{"id":41189,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/offer-of-cash-purchase-of-outstanding-stocks-icahn-enterprises.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"offer-of-cash-purchase-of-outstanding-stocks-icahn-enterprises","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/finance\/offer-of-cash-purchase-of-outstanding-stocks-icahn-enterprises.html","title":{"rendered":"Offer of Cash Purchase of Outstanding Stocks – Icahn Enterprises"},"content":{"rendered":"

Offer to Purchase for Cash <\/strong><\/p>\n

All Outstanding Shares of Common Stock <\/strong><\/p>\n

Including the Associated Rights <\/strong><\/p>\n

of <\/strong><\/p>\n

DYNEGY INC. <\/strong><\/p>\n

by <\/strong><\/p>\n

IEH MERGER SUB LLC <\/strong><\/p>\n

a wholly-owned subsidiary of <\/strong><\/p>\n

ICAHN ENTERPRISES HOLDINGS L.P. <\/strong><\/p>\n<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
\n

THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT
\n12:00<\/strong><\/p>\n

MIDNIGHT, NEW YORK CITY TIME, ON JANUARY 25, 2011,
\nUNLESS THE<\/strong><\/p>\n

OFFER IS EXTENDED (SUCH DATE AND TIME, AS IT MAY BE
\nEXTENDED, THE<\/strong><\/p>\n

“EXPIRATION DATE<\/u>“) OR EARLIER
\nTERMINATED.<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

December 22, 2010<\/p>\n

To Brokers, Dealers, Commercial Banks,<\/p>\n

Trust Companies and Other Nominees:<\/p>\n

We have been appointed by IEH Merger Sub LLC, a Delaware limited liability
\ncompany (the “Offeror<\/u>“) and a wholly-owned subsidiary of Icahn
\nEnterprises Holdings L.P., a Delaware limited partnership, to act as Information
\nAgent in connection with the Offeror153s offer to purchase all of the issued and
\noutstanding shares of common stock, par value $.01 per share (the “Common
\nStock<\/u>“), of Dynegy Inc., a Delaware corporation (the “Company<\/u>“), and
\nthe associated rights issued pursuant to the Stockholder Protection Rights
\nAgreement, dated as of November 22, 2010, and as amended on December 15, 2010,
\nbetween the Company and Mellon Investor Services LLC, as Rights Agent, that are
\nissued and outstanding (the “Rights<\/u>” and, together with the Common Stock,
\nthe “Shares<\/u>“), at a price of $5.50 per Share, net to the seller in cash
\nwithout interest, less any applicable withholding taxes, upon the terms and
\nsubject to the conditions set forth in the Offer to Purchase dated December 22,
\n2010 (the “Offer to Purchase<\/u>“), and the related Letter of Transmittal
\n(which, together with any amendments or supplements thereto, collectively
\nconstitute the “Offer<\/u>“), copies of which are enclosed herewith.<\/p>\n

Consummation of the Offer is subject to certain conditions as described in
\nthe Offer to Purchase. See Section 15 of the Offer to Purchase. Subject to the
\nterms and conditions specified in the Offer, which conditions (other than the
\nMinimum Condition and the Regulatory Condition (in each case, as defined below),
\nwhich may only be waived with the prior written consent of the Company) may be
\nwaived by the Offeror at any time in whole or in part, the Offeror will accept
\nfor payment any and all Shares validly tendered and not properly withdrawn on or
\nprior to the expiration date of the Offer.<\/p>\n

Please furnish copies of the enclosed materials to those of your clients for
\nwhose accounts you hold Shares registered in your name or in the name of your
\nnominee.<\/p>\n

For your information and for forwarding to your clients, we are enclosing the
\nfollowing documents:<\/p>\n

1. The Offer to Purchase.<\/p>\n

2. The Letter of Transmittal for your use in accepting the Offer and for the
\ninformation of your clients, including a Certification of Taxpayer
\nIdentification Number on Substitute Form W-9. Facsimile copies of the Letter of
\nTransmittal (with manual signatures) may be used to tender Shares.<\/p>\n

3. A printed form of letter that may be sent to your clients for whose
\naccount you hold Shares in your name or in the name of your nominee with space
\nprovided for obtaining such clients153 instructions with regard to the Offer.<\/p>\n

\n

4. A Notice of Guaranteed Delivery to be used to accept the Offer if
\ncertificates representing Shares and, if certificates have been issued in
\nrespect of the Rights prior to the expiration of the Offer, certificates
\nrepresenting the associated Rights are not immediately available or if time will
\nnot permit all required documents to reach American Stock Transfer & Trust
\nCompany (the “Depositary<\/u>“) prior to the expiration date of the Offer or
\nif the procedures for book-entry transfer cannot be completed on a timely basis.\n<\/p>\n

5. Guidelines of the Internal Revenue Service for Certification of Taxpayer
\nIdentification Number on Substitute Form W-9. Stockholders who fail to complete
\nand sign the Substitute Form W-9 may be subject to a required federal backup
\nwithholding tax on the gross proceeds payable to such stockholder or other payee
\npursuant to the Offer. See Section 2 of the Offer to Purchase.<\/p>\n

6. A return envelope addressed to the Depositary.<\/p>\n

Your attention is directed to the following:<\/p>\n

1. The tender price is $5.50 per Share, net to the seller in cash, without
\ninterest, less any applicable withholding taxes, upon the terms and subject to
\nthe conditions set forth in the Offer to Purchase.<\/p>\n

2. The Offer is being made for all Shares.<\/p>\n

3. The Offer and withdrawal rights will expire at 12:00 midnight, New York
\nCity time, on January 25, 2011, unless the Offer is extended or earlier
\nterminated.<\/p>\n

4. The Offer is being made in connection with the Agreement and Plan of
\nMerger, dated as of December 15, 2010 (as it may be amended from time to time,
\nthe “Merger Agreement<\/u>“), by and among the Company, the Offeror, and IEP
\nMerger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of the
\nOfferor (“Merger Sub<\/u>“), pursuant to which, after completion of the Offer
\nand the satisfaction or waiver of the conditions set forth therein, Merger Sub
\nwill be merged with and into the Company, and the Company will be the surviving
\ncorporation (which we refer to as the “Merger<\/u>“).<\/p>\n

5. The Board of Directors of the Company, acting upon the recommendation of a
\nspecial committee of the Board of Directors of the Company consisting only of
\nindependent directors of the Company, has, upon the terms and subject to the
\nconditions set forth in the Merger Agreement, unanimously (i) determined that
\nthe Offer and the Merger are fair to, and in the best interests of, the Company
\nand its stockholders, (ii) approved and declared advisable the Merger Agreement,
\nthe Offer, the Merger and the other transactions contemplated thereby, and (iii)
\nrecommended that the Company153s stockholders accept the Offer, tender their
\nShares into the Offer and, if required by applicable law, adopt the Merger
\nAgreement.<\/p>\n

6. The Offer is conditioned on there being validly tendered in the Offer and
\nnot properly withdrawn prior to midnight, New York City time, on January 25,
\n2011 (the “Expiration Date,” unless the Offeror shall have extended the period
\nduring which the Offer is open pursuant to and in accordance with the Merger
\nAgreement, in which event “Expiration Date” shall mean the latest time and date
\nat which the Offer, as so extended by the Offeror, shall expire) that number of
\nShares which, when added to any Shares already owned by the Offeror, its
\nsubsidiaries and certain affiliates of the Offeror that are parties to the
\nStockholder Support Agreement entered into simultaneously with the Merger
\nAgreement between such parties and the Company (including Shares that are
\nsubject to options to purchase Shares to the extent such options have been
\nirrevocably exercised and paid for prior to the Expiration Date), represents at
\nleast a majority of the issued and outstanding Shares on a fully diluted basis
\nas of the Expiration Date (assuming the issuance of all Shares that may be
\nissued upon the vesting of outstanding restricted stock of the Company, plus
\nShares issuable upon the exercise of all outstanding options to purchase Shares
\nunder Company stock plans, warrants and other rights to purchase Shares with an
\nexercise price per Share less<\/p>\n<\/p>\n

2<\/p>\n

\n

than the Offer Price) (such condition, the “Minimum Condition<\/u>“). The
\nOffer is also subject to the satisfaction, prior to the Expiration Date, of
\ncertain other conditions set forth in the Offer to Purchase, including, among
\nother conditions, that (i) the Merger Agreement shall not have been terminated
\nin accordance with its terms, (ii) the approval of the Federal Energy Regulatory
\nCommission under Section 203 of the Federal Power Act, as amended, shall have
\nbeen received and the approval, or a determination that no approval is required,
\nof the New York State Public Service Commission under the New York Public
\nService Law, as amended, shall have been received with respect to the
\nconsummation of the Offer and the Merger, and (iii) the waiting period
\napplicable to the consummation of the Offer under the Hart-Scott-Rodino
\nAntitrust Improvements Act of 1976, as amended, and the rules and regulations
\nthereunder shall have expired or been terminated (the conditions set forth in
\nclauses (ii) and (iii) above, the “Regulatory Condition<\/u>“). The Offer is
\nalso subject to other specified conditions. See Section 15 of the Offer to
\nPurchase.<\/p>\n

7. Stockholders who tender Shares will not be obligated to pay brokerage fees
\nor commissions to the Information Agent or the Depositary or, except as set
\nforth in Instruction 6 of the Letter of Transmittal, stock transfer taxes on the
\npurchase of Shares by Offeror pursuant to the Offer.<\/p>\n

Upon the terms and subject to the conditions of the Offer (including, if the
\nOffer is extended or amended, the terms and conditions of any such extension or
\namendment), the Offeror will accept for payment and pay for all Shares that are
\nvalidly tendered on or prior to the Expiration Date and not theretofore properly
\nwithdrawn pursuant to the Offer. In all cases, payment for Shares accepted for
\npayment pursuant to the Offer will be made only after (a) timely receipt by the
\nDepositary of (i) certificates representing such Shares and, if certificates
\nhave been issued in respect of the Rights prior to the expiration of the Offer,
\ncertificates representing the associated Rights (or a timely confirmation of a
\nbook-entry transfer of such Shares into the Depositary153s account at The
\nDepository Trust Company, pursuant to the procedures described in Section 2 of
\nthe Offer to Purchase), (ii) a properly completed and duly executed Letter of
\nTransmittal (or facsimile thereof) with any required signature guarantees (or,
\nin connection with a book-entry transfer, an Agent153s Message (as defined in
\nSection 2 of the Offer to Purchase)), and (iii) all other documents required by
\nthe Letter of Transmittal, or (b) compliance with the guaranteed delivery
\nprocedures specified under Section 2 of the Offer to Purchase.<\/p>\n

The Rights are presently evidenced by the certificates for the Common Stock.
\nHowever, in the future the Company may issue separate certificates representing
\nthe Rights. Until such time as any such certificates are issued, a tender by a
\nstockholder of such stockholder153s shares of Common Stock will also constitute a
\ntender of the associated Rights. After such time as any such certificates
\nrepresenting Rights are issued, a stockholder will also be required to tender
\nsuch certificates representing the associated Rights in connection with a tender
\nby such stockholder of such stockholder153s shares of Common Stock. Unless the
\ncontext requires otherwise, all references in this letter of transmittal to
\n“Shares” shall include the associated Rights.<\/p>\n

If holders of Shares wish to tender, but it is impracticable for them to
\nforward their certificates or other required documents prior to the expiration
\nof the Offer, a tender may be effected by following the guaranteed delivery
\nprocedures specified under Section 2 of the Offer to Purchase.<\/p>\n

The Offeror will not pay any fees or commissions to any broker or dealer or
\nto any other person (other than the Depositary and the Information Agent) in
\nconnection with the solicitation of tenders of Shares pursuant to the Offer. The
\nOfferor will, however, upon request, reimburse you for customary mailing and
\nhandling expenses incurred by you in forwarding the enclosed materials to your
\nclients. The Offeror will pay or cause to be paid any stock transfer taxes
\npayable on the transfer of Shares to it, except as otherwise provided in
\nInstruction 6 of the Letter of Transmittal.<\/p>\n

YOUR PROMPT ACTION IS REQUESTED. WE URGE YOU TO CONTACT YOUR CLIENTS
\nAS PROMPTLY AS POSSIBLE. PLEASE NOTE THAT THE OFFER AND WITHDRAWAL RIGHTS WILL
\nEXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON JANUARY 25, 2011, UNLESS THE
\nOFFER IS EXTENDED. <\/strong><\/p>\n<\/p>\n

3<\/p>\n

\n

Any inquiries you may have with respect to the Offer should be directed to,
\nand additional copies of the enclosed materials may be obtained by contacting,
\nthe undersigned at (203) 658-9400.<\/p>\n

Very truly yours,<\/p>\n

MORROW & Co., LLC<\/p>\n

NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL
\nCONSTITUTE YOU OR ANY PERSON AS AN AGENT OF OFFEROR OR THE COMPANY, THE
\nDEPOSITARY OR THE INFORMATION AGENT, OR ANY AFFILIATE OF ANY OF THE FOREGOING,
\nOR AUTHORIZE YOU OR ANY OTHER PERSON TO GIVE ANY INFORMATION OR USE ANY DOCUMENT
\nOR MAKE ANY STATEMENTS ON BEHALF OF ANY OF THEM IN CONNECTION WITH THE OFFER
\nOTHER THAN THE DOCUMENTS ENCLOSED HEREWITH AND THE STATEMENTS CONTAINED THEREIN.
\n<\/strong><\/p>\n<\/p>\n

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