SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 3)
Dynegy, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
26816L 10 2
- --------------------------------------------------------------------------------
(Cusip Number)
Shearman & Sterling, 599 Lexington Avenue, New York, NY 10022
Attention: Alfred J. Ross, Jr., Esq.
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
June 14, 1999
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box |_|.
Check the following box if a fee is being paid with the statement |_|. (A fee is
not required only if the reporting person (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1 and (2) has filed no amendment subsequent thereto
reporting beneficial ownership of five percent or less of such class.) (See Rule
13d-7).
Note: Six copies of this statement, including all exhibits, should be filed with
the Commission. See Rule 13d-1(a) for other parties to whom copies are to be
sent.
The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 (the "Act") or otherwise subject to the liabilities of that section of the
Act but shall be subject to all other provisions of the Act (however,
see the Notes).
THIS SCHEDULE 13D CONSISTS OF 10 SEQUENTIALLY NUMBERED PAGES
THE EXHIBIT INDEX IS LOCATED ON PAGE 22
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP No. 26816L 10 2 Page 2 of 10 Pages
- ----------------------- ---------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BG Holdings, Inc.
I.R.S. No. 51-0313219
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 38,789,876*
BENEFICIALLY -------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING -------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
38,789,876*
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
-0-
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
38,789,876*
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) |_|
EXCLUDES CERTAIN SHARES*
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.4%
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14 TYPE OF REPORTING PERSON*
CO
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* See Item 4.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
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CUSIP No. 26816L 10 2 Page 3 of 10 Pages
- ----------------------- ---------------------
- --------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
BG plc.
I.R.S. No. 98-0170836
- --------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) |_|
(b) |X|
- --------------------------------------------------------------------------------
3 SEC USE ONLY
- --------------------------------------------------------------------------------
4 SOURCE OF FUNDS*
WC, OO
- --------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS |_|
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e)
- --------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
- --------------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
BENEFICIALLY -------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH 38,789,876*
REPORTING -------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
-0-
-------------------------------------------------------
10 SHARED DISPOSITIVE POWER
38,789,876*
- --------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH
REPORTING PERSON
38,789,876*
- --------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) |_|
EXCLUDES CERTAIN SHARES*
- --------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
25.4%
- --------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
- --------------------------------------------------------------------------------
* See Item 4.
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
With respect to each contract, agreement or other document
referred to herein and filed with the Securities and Exchange Commission as an
exhibit to this report, reference is made to the exhibit for a more complete
description of the matter involved, and each such statement shall be deemed
qualified in its entirety by such reference.
Item 1. Security and Issuer.
This statement relates to the Common Stock, par value $0.01
per share (the "Common Stock"), of Dynegy, Inc. (formerly NGC Corporation), a
Delaware corporation (the "Issuer"), whose principal executive offices are
located at 1000 Louisiana Street, Houston, Texas 77002.
Item 2. Identity and Background.
Item 2 shall be deleted in its entirety and replaced with the following:
(a, b, c and f) This statement is filed on behalf of (i) BG
Holdings, Inc., a Delaware corporation (the "Reporting Person"), and (ii) BG
plc, a company organized and existing under the laws of England and Wales
("BG"). The Reporting Person's principal business address is 5444 Westheimer
Road, Suite 1775, Houston, Texas 77056. The Reporting Person is an indirect
wholly owned subsidiary of BG. The Reporting Person is owned directly by British
Gas Atlantic Holdings B.V., which, is in turn indirectly and wholly owned by BG.
BG's principal business address is 100 Thames Valley Park Drive, Reading,
Berkshire RG61PT, England. BG is involved in oil and gas activities worldwide.
The Reporting Person's principal business is acting as the
holding company for the operating subsidiaries and investments of BG in the
United States, including its ownership of the Common Stock of the Issuer.
Schedules I and II, which are attached hereto and incorporated
herein in their entirety by reference, set forth the name, residence and
business address, citizenship and certain employment information of each of the
officers and directors of the Reporting Person and BG.
(d) Neither the Reporting Person, nor BG, nor, to the best
knowledge of either the Reporting Person or BG, any entity or person with
respect to which information is provided in response to this Item 2 has, during
the last five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors).
(e) Neither the Reporting Person, nor BG, nor, to the best
knowledge of either the Reporting Person or BG, any entity or person with
respect to which information is provided in response to this Item has, during
the last five years, been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or
<PAGE>
mandating activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
Item 4. Purpose of Transaction.
Item 4 shall be deleted in its entirety and replaced with the following:
Pursuant to an Agreement and Plan of Merger dated as of June
14, 1999 (the "Merger Agreement"), the Issuer and Illinova Corporation, an
Illinois corporation ("Illinova"), agreed to enter into a transaction in which
each of the Issuer and Illinova will become wholly owned subsidiaries of Energy
Convergence Holding Company, a newly formed Illinois corporation ("Newco").
Dynegy Acquisition Corporation, a Delaware corporation ("DAC") and a wholly
owned subsidiary of Newco, will be merged with and into the Issuer, and Energy
Convergence Acquisition Corporation, an Illinois corporation and a wholly owned
subsidiary of Newco, will be merged with and into Illinova.
Under the terms of the Merger Agreement, the Issuer's
stockholders may elect to convert their shares of Common Stock into cash (at a
fixed price of $16.50 per share of Common Stock) or common shares of the
combined company (at a fixed exchange ratio of 0.69 shares of the combined
company for every share of Common Stock). If there is insufficient cash for the
combined company to exchange all of the Reporting Person's shares of Common
Stock into cash (due to other stockholders electing cash), then the remainder of
such shares of Common Stock shall be exchanged for convertible preferred stock
of the combined company.
The Reporting Person will cause its interest in the Issuer to
be sold pursuant to a Stock Purchase Agreement in which the Reporting Person
shall receive consideration equivalent to what it would have received had it
elected to receive all cash under the Merger Agreement. The Stock Purchase
Agreement shall close coincident with the Merger and is attached as Exhibit 16
hereto. The amount of Preferred Stock to be received by the Reporting Person
will depend on the amount of cash elected by the other stockholders of the
Issuer and on the market price of Illinova common shares prior to the closing of
the Merger. The consideration to be received is expected to be approximately 65%
cash and 35% Series A Convertible Preferred Stock. The form of resolution
adopting the Series A Convertible Preferred Stock is filed as Exhibit 17.
Holders of Illinova common stock will exchange one share of Newco for each
Illinova share currently owned.
The Reporting Person also entered into a Voting Agreement with
Illinova dated as of June 14, 1999 whereby the Reporting Person has agreed to
vote its shares of Issuer Stock in favor of the Merger Agreement and the
transactions contemplated thereby. A copy of the Voting Agreement is filed as
Exhibit 18.
Finally, the Reporting Person has been granted registration
rights with respect to the Series A Convertible Preferred Stock received in the
aforementioned tranche pursuant to a
<PAGE>
Registration Rights Agreement with Newco, also dated as of June 14, 1999. A copy
of the Registration Rights Agreement is filed as Exhibit 19.
Item 5. Interest in Securities of the Issuer.
Item 5 shall be deleted and replaced with the following:
(a) In computing their respective aggregate percentage
ownership of Common Stock and the percentages of Common Stock owned by the
Reporting Person and BG for purposes of this Schedule 13D, the Reporting Person
and BG have relied on the quarterly report on Form 10-Q for the quarterly period
ended March 31, 1999, (Commission File No. 1-11156) in which the Issuer reported
that 152,864,662 shares of Common Stock were outstanding. As of the close of
business on June 14, 1999, the Reporting Person was the beneficial owner of
38,789,876 shares of Common Stock, constituting approximately 25.4% of the
shares of Common Stock outstanding.
BG does not own any shares of the Issuer directly, but may be deemed to share
beneficial ownership of all of the shares of Common Stock owned by the Reporting
Person by virtue of the ownership relationship described in Item 2.
(b) Subject to its obligations under the agreements described in
this Schedule 13D, the Reporting Person has the sole power to
vote and dispose of the 38,789,876 shares of Common Stock
owned directly by it. Although the Reporting Person has sole
voting rights, BG may be deemed to share voting and
dispositive power with regard to such shares by virtue of its
ownership of 100% of the Reporting Person.
(c) The Reporting Person had no transactions in the shares of
Common Stock in the sixty-day period ended June 14, 1999.
(d) Except as described above, no other person is known to have
the right to receive or the power to direct the receipt of
dividends from or the proceeds from the sale such shares of
Common Stock beneficially owned by the Reporting Person and
BG.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The Reporting Person is a party to the Lockup Agreement and
the Ancillary Agreements, which are attached as exhibits hereto and which are
incorporated by reference in their entirety herein. In addition, the
descriptions of such agreements, the Issuer's bylaws and the other agreements
and arrangements of the Reporting Person with respect to the Common Stock
<PAGE>
and the Issuer set forth in Item 4 hereof are hereby incorporated by reference
in their entirety in response to this Item 6.
On January 22, 1996, the Issuer and Chevron jointly issued a
press release announcing that they have entered into exclusive negotiations to
merge Chevron's natural gas operations with those of the Issuer pursuant to the
Exclusivity Agreement. As part of the proposed agreement, a new company would be
formed and merged with the Issuer. As part of such transaction, Chevron would
receive between 23.6% and 25% of the common stock of the surviving corporation
and the Reporting Person would also own between 23.6% and 25% of the common
stock of the surviving corporation.
Pursuant to the Exclusivity Agreement, on May 22, 1996, the
Issuer, Chevron U.S.A. Inc. and Midstream Combination Corp. entered into the
Combination Agreement providing for a combination of the Issuer with
substantially all of Chevron's midstream assets and certain strategic alliances.
(See Item 4.)
Copies of the press release, the Exclusivity Agreement and the
Combination Agreement are filed as Exhibits 10, 11 and 12 to this Schedule 13D
and are incorporated herein by reference.
On May 22, 1996, the Reporting Person entered into (i) the New
NGC Stockholders Agreement, which will become effective at the Effective Time
(under and as defined in the Combination Agreement) and supersede the New
Trident Stockholders Agreement in its entirety, and (ii) the Voting Agreement
pursuant to which the Reporting Person has agreed to vote all of its shares of
Common Stock at any meeting or action by written consent, and agreed to execute
a proxy in favor of Chevron to vote such shares (i) in favor of the transactions
contemplated by the Combination Agreement and (ii) against any other proposal
for the amendment of the Issuer's Certificate of Incorporation or By-laws or any
merger, consolidation, sale or purchase of assets, reorganization,
recapitalization, liquidation or winding up of or by the Issuer or sale of all
or substantially all of the stock or assets of a subsidiary of the Issuer, in
any case other than as permitted or contemplated by the Combination Agreement.
Copies of the Combination Agreement, the Stockholders and the
Voting Agreement are filed as Exhibits 12, 13 and 14 to this Schedule 13D and
are incorporated herein by reference.
The Reporting Person is also a party by virtue of the
transaction described in Item 4 to the Voting Agreement, Registration Rights
Agreement and Stock Purchase Agreement, which are attached as exhibits hereto
and which are incorporated by reference in their entirety herein. In addition,
the descriptions of such agreements and arrangements of the Reporting Person
with respect to the Common Stock and the Issuer set forth in Item 4 hereof are
hereby incorporated by reference in their entirety in response to this Item 6.
<PAGE>
At present, there are no other contracts, arrangements,
understandings, or relationships with respect to securities of the Issuer
involving the Reporting Person or BG with the exception of the agreements
contained in Exhibits 1 through 19.
Item 7. Materials to be Filed as Exhibits.
1. Agreement of Joint Filing.*
2 Clearinghouse Combination Agreement (incorporated by reference
to Exhibit 2.2 to Trident's Registration Statement on Form
S-4, as amended (File No. 33-88902) (the "Registration
Statement")).*
3. Exhibit 3.5(A) to the Combination Agreement (incorporated by
reference to Exhibit 4.20 to the Registration Statement).*
4. Exhibit 3.5(B) to the Combination Agreement (incorporated by
reference to Exhibit 4.21 to the Registration Statement).*
5. Lockup Agreement (incorporated by reference to Exhibit 10.35
to the Registration Statement).*
6. New Trident Stockholders Agreement (incorporated by reference
to Exhibit 10.50 to the Registration Statement).*
7. Clearinghouse Owners Stockholders Agreement (incorporated by
reference to Exhibit 10.49 to the Registration Statement).*
8. Clearinghouse Owners Registration Rights Agreement
(incorporated by reference to Exhibit 10.51 to the
Registration Statement).*
9. Amended and Restated Bylaws of NGC Corporation (incorporated
by reference to Exhibit 3.4 to the Registration Statement).*
10. Press Release issued by the Issuer and Chevron Corporation on
January 22, 1996.*
11. Exclusivity Agreement between the Issuer and Chevron
Corporation dated as of January 22, 1996.*
12. Combination Agreement (incorporated by reference to Exhibit
2.1 to the Issuer's Current Report on Form 8-K dated May 22,
1996).*
13. Stockholders Agreement, by and among BG Holdings, Inc., Gas
Services (U.S.) Inc., and Chevron USA Inc. dated as of May 22,
1996.*
<PAGE>
14. Voting Agreement between BG Holding, Inc. NCC Corporation and
Chevron USA Inc., dated as of May 22, 1996.*
15. Agreement of Joint Filing.
16. Stock Purchase Agreement dated as of June 14, 1999 between
British Gas Atlantic Holdings BV and Energy Convergence
Holding Company.
17. Form of Resolution adopting Series A Convertible Preferred
Stock.
18. Voting Agreement dated as of June 14, 1999 between Illinova
Corporation and BG Holdings Inc.
19. Registration Rights Agreement dated as of June 14, 1999 among
British Gas Atlantic Holdings BV, Energy Convergence Holding
Company and NOVA Gas Services (U.S.) Inc.
20. Press Release issued by BG on June 14, 1999.
- -----------------
*previously filed.
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of their knowledge
and belief, the undersigned certify that the information set forth in this
Statement is true, complete and correct.
Date: June 18, 1999 BG HOLDINGS, INC.
By: /s/ Cynthia Masters
------------------------------
Title: Vice President
BG PLC
By: /s/ Cynthia Masters
------------------------------
Title: Attorney-in-Fact
<PAGE>
SCHEDULE I
The names of the directors and executive officers of BG
Holdings, Inc. and their business addresses, principal occupations and
citizenship are set forth below.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
<S> <C> <C>
Thomas Michael Melvin 100 Thames Valley Park Chairman, Director and
(British citizen) Drive, Reading, Berkshire President
RG6 1PT
Stephen Charles 100 Thames Valley Park Director, Vice President and
Burrard - Lucas Drive, Reading, Berkshire Treasurer
(British citizen) RG6 1PT
William Michael Friedrich 100 Thames Valley Park Director and Vice President
(US citizen) Drive, Reading, Berkshire
RG61PT
Cynthia Elaine Masters 5444 Westheimer, Suite Director, Vice President and
(US citizen) 1775, Houston, Texas Secretary
77056 USA
Stanley I Rubenfeld Shearman & Sterling Director and Vice President
(US citizen) 599 Lexington Avenue
New York, NY 10022-6069
Richard Vincent Giordano 5th Floor Eagle House, Vice President
(US citizen) 108-110 Jermyn St
London SW1Y 6RH
Delcour Potter 5444 Westheimer, Suite 1775, Director, Vice President
(US citizen) Houston, Texas 77056
Robert Richardson 5444 Westheimer, Suite 1775, Director, Vice President
Houston, Texas 77056
</TABLE>
<PAGE>
SCHEDULE II
The names of directors and executive officers of BG plc and
their business addresses and principal occupations are set forth below. If no
address is given, the director's or executive officer's business address is that
of BG plc at 100 Thames Valley Park Drive, Reading, Berkshire, RG61PT. Unless
otherwise indicated, each occupation set forth opposite an individual's name
refers to that individual's position with BG plc and each individual is a
British citizen.
<TABLE>
<CAPTION>
PRESENT PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
<S> <C> <C>
Richard V. Giordano 5th Floor Eagle House, Chairman
(US citizen) 108-110 Jermyn St
London SW1Y 6RH
David Robert Varney Chief Executive Office
Stephen John Brandon Executive Director
Frank Joseph Chapman Executive Director
Philip Roy Hampton Executive Director,
Finance
Philip Michael Gerard Executive Director
Nolan
John Bryan Wybrew Executive Director
David Holford Benson Dresdner Kleinwort Chairman, Kleinwort
Benson Charter European Trust
20 Fenchurch St
London EC3 3DB
Sir John Coles Kelham, DockLane Former Permanent Under-
Beulieu, Hants Secretary of State,
SO42 7YH Foreign and Commonwealth
Office
Elwyn Owen Morris 5th Floor Eagle House, Chairman
Eilledge 108-100 Jermyn St Dixons Group plc and
London SW1Y 6RH King's Healthcare NHS Trust
Christopher Hampson RMC plc Vice President
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
<S> <C> <C>
Unilever plc Chairman
Coldharbour Lane RMC Group plc
Thorpe, Egham, Surrey
TW20 8TD
Keith Ashley Victor 5th Floor Eagle House, Director Standard Charter plc
Mackrell 108-110 Jermyn St
London SW1Y 6RH
Dr. Thomas John Parker Babcock International Group Chairman
Group plc Babcock International plc
Badminton Court
Church Street
Amersham, Bucks
HP7 0RP
Dame Stella Rimington 5th Floor Eagle House, Director, Marks and
108-110 Jermyn St Spencer plc
London SW1Y 6RH
</TABLE>
EXECUTIVE OFFICERS
- ------------------
<TABLE>
<CAPTION>
PRESENT PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
<S> <C> <C>
Andrew Barrett Executive Vice President
Donald Glenwood Executive Vice President
Doughty
(US Citizen)
Edward Le Marchant Executive Vice President
Trafford
(Canadian Citizen)
William Michael Friedrich General Counsel
(US citizen)
Paul Jones Group Director of Human
Resources
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PRESENT PRINCIPAL
NAME BUSINESS ADDRESS OCCUPATION
---- ---------------- ----------
<S> <C> <C>
Donald William John Patience Company Secretary
Nick Woollacott Chief Operating Officer,
Transco
</TABLE>
<PAGE>
EXHIBIT INDEX
1. Agreement of Joint Filing.*
2 Clearinghouse Combination Agreement (incorporated by reference to
Exhibit 2.2 to Trident's Registration Statement on Form S-4, as amended
(File No. 33-88902) (the "Registration Statement")).*
3. Exhibit 3.5(A) to the Combination Agreement (incorporated by reference
to Exhibit 4.20 to the Registration Statement).*
4. Exhibit 3.5(B) to the Combination Agreement (incorporated by reference
to Exhibit 4.21 to the Registration Statement).*
5. Lockup Agreement (incorporated by reference to Exhibit 10.35 to the
Registration Statement).*
6. New Trident Stockholders Agreement (incorporated by reference to
Exhibit 10.50 to the Registration Statement).*
7. Clearinghouse Owners Stockholders Agreement (incorporated by reference
to Exhibit 10.49 to the Registration Statement).*
8. Clearinghouse Owners Registration Rights Agreement (incorporated by
reference to Exhibit 10.51 to the Registration Statement).*
9. Amended and Restated Bylaws of NGC Corporation (incorporated by
reference to Exhibit 3.4 to the Registration Statement).*
10. Press Release issued by the Issuer and Chevron Corporation on January
22, 1996.*
11. Exclusivity Agreement between the Issuer and Chevron Corporation dated
as of January 22, 1996.*
12. Combination Agreement (incorporated by reference to Exhibit 2.1 to the
Issuer's Current Report on Form 8-K dated May 22, 1996).*
13. Stockholders Agreement, by and among BG Holdings, Inc., Gas Services
(U.S.) Inc., and Chevron USA Inc. dated as of May 22, 1996.*
14. Voting Agreement between BG Holding, Inc. NCC Corporation and Chevron
USA Inc., dated as of May 22, 1996.*
15. Agreement of Joint Filing.
<PAGE>
16. Stock Purchase Agreement dated as of June 14, 1999 between British Gas
Atlantic Holdings BV and Energy Convergence Holding Company.
17. Form of Resolution adopting Series A Convertible Preferred Stock.
18. Voting Agreement dated as of June 14, 1999 between Illinova Corporation
and BG Holdings Inc.
19. Registration Rights Agreement dated as of June 14, 1999 among British
Gas Atlantic Holdings BV, Energy Convergence Holding Company and NOVA
Gas Services (U.S.) Inc.
20. Press Release issued by BG on June 14, 1999.
_________________________
*previously filed.
<PAGE>
EXHIBIT 15
AGREEMENT OF JOINT FILING
Pursuant to Reg. ss. 240.13d-1(F)(I)(iii) adopted under the
Securities and Exchange Act of 1934, the undersigned, BG plc and BG Holdings,
Inc. hereby agree to file with the Securities and Exchange Commission the joint
Schedule 13D/A (Amendment No. 3) to which this exhibit is attached, and that
such joint Schedule 13D/A, as so filed, is filed on behalf of each of them.
This Agreement of Joint Filing may be executed in one or more
counterparts, each of which shall be deemed to be an original but all of which
together shall continue a single instrument.
IN WITNESS WHEREOF, the undersigned have executed this
Agreement of Joint Filing as of the date set forth below.
Date: June 18, 1999 BG HOLDINGS, INC.
By: /s/ Cynthia Masters
------------------------------------
Title: Vice President
BG PLC
By: /s/Cynthia Masters
------------------------------------
Title: Attorney-in-Fact
<PAGE>
EXHIBIT 16
STOCK PURCHASE AGREEMENT
BY AND AMONG
ENERGY CONVERGENCE HOLDING COMPANY
("BUYER")
AND
BRITISH GAS ATLANTIC HOLDINGS BV
("SELLER")
DATED: JUNE 14, 1999
<PAGE>
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (this "Agreement") is entered into on
June 14, 1999, by and between Energy Convergence Holding Company, an Illinois
corporation ("Buyer"), and British Gas Atlantic Holdings BV, a Netherlands
corporation ("Seller").
RECITALS:
1. Seller owns 1,802 shares of common stock of BG Holdings, Inc., a
Delaware corporation and a wholly owned subsidiary of Seller (the "Company"),
which represent all of the outstanding shares of common stock of the Company.
2. Buyer desires to purchase from Seller, and Seller desires to sell to
Buyer, all of the outstanding shares of common stock of the Company (the
"Shares"), in accordance with terms and conditions of this Agreement.
3. To induce Buyer to purchase the Shares, simultaneously herewith,
British Gas Overseas Holdings, a United Kingdom company ("Guarantor" and,
together with Seller, the "Seller Parties"), has executed and delivered a
guaranty (the "Guaranty") in favor of Buyer.
4. This Agreement is being entered into in connection with the Merger
Agreement (as defined) and is an integral part of the transactions contemplated
thereby.
5. Undefined capitalized terms herein are defined in the Merger
Agreement.
AGREEMENT:
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, Buyer and Seller agree as follows:
ARTICLE I.
DEFINITIONS
"Action" means any action, lawsuit, proceeding, hearing, notice,
investigation, mediation, arbitration, complaint, claim or demand.
<PAGE>
"Additional Cash Consideration" is defined in Section 2.2.
"Affiliate" means a Person that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with another Person.
"After-Tax Basis" means, with respect to an indemnity payment, the
amount necessary to hold the indemnified party harmless on an after-tax basis,
after taking into account in the taxable year of payment any Taxes deemed
payable (as provided below) by the indemnified party as a result of such
indemnification payment, and any Tax benefits deemed realized (as provided
below) by the indemnified party (or any of its Affiliates) in respect of, or as
a result of a deduction or credit for, any indemnified Taxes or Damages required
to be paid by the indemnified party. The amount of any payment in the preceding
sentence (to the extent taxable) as well as the amount of any indemnified Tax,
and Tax benefits shall be determined as if the relevant indemnified party (and
any combined or consolidated group of which it is a member) were taxed at the
highest marginal rate applicable to corporations in such jurisdiction.
"Agreement" is defined in the preface to this Agreement.
"Balance Sheet" is defined in Section 3.10.
"Buyer" is defined in the preface to this Agreement.
"Buyer Common Stock" means the Class A common stock of Buyer, no par
value per share, to be issued pursuant to the Amended and Restated Newco
Articles.
"Closing" is defined in Section 2.3.
"Closing Date" is defined in Section 2.3.
"Company" is defined in the recitals to this Agreement.
"Contest" is defined in Section 6.3(b).
"Damages" is defined in Section 7.1.
"Dynegy" means Dynegy Inc., a Delaware corporation.
"Dynegy Stock" is defined in Section 3.8.
"Governmental Authority" means any governmental or regulatory authority
or agency, court or similar entity.
"Material Adverse Effect" means, with respect to a particular Person,
any event, circumstance, condition, development or occurrence causing, resulting
in or having (or with the passage of time likely to cause, result in or have) a
material adverse effect on the financial condition, business, assets,
properties, or results of operations of such Person and its subsidiaries, taken
as a whole
"Merger Agreement" is defined in Section 8.2.
2
<PAGE>
"Mergers" means the mergers contemplated under the Merger Agreement.
"Person" means a natural person, a corporation, a limited liability
company, a partnership, an association, a trust or any other entity or
organization, including a Governmental Authority.
"Post-Closing Period" is defined in Section 6.2(b).
"Pre-Closing Period" is defined in Section 6.1(a).
"Preferred Stock" means the Series A Convertible Preferred Stock to be
issued pursuant to the Statement of Resolutions Establishing Series of Series A
Convertible Stock of Buyer, in the form of Exhibit B to the Merger Agreement.
"Purchase Price" is defined in Section 2.2.
"Seller" is defined in the preface to this Agreement.
"Seller Parties" is defined in the recitals to this Agreement.
"Shares" is defined in the recitals to this Agreement.
"Stock Consideration" is defined in Section 2.2.
"Stockholders Agreement" is defined in Section 3.6.
"Straddle Period" is defined in Section 6.1(c).
"Tax Indemnification Event" is defined in Section 6.3(a).
"Tax Returns" means all originally filed or amended federal, state and
local tax returns, declarations, statements, certifications, notices, reports,
schedules, forms and information returns relating to Taxes.
"Third Party Claim" is defined in Section 7.4(a).
"Voting Agreement" is defined in Section 3.6.
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ARTICLE II.
BASIC TRANSACTION
2.1 PURCHASE AND SALE OF THE SHARES. On and subject to the terms and
conditions of this Agreement, Buyer agrees to purchase from Seller, and Seller
agrees to sell, grant, transfer, convey, assign, and deliver, and agrees to
cause to be sold, granted, transferred, conveyed, assigned and delivered to
Buyer, the Shares at the Closing for the consideration specified in this Article
II.
2.2 PURCHASE PRICE. Buyer agrees to pay to Seller at the Closing (the
"Purchase Price"), consideration consisting of (a) that number of shares of
Preferred Stock (the "Stock Consideration") equal to the product of (i) the
quotient of the Illinova Average Price and $50.00, and (ii) the number of shares
of Buyer Common Stock that the Company would have received pursuant to the
Merger Agreement had it elected to receive only the Cash Consideration with
respect to all of the Dynegy Stock, plus (b) the amount of cash (the "Additional
Cash Consideration") that the Company would have received pursuant to the Merger
Agreement had it elected to receive only the Cash Consideration with respect to
all of the Dynegy Stock.
2.3 THE CLOSING. The closing of the purchase and sale of the Shares
(the "Closing") shall take place (i) at the offices of Akin, Gump, Strauss,
Hauer & Feld, L.L.P. at 1900 Pennzoil Place, South Tower, 711 Louisiana,
Houston, Texas, or such other location at which the closing of the Mergers
occurs, immediately prior to the closing of the Mergers, or (ii) or at such
other time or place or on such other date as the parties hereto shall agree,
subject to the satisfaction or waiver of all conditions to the obligations of
the parties to consummate the transactions to take place at the Closing (other
than conditions with respect to actions the respective parties will take at the
Closing itself). The date of the Closing is referred to as the "Closing Date."
2.4 DELIVERIES AT THE CLOSING. At the Closing:
(a) Seller will deliver to Buyer all of the certificates,
instruments, and documents listed below:
(i) the stock certificates representing the Shares
duly endorsed in blank, or accompanied by stock powers duly
executed in blank, and otherwise in form reasonably acceptable
to Buyer for transfer on the books of the Company;
(ii) the corporate records of the Company as of the
Closing Date;
(iii) the written resignation of (A) each member of
the board of directors of the Company and (B) each officer of
the Company, such resignations to be effective on the Closing
Date;
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(iv) the bank accounts of the Company and any funds
therein;
(v) a statement, issued by the Company pursuant to
the requirements of Treas. Reg. Sec. 1.897-2(h), and dated no
more than 30 days prior to the Closing, certifying that the
Shares do not constitute a U.S. real property interest
(USRPI), as that term is defined in Section 897(c) of the Code
(a copy of which will have been filed with the Internal
Revenue Service prior to Closing pursuant to the requirements
of Treas. Reg. Sec. 1.897-2(h)(2)) (the "Statement"). If such
Statement is not received, Buyer shall be entitled to withhold
10% of the Purchase Price as required by Section 1445 of the
Code; and
(vi) such other documents and instruments as are
required to be delivered pursuant to the terms hereof, or that
Buyer may reasonably request to effect the transactions
contemplated hereby.
(b) Buyer will deliver to Seller:
(i) the Purchase Price in the form of:
(A) certificates for the Stock Consideration; and
(B) the Additional Cash Consideration, in immediately
available funds, by wire transfer to an account, which account
shall be specified by Seller no later than two business days
prior to the Closing Date; and
(ii) such other documents and instruments as are required to
be delivered pursuant to the terms hereof, or that Seller may
reasonably request to effect the transactions contemplated hereby.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer that the statements contained
in this Article III are correct and complete as of the date of this Agreement
and will be correct and complete as of the Closing Date (as though made then and
as though the Closing Date were substituted for the date of this Agreement
throughout this Article III).
3.1 ORGANIZATION OF SELLER. Each Seller Party is a corporation, duly
organized, validly existing, and in good standing under the laws of the
jurisdiction of its organization.
3.2 DUE AUTHORIZATION. The execution, delivery, and performance by
Seller of this Agreement and by Guarantor of the Guaranty:
(a) has been duly authorized by all necessary internal action
of Seller and Guarantor, as applicable, and does not require any
consent, waiver, approval,
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order, authorization or permit of, or registration, filing with or
notification to any Person; and
(b) does not conflict with or result in any violation of or
the breach of or constitute a default (with notice or lapse of time or
both) under, or give rise to any right of termination, purchase, first
refusal, cancellation or acceleration or guaranteed payments or a loss
of a material benefit under, either Seller Party's organizational
documents, any order or judgment of any Governmental Authority or any
law or regulation, or any note, lease, mortgage, license, agreement or
other instrument or obligation to which either Seller Party is a party
or by which it or its properties or assets may be bound.
3.3 DUE EXECUTION. This Agreement and the Guaranty have been duly
executed and delivered by a duly authorized officer of Seller and Guarantor, as
applicable.
3.4 LEGAL, VALID AND BINDING OBLIGATIONS. This Agreement and the
Guaranty constitutes a legal, valid and binding obligation of the applicable
Seller Party, enforceable against the applicable Seller Party in accordance with
its terms, except as such enforcement may be limited by applicable bankruptcy,
insolvency, moratorium and other laws affecting the rights of creditors
generally and by general principles of equity.
3.5 NO LITIGATION. There is no pending or, to the knowledge of Seller
or Guarantor, threatened action or proceeding before any court or other
Governmental Authority, or arbitrator by or against, or involving any Seller
Party or its Affiliates, which questions or challenges the validity or
enforceability of this Agreement, the Guaranty or any action taken or to be
taken by any Seller Party pursuant to this Agreement or the Guaranty or in
connection with the transactions contemplated hereby or thereby.
3.6 CAPITALIZATION OF THE COMPANY; AGREEMENTS PERTAINING TO STOCK. The
Company's authorized capital stock consists of 20,000 shares of common stock,
par value $1.00 per share. None of such capital stock is outstanding or has been
authorized for issuance other than the Shares. The Shares have been validly
issued and are fully paid and nonassessable, and other than pursuant to (i) the
Stockholders Agreement dated May 22, 1996, by and among the Company, NOVA Gas
Services (U.S.) Inc., and Chevron U.S.A., Inc., as amended (the "Stockholders
Agreement"), (ii) the Voting Agreement dated the date hereof, by and between the
Company and Illinova Corporation (the "Voting Agreement"), (iii) this Agreement
or (iv) with respect to the Dynegy Stock, the Merger Agreement, neither the
Shares nor the Dynegy Stock are subject to any agreements or understandings
among any Persons with respect to the voting or transfer of the Shares or the
Dynegy Stock.
3.7 BROKERS' FEES. No Seller Party has any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated hereby for which Buyer or the Company could become
liable.
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3.8 THE COMPANY'S ASSETS AND LIABILITIES. Except as disclosed on
Schedule 3.8, the Company's sole assets other than cash and cash equivalents are
38,789,876 shares of common stock of Dynegy, par value $.01 per share (the
"Dynegy Stock"). Seller is, and at the Closing will be, the record and
beneficial owner of, and upon the Closing Buyer will acquire, good, valid, and
marketable title to, the Shares, free and clear of all liens, encumbrances and
restrictions on transferability, other than (i) those that may arise because of
any actions taken by or on behalf of Buyer or its Affiliates or (ii)
restrictions on transfer that may be imposed by federal, state or other
securities laws. There are no preemptive or similar rights with respect to the
Company's capital stock and the Shares were issued without violation of any such
rights. Other than this Agreement, the Stockholders Agreement and the Voting
Agreement, there are no subscriptions, options, warrants, calls, rights,
commitments or any other agreements of any character obligating a Person to
purchase, sell or issue any shares of the capital stock of the Company
(including the Shares) or the Dynegy Stock or any other securities convertible
into, exchangeable or exercisable for, or evidencing the right to subscribe for,
any such Shares or the Dynegy Stock. Except as contemplated by (i) the Merger
Agreement, (ii) the Stockholders Agreement, or (iii) the Voting Agreement,
neither the Company nor Seller is a party to any voting agreements, voting
trusts, proxies or any other agreements, instruments or understandings with
respect to the voting of any shares of the Company's capital stock, the Shares
or the Dynegy Stock, or any agreement with respect to the transferability,
purchase or redemption of any shares of capital stock of the Company, the Shares
or the Dynegy Stock. Except as contemplated by this Agreement, the Company has
no liabilities, obligations, costs or expenses of any nature whatsoever, whether
now known or unknown, asserted or unasserted, accrued or unaccrued, liquidated,
unliquidated or due or to become due, (including, without limitation, other than
as a result of the transactions contemplated hereby, any liability in respect of
Taxes of any kind whatsoever) in excess of amounts reserved therefor that affect
the Company or its ownership of the Dynegy Stock.
3.9 COMPANY ACTIVITIES. Since March 26, 1999, the Company has not
engaged in any business or other activity (other than the ownership of the
Dynegy Stock) that will have an adverse effect on the Company's properties,
assets, operations, business or prospects. Other than the Dynegy Stock, the
Company has no subsidiaries or equity investments in any Person or enterprise.
Prior to March 26, 1999, the Company did not engage in any activities other than
as a holding company for, and owning stock and other interests and investments
in, the following entities, among others: Dynegy (formerly NGC Corp.); Itron,
Inc.; British Gas Americas, Inc. (formerly British Gas Delaware, Inc. and
British Gas Technology, Inc.); British Gas Capital, Inc.; BG Exploration
America, Inc.; British Gas Services, Inc. (formerly BG US Services, Inc.; and
British Gas Exploration and Production, Inc.); British Gas Finance, Inc.;
British Gas Financial Products, Inc.; British Gas General Partner, Inc.; British
Gas Global Services, Inc.; British Gas Inspection Services, Inc. (formerly BG
Inspection Services, Inc.); British Gas Limited Partner, Inc.; British Gas
Methane Arctic, Inc.; British Gas Methane Polar, Inc.; British Gas NGC LP; BG
Tunisia, Inc. (formerly Freeway Housing, Inc. and Houston Oil & Minerals of
Tunisia, Inc.).
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3.10 BALANCE SHEET. At or prior to the Closing, the Company shall
deliver to Buyer accurate and complete copies of the Company's audited balance
sheet as of the date of the most recently completed audit of the Company prior
to the Closing Date (the "Balance Sheet"), and the related statements of income
and stockholders' equity, for the period since March 26, 1999. The Balance Sheet
(i) shall be prepared from the books and records of the Company and (ii) shall
accurately and fairly present the Company's financial position as of its date.
The Balance Sheet (including the notes thereto) will have been prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis throughout the period covered thereby, and present fairly
the Company's financial condition as of the applicable audit period. At the
Closing, Seller shall deliver to Buyer accurate and complete copies of the
Company's unaudited balance sheet (including notes) as of the Closing Date, and
the related statements of income and stockholders' equity, since the date of the
Balance Sheet. Such unaudited balance sheet (including the notes thereto) shall
reflect that the Company has net assets (determined without regard to the Dynegy
Stock) having a fair market value of at least $800,000.
3.11 TAXES.
(a) The Company has timely filed (or will timely file) all Tax
Returns required to be filed by it in, or with respect to Taxes for,
any period ending before the Closing Date. All Tax Returns filed by the
Company prior to the Closing Date or for any period ending before the
Closing Date correctly reflect the applicable facts regarding the
income, business, assets, operations, activities, status or other
matters of the Company or any other information required to be shown
thereon. The foregoing Tax Returns are not subject to penalties under
Section 6662 of the Code relating to accuracy-related penalties, or any
other provision of the Code (or any corresponding provisions of state,
local or foreign Tax law) or any predecessor provision of law. No
extension of time within which to file any Tax Return that has not been
filed has been requested or granted, by, or on behalf of, the Company.
(b) The Company is not a party to or bound by any current Tax
indemnity, Tax sharing or Tax allocation agreement (and any such
agreements to which the Company was previously a party have been
cancelled or otherwise terminated.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer represents and warrants to Seller that the statements contained
in this Article IV are correct and complete as of the date of this Agreement and
will be correct and complete as of the Closing Date (as though made then and as
though the Closing Date were substituted for the date of this Agreement
throughout this Article IV).
4.1 ORGANIZATION OF BUYER. Buyer is a corporation, duly organized,
validly existing, and in good standing under the laws of the jurisdiction of its
organization.
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4.2 DUE AUTHORIZATION. The execution, delivery, and performance by
Buyer of this Agreement:
(a) has been duly authorized by all necessary internal action
of Buyer and does not require any consent, waiver, approval, order,
authorization or permit of or registration, filing with or notification
to any Person; and
(b) does not conflict with or result in any violation of or
the breach of or constitute a default (with notice or lapse of time or
both) under, or give rise to any right of termination, purchase, first
refusal, cancellation or acceleration or guaranteed payments or a loss
of a material benefit under, Buyer's organizational documents, any
order or judgment of any Governmental Authority or any law or
regulation, or any note, lease, mortgage, license, agreement or other
instrument or obligation to which Buyer is a party or by which it or
its properties or assets may be bound.
4.3 DUE EXECUTION. This Agreement has been duly executed and delivered
by a duly authorized officer of Buyer.
4.4 LEGAL, VALID AND BINDING OBLIGATIONS. This Agreement constitutes a
legal, valid and binding obligation of Buyer, enforceable against Buyer in
accordance with its terms, except as such enforcement may be limited by
applicable bankruptcy, insolvency, moratorium and other laws affecting the
rights of creditors generally and by general principles of equity.
4.5 NO LITIGATION. There is no pending or, to the knowledge of Buyer,
threatened action or proceeding before any court or other Governmental
Authority, or arbitrator by or against, or involving Buyer or its Affiliates,
which questions or challenges the validity or enforceability of this Agreement
or any action taken or to be taken by Buyer pursuant to this Agreement or in
connection with the transactions contemplated hereby.
4.6 BROKERS' FEES. Buyer does not have any liability or obligation to
pay any fees or commissions to any broker, finder, or agent with respect to the
transactions contemplated hereby for which either Seller or Guarantor could
become liable.
ARTICLE V.
CONDITIONS TO OBLIGATION TO CLOSE
5.1 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transactions contemplated by this Agreement and to perform its
obligations under this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) the representations and warranties set forth in Article
III shall be true and correct in all material respects at and as of the
Closing Date (provided that any breach or misrepresentation resulting
in a liability for which Seller
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acknowledges in writing that it will indemnify Buyer shall not be
deemed to be a breach of this section); Seller shall have performed and
complied with all of its covenants hereunder in all material respects
prior to the Closing Date; and Buyer shall have received a certificate
from a duly authorized officer of Seller as to the satisfaction of this
condition;
(b) Seller will have made the deliveries contemplated by
Section 2.4;
(c) since the date of this Agreement there must not have been
any change in law which, or announced contemplated change in law the
passage of which, could reasonably be expected to have, as a result of
the consummation of the transactions contemplated by this Agreement, a
Material Adverse Effect on the Company; and
(d) all of the conditions precedent to the closing of the
transactions contemplated by the Merger Agreement have been satisfied
or waived as contemplated by the Merger Agreement.
Buyer may waive any condition specified in this Section 5.1 if it
executes a writing expressly so stating at or prior to the Closing.
5.2 CONDITIONS TO OBLIGATION OF SELLER. The obligation of Seller to
consummate the transactions contemplated hereby and to perform its respective
obligations under this Agreement in connection with the Closing is subject to
satisfaction of the following conditions:
(a) the representations and warranties set forth in Article IV
shall be true and correct in all material respects at and as of the
Closing Date (provided that any breach or misrepresentation resulting
in a liability for which Buyer acknowledges in writing that it will
indemnify Seller shall not be deemed to be a breach of this section);
Buyer shall have performed and complied with all of its covenants
hereunder in all material respects prior to the Closing; and Seller
shall have received a certificate from a duly authorized officer of
Buyer as to the satisfaction of this condition;
(b) Buyer will have made the deliveries contemplated by
Section 2.4;
(c) since the date of this Agreement there must not have been
any change in law which, or announced contemplated change in law the
passage of which, could reasonably be expected to have, as a result of
the consummation of the transactions contemplated by this Agreement, a
Material Adverse Effect on Seller;
(d) Buyer will have provided to Seller a certificate from a
duly authorized officer of Buyer certifying that all of the conditions
precedent to the closing of the transactions contemplated by the Merger
Agreement have been satisfied or waived as contemplated by the Merger
Agreement; and
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(e) Dynegy will have delivered to the Company a statement,
dated no more than 30 days prior to the Closing, certifying that the
Dynegy Stock is not a USRPI.
Seller may waive any condition specified in this Section 5.2 if it
executes a writing expressly so stating at or prior to the Closing.
ARTICLE VI.
TAX MATTERS
6.1 TAX INDEMNITIES.
(a) Seller shall indemnify Buyer and hold it harmless from and
against any liability for Taxes (i) imposed on the Company in respect
of its income, business or operations for any period prior to the
Closing Date (a "Pre-Closing Period"), (ii) imposed on the Company
pursuant to Section 1.1502-6 of the Treasury Regulations promulgated
under the Code (or pursuant to any analogous provision of state or
local law) as a result of the affiliation of any company with the
Company during a Pre-Closing Period or (iii) attributable to any change
in accounting method employed by the Company prior to the Closing Date
(but only to the extent that the amount of such Taxes is in excess of
the amount accrued for Taxes in the books and records of the Company as
of the Closing Date); provided, however, that no indemnity shall be
provided under this Article VI for (x) any Taxes resulting from a
breach by Buyer of its representations, warranties and obligations
under this Agreement, (y) Taxes attributable to, or arising as a result
of, any transactions contemplated by this Agreement or (z) any
liability for Taxes resulting from elections under Section 338 of the
Code with respect to the Company (or any comparable elections under the
state or local Tax laws). Indemnity payments under this Article VI
shall be made on an After-Tax Basis.
(b) From and after the Closing Date (a "Post Closing Period"),
Buyer shall indemnify Seller and hold it harmless from and against all
Taxes imposed on the Company that are not subject to indemnification
pursuant to Section 6.1(a) or Article VII.
(c) Any Taxes (other than U.S. federal income taxes) of the
Company not otherwise indemnified under this Article VI for a period
beginning before the Closing Date and ending after the Closing Date (a
"Straddle Period") shall be apportioned between Seller and Buyer, in
the case of real and personal property taxes and franchise taxes not
based on gross or net income or capital (including net worth or
long-term debt) or gross or net assets, on a per diem basis and, in the
case of other Taxes (including sale and transfer Taxes), shall be
determined based on the actual activities and operations of the Company
during the portion of such period that is a Pre-Closing Period and the
portion of such period that is a Post-Closing Period. Notwithstanding
the foregoing, in the case of any Tax based upon or measured by capital
(including net worth or long-term debt) or gross or net
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assets or intangibles, the amount of such Tax allocated to the
Pre-Closing Period shall be computed by reference to the average level
of such items during the Pre-Closing Period.
(d) Payment by an indemnitor of any amount due under this
Section 6.1 shall be made within 30 days following written notice by
the indemnitee that payment of such amount to the appropriate Tax
authority is due, provided that the indemnitor shall not be required to
make any payment earlier than two days before it is due to the
appropriate Tax authority. If Seller receives an assessment or other
notice of Taxes due with respect to the Company for any Pre-Closing
Period for which Seller is not responsible, in whole or in part,
pursuant to Section 6.1(a) and Seller pays such Tax, then Buyer shall
pay Seller, in accordance with the first sentence of this Section
6.1(d), the amount of such Tax for which Seller is not responsible
under Section 6.1(a). In the case of a Tax that is contested in
accordance with the provisions of Section 6.3, payment of such Tax to
the appropriate Tax authority will not be considered to be due earlier
than the date of a final determination with respect to such Tax.
Failure to pay amounts when due pursuant to this Section 6.1(d) shall
result in the imposition of an interest charge at the applicable rate
prescribed under Section 6621(a)(1) of the Code (but only to the extent
that (i) such interest does not constitute a Tax (as defined herein) or
(ii) the indemnitee is not otherwise indemnified therefor).
Notwithstanding anything herein to the contrary, the indemnified party
may make more than one request for payment under this Agreement with
respect to any indemnifiable Tax imposed by a Tax jurisdiction to the
extent the amount of such indemnifiable Tax is adjusted or redetermined
from time to time.
6.2 REFUNDS AND TAX BENEFITS.
(a) Buyer shall promptly pay to Seller any refund or credit
(including any interest paid or credited with respect thereto) received
by Buyer or the Company of Taxes relating to Pre-Closing Periods or
attributable to an amount paid by or on behalf of Seller under Section
6.1; provided, however, that payments with respect to credits shall be
made no earlier than the time as such credit reduces or could reduce
the Tax liability of Buyer and its Affiliates, including the Company.
If any refund or credit of Taxes for which a payment has been made
pursuant to Section 6.2 is subsequently reduced or disallowed, Seller
shall indemnify and hold harmless payor for any Tax liability assessed
against such payor because of the reduction or disallowance. Buyer
shall, if Seller so requests and at Seller's expense, cause the
relevant entity to file for and obtain any refund to which Seller is
entitled under this Section 6.2. Subject to Section 6.3, Buyer shall
permit Seller to control (at Seller's expense) the prosecution of any
such refund claim, and shall cause the relevant entity to authorize by
appropriate power of attorney such persons as Seller shall designate to
represent such entity with respect to such refund claim.
(b) If and to the extent that Seller receives a refund or
credit of federal, state or local Taxes for any Pre-Closing Period
attributable solely to the carryback
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of losses, credits or similar items arising in any Post-Closing Period
and attributable to the Company, Seller shall promptly pay to Buyer the
amount of such refund or credit, together with any interest paid or
credited with respect thereto. If any refund or credit of Taxes for
which a payment has been made pursuant to this Section 6.2(b) is
subsequently reduced or disallowed, Buyer shall indemnify and hold
harmless payor for any Tax liability, including interest, assessed by
reason of the reduction or disallowance.
6.3 CONTESTS.
(a) After the Closing Date, Buyer shall notify Seller promptly
(and in any event within 15 business days) of the commencement of any
Tax audit or administrative or judicial proceeding, or of any demand or
claim on Buyer or the Company, with respect to the Company or its
subsidiaries for any period beginning before Closing or the receipt of
any notice of proposed adjustment by Buyer or the Company (a "Tax
Indemnification Event"), which could give rise to a claim for
indemnification under Section 6.1 or, in the case of the breach of a
representation in Section 3.11, Article VII. Such notice shall contain
factual information (to the extent known to Buyer or the Company) with
respect to the Tax Indemnification Event in reasonable detail and shall
include copies of any notice or other document received from any Taxing
authority in respect thereof. If Buyer fails to give Seller notice
within a reasonable period of time or in sufficient detail to apprise
Seller of the nature of the claim (in each instance taking into account
the facts and circumstances of such claim), Seller shall not be liable
under this Agreement for such claim to the extent, if any, that the
rights of Seller with respect to such claim are actually prejudiced.
(b) Subject to Section 6.3(d), Seller may elect to direct,
through counsel of its own choosing and at its own expense, any audit,
claim for refund or administrative or judicial proceeding involving any
Pre-Closing Tax Periods with respect to which (and to the extent that)
indemnity may be sought from Seller, under Section 6.1 or, in the case
of the breach of a representation in Section 3.11, Article VII (any
such audit, claim for refund or proceeding is referred to herein as a
"Contest"). If Seller elects to direct a Contest it shall within 15
business days of receipt of the notice of the Tax Indemnification Event
relating to such Contest notify Buyer of its intent to do so and, if
requested by Buyer, Seller shall furnish to Buyer in due course, as a
condition to further pursuing such Contest, an opinion of Seller's
independent Tax counsel to the effect that Seller has a reasonable
basis to pursue such Contest. If Buyer is requested (or, if an election
by Seller is not timely made, shall determine) to pay the Tax claimed
and sue for a refund, Seller shall make a tentative indemnity payment
to the party making such payment. In the case of any Contest, Buyer or
the Company, as the case may be, shall not make payment of the Tax in
question for at least 30 days (or such shorter time period as may be
required by applicable law) after the giving of notice to Seller of its
intention to do so (and if Seller has elected to direct the Contest
shall not make payment unless requested by Seller), shall give to
Seller any information reasonably requested by Seller relating to such
Contest and otherwise shall
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cooperate with Seller in good faith in order to contest effectively any
such Contest and, to the extent not inconsistent with Buyer's or the
Company's control over the portion of proceedings that relate to issues
other than those subject to this indemnity (as described below), shall
permit Seller to control such proceedings relating to any Contest.
Buyer or its duly appointed representatives shall be allowed to attend
all meetings between Seller and the Taxing authority in question and
shall be provided with copies of all correspondence and documents
relating to such Contest (other than internal correspondence and
documents that are privileged or confidential). If Seller fails to
notify Buyer of its election as herein provided, then until receiving
notification as to Seller's intentions, each of Buyer and the Company
shall take such reasonable steps as may be prudent and within its
capacity to preserve the right of the relevant entity to contest such
asserted Tax liability and may pay, compromise or contest such asserted
Tax liability. However, in each such case, neither Buyer nor the
Company may settle or compromise any asserted Tax liability over the
objection of Seller; provided, however, that consent to settlement or
compromise shall not be unreasonably withheld. If Buyer or the Company
assumes control of a Contest with respect to Taxes pursuant to the
foregoing, provided that Seller has acted in good faith, Seller shall
retain the right at any time thereafter and immediately upon notice to
the entity that shall have assumed control of such Contest, to assume
itself, at Seller's expense, sole direction and control of such
Contest, as set forth above. If Seller chooses to direct the Contest,
Buyer shall promptly empower and shall cause the Company promptly to
empower (by power of attorney and such other documentation as may be
necessary and appropriate) such representatives of Seller as it may
designate to represent Buyer and/or the Company in the Contest insofar
as the Contest involves an asserted Tax liability for which Seller
could be liable under Section 6.1 or, in the case of a breach of a
representation in Section 3.11, Article VII.
(c) If, after actual receipt by Buyer or the Company of an
amount paid by Seller as a tentative adjustment pursuant to paragraph
(b), the extent of the liability of Buyer or the Company with respect
to the indemnified matter for which Seller is liable under this
Agreement shall be established by final determination to be a lesser
amount, Buyer or the Company, as the case may be, shall promptly pay to
Seller the amount of such difference, including all or the portion of
any refund received by or credited to Buyer or the Company with respect
to the indemnified matter (together with any interest paid or credited
thereon by the Taxing authority) plus (i) the amount of the Tax
savings, if any, realized by Buyer or the Company as a result of such
payment, and (ii) interest at the rate which shall be applicable under
section 6621(a)(1) of the Code in respect of federal income taxes and
at the rate provided by applicable law in respect of other Taxes from
time to time from the date of actual collection by Buyer or the Company
of such refund (and any such interest thereon) to the date of payment
to Seller thereunder.
(d) Nothing contained herein shall require Buyer or the
Company (i) to contest a Contest which it would otherwise be required
to contest pursuant to
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this Agreement or (ii) to permit Seller control any such Contest, if
Buyer shall waive the payment by Seller of any amount that might
otherwise be payable by Seller hereunder (or under Article VII) by way
of indemnity with respect to such Contest. Upon any such waiver, Buyer
or its Affiliates, as the case may be, shall repay to Seller any
payments made with respect to such Contest pursuant to Section 6.3(b)
together with interest at the rate which shall be applicable under
Section 6621(a)(1) of the Code from time to time from the date the
payment was paid by Seller to the date of repayment by Buyer or its
Affiliate.
6.4 PREPARATION OF TAX RETURNS. Seller shall prepare and timely file,
or cause to be prepared and timely filed, all Tax Returns relating to the
Company and its subsidiaries that are due (taking into account any applicable
extension periods) not more than 30 days after the Closing Date. Buyer shall
prepare and timely file or cause the Company to prepare and timely file all Tax
Returns relating to the Company and its subsidiaries that are due (taking into
account any applicable extension periods) more than 30 days after the Closing
Date. Returns required to be filed by Buyer in respect of a period beginning
prior to the Closing Date shall be prepared on a basis consistent with those
prepared for prior Tax years unless a different treatment of an item is required
by an intervening change in law. Buyer shall furnish Seller with a copy of any
Tax Return so prepared by it for a period beginning prior to the Closing Date at
least 30 days before the anticipated filing date thereof and, in preparing such
Tax Returns, shall accept any comments made by Seller with respect to any issue
or item which could give rise to a claim for indemnification; provided, however,
that this sentence shall not apply in respect of any comments for which Seller
does not provide Buyer, if so requested in writing to do so, with an opinion of
nationally recognized counsel, obtained at Seller's expense, to the effect that
there is a more likely than not basis for Seller's comment.
6.5 COOPERATION AND EXCHANGE OF INFORMATION. Following the Closing,
Seller and Buyer shall provide each other, and Buyer shall cause its Affiliates
to provide Seller, with such cooperation and information as reasonably may be
requested in filing any Tax Return, amended return or claim for refund,
determining a liability for Taxes or a right to a refund of Taxes or
participating in or conducting any audit or other proceeding in respect of
Taxes. Such cooperation and information shall include providing copies of
relevant Tax Returns or portions thereof, together with accompanying schedules
and related work papers and documents relating to rulings or other
determinations by Tax authorities. Each of Seller, Buyer and their Affiliates
shall make its employees available on a mutually convenient basis to provide
explanations of any documents or information provided hereunder. Each of Seller,
Buyer and the Company shall retain all Tax Returns, schedules and work papers
and all material records or other documents that are in its possession
immediately following the Closing, or created by or on behalf of it thereafter,
relating to Tax matters of the Company for the taxable period of each relevant
jurisdiction first ending after the Closing Date and for all prior taxable
periods until the later of (i) the expiration of the statute of limitations of
the taxable periods to which such returns and other documents relate, without
regard to extensions except to the extent notified by the other party in writing
of such extensions for the respective Tax periods, or (ii) six years following
the due date (without extension) for such returns. Any information obtained
under this Article VI shall be confidential, except as may be otherwise
necessary in
15
<PAGE>
connection with the filing of Tax Returns or claims for refund or in
conducting an audit or other proceeding.
6.6 MISCELLANEOUS.
(a) The parties agree that all payments made under this
Article VI, under any other indemnity provision contained in this
Agreement, and for any misrepresentations or breach of warranties or
covenants shall constitute adjustments to the Purchase Price and that
they shall report all such payments on that basis in all Tax Returns
filed with any taxation authority for purposes hereof. If, contrary to
the intent of the parties as expressed in the foregoing sentence, any
indemnity payment made pursuant to this Agreement is treated as taxable
income of the recipient, then the payor shall indemnify and hold
harmless the recipient for any liability for Taxes attributable to the
receipt of such payment.
(b) Except in the case of a breach of a representation in
Section 3.11, this Article VI shall be the sole provisions governing
indemnities and claims for Taxes under this Agreement.
(c) For purposes of this Article VI, all references to Buyer,
Seller or the Company include successors in interest, whether by
operation of law or otherwise.
(d) The covenants and agreements of the parties hereto
contained in this Article VI shall survive the Closing and shall remain
in full force and effect until the expiration of all statutes of
limitations with respect to any Taxes that would be indemnifiable by
Seller under Section 6.1(a) or Article VII, or by Buyer under Section
6.1(b).
16
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ARTICLE VII.
SURVIVAL OF REPRESENTATIONS; INDEMNIFICATION
7.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Each representation,
warranty and covenant of the parties contained in this Agreement shall survive
the Closing until the expiration of the applicable statute of limitations.
Seller shall be liable and shall indemnify and hold Buyer harmless from, any
losses, damages (including incidental and consequential damages), liabilities,
payments, obligations, penalties, costs, expenses (including reasonable fees and
expenses of attorneys, accountants and other professional advisors and of expert
witnesses and costs of investigation and preparation in connection with any
Action or threatened Action) of any kind or nature whatsoever ("Damages")
related to any breaches of representations, warranties and covenants of Seller
contained in this Agreement; provided, however, that no indemnification shall be
provided under this Article VII for any Damages for which Buyer is indemnified
pursuant to Article VI. Buyer shall be liable and shall indemnify and hold
Seller harmless from any Damages related to any breaches of representations,
warranties and covenants of Buyer contained in this Agreement. Payments under
this Article VII shall be made on an After-Tax Basis.
7.2 INDEMNIFICATION OBLIGATION ABSOLUTE. The right to indemnification,
payment of Damages or other remedy under this Agreement will not be affected by
any investigation conducted with respect to, or any knowledge acquired or
capable of being acquired, at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the accuracy
or inaccuracy of or the compliance with, any such representation, warranty,
covenant or obligation; provided however, that any party claiming the right to
indemnification, payment of Damages or other remedy hereunder shall provide
notice to the indemnifying party of any Damage that becomes known to such
indemnified party after the Closing, and the indemnifying party shall not be
obligated to make any payments related to additional Damage incurred directly as
a result of a failure by the indemnified party to deliver such a notice if such
failure materially prejudices the indemnifying party's ability to mitigate the
Damage. The negligence of the party demanding indemnification, regardless of
whether such negligence is alleged or proven, will not serve as a bar to, or be
a defense to, any claim arising from any breach of this Agreement. Unless
expressly specified, the waiver of any condition based on the accuracy of any
representation or warranty, or of the performance of or compliance with any
covenant or obligation, will not affect the right to indemnification, payment of
Damages or other remedy based on such representations, warranties, covenants and
obligations.
7.3 LIMITATIONS ON SELLERS' INDEMNIFICATION LIABILITY. Seller will have
no liability under this Article VII for Damages related to breaches of the
representations, warranties and covenants contained in this Agreement unless and
until the aggregate Damages claimed under this Article VII exceeds $50,000 (the
"THRESHOLD AMOUNT"); provided, that once such amount exceeds the Threshold
Amount, the Damages payable hereunder shall relate back to the first dollar and
Buyer will be entitled to recover all amounts to which they are entitled as a
result thereof; provided further that Seller's
17
<PAGE>
liability under this Article VII for Damages shall not exceed the Purchase Price
(with the value of the Stock Consideration being valued immediately following
the Closing).
7.4 THIRD PARTY CLAIM PROCEDURES.
(a) If any third party shall notify any of the parties hereto
with respect to the commencement of any Action (a "Third Party Claim")
which may give rise to a claim for indemnification against any other
party under Section 7.2, then the indemnified party shall promptly give
notice to the indemnifying party. Failure to notify the indemnifying
party will not relieve the indemnifying party of any liability or
obligation that it may have to the indemnified party, except to the
extent the defense of such Action is materially prejudiced by the
indemnified party's failure to give such notice.
(b) An indemnifying party will have the right to defend
against a Third Party Claim with counsel of its choice reasonably
satisfactory to the indemnified party if (i) within 15 days following
the receipt of notice of the Third Party Claim the indemnifying party
notifies the indemnified party in writing that the indemnifying party
will indemnify the indemnified party from and against the entirety of
any Damages the indemnified party may suffer resulting from, relating
to, arising out of, or attributable to the Third Party Claim, (ii) the
Third Party Claim involves only money Damages and does not seek an
injunction or other equitable relief, and (iii) the indemnifying party
continuously conducts the defense of the Third Party Claim actively and
diligently.
(c) So long as the indemnifying party is conducting the
defense of the Third Party Claim in accordance with Section 7.4(b), (i)
the indemnified party may retain separate co-counsel at its sole cost
and expense and participate in the defense of the Third Party Claim,
(ii) the indemnified party will not consent to the entry of any order,
decree or judgment with respect to the Third Party Claim without the
prior written consent of the indemnifying party (not to be withheld
unreasonably), and (iii) the indemnifying party will not consent to the
entry of any order, decree or judgment with respect to the Third Party
Claim without the prior written consent of the indemnified party (not
to be withheld unreasonably, provided that it will not be deemed to be
unreasonable for an indemnified party to withhold its consent (A) with
respect to any finding of or admission of any violation of any law,
order, decree, judgment or permit, or (B) if any portion of such order,
decree or judgment would not remain sealed).
(d) If any condition in Section 7.4(b) is or becomes
unsatisfied, (i) the indemnified party may defend with attorneys of its
choice against, and consent (with the consent of the indemnifying
party, such consent not to be unreasonably withheld or delayed) to the
entry of any order, decree or judgment with respect to a Third Party
Claim in any manner it may deem appropriate, (ii) the indemnifying
party will be obligated to reimburse the indemnified party promptly and
periodically for Damages related to defending against the Third Party
Claim, and (iii) each indemnifying party will remain liable for any
Damages the indemnified
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<PAGE>
party may suffer relating to the Third Party Claim to the fullest
extent provided in this Article VII.
7.5 MISCELLANEOUS. Seller shall (and shall cause its affiliates to)
hold the Company and Buyer harmless from any rights of contribution or
indemnification it or its affiliates may have against the Company as a result of
Damages Seller or its affiliates may incur under this Agreement or as a result
of owning the Company or otherwise.
7.6 ARBITRATION. Any dispute, controversy or claim arising out of or in
connection with this Agreement, or the breach thereof, shall be finally settled
under the Rules of Arbitration of the American Arbitration Association. The
arbitration proceeding shall be held in Wilmington, Delaware. The arbitral award
shall be in writing, shall be rendered within three months after submission of
the matter, and shall be final and binding on the parties. The arbitration shall
be before a single arbitrator with prior professional experience as a lawyer,
accountant or investment banker with corporate acquisitions with values in
excess of $500 million. Except to the extent determined by the arbitrator, his
decision shall be based solely upon written submissions. In the absence of any
award, each party shall bear its own costs and the parties shall share equally
the fees and expenses of the arbitrator. In the event of an award, the
arbitrator may elect to award a prevailing party its reasonable costs attendant
to the arbitration if he determines that the losing party's position was
unreasonable or without significant merit. Judgment upon the award (for purposes
of enforcement) may be entered by any court having jurisdiction thereof or
having jurisdiction over the parties or their assets.
ARTICLE VIII.
MISCELLANEOUS
8.1 ADDITIONAL COVENANTS.
(a) Except as expressly permitted by this Agreement, from the
date hereof to and including the Closing Date, Seller will not, and
will cause the Company not to, take any action, or fail to take any
reasonable action (in each case consistent with the terms of this
Agreement), as a result of which Seller would not be reasonably likely
to be able to deliver the certificate contemplated by Section 5.1(a).
Prior to Closing, Seller will provide Buyer with such information as
Buyer reasonably requests concerning the status of the business,
operations and finances of the Company.
(b) Seller has provided Buyer with accurate and complete
copies of Guarantor's most recently completed audited balance sheet
prior to the date hereof, and prior to Closing will provide Buyer with
accurate and complete copies of Guarantor's most recently completed
balance sheet prior to the Closing Date, such balance sheets to be
prepared consistent with Guarantor's past accounting practices.
Guarantor has no plan or intent to, and after the date hereof Guarantor
will not, take any action which could have a Material Adverse Effect on
Guarantor. Guarantor has no plan or intent to, and after the date
hereof Guarantor
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<PAGE>
will not, materially alter its assets and/or liabilities so as to
impair Guarantor's ability to satisfy its obligations under the
Guaranty.
(c) From the day before the Closing Date until the Closing,
Seller will not, and will cause the Company not to, take any
affirmative action, or fail to take any reasonable action (in each case
consistent with the terms of this Agreement), as a result of which a
Material Adverse Effect could occur with respect to Taxes of any kind
whatsoever that affect the Company or its assets.
8.2 TERMINATION OF AGREEMENT. If the Merger Agreement (the "Merger
Agreement") among Illinova Corporation, Buyer, Energy Convergence Acquisition
Company, Dynegy Acquisition Company and Dynegy, dated the date hereof, is
terminated, this Agreement shall terminate and all rights and obligations of the
parties hereunder shall terminate without any liability of any party to any
other party.
8.3 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified, or supplemented only by written agreement of Dynegy and the parties
hereto.
8.4 WAIVER OF COMPLIANCE; CONSENTS. Any failure of a party to comply
with any obligation, covenant, agreement, or condition herein may be waived by
the parties hereto; provided, however, that any such waiver may be made only by
a written instrument signed by the parties hereto and Dynegy granting such
waiver, but such waiver or failure to insist upon strict compliance with such
obligation, covenant, agreement, or condition shall not operate as a waiver of,
or estoppel with respect to, any subsequent or other failure. Whenever this
Agreement requires or permits consent by or on behalf of any party hereto, such
consent shall be given in writing in a manner consistent with the requirements
for a waiver of compliance as set forth in this Section 8.4, with appropriate
notice in accordance with Section 8.8.
8.5 ASSIGNMENT; THIRD PARTY BENEFICIARIES. This Agreement and all of
the provisions hereof shall be binding upon the parties hereto and their
respective successors and permitted assigns. Nothing in this Agreement,
expressed or implied, is intended or shall be construed to confer upon any
Person other than the parties hereto, and their respective successors and
assigns any right, remedy, or claim under or by reason of this Agreement or any
provision herein contained, except that the parties hereto acknowledge that
Dynegy is a third party beneficiary of this Agreement. No party may assign its
rights or obligations under this Agreement to any Person without the written
consent of the other parties hereto, such consent not to be unreasonably
withheld.
8.6 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of Delaware (without regard to its conflicts of law
doctrines).
8.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument and shall become a binding
agreement when one or more of the counterparts have been signed by each of the
parties and delivered to the other party.
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<PAGE>
8.8 NOTICES. All notices or communications hereunder shall be in
writing (including facsimile or similar writing) addressed as follows:
If to Buyer:
Energy Convergence Holding Company
1000 Louisiana
Suite 6700
Houston, TX 77002
Attention: Kenneth Randolph
Telecopy: (713) 507-6808
with copies to (such copy not to constitute notice):
Illinova Corporation
500 South 27th Street,
Decatur, Illinois 62521
Attention: President
Telecopy: (217) 362-7458
and:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
1900 Pennzoil Place, South Tower
711 Louisiana Street
Houston, Texas 77002
Attn: Robert B. Allen
Telecopy: (713) 236-0822
If to Seller:
British Gas Atlantic Holdings BV
3032 AC Rotterdam
Wilhelminaplein 14
3072 DE Rotterdam
The Netherlands
Attn: Loek de Preter
Telecopy: 3110 290 6581
with a copy to (such copy not to constitute notice):
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Alfred J. Ross, Jr. and Douglas McFadyen
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<PAGE>
Telecopy: (212) 848-7179
Any such notice or communication shall be deemed given (i) when made, if made by
hand delivery, and upon confirmation of receipt, if made by facsimile, (ii)
three business days after being deposited with a next-day courier, postage
prepaid, or (iii) three business days after being sent certified or registered
mail, return receipt requested, postage prepaid, in each case addressed as above
(or to such other address as such party may designate in writing from time to
time).
8.9 SERVICE OF PROCESS. Seller hereby irrevocably appoints The
Corporation Trust Company located at 1209 Orange Street in Wilmington, Delaware,
as its lawful agent in Delaware to receive and forward on their behalf service
of all necessary processes in any action, suit, or proceeding arising under this
Agreement that may be brought against Seller in any court (including federal
courts) in Delaware. Such service of process or notice received thereof by the
agent will have the same force and effect as if served upon Seller. Seller will
pay all costs and expense and circulate forms as may be required by The
Corporation Trust Company in this capacity.
8.10 HEADINGS The article and section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
8.11 ENTIRE AGREEMENT. This Agreement embodies the entire agreement and
understanding of the parties hereto in respect of the subject matter contained
herein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
8.12 SEVERABILITY. If any one or more provisions contained in this
Agreement shall, for any reason, be held to be invalid, illegal or unenforceable
in any respect, such invalidity, illegality or, unenforceability shall not
affect any other provision of this Agreement, but this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
8.13 FURTHER ASSURANCES. Each party to this Agreement agrees to execute
such documents or instruments, and to take such action, as the other party may
reasonably request after the date hereof in order to effectuate and perfect the
indemnification contemplated hereby.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Stock
Purchase Agreement on the date first written above.
ENERGY CONVERGENCE HOLDING
COMPANY
By: /s/ Charles E. Bayless
--------------------------
Name: Charles E. Bayless
--------------------------
Title: President
--------------------------
BRITISH GAS ATLANTIC
HOLDINGS BV
By: /s/ L.M.O.C. de Preter
--------------------------
Name: L.M.O.C. de Preter
--------------------------
Title: Director
--------------------------
<PAGE>
GUARANTY
WHEREAS, British Gas Atlantic Holdings BV, a Dutch corporation
("Seller"), is a wholly owned subsidiary of BG Overseas Holdings Limited, a
company incorporated under the laws of England and Wales ("Parent"); and
WHEREAS, Parent is directly and indirectly benefiting from the
consummation of the transactions contemplated in the Stock Purchase Agreement,
dated the date hereof, by and between Energy Convergence Holding Company and
Seller, and any amendments or supplements thereto (the "Purchase Agreement").
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Parent hereby unconditionally, absolutely and continuously
guarantees Seller's payment and performance of its liabilities and obligations
under the Purchase Agreement. Parent hereby waives any right to require Buyer to
(a) proceed against Seller, (b) have Parent joined with Seller in any suit or
proceeding arising out of this Guaranty, or (c) pursue any other remedy in
Buyer's power whatsoever.
Any dispute, controversy or claim arising out of or in connection with
this Guaranty, or the breach thereof, shall be finally settled under the Rules
of Arbitration of the American Arbitration Association. The arbitration
proceeding shall be held in Wilmington, Delaware. The arbitral award shall be in
writing, shall be rendered within three months after submission of the matter,
and shall be final and binding on the parties. The arbitration shall be before a
single arbitrator with prior professional experience as a lawyer, accountant or
investment banker with corporate acquisitions with values in excess of $500
million. Except to the extent determined by the arbitrator, his decision shall
be based solely upon written submissions. In the absence of any award, each
party shall bear its own costs and the parties shall share equally the fees and
expenses of the arbitrator. In the event of an award, the arbitrator may elect
to award a prevailing party its reasonable costs attendant to the arbitration if
he determines that the losing party's position was unreasonable or without
significant merit. Judgment upon the award (for purposes of enforcement) may be
entered by any court having jurisdiction thereof or having jurisdiction over the
parties or their assets.
Guarantor hereby irrevocably appoints CT Corporation System in
Wilmington, Delaware, as its lawful agent in Delaware to receive and forward on
their behalf service of all necessary processes in any action, suit, or
proceeding arising under this Agreement that may be brought against Guarantor in
any court (including federal courts) in Delaware. Such service of process or
notice received thereof by the agent will have the same force and effect as if
served upon Guarantor. Guarantor will pay all costs and expense and circulate
forms as may be required by CT Corporation System in this capacity.
This Guaranty shall be governed by and construed in accordance with the
laws of Delaware (without regard to its conflicts of law doctrines).
IN WITNESS WHEREOF, Parent has caused this Guaranty to be duly executed
as of the 14th day of June, 1999.
BG OVERSEAS HOLDINGS LIMITED
By: /s/ Tom Melvin
----------------------------------------
Name: Tom Melvin
----------------------------------------
Title: Director
----------------------------------------
<PAGE>
EXHIBIT 17
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
ENERGY CONVERGENCE HOLDING COMPANY
Pursuant to and in accordance with Section 6.10 of the Illinois
Business Corporation Act of 1983, as amended (the "IBCA"), the undersigned
corporation hereby makes the following statement:
The name of the corporation is Energy Convergence Holding Company
(the "Corporation").
ARTICLE I.
The Board of Directors of the Corporation (the "Board") on ________,
[_____] duly adopted the following resolution establishing and designating a
series of preferred stock of the Corporation and fixing and determining the
relative rights and preferences thereof:
RESOLVED, that pursuant to the authority vested in the Board by
Article 4, Paragraph 2B. of the Corporation's Articles of Incorporation, a
series of preferred stock of the Corporation be, and it hereby is, created out
of the authorized but unissued shares of the capital stock of the Corporation,
such series to be designated "Series A Convertible Preferred Stock" (the
"Series A Preferred Stock"), to consist of [__________] shares, no par value
per share, of which the preferences and relative and other rights, and the
qualifications, limitations, and restrictions thereof will be, in addition to
those set forth in the Corporation's Articles of Incorporation, as follows:
1. CERTAIN DEFINITIONS. Unless otherwise stated herein or the context
otherwise requires, the terms defined in this Section 1 have the following
meanings:
"Board" is defined in the preamble to this Article II.
"Class A Common Stock" means all shares now or hereafter authorized
of Class A Common Stock, no par value per share, of the Corporation.
"Common Stock" means all shares now or hereafter authorized of any
class of common stock of the Corporation and any other stock of the
Corporation, howsoever designated, authorized after the Issue Date, which has
the right (subject to prior rights of any class or series of preferred stock)
to participate in the distribution of the assets and earnings of the
Corporation without limit as to per share amount.
"Conversion Date" is defined in Section 5(c).
<PAGE>
"Conversion Price" will mean the price per share of Class A Common
Stock used to determine the number of shares of Class A Common Stock
deliverable upon conversion of a share of the Series A Preferred Stock, subject
to adjustment in accordance with the provisions of Section 5.
"Corporation" is defined in Article I.
"Dividend Payment Date" means March 31, June 30, September 30, and
December 31 of each year.
"Dividend Period" means the quarterly period between consecutive
Dividend Payment Dates; provided, that the initial Dividend Period shall be
from the Issue Date until the first Dividend Payment Date after the Issue
Date.
"Final Redemption Date" is defined in Section 4(e).
"IBCA" is defined in the introductory paragraph of this resolution.
["ILLINOVA AVERAGE PRICE" MEANS THE MEAN AVERAGE OF THE CLOSING
PRICES ON THE NEW YORK STOCK EXCHANGE, INC. OF THE COMMON STOCK, NO PAR VALUE,
OF ILLINOVA CORPORATION OVER THE FIVE CONSECUTIVE TRADING DAYS ENDING ON THE
ELECTION DATE PURSUANT TO THE MERGER AGREEMENT, BY AND AMONG ILLINOVA
CORPORATION, THE CORPORATION, DYNEGY ACQUISITION COMPANY, ENERGY CONVERGENCE
ACQUISITION COMPANY AND DYNEGY INC., DATED JUNE 14, 1999.]
"Issue Date" means the date on which shares of Series A Preferred
Stock are first issued by the Corporation.
"Junior Stock" means, for purposes of Section 2, the Common Stock and
any other class or series of capital stock of the Corporation issued after the
Issue Date not entitled to receive any dividends in any Dividend Period,
unless all dividends required to have been paid or declared and set apart for
payment on the Series A Preferred Stock have been paid or declared and set
apart for payment and, for purposes of Section 3, the Common Stock and any
class or series of capital stock of the Corporation issued after the Issue
Date not entitled to receive any assets upon the liquidation, dissolution, or
winding up of the affairs of the Corporation until the Series A Preferred
Stock have received the entire amount to which such stock is entitled upon
such liquidation, dissolution, or winding up.
"Liquidation Date" is defined in Section 3.
"Liquidation Value" means $50.00 per share of Series A Preferred
Stock, plus any accrued but unpaid dividends thereon through the Liquidation
Date.
"Parity Stock" means, for purposes of Section 2, any other class or
series of capital stock of the Corporation issued after the Issue Date
entitled to receive payment of dividends on a parity with the Series A
Preferred Stock and, for purposes of Section 3, any other class or series of
capital stock of the Corporation issued after the Issue Date entitled to
receive assets upon the liquidation, dissolution, or winding up of the affairs
of the Corporation on a parity with the Series A Preferred Stock.
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"Record Date" means March 15, June 15, September 15, and December 15
of each year, or such other date as may be designated by the Board.
"Redemption Agent" is defined in Section 4(d).
"Redemption Date" is defined in Section 4(c).
"Redemption Price" means $50.00 per share of Series A Preferred
Stock, plus any accrued but unpaid dividends thereon through the Redemption
Date.
"Senior Stock" means for purposes of Section 2, any class or series
of capital stock of the Corporation issued after the Issue Date ranking senior
to the Series A Preferred Stock in respect of the right to receive dividends,
and, for purposes of Section 3, any class or series of capital stock of the
Corporation issued after the Issue Date ranking senior to the Series A
Preferred Stock in respect of the right to receive assets upon the
liquidation, dissolution, or winding up of the affairs of the Corporation.
"Series A Preferred Stock" is defined in the preamble to this
Article II.
2. DIVIDENDS.
(a) Subject to the prior preferences and other rights of any
Senior Stock, the holders of Series A Preferred Stock are entitled to receive,
out of funds legally available for such purpose, cash dividends at the rate of
$3.00 per annum per share of Series A Preferred Stock, and no more. Such
dividends are cumulative from the Issue Date and are payable quarterly, in
arrears, when and as declared by the Board on each Dividend Payment Date
commencing on the first Dividend Payment Date after the Issue Date. Each such
dividend will be paid to the holders of record of the Series A Preferred Stock
as their names appear on the share register of the Corporation on the Record
Date immediately preceding each Dividend Payment Date. Dividends on account of
arrears for any past Dividend Periods may be declared and paid at any time,
without reference to any Dividend Payment Date, to holders of record on such
date as may be fixed by the Board.
(b) If full cash dividends are not paid or made available to
the holders of all outstanding shares of Series A Preferred Stock and any
Parity Stock, and funds available are insufficient to permit such payment to
all such holders of the preferential amounts to which they are then entitled,
the entire amount available for payment of cash dividends remaining after the
distributions to holders of any Senior Stock of the full amounts to which they
may be entitled will be distributed among the holders of the Series A
Preferred Stock and any Parity Stock ratably in proportion to the full amount
to which they would otherwise be respectively entitled, and any remainder not
paid to the holders of the Series A Preferred Stock will cumulate as provided
in Section 2(c).
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(c) If, on any Dividend Payment Date, the holders of the
Series A Preferred Stock do not receive the full dividends provided for in
Section 2(a), then such dividends will cumulate, whether or not the
Corporation has earnings or profits, whether or not there are funds legally
available for payment of such dividends, and whether or not such dividends are
declared; provided, however, no additional dividends will be paid on or with
respect to any dividends that cumulate pursuant to this Section 2(c).
(d) So long as any shares of Series A Preferred Stock are
outstanding, the Corporation will not, unless all dividends to which the
holders of Series A Preferred Stock are entitled for all previous Dividend
Periods have been paid or declared and a sum of money sufficient for the
payment thereof set apart, (i) declare or pay on any Junior Stock any dividend
or distribution whatsoever, whether in cash, property, or otherwise (other
than dividends payable in shares of the class or series upon which such
dividends are declared or paid, or payable in shares of Common Stock with
respect to Junior Stock other than Common Stock, together with cash in lieu of
fractional shares), (ii) purchase or redeem any Junior Stock, or (iii) pay or
make available any monies for a sinking fund for the purchase or redemption of
any Junior Stock.
(e) Whenever, at any time, accrued but unpaid dividends
should exceed $2.25 per share of outstanding Series A Preferred Stock, the
holders of the Series A Preferred Stock will have the option, voting
separately as a class with holders of shares of any one or more other series
of Parity Stock that would then be entitled to voting rights with the Series A
Preferred Stock to elect directors as a separate class, to elect two directors
to the Board at the Corporation's next annual meeting of its shareholders and
at each subsequent annual meeting of shareholders. At elections for such
directors, each holder of Series A Preferred Stock will be entitled to one
vote for each share held (the holders of shares of Parity Stock will be
entitled to such number of votes, if any, for each share held as may be
granted to the holders of such Parity Stock by the Corporation). Upon vesting
of such right of holders of Series A Preferred Stock, the authorized number of
directors constituting the Board will be increased (even if such increase
results in exceeding the maximum authorized number of directors), in
accordance with the Corporation's Articles of Incorporation and Bylaws, by
two, and the two vacancies so created will be filled by vote of the holders of
Series A Preferred Stock together with holders of Parity Stock, voting
together as a separate class. The right of holders of Series A Preferred
Stock, voting separately as a class with holders of Parity Stock, if
applicable, to elect two directors to the Board will continue until such time
as there are no longer any accrued but unpaid dividends on outstanding Series
A Preferred Stock, subject to revesting if accrued but unpaid dividends
exceed, at any time or times, $2.25 per share of outstanding Series A
Preferred Stock. Upon any termination of the right of the holders of Series A
Preferred Stock, voting separately as a class with holders of Parity Stock, if
applicable, to elect directors as provided herein, the term of office of the
directors elected by the holders of the Series A Preferred Stock, voting
separately as a class with holders of Parity Stock, if applicable, will
automatically terminate. If the office of any director elected by the holders
of Series A Preferred Stock, voting separately as a class with holders of
Parity Stock, if applicable, becomes vacant because of death, resignation,
retirement, disqualification, removal from office, or otherwise, the remaining
director elected by the holders of Series A Preferred Stock, voting separately
as a class with holders of Parity Stock, if applicable, will choose a
successor to hold office for the unexpired term in respect of which such
vacancy occurred. Whenever the term of office of the directors elected by the
holders of Series A Preferred Stock, voting separately as a class with holders
of Parity Stock, if applicable, ends and the special voting rights provided in
this Section 2(e) terminate, the number of directors constituting the Board
will be reduced by two.
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3. DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION, OR WINDING UP. In
the event of any voluntary or involuntary liquidation, dissolution, or other
winding up of the affairs of the Corporation, subject to the prior preferences
and other rights of any Senior Stock, but before any distributions or payments
are made to the holders of Junior Stock, the holders of the Series A Preferred
Stock will be entitled to be paid the Liquidation Value of all outstanding
shares of Series A Preferred Stock, as of the date of such liquidation or
dissolution or such other winding up (the "Liquidation Date"), and no more, in
cash or in property at its fair value as determined by the Board, or both, at
the election of the Board. If such payment is made in full to the holders of
the Series A Preferred Stock, and if payment is made in full to the holders of
any Senior Stock and Parity Stock of all amounts to which such holders will be
entitled, the remaining assets and funds of the Corporation will be
distributed among the holders of Junior Stock, according to their respective
shares and priorities. If, upon any such liquidation, dissolution, or other
winding up of the affairs of the Corporation, the assets of the Corporation
distributable among the holders of all outstanding shares of the Series A
Preferred Stock and any Parity Stock are insufficient to permit the payment in
full to such holders of the preferential amounts to which they are entitled,
then the entire assets of the Corporation remaining after the distributions to
holders of any Senior Stock of the full amounts to which they may be entitled
will be distributed among the holders of the Series A Preferred Stock and any
Parity Stock ratably in proportion to the full amounts to which they would
otherwise be respectively entitled. Neither the consolidation or merger of the
Corporation into or with another entity or entities nor the sale of all or
substantially all of the assets of the Corporation to any person or persons
will be deemed a liquidation, dissolution, or winding up of the affairs of the
Corporation within the meaning of this Section 3, unless such consolidation,
merger, or sale of assets is in connection with the complete liquidation,
dissolution, or winding up of the affairs of the Corporation.
4. REDEMPTION BY THE CORPORATION.
(a) The Series A Preferred Stock may not be redeemed, in
whole or in part, prior to the third anniversary of the Issue Date. On and
after the third anniversary of the Issue Date, the Series A Preferred Stock
may be redeemed by the Corporation at any time and from time to time in, whole
or in part, at the option of the Corporation, at the Redemption Price.
(b) If less than all of the outstanding shares of the Series
A Preferred Stock are to be redeemed by the Corporation, such shares will be
redeemed pro rata as determined by the Board in its sole discretion.
(c) Notice of each proposed redemption of the Series A
Preferred Stock will be sent by or on behalf of the Corporation, by first
class mail, postage prepaid, to holders of record of the shares of Series A
Preferred Stock to be redeemed at such holders' addresses as they appear on
the records of the Corporation, not less than 30 days or more than 60 days
prior to the date fixed for redemption by the Corporation (the "Redemption
Date") (i) notifying such holders of the election of the Corporation to redeem
such shares of Series A Preferred Stock and the Redemption Date, (ii) stating
the date on which such shares of Series A Preferred Stock cease to be
convertible and the Conversion Price, (iii) stating the place or places at
which such shares of Series A Preferred Stock called for redemption will, upon
presentation and surrender of the certificate or certificates evidencing such
shares, be redeemed and the Redemption Price, and
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(iv) stating the name and address of the Redemption Agent selected in accordance
with Section 4(d).
(d) The Corporation may (i) act as the redemption agent or
(ii) appoint as its agent, for the purpose of acting as the Corporation's
redemption agent, a bank or trust company in good standing, organized under
the laws of the United States of America or any jurisdiction thereof and any
replacement thereof or successors thereto. The Corporation or such appointed
bank or trust company is hereinafter referred to as the "Redemption Agent."
Following such appointment, if any, and prior to any redemption, the
Corporation will deliver to the Redemption Agent irrevocable written
instructions authorizing the Redemption Agent, on behalf and at the expense of
the Corporation, to cause a notice of redemption to be duly mailed in
accordance with Section 4(c), as soon as practicable after receipt of such
irrevocable instructions. All funds necessary for the redemption will be
deposited with the Redemption Agent, in trust, at least two business days
prior to the Redemption Date, for the pro rata benefit of the holders of the
shares of Series A Preferred Stock called for redemption. Neither failure to
mail any such notice to one or more holders of Series A Preferred Stock nor
any defect in any notice will affect the sufficiency of the proceedings for
redemption as to other holders of Series A Preferred Stock.
(e) If notice of redemption is given in accordance with
Section 4(e) and the Corporation is not in default in the payment of the
Redemption Price, then each holder of shares of Series A Preferred Stock
called for redemption is entitled to all preferences and relative and other
rights accorded by this resolution until and including the date prior to the
Redemption Date. If the Corporation defaults in making payment on the
Redemption Date, then each holder of the shares of Series A Preferred Stock
called for redemption is entitled to all preferences and relative and other
rights accorded by this resolution until and including the date prior to the
date when the Corporation makes payment to the holders of the Series A
Preferred Stock (the "Final Redemption Date"). From and after the Redemption
Date, the shares of Series A Preferred Stock called for redemption will no
longer be deemed to be outstanding and all rights of the holders of such
shares of Series A Preferred Stock will cease and terminate, except the right
of the holders of such shares of Series A Preferred Stock, upon surrender of
the certificate or certificates therefor, to receive the Redemption Price. The
deposit of monies in trust with the Redemption Agent by the Corporation will
be irrevocable, except that the Corporation will be entitled to receive from
the Redemption Agent the interest or other earnings, if any, earned on any
monies so deposited in trust, and the holders of any shares of Series A
Preferred Stock redeemed will have no claim to such interest or other
earnings. Any balance of monies so deposited by the Corporation and unclaimed
by the holders of the Series A Preferred Stock entitled thereto at the
expiration of one year from the Redemption Date (or the Final Redemption Date,
as applicable) will be repaid, together with any interest or other earnings
thereon, to the Corporation, and after any such repayment, the holders of the
shares of Series A Preferred Stock entitled to the funds so repaid to the
Corporation will look only to the Corporation for payment of the Redemption
Price, without interest.
5. CONVERSION RIGHTS. The Series A Preferred Stock will be
convertible into Class A Common Stock as follows:
(a) Conversion. Subject to and upon compliance with the
provisions of this Section 5, the holder of any shares of Series A Preferred
Stock will have the right at such
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holder's option, at any time or from time to time, to convert any of such shares
of Series A Preferred Stock into fully paid and nonassessable shares of Class A
Common Stock at the Conversion Price in effect on the Conversion Date. With
respect to any share of Series A Preferred Stock called for redemption, the
right of conversion described in this Section 5 will terminate at the close of
business on the day prior to the Redemption Date or, if the Corporation defaults
in the payment of the Redemption Price, at the close of business on the day
prior to the Final Redemption Date.
(b) Conversion Price. Each share of Series A Preferred Stock
will be converted into a number of shares of Class A Common Stock determined
by dividing (i) the Liquidation Value by (ii) the Conversion Price in effect
on the Conversion Date. The Conversion Price at which shares of Class A Common
Stock will initially be issuable upon conversion of the shares of Series A
Preferred Stock will be [(I) THE ILLINOVA AVERAGE PRICE TIMES 1.22 IF THE
CORPORATION'S UNSECURED SENIOR DEBT IS RATED INVESTMENT GRADE OR
(II) IF THE CORPORATION'S UNSECURED SENIOR DEBT IS RATED LESS THAN INVESTMENT
GRADE THAT MULTIPLE (NOT TO EXCEED 1.18) RESULTING IN THE FAIR MARKET VALUE OF
THE SERIES A PREFERRED STOCK BEING EQUAL TO THE LIQUIDATION VALUE UPON ISSUANCE,
UPON WHICH LEHMAN BROTHERS, INC., CHASE SECURITIES, INC., MERRILL LYNCH &
COMPANY, INC., MORGAN STANLEY & CO., INC., AND GOLDMAN SACHS INTERNATIONAL
AGREE BASED ON GOOD FAITH NEGOTIATIONS; PROVIDED THAT IF SUCH INVESTMENT BANKS
CANNOT AGREE ON THE APPROPRIATE MULTIPLE, THEN THEY SHALL CHOOSE A SIXTH
INVESTMENT BANK WHOSE DETERMINATION SHALL BE BINDING. THE DETERMINATION OF
WHETHER THE CORPORATION'S UNSECURED SENIOR DEBT IS RATED INVESTMENT GRADE OR
LOWER WILL BE BASED ON THE STATED INTENTION OF AT LEAST TWO OF THE FOLLOWING
THREE RATING AGENCIES IN CONNECTION WITH THE CORPORATION'S PROPOSED CREDIT
RATING AFTER THE CLOSING OF THE TRANSACTIONS CONTEMPLATED BY THE AGREEMENT AND
PLAN OF MERGER, DATED JUNE 14, 1999, BY AND AMONG THE CORPORATION, DYNEGY INC.,
ILLINOVA CORPORATION, DYNEGY ACQUISITION CORPORATION AND ENERGY CONVERGENCE
ACQUISITION CORPORATION: STANDARD & POORS, MOODY'S INVESTOR SERVICES AND DUFF
& PHELPS.]
The Conversion Price will be subject to adjustment as set forth in Section 5(e).
No dividends will accrue or be paid on Series A Preferred Stock subsequent to
conversion.
(c) Mechanics of Conversion. The holder of any shares of
Series A Preferred Stock may exercise the conversion right specified in
Section 5(a) by surrendering to the Corporation or the transfer agent of the
Corporation the certificate or certificates for the shares to be converted,
accompanied by written notice specifying the number of shares to be converted;
provided, however, that the Corporation will not be obligated to issue to any
such holder the certificate or certificates evidencing the shares of Class A
Common Stock issuable upon such conversion, unless the certificate or
certificates evidencing the shares of Series A Preferred Stock are either
delivered to the Corporation or the transfer agent of the Corporation.
Conversion will be deemed to have been effected on the date when delivery is
made of notice of an election to convert and the certificate or certificates
evidencing the Series A Preferred Stock shares to be converted (the
"Conversion Date"). Subject to the provisions of Section 5(e)(iv), as promptly
as practicable thereafter, the Corporation will issue and deliver to or upon
the written order of such holder a certificate or certificates for the number
of full shares of Class A Common Stock to which such holder is entitled and a
check or cash with respect to any fractional interest in a share of Class A
Common Stock as provided in Section 5(d). Subject to the provisions of Section
5(e)(iv), the person in whose name the certificate or certificates for shares
of Class A Common
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Stock are to be issued will be deemed to have become a holder of record of
such Class A Common Stock on the applicable Conversion Date. Upon conversion
of only a portion of the number of shares covered by a certificate
representing shares of Series A Preferred Stock surrendered for conversion,
the Corporation will issue and deliver to or upon the written order of the
holder of the certificate so surrendered for conversion, at the expense of the
Corporation, a new certificate covering the number of shares of Series A
Preferred Stock representing the unconverted portion of the certificate so
surrendered.
(d) Fractional Shares. No fractional shares of Class A
Common Stock or scrip will be issued upon conversion of shares of Series A
Preferred Stock. If more than one share of Series A Preferred Stock is
surrendered for conversion at any one time by the same holder, the number of
full shares of Class A Common Stock issuable upon conversion thereof will be
computed on the basis of the aggregate number of shares of Series A Preferred
Stock so surrendered. Instead of any fractional shares of Class A Common Stock
which would otherwise be issuable upon conversion of any shares of Series A
Preferred Stock, the Corporation will pay a cash adjustment in respect of such
fractional interest in an amount equal to that fractional interest based on
the fair market value of the Class A Common Stock determined by the
Corporation in its sole discretion.
(e) Conversion Price Adjustments. The Conversion Price will
be subject to adjustment from time to time as follows:
(i) Stock Dividends, Subdivisions,
Reclassifications, or Combinations. If the Corporation (i) declares a
dividend or makes a distribution on its Class A Common Stock in shares of its
Class A Common Stock, (ii) subdivides or reclassifies the outstanding shares of
Class A Common Stock into a greater number of shares, or (iii) combines or
reclassifies the outstanding Class A Common Stock into a smaller number of
shares, the Conversion Price in effect at the time of the record date for such
dividend or distribution or the effective date of such subdivision, combination,
or reclassification will be proportionately adjusted so that the holder of any
shares of Series A Preferred Stock surrendered for conversion after such date
will be entitled to receive the number of shares of Class A Common Stock which
such holder would have owned or been entitled to receive had such Series A
Preferred Stock been converted immediately prior to such date. Successive
adjustments in the Conversion Price will be made whenever any of the foregoing
events occur.
(ii) Consolidation, Merger, Sale, Lease or
Conveyance. In case of any consolidation with or merger of the Corporation with
or into another entity, or in case of any sale, lease, or conveyance to another
person of the assets of the Corporation as an entirety or substantially as an
entirety, each share of Series A Preferred Stock will be convertible, after the
date of such consolidation, merger, sale, lease, or conveyance, into the number
of shares of stock or other securities or property (including cash) to which the
Class A Common Stock issuable (at the time of such consolidation, merger, sale,
lease, or conveyance) upon conversion of a share of Series A Preferred Stock
would have been entitled upon such consolidation, merger, sale, lease, or
conveyance; and in any such case, if necessary, the provisions set forth
herein with respect to the rights and interests thereafter of the holders of
the shares of Series A Preferred Stock will be appropriately adjusted so as to
be applicable, as nearly as may reasonably be, to any shares of
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stock or other securities or property thereafter deliverable on the conversion
of the shares of Series A Preferred Stock.
(iii) Rounding of Calculations; Minimum
Adjustment. All calculations under this Section 5(e) will be made to the
nearest cent or to the nearest one hundredth (1/100th) of a share, as the case
may be. Any provision of this Section 5 to the contrary notwithstanding, no
adjustment in the Conversion Price will be made if the amount of such adjustment
would be less than $0.05, but any such amount will be carried forward and an
adjustment with respect thereto will be made at the time of and together with
any subsequent adjustment which, together with such amount and any other amount
or amounts so carried forward, will aggregate $0.05 or more.
(iv) Timing of Issuance of Additional Class A
Common Stock Upon Certain Adjustments. In any case in which the provisions of
this Section 5(e) requires that an adjustment be made, such adjustment will
become effective immediately after a record date for an event. The Corporation
may defer, until the occurrence of such event, (A) issuing to the holder of any
share of Series A Preferred Stock converted after such record date and before
the occurrence of such event the additional shares of Class A Common Stock
issuable upon such conversion by reason of the adjustment required by such event
over and above the shares of Class A Common Stock issuable upon such conversion
before giving effect to such adjustment and (B) paying to such holder any amount
of cash in lieu of a fractional share of Class A Common Stock pursuant to
Section 5(d); provided, however, that the Corporation upon request will deliver
to such holder a due bill or other appropriate instrument evidencing such
holder's right to receive such additional shares and such cash, upon the
occurrence of the event requiring such adjustment.
(f) Statement Regarding Adjustments. Whenever the Conversion
Price is adjusted as provided in Section 5(e), the Corporation will file, at
the office of any transfer agent for the Series A Preferred Stock and at the
principal office of the Corporation, a statement showing in detail the facts
requiring such adjustment and the Conversion Price in effect after such
adjustment, and the Corporation will also cause a copy of such statement to be
sent by mail, first class postage prepaid, to each holder of shares of Series
A Preferred Stock at such holders address appearing on the Corporation's
records. Each such statement will be signed by the Corporation's independent
public accountants, if applicable. Where appropriate, such copy may be given
in advance and may be included as part of a notice required to be mailed under
the provisions of Section 5(g).
(g) Conditional Conversion. If it is proposed that a
registration of Common Stock is intended to be filed, except on Form S-4 or
S-8 (or any successor forms), which includes the secondary registration on
behalf of holders of Common Stock, the Corporation will notify the holders of
Series A Preferred Stock of such proposed registration and such holders may
conditionally exercise their right to convert any or all of such shares of
Series A Preferred Stock so held in accordance with this Section 5 and
participate in such proposed registration in accordance with the registration
rights granted to such holder by the Corporation, if any. If such registration
is not declared effective or is withdrawn, any conditional exercise pursuant
to this Section 5(g) will be null and void ab initio. Only the number of
shares of Class A Common Stock conditionally converted pursuant to this
Section 5(g) that are actually sold under an
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effective registration statement will be deemed converted pursuant to Section
5(a) and the conditional conversion of such shares will be null and void ab
initio upon the termination of the offering under such registration statement.
(h) Notice to Holders. If the Corporation proposes to take
any action of the type described in Section 5(e)(i) or (ii), the Corporation
will give notice to each holder of shares of Series A Preferred Stock, in the
manner set forth in Section 5(f), which notice will specify the record date,
if any, with respect to any such action and the approximate date on which such
action is to take place. Such notice will also set forth such facts with
respect thereto as will be reasonably necessary to indicate the effect of such
action (to the extent such effect may be known at the date of such notice) on
the Conversion Price and the number, kind, or class of shares or other
securities or property which will be deliverable upon conversion of shares of
Series A Preferred Stock. In the case of any action which would require the
fixing of a record date, such notice will be given at least ten days prior to
the date so fixed, and in case of all other action, such notice will be given
at least 15 days prior to the taking of such proposed action. Failure to give
such notice, or any defect therein, will not affect the legality or validity
of any such action.
(i) Costs. The Corporation will pay all documentary, stamp,
transfer, or other transactional taxes attributable to the issuance or
delivery of shares of Class A Common Stock upon conversion of any shares of
Series A Preferred Stock; provided, however, that the Corporation will not be
required to pay any taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificate for such shares in a
name other than that of the holder of the shares of Series A Preferred Stock
in respect of which such shares are being issued.
(j) Reservation of Shares. The Corporation will reserve at
all times so long as any shares of Series A Preferred Stock remain
outstanding, free from preemptive rights, out of its treasury stock (if
applicable) or its authorized but unissued shares of Class A Common Stock, or
both, solely for the purpose of effecting the conversion of the shares of
Series A Preferred Stock, sufficient shares of Class A Common Stock to provide
for the conversion of all outstanding shares of Series A Preferred Stock.
(k) Valid Issuance. All shares of Class A Common Stock which
may be issued upon conversion of the shares of Series A Preferred Stock will,
upon issuance by the Corporation, be duly and validly issued, fully paid and
nonassessable and free from all taxes, liens, and charges with respect to the
issuance thereof, and the Corporation will take no action which will cause a
contrary result (including, without limitation, any action which would cause
the Conversion Price to be less than the par value, if any, of the Class A
Common Stock).
6. VOTING RIGHTS. If the holders of shares of Series A Preferred
Stock have the right to vote separately as a class pursuant to Section 2(e) or
the IBCA, such holders will be entitled to one vote for each such share so
held. In all other cases, the holders of shares of Series A Preferred Stock
will be entitled to vote upon all matters upon which holders of the Class A
Common Stock have the right to vote, and will be entitled to the number of
votes equal to [1.22] [OR IF THE FACTOR DETERMINED IN ACCORDANCE WITH
SECTION
5(B) IS DIFFERENT, THEN SUCH FACTOR] times the number of whole shares of Class
A Common Stock into which such shares of Series A
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Preferred Stock could be converted pursuant to the provisions of Section 5 at
the record date for the determination of the stockholders entitled to vote on
such matters, or, if no such record date is established, at the date such vote
is taken or any written consent of stockholders is solicited, such votes to be
counted together with all other shares of capital stock having general voting
powers and not separately as a class.
7. EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by
law, the shares of Series A Preferred Stock will not have any preferences or
relative, participating, optional, or other special rights, other than those
specifically set forth in this Statement of Resolution. The shares of Series A
Preferred Stock will have no preemptive or subscription rights.
8. HEADINGS OF SUBDIVISIONS. The headings of the various subdivisions
hereof are for convenience of reference only and will not affect the
interpretation of any of the provisions hereof.
9. SEVERABILITY OF PROVISIONS. If any right, preference, or
limitation of the Series A Preferred Stock set forth in this resolution (as
such resolution may be amended from time to time) is invalid, unlawful, or
incapable of being enforced by reason of any rule of law or public policy, all
other rights, preferences, and limitations set forth in this resolution (as so
amended) which can be given effect without the invalid, unlawful or
unenforceable right, preference, or limitation will, nevertheless, remain in
full force and effect, and no right, preference, or limitation herein set
forth will be deemed dependent upon any other such right, preference, or
limitation unless so expressed herein.
10. STATUS OF REACQUIRED SHARES. Shares of Series A Preferred Stock
which have been issued and reacquired in any manner will (upon compliance with
any applicable provisions of the laws of the State of Illinois) have the
status of authorized and unissued shares of Series A Preferred Stock issuable
in series undesignated as to series and may be redesignated and reissued.
11. ISSUANCE OF ADDITIONAL SECURITIES. Nothing contained herein will
be deemed to any way prohibit, restrict, or inhibit the ability of the
Corporation to designate and/or issue additional securities of any kind,
including, without limitation, shares of Parity Stock or Junior Stock;
provided that, the Corporation may not designate and/or issue any shares of
Senior Stock without the consent of a majority of the shares of Series A
Preferred Stock.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
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The Corporation has caused this statement to be signed by its duly
authorized officers, each of whom affirms, under penalties of perjury, that
the facts stated herein are true.
Date:
----------------------- ENERGY CONVERGENCE HOLDING COMPANY
By:
-------------------------------
---------------------,President
Attested By:
----------------------
-----------, Secretary
<PAGE>
EXHIBIT 18
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 14, 1999, by and between Illinova
Corporation, an Illinois corporation ("Illinova"), and BG Holdings, Inc., a
Delaware corporation ("Stockholder").
WHEREAS, concurrently herewith, Illinova and Dynegy Inc., a Delaware
corporation ("Dynegy"), are entering into an Agreement and Plan of Merger (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 June 14, 1999, Stockholder 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 Board of Directors of Dynegy 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 Mergers; and
WHEREAS, as a condition to its entering into the Merger Agreement,
Illinova has required that Stockholder agree, and Stockholder 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) Unless the Dynegy Board of Directors
shall have withdrawn its recommendation in favor of the Mergers, Stockholder
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
or this 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) all Shares and any other
voting securities of Dynegy that Stockholder directly or indirectly owns or has
the right to vote or direct the voting of (including any such securities
acquired hereafter but excluding any Shares or other securities Stockholder has
the right to acquire but has not acquired) (collectively, the "Covered Shares")
for approval and adoption of: (i) the Merger Agreement, (ii) the DAC Merger,
(iii) any related action reasonably required in furtherance thereof. Unless the
Dynegy Board of Directors shall have withdrawn its recommendation in favor of
the Mergers, Stockholder hereby further agrees that until the Termination Date
(as defined below), it shall, from time to time, in connection with any consent
solicitation relating to the Merger Agreement, timely execute and deliver (or
cause to be timely executed and delivered) a written consent with respect to any
Covered Shares in favor of the approval and adoption of the Merger Agreement,
the DAC Merger and any action required in furtherance thereof.
<PAGE>
(b) Stockholder hereby agrees to make or cause to be made a timely
Election to receive Cash Consideration with respect to all Covered Shares under
the Merger Agreement.
(c) From and after the date hereof until the Termination Date, unless
the Dynegy Board of Directors shall have withdrawn its recommendation of the
Mergers, Stockholder hereby agrees to vote (or cause to be voted) any Covered
Shares against any Dynegy Acquisition 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 Acquisition Proposal. Stockholder further agrees that, until
the Termination Date, in connection with any consent solicitation relating to a
Dynegy Acquisition Proposal, Stockholder will timely execute and deliver (or
cause to be timely executed and delivered) a written consent with respect to any
Covered Shares against any Dynegy Acquisition Proposal as contemplated by the
immediately preceding sentence. For purposes hereof, the term "Termination Date"
shall mean the first to occur of (a) the termination of the Merger Agreement and
(b) the date of consummation of the Mergers.
(d) To the extent inconsistent with the foregoing provisions of this
Section 1 or the other provisions of this Agreement, Stockholder hereby (i)
revokes any and all previous proxies with respect to Stockholder's Covered
Shares, (ii) waives any provisions of the Stockholders Agreement dated May 22,
1996 among BG Holdings, Inc., NOVA Gas Services (U.S.) Inc., and Chevron U.S.A.,
Inc. (the "Stockholders Agreement") with respect to actions contemplated by the
Merger Agreement, (iii) agrees that the Stockholders Agreement shall terminate
as of the Effective Time of the Mergers, and (iv) agrees that it will not
convert any Dynegy preferred shares into common stock before the Termination
Date.
(e) In furtherance of the purposes, and subject to the terms, of this
Agreement, Stockholder hereby appoints Illinova its proxy to vote all of
Stockholder's Covered Shares at any meeting of stockholders of Dynegy (including
any adjournments and postponements thereof) and to execute and deliver any
written consents in order to fulfill the obligations of Stockholder under this
Agreement. This proxy is coupled with an interest and is irrevocable until the
Termination Date.
(f) Nothing herein contained shall (i) restrict, limit or prohibit any
individuals who may represent a Stockholder on Dynegy's Board of Directors 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 Board of Directors of Dynegy undertaken in the
exercise of its fiduciary duties, provided that nothing in this Section 1(f)
shall relieve or be deemed to relieve Stockholder from its obligations under
Sections 1 or 2 of this Agreement.
Section 2. Disposition of Shares. From and after the date hereof until
the Termination Date, and except as provided for in the Stock Purchase Agreement
by and among Newco, British Gas Atlantic Holdings BV and Stockholder, dated June
14, 1999 (the "BG Stock Purchase Agreement"), Stockholder hereby agrees that it
will not directly or indirectly sell, pledge, encumber, grant any proxy or enter
into any voting or similar agreement with respect to, transfer or otherwise
dispose of (collectively, "Transfer"), or agree or contract to Transfer, any
Covered Shares (or any interest therein) with respect to which Stockholder
directly or indirectly controls
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the right to Transfer; provided, however, that Stockholder may Transfer its
respective Covered Shares to an Affiliate of Stockholder provided that such
Affiliate agrees to be subject to the terms and conditions set forth in this
Agreement.
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. Illinova hereby agrees to (a)
cooperate with Stockholder in connection with any filings required to be made by
Stockholder in connection with the Mergers and the transactions contemplated
thereby, and (b) cause Newco to file with the SEC a Proxy Statement/Prospectus
registering shares of Newco Common Stock, Class B Common Stock and Series A
Convertible Preferred Stock in accordance with Section 8.13 of the Merger
Agreement.
Section 4. Representations and Warranties of Illinova. Illinova
represents and warrants to Stockholder as follows: (a) each of this Agreement
and the Merger Agreement has been approved by the Board of Directors of
Illinova, representing all necessary corporate action on the part of Illinova,
except for the approval of Illinova's stockholders contemplated by the Merger
Agreement, (b) each of this Agreement and the Merger Agreement has been duly
executed and delivered by a duly authorized officer of Illinova, and (c) each of
this Agreement and the Merger Agreement constitutes a valid and binding
agreement of Illinova, enforceable against Illinova.
Section 5. Representations and Warranties of Stockholder. Stockholder
represents and warrants to Illinova as follows: (a) Stockholder has the
corporate power and authority to execute and deliver this Agreement, (b) this
Agreement has been duly executed and delivered by Stockholder, (c) this
Agreement constitutes the valid and binding agreement of such Stockholder, (d)
except as provided in the Stockholders Agreement, Stockholder has the full power
and authority to vote, or execute a consent, with respect to, all Covered Shares
as contemplated hereby, (e) the securities of Dynegy listed next to the name of
Stockholder on Schedule I hereto are the only securities of Dynegy owned by
Stockholder and over which Stockholder has the power to vote (or direct the
voting) (collectively, the "Shares"), (f) except as provided in the Stockholders
Agreement, Stockholder is the lawful owner of the Shares listed on Schedule I as
owned by it, free and clear of all liens, charges, encumbrances and commitments
of every kind, other than this Agreement, and has the power to vote (including
by an irrevocable power to vote or execution of a consent) such Shares without
any actions on the part of any other party, and (g) except as provided in the
Stockholders Agreement, the execution and delivery by Stockholder of this
Agreement does not violate or breach any law, contract, instrument, agreement or
arrangement to which Stockholder is a party or by which Stockholder is bound,
except to the extent such violation or breach does not prevent or delay
performance of such Stockholder's obligations hereunder.
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<PAGE>
Section 6. Effectiveness. It is a condition precedent to the
effectiveness of this Agreement that the Merger Agreement shall have been duly
executed and delivered by the parties thereto. Any amendment or change to the
Merger Agreement that (i) changes the Exchange Ratio, (ii) changes the amount
and nature of the Aggregate Merger Consideration payable per share of Dynegy
Stock, (iii) changes the termination date of the Merger Agreement, or (iv)
materially adversely affects the Stockholder, will nullify the effectiveness of
this Agreement and this Agreement shall terminate immediately.
Section 7. Miscellaneous.
(a) Notices, Etc. All notices, requests, demands or other
communications required by or otherwise with respect to this Agreement shall be
in writing and shall be deemed to have been duly given to any party when
delivered personally (by courier service or otherwise), when delivered by
telecopy and confirmed by return telecopy, or three days after being mailed by
courier service that guarantees overnight delivery, in each case to the
applicable addresses set forth below:
If to Illinova:
Illinova Corporation
500 South 27th Street,
Decatur, IL 62521
Attention: President
Telecopy: (217) 362-7458
with copies to:
Illinova Corporation
500 South 27th Street
Decatur, IL 62521
Attention: Chief Legal Officer
Telecopy: (217) 424-6978
and:
Troutman Sanders LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, GA 30308
Attention: W. Brinkley Dickerson, Jr.
Telecopy: (404) 962-6743
If to the Stockholder:
BG Holdings, Inc.
-------------------------------
-------------------------------
Attention:
-------------------------------
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Telecopy:
-------------------------------
with copies to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022
Attention: Alfred J. Ross, Jr.
Telecopy: (212) 848-7179
and:
Dynegy Inc.
1000 Louisiana, Ste. 5800
Houston, TX 77002
Attention: Senior Vice President and General Counsel
Telecopy: (713) 507-6808
and:
Akin, Gump, Strauss, Hauer & Feld, L.L.P.
711 Louisiana Street, 19th Floor
Houston, TX 77002
Attention: Robert Allen
Telecopy: (713) 236-0822
or to such other address as such party shall have designated by notice so given
to each other party.
(b) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated except by an
instrument in writing signed by Illinova and Stockholder. In addition, Illinova
agrees not to waive or modify Section 9.1(h) of the Merger Agreement without the
prior consent of Stockholder.
(c) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the parties and their
respective successors and assigns, including without limitation any corporate
successor by merger or otherwise, or any party succeeding to the ownership of
(or power to vote) Stockholder's Covered Shares.
(d) Entire Agreement. This Agreement, the BG Stock Purchase Agreement
and the Ancillary Agreements (together with the Merger Agreement) embodies the
entire agreement and understanding between the parties relating to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter. There are no representations, warranties or covenants by
the parties hereto relating to such subject matter other than those expressly
set forth in this Agreement, the Ancillary Agreements and the Merger Agreement.
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<PAGE>
(e) Severability. If any term of this Agreement or the application
thereof to any party or circumstance shall be held invalid or unenforceable to
any extent, the remainder of this Agreement and the application of such term to
the other party or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by applicable law, provided that in
such event the parties shall negotiate in good faith in an attempt to agree to
another provision (in lieu of the term or application held to be invalid or
unenforceable) that will be valid and enforceable and will carry out the
parties' intentions hereunder.
(f) Specific Performance. The parties acknowledge that money damages
are not an adequate remedy for violations of this Agreement and that any party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
(g) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise or beginning of the
exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(h) No Waiver. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(i) Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of and shall not be enforceable by any person or entity who or which
is not a party hereto, except the parties hereto acknowledge that Dynegy is a
third party beneficiary with respect to Section 1(b) of this Agreement.
(j) Jurisdiction. Each party (a) consents to submit itself to the
personal jurisdiction of any federal court located in the State of Delaware or
any Delaware state court if any action, suit or proceeding arises in connection
with this Agreement and (b) agrees that it will not attempt to defeat or deny
such personal jurisdiction by motion or other request for leave from any such
court. Each party hereto hereby waives any right to a trial by jury in
connection with any such action.
(k) Governing Law. This Agreement and all disputes hereunder shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware to the fullest extent possible.
(l) Name, Captions, Gender. The name assigned this Agreement and the
section captions used herein are for convenience of reference only and shall not
affect the interpretation or
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<PAGE>
construction hereof. Whenever the context may require, any pronoun used herein
shall include the corresponding masculine, feminine or neuter forms.
(m) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one instrument. Each counterpart may consist of a
number of copies each signed by less than all, but together signed by all, the
parties hereto.
(n) Expenses. Illinova and Stockholder shall bear its own expenses
incurred in connection with this Agreement and the transactions contemplated
hereby.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
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IN WITNESS WHEREOF, the parties have duly executed this Voting
Agreement as of the date first above written.
ILLINOVA CORPORATION
By: /s/ Charles E. Bayless
-----------------------------
Name: Charles E. Bayless
-----------------------------
Title: Chairman, President and CEO
-----------------------------
BG HOLDINGS, INC.
By: /s/ Cynthia Masters
-----------------------------
Name: Cynthia Masters
-----------------------------
Title: Vice President
-----------------------------
SCHEDULE I
SHARES
Dynegy Common Stock 38,789,876
9
<PAGE>
EXHIBIT 19
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of June
14, 1999, is by and among Energy Convergence Holding Company, an Illinois
corporation (the "Company"), British Gas Atlantic Holdings BV, a Netherlands
corporation ("BG"), and NOVA Gas Services (U.S.) Inc., a Delaware corporation
("NOVA"). BG and NOVA may hereinafter be referred to collectively as
"Stockholders."
WHEREAS, pursuant to the Merger Agreement (the "Merger Agreement")
dated as of the date hereof among Illinova Corporation, an Illinois corporation,
the Company, Dynegy Acquisition Company, a Delaware corporation, Energy
Convergence Acquisition Company, an Illinois corporation, and Dynegy Inc., a
Delaware corporation ("Dynegy"), NOVA will receive, at the Effective Time (as
such term is defined in the Merger Agreement), shares of Series A Convertible
Preferred Stock, no par value per share, of the Company (the "Preferred Stock");
WHEREAS, pursuant to the Stock Purchase Agreement (the "Stock Purchase
Agreement") as of the date hereof, between the Company and BG, BG will receive
shares of Preferred Stock; and
WHEREAS, in connection with the Merger Agreement and the Stock Purchase
Agreement, the Company has agreed to grant to each Stockholder certain
registration rights set forth below.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged by each Stockholder and the Company, the parties hereto agree as
follows:
SECTION 1.
DEFINITIONS
1.1 SPECIFIC DEFINITIONS.
The following capitalized terms shall have the meanings ascribed to
them in this Section 1.1:
"Affiliate" shall have the meaning set forth in Rule 12b-2 under the
Exchange Act.
<PAGE>
"Agreement" shall have the meaning set forth in the preamble hereto.
"BG" shall have the meaning set forth in the preamble hereto.
"Chevron Agreement" is defined in Section 11.2.
"BG Holder" means BG and each transferee of Registrable Stock directly
or indirectly (in a chain of title) from BG to whom the right to cause one or
more demand registrations under Section 2.1 has been expressly assigned in
writing directly or indirectly (in a chain of title) from BG.
"Class B Common Stock" shall mean the Class B common stock of the
Company, no par value per share.
"Common Stock" shall mean the Class A common stock of the Company, no
par value per share.
"Company" shall have the meaning set forth in the preamble hereto.
"Company Registration" is defined in Section 3.1.
"Dynegy" shall have the meaning set forth in the recitals hereto.
"Effective Time" shall have the meaning set forth in the Merger
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Holders" shall mean the BG Holders and the NOVA Holders.
"Indemnified Party" shall have the meaning set forth in Section 7.3.
"Indemnifying Party" shall have the meaning set forth in Section 7.3.
"Initial Date" shall mean the date which is 270 days after the
Effective Time.
"Inspectors" shall have the meaning set forth in Section 4.1(l).
"Loss" or "Losses" shall have the meaning set forth in Section 7.1.
"Merger Agreement" shall have the meaning set forth in the recitals
hereto.
"NOVA" shall have the meaning set forth in the preamble hereto.
"NOVA Holder" means NOVA and each transferee of Registrable Stock
directly or indirectly (in a chain of title) from NOVA to whom the right to
cause one or more demand registrations under Section 2.1 has been expressly
assigned in writing directly or indirectly (in a chain of title) from NOVA.
"person" shall mean any business entity (including, without limitation,
a corporation, partnership (limited or general), limited liability company or
business trust) or a natural person.
"Preferred Stock" shall have the meaning set forth in the recitals
hereto.
"Prospectus" shall have the meaning set forth in Section 7.1.
"register" "registered" and "registration" and words of similar import
refer to a registration effected by preparing and filing with the SEC a
registration statement in compliance
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with the Securities Act, and the declaration and ordering by the SEC of
effectiveness of such registration statement or document.
"Registrable Common Stock" shall mean any Common Stock held by any
Stockholder or its permitted assigns as of the Effective Time, and any
securities issued or issuable in respect of any Registrable Common Stock by way
of any stock split or stock dividend or in connection with any combination of
shares, recapitalization, merger, consolidation, reorganization or otherwise.
"Registrable Preferred Stock" shall mean any Preferred Stock held by
any Stockholder or its permitted assigns as of the Effective Time, and any
securities issued or issuable in respect of any Registrable Preferred Stock by
way of any stock split or stock dividend or in connection with any combination
of shares, recapitalization, merger, consolidation, reorganization or otherwise.
"Registrable Stock" shall mean, collectively, the Registrable Common
Stock and the Registrable Preferred Stock.
"SEC" shall mean the United States Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stockholders" shall have the meaning set forth in the preamble hereto.
1.2 OTHER DEFINITIONS.
Other capitalized terms used herein but not defined in Section 1.1
shall have the respective meanings ascribed to them throughout this Agreement.
SECTION 2.
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION RIGHTS.
(a) After the Initial Date, upon receipt of a written request
from a BG Holder or a NOVA Holder to register under the Securities Act (whether
for purposes of a public offering, an exchange offer or otherwise) all or part
of the Registrable Stock held by such BG Holder or NOVA Holder, as the case may
be, the Company shall as expeditiously as reasonably possible (but in any event
not later than forty-five (45) days after receipt of such request) prepare and
file, and use its best efforts to cause to become effective as soon thereafter
as practicable, a registration statement under the Securities Act to effect the
offering of such Registrable Stock in the manner specified in such request.
(b) The BG Holder or the NOVA Holder, as the case may be,
shall be entitled to select and retain one or more investment bankers or
managers reasonably acceptable to the Company in connection with any
underwritten offerings made pursuant to this Section 2.1.
(c) Subject to the terms and conditions set forth in Section
2.2, any BG Holder or NOVA Holder may request the Company to register
Registrable Stock under the Securities Act pursuant to this Section 2.1 at any
time and from time to time; provided, however,
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<PAGE>
that the Holders may not request the Company to register Registrable Stock
pursuant to this Section 2.1 more than once in any 180-day period.
2.2 TERMS AND CONDITIONS OF DEMAND REGISTRATION RIGHTS.
Notwithstanding anything to the contrary contained elsewhere herein,
the registration rights granted to the BG Holders and the NOVA Holders in
Section 2.1 are expressly subject to the following terms and conditions:
(a) The BG Holders and the NOVA Holders, collectively, shall
only be entitled (i) to four requests to register Registrable Stock under the
terms of Section 2.1, and (ii) to commence requests after the Initial Date. A
"request" as it is used in this Section 2.2(a) shall be deemed to have occurred
only upon completion of a requested registration and the subsequent sale of
Registrable Stock.
(b) In no event shall the Registrable Stock to be offered
under a registration statement prepared and filed pursuant to Section 2.1
constitute less than (i) two percent (2%) of the then outstanding shares of
Common Stock (treating the Class B Common Stock and the Registrable Preferred
Stock as if they had been converted for purposes of this calculation), or (ii)
if the number of shares of Registrable Stock constitutes less than two percent
(2%) of the then outstanding shares of Common Stock (treating the Class B Common
Stock and the Registrable Preferred Stock as if they had been converted for
purposes of this calculation), then all of such Stockholder's remaining shares
of Registrable Stock. For purposes of meeting the two percent (2%) threshold in
(i) above, the BG Holders and the NOVA Holders may aggregate their shares of
Registrable Stock to be included therein.
(c) If at any time or from time to time a Holder shall request
registration of any of its Registrable Stock in accordance with Section 2.1, the
Company shall give the other Holders prompt written notice of the proposed
registration and shall include in such registration on the same terms and
conditions as the other Registrable Stock included in such registration such
number of shares of Registrable Stock as the other Holders shall request within
five (5) business days after the giving of such notice. If the managing
underwriter or underwriters of a proposed offering for which securities of more
than one Holder are included pursuant to this Section 2.2(c) advise the Company
in writing that in its or their good faith judgment the total amount of
securities to be included in such offering is sufficiently large to jeopardize
the success of such offering, then in such event the securities to be included
in such offering shall be allocated pro rata among each Holder participating in
the offering based upon the number of shares of Registrable Common Stock
requested to be included in such registration by each such Holder.
(d) The Company shall be entitled to defer for a reasonable
period of time, but not in excess of ninety (90) days, the filing of any
registration statement otherwise required to be prepared and filed by it under
Section 2.1 if the Company notifies the BG Holder or the NOVA Holder, as the
case may be, within five (5) business days after such BG Holder or NOVA Holder
requested the registration under Section 2.1, that the Company (i) is at such
time conducting or about to conduct an underwritten public offering of its
securities for its own account and the Board of Directors of the Company
determines in good faith that such offering would be
4
<PAGE>
materially adversely affected by such registration requested by the BG Holders
or the NOVA Holders or (ii) would, in the opinion of its counsel, be required to
disclose in such registration statement information not otherwise then required
by law to be publicly disclosed and, in the good faith judgment of the Board of
Directors of the Company, such disclosure might adversely affect any material
business transaction or negotiation in which the Company is then engaged. If the
Company elects to defer the filing of a registration statement pursuant to this
Section 2.2(c), the BG Holder or the NOVA Holder, as the case may be, may
withdraw its request, in writing, during the time of such deferral and such
request shall not be counted toward the limit set forth in Section 2.2(a).
(e) Neither the BG Holders nor the NOVA Holders shall exercise
their rights pursuant to Section 2.1 during the 60-day period immediately
following the effective date of any registration statement filed by the Company
under the Securities Act (other than on Form S-8 or another similar form) in
respect of an offering or sale of Common Stock by or on behalf of the Company or
any other stockholder of the Company.
SECTION 3.
PIGGYBACK REGISTRATION RIGHTS
3.1 PIGGYBACK REGISTRATION RIGHTS. If at any time or from time to time
the Company shall propose to register any Common Stock for public sale under the
Securities Act (for its own account or for the account of any stockholder) (a
"Company Registration"), the Company shall give each Stockholder prompt written
notice of the proposed registration and shall include in such registration on
the same terms and conditions as the other securities included in such
registration such number of shares of Registrable Common Stock as any
Stockholder shall request within five (5) business days after the giving of such
notice; provided, however, that the Company may at any time prior to the
effectiveness of any such registration statement, in its sole discretion and
without the consent of Stockholders, abandon the proposed offering in which a
Stockholder had requested to participate (provided that the Company gives each
Stockholder prompt notice of such decision); and provided further that any
Stockholder shall be entitled to withdraw any or all of its shares of
Registrable Common Stock to be included in a registration statement under this
Section 3.1 at any time prior to the date on which the registration statement
with respect to such shares of Registrable Common Stock is declared effective by
the SEC. The Company shall be entitled to select the investment bankers and/or
managers, if any, to be retained in connection with any registration referred to
in this Section 3.1, provided such investment bankers and/or managers are
reasonably acceptable to the Stockholder who holds a majority of the stock to be
included in the registration.
3.2 RESTRICTIONS ON PIGGYBACK REGISTRATION RIGHTS.
Notwithstanding anything to the contrary contained elsewhere herein,
the registration rights granted to Stockholders in Section 3.1 are expressly
subject to the following terms and conditions:
(a) The Company shall not be obligated to include shares of
Registrable Common Stock in an offering as contemplated by Section 3.1 if the
Company is advised in writing by the managing underwriter or underwriters of
such offering (with a copy to each
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Stockholder), that the success of such offering would in its or their good faith
judgment be jeopardized by such inclusion (after consideration of all relevant
factors, including without limitation, the impact of any delay caused by
including such shares); provided, however, that the Company shall in any case be
obligated to include such number of shares of Registrable Common Stock in such
offering, if any, as such underwriter or underwriters shall determine will not
jeopardize the success of such offering.
(b) The Company shall not be obligated to include any shares
of Registrable Common Stock in any registration by the Company of any Common
Stock in connection with any merger, acquisition, exchange offer, or any other
business combination, including any transaction within the scope of Rule 145
promulgated pursuant to the Securities Act, subscription offer, dividend
reinvestment plan or stock option or other director or employee incentive or
benefit plan.
(c) The Company shall use all commercially reasonable efforts
to cause the managing underwriter or underwriters of a proposed underwritten
offering to permit the Registrable Common Stock requested to be included in a
registration of Common Stock, pursuant to this Section 3 to be included on the
same terms and conditions as any similar securities included therein.
Notwithstanding the foregoing, the Company shall not be required to include any
Stockholder's Registrable Common Stock in such offering unless such Stockholder
accepts the terms of the underwriting agreement between the Company and the
managing underwriter or underwriters and otherwise complies with the provisions
of Section 7 below. If the managing underwriter or underwriters of a proposed
underwritten offering advise the Company in writing that in its or their good
faith judgment the total amount of securities, including securities requested to
be included in a registration of Common Stock, pursuant to this Section 3 and
other similar securities, to be included in such offering is sufficiently large
to jeopardize the success of such offering, then in such event the securities to
be included in such offering shall be allocated first to the Company and then,
to the extent that any additional securities can, in the good faith judgment of
such managing underwriter or underwriters, be sold without creating any such
jeopardy to the success of such offering, pro rata among each Stockholder
participating in the offering based upon the number of shares of Registrable
Common Stock requested to be included in such registration by each such holder.
(d) In the event that some but less than all of a
Stockholder's shares of Registrable Common Stock are included in an offering
contemplated by a registration statement pursuant to this Section 3, such
Stockholder shall execute one or more "lockup" letters, in customary form,
setting forth an agreement by such Stockholder not to offer for sale, sell,
grant any option for the sale of, or otherwise dispose of, directly or
indirectly, any shares of Common Stock, or any securities convertible into or
exchangeable into or exercisable for any shares of Common Stock, for a period of
90 days from the date such offering commences; provided, however, that if the
period of any such "lockup" applicable to the Company with respect to any such
registration statement shall be less than ninety (90) days, then the period of
time applicable to each Stockholder shall be such lesser period of time.
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SECTION 4.
COVENANTS
4.1 COVENANTS OF THE COMPANY.
In connection with any offering of shares of Registrable Stock pursuant
to this Agreement, the Company shall:
(a) Prepare and file with the Commission such amendments and
post-effective amendments to the registration statement as may be necessary to
keep the registration statement effective for a period of not less than 120
days, or such shorter period which will terminate when all Registrable Stock
covered by such registration statement has been sold or withdrawn at the request
of participating holders of Common Stock or Preferred Stock, as the case may be;
and cause the prospectus to be supplemented by any required prospectus
supplement, and as so supplemented to be filed pursuant to Rule 424 under the
Securities Act;
(b) Furnish to each Stockholder and to each managing
underwriter, if any, (i) at least two (2) business days prior to filing with the
SEC, any registration statement covering shares of Registrable Stock, any
amendment or supplement thereto, and any prospectus used in connection
therewith, which documents will be subject to the reasonable review of such
Stockholders and such underwriter, and, with respect to a registration statement
prepared pursuant to Section 2.1, the Company shall not file any such documents
with the SEC to which any such Stockholder shall reasonably object; and (ii) a
copy of any and all transmittal letters or other correspondence with the SEC or
any other governmental agency or self-regulatory body or other body having
jurisdiction (including any domestic or foreign securities exchange) relating to
such offering of shares of Registrable Stock;
(c) Furnish to each Stockholder and each managing underwriter,
if any, such number of copies of such registration statement, each amendment and
supplement thereto (in each case including all exhibits thereto and documents
incorporated by reference therein) and the prospectus included in such
registration statement (including each preliminary prospectus and prospectus
supplement) as such Stockholder or such underwriter may reasonably request in
order to facilitate the sale of the shares of Registrable Stock;
(d) After the filing of such registration statement, promptly
notify each Stockholder of any stop order issued or enforcement action initiated
or, to the knowledge of the Company, threatened to be issued by the SEC and
promptly take all reasonable actions to prevent the entry of such stop order or
to obtain its withdrawal if entered;
(e) Use its commercially reasonable efforts to qualify such
shares of Registrable Stock for offer and sale under the securities, "blue sky"
or similar laws of such jurisdictions (including any foreign country or any
political subdivision thereof in which shares of Common Stock are then listed)
as any Stockholder or any underwriter shall reasonably request and use its
commercially reasonable efforts to obtain all appropriate registrations, permits
and consents required in connection therewith, except that the Company shall not
for any such purpose be required to qualify generally to do business as a
foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation or to file a general consent to service of process in
any such jurisdiction;
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(f) Furnish to each managing underwriter, if any, an opinion
of counsel for the Company addressed to each of them, dated as of the date of
the closing of the offering of shares of Registrable Stock, and a "comfort"
letter or letters signed by the Company's independent public accountants, each
in reasonable and customary form and covering such matters of the type
customarily covered by opinions or comfort letters delivered by such parties in
underwritten public offerings, and use its commercially reasonable efforts to
have such opinions and comfort letters addressed to and delivered to each
Stockholder;
(g) Furnish certificates (unlegended in the case of
Registrable Common Stock) representing ownership of the shares of the
Registrable Stock being sold in such denominations as shall be requested by a
Stockholder or the managing underwriter, if any, provided such request is made
at least two (2) business days prior to the closing of the sale of such shares;
(h) Promptly inform each Stockholder (i) in the case of any
offering of shares of Registrable Stock in respect of which a registration
statement is filed under the Securities Act, of the date on which such
registration statement or any post-effective amendment thereto becomes effective
and, if applicable, of the date of filing a Rule 430A prospectus (and, in the
case of an offering abroad of shares of Registrable Stock, of the date when any
required filing under the securities and other laws of such foreign
jurisdictions shall have been made and when the offering may be commenced in
accordance with such laws) and (ii) of any request by the SEC, any securities
exchange, government agency, self-regulatory body or other body having
jurisdiction for any amendment of or supplement to any registration statement or
preliminary prospectus or prospectus included therein or any offering memorandum
or other offering document relating to such offering;
(i) Subject to subparagraph (k) below, until the earlier of
(i) such time as all of the shares of Registrable Stock being offered have been
disposed of in accordance with the intended method of disposition by such
Stockholder set forth in the registration statement or other offering document
(and the expiration of any prospectus delivery requirements in connection
therewith) or (ii) the expiration of nine (9) months after such registration
statement or other offering document becomes effective (unless the offering is a
continuous offering of securities under Rule 415, in which case until the
earliest of the date the offering is completed and the second anniversary of
such effective date), keep effective and maintain any registration,
qualification or approval obtained in connection with the offering of the shares
of Registrable Stock, and amend or supplement the registration statement or
prospectus or other offering document used in connection therewith to the extent
necessary in order to comply with applicable securities laws;
(j) Use its commercially reasonable efforts to have the shares
of Registrable Common Stock listed on any domestic and foreign securities
exchanges on which the Common Stock is then listed;
(k) As promptly as practicable, notify each Stockholder at any
time when a prospectus relating to the sale of the shares of Registrable Stock
is required by law to be delivered in connection with sales by an underwriter or
dealer, of the occurrence of an event requiring the preparation of a supplement
or amendment to such prospectus so that, as thereafter
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delivered to the purchasers of such shares, such prospectus will not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statement therein, in light of the
circumstances under which they were made, not misleading, and as promptly as
practicable make available to each Stockholder and to each managing underwriter,
if any, any such supplement or amendment; in the event the Company shall give
such notice, the Company shall extend the period during which such registration
statement shall be maintained effective as provided in Section 4.1(i) by the
number of days during the period from and including the date of the giving of
such notice to the date when the Company shall make available to each
Stockholder such supplemented or amended prospectus;
(l) Make available for inspection during the normal business
hours of the Company by any Stockholder, any underwriter participating in such
offering, and any attorney, accountant or other agent retained by any such
Stockholder or any such underwriter in connection with the sale of shares of
Registrable Stock (collectively, the "Inspectors"), all relevant financial and
other records, pertinent corporate documents and properties of the Company as
shall be reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the officers, directors and employees of the Company
to supply all information reasonably requested by any such Inspector in
connection with such registration statement and make available for consultation
and for analyst and other marketing calls such officers, accountants and
employees in connection therewith as shall reasonably be requested by the
Stockholders; provided, however, that (i) in connection with any such
inspection, any such Inspectors shall cooperate to the extent reasonably
practicable to minimize any disruption to the operation by the Company of its
business and (ii) any records, information or documents shall be kept
confidential by such Inspectors, unless (1) such records, information or
documents are in the public domain or otherwise publicly available or (2)
disclosure of such records, information or documents is required by a court or
administrative order or by applicable law (including, without limitation, the
Securities Act);
(m) Enter into and perform its obligations under usual and
customary agreements (including an underwriting agreement in usual and customary
form) and take such other actions as are reasonably required in order to
expedite or facilitate the sale of the Registrable Stock.
(n) Make "generally available to its security holders" (within
the meaning of Rule 158 of the Securities Act) an earnings statement satisfying
the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder no
later than 45 days after the end of the 12-month period beginning with the first
day of the Company's first fiscal quarter commencing after the effective date of
the registration statement, which earnings statement shall cover said 12-month
period;
(o) If requested by the managing underwriter or underwriters
or Stockholder, promptly incorporate in a prospectus supplement or
post-effective amendment such information as the managing underwriter or
underwriters or any participating Holder, as the case may be, reasonably
requests to be included therein, including, without limitation, information with
respect to the number of shares of Registrable Stock being sold by Stockholder
to any underwriter or underwriters, the purchase price being paid therefor by
such underwriter or underwriters and with respect to any other terms of an
underwritten offering of the Registrable
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Common Stock to be sold in such offering, and promptly make all required filings
of such prospectus by supplement or post-effective amendment;
(p) As promptly as practicable after filing with the SEC of
any document which is incorporated by reference in a prospectus contained in a
registration statement, deliver a copy of such document to each Stockholder;
(q) If (i) as of the Effective Time a BG Holder holds an
interest in the Company which would be treated as a U.S. real property interest
(USRPI) under Section 897(c) of the Code if the Company were a U. S. real
property holding corporation as defined in Section 897(c)(2) of the Code, and
(ii) at the time of a registration under this Agreement, such BG Holder
reasonably requests a statement pursuant to Treas. Reg. Section 1.897-2(h) and
Treas. Reg. Section 1.897-2(g), certifying that ownership of Common Stock is not
a USRPI, then the Company shall use its commercially reasonable efforts to
provide such BG Holder with such statement, and such BG Holder shall be liable
for all expenses incurred by the Company in providing such statement (including,
without limitation, internal costs such as overhead and wages of employees
devoted to providing such statement);
(r) Not later than the effective date of the applicable
registration statement (or if later, the earliest business day thereafter on
which a CUSIP number is available), provide a CUSIP number for all Registrable
Common Stock and provide the applicable transfer agent with printed certificates
for the Registrable Common Stock which are in a form eligible for deposit with
The Depository Trust Company (if such Registrable Common Stock is then eligible
for such deposit);
(s) Cooperate with each seller of Registrable Common Stock and
each underwriter or agent, if any, participating in the disposition thereof and
their respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers;
(t) Provide and cause to be maintained a transfer agent and
registrar for all Registrable Common Stock covered by such registration
statement from and after a date not later than the effective date thereof; and
(u) Take all other steps necessary to effect the registration
of the Registrable Stock contemplated hereby.
4.2 COVENANT OF STOCKHOLDERS.
Each Stockholder agrees and covenants that, upon receipt of any notice
from the Company of the happening of any event of the kind described in Section
4.1(k) hereof, such Stockholder will forthwith discontinue disposition of
Registrable Stock pursuant to the registration statement covering such
Registrable Stock until such Stockholder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 4.1(k) hereof, and,
if so directed by the Company, such Stockholder will deliver to the Company all
copies, other than permanent file copies, then in such Stockholder's possession
of the most recent prospectus covering such Registrable Stock at the time of
receipt of such notice.
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SECTION 5.
RESTRICTIONS ON PUBLIC SALE BY THE COMPANY AND OTHERS
The Company agrees:
(a) Not to effect any public sale or distribution of any
securities during the 90-day period commencing on the effective date of a
registration statement filed pursuant to Section 2.1, except in connection with
any merger, acquisition, exchange offer, or any other business combination,
including any transaction within the scope of Rule 145 promulgated pursuant to
the Securities Act, subscription offer, dividend reimbursement plan or stock
option or other director or employee incentive or benefit plan;
(b) That any agreement entered into after the date hereof
pursuant to which the Company grants registration rights with respect to the
Company's securities shall contain a provision under which holders of such
securities agree, to the extent not inconsistent with applicable laws, not to
effect any public sale or distribution of any such securities (excluding any
sale in accordance with Rule 144 under the Securities Act) during the period
commencing with the effective date of a registration statement pursuant to
Section 2.1 through the 90-day period beginning on the date that the
registration statement filed pursuant to Section 2.1 becomes effective.
SECTION 6.
EXPENSES
All expenses incurred in connection with the registration of
Registrable Stock, including, without limitation, all filing fees, escrow fees,
fees and expenses of compliance with securities or blue sky laws (including fees
and disbursements of the Company's counsel in connection with blue sky
qualifications of the Registrable Stock), rating agency fees, printing expenses,
messenger and delivery expenses, internal expenses (including, without
limitation, all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), the fees and expenses incurred in
connection with the listing of the securities to be registered on each
securities exchange on which similar securities issued by the Company are then
listed, and fees and disbursements of counsel for the Company and the reasonable
fees and disbursements of a single counsel for selling Stockholders and the
Company's independent certified public accountants (including the expenses of
any special audit or "cold comfort" letters required by or incident to such
performance) directly attributable to the registration of securities, Securities
Act liability insurance (if the Company elects to obtain such insurance), and
the fees and expenses of any special experts or other persons retained by the
Company will be borne by the Company. The Company shall have no obligation to
pay and shall not pay any underwriting fees, discounts or commissions in
connection with any Registrable Stock registered pursuant to this Agreement or
any out-of-pocket expenses of the holders in connection therewith (except as
expressly contemplated by the preceding sentence).
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SECTION 7.
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY.
The Company agrees to indemnify and hold harmless each Stockholder, its
officers, directors and agents, and will agree to indemnify and hold harmless
any underwriter of Registrable Stock, and each person, if any, who controls any
of the foregoing persons within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, from and against any and all
losses, claims, damages and liabilities (individually, a "Loss" collectively,
"Losses") arising from or caused by (x) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Stock (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and (y) any violation or alleged violation by
the Company of the Securities Act, any blue sky laws, securities laws or other
applicable laws of any state in which shares of Registrable Stock are offered
and relating to action or inaction required of the Company in connection with
such offering; and will reimburse each such person for any legal or other
out-of-pocket expenses reasonably incurred in connection with investigating, or
defending against, any such Loss (or any proceeding in respect thereof), subject
to the provisions of Section 7.3, except that the indemnification provided for
in this Section 7.1 shall not apply to Losses that are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon and in
conformity with information furnished in writing to the Company by or on behalf
of any Stockholder expressly for use therein. Notwithstanding the foregoing, the
Company shall not be liable in any such case to the extent that any such Loss
arises out of, or is based upon, an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if (i) a
Stockholder failed to send or deliver a copy of the prospectus included in the
relevant registration statement at the time it became effective (the
"Prospectus") with or prior to the delivery of written confirmation of the sale
of Registrable Stock to the person asserting such Loss or who purchased such
Registrable Stock which are the subject thereof if, in either case, such
delivery is required by the Securities Act and (ii) the Prospectus would have
corrected such untrue statement or omission or alleged untrue statement or
alleged omission; and the Company shall not be liable in any such case to the
extent that any such Loss arises out of, or is based upon, an untrue statement
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact in the Prospectus, if such untrue statement or alleged
untrue statement or omission or alleged omission is corrected in any amendment
or supplement to the Prospectus and if, having previously been furnished by or
on behalf of the Company with copies of the Prospectus as so amended or
supplemented, a Stockholder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to and concurrently with the sale of Registrable
Stock if such delivery is required by the Securities Act. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of each Stockholder or any other person indemnified hereunder and shall
survive the transfer of such securities by such Stockholder.
7.2 INDEMNIFICATION BY STOCKHOLDERS.
Each Stockholder, severally but not jointly, agrees to indemnify and
hold harmless the Company, its officers and directors, and each person, if any,
who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the
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same extent as the indemnity made pursuant to clause (x) of Section 7.1 above
from the Company to such Stockholder, but only with reference to information
furnished in writing by or on behalf of such Stockholder expressly for use in
any registration statement or prospectus relating to shares of Registrable
Stock, or any amendment or supplement thereto, or any preliminary prospectus.
7.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to Section 7.1 or 7.2, such person (the "Indemnified Party") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Party") in writing, provided that the omission to so notify the
Indemnifying Party will not relieve the Indemnifying Party of any liability it
may have under this Agreement or otherwise except to the extent of any loss,
damage, liability or expense arising from such omission. The Indemnifying Party,
upon the request of the Indemnified Party, shall retain counsel reasonably
satisfactory to such Indemnified Party to represent such Indemnified Party and
any others the Indemnifying Party may designate in such proceeding and shall pay
the fees and disbursements of such counsel related to such proceeding. In any
such proceeding, any Indemnified Party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the Indemnifying Party and the Indemnified
Party shall have mutually agreed to the retention, (ii) the Indemnifying Party
shall have failed to comply with its obligations under the preceding sentence or
(iii) the Indemnified Party shall have been advised by its counsel in writing
that actual or potential differing interests exist between the Indemnifying
Party and the Indemnified Party. The Indemnifying Party shall not be liable for
any settlement of any proceeding effected without its written consent, which
consent shall not be unreasonably withheld. The Indemnifying Party shall not
agree to any settlement as the result of which any remedy or relief, other than
monetary damages for which the Indemnifying Party shall be fully responsible,
shall be applied to or against an Indemnified Party without the prior written
consent of such Indemnified Party.
7.4 CONTRIBUTION.
If the indemnification provided for in this Section 7.4 from the
Indemnifying Party is unavailable to an Indemnified Party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the Indemnifying Party, in lieu of indemnifying such Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party as a
result of such losses, claims, damages, liability or expenses in such proportion
as is appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such Indemnifying Party or
Indemnified Party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such action. The amount paid
or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the
limitations set
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forth in Section 7.3, any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding. No party shall be
liable for contribution with respect to any action or claim settled without its
written consent, which consent shall not be unreasonably withheld.
Notwithstanding the provisions of this Section 7.4, no Stockholder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Registrable Stock of such Stockholder was offered to
the public exceeds the amount of any damages which such Stockholder has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission of alleged omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this Section 7.4
were determined by pro rata allocation or by any other method of allocation
which does not take into account the equitable considerations referred to in the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 8.
TERMINATION
This Agreement shall terminate with respect to any Stockholder upon the
first such instance as such Stockholder ceases to own at least one percent (1%)
of the outstanding Common Stock (treating the Class B Common Stock and the
Preferred Stock as if they had been converted into Common Stock in accordance
with its terms for the purposes of this calculation). For the purposes of this
Section 8, a Stockholder shall be deemed to own any and all Common Stock and
Preferred Stock owned by (i) such Stockholder and (ii) its Affiliates.
Notwithstanding the foregoing, the Company's and Stockholders' rights, duties
and obligations under Section 6 and Section 7 shall survive the termination of
this Agreement.
SECTION 9.
AVAILABLE INFORMATION
The Company shall take such reasonable action and file such
information, documents and reports as shall be required by the SEC as a
condition to the availability of Rule 144 and Rule 144A, or any successor
provisions.
SECTION 10.
ASSIGNMENT OF RIGHTS
10.1 ASSIGNMENT OF RIGHTS.
Subject to Section 10.2, the Registrable Stock and rights of any
Stockholder under this Agreement with respect to any Registrable Stock owned by
such Stockholder may be assigned to any person who acquires Registrable Stock
from a Stockholder, except that any person who acquires such Registrable Stock
(x) pursuant to a public offering registered under the Securities Act, or (y)
pursuant to a transfer made in accordance with Rule 144 under the Securities Act
(or any similar successor provision) may not assign rights hereunder with
respect to such Registrable Stock. Notwithstanding the foregoing, rights to
cause one or more demand registrations under Section 2.1 may only be assigned if
such rights are expressly assigned in writing from a BG
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Holder or a NOVA Holder. Any assignment of registration rights pursuant to this
Section 10.1 shall be effective upon receipt by the Company of written notice
from such assigning Stockholder (i) stating the name and address of any
assignee, (ii) describing the manner in which the assignee acquired Registrable
Stock from such Stockholder and (iii) identifying the Registrable Stock with
respect to which the rights under this Agreement are being assigned.
10.2 SCOPE OF ASSIGNMENT.
The rights of an assignee under Section 10.1 shall be the same rights
granted to the assigning Stockholder under this Agreement, except that in no
event shall the Company's obligations hereunder be increased due to any such
assignment. In connection with any such assignment, the term "Stockholder" as
used herein shall, where appropriate to assign the rights and obligations of the
assigning Stockholder hereunder to such assignee, be deemed to refer to the
assignee. After any such assignment, the assigning Stockholder shall retain its
rights under this Agreement with respect to all other Registrable Stock owned by
such Stockholder.
SECTION 11.
MISCELLANEOUS
11.1 TERMINATION OF OLD REGISTRATION RIGHTS AGREEMENT. BG and
NOVA
acknowledge that, at the Effective Time, the Registration Rights Agreement dated
August 31, 1996 among NGC Corporation (former name of Dynegy), BG Holdings, Inc.
(a wholly owned subsidiary of BG) ("BGH"), NOVA and Chevron U.S.A., Inc.
("Chevron") is terminated with respect to BGH and NOVA, respectively, effective
upon consummation of the Merger provided for in the Merger Agreement.
11.2 BG/NOVA PRIORITY.
(a) Favored Nations. Except as herein provided, for a period
of three years from the Effective Time, the Company shall not provide
registration rights to any other party which, taken as a whole, are more
favorable than those provided to Stockholders hereunder, without also offering
to Stockholders such more favorable rights; provided, however, that the benefits
of this Section 11.2 shall not run to the Stockholders holding less than two
percent (2%) of the then outstanding shares of Common Stock (treating the Class
B Common Stock and the Preferred Stock as if they had been converted for
purposes of this calculation). The Company shall give Stockholders notice within
15 days after the execution of any agreement (including the terms thereof)
between the Company and a third party which triggers a right of Stockholders to
invoke the favored nations provision of this Section 11.2.
(b) For a period of twenty-four months after the Effective
Time:
(i) if NOVA or BG exercises a demand registration right
hereunder, then Chevron may participate in such registration
only through exercise of its piggyback registration rights,
subject to any underwriter cutback;
(ii) if Chevron exercises a demand registration right under
the Registration Rights Agreement dated as of the date hereof
among the Company and Chevron (the "Chevron Agreement") to
effect a disposition
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other than one intended to satisfy any regulatory
requirements, then NOVA and BG shall have the right to
participate on a "Pro-Rata Basis" in such demand
registration. For purposes of this subsection 11.2, "Pro-Rata
Basis" shall mean that each participant in such registration
shall be entitled to register an equal number of shares; and
(iii) in the event of a Company Registration, any Chevron
shares participating in such Company Registration shall be
subject to any underwriter's cutback prior to any cutback of
any BG or NOVA shares participating in such Company
Registration.
(c) Following twenty-four months after the Effective Time:
(i) if BG or NOVA exercises a demand registration right
hereunder or Chevron exercises such a right under the Chevron
Agreement (other than an exercise by Chevron to effect a
disposition intended to satisfy any regulatory requirement),
then each of BG, Chevron and NOVA shall be entitled to
participate in such registration on a Pro-Rata Basis; and
(ii) in the event of a Company Registration, each of the BG,
NOVA or Chevron shares participating in such Company
Registration shall be subject to any underwriter's cutback on
a Pro-Rata Basis.
11.3 PROVISION OF INFORMATION.
Each Stockholder shall, and shall cause its officers, directors,
employees and agents to complete and execute all such questionnaires as the
Company shall reasonably request in connection with any registration pursuant to
this Agreement.
11.4 INJUNCTIONS.
Irreparable damage would occur in the event that any of the provisions
of this Agreement were not performed in accordance with its specified terms or
were otherwise breached. Therefore, the parties hereto shall be entitled to an
injunction or injunctions to prevent breaches of the provisions of this
Agreement and to enforce specifically the terms of provisions hereof in any
court having jurisdiction, such remedy being in addition to any other remedy to
which they may be entitled at law or in equity.
11.5 SEVERABILITY.
If any term or provision of this Agreement is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder of
the terms and provisions set forth herein shall remain in full force and effect
and shall in no way be affected, impaired or invalidated, and the parties hereto
shall use their best efforts to find and employ an alternative means to achieve
the same or substantially the same result as that contemplated by such term or
provision.
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11.6 FURTHER ASSURANCES.
Subject to the specific terms of this Agreement, each Stockholder and
the Company shall make, execute, acknowledge and deliver such other instruments
and documents, and take all such other actions, as may be reasonably required in
order to effectuate the purposes of this Agreement and to consummate the
transactions contemplated hereby.
11.7 ENTIRE AGREEMENT; MODIFICATION.
This Agreement contains the entire understanding of the parties with
respect to the transactions contemplated hereby and supersedes all agreements
and understandings entered into prior to the execution hereof. This Agreement
may be modified only by a written instrument duly executed by or on behalf of
(i) the Company, (ii) BG, (iii) NOVA, and (iv) for 24 months after the Effective
Time, Chevron. No breach of any covenant, agreement, warranty or representation
shall be deemed waived unless expressly waived in writing by or on behalf of the
party who might assert such breach.
11.8 COUNTERPARTS.
For the convenience of the parties hereto, any number of counterparts
of this Agreement may be executed by the parties hereto, but all such
counterparts shall be deemed one and the same instrument.
11.9 NOTICES.
All notices, consents, requests, demands, and other communications
hereunder shall be in writing and shall be given by hand or by mail (return
receipt requested) or sent by overnight delivery service, cable, telegram, or
facsimile transmission to the parties at the address specified beside each
party's name on the signature pages hereto or at such other address as shall be
specified by the parties by like notice.
Notice so given shall, in the case of notice so given by mail, be
deemed to be given and received on the fourth business day after posting, in the
case of notice so given by overnight delivery service, on the day after notice
is deposited with such service, and in the case of notice so given by cable,
telegram, facsimile transmission or, as the case may be, personal delivery, on
the date of actual delivery.
11.10 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REGARD TO
ANY CHOICE OF LAW PRINCIPLES WHICH MIGHT REQUIRE OR PERMIT THE APPLICATION OF
THE LAWS OF ANOTHER JURISDICTION.
11.11 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and shall inure to the benefit of
and be enforceable by and against the successors and permitted assigns of the
parties hereto.
17
<PAGE>
11.12 PARTIES IN INTEREST.
Except as otherwise specifically provided herein and for Chevron,
nothing in this Agreement expressed or implied is intended or shall be construed
to confer any right or benefit upon any person, firm or corporation other than
Stockholder and the Company and their respective successors and permitted
assigns.
11.13 SHARES SUBJECT TO THIS AGREEMENT; EFFECTIVE TIME.
This Agreement shall be effective at the Effective Time and will be
null and void and of no effect upon the termination of the Merger Agreement in
accordance with its terms.
REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.
18
<PAGE>
IN WITNESS WHEREOF, each Stockholder and the Company have caused this
Registration Rights Agreement to be duly executed as of the date first above
written.
ENERGY CONVERGENCE HOLDING COMPANY
By: /s/ Charles E. Bayless
-----------------------------------
Name: Charles E. Bayless
-----------------------------------
Title: President
-----------------------------------
Address: 1000 Louisiana, Suite 5800
Houston, TX 77002
BRITISH GAS ATLANTIC
HOLDINGS BV
By: /s/ L.M.O.C. de Preter
-----------------------------------
Name: L.M.O.C. de Preter
-----------------------------------
Title: Director
-----------------------------------
Address: 1100 Louisiana, Suite 2500
Houston, TX 77002
Telecopier: (713) 507-6808
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, New York 10022
Attention: Alfred J. Ross, Jr.
Telecopy: (212) 848-7179
NOVA GAS SERVICES (U.S.) INC.
By: /s/ Jeffrey Lipton
-----------------------------------
Name: Jeffrey Lipton
-----------------------------------
Title: Director
-----------------------------------
Address: 400 Frankfort Road
Monoca, Pennsylvania 15061
Telecopier: (724) 770-5557
Attn: Ernest V. Dean
with copies to:
Jack S. Mustoe
Senior Vice President and General Counsel
NOVA Chemicals Corporation
645 Seventh Avenue, S.W.
Calgary, Alberta CANADA T2P 4G8
Telecopier: (403) 750-4885
and:
Alan Talkington
Orrick Herrington & Sutcliffe
400 Sansome Street
San Francisco, CA 94111
Telecopier: (415) 773-5759
20
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EXHIBIT 20
June 14, 1999
-------------
BG agrees (pound)400 million sale of interest in Dynegy Inc.
------------------------------------------------------------
BG plc has today accepted a proposal valued at US $640 million
((pound)400 million) for the sale of its 24 per cent holding in US energy trader
Dynegy Inc.
The offer follows acceptance by the Board of Dynegy of a
proposal to merge with Illinova Corporation of Decatur, Illinois. On the basis
of the offer made to all the Dynegy shareholders by Illinova, BG will receive a
minimum of 64 per cent cash for its holding, with the balance in the form of
convertible preferred stock in the merged company.
Dynegy owns and operates 47 gas processing plants in the USA
and 4400 megawatts (gross) of electrical generating capacity, has daily gas
sales of nine billion cubic feet, and daily power sales of 0.3 million megawatt
hours. Illinova is one of the top ten power marketing companies in the US, with
4100 megawatts of generating capacity, and daily gas sales of 0.25 billion cubic
feet.
Dynergy has been a very successful investment for BG,
achieving an annual return of more than 30 per cent since BG's initial
investment in 1992. The investment is no longer core to BG's strategy and this
deal helps the company to realise its return.
The merger of Dynegy and Illinova is subject to regulatory and
Illinova shareholder approval.
Notes to editors
BG's holding in Dynegy Inc. is accounted for as part of BG
International, which came into existence on May 1, 1999, following the merging
of the exploration and production
<PAGE>
2
and downstream businesses of BG plc. BG International is involved in gas and oil
exploration and production, gas transportation, distribution and power
generation in some 19 countries. A consortium led by BG recently won control of
Brazil's biggest gas distribution company, Comgas, through the privatization of
the shares held by the state of Sao Paulo-owned power generation utility,
Companhia Energetica Sao Paulo.
BG is being advised by Goldman Sachs International.
For further information please contact:
BG
Investors - David Boyd, tel +44 (0) 118 929 3018.
Media - Jim Willison, tel +44 (0) 118 929 3301.
Dynergy Inc.
Investors - Margaret Nollen, tel + 1 713 767 8707.
Media - John Sousa, tel + 1 713 506 3936.
