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As Filed With The Securities And Exchange Commission On October 6, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DYNEGY INC.
(Exact Name of Registrant as Specified in its Charter)
74-2928353
(I.R.S. Employer Identification No.)
ILLINOIS KENNETH E. RANDOLPH, ESQ
(State of incorporation) GENERAL COUNSEL AND SECRETARY
1000 LOUISIANA, SUITE 5800 1000 LOUISIANA, SUITE 5800
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 507-6400 (713) 507-6400
(Address, including zip code, and (Name, address, including zip code,
telephone number, and telephone number, including
including area code, of area code,
Registrant's of agent for service)
principal executive office)
WITH A COPY TO:
VINSON & ELKINS L.L.P.
1001 FANNIN, SUITE 2300
HOUSTON, TEXAS 77002-6760
ATTN: KEITH R. FULLENWEIDER, ESQ.
(713) 758-2838
(713) 615-5855 (FAX)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this registration statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier registration statement for the
same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Maximum
Proposed Offering
Title Of Each Class Of Amount to Maximum Price Amount Of
Securities be Aggregate Per Registration
To Be Registered Registered Offering Price Share Fee
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<S> <C> <C> <C> <C>
Class A Common Stock(1)....... 1,805,635 $96,330,627.25 $53.35 $25,432
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</TABLE>
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(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) of the Securities Act of 1933. The
price per share and the aggregate offering price are based on the average
of the high and low prices of the Class A Common Stock on the New York
Stock Exchange on October 4, 2000 ($53.35).
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this prospectus is not complete and may be changed. We +
+may not sell these securities until the registration statement filed with +
+the Securities and Exchange Commission is effective. This prospectus is not +
+an offer to sell nor does it seek an offer to buy these securities in any +
+jurisdiction where the offer or sale is not permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED OCTOBER 6, 2000
PROSPECTUS
[LOGO OF DYNEGY INC. APPEARS HERE]
DYNEGY INC.
Class A Common Stock
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This prospectus relates to the offer and sale from time to time of up to an
aggregate of 1,625,083 shares of our Class A common stock for the account of
our stockholders named in this prospectus. We will not receive any of the
proceeds from the sale of shares by the selling stockholders. Our Class A
common stock is listed on the New York Stock Exchange under the symbol "DYN."
On October 5, 2000, the last reported sales price for our Class A common stock,
was $53.125 per share.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
-----------
This Prospectus is dated , 2000
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
About this Prospectus....................................................... 1
Where You Can Find More Information......................................... 1
Forward-Looking Statements.................................................. 2
The Company................................................................. 3
Use of Proceeds............................................................. 3
Description of Common Stock and Preferred Stock............................. 3
Plan of Distribution........................................................ 7
Validity of Securities...................................................... 9
Experts..................................................................... 9
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to
provide you with different information. If anyone provides you with different
or inconsistent information, you should not rely on it. We will not make an
offer to sell these securities in any jurisdiction where the offer or sale is
not permitted. You should assume that the information appearing in this
prospectus is accurate only as of the date on the cover page.
In this prospectus, references to "Dynegy," "the Company," "we," "us" and
"our" mean Dynegy Inc.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's web site at http://www.sec.gov. You may also read and
copy any document we file with the SEC at its public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. Please call the
SEC at 1-800-SEC-0330 for further information on the public reference rooms.
Our filings with the SEC are also available at the office of the New York
Stock Exchange. For more information on obtaining copies of our public filings
at the New York Stock Exchange, you should call (212) 656-5060.
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
an important part of this prospectus, and information that we file later with
the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings
made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 until we sell all of the securities described in this
prospectus.
. The description of our common stock contained in our Registration
Statement on Form 8-A, as filed with the SEC on February 2, 2000;
. Our Annual Report on Form 10-K for the year ended December 31, 1999;
. Our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2000
and June 30, 2000; and
. Our Current Reports on Form 8-K, as filed with the SEC on January 6,
2000, February 2, 2000, February 29, 2000, March 17, 2000 April 4, 2000,
April 18, 2000, April 25, 2000, August 22, 2000, October 2, 2000 and
October 6, 2000.
You may request a copy of these filings (other than an exhibit to a filing
unless that exhibit is specifically incorporated by reference into that
filing) at no cost, by writing or telephoning us at the following address:
Dynegy Inc.
1000 Louisiana, Suite 5800
Houston, Texas 77002
Attention: Investor Relations
(713) 507-6466
Our web site address is www.dynegy.com. The information on our web site is
not incorporated by reference into this prospectus.
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FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in this
prospectus contain various forward-looking statements, within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934, and information that is based on management's belief as
well as assumptions made by and information currently available to management.
When used in this document, words such as "anticipate," "estimate," "project,"
"forecast" and "expect" reflect forward-looking statements. Although we believe
that the expectations reflected in such forward-looking statements are
reasonable, we can give no assurance that such expectations will prove correct.
Such statements are subject to certain risks, uncertainties and assumptions.
Should one or more of these risks or uncertainties materialize, or should
underlying assumptions prove incorrect, actual results may vary materially from
those anticipated, estimated, projected, forecasted or expected. Among the key
risk factors that may have a direct bearing on our results of operations and
financial condition are:
. competitive practices in the industries in which we compete, including
the competitive impact of e-commerce and other internet-based trading or
marketing initiatives;
. volatility of commodity prices for natural gas, electricity, natural gas
liquids, crude oil or coal;
. fluctuations in energy commodity prices that could not or have not been
properly hedged or that are inconsistent with our risk profile in our
energy marketing activities;
. operational and systems risks;
. environmental liabilities which may not be covered by indemnity or
insurance;
. general economic and capital market conditions, including fluctuations in
interest rates;
. the impact of current and future laws and governmental regulations
(particularly environmental regulations) affecting the energy industry in
general, and our operations in particular; and
. foreign operations risk associated with potential volatility of emerging
countries and fluctuation in foreign currency exchange rates.
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THE COMPANY
We are a leading provider of energy products and services in North America,
the United Kingdom and continental Europe. Dynegy was created by the
combination of Dynegy Holdings Inc. (formerly Dynegy Inc.) and Illinova
Corporation which was completed on February 1, 2000 and operates through these
two subsidiaries.
Products marketed by Dynegy Holdings' wholesale marketing operations include
natural gas, electricity, coal, natural gas liquids, liquid petroleum gas and
related services. Dynegy Holdings' wholesale marketing operations are supported
by ownership or control of an extensive asset base and transportation network
that includes unregulated power generation, gas and liquids storage capacity,
gas, power and liquids transportation capacity and gas gathering, processing
and fractionation facilities.
Illinova is the holding company for Illinois Power Company, a regulated
energy delivery company that provides electricity and natural gas service to
approximately 650,000 customers over a 15,000 square-mile area of Illinois.
Our principal executive office is located at 1000 Louisiana, Suite 5800,
Houston, Texas 77002, and the telephone number is (713) 507-6400.
USE OF PROCEEDS
Dynegy will not receive any proceeds from the sale of any shares of Class A
common stock by the selling shareholders.
DESCRIPTION OF COMMON STOCK AND PREFERRED STOCK
Our authorized capital stock consists of:
. 300,000,000 shares of Class A common stock, no par value;
. 120,000,000 shares of Class B common stock, no par value; and
. 70,000,000 shares of preferred stock, no par value.
The summary description of our capital stock contained in this prospectus is
necessarily general and reference should be made to our Articles of
Incorporation and Bylaws, which are exhibits to the Registration Statement of
which this prospectus is a part.
Common Stock
As of October 5, 2000, an aggregate of approximately 237,350,663 shares of
our Class A common stock were issued and outstanding and approximately
85,330,544 shares of our Class B common stock were issued and outstanding. The
shares of Class B common stock are owned by Chevron Corporation and its
affiliates.
Voting. Generally, holders of Class B common stock vote together with
holders of Class A common stock as a single class on every matter acted upon by
the shareholders except the following matters:
. the holders of Class B common stock vote as a separate class for the
election of three of our directors, while the holders of Class A common
stock vote as a separate class for the remaining directors;
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. any amendment to the special corporate governance rights of Class B
common stock, must be approved by a majority of the directors elected by
holders of Class B common stock attending a meeting where such amendment
is considered and a majority of all of our directors or by 66 2/3
percent of the outstanding shares of Class B common stock voting as a
separate class, and the affirmative vote of a majority of the shares of
Class A and Class B common stock, voting together as a single class; and
. any amendment to the provision of our Articles of Incorporation
addressing the voting rights of holders of Class A and Class B common
stock requires the approval of 66 2/3 percent of the outstanding shares
of Class B common stock voting as a separate class, and the affirmative
vote of a majority of the shares of Class A and Class B common stock,
voting together as a single class.
Holders of Class A and Class B common stock are entitled to one vote per
share on all matters to be voted upon by the shareholders generally. Holders of
Class A common stock may cumulate votes in connection with the election of
directors. The election of directors and all other matters will be by a
majority of votes represented and entitled to vote, except as otherwise
provided by law.
Dividends; Liquidation. Subject to the preferences of our preferred stock,
holders of Class A and Class B common stock have equal ratable rights to
dividends out of funds legally available for that purpose, when and if
dividends are declared by the board of directors. Holders of Class A common
stock and Class B common stock are entitled to share ratably, as a single
class, in all of our assets available for distribution to holders of shares of
common stock upon the liquidation, dissolution or winding up of the affairs of
our company, after payment of our liabilities and any amounts to holders of
preferred stock.
Conversion. A share of Class B common stock automatically converts into a
share of Class A common stock upon the transfer to any person other than
Chevron or an affiliate of Chevron. Additionally, any shares of Class A common
stock acquired by Chevron or one of its affiliates automatically convert into
Class B common stock. However, each share of Class B common stock will
automatically convert into a share of Class A common stock if the holders of
all Class B common stock cease to own collectively 15 percent of our
outstanding common stock.
Preferred Stock
By resolution of our board, we may, without any further vote by our
shareholders, authorize and issue an aggregate of 70,000,000 shares of
preferred stock. The preferred stock may be issued in one or more series. With
respect to each series, our board may determine the designation and the number
of shares, voting rights, preferences, limitations and special rights,
including any dividend rights, conversion rights, redemption rights and
liquidation preferences. Because of the rights that may be granted, the
issuance of preferred stock may delay or prevent a change of control. As of
September 1, 2000, there were no shares of preferred stock outstanding.
Shareholder Agreement
Our company, Dynegy Holdings and Illinova have entered into a shareholder
agreement governing certain aspects of the relationship of Chevron and us. The
shareholder agreement contains rights relating to and limitations on
acquisitions of common stock by Chevron. Chevron is entitled to preemptive
rights to acquire shares of our common stock in proportion to its existing
ownership of our stock, whenever we issue shares of stock or securities
convertible into stock. In addition, Chevron may freely acquire up to 40% of
our outstanding voting securities. However, should any acquisition by Chevron
require Chevron to register under the Public Utility Holding Company Act, we
have no obligation to take any action to avoid that registration. If we
subsequently redeem or repurchase any shares, Chevron is not required to reduce
its ownership interest, even if Chevron's resulting ownership interest is in
excess of 40%. Any shares our Class A common stock acquired by Chevron will
automatically convert into Class B common stock.
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If Chevron acquires more than 40% of our voting securities, it must make an
offer to acquire all of our outstanding stock. Until February 1, 2001, Chevron
may not make any such offer (or a related acquisition) unless a third person
seeks to acquire a 15% voting interest in us. Thereafter, Chevron may make such
an offer at any time. Any offer by Chevron for all of the outstanding stock is
subject to an auction process. The shareholder agreement contains detailed
provisions governing the auction but, in general, Chevron at its election may
either (1) participate in the auction without any special priority or other
rights vis-a-vis other bidders, or (2) not participate in the auction and
instead have the right to purchase all of our outstanding stock at 105% of the
bid selected by our board of directors. If Chevron agrees to purchase us at
105% of the selected bid, the purchase agreement will contain customary
termination provisions including a 5% termination fee. If Chevron is not the
successful bidder under either process, it is obligated to vote in favor of the
bid or tender its shares, as the case may be. However, if Chevron is the
successful bidder, but we subsequently terminate the agreement (and pay Chevron
the 5% termination fee), Chevron is free to tender for any and all of our stock
and to pursue any rights and remedies available to it, and Chevron would not be
required to support any alternative transaction which we might then wish to
pursue. Except in conjunction with a permitted offer, Chevron may not become a
participant in the solicitation of proxies concerning any acquisition of our
voting securities.
The shareholder agreement generally prohibits Chevron from selling or
transferring any shares of Class B common stock until February 1, 2001, except
a transfer to an affiliate of Chevron or if Chevron is required to sell or
transfer any shares by any governmental regulatory authority. After this
restriction lapses, Chevron may sell or transfer shares of Class B common stock
in the following transactions:
. in a widely-dispersed public offering, or
. a sale to an unaffiliated third party, provided that we are given the
opportunity to purchase, or to find a different buyer to purchase, the
shares proposed to be sold by Chevron.
Upon the sale or transfer to any person other than an affiliate of Chevron,
the shares of Class B common stock are automatically converted into shares of
Class A common stock.
The shareholder agreement provides that we may require Chevron and its
affiliates to sell all of the shares of Class B common stock under certain
circumstances. These rights are triggered if Chevron or its board designees
block--which they are entitled to do under our bylaws--any of the following
transactions two times in any 24 month period or three times over any period of
time:
. the issuance of new shares of stock where the aggregate consideration to
be received exceeds the greater of $1 billion or one-quarter of our
total market capitalization;
. any disposition of substantially all of the gas marketing or liquids
lines of business as conducted by Dynegy Holdings prior to the closing
of the business combination between Dynegy Holdings and Illinova;
. any merger, consolidation, joint venture, liquidation, dissolution,
bankruptcy, acquisition of stock or assets, or issuance of common or
preferred stock, any of which would result in payment or receipt of
consideration having a fair market value exceeding the greater of $1
billion or one-quarter of our total market capitalization; or
. any other transaction or series of related transactions having a fair
market value exceeding the greater of $1 billion or one-quarter of our
total market capitalization.
However, upon the occurrence of one of these triggering events and in lieu
of selling the Class B common stock, Chevron may elect to retain the shares of
Class B common stock but forfeit its right and the right of its board designees
to block the transactions listed above.
A block consists of a vote against a proposed transaction by either (a) all
of Chevron's representatives on the board of directors present at the meeting
where the vote is taken (if the transaction would otherwise be approved by the
board of directors) or (b) any of the Class B common stock held by Chevron and
its affiliates if the transaction otherwise would be approved by at least two-
thirds of all other shares entitled to vote on the transaction, excluding
shares held by management, directors or subsidiaries of our company.
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In general, if we exercise our right to cause Chevron to sell its shares,
the process Chevron must follow to sell the shares--and our right to purchase
the shares--are similar to those applicable to other sales by Chevron.
The shareholder agreement also prohibits us from taking the following
actions:
. issuing any shares of Class B common stock to any person other than
Chevron and its affiliates;
. amending any provisions in the articles of incorporation or bylaws
which, in each case, contain or implement the special rights of holders
of Class B common stock, without the consent of the holders of the
shares of Class B common stock or the three directors elected by such
holders;
. adopting a shareholder rights plan, "poison pill" or similar device that
prevents Chevron from exercising its rights to acquire shares of common
stock or from disposing of its shares when required by us; and
. acquiring, owning or operating a nuclear power facility, other than
being a passive investor in a publicly-traded company that owns a
nuclear facility.
The provisions of the shareholder agreement terminate as follows:
. The limitations on acquisitions and transfers by Chevron, the buyout
rights, the restrictions on certain actions of our company and Chevron's
preemptive rights all terminate on the date Chevron and its affiliates
cease to own shares representing at least 15% of our outstanding voting
power. At such time all of the shares of Class B common stock held by
Chevron would convert to shares of Class A common stock, and
. The remaining provisions (primarily relating to the Public Utility
Holding Company Act) terminate on the date Chevron and its affiliates
cease to own shares representing at least 10% of our outstanding voting
power.
Registration Rights
We have granted Chevron registration rights for the Class A common stock
underlying the Class B common held by Chevron. Beginning October 28, 2000,
Chevron has the right on eight occasions to require us to initiate a public
offering for all the shares requested to be sold by Chevron. Chevron may
exercise its rights to request a registration once during any 180 day period.
Additionally, Chevron has the right to participate in and sell shares of stock
held by it during any public offering of our stock whether offered by us or any
other shareholder. Until February 1, 2003, we may not grant registration rights
to other shareholders superior to those granted to Chevron without also
offering such superior registration rights to Chevron.
SELLING SHAREHOLDERS
On August 25, 2000, we and Dynegy Acquisition Corporation, a wholly owned
subsidiary of our company ("Merger Sub"), signed an Agreement and Plan of
Merger (the "Merger Agreement") with Extant, Inc. and each of Extant's
stockholders by which Extant was merged with and into Merger Sub. By operation
of the merger, the selling stockholders received shares of our Class A common
stock in exchange for the shares of Extant common stock owned by them. In
connection with the merger, we agreed to register the resale by the selling
shareholders of the shares issued to the selling shareholders in the merger.
The selling shareholders own an aggregate of 1,625,083 shares of our Class A
common stock, which is less than one percent of the Class A common stock prior
to the offering.
All expenses incurred with the registration of the shares of Class A common
stock owned by the selling shareholders will be borne by the Company; provided
that, the Company will not be obligated to pay any underwriting fees, discounts
or commissions in connection with such registration.
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PLAN OF DISTRIBUTION
Shares may be sold or distributed from time to time by the selling
stockholders named in this prospectus and, to the extent permitted by their
registration rights agreement with Dynegy, by their donees or transferees and
their other successors in interest. The selling stockholders may sell their
shares at market prices prevailing at the time of sale, at prices related to
such prevailing market prices, at negotiated prices, or at fixed prices, which
may be changed. Each selling stockholder reserves the right to accept or
reject, in whole or in part, any proposed purchase of shares, whether the
purchase is to be made directly or through agents.
The selling stockholders may offer their shares at various times in one or
more of the following transactions:
. in ordinary brokers' transactions and transactions in which the broker
solicits purchasers;
. in transactions involving cross or block trades or otherwise on the New
York Stock Exchange;
. in transactions "at the market" to or through market makers in the
common stock or into an existing market for the common stock;
. in other ways not involving market makers or established trading
markets, including direct sales of the shares to purchasers or sales of
the shares effected through agents;
. through transactions in options, swaps or other derivatives which may or
may not be listed on an exchange;
. in privately negotiated transactions;
. in transactions to cover short sales; or
. in a combination of any of the foregoing transactions.
The selling stockholders also may sell their shares in accordance with Rule 144
under the Securities Act.
From time to time, one or more of the selling stockholders may pledge or
grant a security interest in some or all of the shares owned by them. If the
selling stockholders default in performance of their secured obligations, the
pledgees or secured parties may offer and sell the shares from time to time by
this prospectus. The selling stockholders also may transfer and donate shares
in other circumstances. The number of shares beneficially owned by selling
stockholders will decrease as and when the selling stockholders transfer or
donate their shares or default in performing obligations secured by their
shares. The plan of distribution for the shares offered and sold under this
prospectus will otherwise remain unchanged, except that the transferees,
donees, pledgees, other secured parties or other successors in interest will be
selling stockholders for purposes of this prospectus.
A selling stockholder may sell short the common stock. The selling
stockholder may deliver this prospectus in connection with such short sales and
use the shares offered by this prospectus to cover such short sales.
A selling stockholder may enter into hedging transactions with broker-
dealers. The broker-dealers may engage in short sales of the common stock in
the course of hedging the positions they assume with the selling stockholder,
including positions assumed in connection with distributions of the shares by
such broker-dealers. A selling stockholder also may enter into option or other
transactions with broker-dealers that involve the delivery of shares to the
broker-dealers, who may then resell or otherwise transfer such shares. In
addition, a selling stockholder may loan or pledge shares to a broker-dealer,
which may sell the loaned shares or, upon a default by the selling stockholder
of the secured obligation, may sell or otherwise transfer the pledged shares.
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The selling stockholders may use brokers, dealers, underwriters or agents to
sell their shares. The persons acting as agents may receive compensation in the
form of commissions, discounts or concessions. This compensation may be paid by
the selling stockholders or the purchasers of the shares of whom such persons
may act as agent, or to whom they may sell as principal, or both. The
compensation as to a particular person may be less than or in excess of
customary commissions. The selling stockholders and any agents or broker-
dealers that participate with the selling stockholders in the offer and sale of
the shares may be deemed to be "underwriters" within the meaning of the
Securities Act. Any commissions they receive and any profit they realize on the
resale of the shares by them may be deemed to be underwriting discounts and
commissions under the Securities Act. Neither we nor any selling stockholders
can presently estimate the amount of such compensation.
If a selling stockholder sells shares in an underwritten offering, the
underwriters may acquire the shares for their own account and resell the shares
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. In such event, we will set forth in a supplement to this
prospectus the names of the underwriters and the terms of the transactions,
including any underwriting discounts, concessions or commissions and other
items constituting compensation of the underwriters and broker-dealers. The
underwriters from time to time may change any public offering price and any
discounts, concessions or commissions allowed or reallowed or paid to broker-
dealers. Unless otherwise set forth in a supplement, the obligations of the
underwriters to purchase the shares will be subject to certain conditions, and
the underwriters will be obligated to purchase all of the shares specified in
the supplement if they purchase any of the shares.
We have informed the selling stockholders that during such time as they may
be engaged in a distribution of the shares, they are required to comply with
Regulation M under the Securities Exchange Act. With exceptions, Regulation M
prohibits any selling stockholder, any affiliated purchasers and other persons
who participate in such a distribution from bidding for or purchasing, or
attempting to induce any person to bid for or purchase, any security which is
the subject of the distribution until the entire distribution is complete.
We have informed the selling stockholders that they are legally required to
deliver copies of this document in connection with any sale of securities
registered hereunder in accordance with applicable prospectus delivery
requirements.
Under Dynegy's registration rights agreement with the selling stockholders,
Dynegy is required to bear the expenses relating to this offering, excluding
any underwriting discounts or commissions, stock transfer taxes and fees of
legal counsel to the selling stockholders.
Dynegy has agreed to indemnify the selling stockholders and their respective
controlling persons against certain liabilities, including certain liabilities
under the Securities Act. Dynegy will not receive any of the proceeds from the
sale by the selling stockholders of the shares offered by this document.
This offering by any selling stockholder will terminate on the date
specified in the selling stockholder's registration rights agreement with
Dynegy, or, if earlier, on the date on which the selling stockholder has sold
all of such selling stockholder's shares.
In order to comply with certain state securities laws, if applicable, the
shares offered by this document will not be sold in a particular state unless
such shares have been registered or qualified for sale in such state or an
exemption from registration or qualification is available and complied with,
and, if so required, will only be sold in that state through registered or
licensed brokers or dealers.
The shares of common stock originally issued by Dynegy to the selling
stockholders bear legends as to their restricted transferability. Upon the
effectiveness of the registration statement of which this document is a part,
and the transfer by the selling stockholders of any of the shares pursuant
thereto, new certificates representing those shares will be issued to the
transferee, free of any such legends unless otherwise required by law.
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VALIDITY OF SECURITIES
The validity of the shares offered by this prospectus has been passed upon
for Dynegy by Vinson & Elkins L.L.P., Houston, Texas.
EXPERTS
The audited consolidated financial statements and schedule of Dynegy Inc.
and its subsidiaries, incorporated by reference in this registration statement,
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report.
The audited historical consolidated financial statements of Illinova
Corporation incorporated in this Registration Statement by reference to Dynegy
Inc.'s Current Report on Form 8-K dated March 17, 2000, which included
Illinova's audited historical consolidated financial statements for the year
ended December 31, 1999, on pages 3 through 44, have been so incorporated in
reliance on the report (which contains explanatory paragraphs that describe the
merger of Illinova and Dynegy Inc. in Note 16, discussions of the commitment to
exit nuclear operations and the resulting impairment of the Clinton Power
Station in accordance with Statement of Financial Accounting Standards No. 121,
"Accounting for the Impairment of Long-Lived Assets and for Long-Lived Assets
to Be Disposed Of," Illinova's quasi-reorganization effective December 1998 and
Illinova's adoption of Statement of Financial Accounting Standards No. 133,
"Accounting for Derivatives and Hedging Activities" and Emerging Issues Task
Force Statement 98-10, "Accounting for Energy Trading and Risk Management
Activities," all as discussed in Note 3, and Illinova's discontinued use of
Statement of Financial Accounting Standards No. 71, "Accounting for the Effects
of Certain Types of Regulation," for its generation segment of the business,
discussed in Note 1 to the audited historical consolidated financial
statements) of PricewaterhouseCoopers LLP, independent accountants, given on
the authority of said firm as experts in auditing and accounting.
9
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The expenses in connection with the issuance and distribution of the
securities being registered are estimated as follows:
<TABLE>
<S> <C>
Registration Fee.................................................... $25,432
Legal fees and expenses............................................. 30,000
Accounting fees and expenses........................................ 15,000
Printing expenses................................................... 5,000
Miscellaneous expenses.............................................. 1,000
-------
Total............................................................. $76,432
=======
</TABLE>
ITEM 15. Indemnification of Directors and Officers
Section 8.75 of the Illinois Business Corporation Act empowers Illinois
corporations to indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative by reason
of the fact that the person is or was a director, officer, employee or agent of
the registrant, or is or was serving at the request of the registrant as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding, so
long as such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the registrant and,
with respect to any criminal action or proceeding, had no reasonable cause to
believe his or her conduct was unlawful. For actions or suits by or in the
right of the registrant, no indemnification is permitted in respect of any
claim, issue or matter as to which such person is adjudged to be liable to the
registrant, unless, and only to the extent that, the court in which such action
or suit was brought determines upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the court
deems proper. Any indemnification (unless ordered by a court) will be made by
the registrant only as authorized in the specific case upon a determination
that indemnification of the director, officer, employee or agent is proper in
the circumstances because the person has met the applicable standard of conduct
set forth above. Such determination shall be made (1) by the board of directors
by a majority vote of a quorum consisting of the directors who are not parties
to such action, suit or proceeding, or (2) if such a quorum is not obtainable
or if such directors so direct, by independent legal counsel in a written
opinion, or (3) by the shareholders. Such indemnification is not exclusive of
any other rights to which those indemnified may be entitled under any bylaws,
agreement, vote of shareholders or otherwise.
Section 8.75 also authorizes the registrant to buy directors' and officers'
liability insurance and gives a director, officer, employee or agent of the
registrant, or a person who is or was serving at the request of the registrant
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted
against such person and incurred by such person in any capacity, or arising out
of the person's status as such, whether or not the registrant has the power to
indemnify the person against such liability.
The Company's articles of incorporation require indemnification of directors
and officers, and the Company's bylaws allow indemnification of employees and
agents generally in accordance with the language of Section 8.75. Additionally,
the articles of incorporation authorize the Company to purchase and maintain
insurance on behalf of any director, officer, employee or agent of the Company
against any liability asserted
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<PAGE>
against or incurred by them in such capacity or arising out of their status as
such whether or not the Company would have the power to indemnify such
director, officer, employee or agent against such liability under the
applicable provisions of the articles of incorporation.
Section 8.3 of the merger agreement relating to the business combination of
Dynegy Holdings and Illinova provides for indemnification by the Company under
certain circumstances of the directors, officers and certain employees of
Dynegy Holdings and Illinova. Additionally, the merger agreement provides that
the Company will maintain Dynegy Holdings' and Illinova's existing officers'
and directors' insurance policies or provide substantially similar insurance
coverage for at least six years.
ITEM 16. Exhibits
<TABLE>
<C> <S>
3.1 --Articles of Incorporation (incorporated by reference to Exhibit 3.1 to
Amendment No. 1 to the Company's Registration Statement on Form S-4
filed with the Securities and Exchange Commission on September 7,
1999).
3.2 --Articles of Amendment to the Company's Articles of Incorporation
(incorporated by reference to Exhibit 3.2 to Amendment No.1 to the
Company's Registration Statement on Form S-4 filed with the Securities
and Exchange Commission on September 7, 1999).
3.3 --Amended Bylaws of the Company (incorporated by reference to Exhibit
3.4 to the Company's Annual Report on Form 10-K for the year ended
December 31, 1999).
4.1 --Specimen Class A Common Stock Certificate (incorporated by reference
to Exhibit 4.4 to the Company's Registration Statement on Form S-8
filed with the Securities and Exchange Commission on October 5, 2000).
*5.1 --Opinion of Vinson & Elkins L.L.P., as to the validity of the
securities.
*23.1 --Consent of Arthur Andersen LLP.
*23.2 --Consent of PricewaterhouseCoopers LLP.
*23.3 --Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
*24.1 --Powers of Attorney (included in signature page).
</TABLE>
--------
* Filed herewith.
ITEM 17. Undertaking
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post effective amendment to this registration statement:
(i)To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii)To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
II-2
<PAGE>
(iii)To include any material information with respect to the plan of
distribution not previously disclosed on the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions set forth in response to Item 15, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
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<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Dynegy Inc. certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned thereunto
duly authorized, in the City of Houston, State of Texas on October 6, 2000.
DYNEGY INC.
By /s/ Robert D. Doty, Jr.
----------------------------------
Robert D. Doty, Jr.
Senior Vice President
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Robert D. Doty,
Jr., Kenneth E. Randolph and Lisa Q. Metts as his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement and any registration statement for
the same offering filed pursuant to Rule 462 under the Securities Act of 1933,
and to file the same, with all exhibits thereto and all other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents full power and authority to do and
perform each and every act and anything appropriate or necessary to be done, as
fully and for all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their substitute or substitutes may lawfully do or cause to be done
by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on October 6, 2000.
<TABLE>
<CAPTION>
Name And Signature Title
------------------ -----
<C> <S>
/s/ C.L. Watson Chairman of the Board and
____________________________________ Chief Executive Officer,
C.L. Watson Director (Principal
Executive Officer)
/s/ Stephen W. Bergstrom President and Chief
____________________________________ Operating Officer, Director
Stephen W. Bergstrom
/s/ Robert D. Doty, Jr. Senior Vice President and
____________________________________ Chief Financial Officer
Robert D. Doty, Jr. (Principal Financial
Officer)
/s/ Bradley P. Farnsworth Senior Vice President and
____________________________________ Controller (Principal
Bradley P. Farnsworth Accounting Officer)
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
Name And Signature Title
------------------ -----
<C> <S>
/s/ Charles E. Bayless Director
____________________________________
Charles E. Bayless
/s/ J. Otis Winters Director
____________________________________
J. Otis Winters
/s/ Daniel L. Dienstbier Director
____________________________________
Daniel L. Dienstbier
/s/ George L. Kirkland Director
____________________________________
George L. Kirkland
/s/ Darald W. Callahan Director
____________________________________
Darald W. Callahan
/s/ Richard H. Matzke Director
____________________________________
Richard H. Matzke
/s/ J. Joe Adorjan Director
____________________________________
J. Joe Adorjan
/s/ C. Steven McMillan Director
____________________________________
C. Steven McMillan
/s/ Robert M. Powers Director
____________________________________
Robert M. Powers
/s/ Sheli Z. Rosenberg Director
____________________________________
C. Sheli Z. Rosenberg
/s/ Joe J. Stewart Director
____________________________________
Joe J. Stewart
</TABLE>
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