<PAGE> 1
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of Earliest Event Reported): November 14, 1996
Commission File Number: 33-74254
COGENTRIX ENERGY, INC.
(Exact name of registrant as specified in its charter)
North Carolina 56-1853081
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
9405 Arrowpoint Boulevard, Charlotte, North Carolina 28273-8110
(Address of principal executive offices) (Zip Code)
(704) 525-3800
(Registrant's telephone number, including area code)
<PAGE> 2
ITEM 2. DISPOSITION OF ASSETS
On November 14, 1996, Liberty Power/Cogentrix Bolivia, Inc., an
indirect wholly-owned subsidiary of Cogentrix Energy, Inc. ("LPCB") and NRG
Generating Holdings (No. 9) B.V., a wholly-owned subsidiary of NRG Energy, Inc.
("Holdings"), entered into a stockholders agreement (the "Stockholders
Agreement"), pursuant to which LPCB agreed to tender and not withdraw all of its
shares of common stock of Compania Boliviana de Energia Electrica, S.A. --
Bolivian Power Company Limited ("Bolivian Power") (719,206 shares, or
approximately 17.1%, of Bolivian Power's outstanding common stock) following the
commencement by Holdings of a cash tender offer to purchase all outstanding
shares of common stock of Bolivian Power pursuant to a purchase agreement dated
as of November 13, 1996 (the "Purchase Agreement") between Holdings and Bolivian
Power. In October 1994, LPCB gave certain unaffiliated individuals (the
"Optionholders") options to purchase up to 60% of LPCB's shares of common stock
in Bolivian Power. Pursuant to these options, the Optionholders are also party
to the Stockholders Agreement.
Under the Purchase Agreement, Holdings will commence a cash tender
offer (the "Offer") for all of the outstanding common stock of Bolivian Power at
a price of $43.00 per share. The expiration date of the Offer will be twenty
business days following the commencement, unless the Offer is extended. The
transaction contemplated by the Purchase Agreement is subject to a number of
customary conditions, including the tender (without withdrawal) of a majority of
Bolivian Power's outstanding common shares on a fully diluted basis prior to the
expiration date of the Offer and after the expiration of the waiting period
under the Hart-Scott-Rodino Anti-Trust Improvements Act. The Offer is not
contingent upon receipt of financing by Holdings.
The Stockholders Agreement provides that if Bolivian Power receives an
alternative proposal and a specified minimum number of shares of common stock
has not been tendered, then LPCB and the Optionholders will have no obligation
to tender and not withdraw their shares of common stock to Holdings,
unless Holdings amends its tender offer to increase the per share price to
an amount not less than the amount contained in such alternative tender offer
proposal. Pending consummation of the tender offer or earlier termination of
the Stockholders Agreement in accordance with its terms, LPCB and the
Optionholders are required to vote their respective shares of common stock
against (i) any action resulting in a breach of an obligation of Bolivian Power
under the Stockholders Agreement or the Purchase Agreement, (ii) any
extraordinary corporate transaction (such as a merger, consolidation or other
business combination), (iii) any transfer of a material amount of assets, (iv)
any reorganization, recapitalization, dissolution or liquidation, (v) any change
in a majority of the members of the Board of Directors, (vi) any change in the
capitalization or amendment to the memorandum or articles of association, (vii)
any other material change in corporate structure or business, or (viii) any
other action that could reasonably be expected to impede, interfere with, delay,
postpone or adversely affect the tender offer by Holdings and other transactions
contemplated by the Stockholders Agreement or the Purchase Agreement.
In accordance with the terms of the Stockholders Agreement, LPCB
tendered all of its shares of common stock of Bolivian Power to ChaseMellon
Shareholder Services, L.L.C. as depositary for the Offer on November 25, 1996.
<PAGE> 3
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
(a) Financial Statements
None.
(b) Pro Forma Financial Information
None.
(c) Exhibits
No. Description
--- -----------
2 Stockholders Agreement, dated November 14, 1996,
among NRG Generating Holdings (No. 9) B.V., Liberty
Power/Cogentrix Bolivia, Inc., Sean P. Lane, Peter J.
Fagan and Lawrence S. Coben.
----------------------------------------------------
Signatures
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
COGENTRIX ENERGY, INC.
By: /s/ Bruce C. McMillen
-------------------------------------
Bruce C. McMillen
Group Senior Vice President
Chief Financial Officer
Date: November 26, 1996
<PAGE> 1
EXHIBIT 2
STOCKHOLDERS AGREEMENT
AGREEMENT, dated November 14, 1996, among NRGenerating Holdings (No. 9)
B.V., a Netherlands corporation ("Holdings"), Liberty Power/Cogentrix Bolivia,
Inc., a Delaware corporation (the "Stockholder") and the other parties signatory
hereto (each an "Optionholder", and collectively, the "Optionholders").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, concurrently herewith, Holdings and Compania Boliviana de
Energia Electrica S.A. - Bolivian Power Company Limited, a Nova Scotia
corporation (the "Company"), are entering into a Purchase Agreement (as such
agreement may hereafter be amended from time to time, the "Purchase Agreement";
capitalized terms used and not defined herein have the respective meanings
ascribed to them in the Purchase Agreement);
WHEREAS, Holdings and the Company have agreed that as soon as
practicable (and not later than five business days) after the first public
announcement of the execution and delivery of the Purchase Agreement, Holdings
will commence a cash tender offer to purchase all outstanding shares of Company
Common Stock (as defined in Section 1), including all of the Shares (as defined
in Section 2) Beneficially Owned (as defined in Section 1)
by the Stockholder and the Optionholders; and
WHEREAS, as an inducement and a condition to entering into the Purchase
Agreement, Holdings has required that the Stockholder and the Optionholders
agree, and the Stockholder and the Optionholders have agreed, to enter into this
Agreement; and
WHEREAS, pursuant to a Memorandum of Agreement, dated September 29,
1994, as amended as of October 27, 1994, by and among the Stockholder and the
Optionholders (the "Memorandum"), the Stockholder granted each Optionholder an
option to acquire certain Existing Shares (as defined in Section 2), which
options would vest and become exercisable in accordance with their terms if the
Offer is consummated;
<PAGE> 2
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons with whom such
Person would constitute a "group" as within the meaning of Section 13(d)(3) of
the Exchange Act.
(b) "Company Common Stock" shall mean at any time the common stock,
without par value, of the Company.
(c) "Person" shall mean an individual, corporation, partnership, joint
venture, association, trust, unincorporated organization or other entity.
2. Tender of Shares.
(a) Each of the Stockholder and the Optionholders hereby agrees to
validly tender (and not to withdraw) pursuant to and in accordance with the
terms of the Offer, not later than the fifth business day after commencement of
the Offer pursuant to Section 1.1 of the Purchase Agreement and Rule 14d-2 under
the Exchange Act, the number of shares of Company Common Stock set forth
opposite such Stockholder's name on Schedule I hereto (the "Existing Shares");
as well as any shares of Company Common Stock acquired by the Stockholder or any
such Optionholder after the date hereof and prior to the termination of this
Agreement, whether upon the exercise of options, warrants or rights, the
conversion or exchange of convertible or exchangeable securities, or by means of
purchase, dividend, distribution or otherwise (collectively with the Existing
Shares, the "Shares"); provided, however, that with respect to any Shares the
tender of which would result in liability under Section 16(b) of the Exchange
Act, such tender need not take place until such tender may be made without
liability under Section 16(b) of the Exchange Act. Each of the Stockholder and
the Optionholders hereby acknowledges and agrees that Holdings' obligation to
accept for payment and pay for Shares in the Offer is subject to the terms and
conditions of the Offer. Holdings hereby acknowledges and agrees that the Offer
will be conducted in compliance with all applicable requirements of the Exchange
Act and the rules and regulations thereunder.
(b) Notwithstanding anything to the contrary contained in this
Agreement, in the event that (x) an Alternative Proposal has been received by
the Company on or prior to the initial expiration date of the Offer (the
"Expiration Date") and (y) there shall not have been tendered and not withdrawn
pursuant to the Offer, as certified to the Stockholder and the Optionholders by
the depositary retained by Holdings to receive shares tendered pursuant to the
Offer, such number of shares as would, when coupled with the Stockholder's and
the Optionholders' Shares, satisfy the Minimum Condition on the Expiration Date,
then the respective obligations of the Stockholder and the Optionholders to
tender and not withdraw Shares pursuant to this Section 2 shall be of no further
force and effect unless, on or prior to the Expiration Date, Holdings shall have
amended the Offer to increase the per share price payable to the Company's
shareholders to an amount not less than that contained in the Alternative
Proposal. In the event that the Offer is extended in accordance with the terms
of the Purchase Agreement and during
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the period of any such extension an Alternative Proposal is received by the
Company, then the provisions of this Section 2(b) shall apply during any such
period and the term "Expiration Date" shall, for purposes of this sentence, mean
the date on which such extension of the Offer is scheduled to expire.
(c) Each of the Stockholder and the Optionholder hereby agrees to permit
Holdings to publish and disclose in the Offer Documents his or its identity and
ownership of Company Common Stock and the nature of his or its commitments under
this Agreement.
3. Provisions Concerning Company Common Stock. Each of the Stockholder
and Optionholders hereby agrees that during the period commencing on the date
hereof and continuing until the first to occur of the Control Date or
termination of the Purchase Agreement in accordance with its terms, at any
meeting of the holders of Company Common Stock, however called, or in connection
with any written consent of the holders of Company Common Stock, such
Stockholder or Optionholder shall vote (or cause to be voted) the Shares held of
record or Beneficially Owned by such Stockholder or Optionholder, whether now
owned or hereafter acquired, (i) against any action or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Purchase Agreement or
this Agreement (before giving effect to any materiality or similar
qualifications contained therein); and (ii) except as otherwise agreed to in
writing in advance by Holdings, against the following actions (other than the
transactions contemplated by the Purchase Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other business
combination involving the Company or its subsidiaries; (B) a sale, lease or
transfer of a material amount of assets of the Company or its subsidiaries, or a
reorganization, recapitalization, dissolution or liquidation of the Company or
its subsidiaries; (C) (1) any change in a majority of the persons who constitute
the Board of Directors of the Company; (2) any change in the present
capitalization of the Company or any amendment of the Company's Memorandum or
Articles of Association; (3) any other material change in the Company's
corporate structure or business; or (4) any other action involving the Company
or its subsidiaries which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone, or materially adversely affect the
Offer and other transactions contemplated by this Agreement and the Purchase
Agreement. The Stockholder and such Optionholder shall not enter into any
agreement or understanding with any person or entity the effect of which would
be inconsistent or violative of the provisions and agreements contained in this
Section 3.
4. Other Covenants, Representations and Warranties. Each of the
Stockholder and Optionholders severally and not jointly hereby represents and
warrants to Holdings as follows:
(a) Ownership of Shares. The Stockholder or such Optionholder, as the
case may be, is either (i) the record and Beneficial Owner of, or (ii) the
Beneficial Owner but not the record holder of, the number of Shares set forth
opposite the Stockholder's or such Optionholder's name on Schedule I hereto. On
the date hereof, the Existing Shares set forth opposite the Stockholder's or
such Optionholders' name on Schedule I hereto constitute all of the shares or
securities issued by the Company owned of record or Beneficially Owned by the
Stockholder or such Optionholder, as the case may be. Except as may be otherwise
provided in the Memorandum, the Stockholder and such Optionholder has sole
voting power and sole power to issue instructions with respect to the matters
set forth in Sections 2 and 3 hereof, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
the Existing Shares set forth opposite the Stockholder's or such Optionholder's
name on Schedule I hereto, with no limitations, qualifications or restrictions
on such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) Power; Binding Agreement. The Stockholder or such Optionholder, as
the case may be, has the legal capacity, power and authority to enter into and
perform all of such Stockholder's or such Optionholder's obligations under this
Agreement. Except as may be otherwise provided in the Memorandum,
<PAGE> 4
the execution, delivery and performance of this Agreement by the Stockholder or
such Optionholder, as the case may be, will not violate any other agreement to
which the Stockholder or such Optionholder is a party including, without
limitation, any voting agreement, shareholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by the Stockholder or
such Optionholder, as the case may be, and constitutes a valid and binding
agreement of the Stockholder or such Optionholder, as the case may be,
enforceable against the Stockholder or such Optionholder, as the case may be, in
accordance with its terms, except as such enforceability may be limited by (A)
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (B) general principles of equity regardless of whether
enforceability is considered in a proceeding at law or in equity. Except as may
be otherwise provided in the Memorandum, there is no beneficiary or holder of a
voting trust certificate or other interest of any trust of which the Stockholder
or any such Optionholder is Trustee whose consent is required for the execution
and delivery of this Agreement or the consummation by the Stockholder or such
Optionholder, as the case may be, of the transactions contemplated hereby.
(c) No Conflicts. Except for filings under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if applicable,
(A) no filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority or any other Person is necessary for
the execution of this Agreement by the Stockholder or such Optionholder, as the
case may be, and the consummation by the Stockholder or such Optionholder, as
the case may be, of the transactions contemplated hereby and (B) none of the
execution and delivery of this Agreement by the Stockholder or any such
Optionholder, the consummation by the Stockholder or any such Optionholder of
the transactions contemplated hereby or compliance by the Stockholder or any
such Optionholder with any of the provisions hereof shall (1) conflict with or
result in any breach of any organizational documents applicable to the
Stockholder, (2) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which the Stockholder or any
such Optionholder is a party or by which the Stockholder or any such
Optionholder or any of the Stockholder's or any such Optionholder's properties
or assets may be bound, or (3) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to the Stockholder or
any such Optionholder or any of such Stockholder's or any such Optionholder's
properties or assets.
(d) No Encumbrances. Except as applicable in connection with the
transactions contemplated by Section 2 hereof and as may arise under the
Memorandum, the Stockholder's Shares and each such Optionholder's Shares and the
certificates representing such Shares are now, and at all times during the term
hereof will be, held by the Stockholder or any such Optionholder, or by a
nominee or custodian for the benefit of the Stockholder or any such
Optionholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances arising hereunder or
under the Memorandum. The transfer by the Stockholder or any such Optionholder
of his or its Shares to Holdings in the Offer shall pass to and unconditionally
vest in Holdings good and valid title to the number of Shares set forth opposite
the Stockholder's or such Optionholder's name on Schedule I hereto, free and
clear of all claims, liens, restrictions, security interests, pledges,
limitations and encumbrances whatsoever, except for those created by any action
or inaction of Holdings.
(e) No Finder's Fees. Other than existing financial advisory and
investment banking arrangements and agreements entered into by the Company, no
broker, investment banker, financial adviser or other person is entitled to any
broker's, finder's, financial adviser's or other similar fee or commission in
connection with the transactions contemplated hereby based upon arrangements
made by or on behalf of the Stockholder or any such Optionholder.
<PAGE> 5
(f) No Solicitation. Neither the Stockholder nor any Optionholder shall,
in his or its capacity as such, directly or indirectly, solicit (including by
way of furnishing information) or respond to the making of any proposal by any
person or entity (other than Holdings or any affiliate of Holdings) with respect
to his or its Shares or with respect to the Company that constitutes an
Alternative Proposal, except that any officer or director of the Stockholder or
its affiliates may take actions in his capacity as an officer or director of the
Company or its affiliates, as the case may be, to the extent permitted by the
Purchase Agreement. The Stockholder and each Optionholder will immediately cease
and cause to be terminated any existing activities, discussions or negotiations
with any parties conducted heretofore with respect to any of the foregoing.
(g) Restriction on Transfer, Proxies and Non-Interference. Except as
applicable in connection with the transactions contemplated by Section 2 hereof,
neither the Stockholder nor any Optionholder shall (i) directly or indirectly,
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
the Stockholder's or any Optionholder's Shares or any interest therein other
than arrangements among the Stockholder and the Optionholders, in accordance
with the Memorandum to facilitate the transactions contemplated by Section 2
hereof; (ii) except as contemplated by this Agreement, grant any proxies or
powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iii) take any action that would
make any representation or warranty of the Stockholder or any such Optionholder
contained herein untrue or incorrect in any material respect or have the effect
of preventing or disabling the Stockholder or any such Optionholder from
performing the Stockholder's or any such Optionholder's obligations under this
Agreement.
(h) Reliance by Holdings. Each of the Stockholder and Optionholders
understands and acknowledges that Holdings is entering into the Purchase
Agreement in reliance upon the Stockholder's and such Optionholder's execution
and delivery of this Agreement.
(i) Further Assurances. From time to time, at the other party's
reasonable request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement.
(j) Rights Under Memorandum. Notwithstanding anything herein to the
contrary, each of the Stockholder and the Optionholders agrees with Holdings
that neither the Stockholder nor any such Optionholder shall, with respect to
the Shares, exercise any rights available to it pursuant to the Memorandum,
including, without limitation, rights of first refusal and/or call rights, on or
after the Control Date. Further, each of the Stockholder and Optionholders
agrees with Holdings that nothing contained in the Memorandum shall prevent,
limit or constrain in any manner the performance by such Stockholder and
Optionholders of its or their respective obligations hereunder prior to the
Control Date, and any provision of the Memorandum which could prevent, limit or
constrain in any manner such performance, to the extent required to facilitate
such performance, is hereby waived.
5. Stop Transfer; Changes in Shares. Each of the Stockholder and
Optionholders agrees with, and covenants to, Holdings that the Stockholder or
such Optionholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of the Stockholder's or such Optionholder's Shares other than
arrangements among the Stockholder and the Optionholders, in accordance with the
Memorandum to facilitate the transactions contemplated by Section 2 hereof,
unless such transfer is made in compliance with this Agreement (including the
provisions of Section 2 hereof). In the event of a stock dividend or
distribution, or any change in the Company Common Shares by
<PAGE> 6
reason of any stock dividend, split-up, recapitalization, combination, exchange
of shares or the like, the term "Shares" shall be deemed to refer to and include
the Shares as well as all such stock dividends and distributions and any shares
into which or for which any or all of the Shares may be changed or exchanged.
6. Termination. Except as otherwise provided herein, the covenants and
agreements contained herein with respect to the Shares shall terminate upon the
earliest of (w) the purchase of Shares pursuant to the Offer, (x) the
termination of the Offer, (y) the termination of the Purchase Agreement and (z)
the exercise by the Stockholder and the Optionholders of their rights to
withdraw their Shares pursuant to Section 2(b) hereof.
7. Stockholder Capacity. No person executing this Agreement who is
or becomes during the term hereof a director of the Company makes any
agreement or understanding herein in his or her capacity as such director.
8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Purchase Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Certain Events. Each of the Stockholder and Optionholders agrees
that this Agreement and the obligations hereunder shall attach to the
Stockholder's or such Optionholder's Shares and shall be binding upon any person
or entity to which legal or beneficial ownership of such Shares shall pass,
whether by operation of law or otherwise, including, without limitation, the
Stockholder's or such Optionholder's heirs, guardians, administrators or
successors. Notwithstanding any transfer of Shares, the transferor shall remain
liable for the performance of all obligations under this Agreement of the
transferor.
(c) Assignment. Neither this Agreement nor any right, interest or
obligation hereunder may be assigned by any party hereto without the prior
written consent of the other parties hereto and any attempt to do so will be
void, except that Holdings may assign any or all of its rights, interests and
obligations hereunder, including the right to cause the Shares to be validly
tendered (and not withdrawn) pursuant to Offer, to any affiliate of Holdings or
any group of which Holdings or any affiliate of Holdings is a member, provided
that (i) such affiliate or each member of such group agrees in writing to be
bound by all terms, conditions and provisions contained herein to the extent
assigned to such affiliate or member, (ii) and no such assignment shall be made
if it would materially delay or impede the transactions contemplated hereby (it
being expressly understood that any assignment will not be deemed to materially
delay or impede the transactions contemplated hereby if such assignment does not
result in a delay beyond the day that is 15 business days after the scheduled
expiration date of the Offer) and (iii) Holdings shall remain responsible for
causing such affiliate and each member of such group to perform all of such
subsidiary's or such member's obligations hereunder. Subject to the preceding
sentence, this Agreement is binding upon, inures to the benefit of and is
enforceable by the parties hereto and their respective successors and assigns.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, with respect
to any one or more of the Stockholder or the Optionholders, except upon the
execution and delivery of a written agreement executed by Holdings and the
Stockholder or such Optionholder; provided that Schedule I hereto may be
supplemented by Holdings by adding the name and other relevant information
concerning any shareholder of the Company who agrees to be bound by the terms of
this Agreement without the agreement of any other party hereto, and thereafter
such added shareholder shall be treated as a "Stockholder" for all purposes of
this Agreement.
<PAGE> 7
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses
If to Stockholder: Liberty Power/Cogentrix Bolivia, Inc.
1105 North Market Street
Suite 1108
Wilmington, DE 19801
Attn: Dennis W. Alexander
Facsimile No.:
copy to: Brown & Wood LLP
One World Trade Center
New York, NY 11048-0557
Attn: Robert J. Donatucci
Facsimile No.: 212-839-5599
If to Optionholders: Lawrence S. Coben
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
Peter J. Fagan
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
Sean P. Lane
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Facsimile No.: 212-750-6705
copy to: LeBoeuf, Lamb, Greene & MacRae L.L.P.
6 Central Row
Hartford, CT 06103
Attention: Thomas L. Fairfield
Facsimile No.: 860-293-3555
If to Holdings: NRGenerating Holdings (No. 9) B.V.
c/o NRG Energy, Inc.
1221 Nicollet Mall
Suite 700
Minneapolis, MN 55403
Attn: William Melvin
Facsimile No.: 612-373-5496
copy to: Dewey Ballantine
1301 Avenue of the Americas
New York, NY 10019
Attn: Bernard Kury, Esq.
Or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and
<PAGE> 8
this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision or portion of any provision
had never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) 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 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.
(i) 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.
(j) No 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.
(k) Governing Law. This Agreement shall be governed and construed
in accordance with the laws of the State of New York, without giving effect
to the principles of conflicts of law thereof.
(l) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.
(m) Counterparts. This Agreement may be executed in counterparts, each
of which shall be deemed to be an original, but all of which, taken together,
shall constitute one and the same Agreement.
IN WITNESS WHEREOF, NRGenerating Holdings (No. 9) B.V. and each of
the Stockholder and the Optionholders have caused this Agreement to be duly
executed as of the day and year first above written.
NRGENERATING HOLDINGS (NO. 9) B.V.
By: /s/ Robert McClenachan
-----------------------------------
Name: Robert McClenachan
Title: Director
LIBERTY POWER/COGENTRIX BOLIVIA, INC.
By: /s/ Bruce C. McMillen
------------------------------------
Name: Bruce C. McMillen
Title: President
/s/ Sean P. Lane
----------------------------------------
Sean P. Lane
/s/ Peter J. Fagan
----------------------------------------
Peter J. Fagan
/s/ Lawrence S. Coben
-----------------------------------------
Lawrence S. Coben
<PAGE> 9
SCHEDULE I TO
STOCKHOLDERS AGREEMENT
<TABLE>
<CAPTION>
Name and Address of Number of Shares Percentage of Out-standing Common
Stockholder and Optionholders Beneficially Owned Stock (to nearest hundredth)(c)
- ----------------------------- ------------------ ---------------------------------
<S> <C> <C>
Stockholder 16.69%
Liberty Power/Cogentrix Bolivia, Inc. 719,207(a)
1105 North Market Street
Suite 1108
Wilmington, Delaware 19801
Optionholders 3.69%
Lawrence S. Cohen 158,841(b)
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Peter J. Fagan 158,841(b) 3.69%
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
Sean P. Lane 158,841(b) 3.69%
c/o Liberty Power Latin America, L.P.
515 Madison Avenue
New York, NY 10022
</TABLE>
- ------------------------------
(a) Includes an aggregate of 431,523 shares which may be acquired by the
Optionholders from the Stockholder pursuant to the Memorandum and 3
directors' qualifying shares.
(b) Includes 143,841 shares which may be acquired by such Optionholder from
the Stockholder pursuant to the Memorandum and 15,000 shares which may
be acquired by such Optionholder upon exercise of options under the
Company's stock option plan.
(c) Assuming the exercise in full of an aggregate of 107,760 options
outstanding under the Company's stock option plan.
