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| DYNIQ > SEC Filings for DYNIQ > Form 8-K on 13-Sep-2012 | All Recent SEC Filings |
13-Sep-2012
Bankruptcy or Receivership, Regulation FD Disclosure, Financial Statements and Exhibi
As previously disclosed, on November 7, 2011, Dynegy Holdings, LLC ("DH") and
four of its wholly-owned subsidiaries, Dynegy Northeast Generation, Inc.
("DNE"), Hudson Power, L.L.C. ("Hudson"), Dynegy Danskammer, L.L.C.
("Danksammer") and Dynegy Roseton, L.L.C. ("Roseton"), filed voluntary petitions
for relief under Chapter 11 of title 11 of the United States Bankruptcy Code
(the "Bankruptcy Code") in the United States Bankruptcy Court for the Southern
District of New York, Poughkeepsie Division (the "Bankruptcy Court"), thereby
commencing cases (the "DH Chapter 11 Cases") that are being jointly administered
under Case No. 11-38111 (CGM). As also previously disclosed, on July 6, 2012,
Dynegy Inc. ("Dynegy") filed a voluntary petition for relief under the
Bankruptcy Code in the Bankruptcy Court, thereby commencing a case (the "Dynegy
Chapter 11 Case" and, together with the DH Chapter 11 Cases, the "Chapter 11
Cases") that is being administered under Case No. 12-36728 (CGM).
On July 12, 2012, Dynegy and DH (together, the "Plan Debtors") filed the Joint Chapter 11 Plan of Reorganization for DH and Dynegy (the "Plan") with the Bankruptcy Court. All capitalized terms used but not otherwise defined herein shall have the meanings ascribed to them in the Plan.
After the confirmation hearing on September 5, 2012, the Bankruptcy Court confirmed the Plan, ruling that Dynegy and DH had met all requirements to confirm the Plan. Accordingly, on September 10, 2012, the Bankruptcy Court entered an order (the "Confirmation Order") confirming the Plan. A copy of the Confirmation Order is attached hereto as Exhibit 2.1 and incorporated herein by reference.
The Plan contemplates, among other things, the merger of DH with and into Dynegy, with Dynegy being the surviving entity of the merger (the "Surviving Entity"). The Bankruptcy Court's confirmation sets the stage for Dynegy to emerge from bankruptcy as planned, on or before October 1, 2012, but the Plan Debtors make no assurances when, or ultimately if, the Plan will become effective.
The following is a summary of the material terms of the Plan. This summary
highlights only certain provisions of the Plan and is not intended to be a
complete description of, or a substitute for a full and complete reading of, the
Plan. This summary is qualified in its entirety by reference to (i) the full
text of the Plan, which was filed as Exhibit 99.1 to the Current Report on
Form 8-K of Dynegy and DH filed with the Securities and Exchange Commission (the
"Commission") on July 13, 2012, and is incorporated herein by reference,
(ii) the full text of the Plan Documents, which were filed as Exhibits 99.1
through 99.8 to the Current Report on Form 8-K of Dynegy and DH filed with the
Commission on August 15, 2012, and which are incorporated herein by reference,
and (iii) the full text of the revised Schedule of Assumed and Assigned
Executory Contracts and Unexpired Leases, which was filed as Exhibit 99.1 to the
Current Report on Form 8-K of Dynegy and DH filed with the Commission on
August 31, 2012, and which is incorporated herein by reference.
A. Summary of the Plan
The Plan substantially strengthens Dynegy's balance sheet by converting approximately $4 billion of senior and subordinated debt into equity. The Plan is built around the following key elements, which are qualified in their entirety by reference to the full text of the Plan:
† By virtue of the merger of DH with and into Dynegy, all Equity Interests in DH issued and outstanding immediately prior to the time at which the Merger becomes effective will be cancelled.
† The Plan provides that each holder of Allowed General Unsecured
Claims shall receive its Pro Rata Share of (a) 99% of the issued and outstanding
shares of Dynegy's common stock as of the Effective Date of the Plan (subject to
dilution by any options, restricted stock or other Equity Interests that may be
issued as equity compensation to officers, employees or directors of Dynegy or
its Affiliates and the Warrants) (the "Reorganized Dynegy Common Stock"),
(b) the $200 million cash payment (the "Plan Cash Payment"), and (c) the
proceeds of the sale of the Roseton and Danskammer generation facilities
allocated to DH (or after the Effective Date of the Plan, Dynegy) according to
the Settlement Agreement (the amount of which is to be determined); provided,
that with respect to sub-clause (c), the Lease Trustee (on behalf of itself and
the Lease Certificate Holders) shall not receive a Pro Rata distribution of any
amounts paid pursuant to sub-clause (c) in its capacity as holder of the Lease
Guaranty Claim.
† Finally, the Plan provides that on the Effective Date, in full
satisfaction of the Dynegy Administrative Claim, the beneficial holder or
holders of the Dynegy Administrative Claim shall receive their Pro Rata Share of
(a) 1% of the issued and outstanding shares of Dynegy common stock as of the
Effective Date of the Plan (subject to dilution by
the Warrants and by any options, restricted stock or other Equity Interests that may be issued as equity compensation to officers, employees or directors of Dynegy or its Affiliates) and (b) warrants to purchase an aggregate of 13.5% of the fully-diluted common shares of Dynegy (subject to dilution by any options, restricted stock or other Equity Interests that may be issued as equity compensation to officers, employees or directors of the Surviving Entity and its Affiliates) for an exercise price to be determined based on a net equity value of Dynegy of $4 billion.
B. Termination of Certain Indebtedness
Subject to the surrender and the cancellation of debt instruments, as provided for in section 9.10 of the Plan, upon the occurrence of the Effective Date, all notes, instruments, certificates and other documents evidencing the Allowed Senior Notes Claims, Allowed Subordinated Notes Claims, and Allowed Lease Guaranty Claims shall be cancelled and annulled to the extent such documents relate to DH, Dynegy, the Surviving Entity or Reorganized Dynegy or any of their Affiliates other than Roseton, Danskammer, DNE and Hudson Power, L.L.C. (but shall survive to the extent that such documents relate to any other Person), and the holders of such Claims shall only be entitled to receive, from DH, Dynegy or the Surviving Entity or any of their Affiliates other than Roseton, Danskammer, DNE, and Hudson Power, L.L.C., the treatment provided under the Plan.
Except as otherwise provided in the Plan, on the Effective Date, in consideration for the distributions to be made on the Effective Date pursuant to the Plan, all liens, charges, encumbrances and rights against DH, Dynegy, the Surviving Entity or their respective Estates or Assets, related to any Claim or Equity Interest, shall be terminated, null and void and of no effect.
In addition, on the Effective Date, the currently outstanding shares of the common stock of Dynegy will be cancelled.
C. Treatment of Executory Contracts and Unexpired Leases
The Plan provides that all of the Plan Debtors' executory contracts and unexpired leases, except as set forth in the Plan, shall be deemed rejected as of the Effective Date, subject to the terms set forth therein. The Plan also provides that, for each of the Plan Debtors' executory contracts to be assumed, the Plan Debtors shall designate a proposed cure. The deadline to object to a proposed cure, or any other matter relating to assumption or assignment, has passed.
D. Long Term Management Incentive Plan
On the Effective Date, Dynegy will implement the 2012 Long Term Management Incentive Plan (the "LTIP"). The LTIP is set forth in Exhibit "C" to the Plan, which was filed as Exhibit 99.6 to the Current Report on Form 8-K of Dynegy and DH filed with the Commission on August 15, 2012, and is incorporated herein by reference.
Under the proposed terms of the LTIP, certain of Reorganized Dynegy's employees and management will be entitled to participate in an equity plan that will take effect on or following the Effective Date. The post-emergence incentive protocol is intended to retain key management following the Chapter 11 Cases. Upon emergence from the Chapter 11 Cases, five percent (5%) of Dynegy's fully diluted common stock will be available to the Board of Directors of Dynegy (the "New Board") and the compensation committee thereof for granting future equity awards to eligible participants under the LTIP.
E. Compensation and Benefit Programs
The Plan provides that all savings plans, retirement plans, health care plans (including retiree medical benefits), performance based incentive plans, retention plans, severance plans, workers' compensation programs and life, disability, directors and officers liability, and other insurance plans of the Plan Debtors shall be treated as executory contracts under the Plan and they and the pension plans shall, on the Effective Date, be assumed by Dynegy.
F. New Board of Directors of Dynegy
. . .
On September 5, 2012, Dynegy issued a press release announcing the confirmation of the Plan, which is attached hereto as Exhibit 99.1.
Pursuant to General Instruction B.2 of Form 8-K and Commission Release No. 33-8176, the information contained in the press release furnished as an exhibit hereto shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, is not subject to the liabilities of that section, and is not deemed incorporated by reference in any filing under the Securities Act of 1933, as amended, except as shall be expressly set forth by specific reference in such a filing. In addition, the press release contains statements intended as "forward-looking statements," which are subject to the cautionary statements about forward-looking statements set forth in such press release.
(d) Exhibits:
Exhibit No. Document
2.1 Confirmation Order, as entered by the Bankruptcy Court on
September 10, 2012.
99.1 Press release dated September 5, 2012, announcing confirmation of
the Plan.
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