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. 5)
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 Holdings L.P.
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. 5 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 amended by the Amendment No. 3 to
the Schedule TO, dated January 20, 2011(the "Third Amendment") and as amended by
the Amendment No. 4 to the Schedule TO, dated January 26, 2011(the "Fourth
Amendment" and together with the First Amendment, the Second Amendment, the
Third 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 12.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
(a)(5)(iv) Article Written by Carl C. Icahn published in the New York Post,
January 30, 2011.
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 2, 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 (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 Guarantee, dated as of December 15, 2010*
(g) None.
(h) None.
__________________
* Previously Filed
EXHIBIT (a)(5)(iv)
PUBLISHED IN THE NEW YORK POST, JANUARY 30, 2011
GETTING ACTIVE
By CARL ICAHN
Sunday's article in The New York Post basically concludes that while I purport
to be the shareholder's friend, l have not helped them at all.
However, the facts plainly show that this is not even remotely true.
Let us examine how, over the last decade, shareholders have benefited as a
result of my taking sizeable positions and pressing for performance
improvements. During this period, we were strong activists in well over 20
companies with an equity capitalization of between $500 million and $20 billion
in which we purchased a large amount of stock.
If investors had purchased these stocks when we did and sold when we did, even
with factoring in some losing investments, they would have realized a net
annualized return of 23.44 percent -- compared to a return of 1 percent if they
made the same investment over the same time period in the S&P 500 Index.
Additionally, the stock value of these companies increased by approximately $44
billion over the same period, obviously benefiting all shareholders. These
companies included such well-known names as Biogen, Genzyme, Blockbuster, CIT,
Korean Tobacco, Kerr-McGee, ImClone and Amylin.
Furthermore, we also invested in a number of distressed bonds during this period
and were actively involved in restructuring the indebted companies. Although all
bondholders greatly benefited from our activities, these results were not
factored into the above calculations of net return.
The article in Sunday's Post completely omitted the great benefits to
shareholders outlined above. Instead it focused on four examples where I
allegedly took advantage of shareholders:
* DYNEGY: Recently we opposed a $4.50 per-share bid for Dynegy made by
Blackstone. Seneca Capital, a New York hedge fund, asserted that the auction
process awarding Blackstone the company was totally unfair and made it almost
impossible for any other bids to materialize -- because Blackstone would have a
right of first refusal.
Furthermore, Blackstone would receive a $50 million breakup fee if another bid
was accepted. I told shareholders that they should vote against Blackstone's
offer and that a new and fair auction process should be initiated. In the new
process, I promised to make a "stalking horse bid" with a breakup fee of $35
million less than Blackstone's breakup fee with no right of first refusal.
In addition, I offered to pay 22 percent more than Blackstone's original bid.
For some reason that I cannot fathom, The Post is saying I somehow took
advantage of Dynegy by keeping my promise and making a higher offer.
* BLOCKBUSTER: Even more ridiculous is a lawsuit that The Post quotes, stating
that soon after I left the board of Blockbuster, I purchased Blockbuster bonds
on the cheap, knowing it would go into bankruptcy. With all due respect, I do
not believe The Post should be quoting unfounded malicious allegations filed in
an absurd complaint.
I left the Blockbuster board in January and did not purchase Blockbuster bonds
until August, when it was already publicly known that Blockbuster might go
bankrupt, since they had entered into "forbearance agreements" with creditors
(copies of which were filed with the SEC) because they could not make the
required interest payments.
* LIONSGATE: The specious allegations regarding supposed secret plans involving
MGM and Lionsgate are a complete fabrication, invented to justify meritless
litigation by Lionsgate to throw roadblocks in the way of our campaign to
improve the company's dismal performance. Accordingly, we have filed a motion,
still pending, to dismiss Lionsgate's complaint.
* XO COMMUNICATIONS: The Post has repeated certain negative statements made by
Geoffrey Raynor, a shareholder of XO, a company which I control. He purchased XO
approximately seven years ago at $5 per share and obviously has a large loss. In
fact, since the time of his purchase, I have had to invest substantial
additional funds into XO in order to keep its business alive, during a period in
which small telecommunication companies have fared very badly.
As a result, I now have just under $l billion of preferred stock. Raynor, like
other large holders, was offered opportunities to invest with me. He declined to
do so, choosing instead to bring lawsuits against me rather than face up to the
fact that he has made a very poor investment.
In recent years, Raynor has also brought numerous lawsuits against others in
connection with other investments he has made. Raynor also argues that I could
have sold the company. This is entirely false. We hired investment bankers and
tried for two years to sell and never got a firm cash offer.
To sum up, I believe it is a truism that "activism," if done properly, enhances
value for all shareholders.
The reason activism is so profitable is not because of the genius of activists
but, sadly, because many companies in our country have managers that are not
held accountable and are often doing a poor job.
Additionally, many companies would be more efficient if they were consolidated
with other synergistic companies. However, too many managements and boards would
rather entrench themselves than take these actions.
Unfortunately, if we do not do something soon about increasing the efficiencies
of our corporations, our country will continue to lose its edge in competing in
the global economy and unemployment will continue to grow.