As filed with the Securities and Exchange Commission on August 20, 2001
Registration No. 333-66088
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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AMENDMENT NO. 1
TO
Form S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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DYNEGY INC. DYNEGY CAPITAL TRUST III
(Exact Name of Registrant as Specified (Exact Name of Registrant as Specified
in its Charter) in its Charter)
74-2928353 76-6173313
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
Illinois Delaware
(State of incorporation) (State of organization)
1000 Louisiana, Suite 5800 c/o Dynegy Inc.
Houston, Texas 77002 1000 Louisiana, Suite 5800
(713) 507-6400 Houston, Texas 77002
(713) 507-6400
(Address, including zip code, and (Address, including zip code, and
telephone number, including area code, telephone number, including area code,
of Registrant's principal executive of Registrant's principal executive
office) office)
Kenneth E. Randolph, Esq. with a copy to:
Executive Vice President, Vinson & Elkins L.L.P.
General Counsel and Secretary 1001 Fannin, Suite 2300
1000 Louisiana, Suite 5800 Houston, Texas 77002-6760
Houston, Texas 77002 Attn: Keith R. Fullenweider, Esq.
(713) 507-6400 (713) 758-2838
(Name, address, including zip code, and (713) 615-5855 (fax)
telephone number, including area code,
of agent for service)
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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. [_]
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EXPLANATORY NOTE
This amendment is being filed solely to complete Part II of this
Registration Statement and include the exhibits that were not previously filed.
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:
Registration fee................................................ $132,188
Legal fees and expenses......................................... 150,000
Accounting fees and expenses.................................... 40,000
Printing and engraving expenses................................. 75,000
Trustee's fees and expenses..................................... 20,000
Depositary's fees and expenses.................................. 10,000
Rating agency fees.............................................. 100,000
Miscellaneous expenses.......................................... 20,000
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Total......................................................... $547,188
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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. To the extent that a director, officer,
employee or agent of the registrant 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 the registrant to buy and maintain insurance on
behalf of any 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 such 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.
Our Articles of Incorporation require indemnification of directors and
officers, and our Bylaws allow indemnification of employees and agents
generally in accordance with the language of Section 8.75. Additionally, the
Articles of Incorporation authorize us to purchase and maintain insurance on
behalf of any director, officer, employee or agent of the Company against any
liability asserted 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.
The form of Amended and Restated Declaration of Trust provides that the
Company will indemnify, to the fullest extent permitted by law, any
administrative trustee, any officer, director, shareholder, member, partner,
employee, representative, agent or affiliate thereof and any officer, employee
or agent of the Trust or its affiliates (each a "Company Indemnified Person"),
who is or was a party to any threatened, pending or completed action, suit or
proceeding (other than an action by or in the right of the Trust) by reason of
the fact that he is or was a Company Indemnified Person against expenses
(including attorneys' fees and expenses), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the Trust,
and with respect to any criminal action or proceeding, had no reasonable cause
to believe his conduct was unlawful. The form of Amended and Restated
Declaration of Trust provides that no indemnification will be made in respect
of any claim, issue or matter as to which a Company Indemnified Person is
adjudged liable to the Trust unless the Court of Chancery of Delaware or the
court in which such action or suit was brought determines that such Company
Indemnified Person is entitled to indemnity for such expenses as such Court of
Chancery or other court deems proper. To the extent that a Company Indemnified
Person is successful on the merits or otherwise in defense of any action, suit
or proceeding, he shall be indemnified, to the full extent permitted by law,
against expenses (including attorneys' fees) actually and reasonably incurred
by him in connection therewith. Expenses incurred by a Company Indemnified
Person in defending an action, suit or proceeding may be advanced by the
Company in certain circumstances.
The form of Amended and Restated Declaration of Trust also provides that the
Company will indemnify the property trustee, the Delaware trustee and any
officer, director, shareholder, member, partner, employee, representative,
custodian, nominee, agent or affiliate thereof (each a "Fiduciary Indemnified
Person"), for and to hold each Fiduciary Indemnified Person harmless against,
any and all loss, liability, damage, claim or expense including taxes incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of the trust.
ITEM 16. EXHIBITS
**1.1 -- Proposed Form of Underwriting Agreement.
4.1 -- Amended and Restated Articles of Incorporation (incorporated by
reference to Appendix A to the Company's Definitive Proxy
Statement on Schedule 14A filed with the SEC on April 25, 2001).
4.2 -- 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).
**4.3 -- Form of Senior Debt Securities.
***4.4 -- Form of Indenture by and between the Company and Bank One Trust
Company, National Association.
***4.5 -- Form of Subordinated Debt Indenture between the Company and Bank
One Trust Company, National Association.
4.6 -- Certificate of Trust of Dynegy Capital Trust III (incorporated by
reference to Exhibit 4.7 to the Company's Registration Statement
on Form S-3 filed with the SEC on March 1, 2000).
4.7 -- Declaration of Trust of Dynegy Capital Trust III (incorporated by
reference to Exhibit 4.8 to the Company's Registration Statement
on Form S-3 filed with the SEC on March 1, 2000).
***4.8 -- Form of Amended and Restated Declaration of Trust of Dynegy
Capital Trust III.
***4.9 -- Form of Trust Preferred Security Certificate for Dynegy Capital
Trust III (included in Exhibit 4.8).
***4.10 -- Form of Debenture Indenture between the Company and Bank One
Trust Company, National Association, as Trustee.
***4.11 -- Form of Trust Debentures of the Company (included in Exhibit
4.10).
***4.12 -- Form of Guarantee in respect of Dynegy Capital Trust III, with
respect to the Trust Preferred Securities.
**4.13 -- Form of Warrants.
**4.14 -- Form of Depositary Agreement.
**4.15 -- Form of Depositary Receipt.
**4.16 -- Form of Stock Purchase Contracts.
**4.17 -- Form of Stock Purchase Units.
**4.18 -- Form of Subordinated Debt Securities.
*5.1 -- Opinion of Vinson & Elkins L.L.P., as to the validity of the debt
securities.
***5.2 -- Opinion of Richards, Layton & Finger P.A., as to the validity of
the trust preferred securities.
*5.3 -- Opinion of Bell, Boyd & Lloyd LLC as to the validity of the
equity securities (other than the trust preferred securities).
12.1 -- Computation of Ratio of Earnings to Fixed Charges (incorporated
by reference to the Company's Annual Report on Form 10-K for the
year ended December 31, 2000).
***12.2 -- Computation of Ratio of Earnings to Fixed Charges for the Three
Months Ended March 31, 2001.
***23.1 -- Consent of Arthur Andersen LLP.
*23.2 -- Consent of Vinson & Elkins L.L.P. (included in Exhibit 5.1).
***23.3 -- Consent of Richards, Layton & Finger P.A. (included in Exhibit
5.2).
*23.4 -- Consent of Bell, Boyd & Lloyd LLC (included in Exhibit 5.3).
***24.1 -- Powers of Attorney.
***25.1 -- Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Debt Trustee under the Senior Debt
Indenture.
***25.2 -- Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of Debt Trustee under the Subordinated
Debt Indenture.
***25.3 -- Form T-1 Statement of Eligibility of Debenture Trustee and
Qualification under the Trust Indenture Act of 1939 under the
Debenture Indenture.
***25.4 -- Form T-1 Statement of Eligibility of Debenture Trustee and
Qualification under the Trust Indenture Act of 1939 under the
Guarantee with respect to the Amended and Restated Declaration of
Trust.
***25.5 -- Form T-1 Statement of Eligibility of Debenture Trustee and
Qualification under the Trust Indenture Act of 1939 under the
Trust Preferred Securities.
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* Filed herewith.
** To be filed by amendment or in a Current Report on Form 8-K.
*** Filed previously.
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;
(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.
(4) That, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of a registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1)
or (4) or 497(h) under the Securities Act of 1933 shall be deemed to be
part of this registration statement as of the time it was declared
effective.
(5) That, for purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus 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.
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. If 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.
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 August 20, 2001.
Dynegy Inc.
By: /s/ C.L. Watson
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C.L. Watson
Chairman of the Board,
Chief Executive Officer and
Director
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 August 20, 2001.
Name and Signature Title
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* Chairman of the Board, Chief Executive
______________________________________ Officer and Director (Principal
C.L. Watson Executive Officer)
* President and Chief Operating Officer,
______________________________________ Director
Stephen W. Bergstrom
* Senior Vice President and Chief
______________________________________ Financial Officer (Principal
Robert D. Doty, Jr. Financial Officer)
* Senior Vice President and Controller
______________________________________ (Principal Accounting Officer)
Michael R. Mott
* Director
______________________________________
Charles E. Bayless
* Director
______________________________________
Darald W. Callahan
* Director
______________________________________
Michael D. Capellas
* Director
______________________________________
Daniel L. Dienstbier
* Director
______________________________________
Patricia M. Eckert
Name and Signature Title
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* Director
______________________________________
Jerry Johnson
* Director
______________________________________
George L. Kirkland
* Director
______________________________________
R. H. Matzke
* Director
______________________________________
H. John Riley, Jr.
* Director
______________________________________
Sheli Z. Rosenberg
* Director
______________________________________
Joe J. Stewart
* Director
______________________________________
J. Otis Winters
*By: /s/ Lisa Q. Metts.
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Lisa Q. Metts
Attorney-in-Fact
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
Dynegy Capital Trust III 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 August 20, 2001.
Dynegy Capital Trust III
By: Dynegy Inc., as Sponsor
By: /s/ C.L. Watson
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C.L. Watson
Chairman of the Board,
Chief Executive Officer and
Director