SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. 7)*
Dynegy Inc.
(Name of Issuer)
Common Stock, Par Value $0.01
(Title of Class of Securities)
26817G300
(CUSIP Number)
Keith L. Schaitkin
Icahn Capital LP
767 Fifth Avenue, 47th Floor
New York, New York 10153
(212) 702-4300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
March 9, 2011
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box / /.
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7 for other parties
to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
SCHEDULE 13D
Item 1. Security and Issuer
The Schedule 13D filed with the Securities and Exchange Commission on
October 8, 2010 by the Reporting Persons (the "Schedule 13D") with respect to
the shares of Common Stock, par value $0.01 (the "Shares"), issued by Dynegy
Inc. (the "Issuer") and as amended by Amendment Number One, Amendment Number
Two, Amendment Number Three, Amendment Number Four, Amendment Number Five and
Amendment Number Six, is hereby further amended to furnish the additional
information set forth herein. All capitalized terms contained herein but not
otherwise defined shall have the meanings ascribed to such terms in the Schedule
13D.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Item 6 of the Schedule 13D is amended by adding the following:
On March 8, 2011, the Reporting Persons entered into a letter agreement
with the Issuer pursuant to which the Issuer waived Section 203 of the Delaware
General Corporation Law in order to allow the Reporting Persons to own and
acquire voting stock of the Issuer up to, but not exceeding, 19.99999% of the
outstanding voting stock of Dynegy.
Item 7. Material to be Filed as Exhibits.
Item 7 of the Schedule 13D is amended by adding the following:
Exhibit I Letter Agreement between the Issuer and the Reporting Persons
SIGNATURE
After reasonable inquiry and to the best of each of the undersigned
knowledge and belief, each of the undersigned certifies that the information set
forth in this statement is true, complete and correct.
Dated: March 9, 2011
ICAHN PARTNERS MASTER FUND LP
ICAHN PARTNERS MASTER FUND II LP
ICAHN PARTNERS MASTER FUND III LP
ICAHN OFFSHORE LP
ICAHN PARTNERS LP
ICAHN ONSHORE LP
BECKTON CORP.
HOPPER INVESTMENTS LLC
BARBERRY CORP.
HIGH RIVER LIMITED PARTNERSHIP
By: Hopper Investments LLC, general partner
By: /s/ Edward E. Mattner
------------------------
Name: Edward E. Mattner
Title: Authorized Signatory
ICAHN CAPITAL LP
By: IPH GP LLC, its general partner
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
IPH GP LLC
By: Icahn Enterprises Holdings L.P., its sole member
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises G.P. Inc., its general partner
ICAHN ENTERPRISES G.P. INC.
By: /s/ Daniel Ninivaggi
--------------------
Name: Daniel Ninivaggi
Title: President
/s/ Carl C. Icahn
--------------------
CARL C. ICAHN
[Signature Page of Schedule 13D Amendment No. 7 - Dynegy Inc.]
EXHIBIT I
CONFIDENTIAL
[Dynegy Letterhead]
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
c/o Icahn Enterprises Holdings L.P.
767 Fifth Avenue, 47th Floor
New York, NY 10153
Attention: Deputy General Counsel
March 8, 2011
Dear Ladies and Gentlemen:
This letter agreement (this "Agreement") is made by and among 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 (the foregoing individuals and entities being collectively referred to
herein as "Icahn" and each individually as a "Member"), and Dynegy Inc., a
Delaware corporation ("Dynegy").
1. Section 203 of the DGCL.
Dynegy hereby represents and warrants that the Board of Directors of
Dynegy (the "Board") has approved, for the purposes of Section 203 of
the Delaware General Corporation Law ("DGCL"), from and after the date
hereof, the Members collectively owning (as such term is defined under
Section 203 of the DGCL) and acquiring voting stock of Dynegy in open
market purchases, private transactions, the purchase or exercise of
options, a tender offer or otherwise, up to, but not exceeding,
19.99999 percent of the outstanding voting stock of Dynegy (the
"Ownership Threshold"), and subject to such limitation, becoming an
"interested stockholder" for purposes of Section 203 of the DGCL, and
entering into and becoming bound by this Agreement (such approval,
together with this Agreement, the "203 Waiver"). Dynegy further
acknowledges and irrevocably agrees that the 203 Waiver includes the
approval of the Board that Dynegy and the Board shall not, and Dynegy
and the Board agree that they shall not, at any time reduce or
otherwise modify the 203 Waiver, including but not limited to the
Ownership Threshold, without the Members' prior written consent. The
Members acknowledge that the 203 Waiver is limited as set forth in
this Section 1 and is effective only to the extent of such limitation.
2. Representations and Warranties.
a) Each Member, on behalf of himself or itself, as applicable,
represents and warrants that (i) each Member has the power and
authority to execute, deliver and carry out the terms and provisions
of this Agreement and to consummate the transactions contemplated
hereby, and (ii) this Agreement has been duly and validly authorized,
executed and delivered by each Member, constitutes a valid and binding
obligation and agreement of each Member and is enforceable against
each Member in accordance with its terms.
b) Dynegy hereby represents and warrants that (i) it has the
power and authority to execute, deliver and carry out the terms and
provisions of this Agreement and to consummate the transactions
contemplated hereby, and (ii) this Agreement has been duly and validly
authorized, executed and delivered by Dynegy, constitutes a valid and
binding obligation and agreement of Dynegy and is enforceable against
Dynegy in accordance with its terms.
3. Notice. Any notice, request, instruction or other document to be given
hereunder by any party to the others shall be in writing and delivered
personally or sent by registered or certified mail, postage prepaid, by
facsimile or by overnight courier:
if to Icahn or any Member:
c/o Icahn Enterprises Holdings L.P.
767 Fifth Avenue, 47th Floor
New York, New York 10153
Attention: Deputy General Counsel
Fax.: (212) 688-1158
if to Dynegy to:
Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, TX 77002
Attention: General Counsel
Fax: (713) 356-2185
with a copy to:
Sullivan & Cromwell LLP
125 Broad Street
New York, NY 10004
Attention: Joseph B. Frumkin
Krishna Veeraraghavan
Fax: (212) 558-3588
or to such other persons or addresses as may be designated in writing by
the party to receive such notice as provided above. Any notice, request,
instruction or other document given as provided above shall be deemed given
to the receiving party upon actual receipt, if delivered personally; three
(3) business days after deposit in the mail, if sent by registered or
certified mail; upon confirmation of successful transmission if sent by
facsimile and received by 5:00 p.m. New York time on a business day
(otherwise the next business day) (provided that if given by facsimile such
notice, request, instruction or other document shall be followed up within
one (1) business day by dispatch pursuant to one of the other methods
described herein); or on the next business day after deposit with an
overnight courier, if sent by an overnight courier.
4. Assignment. This Agreement shall not be assignable by operation of law
or otherwise by a party without the consent of the other party. Subject to
the foregoing sentence, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by and against the successors and assigns of
each party to this Agreement.
5. Amendment; Counterparts. Any amendment or modification of the terms and
conditions set forth herein or any waiver of such terms and conditions must
be agreed to in a writing signed by each party hereto. This Agreement may
be executed in counterparts, each of which will be deemed an original, but
all of which together will constitute one and the same agreement.
Signatures to this Agreement transmitted by facsimile transmission, by
electronic mail in "portable document format" (".pdf") form, or by any
other electronic means intended to preserve the original graphic and
pictorial appearance of a document, will have the same effect as physical
delivery of the paper document bearing the original signature.
6. Waiver. Neither the failure nor any delay by a party in exercising any
right, power or privilege under this Agreement will operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any right, power or
privilege hereunder.
7. No Third Party Beneficiaries. This Agreement is solely for the benefit
of the parties hereto and is not enforceable by any other persons.
8. Entire Agreement. This Agreement contains the entire agreement and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof and thereof.
9. Remedies. The parties to this Agreement agree that irreparable damage
would occur if any provision of this Agreement were not strictly performed
in accordance with its terms and that each party to this Agreement shall be
entitled to an injunction to prevent breaches of this Agreement and to
enforce specifically the performance of the provisions hereof in the Court
of Chancery of the State of Delaware, in addition to any other remedy to
which any party may be entitled at law or in equity.
10. Jurisdiction. The parties to this Agreement agree that any suit, action
or proceeding to enforce any provision of, or based on any matter arising
out of or in connection with, this Agreement may be brought only in the
Court of Chancery of the State of Delaware or a federal court located in
Delaware, and each party irrevocably consents to the jurisdiction of such
courts (and of the appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives any objection it may now or hereafter
have to the laying of venue of any such suit, action or proceeding in any
such court or that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without giving effect to
any conflict of law rules that would otherwise cause the application of the
laws of any other state.
Please acknowledge your agreement and acceptance of the foregoing by
countersigning this letter in the space provided below.
Agreed and accepted:
DYNEGY INC.
By: ________________________________
Name:
Title:
Accepted and agreed:
IEH MERGER SUB LLC ICAHN ENTERPRISES HOLDINGS L.P.
By: Icahn Enterprises Holdings L.P., By: Icahn Enterprises G.P. Inc.,
Its Sole Member Its General Partner
By: Icahn Enterprises G.P. Inc.,
Its General Partner
By: ______________________________ By: ___________________________________
Name: Name:
Title: Title:
IEP MERGER SUB INC. ICAHN PARTNERS LP
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
ICAHN PARTNERS MASTER FUND LP ICAHN PARTNERS MASTER FUND II LP
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
ICAHN PARTNERS MASTER FUND III LP BARBERRY CORP.
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
HIGH RIVER LIMITED PARTNERSHIP HOPPER INVESTMENTS LLC
By: Hopper Investments LLC, By: Barberry Corp., Its Sole Member
Its General Partner
By: Barberry Corp., Its Sole Member
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
ICAHN ONSHORE LP ICAHN OFFSHORE LP
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
ICAHN CAPITAL LP IPH GP LLC
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
ICAHN ENTERPRISES L.P. ICAHN ENTERPRISES G.P. INC.
By: Icahn Enterprises G.P. Inc.,
Its General Partner
By: _____________________________ By: ___________________________________
Name: Name:
Title: Title:
BECKTON CORP.
By: _____________________________ ________________________________________
Name: CARL C. ICAHN
Title: