Form 8-K DYNEGY INC. For: Nov 18

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported)

November 18, 2016

DYNEGY INC.

(Exact name of registrant as specified in its charter)

(713) 507-6400

(Registrant’s telephone number, including area code)

N.A.

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o                      Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o                      Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o                      Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o                      Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 8.01                                           Other Events

Dynegy Inc. (the “Company” or “Dynegy”) is filing this Current Report on Form 8-K to provide certain financial information with respect to the Company’s pending acquisition of GDF SUEZ Energy North America, Inc. (“GSENA”). As previously disclosed in its Current Reports on Form 8-K filed on February 25, 2016, March 1, 2016 and June 28, 2016, on February 24, 2016, Atlas Power Finance, LLC, a wholly-owned subsidiary of Dynegy (the “Purchaser”), entered into a Stock Purchase Agreement (as amended and restated on June 27, 2016, the “Delta Stock Purchase Agreement”) with GSENA and International Power, S.A. (the “Seller”) pursuant to which the Purchaser agreed to purchase from the Seller all of the issued and outstanding shares of common stock of GSENA, thereby acquiring certain wholly owned assets of GSENA (the “Thermal Assets”) consisting of (i) fifteen natural gas-fire powered facilities located in Illinois, Massachusetts, New Jersey, Ohio, Pennsylvania, Texas, Virginia and West Virginia, (ii) one coal-fired facility in Texas and (iii) one waste coal fired facility in Pennsylvania (the “Acquisition”). The Company currently expects the Acquisition to close during the fourth quarter of 2016.

The purpose of this Current Report on Form 8-K, among other things, is to file the financial information related to the Acquisition set forth in Item 9.01 below so that such financial information is incorporated by reference into the Company’s registration statements filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended.

Included in this filing as Exhibit 99.1 are the unaudited combined financial statements of the Thermal Assets for the periods described in Item 9.01(a) below and the notes related thereto.

The Current Report on Form 8-K contains statements reflecting assumptions, expectations, projections, intentions or beliefs about future events that are intended as “forward looking statements.”  You can identify these statements by the fact that they do not relate strictly to historical or current facts.  Examples of these statements include, but are not limited to, Dynegy’s ability to close the Acquisition. Management cautions that any or all of Dynegy’s forward-looking statements may turn out to be wrong.  Please read Dynegy’s annual, quarterly and current reports filed under the Securities Exchange Act of 1934, as amended, including its Annual Report on Form 10-K for the year ended December 31, 2015, and its Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2016, June 30, 2016 and September 30, 2016 for additional information about the risks, uncertainties and other factors affecting these forward-looking statements and Dynegy generally.  Dynegy’s actual future results may vary materially from those expressed or implied in any forward-looking statements.  All of Dynegy’s forward-looking statements, whether written or oral, are expressly qualified by these cautionary statements and any other cautionary statements that may accompany such forward-looking statements.  In addition, Dynegy disclaims any obligation to update any forward-looking statements to reflect events or circumstances after the date hereof.

Included in this filing as Exhibit 99.2 is the pro forma financial information described in Item 9.01(b) below giving effect to the Acquisition, the buyout of limited liability company interests held by Energy Capital Partners III, LLC (“ECP”) (as previously disclosed on the Company’s Current Report on Form 8-K filed on June 28, 2016), the Company’s offering of $750.0 million in aggregate principal amount of 8.00% Senior Notes due 2025 (as previously disclosed in the Company’s Current Report on Form 8-K filed on October 11, 2016), the issuance of shares of common stock to ECP (as previously disclosed on the Company’s Current Report on Form 8-K filed on March 1, 2016), the Company’s incremental $2.0 billion term loan credit facility (as previously disclosed on the Company’s Current Report on Form 8-K filed on June 28, 2016), the offering of the Company’s tangible equity units (as previously disclosed in the Company’s Current Report on Form 8-K filed on June 15, 2016) and the Company’s completed acquisitions of the membership interest in certain subsidiaries of affiliates of Duke Energy Corp. and Energy Capital Partners (as previously disclosed on the Company’s Current Report on Form 8-K filed on August 26, 2014).

Item 9.01                                           Financial Statements and Exhibits.

(a)                                 Financial Statements of Businesses Acquired

Unaudited combined financial statements of the Thermal Assets as of September 30, 2016 and December 31, 2015 and for the nine months ended September 30, 2016 and 2015 and the notes related thereto, attached as Exhibit 99.1 hereto.

(b)                                 Pro Forma Financial Information

The unaudited pro forma consolidated financial statements of the Company as of and for the nine months ended September 30, 2016 and the year ended December 31, 2015, giving effect to, among other transactions, the Acquisition, attached as Exhibit 99.2 hereto.

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(c)                                  Shell Company Transactions

Not applicable.

(d)                                 Exhibits:

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SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

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EXHIBIT INDEX

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Exhibit 99.1

THERMAL ASSETS

UNAUDITED COMBINED BALANCE SHEETS

AS OF SEPTEMBER 30, 2016 AND DECEMBER 31, 2015

(Continued)

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THERMAL ASSETS

UNAUDITED COMBINED BALANCE SHEETS

AS OF SEPTEMBER 30, 2016 AND DECEMBER 31, 2015

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THERMAL ASSETS

UNAUDITED COMBINED STATEMENTS OF INCOME (LOSS) AND COMPREHENSIVE INCOME (LOSS)

FOR THE THREE AND NINE MONTHS SEPTEMBER 30, 2016 AND 2015

See notes to unaudited combined financial statements.

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THERMAL ASSETS

UNAUDITED COMBINED STATEMENTS OF PARENTS’ EQUITY

FOR THE NINE MONTHS SEPTEMBER 30, 2016 AND 2015

See notes to unaudited combined financial statements.

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THERMAL ASSETS

UNAUDITED COMBINED STATEMENTS OF CASH FLOWS

FOR THE NINE MONTHS SEPTEMBER 30, 2016 AND 2015

See notes to unaudited combined financial statements.

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THERMAL ASSETS

NOTES TO COMBINED FINANCIAL STATEMENTS

(UNAUDITED)

Index to Notes to Unaudited Combined Financial Statements

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1.                      DESCRIPTION OF BUSINESS

These unaudited combined financial statements include the following legal entities (ANP Bellingham Energy Company, LLC, ANP Blackstone Energy Company, LLC, ANP ERCOT Acquisition, LLC, ANP Fuel Services, Inc., ANP Funding I, LLC, Armstrong Power, LLC, Calumet Energy Team, LLC, Coleto Creek Power, LP, Coleto LP, LLC, Coleto GP, LLC, Ennis Power Company, LLC, Hays Energy, LLC, Hopewell Cogeneration, LLC, Hopewell Cogeneration Limited Partnership, IPA APT Generation, LLC, IPA Central, LLC, IPA Operations, Inc., Midlothian Energy, LLC, Milford Power, LLC, NEPCO Services Company, Northeastern Power Company, Pleasants Energy, LLC, Prince George Energy Company, LLC, T-Fuels, LLC, Tractebel Associates Northeast LP, Inc., Tractebel Northeast Generation GP, Inc., Troy Energy, LLC, Wharton County Generation, LLC, Wise County Power Company, LLC, Wise-Fuels Pipeline, Inc.) (collectively, “Thermal Assets” or “the Company”) who collectively own certain power-generating facilities as shown in the table below. The Company is engaged in owning and operating retail, industrial, and non-utility wholesale power-generating facilities. The Company is owned by GDF SUEZ Energy North America, Inc. (GSENA or the “Parent”). GSENA is a wholly owned subsidiary of International Power, S.A. (IP), a Belgian company. IP is a wholly owned subsidiary of ENGIE S.A., formerly GDF SUEZ S.A., (ENGIE), a French-domiciled company. As ENGIE owns 100% of IP in the nine months ended September 30, 2015 and 2016, it is considered GSENA’s ultimate parent (the “Ultimate Controlling Party”).

Power-generating facilities included in the Thermal Assets are listed below and are 100% owned, with the exception of the Northeast Energy Associates and North Jersey Energy Associates assets, which are 50% owned.

GSENA performs management and administrative activities that support the Thermal Assets and all other GSENA entities. These activities include executive oversight, accounting, treasury, tax, legal, procurement, and information technology. These activities are referred to as “GSENA Corporate”. GSENA will be included in the sale described below, which is not included in the definition of the business for these combined financial statements.

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GSENA owns GDF SUEZ Energy Generation North America (GSEGNA). GSEGNA performs support activities for the Thermal Assets and other generation asset entities.

GSENA owns GDF SUEZ Energy Marketing North America (GSEMNA). GSEMNA engages in risk management and brokering activities that support the Thermal Assets and all other business units within GSENA. Activities within GSEMNA that support the Thermal Assets are (i) Gas Storage, which is all related to Thermal Assets, (ii) Local Portfolio Management (LPM), which only supports GSEGNA activities, including Thermal Assets, and (iii) all other activities which support the entirety of GSENA, including Thermal Assets.

For the unaudited combined financial statements, GSENA, GSEGNA, and GSEMNA are considered related parties of the Thermal Assets.

On February 24, 2016, International Power, S.A. signed a Stock Purchase Agreement with Atlas Power Finance, LLC to sell GDF SUEZ Energy North America, Inc. and certain subsidiaries for $3.3 billion. The entities listed above are included in the planned sale, which is expected to close in the fourth quarter of 2016.

Amounts recorded as “Legal Contingency” on the Thermal Assets Combined Balance Sheet are treated as Excluded Legal Proceedings under the Stock Purchase Agreement. The terms of the Stock Purchase Agreement provide that International Power, S.A. will indemnify Atlas Power Finance, LLC from and against any Losses based upon or resulting from the Excluded Legal Proceedings, up to the amount of the Base Purchase Price.

2.                      SIGNIFICANT ACCOUNTING POLICIES

Index to Accounting Policies

A.    Basis of Presentation and Principles of Combination—The unaudited combined financial statements include the accounts of the Thermal Assets, which are entities under common control and management. All intercompany transactions and accounts between the Thermal Assets have been eliminated. All affiliate transactions between the Thermal Assets and GSENA and its subsidiaries, have been included in these unaudited combined financial statements as related party transactions.

The unaudited combined financial statements include certain assets and liabilities that have historically been held at the GSENA level but are specifically identifiable or otherwise attributable to the Company. The Company prepared its unaudited combined financial statements using the accrual basis of accounting and in accordance with accounting principles generally accepted in the United States of America (U.S. GAAP). The Company’s unaudited combined financial statements have been prepared under the historical cost convention, except for certain derivative financial instruments and share-based compensation measured at fair value. The policies set out below have been consistently applied to all periods presented.

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Recent Accounting Pronouncements— In May 2014, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update (ASU) 2014-09-Revenue from Contracts with Customers (Topic 606), which revised accounting guidance for revenue recognition from contracts with customers. This ASU was further updated through the issuance of ASU 2015-14 in August 2015, ASU 2016-08 in March 2016, ASU 2016-10 in April 2016, and ASU 2016-12 in May 2016. The core principle of this guidance is that an entity should recognize revenue to depict the transfer of promised goods or services to customers in an amount that reflects the consideration to which the entity expects to be entitled in exchange for those goods or services. The amendments in ASU 2014-09 also require disclosure of sufficient information to allow users to understand the nature, amount, timing and uncertainty of revenue and cash flows arising from contracts with customers. The amendments in ASU 2015-14 develop a common revenue standard for GAAP and International Financial Reporting Standards by removing inconsistencies and weaknesses in revenue requirements, providing a more robust framework for addressing revenue issues, improving comparability of revenue recognition practices, providing more useful information to users of financial statements, and simplifying the preparation of financial statements. The amendments in ASU 2016-08 are intended to improve the operability and understandability of the implementation guidance on principal versus agent considerations. The amendments in ASU 2016-10 amend certain aspects of ASU 2014-19. The amendments in ASU 2016-12 amended the revenue recognition guidance regarding collectability, noncash consideration, presentation of sales tax and transition. For the Company, the guidance included within these ASU’s is effective for annual periods beginning after December 15, 2018, and interim reporting periods within annual reporting periods beginning after December 15, 2019. The Company is currently evaluating the requirements. The ultimate impact of the new standard has not yet been determined.

In July 2015, the FASB issued an update which will require an entity to measure inventory at the lower of cost and net realizable value. Net realizable value is defined as the estimated selling prices in the ordinary course of business, less reasonably predictable costs of completion, disposal, and transportation. This update is effective on a prospective basis for interim and annual periods beginning after December 15, 2016, with early adoption permitted. Inventory is already valued at the lower of cost or net realizable value, so there will be no impact of this update on the unaudited combined financial statements.

In November 2015, the FASB issued ASU No. 2015-17, Income Taxes (Topic 740). This update requires entities to present deferred tax assets and deferred tax liabilities as noncurrent in the classified balance sheet and eliminates the requirement to allocate a valuation allowance on a pro rata basis between gross current and noncurrent deferred tax assets. The Company early adopted the provisions of this ASU, applied retrospectively as of January 1, 2013.

In February 2016, the FASB issued ASU No. 2016-02, Leases (Topic 842). This update requires the recognition of lease assets and lease liabilities by lessees for leases classified as operating leases under previous U.S. GAAP. For the Company, this guidance is effective for interim and annual periods beginning after December 15, 2019. The Company is currently evaluating the requirements. The ultimate impact of the new standard has not yet been determined.

In August 2016, the FASB issued ASU No. 2016-15, Statement of Cash Flows (Topic 230). This update reduces the diversity in practice in how certain cash receipts and cash payments are presented and classified in the statement of cash flows. For the Company, this guidance is effective for interim and annual periods beginning after December 15, 2018. The Company is currently evaluating the requirements. The ultimate impact of the new standard has not yet been determined.

Other recently issued accounting pronouncements will not have a material impact on the Company’s unaudited combined financial statements.

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B.    Use of Estimates—The preparation of unaudited combined financial statements in conformity with U.S. GAAP requires management to make estimates and judgments that affect the reported amount of assets, liabilities, revenues, and expenses, as well as disclosures of contingent assets and liabilities. Significant estimates and judgments affecting the unaudited combined financial statements are reviewed on a recurring basis, and we record the effect of any necessary adjustments. Uncertainties with respect to such estimates and judgments are inherent in the preparation of unaudited combined financial statements. Estimates and judgments are used in, among other things, (i) developing fair value assumptions to determine the fair value of financial instruments, including derivatives, that are not actively listed on a market, (ii) estimating the useful lives of our assets and asset retirement obligations (AROs), (iii) assessing future tax exposure and the realization of deferred tax assets, (iv) determining amounts to accrue for contingencies, which include expenditure timing, the discount rate applied to future cash flows, and the actual level of expenditure, and (v) valuing the pension assets and liabilities using models with actuarial assumptions. Delineated within the notes to the unaudited combined financial statements are areas involving at a higher degree of judgment or complexity, or areas where assumptions and estimates are significant to the unaudited combined financial statements. Actual results could differ from the estimates. Management believes the estimates and assumptions used are reasonable.

B.1  Allocation of Corporate Expenses—The unaudited combined statements of income (loss) and comprehensive income (loss) also includes expense allocations for certain corporate functions performed by GSENA and its subsidiaries which have not been historically allocated to the Thermal Assets, including allocations of general corporate expenses related to executive oversight, accounting, treasury, tax, legal, procurement, and information technology. These expenses were systematically allocated to the Thermal Assets based on the percentage of revenues of the Thermal Assets entities to total GSENA revenues and in certain cases based on headcount. Expenses allocated to the Thermal Assets were $9.9 million and $28.4 million for the three and nine months ended September 30, 2016, respectively, as compared to $12.9 million and $35.1 million for the three and nine months ended September 30, 2015, and are included in other operating expenses—net in the unaudited combined statements of income (loss) and comprehensive income (loss). These amounts are included in net contribution from parent in the unaudited combined statements of parent’s equity. Also included in this line are other non-cash adjustments primarily for derivatives and income taxes. Intercompany transactions between Thermal Assets and GSENA have been included in these unaudited combined financial statements and are considered to be effectively settled for cash in the unaudited combined financial statements at the time the transaction is recorded. The total net effect of the settlement of these intercompany transactions is reflected in the unaudited combined statements of cash flows as a financing activity and in the unaudited combined balance sheets as parent equity. Management believes the assumptions underlying the unaudited combined financial statements, including the assumptions regarding allocating balances are reasonable. Nevertheless, the unaudited combined financial statements may not include all of the actual expenses that would have been incurred had the Thermal Assets been a stand-alone company during the periods presented. Actual costs that would have been incurred if the Thermal Assets had been a stand-alone company would depend on multiple factors, including organizational structure and strategic decisions made in various areas.

C.    Other Operating Expenses—Proceeds received for property claim and business interruption insurance are recorded in Other operating expenses-net.

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3.                      INCOME TAXES

The income tax (benefit) expense for the nine months ended September 30, 2016 and 2015 consists of the following (in thousands):

The effective tax rate for the nine months ended September 30, 2016 and 2015 was 25.49%, and 38.52%, respectively. For the nine months ended September 30, 2016 our effective rate differs from the federal statutory rate of 35% primarily due to return-to-accrual adjustments as a result of filing the 2015 tax return. For the nine months ended September 30, 2015 our effective tax rate differs primarily due to state and local income.

Deferred income taxes reflect the net effects of temporary differences between the carrying amounts of assets and liabilities for financial reporting purposes and the amounts used for income tax purposes. The temporary differences that give rise to the deferred tax liabilities as of September 30, 2016 and December 31, 2015 are largely the result of the tax effect of differences in book and tax carrying values with respect to property, plant and equipment and derivatives. The temporary differences that give rise to the deferred tax assets as of September 30, 2016 and December 31, 2015 are largely the result of net operating loss carryovers.

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4.                      PROPERTY, PLANT, AND EQUIPMENT

Movements in property, plant, and equipment as of September 30, 2016 and December 31, 2015, are as follows (in thousands):

Total interest costs incurred were $7.8 million and $25.9 million for the three and nine months ended September 30, 2016, respectively, as compared to $14.8 million and $43.7 million for the three and nine months ended September 30, 2015. There was no interest capitalized on construction-in-progress expenditures for the three and nine months ended September 30, 2016 and 2015, respectively.

The Company also transferred $38.7 million from prepaid expenses to property, plant, and equipment related to maintenance performed under long-term service agreements (LTSAs) in the nine months ended September 30, 2016. $10.0 million was transferred to property, plant, and equipment in the nine months ended September 30, 2016, related to maintenance performed under long-term warranty agreements (LTWAs). Thermal Assets accrued an insignificant amount of non-maintenance property, plant, and equipment costs in the nine months ended September 30, 2016.

Capital Commitments—In the ordinary course of operations, the Company enters into commitments related to the purchase or construction of property, plant, and equipment. The Company’s projected committed capital expenditures for maintenance performed under LTSAs and LTWAs extends through 2045 and is $1.0 billion.

5.                      EQUITY METHOD INVESTMENTS

The Company has one investment in a joint venture, Northeast Energy LP (NELP). The Company owns 50% of the equity interest, voting rights, and legal ownership interest of NELP and accounts for its interest using the equity method. NELP wholly owns the Northeast Energy Associates and North Jersey Energy Associates, LP.

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Key Figures of NELP (Unaudited)—As of September 30, 2016 and December 31, 2015 and for the three and nine months ended September 30, 2016 and 2015, the key figures of NELP presented on a 100% basis, are as follows (in thousands):

The Company’s share of the underlying equity of NELP is not equal to its ownership percentage in NELP due to a disproportionate distribution of earnings compared to the underlying equity interests.

6.                      RISK MANAGEMENT ACTIVITIES

6.1 Risk Management Activities—The Company utilizes a variety of financial and physical instruments to mitigate its exposures to market risk created by the Company’s physical generation and financing activities. Those market risks include exposures to interest rates and energy and energy-related commodity prices. Risk management activities are broadly defined by two major categories—financial and commodity.

Financial Risk Management Derivatives—The Company manages its exposure to fluctuations in interest rates using an interest-rate swap. It effectively converts a portion of its floating-rate debt to a fixed-rate basis, thus reducing the impact of interest rate changes on future income. The agreement involves the receipt of floating-rate amounts in exchange for fixed-rate interest payments over the life of the agreement without an exchange of the underlying principal amount. The interest-rate swap is accounted for as a cash flow hedge designated at inception, with changes in fair value captured directly in equity until the hedged transactions occur and are recognized in earnings. The interest-rate swap expired in the second half of 2015.

ENGIE entered into warrant agreements under which it will receive cash to settle its liability incurred via stock appreciation rights issued to employees. The Company has been allocated a portion of the liability and associated warrant agreements based on headcount. The fair value of the warrants for the Company was $0.3 million as of September 30, 2016 and December 31, 2015, respectively, which was included in risk management assets on the unaudited combined balance sheets as of such dates. The Company recognized the warrants’ change in value in personnel costs. The counterparty to those warrants is an investment-grade entity, and those warrants will continue to settle throughout 2016.

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Commodity Risk Management Derivatives—The Company manages commodity price risk arising from changes in fuel costs and future electricity prices related to its power-generating facilities.

The Company uses commodity swap and option contracts, forward physicals, and futures to manage its price risk exposure related to natural gas and coal purchases for its power plants. Under the swaps and futures, the Company pays a fixed price and receives a floating price, which effectively fixes the price it will pay for the natural gas.

The Company enters into commodity swap and option contracts and forward physicals to mitigate its exposure to the effect of changes in future electricity prices on its power plants’ sales. Under the swaps, the Company pays a variable price and receives a fixed price, which effectively fixes the price to be received for the electricity.

Other Commodity Contracts—The Company’s physical electricity capacity sales contracts and gas and power contracts qualify for the election of the normal purchase, normal sale (“NPNS”) scope exception. Under the NPNS exception, fair value of these contracts is not recognized in the unaudited combined balance sheets.

The Company’s financial and commodity derivative results as of three and nine months ended September 30, 2016 and 2015, are as follows (in thousands):