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. 3)
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
Holdings L.P.
Form or registration no.: Schedule TO Date Filed: 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
/ / going-private transaction subject to Rule 13e-3
/ / issuer tender offer subject to Rule 13e-4
/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. 3 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") and as further amended by the Amendment No. 2 to the Schedule TO,
dated January 6, 2011 (the "Second Amendment", and together with the First
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").
ITEM 11. ADDITIONAL INFORMATION.
Item 11 of the Schedule TO, and the Offer to Purchase, to the extent
incorporated by reference therein, are hereby amended and supplemented as set
forth below.
The second paragraph in the subsection titled "Regulatory" in Section16 -
"Certain Legal Matters" of the Offer to Purchase is amended and supplemented to
include the following new sentence at the end of such paragraph:
"At the January 20, 2011 Session of the New York Public Service Commission
("NYPSC"), NYPSC granted authorization for the proposed transaction between
Dynegy and an affiliate of Icahn Enterprises LP. A written ruling to that effect
is expected to be issued by NYPSC in due course."
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 E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND II LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN PARTNERS MASTER FUND III LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
HIGH RIVER LIMITED PARTNERSHIP
BY: HOPPER INVESTMENTS LLC, ITS
GENERAL PARTNER
BY: BARBERRY CORP., ITS SOLE
MEMBER
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
HOPPER INVESTMENTS LLC
BY: BARBERRY CORP., ITS SOLE
MEMBER
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
BARBERRY CORP.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN ONSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN OFFSHORE LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
BECKTON CORP.
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. Mattner
Title: Authorized Signatory
IPH GP LLC
By: /s/ Edward E. Mattner
---------------------
Name: Edward E. 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: January 20, 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)*
(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) Guarantee, dated as of December 15, 2010*
(g) None.
(h) None.
__________________
* Previously Filed