As filed with the Securities and Exchange Commission on June 7, 2019.
Registration No. [ ]

 
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933

Vistra Energy Corp.
(Exact name of registrant as specified in its charter)

 
			
Delaware	 	36-4833255	
(State or other jurisdiction
of incorporation or organization)	 	(I.R.S. Employer
Identification Number)	
6555 Sierra Dr.
Irving, Texas 75039
(Address of principal executive offices, including zip code)
Vistra Energy Corp. 2016 Omnibus Incentive Plan
(Full title of the plan)

Stephanie Zapata Moore
Executive Vice President and General Counsel
Vistra Energy Corp.
6555 Sierra Dr.
Irving, Texas 75039
(Name and address of agent for service)
(214) 812-4600
(Telephone number, including area code, of agent for service)

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large Accelerated filer	 	☒	  	Accelerated filer	 	☐	
				
Non-accelerated filer	 	☐	  	Smaller reporting company	 	☐	
				
	 		  	Emerging growth company	 	☐	
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.  ☐

CALCULATION OF REGISTRATION FEE

 	
Title of each Class of
Securities to be Registered	 	Amount
to be
Registered (1)	 	Proposed
Maximum
Offering Price
Per Share (2)	 	Proposed
Maximum
Aggregate
Offering Price	 	Amount of
Registration Fee	
Common Stock, $0.01 par value per share	 	15,000,000	 	$23.71	 	$355,650,000	 	$43,104.78	

(1)	Amount to be registered consists of 15,000,000 additional shares to be issued pursuant to the grant or exercise of awards under the Vistra Energy Corp. 2016 Omnibus Incentive Plan (as amended, the 2016 Omnibus Plan), including, pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), additional shares that may become issuable by reason of any stock dividend, stock split or similar transaction in accordance with the adjustment and anti-dilution provisions of the 2016 Omnibus Plan.	
(2)	Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(c) and (h) under the Securities Act based on the average of the high and low prices of the shares of common stock as reported on the New York Stock Exchange on June 3, 2019.	

 

EXPLANATORY NOTE
Pursuant to General Instruction E of Form S-8, Vistra Energy Corp., a Delaware corporation (the “Registrant”), is filing this Registration Statement on Form S-8 (the “Registration Statement”) with the Securities and Exchange Commission (the “Commission”) to register an additional 15,000,000 shares of its Common Stock, par value $0.01 per share, issuable to eligible individuals under the Registrant’s 2016 Omnibus Incentive Plan, as amended and restated (the “Plan”). Accordingly, the contents of the previous Registration Statement on Form S-8 (No. 333-219687) filed by the Registrant with the Commission on August 4, 2017 (the “Prior Registration Statement”) relating to the Plan, including periodic reports that the Registrant filed after the Prior Registration Statement to maintain current information about the Registrant, are incorporated by reference into the Registration Statement pursuant to General Instruction E of Form S-8. The Prior Registration Statement is currently effective.
PART II
Item 8. Exhibits.

			
5.1*	  	—	  	Opinion of Sidley Austin LLP.	
			
23.1*	  	—	  	Consent of Deloitte & Touche LLP.	
			
23.2*	  	—	  	Consent of Ernst & Young LLP.	
			
23.3*	  	—	  	Consent of Sidley Austin LLP (included in Exhibit 5.1).	
			
24.1*	  	—	  	Power of Attorney (included on the signature page to this Registration Statement).	
			
99.1	  	—	  	Vistra Energy Corp. 2016 Omnibus Incentive Plan, as amended (filed as Appendix A to Registrant’s Schedule 14A Definitive Proxy Statement filed April  25, 2019 and incorporated herein by reference).	
 
* Filed herewith.

SIGNATURES
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 this Registration Statement on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the city of Irving, State of Texas, on June 7, 2019.

	 		 	VISTRA ENERGY CORP.	
				
Date: June 7, 2019	 		 	By:	 	/s/ Curtis A. Morgan	
	 		 		 	Curtis A. Morgan	
	 		 		 	President and Chief Executive Officer	
 POWER OF ATTORNEY
Each person whose signature appears below authorizes Curtis A. Morgan, David A. Campbell and Stephanie Zapata Moore, or any of them, as his or her attorney in fact and agent, with full power of substitution and resubstitution, to execute, in his or her name and on his or her behalf, in any and all capacities, this registration statement on Form S-8, and any amendments including post-effective amendments thereto (and any additional registration statement related thereto permitted by Rule 462(b) promulgated under the Securities Act of 1933 (and all further amendments including post-effective amendments thereto)), and to file the same, with all the exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, necessary or advisable to enable the registrant to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission, in respect thereof, in connection with the registration of the notes which are the subject of such registration statement, as the case may be, which amendments may make such changes in such registration statement, as the case may be, as such attorney may deem appropriate, and with full power and authority to perform and do any and all acts and things, whatsoever which any such attorney or substitute may deem necessary or advisable to be performed or done in connection with any or all of the above-described matters, as fully as each of the undersigned could do if personally present and acting, hereby ratifying and approving all acts of any such attorney or substitute.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the date indicated.

	Signature	  		Title	 		Date	
				
/s/ Curtis A. Morgan
Curtis A. Morgan	  	Director, President and Chief Executive Officer
(Principal Executive Officer)	 	June 7, 2019		
				
/s/ David A. Campbell
David A. Campbell	  	Executive Vice President and Chief Financial Officer
(Principal Financial Officer)	 	June 7, 2019		
				
/s/ Christy Dobry
Christy Dobry	  	Vice President and Controller
(Principal Accounting Officer)	 	June 7, 2019		
				
/s/ Scott B. Helm
Scott B. Helm	  	Chairman of the Board and Director	 	June 7, 2019		

						
	Signature	  		Title	 		Date	
				
/s/ Hilary E. Ackermann
Hilary E. Ackermann	  	Director	 	June 7, 2019		
				
/s/ Gavin R. Baiera
Gavin R. Baiera	  	Director	 	June 7, 2019		
				
/s/ Paul M. Barbas
Paul M. Barbas	  	Director	 	June 7, 2019		
				
/s/ Brian K. Ferraioli
Brian K. Ferraioli	  	Director	 	June 7, 2019		
				
/s/ Jeff D. Hunter
Jeff D. Hunter	  	Director	 	June 7, 2019		
				
/s/ Cyrus Madon
Cyrus Madon	  	Director	 	June 7, 2019		
				
/s/ Geoffrey D. Strong
Geoffrey D. Strong	  	Director	 	June 7, 2019		
				
/s/ John R. Sult
John R. Sult	  	Director	 	June 7, 2019		
				
/s/ Bruce E. Zimmerman
Bruce E. Zimmerman	  	Director	 	June 7, 2019		

Exhibit 5.1

	  	SIDLEY AUSTIN LLP
2021 MCKINNEY AVENUE
SUITE 2000
DALLAS, TX 75201
+1 214 981 3300
+1 214 981 3400
 
AMERICA • ASIA PACIFIC • EUROPE	
June 7, 2019
Vistra Energy Corp.
6555 Sierra Dr.
Irving, Texas 75039
 
 	Re:	15,000,000 Additional Shares of Common Stock, $0.01 par value per share	
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-8 (the “ Registration Statement ”) being filed by Vistra Energy Corp., a Delaware corporation (the “ Company ”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “ Securities Act ”), relating to the registration of 15,000,000 additional shares of Common Stock, $0.01 par value per share (the “Registered Shares”), of the Company which may be issued under the Vistra Energy Corp. 2016 Omnibus Incentive Plan, as amended (the “ Amended Plan ”).
This opinion letter is being delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act.
We have examined the Registration Statement, the Company’s certificate of incorporation (as amended to the date hereof), the Amended Plan, the resolutions adopted by the board of directors of the Company relating to the Registration Statement and the resolutions adopted by the stockholders of the Company relating to the Amended Plan. We have also examined originals, or copies of originals certified to our satisfaction, of such agreements, documents, certificates and statements of the Company and other corporate documents and instruments, and have examined such questions of law, as we have considered relevant and necessary as a basis for this opinion letter. We have assumed the authenticity of all documents submitted to or obtained by us as originals, the genuineness of all signatures, the legal capacity of all persons and the conformity with the original documents of any copies thereof submitted to or obtained by us for examination. As to facts relevant to the opinions expressed herein, we have relied without independent investigation or verification upon, and assumed the accuracy and completeness of, certificates, letters and oral and written statements and representations of public officials and officers and other representatives of the Company.
Based on the foregoing, we are of the opinion that each Registered Share that is newly issued pursuant to the Amended Plan will be validly issued, fully paid and non-assessable when: (i) the Registration Statement, as finally amended, shall have become effective under the Securities Act; (ii) such Registered Share shall have been duly issued and delivered in accordance with the Amended Plan; and (iii) certificates representing such Registered Share shall have been duly executed, countersigned and registered and duly delivered to the person entitled thereto against
 
Sidley Austin (TX) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

Vistra Energy Corp.
06/07/2019
Page 2
 
payment of the agreed consideration therefor in an amount not less than the par value thereof or, if any Registered Share is to be issued in uncertificated form, the Company’s books shall reflect the issuance of such Registered Share to the person entitled thereto against payment of the agreed consideration therefor in an amount not less than the par value thereof, all in accordance with the Amended Plan.
This opinion letter is limited to the General Corporation Law of the State of Delaware. We express no opinion as to the laws, rules or regulations of any other jurisdiction, including, without limitation, the federal laws of the United States of America or any state securities or blue sky laws.
We hereby consent to the filing of this opinion letter as an Exhibit to the Registration Statement and to all references to our Firm included in or made a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Sidley Austin LLP

Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form S-8 of our reports dated February 28, 2019, relating to the financial statements of Vistra Energy Corp. and its Predecessor Company (which report expresses an unqualified opinion and includes an explanatory paragraph regarding emergence from bankruptcy and the non-comparability of Vistra Energy Corp. to the Predecessor Company), and the effectiveness of Vistra Energy Corp.’s internal control over financial reporting, appearing in the Annual Report on Form 10-K of Vistra Energy Corp. for the year ended December 31, 2018 and incorporated by reference in Registration Statement No. 333-219687.
/S/ DELOITTE & TOUCHE LLP
Dallas, Texas
June 7, 2019

Exhibit 23.2
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the 2016 Omnibus Incentive Plan, as amended and restated, of Vistra Energy Corp. of our reports dated February 22, 2018, with respect to the consolidated financial statements of Dynegy Inc. and the effectiveness of internal control over financial reporting of Dynegy Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2017, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Houston, Texas
June 7, 2019