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. 6)
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. 6 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"), and as further amended by the Amendment No. 5 to
the Schedule TO, dated February 2, 2011(the "Fifth Amendment," and together
with the First Amendment, the Second Amendment, the Third Amendment, the Fourth
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 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 14, 2011, unless further extended or earlier
terminated. The Offer, which was previously scheduled to expire at 5:00 p.m.,
New York City time, on February 9, 2011, was extended in accordance with the
Merger Agreement because, as of 5:00 p.m., New York City time, on, February 9,
2011, certain conditions to the Offer were not satisfied, including receipt of
the approval of the Federal Energy Regulatory Commission under Section 203 of
the Federal Power Act, as amended. The Depositary has indicated that, as of 5:00
p.m., New York City time, on February 9, 2011, approximately 5,390,323 Shares
had been validly tendered and not withdrawn pursuant to the Offer, representing
approximately 4.41% of the outstanding Shares."
The press release announcing the extension of the Offer is attached hereto
as Exhibit (a)(5)(iv).
ITEM 12.
Item 12 of the Schedule TO is hereby amended and supplemented as follows:
(a)(5)(v) Press Release issued by Icahn Enterprises LP, dated
February 10, 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 10, 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) Press Release of Icahn Enterprises L.P., dated February 10, 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)(v)
ICAHN ENTERPRISES LP EXTENDS TENDER OFFER TO ACQUIRE DYNEGY INC.
TO ALLOW TIME FOR FERC APPROVAL
NEW YORK, NEW YORK, FEBRUARY 10, 2011 - To allow additional time for FERC
approval, Icahn Enterprises LP (NYSE: IEP) today announced that its wholly-owned
subsidiary, IEH Merger Sub LLC, has extended the expiration date of its
previously announced tender offer for all outstanding shares of common stock,
including the associated rights, of Dynegy Inc. (NYSE: DYN) for $5.50 per share
in cash, without interest and less any applicable withholding taxes, until 5:00
p.m., New York City time, on February 14, 2011, unless further extended or
earlier terminated. The tender offer was previously scheduled to expire at 5:00
p.m., New York City time, on Wednesday, February 9, 2011. All other terms and
conditions of the tender offer remain unchanged.
On December 22, 2010, IEH Merger Sub commenced the tender offer for shares of
Dynegy common stock in accordance with the merger agreement with Dynegy. The
tender offer is being extended because certain conditions to the tender offer
have not been satisfied as of the previously scheduled expiration date,
including receipt of the approval of the Federal Energy Regulatory Commission
under Section 203 of the Federal Power Act, as amended.
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 9,
2011, approximately 5,390,323 shares of Dynegy's common stock had been validly
tendered and not withdrawn pursuant to the tender offer, representing
approximately 4.41% of the outstanding shares of Dynegy common stock.
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