ex10-1.htm


    
      

      

    

    EXHIBIT 10.1

     

    
      
        
          
            EXECUTION
COPY

          



         

         

         

         

         

         

         

         

      

      SHAREHOLDER
AGREEMENT

       

      among

       

      DYNEGY
INC.

       

      and

       

      LS
POWER PARTNERS, L.P.,

       

      LS
POWER ASSOCIATES, L.P.,

       

      LS
POWER EQUITY PARTNERS, L.P.,

       

      LS
POWER EQUITY PARTNERS PIE I, L.P.

       

      and

       

      LSP
GEN INVESTORS, L.P.

       

       

       

      Dated
as of August 9, 2009

       

      
         

         

         

      


      
        
           

        

        
           


          
            

          

        

        
          Exhibit
10.1

        

      


      TABLE
OF CONTENTS

       

      Page

       

       

      
        	
                 
      

              	
                ARTICLE
      I Definitions 

              


      

      
        	
                 
      

              	
                SECTION
      1.01

              	
                Definitions 

              	
                 

              


      

       

      
        	
                 
      

              	
                ARTICLE
      II Limitations
      on Acquisitions and Transfers 

              


      

      
        	
                 
      

              	
                SECTION
      2.01

              	
                Limitations
      on Acquisitions by the Shareholders and Luminus 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      2.02

              	
                Transfer
      Restrictions 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      2.03

              	
                Shares
      Subject to the Agreement 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      2.04

              	
                Legend
      and Stop Transfer Order 

              	
                 

              


      

       

      
        	
                 
      

              	
                ARTICLE
      III Certain
      Agreements Relating to Dynegy 

              


      

      
        	
                 
      

              	
                SECTION
      3.01

              	
                Dynegy
      Restrictions 

              	
                 

              


      

       

      
        	
                 
      

              	
                ARTICLE
      IV Certain
      Agreements Relating to the Shareholders, the
      Shareholder  Control Group and Luminus 

              


      

      
        	
                 
      

              	
                SECTION
      4.01

              	
                No Board
      Representation 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      4.02

              	
                No
      Control 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      4.03

              	
                Joinder 

              	
                 

              


      

       

      
        	
                 
      

              	
                ARTICLE
      V General
      Provisions 

              


      

      
        	
                 
      

              	
                SECTION
      5.01

              	
                Effectiveness
      and Term 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.02

              	
                Intent
      and Interpretation 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.03

              	
                Specific
      Enforcement 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.04

              	
                Severability 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.05

              	
                Notices,
      Etc 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.06

              	
                Amendments,
      Waivers, Etc 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.07

              	
                Entire
      Agreement 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.08

              	
                Remedies
      Cumulative 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.09

              	
                No
      Waiver 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.10

              	
                No Third
      Party Beneficiaries 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.11

              	
                Consent
      to Jurisdiction 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.12

              	
                Governing
      Law 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.13

              	
                WAIVER
      OF JURY TRIAL 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.14

              	
                Name,
      Captions, Gender 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.15

              	
                Counterparts 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.16

              	
                Successors
      and Assigns 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.17

              	
                Luminus 

              	
                 

              


      

      
        	
                 
      

              	
                SECTION
      5.18

              	
                Effect
      on Existing Shareholder Agreement 

              	
                 

              


      

       


      
        
           

        

        
           


          
            

          

        

        
          Exhibit
10.1

        

      


       

      SHAREHOLDER
AGREEMENT, dated as of August 9, 2009 (this “Agreement”),
among DYNEGY INC., a Delaware corporation (“Dynegy”),
and LS POWER PARTNERS, L.P., LS POWER ASSOCIATES, L.P., LS POWER EQUITY
PARTNERS, L.P., LS POWER EQUITY PARTNERS PIE I, L.P. and LSP GEN INVESTORS, L.P.
(collectively, “LS
Power”).

       

      WHEREAS,
Dynegy, LS Power, certain Affiliates of LS Power and certain subsidiaries of
Dynegy (the “Dynegy
Sellers”) have entered into a Purchase and Sale Agreement, dated as of
the date hereof (the “Purchase
Agreement”), pursuant to which LS Power and certain Affiliates of LS
Power have agreed to purchase from Dynegy and the Dynegy Sellers, and Dynegy and
the Dynegy Sellers have agreed to sell to LS Power and certain Affiliates of LS
Power (the “LS Power
Buyers”), (i) all of the Dynegy Sellers’ ownership interests in certain
power generating facilities, as set forth in the Purchase Agreement, and (ii)
$235 million
principal amount of the Senior Notes, in each case upon the terms and subject to
the conditions set forth in the Purchase Agreement, in exchange for (a)(1)
$1.025 billion in cash (consisting, in part, of $175 million to be released to
Dynegy from the Sandy Creek Restricted Account) and (2) 245
million Class B Shares (the “Relinquished
Shares”), in each case upon the terms and subject to the conditions set
forth in the Purchase Agreement, (b) the termination of the Existing Shareholder
Agreement (as defined below), and (c) the execution of this Agreement (collectively,
the “Transaction”).

       

      WHEREAS,
Dynegy and LS Power are party to the Shareholder Agreement, dated as of
September 14, 2006 (as heretofore amended, amended and restated, supplemented or
otherwise modified, the “Existing
Shareholder Agreement”), pursuant to which Dynegy’s and LS Power’s rights
and obligations with respect to certain matters are governed.

       

      WHEREAS,
pursuant to Section 2.3 of the
Purchase Agreement, and in accordance with Section 5.3(g)(iv) of the
Certification of Incorporation, LS Power has agreed to convert all of LS Power’s
remaining Class B Shares to Class A Shares effective as of the
Closing.

       

      WHEREAS,
in connection with the Transaction, LS Power and Dynegy wish to terminate
the Existing Shareholder Agreement, effective as of the Closing, and enter into
this Agreement in order to set forth certain agreements relating to the
ownership by the Shareholders of Common Stock.

       

      NOW,
THEREFORE, in consideration of the premises and the mutual and independent
covenants hereinafter set forth and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:

       

      ARTICLE
I

      Definitions

      SECTION
1.01 Definitions.  Unless
otherwise defined herein, terms defined in the Purchase Agreement and used
herein have the meanings given to them in the Purchase Agreement.  The
following terms shall have the following meanings:

       

      “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;
provided,
however,
that none of Dynegy or any of its subsidiaries shall be deemed an Affiliate of
any Shareholder.  For purposes of this definition “control” means, as
to any Person, the sole power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities,
by contract or otherwise.  The term “controlled”
has a correlative meaning.

       

      “Agreement”
has the meaning specified in the preamble to this Agreement.

       

      “Associate”,
when used in connection with any Person, means (a) any corporation, partnership,
unincorporated association or other entity of which such Person is a director,
officer or partner or is, directly or indirectly, the owner of greater than or
equal to 20% of any class of voting stock, (b) any trust or other estate in
which such Person has greater than or equal to 20% of the total beneficial interest, or of which such
Person serves as a trustee or in a similar fiduciary capacity, (c) any relative
or spouse of such Person, or any relative of the spouse of such Person, who, in
any case, has the same residence as such Person, and (d) any heirs, executors,
administrators, testamentary trustees, legatees or beneficiaries of such Person
and any trust for the benefit of the heirs of such Person; provided,
however,
that none of Dynegy or any of its subsidiaries shall be deemed an Associate of
any Shareholder. 

       

      “Beneficially
Own” and “Beneficial
Owner” each have the meaning referred to in Rule 13d-3 of the Exchange
Act as in effect on the date hereof.

       

      “Board”
means the board of directors of Dynegy.

       

      “Business
Day” means any day other than
a day which is a Saturday, Sunday or other day on which commercial banks in
Houston, Texas are authorized or obligated, by law or executive order, to
close.

       

      “Certificate of
Incorporation” means the Amended and Restated Certificate of
Incorporation of Dynegy filed with the Secretary of State of the State of
Delaware on March 30, 2007 and which became effective on April 2,
2007.

       

      “Change of
Control” means (i) any “person” or “group” of related Persons (as such
terms are used in Section 13(d) and 14(d) of the Exchange Act), that is or
becomes the Beneficial Owner (except that such Person or group shall be deemed
to Beneficially Own all shares that any such Person or group has the right to
acquire, whether such right is exercisable immediately or only after the passage
of time), directly or indirectly, of more than 50% of the total voting
securities of Dynegy (or its successor by merger, consolidation or purchase of
all or substantially all of its assets), (ii) the sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or a series of related transactions, of all or substantially all of the
assets of Dynegy taken as a whole to any “person” (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) other than in a reorganization or other
transaction in which Dynegy shareholders after the transaction own 50% or more
of the ultimate surviving entity, (iii) occupation of a majority of the
seats on the Board by Persons who were neither (a) nominated by the Board nor
(b) appointed by the Board, or (iv) the
completion of the liquidation or dissolution of Dynegy.

       

      “Class A
Shares” means shares of Dynegy’s Class A common stock, par value
$0.01.

       

      “Class B
Shares” means shares of Dynegy’s Class B common stock, par value
$0.01.

       

      “Common
Stock” means Class A Shares, Class B Shares and/or any other class of
common stock of Dynegy that may be issued after the date hereof.

       

      “Controlled
Affiliate” means, as to any Person (the “Controlling
Person”), (a) any Affiliate that is consolidated with the financial
statements of such Controlling Person, (b) any Affiliate in which the
Controlling Person holds greater than or equal to 50% of the total combined
voting power of its outstanding voting securities and (c) with respect to
any specific matter, any Affiliate over which the Controlling Person has the
power (by contract or otherwise) to prevent such entity from pursuing such
matter.

       

      “Director”
means a member of the Board.

       

      “Distribution”
means, in a transaction or series of related transactions, the Transfer of all
or a part of the Dynegy Equity Securities directly owned by a Shareholder to any
of its direct or indirect owners, limited partners or other
investors.

       

      “Dynegy”
has the meaning specified in the preamble to this Agreement.

       

      “Dynegy Equity
Securities” means Common Stock and other equity securities of Dynegy and
its subsidiaries, including options, warrants, convertible or exchangeable
securities, swaps and other rights to subscribe for or acquire any equity
securities of Dynegy, and Hedges with respect to equity securities of
Dynegy.

       

      “Dynegy
Sellers” has the meaning specified in the recitals to this
Agreement.

       

      “Exchange
Act” means the Securities Exchange Act of 1934, as amended.

       

      “Existing
Shareholder Agreement” has the meaning specified in the recitals to this
Agreement.

       

      “Governmental
Authority” means any governmental or regulatory authority or
agency.

       

      “Hedge”
means to acquire any option or right or any equivalent contract to, directly or
indirectly, sell or otherwise dispose of the economic interest in Common Stock,
or to enter into any swap, hedge or any other agreement, including any short
sales of Common Stock and equivalent derivative positions, that directly or
indirectly Transfers, in whole or in part, the economic interest in Common
Stock, including the establishment or increase of any “put equivalent position”
or liquidation or a decrease of a “call equivalent position” in Common Stock
within the meaning of Section 16 of the Exchange Act and rules promulgated
thereunder.  When used as a noun, “Hedge”
has a correlative meaning.

       

      “Lock-Up
Period” means the period commencing on the date hereof and ending on the
earlier of (i) the termination of the Purchase Agreement and (ii) the Closing
Date.

       

      “LS
Power” has the meaning specified in the preamble to this
Agreement.

       

      “LS Power
Buyers” has the meaning specified in the recitals to this
Agreement.

       

      “Luminus”
means, collectively, Luminus Management, LLC, its Controlled Affiliates and any
of the assets or funds that they manage.

       

      “owner”,
with respect to any stock or other equity interest, means a Person that
individually or with or through any of its Affiliates or
Associates:

       

      (a) owns
beneficially such stock or equity interest, whether directly or
indirectly;

       

      (b) has
(i) the right to acquire such stock or equity interest (whether such right is
exercisable immediately or only after the passage of time) pursuant to any
agreement, arrangement or understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or otherwise; provided,
however,
that for purposes of this clause (b)(i) a Person shall be deemed the owner of
stock or other equity interest tendered by other parties pursuant to a tender or
exchange offer made by such Person or any of such Person’s Affiliates or
Associates only when such tendered stock or equity interest is accepted for
purchase or exchange by such Person or such Affiliate or Associate of such
Person; or (ii) the right to vote such stock or equity interest pursuant to any
agreement, arrangement or understanding; provided,
however,
that for purposes of this clause (b)(ii) a Person shall not be deemed the owner
of any stock or equity interest if the agreement, arrangement or understanding
to vote such stock or equity interest arises solely from a revocable proxy or
consent given in response to a proxy or consent solicitation made to ten (10) or
more Persons; or

       

      (c) has
any agreement, arrangement or understanding for the purpose of acquiring,
holding, voting (except as pursuant to a revocable proxy or consent as described
in clause (b)(ii) above), or disposing of such stock or equity interest with any
other Person that owns beneficially, or whose Affiliates or Associates own
beneficially, directly or indirectly, such stock or equity
interest.

       

                 For the avoidance of doubt, no
owner, limited partner or investor of any Shareholder shall be deemed to be the
owner of any stock or equity interests owned by such Shareholder solely by
reason of such investment therein.

      The
terms “own”
and “owned”
have correlative meanings.

       

      “Period
One” means the first 120 calendar days following the Closing
Date.

       

      “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.

       

      “Purchase
Agreement” has the meaning specified in the recitals to this
Agreement.

       

      “Reference
Date” means the date that is the earlier of (i) the calendar day
immediately following the date on which Period One expires and (ii) the first
date following the Closing Date on which the Shareholders own, in the aggregate,
less than 10% of all of the outstanding Class A Shares.

       

      “Relinquished
Shares” has the meaning specified in the recitals to this
Agreement.

       

      “SEC”
means the Securities and Exchange Commission or any successor
organization.

       

      “Shareholder”
means LS Power and each Shareholder Control Group member that becomes party to
this Agreement.

       

      “Shareholder
Control Group” means LS Power, together with all of its Affiliates and
Associates; provided,
however,
that notwithstanding the foregoing, Luminus shall at no time be a member of the
Shareholder Control Group.

       

      “Shareholder
Representative” means LS Power Development, LLC, on behalf of the
Shareholders.

       

      “Standstill
Period” means the period commencing on the Closing Date and ending on the
earlier of (x) the date occurring thirty (30) months subsequent to the Closing
Date and (y) the date of the occurrence of a Change of Control.

       

      “Transaction”
has the meaning specified in the recitals to this Agreement.

       

      “Transfer”
means (a) when used as a noun, any direct or indirect transfer, sale,
assignment, conveyance, pledge, hypothecation, encumbrance or other disposition;
and (b) when used as a verb, to directly or indirectly transfer, sell,
assign, convey, pledge, hypothecate, encumber or otherwise dispose
of.  The term “transferred”
has a correlative meaning.

       

      ARTICLE
II

       

      Limitations on
Acquisitions and Transfers

       

      SECTION
2.01 Limitations on
Acquisitions by the Shareholders and
Luminus.  During the Standstill Period, the Shareholders
shall not, shall use their reasonable best efforts to cause the members of the
Shareholder Control Group to not, and shall cause Luminus to not, acquire by
purchase or otherwise, or solicit the acquisition of, any Dynegy Equity
Securities, without the prior written consent of the Board; provided,
however,
that Luminus shall be permitted to trade in Dynegy Equity Securities during the
Standstill Period, if (a) Luminus does not own Dynegy Equity Securities (and no
such trade results in Luminus owning Dynegy Equity Securities) that represent in
the aggregate more than 1% of Dynegy’s total outstanding Common Stock at such
time or (b) subsequent to the date that Dynegy consummates any merger or
consolidation with a Person which was put to or required a vote of the holders
of Common Stock with a Person with tradable securities (and such merger or
consolidation did not constitute a Change of Control), Luminus does not own the
combined company’s tradable common equity securities (and no such trade results
in Luminus owning the combined company’s tradable common equity securities) that
represent in the aggregate more than 5% (or, if the merger results in Luminus
owning a higher percentage of the combined company’s tradable common equity
securities based upon its ownership of each such company’s tradable common
equity securities as of the date of announcement of such transaction, such
higher percentage) of the combined company’s total outstanding tradable common
equity securities at such time.  The restrictions on Luminus set forth
in this ‎Section
2.01 and ‎Article
IV shall not terminate until
the expiration of the Standstill Period.

       

      SECTION
2.02 Transfer
Restrictions.

       

      (a) During
the Lock-Up Period, without the prior consent of the Board, LS Power shall not
(i) Transfer any shares of Common Stock or (ii) Hedge; provided,
however,
that notwithstanding any other provision of this Agreement, LS Power may (w)
Transfer the Relinquished Shares to Dynegy pursuant to the Purchase Agreement,
(x) tender all or a part of the Common Stock directly owned by it to an
unaffiliated third Person at any time pursuant to a tender offer for Common
Stock approved by the Board, (y) distribute shares of Common Stock directly
owned by LS Power to any of its direct or indirect owners, limited partners or
other investors, and (z) Transfer any shares of Common Stock if required
pursuant to any rule, regulation, order, writ or decree of any Governmental
Authority.

       

      (b) Following
the expiration of the Lock-Up Period, members of the Shareholder Control Group
may freely Transfer their Common Stock in accordance with law, except that no
Shareholder shall, without the prior consent of the Board, Transfer any Common
Stock to any Person (other than (i) pursuant to a tender offer of Common Stock
approved by the Board, (ii) Distributions and (iii) Transfers of any shares of
Common Stock if required pursuant to any rule, regulation, order, writ or decree
of any Governmental Authority) if, after giving effect to such Transfer, such
Person and its Affiliates would collectively own 15% or more of Dynegy’s total
outstanding Common Stock at such time (in the case of a Transfer made through
the New York Stock Exchange, as determined by reference to the relevant Schedule
13D and/or 13G filings publicly available with the SEC as of the date of such
Transfer).  At such time as the members of the Shareholder Control
Group own less than 5% of Dynegy’s outstanding Common Stock, the foregoing
restrictions shall not apply to any Transfers of Common Stock to an unknown
third party by any Shareholder conducted in a transaction effected on an
exchange.

       

      (c) Common
Stock transferred pursuant to ‎Section
2.02(a) or ‎(b)
shall not be subject to the restrictions set forth in this Agreement; provided,
however,
that Common Stock so transferred to a member of the Shareholder Control Group or
Luminus shall remain subject to this Agreement. During the term of this
Agreement, LS Power will give prompt notice to Dynegy of any transfer of shares
of Common Stock to any member of the Shareholder Control Group or
Luminus.

       

      (d) LS
Power represents and warrants that Exhibit
A attached hereto sets forth a correct and complete list of the number of
shares of Dynegy Equity Securities (including the number of shares issuable upon
exercise or conversion, as applicable, of such Dynegy Equity Securities) owned
by such Person and Luminus as of the date of this Agreement.

       

      SECTION
2.03 Shares Subject
to the Agreement.  Except
as otherwise provided for herein, all Common Stock now or hereafter owned by a
Shareholder, a member of the Shareholder Control Group, or Luminus shall be
subject to the terms of this Agreement.

       

      SECTION
2.04 Legend and
Stop Transfer Order.

       

      (a) To
assist in effectuating the provisions of this Agreement, the Shareholders hereby
consent:

       

      (i) to
the placement of the following legend on all certificates certifying ownership
of LS Power’s Class A Shares until such Class A Shares have been sold,
transferred or disposed of pursuant to the requirements of ‎Article
II hereof:

       

      “The
securities represented by this certificate are subject to the provisions of
a Shareholder
Agreement dated as of August 9, 2009 by and among Dynegy Inc. and the
shareholders party thereto and may not be sold, transferred, pledged,
hypothecated or otherwise disposed of except in accordance
therewith.  A copy of said agreement is on file at the office of the
Secretary of Dynegy Inc.”; and

       

      (ii) to
the entry of a stop transfer order with the transfer agent or agents of Dynegy
securities against the Transfer of LS Power’s Class A Shares except in
compliance with the requirements of this Agreement, or, if Dynegy is its own
transfer agent with respect to any Class A Shares, to the refusal by Dynegy to
Transfer any such securities except in compliance with the requirements of this
Agreement.

       

      (b) Following
the termination or expiration of this Agreement pursuant to ‎Section
5.01(b),
Dynegy shall use commercially reasonable efforts to assist the Shareholders in
removing all restrictions from the Common Stock held by the Shareholders,
including but not limited to the legend set forth in Section
2.04(a)(i) above.

       

      ARTICLE
III

       

      Certain
Agreements Relating to Dynegy

       

      SECTION
3.01 Dynegy
Restrictions.  From
the date hereof until the Reference Date, Dynegy agrees not to (and to cause its subsidiaries not to)
effect any offering, sale or issuance of any Dynegy Equity Securities, without
the prior written consent of LS Power, except that Dynegy may issue Dynegy
Equity Securities to employees pursuant to employee stock option, restricted
stock or other benefit plans in existence as of the date hereof.

       

      ARTICLE
IV

       

      Certain
Agreements Relating to the Shareholders, the
Shareholder

       

      Control
Group and
Luminus

       

      SECTION
4.01 No Board
Representation.  During
the Standstill Period, the Shareholders shall not, shall use their reasonable
best efforts to cause members of the Shareholder Control Group to not, and shall
cause Luminus to not, seek, directly or indirectly, to place representatives on
the Board or seek the removal of, or addition of, any Director.

       

      SECTION
4.02 No
Control.  Except as expressly provided in this
Agreement, during the Standstill Period, the Shareholders shall not, shall use
their reasonable best efforts to cause members of the Shareholder Control Group
to not, and shall cause Luminus to not, unless such action shall have been
specifically consented to in writing by the Board (it being understood that
execution of this Agreement does not constitute such a consent), in any manner
(including but not limited to entering into communications to or discussions
with, the record or beneficial holders of any Dynegy voting securities) for the
purpose of the following, directly or indirectly, (i) make, or become a
participant in, any “solicitation” of “proxies” (as such terms are defined in
Regulation 14A promulgated by the SEC, disregarding clause (iv) of Rule
14a-1(l)(2) and including any otherwise exempt solicitation pursuant to Rule
14a-2(b)) or consents to vote any voting securities of Dynegy or any of its
subsidiaries, or otherwise seek to influence, direct or advise any Person with
respect to the voting of any voting securities of Dynegy or its subsidiaries,
(ii) form, join, become a member or in any way participate in a “group” (within
the meaning of Rule 13d-5(b) under the Exchange Act) with respect to the matters
set forth in clause (i), or (iii) otherwise act, alone or in concert with
others, to seek to control or influence or advise the management, Board, or
policies of Dynegy or its subsidiaries, or take any action to prevent or
challenge any transaction to which Dynegy or any of its subsidiaries is a party,
(iv) make any public announcement or disclosure, or take any action which might
force Dynegy or any of its subsidiaries to make a public announcement or other
public disclosure regarding any of the types of matters set forth in (i), (ii)
or (iii) above, or (v) advise, assist, arrange, or otherwise enter into any
discussions or arrangements with any third Person with respect to any of the
foregoing prohibited conduct provided, however, nothing contained herein
prohibits the Shareholders, members of the Shareholder Control Group or Luminus
from (a) voting their shares of Common Stock in their discretion or (b) advising
or otherwise having confidential reports or discussions with their direct or
indirect owners for purposes other than the foregoing prohibited
purposes.

       

       

      SECTION
4.03 Joinder.  If a member of the Shareholder
Control Group or Luminus becomes a direct owner of any Common Stock, such Person
shall, and the Shareholder Representative shall, upon obtaining actual knowledge
of such direct ownership, use its reasonable best efforts to cause such Person
to execute a joinder agreement to this Agreement and become a Shareholder
hereunder.  Any Shareholder obtaining actual knowledge of any member
of the Shareholder Control Group or Luminus acquiring Common Stock shall inform
Dynegy of such fact as soon as practicable.

       

      ARTICLE
V

       

      General
Provisions

       

      SECTION
5.01 Effectiveness
and Term.

       

      (a) Article
I, Sections
‎2.02,
‎2.03
(but only with respect to Section
‎2.02),
and 3.01
and ‎Article
V of this Agreement shall be effective as of the date hereof and the
remaining provisions of this Agreement shall be effective as of the
Closing.  If the Purchase Agreement is terminated prior to the
Closing, 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 except for breaches prior to such termination of provisions
effective as of the date hereof.

       

      (b) Subject
to ‎Section
5.01‎(a),
(i) this Agreement (other than the provisions set forth in Sections
2.01, 4.01,
4.02
and ‎Article
V of this
Agreement) shall cease to be in effect on and after the date that the
Shareholder Control Group collectively owns no Dynegy Equity Securities and (ii)
Sections
2.01, 4.01,
and 4.02 of this
Agreement shall cease to be in effect on and after the expiration of the
Standstill Period.

       

      SECTION
5.02 Intent and
Interpretation.  Each
of the parties hereto stipulates and acknowledges that each Shareholder has
made, prior to the date hereof, a careful evaluation of this Agreement, its
investment objectives with regard to its Common Stock and the compatibility of
such objectives with the objectives of Dynegy; that such factors were critical
to each Shareholder in the decision to consummate the Transaction and thereby
reduce its holdings of Common Stock; that, absent the restrictions in this
Agreement, Dynegy, the Dynegy Sellers, LS Power and the LS Power Buyers might
have reached a different decision with regard to the Transaction; and therefore,
that the restrictions set forth in this Agreement are a material part of the
consideration received by Dynegy, the Dynegy Sellers, LS Power and the LS Power
Buyers to consummate the Transactions.  Each party acknowledges and
agrees that the provisions set forth in this Agreement are
reasonable.

       

      SECTION
5.03 Specific
Enforcement.  Each
of the parties hereto acknowledges and agrees that the other parties hereto
would be irreparably damaged and that money damages are not an adequate remedy
if any of the provisions of this Agreement were not performed in accordance with
their specific terms or were otherwise breached.  It is accordingly
agreed that each party hereto shall be entitled to an injunction or injunctions
to prevent breaches of this Agreement and to specifically enforce this Agreement
and the terms and provisions hereof in any court of the United States or any
state thereof, in addition to any other remedy to which such party may be
entitled, at law or in equity.  It is further agreed that none of the
parties hereto shall raise the defense that there is an adequate remedy at
law.

       

      SECTION
5.04 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 parties or
circumstances shall not be affected thereby and shall be enforced to the
greatest extent permitted by applicable law, and 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.

       

      SECTION
5.05 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 given (i) when
made, if made by hand delivery, and upon confirmation of receipt, if made by
facsimile, (ii) one (1) Business Day after being deposited with a next-day
courier, postage prepaid, or (iii) three (3) Business Days after being sent
certified or registered mail, return receipt requested, postage prepaid, in each
case to the applicable addresses set forth below (or to such other address as
such party may designate in writing from time to time):

       

      If
to Dynegy:

       

      c/o
Dynegy Inc.

       

      1000
Louisiana, Suite 5800

       

      Houston,
Texas 77002

       

      Attention:  General
Counsel

       

      Telecopy:  (713)
356-2185

       

      with
copies (which shall not constitute notice) to:

       

      Akin
Gump Strauss Hauer & Feld, LLP

       

      1111
Louisiana St.

       

      44th
Floor

       

      Houston,
TX 77002

       

      Attention:
Michael E. Dillard, P.C.

       

      Telecopy:
(713) 236-0822

       

      If
to a Shareholder:

       

      c/o
LS Power Development, LLC

       

      Two
Tower Center, 11th
Floor

       

      East
Brunswick, NJ 08816

       

      Attention:  Corporate
Counsel

       

      Telecopy:  (732)
249-7290

       

      with
copies (which shall not constitute notice) to:

       

      Latham
& Watkins LLP

       

      885
Third Avenue

       

      Suite
1000

       

      New
York, NY  10022

       

      Attention:   
Charles Ruck

                        David
Kurzweil

       

      Telecopy: (212)
751-4864

       

      or
to such other address as such party shall have designated by notice so given to
each other party.

       

      SECTION
5.06 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 all of the
parties hereto (or their successors).

       

      SECTION
5.07 Entire
Agreement.  This
Agreement (unless terminated as set forth in Section
5.01(a)), the Existing Shareholder Agreement (until the Closing), the
Registration Rights Agreement dated September 14, 2006 (as amended from time to
time) among the Company and the Shareholders party thereto, and the Purchase
Agreement embody the entire agreement and understanding among the parties
relating to the subject matter hereof and supersede all prior agreements and
understandings relating to such subject matter.

       

      SECTION
5.08 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.

       

      SECTION
5.09 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 his or her
right to exercise any such or other right, power or remedy or to demand such
compliance.

       

      SECTION
5.10 No Third Party
Beneficiaries.  This
Agreement is not intended to be for the benefit of and shall not be enforceable
by any Person who or which is not a party hereto.

       

      SECTION
5.11 Consent to
Jurisdiction.  Each of the parties hereto irrevocably submits
to the exclusive jurisdiction of (a) the Court of Chancery of the State of
Delaware, and (b) the United States District Court for the District of Delaware,
for the purposes of any suit, action or other proceeding arising out of this
Agreement or any transaction contemplated hereby.  Each of the parties
hereto agrees to commence any such action, suit or proceeding either in the
United States District Court for the District of Delaware, or if such suit,
action or other proceeding may not be brought in such court for jurisdictional
reasons, in the Court of Chancery of the State of Delaware.  Each of
the parties hereto further agrees that service of any process, summons, notice
or document by U.S. registered mail to such party’s respective address set forth
above shall be effective service of process for any action, suit or proceeding
in Delaware with respect to any matters to which it has submitted to
jurisdiction in this ‎Section
5.11.  Each of the
parties hereto irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
and the other transactions contemplated hereby in (i) the Court of Chancery in
the State of Delaware, or (ii) the United States District Court for the District
of Delaware, and hereby and thereby further irrevocably and unconditionally
waives and agrees not to plead or claim in any such court that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.

       

      SECTION
5.12 Governing
Law.  This
Agreement shall be construed, interpreted, and governed in accordance with the
laws of the State of Delaware, without giving effect to its rules on conflicts
of law.

       

      SECTION
5.13 WAIVER OF JURY
TRIAL.  EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.

       

      SECTION
5.14 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
construction hereof.  Whenever the context may require, any pronoun
used herein shall include the corresponding masculine, feminine or neuter
forms.

       

      SECTION
5.15 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, of the parties
hereto.

       

      SECTION
5.16 Successors and
Assigns.  The
Shareholders shall not assign this Agreement without the written consent of
Dynegy.  Dynegy may assign this Agreement only to any successor to
substantially all of its business as a result of a merger, consolidation or sale
by Dynegy.  Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of and be enforceable by the successors and
assigns of the parties hereto.

       

      SECTION 5.17 Luminus.  To
the extent that Luminus is required to perform certain obligations, or is
entitled to certain rights or benefits, under this Agreement, the Shareholder
Representative shall cause Luminus to perform such obligations, and shall be
entitled to enforce such rights or benefits on behalf of Luminus.

       

      SECTION
5.18 Effect on
Existing Shareholder Agreement.  The
Existing Shareholder Agreement shall terminate effective as of the Closing and
all rights and obligations of the parties thereto shall be extinguished as of
the Closing.  During the Lock-Up Period, LS Power shall not be
entitled or permitted to exercise its rights set forth in Section 2.01(b) of the
Existing Shareholder Agreement.  For the avoidance of doubt, in the
event of any termination of the Purchase Agreement, all provisions of the
Existing Shareholder Agreement shall remain in full force and effect and shall
not thereafter be effected by this Agreement.

       

      [Signature pages
follow]


      
        
           

        

        
           


          
            

          

        

        
          Exhibit
10.1

        

      


      IN
WITNESS WHEREOF, the parties hereto have duly and validly executed this
Shareholder Agreement as of the day and year first above written.

       

       

       

      
        	 
      	
                DYNEGY
      INC.

              
	 
      	 
      
	 
      	
                By:

              	 
      /s/ Lynn A. Lednicky
	 
      	
                Name:

              	
                Lynn
      A. Lednicky

              
	 
      	
                Title:

              	
                Executive
      Vice President

              
	 
      	 
      
	 
      	 
      
	 
      	
                LS
      POWER PARTNERS, L.P.

              
	 
      	 
      
	 
      	
                By:

              	
                LS
      Power Development, LLC, its General Partner

              
	 
      	 
      
	 
      	
                By:

              	 
      /s/ Frank Hardenbergh
	 
      	
                Name:

              	
                Frank
      Hardenbergh

              
	 
      	
                Title:

              	
                Vice
      Chairman

              
	 
      	 
      	 
      
	 
      	 
      	 
      
	 
      	
                LS
      POWER ASSOCIATES, L.P.

              
	 
      	 
      
	 
      	
                By:

              	
                LS
      Power Development, LLC, its General Partner

              
	 
      	 
      
	 
      	
                By:

              	   
      /s/ Frank Hardenbergh
	 
      	
                Name:

              	
                Frank
      Hardenbergh

              
	 
      	
                Title:

              	
                Vice
      Chairman

              
	 
      	 
      
	 
      	 
      
	 
      	
                LS
      POWER EQUITY PARTNERS, L.P.

              
	 
      	 
      
	 
      	
                By:

              	
                LS
      Power Partners, L.P., its General Partner

              
	 
      	 
      
	 
      	 
      	
                By:

              	
                LS
      Power Development, LLC, its General Partner

              
	 
      	 
      	 
      
	 
      	
                By:

              	   
      /s/ Frank Hardenbergh
	 
      	
                Name:

              	
                Frank
      Hardenbergh

              
	 
      	
                Title:

              	
                Vice
      Chairman

              
	 
      	 
      
	 
      	 
      
	 
      	 
      


      

       

      
        	 
      	
                LS
      POWER EQUITY PARTNERS PIE I, L.P.

              
	 
      	 
      
	 
      	
                By:

              	
                LS
      Power Partners, L.P., its General Partner

              
	 
      	 
      
	 
      	 
      	
                By:

              	
                LS
      Power Development, LLC, its General Partner

              
	 
      	 
      	 
      
	 
      	
                By:

              	   
      /s/ Frank Hardenbergh
	 
      	
                Name:

              	
                Frank
      Hardenbergh

              
	 
      	
                Title:

              	
                Vice
      Chairman

              
	 
      	 
      
	 
      	 
      
	 
      	
                LSP
      GEN INVESTORS, L.P.

              
	 
      	 
      
	 
      	
                By:

              	
                LS
      Power Partners, L.P., its General Partner

              
	 
      	 
      
	 
      	 
      	
                By:

              	
                LS
      Power Development, LLC, its General Partner

              
	 
      	 
      	 
      
	 
      	
                By:

              	   
      /s/ Frank Hardenbergh
	 
      	
                Name:

              	
                Frank
      Hardenbergh

              
	 
      	
                Title:

              	
                Vice
      Chairman

              


      

       

      [Signature Page to Shareholder Agreement]

       

    

    
      
         

      

      
        
        

        
          

        

      

      
        Exhibit
10.1

      

    



    EXHIBIT
A

    SHAREHOLDER
CONTROL GROUP OWNERSHIP OF

    DYNEGY
EQUITY SECURITIES

     

     

    
      	
              Name of
      Owner

            	
              Number of Class A Shares
      Owned

            	
              Number of Class B Shares
      Owned

            	
              Other Dynegy Equity Securities
      Owned

            
	
              LS
      Power Associates, L.P.

            	
              None

            	
              48,842,270

            	
              None

            
	
              LS
      Power Equity Partners, L.P.

            	
              None

            	
              175,117,329

            	
              None

            
	
              LS
      Power Partners, L.P.

            	
              None

            	
              5,686,822

            	
              None

            
	
              LS
      Power Equity Partners PIE I, L.P.

            	
              None

            	
              106,186,603

            	
              None

            
	
              LSP
      Gen Investors, L.P.

            	
              None

            	
              4,166,976

            	
              None