AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 28, 2001
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DYNEGY INC.
(Exact Name of Registrant as Specified in its Charter)
ILLINOIS 74-2928353
(State or Other Jurisdiction (I.R.S. Employer
of Incorporation or Organization) Identification No.)
1000 LOUISIANA STREET, SUITE 5800 77002
HOUSTON, TEXAS (Zip Code)
(Address of Principal Executive Offices)
DYNEGY INC. 2001 NON-EXECUTIVE STOCK INCENTIVE PLAN
DYNEGY INC. DEFERRED COMPENSATION PLAN
(Full Title of the Plans)
KENNETH E. RANDOLPH
1000 LOUISIANA STREET, SUITE 5800
HOUSTON, TEXAS 77002
(713) 507-6400
(Name and Address, Including Zip Code, and
Telephone Number of Agent For Service)
COPIES TO:
JULIEN R. SMYTHE T. MARK KELLY
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. VINSON & ELKINS L.L.P.
1900 PENNZOIL PLACE - SOUTH TOWER 2300 FIRST CITY TOWER
711 LOUISIANA STREET 1001 FANNIN STREET
HOUSTON, TEXAS 77002 HOUSTON, TEXAS 77002
(713) 220-5800 (713) 758-2222
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING AMOUNT OF
TO BE REGISTERED REGISTERED SHARE PRICE REGISTRATION FEE
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Class A Common Stock, no par value 10,000,000(1) $23.68(2) $236,800,000(2) $56,595.20
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Plan Interests (3) $35,000,000(4) 100% $ 35,000,000(4) $ 8,365.00
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Total N/A N/A $271,800,000 $64,960.20
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(1) The number of shares of Class A common stock being registered hereby
pursuant to the Dynegy Inc. 2001 Non-Executive Stock Incentive Plan is
subject to adjustment to prevent dilution resulting from stock splits,
stock dividends or similar transactions.
(2) Estimated solely for the purpose of computing the registration fee pursuant
to Rule 457(c) and (h) under the Securities Act of 1933. The calculation of
the proposed maximum offering price is based upon the average of the high
and low sales prices of the Class A common stock of the Registrant on
December 20, 2001 as reported by the New York Stock Exchange consolidated
reporting system.
(3) The plan interests being registered hereby are the unsecured obligations
of the Registrant to pay deferred compensation in the future in accordance
with the terms of the Dynegy Inc. Deferred Compensation Plan.
(4) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to
be offered or sold pursuant to the employee benefit plans described herein.
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EXPLANATORY NOTE
Dynegy Inc., an Illinois corporation, is filing this registration
statement for the purpose of registering (i) 10,000,000 shares of its Class A
common stock, no par value per share, subject to adjustment to prevent dilution
resulting from stock splits, stock dividends or similar transactions, available
for issuance in connection with stock options or restricted stock awards
granted under the Dynegy Inc. 2001 Non-Executive Stock Incentive Plan, and (ii)
an indeterminate amount of plan interests representing its unsecured
obligations to pay deferred compensation in the future (such obligations
currently expected not to exceed $35,000,000 in the aggregate) in accordance
with the terms of the Dynegy Inc. Deferred Compensation Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Information required by Part I, Item 1 to be contained in each Section
10(a) Prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Information required by Part I, Item 2 to be contained in each Section
10(a) Prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act and the Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Dynegy with the Securities and Exchange
Commission are incorporated by reference in this registration statement:
(a) Dynegy's Annual Report on Form 10-K for the fiscal year ended
December 31, 2000, as filed with the Commission on March 13,
2001;
(b) Dynegy's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 2001, June 30, 2001 and
September 30, 2001, as filed with the Commission on
May 14, 2001, August 14, 2001 and October 30, 2001,
respectively;
(c) Dynegy's Current Reports on Form 8-K filed with the Commission
on January 16, 2001, February 14, 2001, May 16, 2001, June 26,
2001 (Item 5 information only), November 14, 2001, November
29, 2001 (Item 5 information only), November 30, 2001,
December 4, 2001 (Item 5 information only) and December 26,
2001 (Item 5 information only); and
(d) The description of Dynegy's Class A common stock contained in
the registration statement on Form 8-A, as filed with the
Commission on February 2, 2000.
In addition, all documents filed by Dynegy pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the effective date of this registration statement, prior to the
filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities then remaining
unsold, shall be deemed to be incorporated by reference in this registration
statement and to be a part of this registration statement from the date of
filing of such documents. Any statement contained herein or in any document
incorporated or deemed to be incorporated by reference shall be deemed to be
modified or superseded for purposes of this registration statement to the
extent that a statement contained in any other subsequently filed document
which also is or is deemed to be incorporated by reference modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed to constitute a part of this registration statement, except as so
modified or superseded.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
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ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. 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
Dynegy, or is or was serving at the request of Dynegy 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 Dynegy 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 Dynegy, no indemnification
is permitted in respect of any claim, issue or matter as to which such person is
adjudged to be liable to Dynegy, 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 Dynegy 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. To the extent that a director,
officer, employee or agent of Dynegy has been successful, on the merits or
otherwise, in the defense of any action, suit or proceeding described above or
in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith. 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 Dynegy to buy and maintain insurance on
behalf of any director, officer, employee or agent of Dynegy, or a person who is
or was serving at the request of Dynegy 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 such capacity, or arising out of the person's status as such,
whether or not Dynegy has the power to indemnify the person against such
liability.
Dynegy's amended and restated articles of incorporation require
indemnification of directors and officers, and Dynegy's amended and restated
bylaws allow indemnification of employees and agents generally in accordance
with the language of Section 8.75. Additionally, the amended and restated
articles of incorporation authorize Dynegy to purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee or agent of
Dynegy, or was or is serving at the request of Dynegy as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise against any liability asserted against or incurred by them in
such capacity or arising out of their status as such whether or not Dynegy
would have the power to indemnify such person against such liability under the
applicable provisions of the amended and restated articles of incorporation.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of Dynegy
(incorporated by reference to Appendix A to Dynegy's Definitive
Proxy Statement on Schedule 14A filed with the Commission on
April 25, 2001).
2
4.2 Amended and Restated Bylaws of Dynegy (incorporated by reference to
Exhibit 3.4 to Dynegy's Annual Report on Form 10-K for the year
ended December 31, 1999, File Number 1-15659, filed with the
Commission on March 2, 2000).
4.3 Statement of Resolution Establishing Series of Series B Mandatorily
Convertible Redeemable Preferred Stock of Dynegy Inc.
(incorporated by reference to Exhibit 4.1 to Dynegy's Current
Report on Form 8-K, File Number 1-15659, filed with the
Commission on November 14, 2001).
4.4 Specimen Class A Common Stock Certificate (incorporated by reference
to Exhibit 4.4 to the registration statement of Dynegy on Form S-8,
File Number 333-47422, filed with the Commission on October 5,
2000).
4.5* Dynegy Inc. 2001 Non-Executive Stock Incentive Plan.
4.6* Dynegy Inc. Deferred Compensation Plan.
4.7* Dynegy Inc. Deferred Compensation Plan Trust Agreement.
5.1* Opinion of Bell, Boyd & Lloyd LLC as to the legality of the
securities being registered.
23.1* Consent of Bell, Boyd & Lloyd LLC (included in the opinion filed as
Exhibit 5.1 to this registration statement).
23.2* Consent of Arthur Andersen LLP.
24.1* Powers of Attorney (included in the signature page of this
registration statement on Form S-8).
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*filed herewith
ITEM 9. UNDERTAKINGS.
(a) The 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;
(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) if, in the aggregate, the changes in volume and price
represent no more than 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
PROVIDED, HOWEVER, that if the information required to be included
in a post-effective amendment by paragraphs (a)(1)(i) and (a)(1)(ii) is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in the registration statement, paragraphs (a)(1)(i)
and (a)(1)(ii) will not apply.
(2) That, for the purpose of determining any liability under the
Securities Act, 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
(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.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
4
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that
it meets all of the requirements for filing on Form S-8 and has duly caused
this registration statement on Form S-8 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of
Texas, on December 28, 2001.
DYNEGY INC.
By: /s/ C.L. WATSON
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C.L. Watson
Chairman of the Board, Chief
Executive Officer and Director
The undersigned directors and officers of the Registrant hereby constitute
and appoint Robert D. Doty, Jr., Kenneth E. Randolph and Lisa Q. Metts with full
power to act without the other and with full power of substitution, our true and
lawful attorneys-in-fact with full power to execute in our name and behalf in
the capacities indicated below any and all amendments (including post-effective
amendments and amendments thereto) to this registration statement on Form S-8
and to file the same, with all exhibits thereto and other documents in
connection therewith with the Securities and Exchange Commission and hereby
ratify and confirm all that such attorneys-in-fact, or either of them, or their
substitutes shall lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed below by the following
persons in the capacities indicated on December 28, 2001.
SIGNATURE TITLE
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/s/ C.L. WATSON Chairman of the Board, Chief
------------------------------------ Executive Officer and Director
C.L. Watson (Principal Executive Officer)
/s/ STEPHEN W. BERGSTROM President and Chief Operating
------------------------------------ Officer, Director
Stephen W. Bergstrom
/s/ ROBERT D. DOTY, JR. Executive Vice President and Chief
------------------------------------ Financial Officer
Robert D. Doty, Jr. (Principal Financial Officer)
/s/ MICHAEL R. MOTT
------------------------------------ Senior Vice President and Controller
Michael R. Mott (Principal Accounting Officer)
/s/ CHARLES E. BAYLESS Director
------------------------------------
Charles E. Bayless
/s/ DARALD W. CALLAHAN Director
------------------------------------
Darald W. Callahan
/s/ MICHAEL D. CAPELLAS Director
------------------------------------
Michael D. Capellas
/s/ DANIEL L. DIENSTBIER Director
------------------------------------
Daniel L. Dienstbier
/s/ PATRICIA M. ECKERT Director
------------------------------------
Patricia M. Eckert
/s/ JERRY L. JOHNSON Director
------------------------------------
Jerry L. Johnson
/s/ H. JOHN RILEY, JR. Director
------------------------------------
H. John Riley, Jr.
/s/ SHELI Z. ROSENBERG Director
------------------------------------
Sheli Z. Rosenberg
/s/ JOE J. STEWART Director
------------------------------------
Joe J. Stewart
Director
------------------------------------
Glenn Tilton
Director
------------------------------------
John Watson
/s/ J. OTIS WINTERS Director
------------------------------------
J. Otis Winters
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the trustees of the Dynegy Inc. Deferred Compensation Plan have 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
December 28, 2001.
DYNEGY INC. DEFERRED COMPENSATION PLAN
By: /s/ Jane D. Jones
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Name: Jane D. Jones
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Title: Vice President - Rewards and Technology
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INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
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4.1 Amended and Restated Articles of Incorporation (incorporated
by reference to Appendix A to Dynegy's Definitive Proxy
Statement on Schedule 14A filed with the Commission on April
25, 2001).
4.2 Amended and Restated Bylaws of Dynegy (incorporated by
reference to Exhibit 3.4 to Dynegy's Annual Report on Form
10-K for the year ended December 31, 1999, File Number
1-15659, filed with the Commission on March 2, 2000).
4.3 Statement of Resolution Establishing Series of Series B
Mandatorily Convertible Redeemable Preferred Stock of Dynegy
Inc. (incorporated by reference to Exhibit 4.1 to Dynegy's
Current Report on Form 8-K, File Number 1-15659, filed with
the Commission on November 14, 2001).
4.4 Specimen Class A Common Stock Certificate (incorporated by
reference to Exhibit 4.4 to the registration statement of
Dynegy on Form S-8, File Number 333-47422, filed with the
Commission on October 5, 2000).
4.5* Dynegy Inc. 2001 Non-Executive Stock Incentive Plan.
4.6* Dynegy Inc. Deferred Compensation Plan.
4.7* Dynegy Inc. Deferred Compensation Plan Trust Agreement.
5.1* Opinion of Bell, Boyd & Lloyd LLC as to the legality of the
securities being registered.
23.1* Consent of Bell, Boyd & Lloyd LLC (included in the opinion
filed as Exhibit 5.1 to this registration statement).
23.2* Consent of Arthur Andersen LLP.
24.1* Powers of Attorney (included in the signature page of this
registration statement on Form S-8).
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*filed herewith