-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Dtf6enrnZ78I5HPm9A1VJ+NH/USVURAndkumFa28t/gIQV9tcIbRhLc3fUfDKBh6 K5bYqH06NdCNfshFCpQJIQ== 0001193125-11-033787.txt : 20110214 0001193125-11-033787.hdr.sgml : 20110214 20110214061949 ACCESSION NUMBER: 0001193125-11-033787 CONFORMED SUBMISSION TYPE: SC TO-T/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20110214 DATE AS OF CHANGE: 20110214 GROUP MEMBERS: BARBERRY CORP. GROUP MEMBERS: BECKTON CORP. GROUP MEMBERS: CARL C. ICAHN GROUP MEMBERS: HIGH RIVER LIMITED PARTNERSHIP GROUP MEMBERS: HOPPER INVESTMENTS LLC GROUP MEMBERS: ICAHN CAPITAL LP GROUP MEMBERS: ICAHN ENTERPRISES G.P. INC. GROUP MEMBERS: ICAHN ENTERPRISES L.P. GROUP MEMBERS: ICAHN OFFSHORE LP GROUP MEMBERS: ICAHN ONSHORE LP GROUP MEMBERS: ICAHN PARTNERS LP GROUP MEMBERS: ICAHN PARTNERS MASTER FUND II LP GROUP MEMBERS: ICAHN PARTNERS MASTER FUND III LP GROUP MEMBERS: ICAHN PARTNERS MASTER FUND LP GROUP MEMBERS: IEH MERGER SUB LLC GROUP MEMBERS: IEP MERGER SUB INC. GROUP MEMBERS: IPH GP LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DYNEGY INC. CENTRAL INDEX KEY: 0001379895 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 205653152 STATE OF INCORPORATION: DE FISCAL YEAR END: 0101 FILING VALUES: FORM TYPE: SC TO-T/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83671 FILM NUMBER: 11601998 BUSINESS ADDRESS: STREET 1: 1000 LOUISIANA STREET, SUITE 5800 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: (713) 507-6400 MAIL ADDRESS: STREET 1: 1000 LOUISIANA STREET, SUITE 5800 CITY: HOUSTON STATE: TX ZIP: 77002 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Inc.. DATE OF NAME CHANGE: 20070404 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Acquisition, Inc.. DATE OF NAME CHANGE: 20070403 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Acquisition, Inc. DATE OF NAME CHANGE: 20061102 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DYNEGY INC. CENTRAL INDEX KEY: 0001379895 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 205653152 STATE OF INCORPORATION: DE FISCAL YEAR END: 0101 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-83671 FILM NUMBER: 11602000 BUSINESS ADDRESS: STREET 1: 1000 LOUISIANA STREET, SUITE 5800 CITY: HOUSTON STATE: TX ZIP: 77002 BUSINESS PHONE: (713) 507-6400 MAIL ADDRESS: STREET 1: 1000 LOUISIANA STREET, SUITE 5800 CITY: HOUSTON STATE: TX ZIP: 77002 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Inc.. DATE OF NAME CHANGE: 20070404 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Acquisition, Inc.. DATE OF NAME CHANGE: 20070403 FORMER COMPANY: FORMER CONFORMED NAME: Dynegy Acquisition, Inc. DATE OF NAME CHANGE: 20061102 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ICAHN ENTERPRISES HOLDINGS L.P. CENTRAL INDEX KEY: 0001034563 STANDARD INDUSTRIAL CLASSIFICATION: MOTOR VEHICLE PARTS & ACCESSORIES [3714] IRS NUMBER: 133398767 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC TO-T/A BUSINESS ADDRESS: STREET 1: 445 HAMILTON AVENUE STREET 2: SUITE 1210 CITY: WHITE PLAINS STATE: NY ZIP: 10601 BUSINESS PHONE: 914-614-7000 MAIL ADDRESS: STREET 1: 445 HAMILTON AVENUE STREET 2: SUITE 1210 CITY: WHITE PLAINS STATE: NY ZIP: 10601 FORMER COMPANY: FORMER CONFORMED NAME: AMERICAN REAL ESTATE HOLDINGS L P DATE OF NAME CHANGE: 19980311 SC TO-T/A 1 dsctota.htm AMENDMENT NO. 8 TO SCHEDULE TO Amendment No. 8 to Schedule TO

 

 

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

SCHEDULE TO

(Rule 14D-100)

 

 

Tender Offer Statement Under Section 14(d)(1) or 13(e)(1)

of the Securities Exchange Act of 1934

(Amendment No. 8)

 

 

DYNEGY INC.

(Name of Subject Company (Issuer))

 

 

IEH Merger Sub LLC

Icahn Enterprises Holdings L.P.

IEP Merger Sub Inc.

Icahn Partners LP

Icahn Partners Master Fund LP

Icahn Partners Master Fund II LP

Icahn Partners Master Fund III LP

High River Limited Partnership

Hopper Investments LLC

Barberry Corp.

Icahn Onshore LP

Icahn Offshore LP

Icahn Capital LP

IPH GP LLC

Icahn Enterprises L.P.

Icahn Enterprises G.P. Inc.

Beckton Corp.

Carl C. Icahn

(Names of Filing Persons)*

Common Stock, Par Value $0.01

(Title of Class of Securities)

26817G300

(CUSIP Number of Class of Securities)

 

 

Keith L. Schaitkin, Esq.

Deputy General Counsel

Icahn Capital LP

767 Fifth Avenue, 47th Floor

New York, New York 10153

(212) 702-4380

(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications on behalf of Filing Persons)

 

 

CALCULATION OF FILING FEE

 

 
Transaction Valuation:   Amount of Filing Fee:

$665,350,532*

   $47,440**
 
 

 

* Calculated solely for purposes of determining the filing fee. The calculation assumes the purchase of all 120,972,824 issued and outstanding shares of common stock, par value $0.01 per share, Dynegy Inc. has advised IEH Merger Sub LLC were outstanding as of December 9, 2010 at the offer price of $5.50 per share.
** Calculated in accordance with Rule 0-11 of the Securities Exchange Act of 1934, as amended, determined based upon multiplying 0.00007130 by the transaction valuation of $665,350,532.

 

x Check the box if any part of the fee is offset as provided by Rule 0-11(a)(2) and identify the filing with which the offsetting fee was previously paid. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

Amount previously paid:   $47,440    Filing Party:    Icahn Enterprises

Form or registration no.:

Schedule TO

      Date Filed:   

Holdings L.P.

December 22, 2010

 

¨ Check the box if the filing relates solely to preliminary communications made before the commencement of a tender offer.

Check the appropriate boxes below to designate any transactions to which the statement relates:

 

x third party tender offer subject to Rule 14d-1

 

¨ issuer tender offer subject to Rule 13e-4

 

¨ going-private transaction subject to Rule 13e-3

 

x amendment to Schedule 13D under Rule 13d-2

Check the following box if the filing is a final amendment reporting the results of the tender offer:   ¨

 

 

 

* Introductory Note: Pursuant to the Merger Agreement (as defined in, and filed with, the Schedule TO (as defined below)), IEH Merger Sub LLC was obligated to commence the Offer (as defined below) by December 22, 2010. Pursuant to the Guarantee (as defined in, and filed with, the Schedule TO), Icahn Enterprises Holdings L.P. agreed to absolutely, irrevocably and unconditionally, guarantee to Dynegy Inc. the full and timely performance by IEH Merger Sub LLC of its payment and other obligations under the Merger Agreement, including its obligation to commence and consummate the Offer. Both IEH Merger Sub LLC and Icahn Enterprises Holdings L.P. are co-bidders for all purposes in the Offer.

This Amendment No. 8 amends and supplements the Tender Offer Statement on Schedule TO, dated December 22, 2010 (the “Original Schedule TO”), as amended by the Amendment No. 1 to the Schedule TO, dated December 28, 2010 (the “First Amendment”), as further amended by the Amendment No. 2 to the Schedule TO, dated January 6, 2011 (the “Second Amendment”), as further amended by the Amendment No. 3 to the Schedule TO, dated January 20, 2011(the “Third Amendment”), as further amended by the Amendment No. 4 to the Schedule TO, dated January 26, 2011(the “Fourth Amendment”), as further amended by the Amendment No. 5 to the Schedule TO, dated February 2, 2011(the “Fifth Amendment”), as further amended by the Amendment No. 6 to the Schedule TO, dated February 10, 2011(the “Sixth Amendment”) and as further amended by the Amendment No. 7 to the Schedule TO, dated February 11, 2011(the “Seventh Amendment”, and together with the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment and the Original Schedule TO, the “Schedule TO”) relating to the tender offer by IEH Merger Sub LLC, a Delaware limited liability company (the “IEH Merger Sub”) and Icahn Enterprises Holdings L.P., a Delaware limited partnership (“IEH”, and together with IEH Merger Sub, the “Offeror”), to purchase for cash all of the issued and outstanding shares of common stock of Dynegy Inc., including the associated rights issued pursuant to the Stockholder Protection Rights Agreement, dated as of November 22, 2010, and as amended on December 15, 2010, between the Company and Mellon Investor Services LLC, as Rights Agent, that are issued and outstanding (such shares of common stock and such rights collectively, the “Shares”) at a price of $5.50 per Share, without interest and less any required withholding taxes, if any. Pursuant to the Merger Agreement, IEH Merger Sub agreed to commence a tender offer to purchase for cash all outstanding Shares. Pursuant to the Guarantee, IEH agreed to absolutely, irrevocably and unconditionally, guarantee to Dynegy Inc. the full and timely performance by IEH Merger Sub of its payment and other obligations under the Merger Agreement, including its obligation to commence and consummate the Offer. Both IEH Merger Sub and IEH are co-bidders for all purposes in the Offer.

The Offer is subject to the terms and conditions set forth in the Offer to Purchase, dated December 22, 2010 (the “Offer to Purchase”). The Offer to Purchase, the related Letter of Transmittal (the “Letter of Transmittal”) and Notice of Guaranteed Delivery, copies of which are attached hereto as Exhibits (a)(1)(i), (a)(1)(ii) and (a)(1)(iii), respectively, constitute the “Offer”.

As permitted by General Instruction F to Schedule TO, the information set forth in the entire Offer to Purchase, the Letter of Transmittal and the Notice of Guaranteed Delivery, including all appendices, schedules, exhibits and annexes thereto, is hereby expressly incorporated by reference in response to Items 1 through 11 of this Schedule TO and is supplemented by the information specifically provided herein.

As permitted by General Instruction G to Schedule TO, this Schedule TO is also an amendment to the joint statement on Schedule 13D filed on October 12, 2010 by IEH, Icahn Partners LP, a limited partnership governed by the laws of Delaware, Icahn Partners Master Fund LP, a limited partnership governed by the laws of the Cayman Islands, Icahn Partners Master Fund II LP, a limited partnership governed by the laws of the Cayman Islands, Icahn Partners Master Fund III LP, a limited partnership governed by the laws of the Cayman Islands, High River Limited

Partnership, a limited partnership governed by the laws of Delaware, Hopper Investments LLC, a limited liability company governed by the laws of Delaware, Barberry Corp., a corporation governed by the laws of Delaware, Icahn Onshore LP, a limited partnership governed by the laws of Delaware, Icahn Offshore LP, a limited partnership governed by the laws of Delaware, Icahn Capital LP, a limited partnership governed by the laws of Delaware, IPH GP LLC, a limited liability company governed by the laws of Delaware, Icahn Enterprises Holdings L.P., a limited partnership governed by the laws of Delaware, Icahn Enterprises G.P. Inc., a corporation governed by the laws of Delaware, Beckton Corp., a corporation governed by the laws of Delaware, and Carl C. Icahn (collectively, the “Icahn Entities”).

Items 1, 4 and 11.

Items 1, 4 and 11 of the Schedule TO and the Offer to Purchase, to the extent incorporated by reference therein, are hereby amended and supplemented as follows:

On February 13, 2011, the Company, the Offeror and IEP Merger Sub Inc. entered into that certain Amendment No. 1 to Agreement and Plan of Merger (the “Amendment”) pursuant to which the parties amended the Merger Agreement to (i) provide for the extension of the Offer until 5:00 p.m., New York City time on February 18, 2011 and (ii) provide that the Merger Agreement will automatically terminate if the conditions to the consummation of the Offer have not been satisfied by such date and time (“Offer End Date Termination”). Pursuant to the Amendment, in the event of an Offer End Date Termination, Parent would be obligated to terminate the Offer. In connection with an Offer End Date Termination the Company is obligated to pay $5 million to Parent in respect of expenses incurred by Parent and as consideration for entering into the Merger Agreement. Further, in certain circumstances, the Company may be required to pay Parent a $16.3 million fee, less any Parent expense payments previously paid by the Company.

The Amendment is attached hereto as Exhibit (d)(4).

Items 1 and 4.

Items 1 and 4 of the Schedule TO are hereby amended and supplemented as follows:

“The Offeror is extending the expiration of the Offer until 5:00 p.m., New York City time, on February 18, 2011. The Offer, which was previously scheduled to expire at 5:00 p.m., New York City time, on February 14, 2011, was extended in accordance with the Merger Agreement and the Amendment. The Depositary has indicated that, as of 5:00 p.m., New York City time, on February 11, 2011, approximately 1,659,311 Shares had been validly tendered and not withdrawn pursuant to the Offer, representing approximately 1.36% of the outstanding Shares.”

The press release announcing the extension of the Offer is attached hereto as Exhibit (a)(5)(vi).

Item 12.

Item 12 of the of the Schedule TO is hereby amended and supplemented as follows:

 

Exhibit (a)(5)(vi)   Press Release of Icahn Enterprises LP, dated February 14, 2011
Exhibit (d)(4)   Amendment No. 1 to Agreement and Plan of Merger, dated as of February 13, 2011, among Dynegy Inc., IEH Merger Sub LLC and IEP Merger Sub Inc.

SIGNATURES

After due inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.

 

ICAHN PARTNERS LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
BY:   Hopper Investments LLC, its general partner
BY:   Barberry Corp., its sole member
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
HOPPER INVESTMENTS LLC
BY:   Barberry Corp., its sole member
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
BARBERRY CORP.
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory

ICAHN ONSHORE LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN OFFSHORE LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN CAPITAL LP
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
BECKTON CORP.
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
IPH GP LLC
By:  

/S/    EDWARD MATTNER        

Name:   Edward Mattner
Title:   Authorized Signatory
ICAHN ENTERPRISES HOLDINGS L.P.
BY:   Icahn Enterprises G.P. Inc., its general partner
By:  

/S/    DOMINICK RAGONE        

Name:   Dominick Ragone
Title:   Chief Financial Officer

IEH MERGER SUB LLC
BY:   Icahn Enterprises Holdings L.P., its sole member
BY:   Icahn Enterprises G.P. Inc., its general partner
By:  

/S/    DOMINICK RAGONE        

Name:   Dominick Ragone
Title:   Chief Financial Officer
IEP MERGER SUB INC.
By:  

/S/    DOMINICK RAGONE        

Name:   Dominick Ragone
Title:   Chief Financial Officer
 

/S/    CARL C. ICAHN        

Name:   Carl C. Icahn

Date: February 14, 2011

EXHIBIT INDEX

 

Exhibit No.

   

Description

(a)(1)(i)

    Offer to Purchase, dated December 22, 2010*

(a)(1)(ii)

    Letter of Transmittal (including Guidelines for Certification of Taxpayer Identification Number)*

(a)(1)(iii)

    Notice of Guaranteed Delivery*

(a)(1)(iv)

    Letter to Brokers, Dealers, Commercial Banks, Trust Companies and Other Nominees*

(a)(1)(v)

    Letter to Clients*

(a)(5)(i)

    Summary Advertisement as published in the New York Times, by the Offeror, on December 22, 2010*

(a)(5)(ii)

    Joint Press Release of the Offeror and Dynegy Inc., dated December 15, 2010 (incorporated by reference to Exhibit 1.1 to the Schedule TO-C filed by the Offeror with the Securities and Exchange Commission on December 15, 2010)*

(a)(5)(iii)

    Press Release of Icahn Enterprises LP, dated January 26, 2011*

(a)(5)(iv)

    Article Written by Carl C. Icahn published in the New York Post, January 30, 2011*

(a)(5)(v)

 

(a)(5)(vi)

   

Press Release of Icahn Enterprises LP, dated February 8, 2011*

 

Press Release of Icahn Enterprises LP, dated February 14, 2011 (filed herewith)

(b)

    None.

(c)

    None.

(d)(1)

    Agreement and Plan of Merger, dated as of December 15, 2010, among Dynegy Inc., IEH Merger Sub LLC and IEP Merger Sub Inc. (incorporated by reference to Exhibit 2.1 to the Form 8-K filed by Icahn Enterprises L.P. with the Securities and Exchange Commission on December 17, 2010)*

(d)(2)

    Support Agreement, dated as of December 15, 2010, (incorporated by reference to Exhibit 1.2 to the Schedule TO-C filed by the Offeror with the Securities and Exchange Commission on December 15, 2010)*

(d)(3)

 

(d)(4)

   

Guarantee, dated as of December 15, 2010*

 

Amendment No. 1 to Agreement and Plan of Merger, dated as of February 13, 2011, among Dynegy Inc., IEH Merger Sub LLC and IEP Merger Sub Inc. (filed herewith)

(g)

    None.

(h)

    None.

 

* Previously Filed
EX-99.(A)(5)(VI) 2 dex99a5vi.htm PRESS RELEASE OF ICAHN ENTERPRISES LP, DATED FEBRUARY 14, 2011 Press Release of Icahn Enterprises LP, dated February 14, 2011

Exhibit (a)(5)(vi)

FINAL EXTENSION OF DYNEGY TENDER OFFER TO 5:00 P.M.,

NEW YORK CITY TIME, ON FRIDAY FEBRUARY 18, 2011

ICAHN ENTERPRISES LP ANNOUNCES THE FINAL EXTENSION OF ITS

TENDER OFFER TO ACQUIRE SHARES OF DYNEGY INC. AND THE

AMENDMENT OF ITS MERGER AGREEMENT WITH DYNEGY TO PROVIDE FOR

TERMINATION OF THE PROPOSED MERGER TRANSACTION IF THE

CONDITIONS TO THE TENDER OFFER ARE NOT SATISFIED BY 5:00 P.M.,

NEW YORK CITY TIME, ON FEBRUARY 18, 2011

NEW YORK, NEW YORK, FEBRUARY 14, 2011 - Icahn Enterprises LP (NYSE: IEP) today announced that on February 10, 2011, FERC approval for the Icahn tender offer for Dynegy shares was received. The only significant remaining condition to the tender offer is the Minimum Condition, which requires that at least approximately 35% of the shares outstanding are tendered (which in addition to the approximately 15% of the outstanding shares already beneficially owned by Icahn would give Icahn 50% of the shares). Upon closing of the tender offer following satisfaction of such condition, payment will be made immediately.

History Concerning this Tender Offer

Since the announcement of the tender offer there have been a number of criticisms by Seneca, a New York based hedge fund, concerning our tender offer. These criticisms are very hard to understand.

Facts Leading Up To This Offer:

In August 2010, Dynegy was trading at $2.78. At that time Blackstone and the Company agreed to a merger at the price of $4.50 per share. Seneca criticized the Blackstone merger transaction as being far too low, and that in any event, the Company had failed to conduct a fair auction process. Further, Seneca correctly pointed out that Blackstone had many advantages in its merger agreement including a $50 million breakup fee and a right of first refusal. We studied the Blackstone transaction and Seneca’s criticisms and ultimately agreed with Seneca that if a fair auction process was held, higher and better bids would emerge.

During the pendency of the Blackstone transaction, the Company argued that there was an urgent need to merge with Blackstone because an imminent liquidity crisis could result in the Company defaulting under its credit facility and bonds. To obviate this claim and to defeat the Blackstone deal, we stated that if a fair auction process were conducted, we would be a bidder, and that if a liquidity crisis occurred during this period, we would provide the Company with financing. The Blackstone transaction was voted down and a bid was made by the Icahn group for $5.50 per share, which unlike the Blackstone transaction, had a breakup fee of $16 million as opposed to the $50 million Blackstone breakup fee, and the Icahn bid did not include a right of first refusal. Additionally Icahn agreed to support any offer above $5.50 if not topped.

In fairness to the Company, following the termination of the Blackstone transaction, the Company conducted an arduous and fair auction process that lasted almost two months. During this process, we kept our promise and made a bid for the Company at $5.50 per share. To our surprise, and we believe Seneca’s, there were no offers other than the Icahn group’s offer.

Since our transaction was announced, Seneca has argued against our transaction and stated that the Company should not be sold. But it is hard to understand their logic. What has changed at the Company since August when the stock was trading at $2.78 to support any thesis that the Company is today worth more than it was then? In fact, we believe that circumstances have actually worsened for the Company since last August. As the Company has stated, for every $1 reduction in natural gas prices there is a corresponding $165 million reduction in EBITDA with respect to the Company’s unhedged portfolio. Since last August natural gas prices have continued to drop. Further, the liquidity crisis that the Company previously identified must still be faced.

Seneca has told shareholders not to tender, but we have three questions for Seneca.

 

  1. Is Seneca going to stand by and provide financing if our deal is rejected and there is a liquidity problem?
  2. If the Company is so cheap, then where was Seneca last August when Dynegy was trading at $2.78, and what has changed since August to make the Company worth so much more today? In fact, natural gas prices have further decreased since that time.
  3. Finally, if Seneca believes the stock is so cheap even though it is now selling at a price 98% higher than its price in August, then why hasn’t Seneca made an any and all offer for the Company? The Company has asked them to do just that, but instead, Seneca has continuously asked the Company to lift the pill which might well give Seneca the opportunity, if the Icahn tender offer is terminated, to purchase stock at well less than $5.50 per share. Since Seneca already owns approximately 12% of the stock, they might in this scenario reach over 50% with no obligations to the minority shareholders.

Final Tender Offer Extension; Merger Agreement Amendment

Icahn and Dynegy have amended their merger agreement to provide for one final extension of the tender offer through 5:00 p.m., New York City time, on February 18, 2011. If the conditions to the tender offer have not been satisfied by that time – namely if 35% of the shares have not tendered -- then the tender offer will expire and the merger agreement will automatically terminate, allowing Dynegy to move forward to conduct its business on a stand-alone basis. No price increase or further extensions will be made.

If the tender offer is not successful, then IEP and its affiliates (collectively, “Icahn”) will consider their alternatives regarding their investment in Dynegy and may seek to discuss with Dynegy the potential for debt or equity financing. However, Icahn and Dynegy have no agreement, understanding or arrangement regarding any such discussions and Icahn has no agreement or obligation to provide or arrange for any financing for Dynegy. Icahn reserves the right to buy or sell interests in Dynegy securities or indebtedness.

American Stock Transfer & Trust Company, LLC, the depositary for the tender offer, has indicated that, as of 5:00 p.m., New York City time, on February 11, 2011, approximately 1,659,311 shares of Dynegy’s common stock had been validly tendered and not withdrawn pursuant to the tender offer, representing approximately 1.36% of the outstanding shares of Dynegy common stock. All other terms and conditions of the tender offer remain unchanged.

The Depositary for the tender offer is American Stock Transfer & Trust Company LLC, Reorganization Department, 6201 15th Avenue, Brooklyn, New York 11219. The Information Agent for the tender offer is Morrow & Co., LLC, 470 West Avenue, Stamford, CT 06902. The tender offer materials may be obtained at no charge by directing a request to Morrow & Co., LLC by mail at the address provided above or by calling toll-free (800) 607-0088 or (203) 658-9400, and may also be obtained at no charge at the website maintained by the SEC at www.sec.gov. Additionally, any questions related to the tender offer may be directed to Morrow & Co., LLC at the mailing address or telephone numbers provided above.

ABOUT ICAHN ENTERPRISES L.P.

Icahn Enterprises L.P. (NYSE: IEP), a master limited partnership, is a diversified holding company engaged in eight primary business segments: Investment Management, Automotive, Gaming, Railcar, Food Packaging, Metals, Real Estate and Home Fashion.

NOTICE TO INVESTORS

This press release is neither an offer to purchase nor a solicitation of an offer to sell securities. The offer to buy shares of Dynegy Inc. (the “Company”) common stock was made pursuant to an offer to purchase, as amended, and related materials that IEH Merger Sub LLC, (“Offeror”), an indirectly wholly owned subsidiary of Icahn Enterprises L.P., and Icahn Enterprises Holdings LP, as co-bidder, filed with the Securities and Exchange Commission (the “SEC”) on December 23, 2010. On December 23, 2010, the Offeror and co-bidder also filed a tender offer statement on Schedule TO, as amended, with the SEC, and on December 30, 2010, the Company filed a solicitation/recommendation statement on Schedule 14D-9, as amended, with respect to the offer. The tender offer statement (including an offer to purchase, a related letter of transmittal and other offer documents) and the solicitation/recommendation statement contain important information that should be read carefully and considered before any decision is made with respect to the tender offer. The tender offer materials were sent free of charge to all stockholders of the Company on or about December 22, 2010 and the solicitation/recommendation statement was sent free of charge to all stockholders of the Company on or about December 30, 2010.

All of these materials (and all other materials filed by the Offeror or the Company with the SEC) are available at no charge from the SEC through its website at www.sec.gov. Investors and security holders may also obtain free copies of the documents filed with the SEC by directing a request to Morrow & Co., LLC by mail to 470 West Avenue, Stamford, CT 06902 or by calling toll-free (800) 607-0088 or (203) 658-9400.

CONTACT:

Icahn Enterprises L.P.

Dominick Ragone, Chief Financial Officer

(646) 861-7500

EX-99.(D)(4) 3 dex99d4.htm AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER, DATED FEBRUARY 13, 2011 Amendment No. 1 to Agreement and Plan of Merger, dated February 13, 2011

Exhibit (d)(4)

 

 

 

AMENDMENT NO. 1

TO THE

AGREEMENT AND PLAN OF MERGER

among

DYNEGY INC.,

IEH MERGER SUB LLC

and

IEP MERGER SUB INC.

Dated as of February 13, 2011

 

 

 

This AMENDMENT NO. 1 TO THE AGREEMENT AND PLAN OF MERGER is dated as of February 13, 2011 (this “Amendment”), and is entered into among Dynegy Inc., a Delaware corporation (the “Company”), IEH Merger Sub LLC, a Delaware limited liability company (“Parent”), and IEP Merger Sub Inc., a Delaware corporation and a wholly owned subsidiary of Parent (“Merger Sub”). Capitalized terms used but not defined herein shall have the meanings ascribed to them in the Agreement and Plan of Merger, dated as of December 15, 2010, between the Company, Parent and Merger Sub (the “Merger Agreement”).

WHEREAS, the parties desire to amend the Merger Agreement so as to, among other things, provide for the extension of the Offer until February 18, 2011;

WHEREAS, the Board of Directors of the Company, acting upon the unanimous recommendation of the Special Committee, has, upon the terms and subject to the conditions set forth in the Merger Agreement as amended by this Amendment, unanimously (i) determined that the transactions contemplated by the Merger Agreement as amended by this Amendment, including the Offer and the Merger, are fair to, and in the best interests of the Company and its stockholders, (ii) approved and declared advisable the Merger Agreement as amended by this Amendment and the transactions contemplated thereby, including the Offer and the Merger, and (iii) recommended that the Company’s stockholders accept the Offer, tender their Shares to Parent in the Offer and, to the extent applicable, adopt the Merger Agreement as amended by this Amendment;

WHEREAS, each of the sole member of Parent and the Board of Directors of Merger Sub has, upon the terms and subject to the conditions set forth in the Merger Agreement as amended by this Amendment, unanimously (i) determined that the transactions contemplated by the Merger Agreement as amended by this Amendment, including the Offer and the Merger, are fair to, and in the best interests of it and its members or stockholders, as applicable, and (ii) approved and declared advisable the Merger Agreement as amended by this Amendment and the transactions contemplated thereby, including the Offer and the Merger;

WHEREAS, the parties have agreed to amend the Merger Agreement as provided in this Amendment;

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows:

1. Amendment of Section 1.1(d). Section 1.1(d) of the Merger Agreement is hereby amended by inserting the following sentence immediately after the fourth sentence of such Section:

“Notwithstanding the foregoing, so long as this Agreement has not been terminated pursuant to Article IX or the Offer has not been terminated pursuant to Section 1.1(f) (and subject to each party’s rights to terminate this Agreement pursuant to Article IX), prior to 9:00 a.m., New York City time, on February 14, 2011, Parent shall extend the Offer and the Expiration Date to 5:00 p.m., New York City time, on February 18, 2011 (such date and time, the “Offer End Date”) and Parent shall not extend the Offer or the Expiration Date beyond such time.”

2. Amendment of Section 1.1(f). Section 1.1(f) of the Merger Agreement is hereby amended by deleting the third sentence thereof in its entirety and replacing it with the following:

“A “Tender Termination” is a termination of this Agreement pursuant to Section 9.3(a) in connection with a Subsequent Transaction, Section 9.1(a), Section 9.1(b), Section 9.3(b), Section 9.3(c)(i), Section 9.3(d), Section 9.4(c) or Section 9.4(d).”

3. Amendment of Section 9.1. Section 9.1 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“9.1. Termination by Mutual Consent; Offer End Date. (a) This Agreement may be terminated and the Offer and the Merger may be abandoned at any time prior to the Effective Time, whether before or after the adoption of this Agreement by the stockholders of the Company referred to in Section 8.1(a), by mutual written consent of the Company and Parent by action of their respective boards of directors or

(b) this Agreement shall automatically terminate if the Tender Offer Conditions shall not have been satisfied or earlier waived (provided that neither the Company nor Parent shall have any obligation to waive any Tender Offer Conditions) by the Offer End Date.”

4. Amendment of Section 9.5(b)(i). Section 9.5(b)(i) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(i) (x) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 9.2(a) (the section relating to the Termination Date), Section 9.2(b) (the section relating to failure to receive stockholder approval) or Section 9.1(b) (the section relating to the Offer End Date) and (y) within eighteen (18) months of such termination the Company shall have consummated an Acquisition Proposal (provided that for purposes of this clause (y) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”) as a result of which the holders of Shares shall be entitled to receive, either directly or indirectly, consideration (whether cash or otherwise) having an aggregate value of more than $5.50 per Share”

5. Amendment of Section 9.5(b)(iv). Section 9.5(b)(iv) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(iv) (x) (A) before obtaining the Company Requisite Vote, this Agreement is terminated pursuant to Section 9.2(a) (the section relating to the Termination Date), or Section 9.2(b) (the section relating to failure to receive stockholder approval) or (B) this Agreement is terminated pursuant to Section 9.1(b) (the section relating to the Offer End Date), (y) any Person shall have made or publicly announced a bona fide Acquisition Proposal after the date of this Agreement but prior to such termination, and such Acquisition Proposal shall not have been publicly withdrawn without qualification in a manner that would reasonably be expected to adversely affect (A) in the case of a termination referred to in clause (x)(A) of this Section 9.5(b)(iv), the receipt of the Company Requisite Vote in any material respect at least ten (10)

calendar days prior to, with respect to Section 9.2(a), the date of termination, or at least five (5) business days prior to, with respect to a termination pursuant to Section 9.2(b), the Stockholders Meeting or (B) in the case of a termination referred to in clause (x)(B) of this Section 9.5(b)(iv), the satisfaction of the Minimum Condition in any material respect at least two (2) business days prior to the Offer End Date and (z) within eighteen (18) months of such termination the Company shall have consummated an Acquisition Proposal (whether or not such Acquisition Proposal is the same Acquisition Proposal referred to in clause (y) of this Section 9.5(b)(iv)) (provided that for purposes of this clause (z) the references to “20%” in the definition of “Acquisition Proposal” shall be deemed to be references to “50%”)”

6. Amendment of Section 9.5(c). Section 9.5(c) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“(c) In the event of termination of this Agreement (i) pursuant to Section 9.1(b), (ii) by either party pursuant to 9.2(b) (or a termination by the Company pursuant to a different section of Section 9.2 at a time when this Agreement was terminable pursuant to Section 9.2(b)) or (iii) by Parent pursuant to Section 9.4(b), then the Company shall promptly, but in no event later than three (3) business days after being notified of such by Parent pay Merger Sub or its designee in respect of expenses incurred by Parent, Merger Sub and their respective Affiliates in connection with this Agreement and the transactions contemplated by this Agreement and as consideration for entering into this Agreement an amount equal to $5 million (the “Parent Expenses”) by wire transfer of same day funds.”

7. Amendment of Section 10.1. Section 10.1 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:

“This Article X and the agreements of the Company, Parent and Merger Sub contained in Article V and Sections 7.9 (Employee Benefits), 7.10 (Expenses), 7.11 (Indemnification; Directors’ and Officers’ Insurance) and 7.19 (Confidentiality) shall survive the consummation of the Merger. This Article X and the agreements of the Company, Parent and Merger Sub contained in Section 1.1(f) (Offer Termination), Section 1.1(h) (Continuation of the Offer), the last sentence of Section 1.2(b) (Stockholder Information), Section 7.10 (Expenses), clauses (g) and (h) of Section 7.5 (Filings; Reasonable Best Efforts; Other Actions; Notification), Section 7.12 (Takeover Statutes), Section 7.13 (Parent Vote); clauses (b) and (d) of Section 7.19 (Confidentiality); Section 7.21 (Rights Plan) and Section 9.5 (Effect of Termination and Abandonment) shall survive the termination of this Agreement. All other representations, warranties, covenants and agreements in this Agreement shall not survive the consummation of the Merger or the termination of this Agreement.”

8. Additional Representations of the Company. The Company hereby represents and warrants to Merger Sub and Parent as follows:

Authority Relative to Amendment. The Company has all necessary corporate power and authority to execute and deliver this Amendment, and, subject only to, assuming the representations and warranties of Parent and Merger Sub set forth in Section 6.2(h) of the Merger Agreement are true and correct, adoption of this

Agreement by the Company Requisite Vote, to perform its obligations hereunder. The execution and delivery of this Amendment by the Company have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company are necessary to authorize the execution and delivery of this Amendment. This Amendment has been duly and validly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Merger Sub and Parent, this Amendment constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Bankruptcy and Equity Exception.

9. Additional Representations of Parent and Merger Sub. Parent and Merger Sub each hereby represent to the Company as follows:

Authority Relative to Amendment. No vote of holders of capital stock or membership interests of Parent is necessary to approve this Amendment or the other transactions contemplated hereby. Parent and Merger Sub have all necessary power and authority to execute and deliver this Amendment, and to perform their respective obligations hereunder. The execution and delivery of this Amendment by Parent and Merger Sub have been duly and validly authorized by all necessary corporate or similar action on the part of Parent and Merger Sub, and no other corporate or similar proceedings on the part of Parent or Merger Sub are necessary to authorize the execution and delivery of this Amendment. This Amendment has been duly and validly executed and delivered by Parent and Merger Sub and, assuming the due authorization, execution and delivery by the Company, this Amendment constitutes a legal, valid and binding obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub in accordance with its terms, subject to the Bankruptcy and Equity Exception.

10. References to the Merger Agreement. After giving effect to this Amendment, each reference in the Merger Agreement to “this Agreement”, “hereof”, “hereunder”, “herein” or words of like import referring to the Merger Agreement shall refer to the Merger Agreement as amended by this Amendment and all references in the Company Disclosure Letter and the Parent Disclosure Letter (together, the “Disclosure Schedules”) to “the Agreement” and “the Merger Agreement” shall refer to the Merger Agreement as amended by this Amendment.

11. Construction. Except as expressly provided in this Amendment, all references in the Merger Agreement and the Disclosure Schedules to “the date hereof” and “the date of this Agreement” shall refer to December 15, 2010.

12. Other Miscellaneous Terms. The provisions of Article X (Miscellaneous and General) of the Merger Agreement shall apply mutatis mutandis to this Amendment, and to the Merger Agreement as modified by this Amendment, taken together as a single agreement, reflecting the terms therein as modified hereby.

13. No Further Amendment. Except as amended hereby, the Merger Agreement shall remain in full force and effect.

[Signatures Appear on the Following Pages]

IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first written above.

 

DYNEGY INC.
By      

 

  Name:
  Title:
IEH MERGER SUB LLC
By  

 

  Name:
  Title:
IEP MERGER SUB INC.
By  

 

  Name:
  Title:
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