14
656895v1
EXHIBIT D1-1
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY OF )
OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE DAYTON )
POWER AND LIGHT COMPANY, to ) Case No. 00-524-GA-ATR
Transfer the Natural Gas Assets )
of The Dayton Power and Light )
Company to Vectren Energy of )
Ohio, Inc. and/or Indiana Gas )
Company, Inc. Pursuant to R.C.
Section 4905.48 (B) and (C)
JOINT PETITION
(1) Joint Petitioner Vectren Energy of Ohio, Inc.
("Company") is an Ohio corporation and a wholly-owned
subsidiary of Indiana Energy, Inc. ("IEI"). Pursuant to
R.C. Section 4905.63, Company is the proposed purchaser of
the natural gas assets of The Dayton Power and Light Company
("DP&L") (the "DP&L Gas Assets") pursuant to the Asset
Purchase Agreement dated December 14, 1999, a copy of which
is attached as Exhibit No. 1 ("Agreement"). As the
prospective purchaser of the DP&L Gas Assets, Company is a
public utility and a natural gas company as those terms are
defined in Sections R.C. 4905.02 and 4905.03(A)(6). Company
is thus subject to the jurisdiction of the Commission.
Company desires to complete its purchase of the DP&L Gas
Assets pursuant to R.C. Section 4905.48.
(2) Joint Petitioner Indiana Gas Company, Inc. ("IGC") is
an Indiana corporation and a wholly-owned subsidiary of IEI.
IGC is a public utility operating in the State of Indiana
where it provides natural gas services to approximately
510,000 customers in 48 counties. Pursuant to Indiana law,
IGC is subject to regulation by the Indiana Utility
Regulatory Commission ("IURC"). IGC is presently evaluating
whether it, rather than Company, might become the acquirer
of the DP&L Gas Assets. If so, IGC would remain
incorporated in Indiana and would also incorporate under
Ohio law, resulting in dual incorporation. In that event,
IGC would be a public utility and a natural gas
<PAGE>
company as those terms are defined in R.C. Sections 4905.02
and 4905.03(A)(6). IGC would then be subject to the
jurisdiction of the Commission and would desire to complete
the purchase of the DP&L Gas Assets pursuant to R.C. Section
4905.48.
Whether the Company or IGC is ultimately the acquirer
of the DP&L Gas Assets depends on which transaction
structure would be more likely to result in the continued
availability of an "intrastate" exemption for Vectren
Corporation ("Vectren") *(1) under Public Utility Holding
Company Act of 1935 ("PUHCA") Section 3(a)(1) after the
acquisition. Vectren's preferred transaction structure is
the acquisition of the DP&L Gas Assets by Company (the
"Preferred Structure"). However, if Vectren does not
receive assurances that it will retain its PUCHA exemption
after effecting the Preferred Structure, Vectren's next
alternative would be for IGC to acquire the DP&L Gas Assets
(the "First Alternative Structure").
In order to qualify for a PUCHA exemption assuming
Vectren uses the First Alternative Structure, IGC must
remain incorporated in the state of Indiana. However, IGC
would also need to be incorporated in Ohio because of R.C.
Section 4905.62 which provides that control of an Ohio
public utility, or its franchises, permits, licenses or
rights to operate, manage or control utility facilities, may
be transferred only to an Ohio corporation. *(2)
Vectren hopes to consummate one of the above described
structures to avoid registration as a holding company under
PUCHA. However, if the Securities and Exchange Commission
("SEC") rejects Vectren's request for a PUCHA exemption,
Vectren would nevertheless proceed to acquire DP&L Gas
______________________________________________________
*(1) See Paragraph 4 infra for information about Vectren.
*(2) Vectren is currently in the process of ascertaining
the ability of IGC, an Indiana corporation, to incorporate
in Ohio in order to comply with these requirements.
_______________________________________________________
<PAGE>
Assets even if that would result in regulation as a
registered holding company under PUCHA.
(3) Joint Petitioner DP&L is a public utility and a
natural gas company *(3) as those terms are defined in Ohio
Revised Code (R.C.) Sections 4905.02 and 4905.03(A)(6) and
is thus subject to the jurisdiction of the Public Utilities
Commission of Ohio ("Commission"). DP&L owns and operates a
natural gas distribution system and related facilities which
it uses to provide natural gas service to approximately
308,000 customers in 16 counties in west central Ohio.
(4) IEI, while also a party to the Agreement, is solely a
guarantor of the Company's or IGC's obligations, as the case
may be, and will not be involved in the ownership or
operation of the DP&L Gas Assets. Moreover, IEI does not
intend to become an Ohio public utility or an Ohio natural
gas company. IEI is a publicly traded company on the New
York Stock Exchange ("NYSE") and it is in the process of
merging with SIGCORP, Inc. ("SIGCORP"), another publicly
traded company on the NYSE, which provides, through its
operating subsidiaries, electric and natural gas utility
services to approximately 150,000 customers in 8 counties in
southwestern Indiana. SIGCORP, through other operating
subsidiaries, is also engaged in providing
telecommunications and other services in Indiana and
elsewhere. Pursuant to a June 11, 1999, Agreement and Plan
of Merger, IEI and SIGCORP intend to merge to form a new
entity called Vectren Corporation. IEI and SIGCORP
anticipate that the merger will be consummated by the end of
March, 2000. The actions necessary to consummate the merger
have already been taken by the shareholders of IEI and
SIGCORP, as well as the Federal Energy Regulatory Commission
("FERC"), the SEC, and the Federal Communications
Commission. In addition, as a result of
____________________________________________________
(3) DP&L is also an electric company as defined in R.C.
Section 4905.03(A)(4).
____________________________________________________
<PAGE>
filings by IEI and SIGCORP under the Hart Scott Rodino
Notification Act, the Department of Justice has reviewed the
proposed merger and terminated its investigation without the
imposition of any conditions. Vectren intends to be
publicly traded on the NYSE and to operate as an exempt
holding company under PUHCA.
(5) Whether the Company or IGC is ultimately the acquirer
of the DP&L Gas Assets will depend upon the continued
availability of an exemption under PUHCA. Prior to the
consummation of the purchase of the DP&L Gas Assets under
the Agreement, IEI (or Vectren) will approach the staff of
the SEC concerning IEI's (or Vectren's) status as an exempt
public utility holding company on the basis that following
the acquisition of the DP&L Gas Assets, IEI (or Vectren)
will not derive any material part of its income from those
assets and IEI (or Vectren), and each of its public utility
subsidiaries from which it derives any material part of its
income, will remain predominately intrastate in character
and carry on its business substantially in Indiana. It is
IEI's (and Vectren's) stated preference to remain an exempt
holding company under PUHCA, and, to the extent lawfully
permissible, IEI (or Vectren) intends to cause the structure
of the purchase of the DP&L Gas Assets to provide an end
result where, pursuant to PUHCA, IEI (or Vectren) remains an
exempt holding company.
(6) Company is a special purpose corporation formed to
complete the acquisition of the DP&L Gas Assets. Upon the
approval of this Joint Petition, pursuant to the Agreement,
Company will hire a significant number of the employees of
DP&L who currently operate the DP&L Gas Assets.
(7) As more fully described in Paragraph No. 2, IGC is a
public utility operating in the state of Indiana with
approximately 845 employees who serve approximately 510,000
<PAGE>
natural gas customers. If IGC is the acquirer of the DP&L
Gas Assets, pursuant to the Agreement, it will hire a
significant number of the employees of DP&L who currently
operate the DP&L Gas Assets.
(8) Following the consummation of the Vectren merger, IGC
and Company will have a sister company, Southern Indiana Gas
and Electric Company ("SIGECO"), which is a combination gas
and electric company with approximately 940 employees who
serve approximately 150,000 gas and/or electric customers in
southwestern Indiana. Pursuant to Indiana law, SIGECO is
subject to regulation by the IURC. Moreover, pursuant to
federal law, certain of SIGECO's electric operations are
subject to regulation by the FERC.
(9) DP&L desires to sell substantially all of its natural
gas assets including the existing pipeline contracts serving
the DP&L Gas Assets pursuant to the Agreement. The
Agreement provides for a purchase price of $425,000,000
(plus or minus certain adjustments) for the DP&L Gas Assets.
(10) To fund the expected purchase price of $425,000,000,
the following is expected to occur. If the acquirer is the
Company, then IEI (or Vectren), or one of their
subsidiaries, will make an equity contribution to the
Company of approximately one half of that amount. The
remainder would be loaned to the Company pursuant to a short-
term agreement, which will enable the Company to secure long-
term debt to repay that loan. If the acquirer is IGC, then
the same arrangements will be made except that IGC will
participate rather than the Company. In either event, when
the short term borrowings are to be converted into long term
debt, the appropriate application will be made to the
Commission pursuant to R.C. Section 4905.40.
(11) ARTICLE II, Section 2.1, of the Agreement specifies
that the DP&L Gas Assets include:
<PAGE>
(a) the real property, leaseholds and
subleaseholds therein, buildings, structures and
other improvements (including gas pipes and
pipelines, empty downtown ducts in the City of
Dayton, meters and related equipment, and all
facilities used for storing and delivering
propane), fixtures and fittings thereon, easements,
license agreements, leases, rights of way and other
real property interests described on Schedule 2.1
or to be conveyed pursuant to Section 7.4(b) (the
"Real Estate");
(b) all inventories of natural gas, fuels,
propane, supplies, materials and critical spares
used exclusively in connection with the Business
and located on, in storage for, or in transit to or
from the Real Estate on the Closing Date;
(c) the machinery, equipment, vehicles, furniture
and other tangible personal property used
exclusively in connection with the Business,
including the items of tangible personal property
listed on Schedule 2.1, and all warranties against
manufacturers or vendors relating thereto, to the
extent that such warranties are freely
transferable;
(d) DP&L's Agreements, in each case, to the extent
the same are assignable;
(e) the Permits and Environmental Permits listed
on Schedule 5.14 in each case, to the extent the
same are assignable (the "Transferable Permits");
(f) all processes, trade secrets, customer data,
know-how and other proprietary or confidential
information used exclusively in connection with the
Business and all confidentiality, noncompete or
nondisclosure agreements executed by employees of
DP&L relating to the Business;
(g) originals or copies of all Transferring
Employee Records, books, operating records,
operating, safety and maintenance manuals,
engineering design plans, blueprints and as-built
plans, specifications, procedures and similar of
the DP&L relating specifically to the Purchased
Assets including books of account, all customer
lists, billing records and other customer
correspondence relating to the Business, all
regulatory filings and other books and records
relating to the rates and services provided by DP&L
in connection with the operation of the Business;
and
(h) all of the rights, claims or causes or action
of DP&L against a third party exclusively related
to the Purchased Assets, the operation of the
Business or the Assumed Obligations arising out of
transactions occurring prior to the Closing Date,
except where such rights, claims or causes of
action relate to both Assumed Obligations and
Excluded Liabilities, Company and DP&L shall share
such rights, claims or causes of action in the same
proportion as their respective liabilities bear to
the total liability relating to those rights,
claims or causes of action.
<PAGE>
(12) Company or IGC proposes to adopt DP&L's natural gas
Tariff P.U.C.O. No. 3 and thus to assess the same rates and
charges for natural gas service previously approved by the
Commission for DP&L in Case No. 91-415-GA-AIR.
(13) As provided in Schedule 7.13 to the Agreement,
Company or IGC will enter into an agreement with DP&L for
the provision of transition services. With respect to
certain services, this period could be for up to three
years. This should allow for a seamless transition of DP&L
customers to Vectren. These transition services include
meter reading, billing and call center operations. The
parties have also agreed that the acquirer will be able to
use the DP&L name along with the Vectren name for a period
of time. This will facilitate clear communication to
customers of the change of ownership.
(14) In support of the Joint Petition, the following
exhibits are submitted:
Exhibit No. 1 Asset Purchase Agreement by and between
The Dayton Power and Light Company,
Indiana Energy, Inc. and Number-3CHK, Inc.
(now named Vectren Energy of Ohio, Inc.),
dated December 14, 1999;
Exhibit No. 2 Summary of Transition Services (Schedule
7.13) (to the Agreement) to be provided by
DP&L;
Exhibit No. 3 Inventory of the DP&L Gas Assets to be
purchased by Company or IGC, as the case
may be, will be made available upon
request (5 notebooks);
Exhibit No. 4 An affidavit of Niel C. Ellerbrook,
President and Chief Executive Officer of
Indiana Energy, Inc., concerning the
background of this purchase and the
proposed operation of the DP&L Gas Assets;
Exhibit No. 5 Verifications of the President and
Secretaries of the Company and IGC
attesting to the truth of the Joint
Petition; and
Exhibit No. 6 Verifications of the President and
Secretary of DP&L attesting to the truth
of the Joint Petition.
<PAGE>
(15) Joint Petitioners request that this Joint Petition
be expedited using the Commission's customary streamlined
procedure whereby the case is determined on the basis of the
information presented in the Joint Petition and exhibits,
including the attached affidavits, and that a public notice
be published advising interested persons that they must file
with the Commission statements indicating the basis of their
interests by a specified date. Assuming there is no party
with a legitimate interest who presents an issue that cannot
be resolved without a hearing, a public hearing in this
matter does not appear to be justified.
(16) The transfer of the DP&L Gas Assets is in the public
interest and will not adversely affect the current customers
of DP&L because after the transfer, the acquirer will be an
affiliate of a competent and financially stable energy
company and will continue to provide quality natural gas
service at the same just and reasonable rates charged by
DP&L pursuant to its approved tariffs.
(17) This Joint Petition, together with its exhibits,
conclusively demonstrates that the transfer of the DP&L Gas
Assets is in the public interest and that current customers
of DP&L will not be adversely affected, and in fact will
benefit, by the transfer.
(18) In order to provide for this orderly transition of
the operation of the DP&L Gas Assets from DP&L to Company or
IGC prior to the commencement of the 2000-2001 space heating
season, Joint Petitioners desire to close this transaction
before June 30, 2000. Accordingly, Joint Petitioners
respectfully request expedited processing of this Joint
Petition.
(19) Joint Petitioners respectfully submit that the
matters set forth in this Joint Petition, including the
exhibits, demonstrate that the transfer of the DP&L Gas
Assets from DP&L to Company or IGC is warranted and that
approval of Company's or IGC's adoption of the DP&L natural
<PAGE>
gas Tariff, P.U.C.O. No. 3 is appropriate.
(20) In conclusion, Company and IGC respectfully aver
that the transfer by DP&L of the DP&L Gas Assets to Company
or IGC, and the adoption by Company or IGC of DP&L's Tariff,
P.U.C.O. No. 3, will provide the current customers of the
DP&L natural gas system with continued safe and reliable
natural gas service from a system operated by a qualified
and financially stable natural gas company at fair and
reasonable rates.
WHEREFORE, Company, IGC and DP&L respectfully request
the Commission to:
(1) determine that no hearing on this Joint
Petition is warranted or required;
(2) state that it strongly prefers and
endorses the "Preferred Structure";
(3) state that it also prefers the First
Alternative Structure to the regulation of
Vectren as a registered holding company under
PUCHA;
(4) approve the purchase and sale of the DP&L
Gas Assets from DP&L to Company or IGC, as the
case may be, pursuant to R. C. Section 4905.48
(B) and (C), indicating explicitly that the
acquisition will not affect the Commission's
jurisdiction and authority over the rates,
services and operations of the owner of the
DP&L Gas Assets, nor would it impair the
Commission's ability to protect ratepayers;
(5) approve the adoption of DP&L's natural gas
Tariff, P.U.C.O. No. 3 by Company or IGC, as
the case may be; and
(6) grant Joint Petitioners such other and
further relief which they may be reasonably
entitled to, and which is necessary or
advisable in the premises.
<PAGE>
Respectfully submitted on behalf of
THE DAYTON POWER AND LIGHT COMPANY
By:________________________________
Charles J. Faruki
Paul L. Horstman
FARUKI GILLIAM & IRELAND P.L.L
600 Courthouse Plaza, S.W.
Dayton, Ohio 45402
(937) 227-3705
and
By:_______________________________
Stephen F. Koziar, Jr.
Group Vice President and Secretary
THE DAYTON POWER AND LIGHT COMPANY
MacGregor Park
1065 Woodman Drive
Dayton, Ohio 45432
(937) 259-7214
Its Counsel
VECTREN ENERGY OF OHIO, INC.
INDIANA GAS COMPANY, INC.
By:_________________________________
Sally W. Bloomfield
Julia L. Dorrian
BRICKER & ECKLER LLP
100 South Third Street
Columbus, Ohio 43215-4291
(614) 227-2368
and
By:______________________________
Ronald E. Christian
Robert E. Heidorn
1630 North Meridian Street
Indianapolis, Indiana 46202-1496
(317) 321-0357; 321-0679
Their Counsel
<PAGE>
EXHIBIT NO. 1
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Asset Purchase Agreement by and between The Dayton Power and
Light Company, Indiana Energy, Inc. and Number-3CHK, Inc.,
dated December 14, 1999
<PAGE>
EXHIBIT NO. 2
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Summary of Transition Services Schedule 7.13 to the
Agreement
<PAGE>
EXHIBIT NO. 3
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Inventory Schedules
(available upon request)
<PAGE>
EXHIBIT NO. 4
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Affidavit of Niel C. Ellerbrook
<PAGE>
EXHIBIT NO. 5
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Verifications of Vectren Energy of Ohio, Inc.
<PAGE>
EXHIBIT NO. 6
VECTREN ENERGY OF OHIO, INC., INDIANA GAS COMPANY, INC. AND
THE DAYTON POWER AND LIGHT COMPANY
Verifications of The Dayton Power and Light Company
<PAGE>
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY OF )
OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE DAYTON )
POWER AND LIGHT COMPANY, to ) Case No. 00- ______-GA-ATR
Transfer the Natural Gas )
Assets of The Dayton Power )
and Light Company to Vectren )
Energy of Ohio, Inc. and/or )
Indiana Gas Company, Inc. )
Pursuant to R.C. Section )
4905.48 (B) and (C) )
VERIFICATION
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Niel C. Ellerbrook, being duly sworn, deposes and says
that he is President of Vectren Energy of Ohio, Inc. and
Indiana Gas Company, Inc. and that the statements made in
the Joint Petition and Application and exhibits with respect
to Vectren Energy of Ohio, Inc. and Indiana Gas Company,
Inc. are true to the best of his knowledge and belief.
____________________________
Niel C. Ellerbrook
SWORN TO before me and subscribed in my presence this
_____ day of March, 2000.
______________________________
Notary Public
My commission expires: _________
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY )
OF OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE )
DAYTON POWER AND LIGHT ) Case No. 00- ______-GA-ATR
COMPANY, to Transfer the )
Natural Gas Assets of The )
Dayton Power and Light )
Company to Vectren Energy of )
Ohio, Inc. and/or Indiana )
Gas Company, Inc. Pursuant )
to R.C. Section 4905.48 (B) )
and (C) )
VERIFICATION
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Ronald E. Christian, being duly sworn, deposes and says
that he is Secretary of Vectren Energy of Ohio, Inc. and
that the statements made in the Joint Petition and
Application and exhibits with respect to Vectren Energy of
Ohio, Inc. and Indiana Gas Company, Inc. are true to the
best of his knowledge and belief.
___________________________
Ronald E. Christian
SWORN TO before me and subscribed in my presence this
_____ day of March, 2000.
______________________________
Notary Public
My commission expires: _________
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY OF )
OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE DAYTON )
POWER AND LIGHT COMPANY, to ) Case No. 00- ______-GA-ATR
Transfer the Natural Gas )
Assets of The Dayton Power )
and Light Company to Vectren )
Energy of Ohio, Inc. and/or )
Indiana Gas Company, Inc. )
Pursuant to R.C. Section )
4905.48 (B) and (C) )
VERIFICATION
STATE OF INDIANA )
) SS:
COUNTY OF MARION )
Anthony E. Ard, being duly sworn, deposes and says that
he is Secretary of Indiana Gas Company, Inc. and that the
statements made in the Joint Petition and Application and
exhibits with respect to Vectren Energy of Ohio, Inc. and
Indiana Gas Company, Inc. are true to the best of his
knowledge and belief.
___________________________
Anthony E. Ard
SWORN TO before me and subscribed in my presence this
_____ day of March, 2000.
______________________________
Notary Public
My commission expires: _________
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY )
OF OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE )
DAYTON POWER AND LIGHT ) Case No. 00- ______-GA-ATR
COMPANY, to Transfer the )
Natural Gas Assets of The )
Dayton Power and Light )
Company to Vectren Energy of )
Ohio, Inc. and/or Indiana )
Gas Company, Inc. Pursuant )
to R.C. Section 4905.48 (B) )
and (C) )
VERIFICATION
STATE OF OHIO )
) SS:
COUNTY OF MONTGOMERY )
Stephen F. Koziar, Jr., being duly sworn, deposes and
says that he is Group Vice President and Secretary of The
Dayton Power and Light Company and that the statements made
in paragraphs 1-3, 9, 11 and 13-19 of the Joint Petition and
Exhibits 1, 2 and 3 are true to the best of his knowledge
and belief.
______________________________
Stephen F. Koziar, Jr.
SWORN TO before me and subscribed in my presence this
_____ day of March, 2000.
______________________________
Notary Public
My commission expires: _________
BEFORE
THE PUBLIC UTILITIES COMMISSION OF OHIO
In the Matter of the Joint )
Petition of VECTREN ENERGY OF )
OHIO, INC., INDIANA GAS )
COMPANY, INC., AND THE DAYTON )
POWER AND LIGHT COMPANY, to ) Case No. 00- ______-GA-ATR
Transfer the Natural Gas )
Assets of The Dayton Power )
and Light Company to Vectren )
Energy of Ohio, Inc. and/or )
Indiana Gas Company, Inc. )
Pursuant to R.C. Section )
4905.48 (B) and (C) )
VERIFICATION
STATE OF OHIO )
) SS:
COUNTY OF MONTGOMERY )
Allen M. Hill, being duly sworn, deposes and says that
he is President and Chief Executive Officer of The Dayton
Power and Light Company and that the statements made in
paragraphs 1-3, 9, 11 and 13-19 of the Joint Petition and
Exhibits 1, 2 and 3 are true to the best of his knowledge
and belief.
___________________________
Allen M. Hill
SWORN TO before me and subscribed in my presence this
_____ day of March, 2000.
______________________________
Notary Public
My commission expires: _________
