Attached files
| file | filename |
|---|---|
| EX-4.2 - EXHIBIT 4.2 - DYNEGY HOLDINGS, LLC | ex4_2.htm |
| EX-99.1 - EXHIBIT 99.1 - DYNEGY HOLDINGS, LLC | ex99_1.htm |
| EX-10.1 - EXHIBIT 10.1 - DYNEGY HOLDINGS, LLC | ex10_1.htm |
| EX-99.2 - EXHIBIT 99.2 - DYNEGY HOLDINGS, LLC | ex99_2.htm |
| EX-4.1 - EXHIBIT 4.1 - DYNEGY HOLDINGS, LLC | ex4_1.htm |
| EX-2.1 - EXHIBIT 2.1 - DYNEGY HOLDINGS, LLC | ex2_1.htm |
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date
of Report (Date of earliest event reported)
December
1, 2009 (November 25, 2009)
DYNEGY
INC.
DYNEGY
HOLDINGS INC.
(Exact
name of registrant as specified in its charter)
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Delaware
Delaware
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001-33443
000-29311
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20-5653152
94-3248415
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(State or
Other Jurisdiction of
Incorporation)
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(Commission
File Number)
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(I.R.S.
Employer Identification
No.)
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1000
Louisiana, Suite 5800, Houston, Texas
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77002
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(Address
of principal executive offices)
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(Zip
Code)
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(713)
507-6400
(Registrant’s
telephone number, including area code)
N.A.
(Former
name or former address, if changed since last report)
Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions:
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£
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Written communications pursuant
to Rule 425 under the Securities Act (17 CFR
230.425)
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£
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Soliciting material pursuant to
Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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£
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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£
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Pre-commencement communications
pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Item
1.01
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Entry
into a Material Definitive
Agreement.
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The
information set forth in Item 2.01 regarding the Notes, the Fifth Supplemental
Indenture, the Notes Registration Rights Agreement, and Amendment No.1
(each as defined below) is incorporated herein by reference.
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Item
1.02
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Termination
of a Material Definitive Agreement
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The
information regarding the termination of the Old Shareholder Agreement (as
defined below) and the Corporate Opportunity Agreement (as defined below) set
forth under Item 2.01 is incorporated herein by reference.
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Item
2.01
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Completion
of Acquisition or Disposition of
Assets
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Transaction
with LS Power and Affiliates
On
November 25, 2009, the Purchase and Sale Agreement by and between Dynegy Inc.
("Dynegy"), Dynegy Holdings Inc. ("DHI"), and certain other affiliates
(collectively, "we", "us", "our", and "ours") and LS Power Partners, L.P. and
certain of its affiliates ("LS Power"), originally executed on August 9, 2009
and filed on a Current Report on Form 8-K on August 13, 2009, was amended
("Amendment No. 1"). Amendment No. 1 provides, in part, for closing
of the transaction on November 30, 2009 and the extinguishment of certain
indemnity and other claims by LS Power resulting from or arising out of
specified events, in exchange for a working capital adjustment in favor of LS
Power of $45 million. Amendment No. 1 is attached hereto as Exhibit
2.01 and is incorporated herein by reference.
On
December 1, 2009, Dynegy issued a press release announcing the completion of the
previously announced transaction with LS Power. The press release is
attached hereto as Exhibit 99.2.
At
closing, (i) Dynegy sold to LS Power its ownership interests in: Dynegy
Arlington Valley, LLC; Griffith Energy LLC; Bridgeport Energy LLC; Rocky Road
Power, LLC; Tilton Energy LLC; Riverside Generating Company, LLC; Bluegrass
Generation Company, L.L.C.; Renaissance Power, L.L.C.; Sandy Creek Services,
LLC; and Dynegy Sandy Creek Holdings, LLC (collectively, the “Ownership
Interests”), and (ii) on December 1, 2009, DHI issued toAdio Bond, LLC, an
affiliate of LS Power (“Adio Bond”), $235 million aggregate principal amount of
its 7.5 percent Senior Unsecured Notes due 2015 (the “Notes”).
In
exchange for the Ownership Interests and the Notes, we received at closing
approximately $970 million in cash (consisting, in part, of the release of $175
million of restricted cash on our unaudited condensed consolidated balance
sheets that was used to support our funding commitment to Sandy Creek and
approximately $200 million for the Notes), subject to further working capital
adjustments, and 245 million shares of Dynegy’s Class B common
stock. The remaining 95 million shares of Dynegy’s Class B common
stock held by LS Power converted at closing to the same number of shares of
Dynegy’s Class A common stock, thereby eliminating Dynegy’s dual class common
stock structure. We intend to use the proceeds from the transaction to
retire or purchase a portion of our outstanding debt, with a focus on near-term
maturities.
Notes
and Related Registration Rights Agreement
As
part of the closing as noted above, DHI issued the Notes to Adio Bond
on December 1, 2009. The terms and conditions of the Notes are
substantially identical to DHI’s previously issued 7.5 percent Senior Unsecured
Notes due 2015. The Notes were issued under a senior debt indenture, dated
as of September 26, 1996, as amended and restated as of March 23, 1998 and again
as of March 14, 2001, entered into between DHI and Wilmington Trust Company (as
successor to JPMorgan Chase Bank, N.A., successor to Bank One Trust Company,
N.A.), as trustee, as supplemented by a Fifth Supplemental Indenture dated as of
December 1, 2009 (the “Fifth Supplemental Indenture”).
The Notes
will mature on June 1, 2015. Interest on the Notes will accrue at a
rate of 7.5 percent per annum and will be payable semi-annually in arrears on
June 1st and December 1st of each year, beginning on June 1,
2010. The Notes include customary covenants and events of
default. The Notes are DHI’s senior unsecured obligations and rank equal
in right of payment to all of DHI’s existing and future senior unsecured
indebtedness, and are senior to all of DHI’s existing, and any of its future,
subordinated indebtedness. DHI’s secured debt and its other secured
obligations are effectively senior to the Notes to the extent of the value of
the assets securing such debt or other obligations. Neither Dynegy
nor any of DHI’s subsidiaries have guaranteed the Notes and, as a result, all of
the existing and future liabilities of DHI’s subsidiaries are effectively senior
to the Notes. The Notes have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”).
1
Adio Bond
may resell the Notes in private transactions in conformity with Rule 144A or
pursuant to another applicable exemption from the registration requirements of
the Securities Act. In connection with the issuance of the Notes, DHI
entered into a registration rights agreement with Adio Bond (the “Notes
Registration Rights Agreement”) pursuant to which DHI has agreed to offer to
exchange the Notes for a new issue of substantially identical notes registered
under the Securities Act.In addition, we have agreed not to sell or purchase any
of our debt during the 5 business day period that follows: (i) the closing date,
and (ii) LS Power’s request to conduct an underwritten resale. We
have agreed to provide specified materials and support with respect to resales
of the Notes, including up to two underwritten offerings and up to three
“dribble-out” resales, each of not less than $25 million in principal amount of
the Notes.
Shareholder
Agreements
In
connection with the conversion of LS Power’s remaining Class B common stock into
shares of Class A common stock, Mikhail Segal, Frank E. Hardenbergh and James T.
Bartlett resigned from their positions as Class B directors of Dynegy and LS
Power’s special approval rights, board representation, auction rights and
certain other rights associated with the former Class B common shares were
eliminated. Upon closing the transaction, the new shareholder
agreement executed by Dynegy and LS Power on August 9, 2009, and filed as an
exhibit to the Current Report on Form 8-K filed on August 13, 2009 (the “New
Shareholder Agreement”), became effective, thereby terminating the previous
shareholder agreement dated September 14, 2006 (the “Old Shareholder
Agreement”). The New Shareholder Agreement limits the acquisition and
transfer by LS Power of Dynegy’s Class A common stock. The New
Shareholder Agreement further provides that Dynegy cannot issue its equity
securities for its own purposes until the earlier of (i) 121 days following
the closing of the transaction with LS Power, or (ii) the first date on
which LS Power owns less than 10 percent of Dynegy’s then outstanding Class A
common stock.
Corporate
Opportunity Agreement
Upon
closing of the transaction, the Corporate Opportunity Agreement dated September
14, 2006, between Dynegy and LS Power (the “Corporate Opportunity Agreement”),
was terminated. It provided, in part, that we would inform the Class
B shareholders of certain potential opportunities to acquire operating
electrical power generating assets.
Material
Relationships
We have
certain material relationships with LS Power and its affiliates, all of which
are described in our Form 10-K for the year ended December 31, 2008, as
supplemented by our Current Report on Form 8-K at Exhibit 99.1 as filed on
November 5, 2009, which descriptions are hereby incorporated by reference into
this Item 2.01.
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Item
2.03
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Creation
of a Direct Financial Obligation or an Obligation under an Off-Balance
Sheet Arrangement of a Registrant.
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The
information set forth in Item 2.01 regarding the Notes, the Fifth Supplemental
Indenture and the Notes Registration Rights Agreement is incorporated herein by
reference.
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Item
3.02
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Unregistered
Sales of Equity Securities.
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The
information set forth in Item 2.01 regarding the conversion of Class B shares
held by LS Power to Class A shares held by LS Power is incorporated herein by
reference.
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Item
3.03
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Material
Modification to Rights of Security
Holders.
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The
information set forth in Item 2.01 above regarding the Old Shareholder Agreement
and New Shareholder Agreement is incorporated herein by reference.
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Item
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of
Certain Officers; Compensatory Arrangements of Certain
Officers.
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The information set forth in Item 2.01 regarding
the resignation of (i) Mikhail Segal, (ii) Frank E. Hardenbergh and (iii) James
T. Bartlett as Class B directors as of the closing is incorporated herein by
reference.
2
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Item
7.01
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Regulation
FD Disclosure
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A copy of
the press release announcing the closing of the transaction is being furnished
as Exhibit 99.2 and is herein incorporated by reference.
Pursuant
to General Instruction B.2 of Form 8-K and Securities and Exchange Commission
Release No. 33-8176, the information contained in the press release furnished as
an exhibit hereto shall not be deemed “filed” for purposes of Section 18 of the
Securities Exchange Act of 1934, as amended, is not subject to the liabilities
of that section and is not deemed incorporated by reference in any filing under
the Securities Act except as shall be expressly set forth by specific reference
in such filings. In addition, this Form 8-K and the press release
contain statements intended as “forward-looking statements,” which are subject
to the cautionary statements about forward-looking statements set forth in such
press release.
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Item
9.01
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Financial
Statements and Exhibits.
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(b)
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Unaudited
pro forma condensed consolidated financial statements of Dynegy Inc. and
Dynegy HoldingsInc. are attached hereto as Exhibit 99.1and are
incorporated herein by reference.
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(d)
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Exhibits:
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Exhibit
No.
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Document
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2.1
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Amendment No. 1 to the Purchase and Sale Agreement, dated November
25, 2009.
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4.1
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Fifth
Supplemental Indenture dated as of December 1, 2009 between Dynegy
Holdings Inc. and Wilmington Trust
Company.
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4.2
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7.5
percent Senior Unsecured Note due 2015 (included in Exhibit
4.1).
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10.1
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Registration
Rights Agreement dated as of December 1, 2009 by and between Dynegy
Holdings Inc. and Adio Bond, LLC.
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99.1
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Unaudited
pro forma condensed consolidated financial statements of Dynegy Inc. and
Dynegy Holdings Inc.
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99.2
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Press
release announcing the closing of the LS Power transaction, dated December
1, 2009.
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3
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
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DYNEGY
INC.
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(Registrant)
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Dated:
December 1, 2009
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By:
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/s/ KENT R. STEPHENSON
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Name:
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Kent
R. Stephenson
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Title:
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Senior
Vice President, Deputy General
Counsel
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DYNEGY
HOLDINGS INC.
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(Registrant)
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Dated:
December 1, 2009
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By:
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/s/ KENT R. STEPHENSON
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Name:
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Kent
R. Stephenson
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Title:
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Senior
Vice President, Deputy General
Counsel
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4
EXHIBIT
INDEX
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Exhibit
No.
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Document
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Amendment No. 1 to the Purchase and Sale Agreement, dated November
25, 2009.
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Fifth
Supplemental Indenture dated as of December 1, 2009 between Dynegy
Holdings Inc. and Wilmington Trust
Company.
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7.5
percent Senior Unsecured Note due 2015 (included in Exhibit
4.1).
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Registration
Rights Agreement dated as of December 1, 2009 by and between Dynegy
Holdings Inc. and Adio Bond, LLC.
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Unaudited
pro forma condensed consolidated financial statements of Dynegy Inc. and
Dynegy Holdings Inc.
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Press
release announcing the closing of the LS Power transaction, dated December
1, 2009.
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