FW: *Merger Agreement Summary ,
 Tim, you requested a summary of the circumstances in which Dynegy could "get out of the deal".  Attached is a draft rider, for insertion into the 10-Q, that describes the merger agreement.  You will see a description of your issue in the large middle paragraph.  

You may also want the following  additional information:

Dynegy may terminate the merger agreement if there has been a breach by Enron of any of its representations, warranties (such that there would be a Material Adverse Effect), covenants or agreements (in all material respects) set forth in the merger agreement and such breach is not curable, or, if it is curable, is not cured within 30 days after written notice of such breach is given by Dynegy to Enron.

Note, the merger deal may not occur for certain fiduciary duty reasons - say for a superior proposal.  I would not at all get into this area; note that there are "no-shop" provisions, that prohibit any encouragement of offers.  If asked, I would just refer anyone to the technical terms of the merger agreement.

In any event, I would tell people that the discussion of the merger agreement is qualified to the terms of the merger agreement, a copy of which will be filed with the SEC under a Form 8-K, first thing in the morning.  

Thanks.  Lance.  

W. Lance Schuler
Enron North America Corp.
1400 Smith Street
Houston, Texas  77002
Phone: 713/853-5419
Fax:  281/664-4890
Email:  lance.schuler-legal@enron.com

 

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jeffrey.mcmahon@enron.com, tim.despain@enron.com, j..kean@enron.com