<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) or 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
Dynegy Inc.
(Exact Name of Registrant as Specified in its Charter)
Illinois 74-2928353
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
1000 Louisiana Street, Suite 5800
Houston, Texas 77002
(Address of Principal offices) (Zip Code)
<TABLE>
<CAPTION>
<S> <C>
If this Form relates to the registration of a class of If this Form relates to the registration of a class of
debt securities and is effective upon filing pursuant to debt securities and is to become effective simultaneously
General Instruction A.(c)(1), please check the following with the effectiveness of a concurrent registration
box. [_] statement under the Securities Act of 1933 pursuant to
General Instruction A.(c)(2), please check the following
box. [_]
</TABLE>
Securities Act registration statement file number: 333-84965
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class to Name of each exchange on which
be so registered each class is to be registered
Securities to be registered pursuant to Section 12(g) of the Act:
Series A Convertible Preferred Stock
<PAGE>
EXPLANATORY NOTE
On October 11, 1999, the shareholders of Illinova Corporation, an Illinois
corporation ("Illinova"), and Dynegy Inc., a Delaware corporation (since
renamed Dynegy Holdings, Inc.) ("Old Dynegy"), approved and adopted the
Agreement and Plan of Merger dated as of June 14, 1999, as amended, by and among
Illinova, Old Dynegy, Energy Convergence Acquisition Corporation, Dynegy
Acquisition Corporation and Energy Convergence Holding Company (since renamed
Dynegy Inc.) ("Dynegy"), providing for the merger of Energy Convergence
Acquisition Corporation, a wholly owned subsidiary of Dynegy, with and into
Illinova and the merger of Dynegy Acquisition Corporation, a wholly owned
subsidiary of Dynegy, with and into Old Dynegy. Old Dynegy common stock, par
value $0.01 per share is no longer transferable, and certificates evidencing
shares of Old Dynegy common stock represent only the right to receive, without
interest, 0.69 shares of Dynegy Class A common stock, no par value in accordance
with the provisions of the merger agreement. Illinova common stock, no par
value, is no longer transferable, and certificates evidencing shares of Illinova
common stock represent only the right to receive, without interest, one share of
Dynegy Class A common stock in accordance with the provisions of the merger
agreement. Pursuant to the merger agreement, Dynegy assumed the stock option
plans of Old Dynegy and Illinova, and each unexpired and unexercised outstanding
option to purchase Old Dynegy common stock was automatically converted into an
option to purchase that number of shares of Dynegy Class A common stock obtained
by multiplying the number of shares of Old Dynegy common stock issuable upon
exercise of such option by 0.69 at an exercise price per share equal to the per
share exercise price of such Old Dynegy stock option divided by 0.69. Each
unexpired and unexercised outstanding option to purchase Illinova common stock
was automatically converted into an option to purchase the equivalent number of
shares of Dynegy Class A common stock at the same exercise price per share.
Old Dynegy had three large stockholders, NOVA Gas Services (U.S.) Inc., an
affiliate of BG plc, and Chevron U.S.A. Inc., which collectively owned
approximately 76% of Old Dynegy's outstanding voting stock. Of these
stockholders, NOVA and BG elected to receive the maximum amount of cash
possible.
To the extent that NOVA and BG would have received Dynegy Class A common
stock in the combination, they instead received Dynegy Series A Convertible
Preferred Stock. Dynegy Series A Convertible Preferred Stock is convertible into
Dynegy Class A common stock at the election of the holder and is subject to
redemption at the election of Dynegy after three years. Holders generally are
entitled to vote together with holders of Dynegy Class A common stock in
proportion to the economic interest of such shares. As a result, NOVA and BG
each received $541,802,833.70 in cash and 3,348,888 shares of Dynegy's Series A
Convertible Preferred Stock having a par value of $50.00 per share. Holders of
the Dynegy Series A Convertible Preferred Stock are entitled to a dividend of
$1.50 per share annually. In the event of any voluntary of involuntary
liquidation, dissolution, or winding up of Dynegy, the holders of Dynegy Series
A Convertible Preferred Stock are entitled to receive, prior ot any distribution
of any assets to holders of any other class or series of stock, $50 per share
plus an amount equal to all accrued but unpaid dividends on each share. The
initial conversion price of the Dynegy Series A Convertible Preferred Stock was
$51.88.
Item 1. Description of Registrant's Securities to be Registered.
A description of the securities to be registered is contained in the
section entitled "Description of Energy Convergence Capital Stock Following the
Merger" of the Prospectus included in Dynegy's Registration Statement on Form S-
4 (File Number 333-
<PAGE>
84965) filed with the Securities and Exchange Commission on September 7, 1999,
and is incorporated herein by reference.
Item 2. Exhibits
Exhibit
Number Description
------ -----------
3.1 Articles of Incorporation of Dynegy (incorporated by reference
from the exhibits to the Registration Statement of Dynegy on Form
S-4 (File Number 333-84965) filed with the Commission on
September 7, 1999).
3.2 Articles of Amendment to Dynegy's Articles of Incorporation dated
August 27, 1999 (incorporated by reference from the exhibits to
the Registration Statement of Dynegy on Form S-4 (File Number
333-84965) filed with the Commission on September 7, 1999).
3.3 Articles of Amendment to Dynegy Articles of Incorporation dated
January 4, 2000.*
3.4 Statement of Resolution Establishing Series of Series A
Convertible Preferred Stock filed with the Illinois Secretary of
State on February 1, 2000.*
3.5 Bylaws of Dynegy (incorporated by reference from the exhibits to
the Registration Statement of Dynegy on Form S-4, File Number
333-84965).
10.1 Shareholder Agreement, dated June 14, 1999, between Dynegy and
Chevron U.S.A. Inc. (incorporated by reference from the exhibits
filed with Dynegy's Current Report on Form 8-K (File Number 1-
11156) on June 14, 1999).
* Filed herewith.
<PAGE>
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities and
Exchange Act of 1934, the Registrant has caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
DYNEGY INC.
/s/ KENNETH E. RANDOLPH
Date: February 1, 2000 By:_____________________________
Kenneth E. Randolph
General Counsel and Secretary
<PAGE>
<TABLE>
<S> <C> <C>
Form BCA-10.30 ARTICLES OF AMENDMENT
(Rev. Jan. 1999) File # 6053-811-5
- ----------------------------------------------------------------------------------------------------------------------------------
Jesse White SUBMIT IN DUPLICATE
Secretary of State
Department of Business Services This space for use by
Springfield, IL 62756 Secretary of State
Telephone (217) 782-1832
- ----------------------------------------- Date January 4, 2000
Remit payment in check or money Franchise Tax $
order, payable to "Secretary of State." Filing Fee* $25.00
The filing fee for restated articles of Penalty $
amendment - $100.00 Approved:
http://www.sos.state.il.us
- -------------------------------------------------------------------------------------------------------------------------------
ENERGY CONVERGENCE HOLDING COMPANY
1. CORPORATE NAME: -------------------------------------------------------------------------------------------------------------
(Note 1)
2. MANNER OF ADOPTION OF AMENDMENT:
The following amendment of the Articles of Incorporation was adopted on December 20, 1999, in the manner indicated below. ("X"
one box only)
[ ] By a majority of the incorporators, provided no directors were named in the articles of incorporation and no directors have
been elected;
(Note 2)
[ ] By a majority of the board of directors, in accordance with Section 10.10, the corporation having issued no shares as of
the time of adoption of this amendment;
(Note 2)
[ ] By a majority of the board of directors, in accordance with Section 10.15, shares having been issued but shareholder action
not being required for the adoption of the amendment;
(Note 3)
[ ] By the shareholders, in accordance with Section 10.20, a resolution of the board of directors having been duly adopted and
submitted to the shareholders. At a meeting of shareholders, not less than the minimum number of votes required by statute
and by the articles of incorporation were voted in favor of the amendment;
(Note 4)
[ ] By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the board of directors having been duly
adopted and submitted to the shareholders. A consent in writing has been signed by shareholders having not less than the
minimum number of votes required by statute and by the articles of incorporation. Shareholders who have not consented in
writing have been given notice in accordance with Section 7.10;
(Notes 4 & 5)
[XX] By the shareholders, in accordance with Sections 10.20 and 7.10, a resolution of the board of directors having been duly
adopted and submitted to the shareholders. A consent in writing has been signed by all the shareholders entitled to vote on
this amendment.
(Note 5)
3. TEXT OF AMENDMENT:
a. When amendment effects a name change, insert the new corporate name below. Use Page 2 for all other amendments.
Article I: The name of the corporation is:
DYNEGY INC.
- ------------------------------------------------------------------------------------------------------------------------------------
(NEW NAME)
All changes other than name, include on page 2
(over)
</TABLE>
<PAGE>
4. The manner, if not set forth in Article 3b, in which any exchange,
reclassification or cancellation of issued shares, or a reduction of the
number of authorized shares of any class below the number of issued shares
of that class, provided for or effected by this amendment, is as follows:
(if not applicable, insert "No change")
No Change
5. (a) The manner, if not set forth in Article 3b, in which said amendment
effects a change in the amount of paid-in capital (Paid-in capital replaces
the terms Stated Capital and Paid-in Surplus and is equal to the total of
these accounts) is as follows: (If not applicable, insert "No change")
No Change
(b) The amount of paid-in capital (Paid-in Capital replaces the terms Stated
Capital and Paid-in Surplus and is equal to the total of these accounts) as
changed by this amendment is as follows: (If not applicable, insert "No
change")
Before Amendment After Amendment
Paid-in Capital $ no change $ no change
----------- -----------
(Complete either Item 6 or 7 below. All signatures must be in BLACK INK.)
6. The undersigned corporation has caused this statement to be signed by its
duly authorized officers, each of whom affirms, under penalties of perjury,
that the facts stated herein are true.
Dated December 20, 1999 ENERGY CONVERGENCE HOLDING COMPANY
---------------------------- -------------------------------------
(Month & Date) (Year) (Exact Name of Corporation at
date of execution)
attested by /s/ Larry Altenbaumer by /s/ Charles Bayless
------------------------ ----------------------------------
(Signature of Secretary (Signature of President or
or Assistant Secretary) Vice President)
Larry Altenbaumer, Secretary Charles Bayless, President
------------------------------ ----------------------------------
(Type or Print Name and Title) (Type or Print Name and Title)
7. If amendment is authorized pursuant to Section 10.10 by the incorporators,
the incorporators must sign below, and type or print name and title.
OR
If amendment is authorized by the directors pursuant to Section 10.10 and
there are no officers, then a majority of the directors or such directors as
may be designated by the board, must sign below, and type or print name and
title.
The undersigned affirms, under the penalties of perjury, that the facts
stated herein are true.
Dated
-------------------------, ---------
(Month & Day) (Year)
--------------------------------------- -------------------------------
--------------------------------------- -------------------------------
--------------------------------------- -------------------------------
--------------------------------------- -------------------------------
Page 3
<PAGE>
STATEMENT OF RESOLUTION ESTABLISHING SERIES
OF
SERIES A CONVERTIBLE PREFERRED STOCK
OF
DYNEGY INC.
Pursuant to and in accordance with Section 6.10 of the Illinois Business
Corporation Act of 1983, as amended (the "IBCA"), the undersigned corporation
hereby makes the following statement:
ARTICLE I.
The name of the corporation is Dynegy Inc. (the "Corporation").
ARTICLE II.
The Board of Directors of the Corporation (the "Board") on January 31,
2000, duly adopted the following resolution establishing and designating a
series of preferred stock of the Corporation and fixing and determining the
relative rights and preferences thereof:
RESOLVED, that pursuant to the authority vested in the Board by Article 4,
Paragraph 2B. of the Corporation's Articles of Incorporation, a series of
preferred stock of the Corporation be, and it hereby is, created out of the
authorized but unissued shares of the capital stock of the Corporation, such
series to be designated "Series A Convertible Preferred Stock" (the "Series A
Preferred Stock"), to consist of 6,697,776 shares, no par value per share, of
which the preferences and relative and other rights, and the qualifications,
limitations, and restrictions thereof will be, in addition to those set forth in
the Corporation's Articles of Incorporation, as follows:
1. CERTAIN DEFINITIONS. Unless otherwise stated herein or the context
otherwise requires, the terms defined in this Section 1 have the
following meanings:
"Board" is defined in the preamble to this Article II.
"Class A Common Stock" means all shares now or hereafter authorized of
Class A Common Stock, no par value per share, of the Corporation.
"Common Stock" means all shares now or hereafter authorized of any class of
common stock of the Corporation and any other stock of the Corporation,
howsoever designated, authorized after the Issue Date, which has the right
(subject to prior rights of any class or series of preferred stock) to
participate in the distribution of the assets and earnings of the Corporation
without limit as to per share amount.
"Conversion Date" is defined in Section 5(c).
"Conversion Price" will mean the price per share of Class A Common Stock
used to determine the number of shares of Class A Common Stock deliverable upon
conversion of a
<PAGE>
share of the Series A Preferred Stock, subject to adjustment in
accordance with the provisions of Section 5.
"Corporation" is defined in Article I.
"Dividend Payment Date" means March 31, June 30, September 30, and December
31 of each year.
"Dividend Period" means the quarterly period between consecutive Dividend
Payment Dates; provided, that the initial Dividend Period shall be from the
Issue Date until the first Dividend Payment Date after the Issue Date.
"Final Redemption Date" is defined in Section 4(e).
"IBCA" is defined in the introductory paragraph of this statement of
resolution.
"Issue Date" means the date on which shares of Series A Preferred Stock are
first issued by the Corporation.
"Junior Stock" means, for purposes of Section 2, the Common Stock and any
other class or series of capital stock of the Corporation issued after the Issue
Date not entitled to receive any dividends in any Dividend Period, unless all
dividends required to have been paid or declared and set apart for payment on
the Series A Preferred Stock have been paid or declared and set apart for
payment and, for purposes of Section 3, the Common Stock and any class or series
of capital stock of the Corporation issued after the Issue Date not entitled to
receive any assets upon the liquidation, dissolution, or winding up of the
affairs of the Corporation until the Series A Preferred Stock have received the
entire amount to which such stock is entitled upon such liquidation,
dissolution, or winding up.
"Liquidation Date" is defined in Section 3.
"Liquidation Value" means $50.00 per share of Series A Preferred Stock,
plus any accrued but unpaid dividends thereon through the Liquidation Date.
"Parity Stock" means, for purposes of Section 2, any other class or series
of capital stock of the Corporation issued after the Issue Date entitled to
receive payment of dividends on a parity with the Series A Preferred Stock and,
for purposes of Section 3, any other class or series of capital stock of the
Corporation issued after the Issue Date entitled to receive assets upon the
liquidation, dissolution, or winding up of the affairs of the Corporation on a
parity with the Series A Preferred Stock.
"Record Date" means March 15, June 15, September 15, and December 15 of
each year, or such other date as may be designated by the Board.
"Redemption Agent" is defined in Section 4(d).
"Redemption Date" is defined in Section 4(c).
2
<PAGE>
"Redemption Price" means $50.00 per share of Series A Preferred Stock, plus
any accrued but unpaid dividends thereon through the Redemption Date.
"Senior Stock" means for purposes of Section 2, any class or series of
capital stock of the Corporation issued after the Issue Date ranking senior to
the Series A Preferred Stock in respect of the right to receive dividends, and,
for purposes of Section 3, any class or series of capital stock of the
Corporation issued after the Issue Date ranking senior to the Series A Preferred
Stock in respect of the right to receive assets upon the liquidation,
dissolution, or winding up of the affairs of the Corporation.
"Series A Preferred Stock" is defined in the preamble to this Article II.
2. DIVIDENDS.
(a) Subject to the prior preferences and other rights of any Senior Stock,
the holders of Series A Preferred Stock are entitled to receive, out of funds
legally available for such purpose, cash dividends at the rate of $3.00 per
annum per share of Series A Preferred Stock, and no more. Such dividends are
cumulative from the Issue Date and are payable quarterly, in arrears, when and
as declared by the Board on each Dividend Payment Date commencing on the first
Dividend Payment Date after the Issue Date. Each such dividend will be paid to
the holders of record of the Series A Preferred Stock as their names appear on
the share register of the Corporation on the Record Date immediately preceding
each Dividend Payment Date. Dividends on account of arrears for any past
Dividend Periods may be declared and paid at any time, without reference to any
Dividend Payment Date, to holders of record on such date as may be fixed by the
Board.
(b) If full cash dividends are not paid or made available to the holders of
all outstanding shares of Series A Preferred Stock and any Parity Stock, and
funds available are insufficient to permit such payment to all such holders of
the preferential amounts to which they are then entitled, the entire amount
available for payment of cash dividends remaining after the distributions to
holders of any Senior Stock of the full amounts to which they may be entitled
will be distributed among the holders of the Series A Preferred Stock and any
Parity Stock ratably in proportion to the full amount to which they would
otherwise be respectively entitled, and any remainder not paid to the holders of
the Series A Preferred Stock will cumulate as provided in Section 2(c).
(c) If, on any Dividend Payment Date, the holders of the Series A Preferred
Stock do not receive the full dividends provided for in Section 2(a), then such
dividends will cumulate, whether or not the Corporation has earnings or profits,
whether or not there are funds legally available for payment of such dividends,
and whether or not such dividends are declared; provided, however, no additional
dividends will be paid on or with respect to any dividends that cumulate
pursuant to this Section 2(c).
(d) So long as any shares of Series A Preferred Stock are outstanding, the
Corporation will not, unless all dividends to which the holders of Series A
Preferred Stock are entitled for all previous Dividend Periods have been paid or
declared and a sum of money sufficient for the payment thereof set apart, (i)
declare or pay on any Junior Stock any dividend
3
<PAGE>
or distribution whatsoever, whether in cash, property, or otherwise (other than
dividends payable in shares of the class or series upon which such dividends are
declared or paid, or payable in shares of Common Stock with respect to Junior
Stock other than Common Stock, together with cash in lieu of fractional shares),
(ii) purchase or redeem any Junior Stock, or (iii) pay or make available any
monies for a sinking fund for the purchase or redemption of any Junior Stock.
(e) Whenever, at any time, accrued but unpaid dividends should exceed $2.25
per share of outstanding Series A Preferred Stock, the holders of the Series A
Preferred Stock will have the option, voting separately as a class with holders
of shares of any one or more other series of Parity Stock that would then be
entitled to voting rights with the Series A Preferred Stock to elect directors
as a separate class, to elect two directors to the Board at the Corporation's
next annual meeting of its shareholders and at each subsequent annual meeting of
shareholders. At elections for such directors, each holder of Series A Preferred
Stock will be entitled to one vote for each share held (the holders of shares of
Parity Stock will be entitled to such number of votes, if any, for each share
held as may be granted to the holders of such Parity Stock by the Corporation).
Upon vesting of such right of holders of Series A Preferred Stock, the
authorized number of directors constituting the Board will be increased (even if
such increase results in exceeding the maximum authorized number of directors),
in accordance with the Corporation's Articles of Incorporation and Bylaws, by
two, and the two vacancies so created will be filled by vote of the holders of
Series A Preferred Stock together with holders of Parity Stock, voting together
as a separate class. The right of holders of Series A Preferred Stock, voting
separately as a class with holders of Parity Stock, if applicable, to elect two
directors to the Board will continue until such time as there are no longer any
accrued but unpaid dividends on outstanding Series A Preferred Stock, subject to
revesting if accrued but unpaid dividends exceed, at any time or times, $2.25
per share of outstanding Series A Preferred Stock. Upon any termination of the
right of the holders of Series A Preferred Stock, voting separately as a class
with holders of Parity Stock, if applicable, to elect directors as provided
herein, the term of office of the directors elected by the holders of the Series
A Preferred Stock, voting separately as a class with holders of Parity Stock, if
applicable, will automatically terminate. If the office of any director elected
by the holders of Series A Preferred Stock, voting separately as a class with
holders of Parity Stock, if applicable, becomes vacant because of death,
resignation, retirement, disqualification, removal from office, or otherwise,
the remaining director elected by the holders of Series A Preferred Stock,
voting separately as a class with holders of Parity Stock, if applicable, will
choose a successor to hold office for the unexpired term in respect of which
such vacancy occurred. Whenever the term of office of the directors elected by
the holders of Series A Preferred Stock, voting separately as a class with
holders of Parity Stock, if applicable, ends and the special voting rights
provided in this Section 2(e) terminate, the number of directors constituting
the Board will be reduced by two.
3. DISTRIBUTIONS UPON LIQUIDATION, DISSOLUTION, OR WINDING UP. In the event
of any voluntary or involuntary liquidation, dissolution, or other winding up of
the affairs of the Corporation, subject to the prior preferences and other
rights of any Senior Stock, but before any distributions or payments are made to
the holders of Junior Stock, the holders of the Series A Preferred Stock will be
entitled to be paid the Liquidation Value of all outstanding shares of Series A
Preferred Stock, as of the date of such liquidation or dissolution or such other
winding up (the "Liquidation Date"), and no more, in cash or in property at its
fair value as determined by
4
<PAGE>
the Board, or both, at the election of the Board. If such payment is made in
full to the holders of the Series A Preferred Stock, and if payment is made in
full to the holders of any Senior Stock and Parity Stock of all amounts to which
such holders will be entitled, the remaining assets and funds of the Corporation
will be distributed among the holders of Junior Stock, according to their
respective shares and priorities. If, upon any such liquidation, dissolution, or
other winding up of the affairs of the Corporation, the assets of the
Corporation distributable among the holders of all outstanding shares of the
Series A Preferred Stock and any Parity Stock are insufficient to permit the
payment in full to such holders of the preferential amounts to which they are
entitled, then the entire assets of the Corporation remaining after the
distributions to holders of any Senior Stock of the full amounts to which they
may be entitled will be distributed among the holders of the Series A Preferred
Stock and any Parity Stock ratably in proportion to the full amounts to which
they would otherwise be respectively entitled. Neither the consolidation or
merger of the Corporation into or with another entity or entities nor the sale
of all or substantially all of the assets of the Corporation to any person or
persons will be deemed a liquidation, dissolution, or winding up of the affairs
of the Corporation within the meaning of this Section 3, unless such
consolidation, merger, or sale of assets is in connection with the complete
liquidation, dissolution, or winding up of the affairs of the Corporation.
4. REDEMPTION BY THE CORPORATION.
(a) The Series A Preferred Stock may not be redeemed, in whole or in part,
prior to the third anniversary of the Issue Date. On and after the third
anniversary of the Issue Date, the Series A Preferred Stock may be redeemed by
the Corporation at any time and from time to time in, whole or in part, at the
option of the Corporation, at the Redemption Price.
(b) If less than all of the outstanding shares of the Series A Preferred
Stock are to be redeemed by the Corporation, such shares will be redeemed pro
rata as determined by the Board in its sole discretion.
(c) Notice of each proposed redemption of the Series A Preferred Stock will
be sent by or on behalf of the Corporation, by first class mail, postage
prepaid, to holders of record of the shares of Series A Preferred Stock to be
redeemed at such holders' addresses as they appear on the records of the
Corporation, not less than 30 days or more than 60 days prior to the date fixed
for redemption by the Corporation (the "Redemption Date") (i) notifying such
holders of the election of the Corporation to redeem such shares of Series A
Preferred Stock and the Redemption Date, (ii) stating the date on which such
shares of Series A Preferred Stock cease to be convertible and the Conversion
Price, (iii) stating the place or places at which such shares of Series A
Preferred Stock called for redemption will, upon presentation and surrender of
the certificate or certificates evidencing such shares, be redeemed and the
Redemption Price, and (iv) stating the name and address of the Redemption Agent
selected in accordance with Section 4(d).
(d) The Corporation may (i) act as the redemption agent or (ii) appoint as
its agent, for the purpose of acting as the Corporation's redemption agent, a
bank or trust company in good standing, organized under the laws of the United
States of America or any jurisdiction thereof and any replacement thereof or
successors thereto. The Corporation or such appointed bank or trust company is
hereinafter referred to as the "Redemption Agent." Following such
5
<PAGE>
appointment, if any, and prior to any redemption, the Corporation will deliver
to the Redemption Agent irrevocable written instructions authorizing the
Redemption Agent, on behalf and at the expense of the Corporation, to cause a
notice of redemption to be duly mailed in accordance with Section 4(c), as soon
as practicable after receipt of such irrevocable instructions. All funds
necessary for the redemption will be deposited with the Redemption Agent, in
trust, at least two business days prior to the Redemption Date, for the pro rata
benefit of the holders of the shares of Series A Preferred Stock called for
redemption. Neither failure to mail any such notice to one or more holders of
Series A Preferred Stock nor any defect in any notice will affect the
sufficiency of the proceedings for redemption as to other holders of Series A
Preferred Stock.
(e) If notice of redemption is given in accordance with Section 4(e) and
the Corporation is not in default in the payment of the Redemption Price, then
each holder of shares of Series A Preferred Stock called for redemption is
entitled to all preferences and relative and other rights accorded by this
resolution until and including the date prior to the Redemption Date. If the
Corporation defaults in making payment on the Redemption Date, then each holder
of the shares of Series A Preferred Stock called for redemption is entitled to
all preferences and relative and other rights accorded by this resolution until
and including the date prior to the date when the Corporation makes payment to
the holders of the Series A Preferred Stock (the "Final Redemption Date"). From
and after the Redemption Date, the shares of Series A Preferred Stock called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of such shares of Series A Preferred Stock will cease and terminate,
except the right of the holders of such shares of Series A Preferred Stock, upon
surrender of the certificate or certificates therefor, to receive the Redemption
Price. The deposit of monies in trust with the Redemption Agent by the
Corporation will be irrevocable, except that the Corporation will be entitled to
receive from the Redemption Agent the interest or other earnings, if any, earned
on any monies so deposited in trust, and the holders of any shares of Series A
Preferred Stock redeemed will have no claim to such interest or other earnings.
Any balance of monies so deposited by the Corporation and unclaimed by the
holders of the Series A Preferred Stock entitled thereto at the expiration of
one year from the Redemption Date (or the Final Redemption Date, as applicable)
will be repaid, together with any interest or other earnings thereon, to the
Corporation, and after any such repayment, the holders of the shares of Series A
Preferred Stock entitled to the funds so repaid to the Corporation will look
only to the Corporation for payment of the Redemption Price, without interest.
5. CONVERSION RIGHTS. The Series A Preferred Stock will be convertible into
Class A Common Stock as follows:
(a) Conversion. Subject to and upon compliance with the provisions of this
Section 5, the holder of any shares of Series A Preferred Stock will have the
right at such holder's option, at any time or from time to time, to convert any
of such shares of Series A Preferred Stock into fully paid and nonassessable
shares of Class A Common Stock at the Conversion Price in effect on the
Conversion Date. With respect to any share of Series A Preferred Stock called
for redemption, the right of conversion described in this Section 5 will
terminate at the close of business on the day prior to the Redemption Date or,
if the Corporation defaults in the payment of the Redemption Price, at the close
of business on the day prior to the Final Redemption Date.
6
<PAGE>
(b) Conversion Price. Each share of Series A Preferred Stock will be
converted into a number of shares of Class A Common Stock determined by dividing
(i) the Liquidation Value by (ii) the Conversion Price in effect on the
Conversion Date. The Conversion Price at which shares of Class A Common Stock
will initially be issuable upon conversion of the shares of Series A Preferred
Stock will be $51.88. The Conversion Price will be subject to adjustment as set
forth in Section 5(e). No dividends will accrue or be paid on Series A Preferred
Stock subsequent to conversion.
(c) Mechanics of Conversion. The holder of any shares of Series A Preferred
Stock may exercise the conversion right specified in Section 5(a) by
surrendering to the Corporation or the transfer agent of the Corporation the
certificate or certificates for the shares to be converted, accompanied by
written notice specifying the number of shares to be converted; provided,
however, that the Corporation will not be obligated to issue to any such holder
the certificate or certificates evidencing the shares of Class A Common Stock
issuable upon such conversion, unless the certificate or certificates evidencing
the shares of Series A Preferred Stock are either delivered to the Corporation
or the transfer agent of the Corporation. Conversion will be deemed to have been
effected on the date when delivery is made of notice of an election to convert
and the certificate or certificates evidencing the Series A Preferred Stock
shares to be converted (the "Conversion Date"). Subject to the provisions of
Section 5(e)(iv), as promptly as practicable thereafter, the Corporation will
issue and deliver to or upon the written order of such holder a certificate or
certificates for the number of full shares of Class A Common Stock to which such
holder is entitled and a check or cash with respect to any fractional interest
in a share of Class A Common Stock as provided in Section 5(d). Subject to the
provisions of Section 5(e)(iv), the person in whose name the certificate or
certificates for shares of Class A Common Stock are to be issued will be deemed
to have become a holder of record of such Class A Common Stock on the applicable
Conversion Date. Upon conversion of only a portion of the number of shares
covered by a certificate representing shares of Series A Preferred Stock
surrendered for conversion, the Corporation will issue and deliver to or upon
the written order of the holder of the certificate so surrendered for
conversion, at the expense of the Corporation, a new certificate covering the
number of shares of Series A Preferred Stock representing the unconverted
portion of the certificate so surrendered.
(d) Fractional Shares. No fractional shares of Class A Common Stock or
scrip will be issued upon conversion of shares of Series A Preferred Stock. If
more than one share of Series A Preferred Stock is surrendered for conversion at
any one time by the same holder, the number of full shares of Class A Common
Stock issuable upon conversion thereof will be computed on the basis of the
aggregate number of shares of Series A Preferred Stock so surrendered. Instead
of any fractional shares of Class A Common Stock which would otherwise be
issuable upon conversion of any shares of Series A Preferred Stock, the
Corporation will pay a cash adjustment in respect of such fractional interest in
an amount equal to that fractional interest based on the fair market value of
the Class A Common Stock determined by the Corporation in its sole discretion.
(e) Conversion Price Adjustments. The Conversion Price will be subject to
adjustment from time to time as follows:
7
<PAGE>
(i) Stock Dividends, Subdivisions, Reclassifications, or Combinations.
If the Corporation (i) declares a dividend or makes a distribution on its
Class A Common Stock in shares of its Class A Common Stock, (ii) subdivides
or reclassifies the outstanding shares of Class A Common Stock into a
greater number of shares, or (iii) combines or reclassifies the outstanding
Class A Common Stock into a smaller number of shares, the Conversion Price
in effect at the time of the record date for such dividend or distribution
or the effective date of such subdivision, combination, or reclassification
will be proportionately adjusted so that the holder of any shares of Series
A Preferred Stock surrendered for conversion after such date will be
entitled to receive the number of shares of Class A Common Stock which such
holder would have owned or been entitled to receive had such Series A
Preferred Stock been converted immediately prior to such date. Successive
adjustments in the Conversion Price will be made whenever any of the
foregoing events occur.
(ii) Consolidation, Merger, Sale, Lease or Conveyance. In case of any
consolidation with or merger of the Corporation with or into another
entity, or in case of any sale, lease, or conveyance to another person of
the assets of the Corporation as an entirety or substantially as an
entirety, each share of Series A Preferred Stock will be convertible, after
the date of such consolidation, merger, sale, lease, or conveyance, into
the number of shares of stock or other securities or property (including
cash) to which the Class A Common Stock issuable (at the time of such
consolidation, merger, sale, lease, or conveyance) upon conversion of a
share of Series A Preferred Stock would have been entitled upon such
consolidation, merger, sale, lease, or conveyance; and in any such case, if
necessary, the provisions set forth herein with respect to the rights and
interests thereafter of the holders of the shares of Series A Preferred
Stock will be appropriately adjusted so as to be applicable, as nearly as
may reasonably be, to any shares of stock or other securities or property
thereafter deliverable on the conversion of the shares of Series A
Preferred Stock.
(iii) Rounding of Calculations; Minimum Adjustment. All calculations
under this Section 5(e) will be made to the nearest cent or to the nearest
one hundredth (1/100th) of a share, as the case may be. Any provision of
this Section 5 to the contrary notwithstanding, no adjustment in the
Conversion Price will be made if the amount of such adjustment would be
less than $0.05, but any such amount will be carried forward and an
adjustment with respect thereto will be made at the time of and together
with any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, will aggregate $0.05 or more.
(iv) Timing of Issuance of Additional Class A Common Stock Upon
Certain Adjustments. In any case in which the provisions of this Section
5(e) requires that an adjustment be made, such adjustment will become
effective immediately after a record date for an event. The Corporation may
defer, until the occurrence of such event, (A) issuing to the holder of any
share of Series A Preferred Stock converted after such record date and
before the occurrence of such event the additional shares of Class A Common
Stock issuable upon such conversion by reason of the adjustment required by
such event over and above the shares of Class A Common Stock issuable upon
such conversion before giving effect to such adjustment and (B) paying to
such holder any amount of cash in lieu of a fractional share of Class A
Common Stock pursuant to Section 5(d); provided, however, that the
Corporation upon request
8
<PAGE>
will deliver to such holder a due bill or other appropriate instrument
evidencing such holder's right to receive such additional shares and such
cash, upon the occurrence of the event requiring such adjustment.
(f) Statement Regarding Adjustments. Whenever the Conversion Price is
adjusted as provided in Section 5(e), the Corporation will file, at the office
of any transfer agent for the Series A Preferred Stock and at the principal
office of the Corporation, a statement showing in detail the facts requiring
such adjustment and the Conversion Price in effect after such adjustment, and
the Corporation will also cause a copy of such statement to be sent by mail,
first class postage prepaid, to each holder of shares of Series A Preferred
Stock at such holders address appearing on the Corporation's records. Each such
statement will be signed by the Corporation's independent public accountants, if
applicable. Where appropriate, such copy may be given in advance and may be
included as part of a notice required to be mailed under the provisions of
Section 5(g).
(g) Conditional Conversion. If it is proposed that a registration of Common
Stock is intended to be filed, except on Form S-4 or S-8 (or any successor
forms), which includes the secondary registration on behalf of holders of Common
Stock, the Corporation will notify the holders of Series A Preferred Stock of
such proposed registration and such holders may conditionally exercise their
right to convert any or all of such shares of Series A Preferred Stock so held
in accordance with this Section 5 and participate in such proposed registration
in accordance with the registration rights granted to such holder by the
Corporation, if any. If such registration is not declared effective or is
withdrawn, any conditional exercise pursuant to this Section 5(g) will be null
and void ab initio. Only the number of shares of Class A Common Stock
conditionally converted pursuant to this Section 5(g) that are actually sold
under an effective registration statement will be deemed converted pursuant to
Section 5(a) and the conditional conversion of such shares will be null and void
ab initio upon the termination of the offering under such registration
statement.
(h) Notice to Holders. If the Corporation proposes to take any action of
the type described in Section 5(e)(i) or (ii), the Corporation will give notice
to each holder of shares of Series A Preferred Stock, in the manner set forth in
Section 5(f), which notice will specify the record date, if any, with respect to
any such action and the approximate date on which such action is to take place.
Such notice will also set forth such facts with respect thereto as will be
reasonably necessary to indicate the effect of such action (to the extent such
effect may be known at the date of such notice) on the Conversion Price and the
number, kind, or class of shares or other securities or property which will be
deliverable upon conversion of shares of Series A Preferred Stock. In the case
of any action which would require the fixing of a record date, such notice will
be given at least ten days prior to the date so fixed, and in case of all other
action, such notice will be given at least 15 days prior to the taking of such
proposed action. Failure to give such notice, or any defect therein, will not
affect the legality or validity of any such action.
(i) Costs. The Corporation will pay all documentary, stamp, transfer, or
other transactional taxes attributable to the issuance or delivery of shares of
Class A Common Stock upon conversion of any shares of Series A Preferred Stock;
provided, however, that the
9
<PAGE>
Corporation will not be required to pay any taxes which may be payable in
respect of any transfer involved in the issuance or delivery of any certificate
for such shares in a name other than that of the holder of the shares of Series
A Preferred Stock in respect of which such shares are being issued.
(j) Reservation of Shares. The Corporation will reserve at all times so
long as any shares of Series A Preferred Stock remain outstanding, free from
preemptive rights, out of its treasury stock (if applicable) or its authorized
but unissued shares of Class A Common Stock, or both, solely for the purpose of
effecting the conversion of the shares of Series A Preferred Stock, sufficient
shares of Class A Common Stock to provide for the conversion of all outstanding
shares of Series A Preferred Stock.
(k) Valid Issuance. All shares of Class A Common Stock which may be issued
upon conversion of the shares of Series A Preferred Stock will, upon issuance by
the Corporation, be duly and validly issued, fully paid and nonassessable and
free from all taxes, liens, and charges with respect to the issuance thereof,
and the Corporation will take no action which will cause a contrary result
(including, without limitation, any action which would cause the Conversion
Price to be less than the par value, if any, of the Class A Common Stock).
6. VOTING RIGHTS. If the holders of shares of Series A Preferred Stock have
the right to vote separately as a class pursuant to Section 2(e) or the IBCA,
such holders will be entitled to one vote for each such share so held. In all
other cases, the holders of shares of Series A Preferred Stock will be entitled
to vote upon all matters upon which holders of the Class A Common Stock have the
right to vote, and will be entitled to the number of votes equal to 1.22 times
the number of whole shares of Class A Common Stock into which such shares of
Series A Preferred Stock could be converted pursuant to the provisions of
Section 5 at the record date for the determination of the stockholders entitled
to vote on such matters, or, if no such record date is established, at the date
such vote is taken or any written consent of stockholders is solicited, such
votes to be counted together with all other shares of capital stock having
general voting powers and not separately as a class.
7. EXCLUSION OF OTHER RIGHTS. Except as may otherwise be required by law,
the shares of Series A Preferred Stock will not have any preferences or
relative, participating, optional, or other special rights, other than those
specifically set forth in this Statement of Resolution. The shares of Series A
Preferred Stock will have no preemptive or subscription rights.
8. HEADINGS OF SUBDIVISIONS. The headings of the various subdivisions
hereof are for convenience of reference only and will not affect the
interpretation of any of the provisions hereof.
9. SEVERABILITY OF PROVISIONS. If any right, preference, or limitation of
the Series A Preferred Stock set forth in this resolution (as such resolution
may be amended from time to time) is invalid, unlawful, or incapable of being
enforced by reason of any rule of law or public policy, all other rights,
preferences, and limitations set forth in this resolution (as so amended) which
can be given effect without the invalid, unlawful or unenforceable right,
preference, or limitation will, nevertheless, remain in full force and effect,
and no right, preference, or
10
<PAGE>
limitation herein set forth will be deemed dependent upon any other such right,
preference, or limitation unless so expressed herein.
10. STATUS OF REACQUIRED SHARES. Shares of Series A Preferred Stock which
have been issued and reacquired in any manner will (upon compliance with any
applicable provisions of the laws of the State of Illinois) have the status of
authorized and unissued shares of Series A Preferred Stock issuable in series
undesignated as to series and may be redesignated and reissued.
11. ISSUANCE OF ADDITIONAL SECURITIES. Nothing contained herein will be
deemed to any way prohibit, restrict, or inhibit the ability of the Corporation
to designate and/or issue additional securities of any kind, including, without
limitation, shares of Parity Stock or Junior Stock; provided that, the
Corporation may not designate and/or issue any shares of Senior Stock without
the consent of a majority of the shares of Series A Preferred Stock.
11
<PAGE>
The Corporation has caused this statement to be signed by its duly
authorized officers, each of whom affirms, under penalties of perjury, that the
facts stated herein are true.
Date: January ___, 2000 DYNEGY INC.
By:
-----------------------------------,
---------------, President
Attested By:
--------------------------
---------------, Secretary
