Rules of Construction. Unless otherwise specifically\nindicated or the context otherwise requires, (a) all references to \"dollars\" or\n\"$\" mean United States dollars, (b) words importing the singular shall include\nthe plural and vice versa and words importing any gender shall include all\ngenders, and (c) \"include,\" \"includes\" and \"including\" shall be deemed to be\nfollowed by the words \"without limitation.\"\n\n                                   ARTICLE II\n                                EXCHANGE OPTIONS\n\n         Section 2.1. Dynegy Exchange Event. Upon the terms and subject to the\nconditions of this Agreement, Dynegy shall have the option (the \"Dynegy Exchange\nOption\") to exchange all, but not less than all, of its NNGC Preferred Stock for\nshares of Enron Common Stock, exercisable at any time during the period of 90\ndays commencing on the date of the occurrence of a Dynegy Exchange Event by\ngiving written notice of such exercise to Enron.\n\n         Section 2.2. Enron Exchange Event. Upon the terms and subject to the\nconditions of this Agreement, Enron shall have the option (the \"Enron Exchange\nOption\") to require Dynegy to exchange all, but not less than all, of its NNGC\nPreferred Stock for shares of Enron Common Stock, exercisable at any time during\nthe period of 15 days commencing on the date of the occurrence of a Enron\nExchange Event by giving written notice of such exercise to Dynegy.\n\n         Section 2.3. Exchange Option Ratio. Upon exercise of either the Dynegy\nExchange Option or the Enron Exchange Option, each share of NNGC Preferred Stock\nshall be exchanged for a number of shares of Enron Common Stock determined by\nmultiplying (a) the quotient obtained by dividing $1,500,000 plus all accrued\nand unpaid dividends thereon (whether or not declared and whether or not NNGC\nhas funds legally available for the payment of dividends) by $8.86 by (b) a\nfraction, the numerator of which is the Enron Merger Ratio as in effect on the\ndate of the Merger Agreement and the denominator of which is the Enron Merger\nRatio in effect at the time of the termination of the Merger Agreement (the\n\"Exchange Option Ratio\").\n\n         Section 2.4. Notice; Closing Location. If Dynegy wishes to exercise the\nDynegy Exchange Option, it shall send a written notice (the date of which being\nherein referred to as the \"Dynegy Notice Date\") to Enron specifying a date (as\nit may be extended from time to time, the \"Dynegy Closing Date\") not earlier\nthan three Business Days nor later than 10 Business Days from the Dynegy Notice\nDate for the closing of the exchange pursuant to the Dynegy Exchange Option (the\n\"Dynegy Closing\"). The Dynegy Closing will take place at the offices of Vinson &amp; Elkins, L.L.P., 1001 Fannin Street, Houston, Texas 77002.\n\n         Section 2.5. Notice; Closing Location. If Enron wishes to exercise the\nEnron Exchange Option, it shall send a written notice (the date of which being\nherein referred to as the \"Enron Notice Date\") to Dynegy specifying a date (as\nit may be extended from time to time, the \"Enron Closing Date\") not earlier than\nthree Business Days nor later than 10 Business Days from the Enron Notice Date\nfor the closing of the exchange pursuant to the Enron Exchange Option (the\n\"Enron Closing\"). The Enron Closing will take place at the offices of Vinson &amp; Elkins, L.L.P., 1001 Fannin Street, Houston, Texas 77002.\n\n         Section 2.6. Extension. If either a Dynegy Closing or a Enron Closing\n(each, a \"Closing\") cannot be effected by reason of the application of any Law,\nRegulation or Order, the Dynegy Closing Date or Enron Closing Date, as the case\nmay be, shall be extended to not later \n\n\n                                       3\n\n\n\nthan the tenth Business Day following the expiration or termination of the\nrestriction imposed by such Law, Regulation or Order. Without limiting the\nforegoing, if prior notification to, or Authorization of, any Governmental\nAuthority is required in connection with the exercise of the Dynegy Exchange\nOption or the Enron Exchange Option, as the case may be, by virtue of the\napplication of such Law, Regulation or Order, Dynegy and Enron shall promptly\nfile the required notice or application for Authorization and Dynegy and Enron\nshall expeditiously process the same.\n\n         Section 2.7. Exchange of Certificates. At any Closing, upon the\nsatisfaction of the conditions set forth in Article VI, Dynegy shall deliver the\ncertificates representing the shares of NNGC Preferred Stock to Enron, duly\nendorsed by the registered holder thereof either in blank or to Enron, and Enron\nshall issue to Dynegy, the shares of Enron Common Stock issuable pursuant to\nSection 2.3. The shares of Enron Common Stock to be issued shall be evidenced by\ncertificates registered in the name of Dynegy.\n\n         Section 2.8. Transfer of Dynegy Exchange Option. If at any time Dynegy\nhas the right to exercise the Dynegy Exchange Option and the conditions\nspecified in Section 6.1 have not been satisfied, Dynegy will have the right to\nassign its rights under this Agreement to any third party, provided that (i)\nsuch assignee assumes all of Dynegy's obligations under this Agreement and (ii)\nDynegy shall have concurrently with such assignment transferred all of Dynegy's\nNNGC Preferred Stock to such assignee.\n\n         Section 2.9. Make-Whole Right. In the event that Dynegy is prevented\nfrom receiving Enron Common Stock following an exercise of either the Dynegy\nExchange Option or the Enron Exchange Option, as the case may be, by reason of\nthe failure, after the good faith efforts of both Enron and Dynegy, to satisfy\nthe conditions for the issuance of Enron Common Stock to Dynegy specified in\nSection 6.1 hereof, Enron shall, as promptly as practicable, take all such\naction as may be necessary to:\n\n                           (i) create a class of preferred stock of Enron (the\n                  \"Enron Preferred Stock\") that (A) would be non-voting, (B)\n                  would convert to Enron Common Stock upon a transfer of the\n                  Enron Preferred Stock to any party or parties as to which the\n                  conditions specified in Section 6.1 would be satisfied with\n                  respect to the Enron Common Stock to be received by any such\n                  party, (C) would not vote, separately as a class, with respect\n                  to any merger, share exchange or other business combination,\n                  (D) would participate pari passu with the Enron Common Stock\n                  with respect to dividends and upon liquidation and (E) would\n                  otherwise have such terms as would allow the Enron Preferred\n                  Stock to have, as nearly as possible taking into account legal\n                  and regulatory constraints, the same economic terms as the\n                  Enron Common Stock,\n\n                           (ii) issue such number of shares of Enron Preferred\n                  Stock to Dynegy in exchange for all of its NNGC Preferred\n                  Stock as would, taking into account the conversion ratio with\n                  respect to such shares of Enron Preferred Stock, provide for\n                  the issuance of an aggregate number of shares of Enron Common\n                  Stock as would equal the aggregate number of shares of Enron\n                  Common Stock that Dynegy would have been entitled to receive,\n                  based on the Exchange Option Ratio, had it received Enron\n                  Common Stock upon exercise of the Dynegy Exchange Option,\n\n\n                                       4\n\n\n\n                           (iii) amend the Registration Rights Agreement to\n                  treat the Enron Preferred Stock as if it were Registrable\n                  Common Stock (as defined in the Registration Rights\n                  Agreement), and\n\n                           (iv) if necessary to allow for the conversion of the\n                  Enron Preferred Stock into Enron Common Stock in accordance\n                  with the stockholder approval requirements of the NYSE, submit\n                  to its stockholders for approval, with the favorable\n                  recommendation of the Board of Directors, the issuance of the\n                  Enron Common Stock issuable upon conversion of the Enron\n                  Preferred Stock;\n\nprovided, however, that in the event that the conditions specified in Section\n6.1 have not been satisfied after a period of 12 months following the date of\nthe exercise of the Dynegy Exchange Right, Dynegy shall have the right to elect,\nby written notice to Enron, to either (i) withdraw its exercise of the Dynegy\nExchange Right and thereafter exercise its rights under the Option Agreement or\n(ii) receive consideration from Enron (which may be, at the election of Enron,\nin the form of cash, assets or securities, or some combination thereof) that\nwould have the same economic value as the Enron Common Stock that Dynegy would\nhave received at the time of its exercise of the Dynegy Exchange Option if the\nEnron Common Stock had been issued to Dynegy as of the first anniversary date of\nsuch exercise and Dynegy had immediately sold such Enron Common Stock on the New\nYork Stock Exchange or other national securities market (without discount to the\nthen public trading price of Enron's Common Stock). In the event an Enron\nAcquisition Proposal is consummated, the surviving party shall be under the same\nobligation as Enron to substitute for shares of Enron Common Stock (or Enron\nPreferred Stock) the number of shares of acquiror common stock (or preferred\nstock of the acquiring company) that would have been received had Dynegy been\nable to receive the Enron Common Stock upon a Dynegy Exchange Option or an Enron\nExchange Option, but for the failure to satisfy the conditions of Section 6.1.\n\n         Section 2.10. Termination of Exchange Options. The Enron Exchange\nOption and the Dynegy Exchange Option shall terminate upon any of (i) the\nconsummation of the Merger, (ii) the exercise of the Option or (iii) the\nredemption of all outstanding shares of NNGC Preferred Stock pursuant to the\nCertificate of Designation.\n\n                                  ARTICLE III\n                     REPRESENTATIONS AND WARRANTIES OF ENRON\n\n         Enron hereby represents and warrants to Dynegy as follows:\n\n         Section 3.1. Existence. Enron is a corporation duly organized, validly\nexisting and in good standing under the laws of the State of Oregon and has full\ncorporate power and authority to conduct its business and own and operate its\nproperties as now conducted, owned and operated.\n\n         Section 3.2. Authorization and Enforceability; Issuance of Enron Common\nStock.\n\n         (a) Enron has the full power and authority and has taken all required\ncorporate and other action necessary to authorize and permit Enron to execute\nand deliver this Agreement and to carry out the terms hereof and to issue and\ndeliver Enron Common Stock, and none of such actions will violate any provision\nof Enron's Articles of Incorporation or Bylaws or any \n\n\n                                       5\n\n\n\napplicable law, regulation, order, judgment or decree or rule of any stock\nexchange where the Enron Common Stock is listed, or result in the breach of, or\nconstitute a default (or an event which, with notice or lapse of time or both\nwould constitute a default) under, any agreement, instrument or understanding to\nwhich Enron is a party or by which it is bound. This Agreement constitutes a\nlegal, valid and binding obligation of Enron, enforceable against Enron in\naccordance with its terms, except to the extent limited by (i) applicable\nbankruptcy, insolvency, reorganization, moratorium and similar laws of general\napplication related to the enforcement of creditor's rights generally and (ii)\ngeneral principles of equity.\n\n                  (b) The shares of Enron Common Stock that may be issued\npursuant to this Agreement have been duly authorized and, when issued and\ndelivered in accordance with this Agreement, will be validly issued and\noutstanding and will be fully paid and nonassessable.\n\n                  (c) The issuance and delivery of the shares of Enron Common\nStock that may be issued pursuant to this Agreement are not subject to any\npreemptive right of any stockholder of Enron or to any right of first refusal or\nother similar right in favor of any person which has not been waived and will\nnot require the approval of holders of Enron Common Stock or any other class of\nEnron capital stock.\n\n                                   ARTICLE IV\n                    REPRESENTATIONS AND WARRANTIES OF DYNEGY\n\n         Dynegy hereby represents and warrants to Enron as follows:\n\n         Section 4.1. Existence. Dynegy is a corporation duly organized, validly\nexisting and in good standing under the laws of its jurisdiction of formation\nand has full power and authority to conduct its business and own and operate its\nproperties as now conducted, owned and operated.\n\n         Section 4.2. Authorization and Enforceability. Dynegy has the full\npower and authority and has taken all action necessary to permit Dynegy to\nexecute and deliver this Agreement and to carry out the terms hereof and\nthereof, and none of such actions will violate any provision of Dynegy's\nCertificate of Incorporation or Bylaws or any applicable law, regulation, order,\njudgment or decree or rule, or result in the breach of, or constitute a default\n(or an event which, with notice or lapse of time or both would constitute a\ndefault) under, any agreement, instrument or understanding to which Dynegy is a\nparty or by which it is bound. This Agreement constitutes a legal, valid and\nbinding obligation of Dynegy, enforceable against Dynegy in accordance with its\nterms, except to the extent limited by (i) applicable bankruptcy, insolvency,\nreorganization, moratorium and similar laws of general application related to\nthe enforcement of creditor's rights generally and (ii) general principles of\nequity.\n\n         Section 4.3. Investment Intent of Dynegy. Dynegy is acquiring the Enron\nCommon Stock for its own account for investment and not with a view to\ndistribution.\n\n         Section 4.4. Status of Shares. Dynegy has been informed by Enron that\nthe shares of Enron Common Stock that may be issued pursuant to this Agreement\nhave not been registered under the Securities Act of 1933, as amended (the\n\"Securities Act\"), or under any state securities laws and are being offered and\nsold in reliance upon federal and state exemptions for transactions not\ninvolving any public offering. Enron may place a restriction legend on the\ncertificates representing the shares of Enron Common Stock reflecting the\nforegoing restrictions.\n\n\n                                       6\n\n\n\n         Section 4.5. Sophistication and Financial Condition; Information.\nDynegy represents and warrants to Enron that it considers itself to be an\nexperienced and sophisticated investor and to have such knowledge and experience\nin financial and business matters as are necessary to evaluate the merits and\nrisks of an investment in the shares of Enron Common Stock. Dynegy is able to\nbear the economic risk of this investment regarding Enron, is able to hold the\nshares of Enron Common Stock indefinitely and has a sufficient net worth to\nsustain a loss of its entire investment in Enron in the event such loss should\noccur. Dynegy (a) has been furnished with such information about Enron and the\nshares of Enron Common Stock as it has requested, (b) has made its own\nindependent inquiry and investigation into, and based thereon, has formed an\nindependent judgment concerning Enron and the shares of Enron Common Stock and\n(c) is an \"accredited\" investor within the meaning of Regulation D of the\nSecurities Act, as currently in effect.\n\n                                    ARTICLE V\n                                    COVENANTS\n\n         Section 5.1. Enron Reservation of Enron Stock. Enron shall at all times\nreserve and keep available out of its authorized but unissued shares of Enron\nCommon Stock, solely for the purposes of issuance upon exchange of the NNGC\nPreferred Stock in accordance with this Agreement, such number of shares of\nEnron Common Stock as are issuable upon the exchange of all outstanding shares\nof the NNGC Preferred Stock pursuant to this Agreement. All shares of Enron\nCommon Stock which are so issuable shall, when issued, be duly and validly\nissued, fully paid and nonassessable and free from all taxes, liens and charges.\nEnron shall take all such commercially reasonable actions as may be reasonably\nnecessary to assure that all such shares of Enron Common Stock may be so issued\nwithout violation of any applicable law or governmental regulation or any\nrequirements of any domestic securities exchange upon which shares of Enron\nCommon Stock may be listed (except for official notice of issuance which shall\nbe immediately transmitted by Enron upon issuance).\n\n         Section 5.2. Filings; Commercially Reasonable Best Efforts, Etc.\n\n                  (a) Subject to the terms and conditions herein provided, Enron\nand Dynegy shall:\n\n                           (i) make their respective required filings under the\n         HSR Act (and shall share equally all filing fees incident thereto),\n         which filings shall be made promptly, and thereafter shall promptly\n         make any other required submissions under the HSR Act;\n\n                           (ii) make their respective filings, and obtain the\n         consents, approvals, permits or authorizations, required to be made or\n         obtained prior to the Closing with or from any governmental or\n         regulatory authorities of the United States, the several states and\n         non-U.S. jurisdictions (other than with respect to any applicable\n         non-U.S. competition, antitrust or premerger notification laws (the\n         \"Non-U.S. Antitrust Laws\"));\n\n                           (iii) use their commercially reasonable best efforts\n         to cooperate with one another in (A) determining which filings are\n         advisable to be made with, and which consents, approvals, permits or\n         authorizations are required to be obtained from, governmental or\n         regulatory authorities under the Non-U.S. Antitrust Laws in connection\n         with the execution and delivery of this Agreement, and the consummation\n         of the \n\n\n                                       7\n\n\n\n         transactions contemplated by this Agreement and the transactions\n         contemplated hereby; and (B) timely making all such filings and timely\n         seeking all such consents, approvals, permits or authorizations;\n\n                           (iv) promptly notify each other of any communication\n         concerning this Agreement or the transactions contemplated hereby to\n         that party from any governmental or regulatory authority and permit the\n         other party to review in advance any proposed communication concerning\n         this Agreement or the transactions contemplated hereby to any\n         governmental or regulatory authority;\n\n                           (v) not agree to participate in any meeting or\n         discussion with any governmental or regulatory authority in respect of\n         any filings, investigation or other inquiry concerning this Agreement\n         or the transactions contemplated hereby unless it consults with the\n         other party in advance and, to the extent permitted by such\n         governmental or regulatory authority, gives the other party the\n         opportunity to attend and participate in such meeting or discussion;\n\n                           (vi) furnish the other party with copies of all\n         correspondence, filings and communications (and memoranda setting forth\n         the substance thereof) between them and their subsidiaries and their\n         respective representatives on the one hand, and any government or\n         regulatory authority or members or any such authority's staff on the\n         other hand, with respect to this Agreement and the transactions\n         contemplated hereby; and\n\n                           (vii) furnish the other party with such necessary\n         information and reasonable assistance as such other party and its\n         affiliates may reasonably request in connection with their preparation\n         of necessary filings, registrations or submissions of information to\n         any governmental or regulatory authorities, including, without\n         limitation, any filings necessary or appropriate under the provisions\n         of the HSR Act or any applicable Non-U.S. Antitrust Laws.\n\n                  (b) Without limiting Section 5.2(a), Enron and Dynegy shall:\n\n                           (i) each use commercially reasonable best efforts to\n         avoid the entry of, or to have vacated, terminated or modified, any\n         decree, order or judgment that would restrain, prevent or delay the\n         consummation of the transactions contemplated by this Agreement; and\n\n                           (ii) each use commercially reasonable best efforts to\n         take any and all steps necessary to obtain any consents or eliminate\n         any impediments to the consummation of the transactions contemplated by\n         this Agreement.\n\n                  (c) Nothing in this Agreement shall require either Dynegy or\nEnron to dispose of any of its assets or to limit its freedom of action with\nrespect to any of its businesses, whether prior to or after the consummation of\nthe transactions contemplated by this Agreement, or to commit or agree to any of\nthe foregoing, to obtain any consents, approvals, permits or authorizations or\nto remove any impediments to the consummation of the transactions contemplated\nby this Agreement relating to competition, antitrust or premerger notification\nlaws or to avoid the entry of, or to effect the dissolution of, any injunction,\ntemporary restraining order or other order in any suit or proceeding relating to\ncompetition, antitrust or premerger notification laws.\n\n\n                                       8\n\n\n\n         Section 5.3. Listing Application. Enron shall promptly prepare and\nsubmit to the New York Stock Exchange (\"NYSE\") a listing application covering\nthe shares of Enron Common Stock issuable pursuant to the exercise of the Enron\nExchange Option and the Dynegy Exchange Option and shall use commercially\nreasonable best efforts to obtain, prior to the exercise of the Enron Exchange\nOption or the Dynegy Exchange Option, approval for the listing of such shares of\nEnron Common Stock on the NYSE, subject to official notice of issuance.\n\n         Section 5.4. Enron Acquisition Proposals. Enron shall not enter into\nany agreement in respect of a Enron Acquisition Proposal unless in such\nagreement the parties thereto expressly acknowledge and affirm the obligations\nof Enron under this Agreement and the surviving party in such transaction\nexpressly assumes such obligations.\n\n                                   ARTICLE VI\n                                   CONDITIONS\n\n         Section 6.1. Conditions to Enron's and Dynegy's Obligations. The\nobligations of Enron and Dynegy to complete the exchange of NNGC Common Stock\nfor shares of Enron Common Stock upon the exercise of the Enron Exchange Option\nor the Dynegy Exchange Option shall be subject to the fulfillment of the\nfollowing conditions:\n\n                  (a) (i) Any waiting period applicable to the consummation of\nthe transactions contemplated by this Agreement under the HSR Act shall have\nexpired or been terminated, (ii) if required by law, approval of the FERC with\nrespect to the consummation of the transactions contemplated by this Agreement\nunder Section 203 of the Federal Power Act shall have been granted, (iii) the\nSecurities and Exchange Commission shall have taken all necessary action under\nSection 9(a)(2) of the Public Utility Holding Company Act of 1935, as amended\n(the \"1935 Act\"), and the exemptions of Enron and Dynegy from the provisions of\nthe 1935 Act other than Section 9(a)(2) will not change as a result of the\nconsummation of the transactions contemplated by this Agreement (provided that\neach party will be entitled to waive satisfaction of this condition with respect\nto the application of this condition to it), (iv) there shall not be pending or\nthreatened in writing any claim, proceeding or action by an agency of the\ngovernment of the United States, of the United Kingdom or of the European Union\nseeking to restrain, prohibit or rescind any transactions contemplated by this\nAgreement as an actual or threatened violation of the HSR Act, Non-U.S.\nAntitrust Laws or other antitrust, competition or premerger notification, trade\nregulation law, regulation or order, as applicable, or seeking to penalize a\nparty for completing any such transaction which in any of such cases is, in the\nreasonable judgment of either Enron or Dynegy, reasonably likely to have a\nMaterial Adverse Effect on Enron or Dynegy, (v) in the event of any review by\nthe U.K. Office of Fair Trading or, if applicable, the U.K. Secretary of State\nfor Trade and Industry, indications reasonably satisfactory to each of Enron and\nDynegy that the consummation of the transactions contemplated by this Agreement\nwill not be referred to the Competition Commission shall have been received or,\nif the consummation of the transactions contemplated by this Agreement are\nreferred to the Competition Commission, indications reasonably satisfactory to\neach of Enron and Dynegy that the consummation of the transactions contemplated\nby this Agreement can proceed, (vi) any mandatory waiting period under any\napplicable Non-U.S. Antitrust Laws (where the failure to \n\n\n                                       9\n\n\n\nobserve such waiting period referred to in this clause (vi) would, in the\nreasonable judgment of either Dynegy or Enron, be reasonably likely to have a\nMaterial Adverse Effect on Enron or Dynegy) shall have expired or been\nterminated, (vii) all consents, approvals, permits and authorizations referred\nto in Section 5.2(a)(ii) and (iii) shall have been obtained, and no such\nconsent, approval, permit or authorization shall impose or contain terms or\nconditions that would, in the reasonable judgment of either Enron or Dynegy, be\nreasonably likely to have a Material Adverse Effect on Enron or Dynegy, and\n(viii) there shall not have been a final or preliminary administrative order\ndenying approval of or prohibiting the transactions contemplated by this\nAgreement issued by a governmental authority with jurisdiction to enforce\napplicable Non-U.S. Antitrust Laws, which order is, in the reasonable judgment\nof either Enron or Dynegy, reasonably likely to have a Material Adverse Effect\non Enron or Dynegy.\n\n                  (b) None of the parties hereto shall be subject to any decree,\norder or injunction of a court of competent jurisdiction that prohibits the\nconsummation of the transactions contemplated hereby issued by a court of\ncompetent jurisdiction of (i) the United States or any state or other\njurisdiction in the United States, (ii) the European Union or any member state\nthereof or Canada or (iii) any other jurisdiction (the \"Other Non-U.S.\nJurisdictions\"); provided, however, that, prior to invoking this condition, each\nparty shall have complied with Section 5.2, and with respect to other matters\nnot covered by Section 5.2, shall have used its commercially reasonable best\nefforts to have any such decree, order or injunction lifted or vacated; and no\nstatute, rule or regulation shall have been enacted by any governmental\nauthority which prohibits or makes unlawful the consummation of the transactions\ncontemplated by this Agreement; provided, further, that, with respect to any\ndecree, order, injunction, statute, rule or regulation of any Other Non-U.S.\nJurisdiction, noncompliance with such decree, order, injunction, statute, rule\nor regulation would, in the reasonable judgement of either Dynegy or Enron, be\nreasonably likely to have a Material Adverse Effect on Enron or Dynegy.\n\n                  (c) The shares of Enron Common Stock to be issued pursuant to\nthe exercise of the Enron Exchange Option or the Dynegy Exchange Option shall\nhave been authorized for listing on the NYSE, subject to official notice of\nissuance.\n\n                                  ARTICLE VII\n                               GENERAL PROVISIONS\n\n         Section 7.1. Notices. Except as otherwise provided herein, any notice\nrequired to be given hereunder shall be sufficient if in writing, and sent by\nfacsimile transmission or by courier service (with proof of service), or hand\ndelivery, addressed as follows:\n\n                  (a) if to Enron:\n\n                      Enron Corp.\n                      1400 Smith Street\n                      Houston, Texas  77002\n                      Attention:  General Counsel\n                      Facsimile:  (713) 853-3129\n\n\n                                       10\n\n\n\n                      with a copy to:\n\n                      Vinson &amp; Elkins L.L.P.\n                      1001 Fannin, Suite 2300\n                      Houston, Texas 77002-6760\n                      Attention:  Thomas P. Mason, Esq.\n                      Facsimile:  (713) 758-2346\n\n                  (b) if to Dynegy:\n\n                      Dynegy Inc.\n                      1000 Louisiana, Suite 5800\n                      Houston, Texas  77002\n                      Attention: General Counsel\n                      Facsimile:  (713) 507-6808\n\n                      with a copy to:\n\n                      Baker Botts L.L.P.\n                      One Shell Plaza\n                      910 Louisiana\n                      Houston, Texas 77002-4995\n                      Attention:  R. Joel Swanson, Esq.\n                                  J. David Kirkland, Jr., Esq.\n                      Facsimile:  (713) 229-1522\n\nor to such other address as any party shall specify by written notice so given,\nand such notice shall be deemed to have been delivered as of the date so\ntelecommunicated, personally delivered or mailed.\n\n         Section 7.2. Assignment; Binding Effect; Benefit. Neither this\nAgreement nor any of the rights, interests or obligations hereunder shall be\nassigned by any of the parties hereto (whether by operation of law or otherwise)\nunless the following conditions are satisfied: (a) the other party hereto\nconsents in writing to the assignment, and (b) in the case of an assignment by\nDynegy, (i) such assignee assumes all of Dynegy's obligations under this\nAgreement and (ii) Dynegy shall have concurrently with such assignment\ntransferred all of its NNGC Preferred Stock to such assignee. Subject to the\npreceding sentence, this Agreement shall be binding upon and shall inure to the\nbenefit of the parties hereto and their respective successors and assigns.\nNotwithstanding anything contained in this Agreement to the contrary, nothing in\nthis Agreement, expressed or implied, is intended to confer on any person other\nthan the parties hereto or their respective heirs, successors, executors,\nadministrators and assigns any rights, remedies, obligations or liabilities\nunder or by reason of this Agreement.\n\n         Section 7.3. Entire Agreement. This Agreement constitutes the entire\nagreement among the parties with respect to the subject matter hereof and\nsupersedes all prior agreements and understandings among the parties with\nrespect thereto. No addition to or modification of any provision of this\nAgreement shall be binding upon any party hereto unless made in writing and\nsigned by all parties hereto.\n\n\n                                       11\n\n\n\n         Section 7.4. Amendments. This Agreement may be amended by the parties\nhereto, by action taken or authorized by their Boards of Directors. This\nAgreement may not be amended except by an instrument in writing signed on behalf\nof each of the parties hereto.\n\n         Section 7.5. Governing Law. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of Texas, without regard to\nits rules of conflicts of laws.\n\n         Section 7.6. Counterparts. This Agreement may be executed by the\nparties hereto in separate counterparts, each of which when so executed and\ndelivered shall be an original, but all such counterparts shall together\nconstitute one and the same instrument. Each counterpart may consist of a number\nof copies hereof each signed by less than all, but together signed by all of the\nparties hereto.\n\n         Section 7.7. Waivers. Except as provided in this Agreement, no action\ntaken pursuant to this Agreement, including, without limitation, any\ninvestigation by or on behalf of any party, shall be deemed to constitute a\nwaiver by the party taking such action of compliance with any representations,\nwarranties, covenants or agreements contained in this Agreement. The waiver by\nany party hereto of a breach of any provision hereunder shall not operate or be\nconstrued as a waiver of any prior or subsequent breach of the same or any other\nprovision hereunder.\n\n         Section 7.8. Severability. Any term or provision of this Agreement\nwhich is invalid or unenforceable in any jurisdiction shall, as to that\njurisdiction, be ineffective to the extent of such invalidity or\nunenforceability without rendering invalid or unenforceable the remaining terms\nand provisions of this Agreement or affecting the validity or enforceability of\nany of the terms or provisions of this Agreement in any other jurisdiction. If\nany provision of this Agreement is so broad as to be unenforceable, the\nprovision shall be interpreted to be only so broad as is enforceable.\n\n         Section 7.9. Enforcement of Agreement. The parties hereto agree that\nirreparable damage would occur in the event that any of the provisions of this\nAgreement were not performed in accordance with its specific terms or was\notherwise breached. It is accordingly agreed that the parties shall be entitled\nto an injunction or injunctions to prevent breaches of this Agreement and to\nenforce specifically the terms and provisions hereof, this being in addition to\nany other remedy to which they are entitled at law or in equity.\n\n         Section 7.10. No Special Damages. IN NO EVENT SHALL ANY PARTY BE LIABLE\nIN RESPECT OF THIS AGREEMENT FOR EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES.\n\n\n\n\n                                       12\n\n\n\n\n         IN WITNESS WHEREOF, the parties have executed this Agreement and caused\nthe same to be duly delivered on their behalf on the day and year first written\nabove.\n\n                                     DYNEGY INC.\n\n\n\n                                     By: \/s\/ HUGH A. TARPLEY\n                                        ---------------------------------------\n                                     Name:   Hugh A. Tarpley\n                                     Title:  Executive Vice President\n\n                                     ENRON CORP.\n\n\n\n                                     By: \/s\/ RAYMOND M. BOWEN, JR.\n                                        ---------------------------------------\n                                     Name:   Raymond M. Bowen, Jr.\n                                     Title:  Executive Vice President -- \n                                             Finance and Treasurer\n\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7381,7454],"corporate_contracts_industries":[9535,9409],"corporate_contracts_types":[9622,9626],"class_list":["post-43398","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-dynegy-inc","corporate_contracts_companies-enron-corp","corporate_contracts_industries-utilities__gas","corporate_contracts_industries-energy__exploration","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43398","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43398"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43398"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43398"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43398"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}