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Exhibit 10.22
Exhibit A
INVESTOR RIGHTS AGREEMENT
INVESTOR RIGHTS AGREEMENT (the "Agreement"), dated as of this 5th
day of April, 2000 by and between Orion Power Holdings Inc., a Delaware
corporation (the "Company"), Frederic V. Salerno (the "Purchaser") and the other
parties listed on the signature pages hereto (the "Existing Stockholders").
RECITALS
WHEREAS, the Company and the Purchaser are simultaneously entering
into an agreement pursuant to which the Purchaser is being appointed as Chairman
of the Board of Directors of the Company;
WHEREAS, the Company and the Purchaser are simultaneously entering
into a Stock Purchase Agreement pursuant to which the Purchaser is purchasing
shares of common stock of the Company, par value $.01 per share (the "Common
Stock");
WHEREAS, the Company and the Purchaser are simultaneously entering
into a Non-Qualified Stock Option Agreement pursuant to which the Purchaser will
be granted options to purchase shares of Common Stock;
WHEREAS, the Company and each of the Existing Stockholders are
parties to a Second Amended and Restated Stockholders' Agreement, dated as of
November 5, 1999, as amended from time to time (the "Stockholders' Agreement").
Capitalized terms used herein and not otherwise defined shall have the
respective meaning ascribed to them under the Stockholders' Agreement.
WHEREAS, the parties hereto desire to set forth in this Agreement
certain rights, obligations and restrictions with respect to Stock Beneficially
Owned by the Purchaser.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
Section 1. Tag-Along and Change of Control Rights
. The parties acknowledge and agree that the Purchaser and his
Permitted Transferees (as defined in the Stock Purchase Agreement) shall be
subject to, and enjoy the benefits of, the provisions of Section 16 of the
Stockholders' Agreement (as amended from time to time), as if the Purchaser and
his Permitted Transferees was a Stockholder thereunder.
Section 2. Bring-Along Rights
. The Purchaser agrees on behalf of himself and his Permitted
Transferees that GSCP may require the Purchaser and his Permitted Transferees to
sell all, but not less than all, of the Stock Beneficially Owned by the
Purchaser and his Permitted Transferees under the same
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circumstances, and on the same terms and conditions, as provided in Sections
17(a), (b), (d), (e) and (f) of the Stockholders' Agreement (as amended from
time to time), treating the Purchaser and his Permitted Transferees for these
purposes in the same manner as Constellation.
Section 3. Governing Law
. This Agreement shall be construed in accordance with and governed
by the laws of the State of New York, without giving effect to principles of
conflicts of law.
Section 4. Successors and Assigns
. The terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors and assigns of the
parties hereto. No party hereto shall have the right to assign its rights and
obligations under this Agreement, without the prior written consent of the other
party.
Section 4.6. Amendment.
. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties.
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IN WITNESS WHEREOF, the parties have executed this Agreement and caused the same
to be duly delivered on their behalf as of the day and year first written above.
ORION POWER HOLDINGS, INC.
By:
Name:
Title:
FREDERIC V. SALERNO
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By:
CONSTELLATION ENTERPRISES, INC.
By:
Name:
Title:
OTHER GS ENTITIES
GS CAPITAL PARTNERS III, L.P.
By: GS Advisors III, L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
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STONE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp., its general partner
By: _____________________________________
Name:
Title:
BRIDGE STREET FUND 1998, L.P.
By: Stone Street Advantage Corp., its managing general partner
By: _____________________________________
Name:
Title:
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P., its general partner
By: GS Advisors II, Inc., its general partner
By:
Name:
Title:
GS CAPITAL PARTNERS III OFFSHORE, L.P.
By: GS Advisors III (Cayman), L.P., its general partner
By: GS Advisors III, Inc., its general partner
By:
Name:
Title:
GOLDMAN, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital Partners II Germany C.L.P.)
By:
Name:
Title:
and
By:
Name:
Title:
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GOLDMAN, SACHS & CO. VERWALTUNGS GmbH
(as nominee for GS Capital Partners III Germany C.L.P.)
By:
Name:
Title:
and
By:
Name:
Title:
MITSUBISHI CORPORATION
By: __________________________________
Name:
Title:
DIAMOND GENERATING CORPORATION
By:
Name:
Title:
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DIAMOND CAYMAN, INC.
By:
Name:
Title:
MITSUBISHI INTERNATIONAL CORPORATION
By:
Name:
Title:
THE TOKYO ELECTRIC POWER COMPANY
By:
Name:
Title:
TOKYO ELECTRIC POWER COMPANY
INTERNATIONAL B.V.
By:
Name:
Title:
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