File No. 70-8881
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________________
AMENDMENT NO. 1
TO
FORM U-1 APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
____________________________________________
Cinergy Corp.
The Cincinnati Gas & Electric Company
139 East Fourth Street
Cincinnati, Ohio 45202
(Name of companies filing this statement
and addresses of principal executive offices)
Cinergy Corp.
(Name of top registered holding company parent)
William L. Sheafer
Treasurer
Cinergy Corp.
(address above)
(Name and address of agent of service)
The Commission is requested to send copies of all notices, orders
and communications in connection with this statement to:
Cheryl M. Foley James R. Lance
Vice President, General Counsel Manager - Corporate Finance
and Corporate Secretary and Financial Risk
Cinergy Corp. Management
(address above) Cinergy Corp.
(address above)
William T. Baker, Jr.
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
<PAGE>
The Application-Declaration in this proceeding, filed on July 1,
1996, is hereby amended as set forth below.
1. The text under Item 1.A ("Overview; Requested
Authorizations") is restated in its entirety to read as follows:
"The Cincinnati Gas & Electric Company ("CG&E"), an Ohio
corporation and wholly-owned utility subsidiary of Cinergy
Corp. ("Cinergy"), a Delaware corporation and registered
holding company under the Public Utility Holding Company Act
of 1935 ("Act"), proposes to solicit proxies from the holders
of its outstanding shares of preferred stock and common stock
("Proxy Solicitation") for use at a special meeting of its
stockholders to be held on or about August 29, 1996 ("Special
Meeting") to consider a proposed amendment to CG&E's amended
articles of incorporation ("Articles") that would eliminate a
provision restricting the amount of unsecured debt issuable by
CG&E ("Proposed Amendment"). If the Proposed Amendment is
adopted, CG&E proposes to make a special cash payment, in an
amount per share to be supplied by amendment in this
proceeding prior to the issuance of the Proxy Solicitation
order requested herein, to each preferred stockholder who
voted his or her shares of preferred stock in favor of the
Proposed Amendment (except if such holder validly tendered any
such shares pursuant to the concurrent cash tender offer noted
below).
Concurrently with the Proxy Solicitation, Cinergy proposes
to make an offer ("Offer") to the holders of CG&E's outstanding
preferred stock of each series to acquire for cash
any and all shares of CG&E preferred stock of each series, at
respective cash purchase prices for shares of each series to
be supplied by amendment in this proceeding prior to the
issuance of the Proxy Soliciation order requested herein,
together with an amount in cash the equivalent of accrued and
unpaid dividends to the date of payment for shares tendered.
Cinergy anticipates that the Offer for each series of preferred
stock will be scheduled to expire at 5 P.M. (New York time) on the date
of the Special Meeting ("Expiration Date"). The Offer is subject
to specified terms and conditions, including that preferred shareholders
who wish to tender their shares vote at the Special Meeting, in person
by ballot or by proxy, in favor of the Proposed Amendment.
Applicants request that the Commission issue a public
notice of the proposed transactions and order authorizing the
Proxy Solicitation (collectively, "Proxy Solicitation Order")
by not later than July 22, 1996, thereby both affording CG&E
sufficient time to solicit proxies in advance of the Special
Meeting and, since the Proxy Solicitation and the Offer will
be effected by means of the same core document a combined
proxy statement and issuer tender offer statement under the
Securities Exchange Act of 1934 ("Exchange Act") and
applicable rules and regulations thereunder facilitating
commencement of the Offer. Applicants further request that as
soon as practicable after the Proxy Solicitation Order, but in
any event not later than August 22, 1996, the Commission issue
an order authorizing the Proposed Amendment and Cash Payments
and Cinergy's proposed acquisition of any and all shares of
CG&E preferred stock pursuant to the Offer."
2. The first and second paragraphs under Item 1.C.1 ("Terms
of Proxy Solicitation and Proposed Amendment") are restated in
their entirety to read as follows:
"CG&E has outstanding 89,663,086 shares of common stock,
$8.50 par value per share ("Common Stock"), all of which are
held by Cinergy. CG&E's outstanding preferred stock consists
of two million shares of cumulative preferred stock, par value
$100 per share ("Preferred Stock"), issued in four series
(each, a "Series"),/1/ all of which are listed and traded on
the New York Stock Exchange. The Common Stock and Preferred
Stock of each Series are entitled to one vote per share and
constitute CG&E's only outstanding securities entitled to vote
on the Proposed Amendment. CG&E has outstanding no other
class of equity securities, including without limitation
preference stock.
The Articles currently provide that, without the consent
of the holders of not less than a majority of the total number
of shares of Preferred Stock of all Series, CG&E shall not
issue or assume any securities representing unsecured debt
(other than for purposes of refunding outstanding unsecured
indebtedness or redeeming or otherwise retiring outstanding
shares of stock ranking prior to the Preferred Stock with
respect to the payment of dividends or upon the dissolution,
liquidation or winding up of CG&E) if, immediately after such
issue or assumption, the total outstanding principal amount of
all securities representing unsecured debt would exceed 20% of
the aggregate of (1) the total principal amount of all then-outstanding
secured debt of CG&E and (2) the capital and
surplus of CG&E, as stated on CG&E's books ("20% Provision").
The Proposed Amendment would eliminate the 20% Provision by
deleting it in its entirety from the Articles."
3. The third-to-last and penultimate paragraphs under Item
1.C.1 are restated in their entirety to read as follows:
"CG&E has engaged MacKenzie Partners, Inc. to act as
information agent in connection with the Proxy Solicitation
for a fee and reimbursement of reasonable out-of-pocket
expenses estimated not to exceed approximately $35,000.
If the Proposed Amendment is adopted, CG&E proposes to
make a special cash payment to each Preferred Stockholder of
any series any of whose shares of Preferred Stock (each, a
"Share") are properly voted at the Special Meeting (in person
by ballot or by proxy) in favor of the Proposed Amendment,
such payment to be in an amount per Share (a "Cash Payment")
to be specified in an amendment in this proceeding filed prior
to the issuance of the Proxy Solicitation Order; provided,
however, that CG&E shall not make a Cash Payment in respect of
any Share validly tendered pursuant to the Offer."
4. The first and second paragraphs under Item 1.D.1 ("Terms
of Offer") are restated in their entirety to read as follows:
"Concurrently with the commencement of the Proxy
Solicitation, subject to the terms and conditions stated in
the Offer to Purchase and Proxy Statement and the accompanying
Letters of Transmittal and Proxy (see Exhibits B-1 and B-4)
(collectively, "Offer Documents"), Cinergy proposes to make
the Offer, pursuant to which it will offer to acquire from the
holders of the Preferred Stock of each Series any and all
Shares of that Series at a purchase price per Share in cash to
be supplied by amendment in this proceeding prior to the
issuance of the Proxy Solicitation Order, together with an
amount in cash the equivalent of accrued and unpaid dividends
to the date of payment for any Shares tendered (collectively,
a "Purchase Price"). Cinergy anticipates that the Offer for
each series of Preferred Stock will be scheduled to expire at
5 P.M. (New York City time) on the date of the Special Meeting
(i.e., August 29, 1996). As noted below, the Expiration Date
may be extended under certain circumstances.
The Offer consists of separate offers for each of the
four Series, with the offer for any one Series being
independent of the offer for any other Series. The applicable
Purchase Price and the other terms and conditions of the Offer
apply equally to all Preferred Stockholders of the respective
Series. The Offer is not conditioned upon any minimum number
of Shares of the applicable Series being tendered; subject to
the terms of the Offer Documents, Cinergy will purchase at the
applicable Purchase Price any and all Shares of any Series
that are validly tendered and not withdrawn prior to the
Expiration Date."
5. The last paragraph of Item 1.D.1 is restated in its
entirety to read as follows:
"Smith Barney Inc. and Morgan Stanley & Co. Incorporated
will act as dealer managers for Cinergy in connection with the
Offer. Cinergy has agreed to pay the dealer managers a
combined fee of $0.50 per Share for any Shares tendered,
accepted for payment and paid for pursuant to the Offer and to
reimburse the dealer managers for their reasonable out-of-pocket expenses,
including attorneys' fees. In addition,
Cinergy has agreed to pay soliciting brokers and dealers a
separate fee of $1.50 per Share (except that, for transactions
with beneficial owners equal to or exceeding 5,000 Shares,
Cinergy will pay a solicitation fee of $1.25 per Share) for
any Shares tendered, accepted for payment and paid for
pursuant to the Offer. As set forth in Item 2, Cinergy
proposes to pay the Depositary a fee estimated at
approximately $22,000."
6. The text under Item 3 ("Applicable Statutory Provisions")
is restated in its entirety to read as follows:
"Section 12(e) of the Act and Rules 62 and 65 thereunder
are applicable to the Proxy Solicitation. Section 12(e) and
Rule 65 are and Section 6(a)(2) may be deemed applicable to
Cash Payments. Section 6(a)(2) is applicable to the Proposed
Amendment. Sections 9(a) and 10 and Rule 51 are applicable to
the acquisition by Cinergy of Shares pursuant to the Offer.
Cinergy hereby represents that the conditions of Rule 51 will
be satisfied in respect of the acquisition by Cinergy of
Shares pursuant to the Offer. The contemplated capital
contribution by Cinergy to CG&E of Shares acquired by Cinergy
pursuant to the Offer is exempt from Section 12(b) and Rule
45(a) pursuant to Rule 45(b)(4). Rule 54 is also applicable
to the proposed transactions. To the extent that the
Commission determines that any other provision of the Act or
rule thereunder is applicable to the proposed transactions,
Applicants request an order or orders thereunder."
7. The text under Item 4 ("Regulatory Approval") is restated
in its entirety to read as follows:
"Other than the jurisdiction of the Commission under the
Act and the Exchange Act, no state or federal regulatory
agency has jurisdiction over the proposed transactions.
Applicants will comply fully with all requirements of the
Exchange Act and the rules and regulations thereunder
applicable to the Proxy Solicitation and the Offer, and
acknowledge that any Commission authorization granted under
the Act is conditioned upon such compliance."
8. The second paragraph under Item 5 ("Procedure") is
restated in its entirety to read as follows:
"In order to afford CG&E sufficient time in advance of
the Special Meeting to solicit proxies and to maximize the
prospect for adoption of the Proposed Amendment at the Special
Meeting, Applicants request that the Commission issue and
publish not later than July 22, 1996 the requisite notice
under Rule 23 with respect to the filing of this Application-Declaration,
together with an order under Section 12(e) and
Rule 62 permitting CG&E to solicit proxies pursuant to the
Proxy Solicitation. As explained in Item 1, concurrently with
the commencement of the Proxy Solicitation, Cinergy intends to
commence the Offer using a combined issuer tender offer
statement/proxy statement under the Exchange Act."
9. The following exhibits are filed herewith:
B-1(a) Preliminary Offer to Purchase and Proxy Statement
(filed in Commission File No. 1-1232 on July 11, 1996 and hereby
incorporated by reference)
B-2 Draft Notice of Special Meeting (attached as part
of Exhibit B-1(a))
B-3 Draft Form of Proxy (see Exhibit B-4)
B-4 Draft Form of Letter of Transmittal and Proxy
(attached as part of Exhibit B-1(a))
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, each of the
undersigned companies has duly caused this statement to be signed
on its behalf by the undersigned thereunto duly authorized.
Dated: July 19, 1996
Cinergy Corp.
By: /s/ William L. Sheafer
Treasurer
The Cincinnati Gas & Electric Company
By: /s/ William L. Sheafer
Treasurer
<PAGE>
ENDNOTES
/1/ The four series of Preferred Stock consist of a 4% series, of
which 270,000 shares are outstanding ("4% Series"); a 4-3/4%
series, of which 130,000 shares are oustanding ("4-3/4% Series");
a 7-3/8% series, of which 800,000 shares are outstanding ("7-3/8%
Series"); and a 7-7/8% series, of which 800,000 shares are
outstanding ("7-7/8% Series").
