<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1999
Subject to Amendment
Registration Statement No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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DUKE ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
North Carolina 56-0205520
(State of incorporation) (I.R.S. Employer Identification No.)
526 South Church Street
Charlotte, NC 28202
(704) 594-6200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------
RICHARD J. OSBORNE JOHN SPUCHES
Executive Vice President and Dewey Ballantine LLP
Chief Financial Officer 1301 Avenue of the Americas
526 South Church Street New York, New York 10019
Charlotte, North Carolina 28202 Telephone No. 212-259-7700
Telephone No. 704-382-5159
(Names, addresses, including zip co
des, and telephone numbers, including area
codes, of agents for service)
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Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, check the following
box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same off
ering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Proposed maximum
maximum aggregate Amount of
Title of shares to be Amount to offering price offering registration
registered (1) be registered per sh
are (2) price (2) fee (3)
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<S> <C> <C> <C> <C>
Common Stock, without
par value............. 10,000,000 shares $56.8125 $568,125,000 $157,939
</TABLE>
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(1) Includes Preference Stock Purchase Rights under the Rights Agreement of
Duke Energy Corporation.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) under the Securities Act of 1933.
(3) As permitted by Rule 429 under the Securities Act of 1933, the prospectus
included herein is a combined prospectus which also relates to
registration statement no. 33-59327, previously filed by the registrant on
Form S-3, as to which 1,968,836 shares of Common Stock (for whi
ch a
registration fee of $33,521 was paid) remain unsold. This registration
statement constitutes post-effective amendment no. 1 to that registration
statement which shall become effective concurrently with this registration
statement in accordance with Section 8(c) of the Securities Act of 1933.
---------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to said Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this Prospectus is not complete and may be changed. We may +
+not sell these securities until the registration statement filed with the +
+Securities and Exchange Commission is effective. This Prospectus is not an +
+offer to sell these securities and it is not soliciting an offer to buy these +
+securities in any state where the offer or sale of these securities is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion dated June 25, 1999
PROSPECTUS
DUKE ENERGY CORPORATION
InvestorDirect Choice Plan
The Duke Energy InvestorDirect Choice Plan provides a convenient way for you
to purchase shares of our Common Stock without paying any brokerage commissions
or service charges. The Plan promotes long-term ownership in our Common Stock
by offering:
. A simple way to increase your holdings in our Common Stock by
automatically reinvesting your cash dividends;
. The opportunity to purchase additional shares by making optional
investments of at least $50 for any single investment, up to a maximum of
$100,000 per month. In certain circumstances, we may permit greater
optional investments;
. A feature which allows you to deposit certificates representing our Common
Stock into the Plan for safekeeping.
The Plan also provides us with a means of raising additional capital through
the direct sale of our Common Stock.
The Plan amends our prior InvestorDirect Choice Plan. Current participants
will automatically continue to participate in the Plan.
You do not have to be a current shareholder to participate in the Plan. You
can purchase your first shares of our Common Stock by making an initial
investment of not less than $250 and not more than $100,000. In certain
circumstances, we may permit greater initial investments. To the extent
required by state securities laws in certain jurisdictions, shares of our
Common Stock that are offered under the Plan to persons who are not presently
record holders of our Common Stock may be offered only through a registered
broker/dealer.
This Prospectus relates to 11,968,836 shares of Duke Energy Common Stock,
without par value, offered for purchase under the Plan.
Our Common Stock is listed on the New York Stock Exchange under the symbol
"DUK".
You should read this Prospectus carefully and retain it for future reference.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the contrary is
a criminal offense.
The date of this Prospectus is , 1999.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
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<S> <C>
Summary of the Plan........................................................ 1
Administration of the Plan................................................. 2
Telephone Numbers and Mailing Address...................................... 2
Enrollment................................................................. 3
Investment Options......................................................... 3
Optional Investments....................................................... 4
Purchase of Shares......................................................... 7
Sale of Shares............................................................. 8
Safekeeping of Certificates................................................ 9
Gifts or Transfers of Shares............................................... 9
Issuance of Certificates................................................... 10
Statements of Account...................................................... 10
Termination of Participation............................................... 10
Other Information.......................................................... 10
Federal Income Tax Consequences............................................ 12
Interpretation of the Plan................................................. 12
Use of Proceeds............................................................ 12
Plan of Distribution....................................................... 13
Validity of the Securities................................................. 14
Experts.................................................................... 14
Where You Can Find More Information........................................ 14
Appendix I -- Optional Investments......................................... A-1
Appendix II -- Optional Investments Pursuant to Requests for Waiver........ A-3
Appendix III -- Closings of U.S. Equity Markets............................ A-4
</TABLE>
DUKE ENERGY CORPORATION
We are based in Charlotte, North Carolina, and are a global energy company
with more than $26 billion in assets. In June 1997, Duke Power Company merged
with Houston-based PanEnergy Corp and changed its name to Duke Energy. We
provide electric service to approximately two million customers in North
Carolina and South Carolina and through subsidiaries operate interstate
pipelines that deliver natural gas to various regions of the country and are
leading marketers of electricity, natural gas and natural gas liquids. Our
principal executive offices are located at 526 South Church Street, Charlotte,
NC 28202-1904 (Telephone No. (704) 594-6200).
<PAGE>
SUMMARY OF THE PLAN
. Enrollment: An interested investor who does not already own shares of our
Common Stock or Preferred Stocks may enroll in the Plan by making an initial
investment of at least $250 and submitting a completed Enrollment Form.
Shareholders enrolled in the current InvestorDirect Choice Plan are
automatically enrolled in the Plan. Current participants do not need to take
any action to continue to participate. Other shareholders may participate by
submitting a completed Enrollment Form. If your shares of our Common Stock
or Preferred Stocks are held in a brokerage account, you may participate
directly by registering some or all of those shares in your name or by
making arrangements with the broker, bank or other intermediary account to
participate on your behalf.
. Reinvestment of Dividends: You may elect to have all or a portion of your
cash dividends on our Common Stock or Preferred Stocks automatically
reinvested toward the purchase of additional shares of our Common Stock
without paying any fees. You also have the option of receiving a cash
dividend on all or a portion of the shares held in your Account under the
Plan.
. Optional Investments: You may invest additional funds in our Common Stock
through optional investments of at least $50 for any single investment up to
$100,000 per month. Optional investments in excess of $100,000 per month may
only be made after submission of a written request--a "Request for Waiver"--
to us and after we have given our written approval, which we may grant or
refuse to grant in our sole discretion. You may make optional investments
occasionally or at regular intervals, as you desire. Your funds are fully
invested in our Common Stock through the purchase of whole shares and
fractional shares. We will pay or reinvest proportionate cash dividends on
fractional shares of our Common Stock depending upon your reinvestment
election.
. Safekeeping of Certificates: The Plan offers a safekeeping service whereby
you may deposit certificates representing our Common Stock held in
certificate form into the Plan. You can select this service without
participating in any other feature of the Plan. The safekeeping service is
free of any service charges.
. Gifts or Transfer of Shares: You may direct us to transfer all or a portion
of the shares of our Common Stock credited to your Account to another
person, whether or not the transferee is a participant in the Plan. There is
no cost for this service, and it is available for all shares held in the
Plan, including shares deposited into the Plan for safekeeping.
. Sale of Shares: You may sell shares of our Common Stock credited to your
Account (including those shares deposited into the Plan for safekeeping)
through the Plan. A nominal brokerage commission and any required tax
withholdings or transfer taxes will be deducted from the proceeds that you
receive from the sale.
. Statement of Account: You will receive a statement for each month during
which your Account has had activity. All participants in the Plan will
receive a quarterly statement of account.
. Fees: You will not be charged any fees for the purchase of shares through
your Account. A nominal brokerage commission (currently $0.05 per share)
will be deducted from the proceeds of any sale of shares credited to your
Account.
. Principal Executive Offices: Our principal executive offices are located at
526 South Church Street, Charlotte, NC 28202, telephone (704) 594-6200.
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<PAGE>
ADMINISTRATION OF THE PLAN
Our Investor Relations Department serves as Administrator of the Plan. Its
responsibilities include:
. receiving optional investments;
. maintaining records;
. issuing statements of account; and
. performing other duties required by the Plan.
A custodian bank that we have selected holds shares registered in the Plan's
nominee name representing the aggregate number of whole shares of our Common
Stock purchased under, or deposited for safekeeping into, the Plan and
credited to participants' Accounts. The Administrator will forward funds to be
used to purchase shares of our Common Stock in the open market to an
Independent Agent that we have selected. The Independent Agent is responsible
for purchasing and selling shares of our Common Stock in the open market for
participants' Accounts in accordance with the Plan.
You may contact the Administrator as detailed below.
TELEPHONE NUMBERS AND MAILING ADDRESS
For information about the Plan:
Toll-free telephone #: (800) 488-3853
Charlotte telephone #: (704) 382-3853
FAX: (704) 382-3814
Internet: www.duke-energy.com
Email: [email protected]
You should mail written requests and optional investments to:
Duke Energy Corporation For Overnight Delivery:
Investors Relations Department
P.O. Box 1005 526 South Church Street
Charlotte, NC 28201-1005 Charlotte, NC 28202-1904
For telephone and facsimile numbers relating to optional investments
pursuant to Requests for Waiver, see "Optional Investments Over Maximum
Monthly Amount" under "Optional Investments."
2
<PAGE>
ENROLLMENT
You are eligible to participate in the Plan if you meet the requirements
outlined below. If you are a citizen or resident of a country other than the
United States, its territories and possessions, you must first determine that
participating will not violate local laws applicable to us, the Plan and you
as a participant.
If you do not currently own any shares of our Common Stock or Preferred
Stocks, you may join the Plan after receiving a copy of this Prospectus and
returning a completed Enrollment Form along with your initial investment of at
least $250. Any initial investment greater than $100,000 will require your
submitting a Request for Waiver to us and your receiving our prior approval,
which we may grant or refuse to grant in our sole discretion. Some state
securities laws require that a registered broker-dealer send information to
their residents. A registered broker-dealer will forward this Prospectus and
the Enrollment Form to residents of those states rather than our providing
that information directly to those residents.
If you already own shares of our Common Stock or Preferred Stocks and those
shares are registered in your name, you may join the Plan after receiving a
copy of this Prospectus and returning a completed Enrollment Form. Registered
shareholders should be sure to sign their names on the Enrollment Form exactly
as they appear on their stock certificates. If you are currently participating
in the InvestorDirect Choice Plan, you are automatically enrolled in the Plan
without sending an Enrollment Form. However, if you wish to change your
participation in any way, please contact the Administrator for instructions.
If you hold your shares of our Common Stock or Preferred Stocks in a
brokerage, bank or other intermediary account--that is, in "street name," you
may participate in the Plan by instructing your broker, bank or other
intermediary account to register the shares in your name or by making
arrangements with the broker, bank or other intermediary account to
participate on your behalf. As another option, you may request a copy of this
Prospectus from the Administrator and return a completed Enrollment Form along
with an initial investment of at least $250 to Duke Energy Investor Relations.
INVESTMENT OPTIONS
The options regarding the reinvestment of your dividends are listed below.
You may change a reinvestment decision at any time by notifying Duke Energy
Investor Relations in writing. Your notification must be received prior to the
record date for a dividend for it to be reinvested. The dividend record date
for our Common Stock is normally the Friday closest to the 15th of February,
May, August or November.
FULL DIVIDEND REINVESTMENT--Your cash dividends are automatically
reinvested on all shares of our Common Stock and Preferred Stocks. This
includes reinvestment on Plan shares as well as shares held outside of
the Plan.
PARTIAL DIVIDEND REINVESTMENT--You must specify the number of shares of
our Common Stock, including Plan shares, and/or the number of shares of
each series of our Preferred Stocks, on which you wish to receive cash
dividends. Dividends on the remaining shares are reinvested.
NO DIVIDEND REINVESTMENT/OPTIONAL INVESTMENTS ONLY--You will receive cash
dividends on all shares of our Common Stock and Preferred Stocks,
including Plan shares.
. Direct Deposit of Cash Dividends: If you choose the partial dividend
reinvestment option or the no dividend reinvestment option, you may elect to
have all of your cash dividends deposited directly into your
3
<PAGE>
U.S. bank account on the dividend payment date instead of receiving a check
by mail. To make this election, you must complete a direct deposit
authorization form and return it to the Administrator, along with a voided
check for the designated bank account. The direct deposit authorization form
is available from the Administrator. In order to initiate, change or stop the
direct deposit of dividends, Duke Energy Investor Relations must receive your
written request at least 30 days before the dividend payment date.
OPTIONAL INVESTMENTS
You can purchase shares of our Common Stock by using the Plan's optional
investment feature. To purchase shares by making optional investments, you
must invest at least $50 at any one time (at least $250 for an initial
investment if you are not already a shareholder) but cannot invest more than
$100,000 per month, except as described below under "Optional Investments Over
Maximum Monthly Amount." Any optional investment of less than $50 ($250 for an
initial investment by an investor who is not a shareholder) and the portion of
any optional investment or investments totaling more than $100,000 per month,
except for optional investments made pursuant to Requests for Waiver approved
by us, will be returned without interest. You have no obligation to make any
optional investments under the Plan.
. Investment Dates: An "Investment Date" for optional investments will occur
twice each month--on the 3rd and 18th day of the month, or, if that day is
not a business day, the business day immediately following that day, except
that an Investment Date for optional investments pursuant to Requests for
Waiver that we have approved will occur only once each month--on the 18th
day of the month, or, if that day is not a business day, the business day
immediately following that day. The Administrator must receive optional
investments, other than optional investments pursuant to Requests for
Waiver, no later than two business days before an Investment Date for those
investments to be invested in our Common Stock beginning on that Investment
Date. Otherwise, the Administrator may hold those funds and invest them
beginning on the next Investment Date. No interest will be paid on funds
held by the Administrator pending investment. Accordingly, you may wish to
transmit any such investments so as to reach the Administrator shortly--but
not less than two business days--before an Investment Date in order to
minimize any time period during which your funds are not invested. The
Administrator must receive any Requests for Waiver by facsimile at fax no.
(704) 382-3000 no later than the close of business on the second business
day before the first day of the pricing period for the relevant Investment
Date. The Administrator will notify any investors whose Requests for Waiver
have been approved of those approvals by 10:00 a.m. on the first business
day before the first day of the applicable pricing period.
Dividend payments that you have designated for reinvestment will be invested
beginning on the Investment Date immediately following the relevant dividend
payment date.
The attached Appendix I provides a list of the important dates that are
applicable to optional investments that do not exceed the Plan's maximum
monthly amount. The attached Appendix II provides a list of important dates
which are applicable to optional investments made pursuant to Requests for
Waiver that are approved by us, if any. Investment dates are provided through
July 18, 2001. The attached Appendix III provides the dates upon which the
United States equity markets are closed, through July 4, 2001.
.Method of Payment:
Check or Money Order--You may make optional investments during any month by
delivering to the Administrator a completed optional investment stub (the
tear-off portion located at the top of your statement) or an Enrollment Form,
and a personal check or money order made payable to Duke Energy Corporation.
Please do not send cash.
4
<PAGE>
Automatic Bank Draft--You may pre-authorize the Administrator to deduct a set
amount ($25 minimum) from a U.S. checking, savings or credit union account.
To initiate the bank draft, you must complete and sign the Bank Draft
Authorization section of the Enrollment Form, and return it to the
Administrator with a voided check for the bank account from which funds are
to be drafted. Automatic bank drafts will be initiated as promptly as
practicable and, after initiated, funds will be drawn on the 16th of each
month or if that date falls on a non-business day, the next business day.
Those funds will be invested in our Common Stock beginning on the next
Investment Date. You should allow up to 4 weeks for the first automatic bank
draft to be initiated. In order to terminate an automatic bank draft, you
must notify the Administrator in writing at least 10 business days before the
next automatic bank draft date in order for the termination to be effective
by that date.
Other forms of payment, such as wire transfers, may be made, but only if the
Administrator provides advance approval. You should direct any inquiries
regarding other forms of payment to the Administrator as indicated above
under the caption "Telephone Numbers and Mailing Address."
. Dividends on Shares Purchased: If shares that you have purchased by
optional investment are added to your Account by a dividend record date,
you will receive the upcoming dividend on those newly added shares as well
as any other shares already credited to your Account. We generally pay
dividends on our Common Stock on the 16th of March, June, September and
December to shareholders of record on the Friday closest to the 15th of
February, May, August and November. Thus, shares purchased by optional
investment by the first Investment Date occurring in February, May, August
and November will be credited to your Account in time to receive dividends
payable with respect to the dividend record date in that month.
. Pending Investments: Optional investments, pending investment pursuant to
the Plan, will be credited to your Account and held in a trust account
which will be separate from any of our other funds or monies. Any such
investments that are not invested in our Common Stock within 30 days of
receipt will be promptly returned to you.
. Optional Investments Over Maximum Monthly Amount: Optional investments in
excess of $100,000 per month (including any initial investments in excess of
$100,000) may be made only by investors that submit Requests for Waiver that
are approved by us. Any investor that submits a Request for Waiver that is
not already a Plan participant and whose Request for Waiver is approved by
us must submit a completed Enrollment Form along with the investor's
optional investment payment.
We have sole discretion to grant or to refuse to grant a Request for Waiver.
In deciding whether to grant a Request for Waiver, we will consider relevant
factors, including:
. whether the Plan is then purchasing newly issued shares of our Common
Stock or is purchasing shares of our Common Stock through open market
purchases;
. our need for additional funds;
. the attractiveness of obtaining those funds through the sale of our
Common Stock under the Plan in comparison to other sources of funds;
. the purchase price likely to apply to any sale of our Common Stock
under the Plan;
. the party submitting the request, including the extent and nature of
that party's prior participation in the Plan and the number of shares
that party holds of record; and
. the aggregate amount of optional investments in excess of $100,000 for
the month for which Requests for Waiver have been submitted.
5
<PAGE>
If Requests for Waiver are submitted for any Investment Date for a total
amount greater than the amount we are then willing to accept, we may
honor those requests on any basis that we, in our sole discretion,
consider appropriate.
Pricing Period--The price of each newly issued share of our Common Stock
purchased pursuant to a Request for Waiver will be the average of the daily
high and low sale prices, computed to four decimal places, of our Common
Stock as reported on the New York Stock Exchange for the relevant "pricing
period"--that is, the ten trading days immediately preceding the relevant
Investment Date--less any applicable waiver discount as described below. A
"trading day" means a day on which trades in our Common Stock are reported on
the New York Stock Exchange.
The Administrator will apply all optional investments pursuant to Requests
for Waiver that are approved by us and that are received by the Administrator
by wire transfer on or before the first business day before the first day of
the relevant pricing period to the purchase of shares of our Common Stock on
the next following Investment Date. All such optional investments received
after the close of business on the first business day before the first day of
the relevant pricing period will be returned without interest.
Threshold Price--We may, in our sole discretion, establish for any pricing
period a "threshold price" applicable to optional investments made pursuant
to Requests for Waiver. The threshold price will be the minimum price
applicable to purchases of our Common Stock pursuant to Requests for Waiver
during the applicable pricing period. At least two business days before the
first day of the applicable pricing period, we will determine whether to
establish a threshold price and, if a threshold price is established, its
amount, and will notify the Administrator. We will make that determination,
in our sole discretion, after a review of current market conditions, the
level of participation in the Plan and our current and projected capital
needs.
The threshold price will be the dollar amount that the average of the high
and low sale prices of our Common Stock on the New York Stock Exchange must
equal or exceed for each trading day during the relevant pricing period. In
the event that the threshold price is not satisfied for a trading day during
the pricing period, then that trading day will be excluded from the pricing
period. Additionally, a trading day will be excluded if no trades in our
Common Stock are made on the New York Stock Exchange for that day. For
example, if the threshold price is not satisfied for one of the ten trading
days in a pricing period, then the purchase price will be based upon the
remaining nine trading days in which the threshold price was satisfied.
A portion of each optional investment made pursuant to a Request for Waiver
will be returned for each trading day during a pricing period on which the
threshold price is not satisfied and for each trading day on which no trades
of our Common Stock are reported on the New York Stock Exchange. The returned
amount will equal one-tenth of the total amount of that optional investment
for each trading day that the threshold price is not satisfied. For example,
if the threshold price is not satisfied or no sales are reported for one of
the ten trading days in a pricing period, one-tenth of the optional
investment will be returned without interest.
The establishment of the threshold price and the possible return of a portion
of the investment in the event a threshold price is not satisfied, apply only
to optional investments made pursuant to Requests for Waiver. Setting a
threshold price for a pricing period will not affect the setting of a
threshold price for any subsequent pricing period. We may waive our right to
set a threshold price for any pricing period. Neither we nor the
Administrator will be required to provide any written notice of the threshold
price for any pricing period.
6
<PAGE>
Waiver Discount--We may, in our sole discretion, establish a "waiver
discount" of 0% to 3% from the market price applicable to optional
investments made pursuant to Requests for Waiver. The waiver discount may
vary for different Investment Dates but will apply uniformly to all optional
investments made pursuant to Requests for Waiver with respect to a particular
Investment Date.
We will determine, in our sole discretion, whether to establish a waiver
discount after a review of current market conditions, the level of
participation and our current and projected capital needs. At least two
business days before the first day of the applicable pricing period, we will
determine whether to establish a waiver discount and, if a waiver discount
is established, its amount, and will notify the Administrator. Neither we
nor the Administrator will be required to provide any written notice of the
waiver discount, if any, for any pricing period.
You may ascertain the threshold price, the waiver discount and the aggregate
amount of optional investments pursuant to Requests for Waiver that we will
accept, if any, for any given pricing period by telephoning us at (800) 385-
3462 (toll-free) at any time after 8:00 a.m. on the second business day
before the first day of the relevant pricing period.
Optional investments that do not exceed $100,000 per month as well as
dividend reinvestments will not be subject to a waiver discount or a threshold
price.
PURCHASE OF SHARES
. Source of Shares: Shares of our Common Stock needed to meet the requirements
of the Plan will be either newly issued shares purchased directly from us or
shares purchased in the open market by an Independent Agent. The Plan limits
us from changing our determination regarding the source of shares to not
more than once in any 3-month period. As of the date of this Prospectus the
Plan is purchasing newly issued shares of our Common Stock to satisfy Plan
requirements. It is our present intention that the Plan will continue to use
newly issued shares to satisfy Plan requirements in the future.
. Pricing of Newly Issued Shares: The price of each newly issued share
purchased directly from us for dividend reinvestments or for optional
investments not exceeding $100,000 per month will be the average of the high
and low sale prices of our Common Stock reported on the New York Stock
Exchange Composite Tape as published in The Wall Street Journal for the
trading date preceding the Investment Date. In the event no trading is
reported for that trading day, we may determine the purchase price on the
basis of market quotations as we deem appropriate. The price of each newly
issued share of Common Stock purchased pursuant to Requests for Waiver is
described above under "Optional Investments Over Maximum Monthly Amount."
. Pricing of Shares Purchased in the Open Market: The price of any shares of
our Common Stock purchased in the open market to satisfy Plan requirements
will be the weighted average price per share of the aggregate number of
shares purchased for the relevant Investment Date. The number of shares
(including any fraction of a share, rounded to four decimal places) of our
Common Stock purchased in the open market that is credited to your Account
for a particular Investment Date will be determined by dividing the total
amount of cash dividends, optional investments and/or initial investments to
be invested for you on that Investment Date by the relevant purchase price
per share. We will pay any brokerage fees that the Plan incurs for open
market purchases. Such brokerage fees will be reported to you as taxable
income and will become a part of the cost of shares purchased on your
behalf.
The Independent Agent may commingle your funds with those of other
participants in the Plan for the purpose of executing purchase and sale
transactions.
7
<PAGE>
. Timing of Purchases: Purchases in the open market may begin on the relevant
Investment Date and will be completed no more than 15 days after that
Investment Date. Funds not invested in our Common Stock within 30 days of
receipt will be promptly returned to you. With regard to open market
purchases of shares of our Common Stock by an Independent Agent, neither we,
the Administrator, nor any participant in the Plan will have any authority
or power to:
. direct the time or price at which shares may be purchased;
. designate the markets on which shares are to be purchased; or
. select the broker or dealer (other than the Independent Agent) through
which purchases may be made.
Therefore, you will not be able to precisely time your purchases through the
Plan, and will bear the market risk associated with fluctuations in the
price of our Common Stock.
SALE OF SHARES
You may request, at any time, that all or a portion of the shares of our
Common Stock credited to your Account be sold by delivering written
instructions to the Administrator. Those instructions may be sent either by
mail or telecopier (fax) and must be signed by all registered holders of those
shares. The Administrator will forward the instructions to the Independent
Agent, who will sell the shares as promptly as practicable. The Independent
Agent cannot, however, sell any certificated shares owned by a participant in
the Plan unless the certificates are first deposited into the Plan using the
safekeeping feature.
The Administrator reserves the right to close your Account if the share
balance in the Account is less than one whole share. If the Administrator
exercises this right, you will receive a check for the value of any fractional
share less applicable brokerage commissions and any required tax withholdings
or transfer taxes.
. Timing of Sales: The Independent Agent will generally make sales of Plan
shares at least weekly, or more frequently if volume dictates. With regard
to those sales, neither we, the Administrator, nor any participant in the
Plan will have any authority or power to:
. direct the time or price at which shares may be sold;
. designate the markets on which shares are to be sold; or
. select the broker or dealer (other than the Independent Agent) through
which sales may be made.
Therefore, you will not be able to precisely time your sales through the
Plan and will bear the market risk associated with fluctuations in the price
of our Common Stock. You may also choose to sell your shares through a
stockbroker of your choice, in which case you should withdraw the shares by
requesting a certificate for your shares from Duke Energy Investor
Relations. See "Issuance of Certificates" in this Prospectus for more
information.
. Pricing of Shares Sold: The sale price of any shares sold will be the
weighted average price of all shares sold for participants in the Plan
during the period in which the Independent Agent is provided with Plan
shares for that sale. You will receive the proceeds of the sale, less a
nominal brokerage fee (currently $0.05 per share) and any required tax
withholdings or transfer taxes.
8
<PAGE>
SAFEKEEPING OF CERTIFICATES
You may deposit any shares of our Common Stock that you hold in certificate
form into the Plan for safekeeping by delivering those stock certificates,
unendorsed, to the Administrator and requesting that the shares be credited to
your Account. You may do this at the time of enrollment by delivering the
certificates along with a completed Enrollment Form or at any later time. The
safekeeping feature is offered at no charge to you and eliminates the risk
associated with the loss of stock certificates.
The shares of our Common Stock that you deposit will be credited to your
Account and will be treated in the same manner as shares of our Common Stock
purchased under the Plan and credited to your Account. Cash dividends paid on
shares of our Common Stock that are deposited into the Plan for safekeeping
will be reinvested in shares of our Common Stock in accordance with your
reinvestment election as designated on your Enrollment Form.
GIFTS OR TRANSFERS OF SHARES
You may give or transfer shares of our Common Stock to anyone you choose by:
. making an initial investment to establish an Account in the recipient's
name. Simply complete and submit an application to the Administrator in
the recipient's name together with the required initial investment of at
least $250 but not more than $100,000; or
. making an optional investment in an amount of at least $50 but not more
than $100,000, on behalf of an existing participant; or
. transferring shares from your Account to another person as described
below.
You may transfer ownership of all or part of your Plan shares by delivering
a written request to the Administrator with instructions for the change in
ownership. Requests for Account transfers are subject to the same requirements
as requests for the transfer of securities, including the requirement that the
Administrator receive a properly executed and signed stock power with
signatures guaranteed by a financial institution participating in the
Medallion Signature Guarantee program. Most banks and brokers participate in
the Medallion Signature Guarantee program.
The Administrator will continue to hold shares transferred under the Plan.
The Administrator will open an Account in the name of the transferee, if the
transferee is not already a participant, and the transferee will automatically
be enrolled in the Plan. The transferee may make elections with regard to the
reinvestment of cash dividends on the transferred shares on the Enrollment
Form that is provided to him or her. If no election is made, cash dividends
will be reinvested on behalf of the transferee. A statement will be sent to
the transferee showing the transfer of shares into his or her Account unless
you request otherwise.
The transfer will be made as soon as practicable after the Administrator
receives the required documentation. Requests for transfer of the entire
Account balance received after a dividend record date will be held until the
dividend has been paid, reinvested in our Common Stock and applied to your
Account.
Shares of our Common Stock credited to your Account may not be pledged or
assigned. If you wish to pledge or assign your shares, you must withdraw those
shares from your Account.
9
<PAGE>
ISSUANCE OF CERTIFICATES
You may obtain at any time, free of charge, a certificate for all or a part
of the whole shares of our Common Stock credited to your Account upon written
request to the Administrator. The reverse side of the statement top may be
used for this purpose. Those certificate(s) will be mailed by first class
mail, within two business days of the Administrator's receipt of the written
request, to your address of record. The issuance of Plan shares in certificate
form will not change your reinvestment instructions unless you direct
otherwise. Any remaining whole or fractions of shares of our Common Stock will
continue to be credited to your Account. Certificates for fractions of shares
of our Common Stock will not be issued under any circumstances.
Certificates will be issued in the name or names in which the Account is
registered unless you instruct otherwise. If the certificate is issued in a
name other than your Account registration, the signature on the instructions
or stock power must be guaranteed by a financial institution participating in
the Medallion Signature Guarantee program. Most banks and brokers participate
in the Medallion Signature Guarantee program.
STATEMENTS OF ACCOUNT
You will receive a quarterly statement showing all transactions for your
Account during the current calendar year. You will receive supplemental
statements in months in which you made an optional investment or deposited,
transferred or withdrew shares under the Plan. The Administrator will also
send a statement promptly after the sale of shares under the Plan. If you
participate in the Plan through a broker, bank or other intermediary account,
you should contact that party regarding your statement.
Please notify Duke Energy Investor Relations promptly of any change in your
address. The Administrator will mail all notices, statements and reports to
your address of record. You should retain the statements that you receive in
order to establish the cost basis of shares purchased under the Plan for tax
and other purposes.
TERMINATION OF PARTICIPATION
You may terminate your participation in the Plan at any time by delivering
written instructions to the Administrator, either by mail or telecopier (fax),
signed by all registered holders listed on the Account. Upon termination, you
must elect either to receive a certificate for the number of whole shares held
in your Account and a check for the value of any fractional share, or to have
all the shares in your Account sold for you as described under the caption
"Sale of Shares" in this Prospectus.
The Administrator will send your stock certificates and/or proceeds to you
as soon as practicable. If the Administrator receives a notice of termination
after a dividend record date but before the related dividend payment date, a
separate dividend check will be mailed to you on the dividend payment date.
Thereafter, cash dividends on any remaining shares of our Common Stock that
you hold will be paid to you and will not be reinvested.
OTHER INFORMATION
. Stock Dividend/Stock Split: Any stock dividends or split shares that we
distribute on shares credited to your Account will be added to your Account.
Stock dividends or split shares that we distribute on shares
10
<PAGE>
registered in your name outside of the Plan will be mailed directly to you in
the same manner as to holders of shares of our Common Stock who are not
participating in the Plan.
. Rights Offering: Your entitlement under the Plan in a regular rights
offering will be based upon your total holdings of our Common Stock in the
Plan. We will issue rights certificates only for the number of whole shares
credited to your Account. Rights based on a fraction of a share held in your
Account will be sold for the Account and the net proceeds will be invested
in our Common Stock and added to your Account by the end of the following
month.
. Voting of Proxies: You will have the exclusive right to exercise all voting
rights with respect to shares of our Common Stock credited to your Account.
You will receive proxy materials from us for each shareholder meeting,
including a proxy statement and a form of proxy covering all shares credited
to your Account and all shares of stock registered in your name outside of
the Plan as of the record date for the shareholder meeting. If you do not
provide any instructions on a returned, properly signed proxy card with
respect to any item on that proxy card, all of your whole and fractional
shares will be voted in accordance with the recommendations of our Board of
Directors. If you do not return the proxy or you return it unsigned, none of
your shares will be voted unless you vote in person or appoint another
person as proxy to vote your shares.
. Shareholder Communications: In addition to proxy materials, participants in
the Plan will have the right to receive all communications sent to holders
of our Common Stock generally.
. Responsibility of the Administrator, the Independent Agent and Duke Energy:
Neither the Administrator (including Duke Energy acting as such) nor the
Independent Agent will be liable for any act done in good faith or for the
good faith omission to act in connection with the Plan, including any claim
of liability arising out of failure to terminate your Account upon your
death prior to receipt of written notice of your death, or with respect to
the prices at which shares of our Common Stock are purchased or sold for
your Account and the times when those purchases and sales are made.
. Plan Modification or Termination: We reserve the right to suspend, modify or
terminate the Plan at any time without the approval of participants in the
Plan. We will send notice of any suspension, termination or significant
modification of the Plan to all participants, who will in all events have
the right to withdraw from participation.
. Multiple Accounts: We reserve the right to aggregate all optional
investments for participants with more than one Account using the same name,
address or social security or taxpayer identification number. Also for the
purpose of such limitations, all participants' Accounts that we believe to
be under common control or management or to have common ultimate beneficial
ownership may be aggregated. In the event that we exercise our right to
aggregate investments and the result would be an investment in excess of
$100,000 per month without a Request for Waiver approved by us, we will
return, without interest, as promptly as practicable, any amount in excess
of $100,000.
. Transfer Agent and Registrar: We act as our own transfer agent and registrar
for our Common Stock and Preferred Stocks.
We cannot assure you of a profit or protect you against a loss on the shares
of our Common Stock that you purchase or sell under the Plan.
The payment of dividends is at the discretion of our Board of Directors and
will depend upon future earnings, our financial condition and other factors.
There can be no assurance as to the declaration or payment of any dividend.
Nothing in the Plan obligates us to declare or pay any dividend on our Common
Stock.
11
<PAGE>
FEDERAL INCOME TAX CONSEQUENCES
You are advised to consult your tax or financial advisor with respect to the
tax consequences of participating in the Plan.
In general, you will have the same Federal income tax obligations with
respect to dividends payable to you on the shares of our Common Stock credited
to your Account as other holders of shares of our Common Stock. For Federal
income tax purposes, you will be treated as having received, on the dividend
payment date, a dividend equal to the full amount of the cash dividend payable
on that date with respect to your shares, even though that amount may not
actually be received by you in cash but instead applied to the purchase of
shares for your Account. If you make optional investments that are subject to
a waiver discount, you may be treated as having received an additional
dividend distribution equal to the excess, if any, of the fair market value of
the shares acquired on the Investment Date over the amount of your optional
investment. The Internal Revenue Service has recently issued private letter
rulings on plans similar to the Plan which hold that shareholders making
optional investments will not be treated as having received such dividend
income if the shareholders are not also participants in the dividend
reinvestment aspect of the plan. Private letter rulings may not be relied upon
by persons other than the taxpayers to which they are issued. If shares of
Common Stock are purchased in the open market to satisfy Plan requirements,
you will be treated as having received additional dividend income in the
amount of any brokerage fees incurred by the Plan on your behalf.
The tax basis of shares acquired through the reinvestment of dividends will
be equal to the value of the dividends reinvested. The tax basis of shares
purchased with optional investments will be equal to the amount of those
investments increased by the amount of any additional dividend that you are
treated as having received as a result of a waiver discount. The tax basis of
shares purchased in the open market to satisfy Plan requirements will be
increased by the amount of any brokerage fees incurred by the Plan on your
behalf. Your December Plan statement will disclose all Plan activities for the
year and may be useful when calculating your tax basis.
Upon the sale of either a portion or all of your shares from the Plan, you
may recognize a capital gain or loss based on the difference between the sales
proceeds and the tax basis in the shares sold, including any fractional share.
You will not realize any taxable income when you receive certificates for
whole shares credited to your Account under the Plan.
If you are subject to withholding taxes, we will withhold the required taxes
from the gross dividends or the proceeds from the sale of shares. The
dividends or proceeds received by you, or dividends reinvested on your behalf,
will be net of the required taxes.
INTERPRETATION OF THE PLAN
Our officers are authorized to take any actions that are consistent with the
Plan's terms and conditions. We reserve the right to interpret and regulate
the Plan as we deem necessary or desirable in connection with the Plan's
operations.
USE OF PROCEEDS
We will receive proceeds from the purchase of our Common Stock pursuant to
the Plan only to the extent that those purchases are of newly issued shares of
our Common Stock made directly from us, and not from open market purchases.
Any proceeds that we receive from purchases of newly issued shares will be
used for general corporate purposes. We cannot estimate the amount of any such
proceeds at this time.
12
<PAGE>
PLAN OF DISTRIBUTION
In connection with the administration of the Plan, we may be requested to
approve optional investments in excess of the allowable maximum amount
pursuant to Requests for Waiver by or on behalf of participants or other
investors who may be engaged in the securities business. In deciding whether
to approve such a request, we will consider relevant factors, including:
. whether the Plan is then purchasing newly issued shares of our Common
Stock or is purchasing shares of our Common Stock through open market
purchases;
. our need for additional funds;
. the attractiveness of obtaining those funds through the sale of our
Common Stock under the Plan in comparison to other sources of funds;
. the purchase price likely to apply to any sale of our Common Stock under
the Plan;
. the person submitting the request, including the extent and nature of
that person's prior participation in the Plan and the number of shares
that person holds of record; and
. the aggregate amount of optional investments in excess of $100,000 for
the month for which Requests for Waivers have been submitted.
We will not extend to any such person any rights or privileges other than
those to which it would be entitled as a participant, nor will we enter into
any agreement with any such person regarding the resale or distribution by any
such person of the shares of our Common Stock so purchased. We may, however,
approve Requests for Waiver by such persons. If Requests for Waiver are
submitted for any Investment Date for a total amount greater than the amount
we are willing to accept, we may honor such requests on any basis that we, in
our sole discretion, consider appropriate.
Subject to the availability of shares of our Common Stock registered for
issuance under the Plan, there is no maximum number of shares that can be
issued pursuant to the reinvestment of dividends. From time to time, financial
intermediaries, including brokers and dealers, and other persons may engage in
positioning transactions in order to benefit from the waiver discount
applicable to optional investments made pursuant to Requests for Waiver under
the Plan. Those transactions may cause fluctuations in the trading volume of
our Common Stock. Financial intermediaries and such other persons who engage
in positioning transactions may be deemed to be underwriters. We have no
arrangements or understandings, formal or informal, with any person relating
to the sale of shares of our Common Stock to be received under the Plan. We
reserve the right to modify, suspend or terminate participation in the Plan by
otherwise eligible persons in order to eliminate practices which are
inconsistent with the purpose of the Plan.
We will pay any and all brokerage commissions and related expenses incurred
in connection with purchases of our Common Stock under the Plan. Upon
withdrawal by a participant from the Plan by the sale of shares of our Common
Stock held under the Plan, the participant will receive the proceeds of that
sale less a nominal brokerage commission and any required tax withholdings or
transfer taxes.
Our Common Stock may not be available under the Plan in all states. We are
not making an offer to sell our Common Stock in any state where the offer or
sale is not permitted.
13
<PAGE>
VALIDITY OF THE SECURITIES
Ellen T. Ruff, who is our Vice President and General Counsel, Corporate, Gas
and Electric Operations, will pass upon the validity of the shares of our
Common Stock offered by this Prospectus. As of May 31, 1999, Ms. Ruff owned
8,714 shares of our Common Stock and options to purchase 25,400 shares of our
Common Stock, 2,325 of which were currently exercisable.
EXPERTS
Our consolidated financial statements as of December 31, 1998 and 1997 and
for each of the three years in the period ended December 31, 1998, except
PanEnergy Corp and subsidiaries as of and for the period ended December 31,
1996, included in our annual report on Form 10-K for the year ended December
31, 1998, which are incorporated by reference in this Prospectus, have been
audited by Deloitte & Touche LLP, independent auditors, as stated in their
report which is incorporated by reference in this Prospectus. The financial
statements of PanEnergy Corp and subsidiaries (consolidated with our financial
statements) as of and for the year ended December 31, 1996 have been audited
by KPMG LLP, independent certified public accountants, as stated in their
report incorporated by reference in this Prospectus. Those financial
statements are incorporated in this Prospectus in reliance upon the respective
reports of such firms given upon their authority as experts in accounting and
auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports and other information with the
SEC. You may read and copy any document we file at the SEC's public reference
rooms in Washington, D.C., New York, New York and Chicago, Illinois. Please
call the SEC's toll-free telephone number at 1-800-SEC-0330 for further
information about the operation of the public reference rooms. In addition,
you may inspect our reports and other information at the offices of the New
York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005, where
certain of our securities are listed. Our SEC filings are available on the
SEC's Web site at http://www.sec.gov. Information about us is also available
on our Web site at http://www.duke-energy.com.
The SEC allows us to "incorporate by reference" the information we file with
it, which means that we can disclose important information to you by referring
you to those documents. The information incorporated by reference is an
important part of this Prospectus and should be read with the same care.
Information that we file later with the SEC will automatically update and
supersede that information.
The following documents are incorporated in and made a part of this
Prospectus by reference:
. our annual report on Form 10-K for the year ended December 31, 1998;
. our quarterly report on Form 10-Q for the quarter ended March 31, 1999;
. our current reports on Form 8-K filed January 26, 1999, February 11,
1999, March 8, 1999 and March 10, 1999;
. the definitive joint proxy statement-prospectus that we and PanEnergy
Corp filed dated March 13, 1997;
. the annual report on Form 10-K of PanEnergy Corp for the year ended
December 31, 1996;
. the quarterly reports on Form 10-Q of PanEnergy Corp for the quarters
ended March 31, 1997 and June 30, 1997; and
14
<PAGE>
. the description of our Common Stock which is contained in our
Registration Statement on Form S-4, Registration No. 333-23227, filed
with the SEC on March 13, 1997, including any amendments or reports filed
for the purpose of updating that description.
Any documents that we file with the SEC in the future under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 will also be
incorporated by reference in this Prospectus until we sell all of the
securities being registered.
You may request a copy of these filings at no cost by writing or calling us
at the following address or one of the following telephone numbers:
Duke Energy Corporation
Investor Relations Department
P.O. Box 1005
Charlotte, North Carolina 28201-1005
(704) 382-3853 or (800) 488-3853 (toll-free)
15
<PAGE>
Appendix I
OPTIONAL INVESTMENTS*
An Investment Date will occur twice each month--on the 3rd and 18th day of
the month or, if that day is not a business day, the business day immediately
following that day. Optional investments (including initial investments) must
be received by the Administrator no later than two business days prior to an
Investment Date to be invested in our Common Stock beginning on that
Investment Date.
<TABLE>
<CAPTION>
Due Date Investment Date
-------- ---------------
<S> <C>
July 1, 1999 July 6, 1999
July 15, 1999 July 19, 1999
July 30, 1999 August 3, 1999
August 16, 1999 August 18, 1999
September 1, 1999 September 3, 1999
September 16, 1999 September 20, 1999
September 30, 1999 October 4, 1999
October 14, 1999 October 18, 1999
November 1, 1999 November 3, 1999
November 16, 1999 November 18, 1999
December 1, 1999 December 3, 1999
December 16, 1999 December 20, 1999
December 30, 1999 January 3, 2000
January 13, 2000 January 18, 2000
February 1, 2000 February 3, 2000
February 16, 2000 February 14, 2000
March 1, 2000 March 3, 2000
March 16, 2000 March 20, 2000
March 30, 2000 April 3, 2000
April 14, 2000 April 18, 2000
May 1, 2000 May 3, 2000
May 16, 2000 May 18, 2000
June 1, 2000 June 5, 2000
June 15, 2000 June 19, 2000
June 29, 2000 July 3, 2000
July 14, 2000 July 18, 2000
August 1, 2000 August 3, 2000
August 16, 2000 August 18, 2000
August 31, 2000 September 5, 2000
September 14, 2000 September 18, 2000
September 29, 2000 October 3, 2000
October 16, 2000 October 18, 2000
November 1, 2000 November 3, 2000
November 16, 2000 November 20, 2000
November 30, 2000 December 4, 2000
December 14, 2000 December 18, 2000
</TABLE>
A-1
<PAGE>
<TABLE>
<CAPTION>
Due Date Investment Date
-------- ---------------
<S> <C>
December 29, 2000 January 3, 2001
January 16, 2001 January 18, 2001
February 1, 2001 February 5, 2001
February 15, 2001 February 20, 2001
March 1, 2001 March 5, 2001
March 15, 2001 March 19, 2001
March 30, 2001 April 3, 2001
April 16, 2001 April 18, 2001
May 1, 2001 May 3, 2001
May 16, 2001 May 18, 2001
May 31, 2001 June 4, 2001
June 14, 2001 June 18, 2001
June 29, 2001 July 3, 2001
July 16, 2001 July 18, 2001
</TABLE>
- --------
* The above dates do not apply to optional investments (including initial
investments) made pursuant to Requests for Waiver. Instead the information
provided in Appendix II--"Optional Investments Pursuant to Requests for
Waiver"--will be applicable.
A-2
<PAGE>
Appendix II
OPTIONAL INVESTMENTS
PURSUANT TO REQUESTS FOR WAIVER*
<TABLE>
<CAPTION>
Threshold Price/
Waiver Discount Pricing Period
Set By Payment Due Date Commences Investment Date
- ------------------ ----------------- ----------------- ------------------
<S> <C> <C> <C>
August 2, 1999 August 3, 1999 August 4, 1999 August 18, 1999
September 1, 1999 September 2, 1999 September 3, 1999 September 20, 1999
September 30, 1999 October 1, 1999 October 4, 1999 October 18, 1999
November 2, 1999 November 3, 1999 November 4, 1999 November 18, 1999
December 2, 1999 December 3, 1999 December 6, 1999 December 20, 1999
December 30, 1999 December 31, 1999 January 3, 2000 January 18, 2000
February 2, 2000 February 3, 2000 February 4, 2000 February 18, 2000
March 2, 2000 March 3, 2000 March 6, 2000 March 20, 2000
March 31, 2000 April 3, 2000 April 4, 2000 April 18, 2000
May 2, 2000 May 3, 2000 May 4, 2000 May 18, 2000
June 1, 2000 June 2, 2000 June 5, 2000 June 19, 2000
June 29, 2000 June 30, 2000 July 3, 2000 July 18, 2000
August 2, 2000 August 3, 2000 August 4, 2000 August 18, 2000
August 30, 2000 August 31, 2000 September 1, 2000 September 18, 2000
October 2, 2000 October 3, 2000 October 4, 2000 October 18, 2000
November 2, 2000 November 3, 2000 November 6, 2000 November 20, 2000
November 30, 2000 December 1, 2000 December 4, 2000 December 18, 2000
December 29, 2000 January 2, 2001 January 3, 2001 January 18, 2001
February 1, 2001 February 2, 2001 February 5, 2001 February 20, 2001
March 1, 2001 March 2, 2001 March 5, 2001 March 19, 2001
March 30, 2001 April 2, 2001 April 3, 2001 April 18, 2001
May 2, 2001 May 3, 2001 May 4, 2001 May 18, 2001
May 31, 2001 June 1, 2001 June 4, 2001 June 18, 2001
June 29, 2001 July 2, 2001 July 3, 2001 July 18, 2001
</TABLE>
- --------
* Duke Energy reserves the right to approve or not approve any or all
Requests for Waiver submitted with respect to any of the Investment Dates
listed above. If Duke Energy elects not to approve any Requests for Waiver
with respect to a given Investment Date, the information provided above
with respect to that Investment Date will not apply.
A-3
<PAGE>
Appendix III
CLOSINGS OF
U.S. EQUITY MARKETS
U.S. Equity Markets
Closed--1999 (from July 1)
<TABLE>
<S> <C>
Independence Day................................................... July 5*
Labor Day.......................................................... September 6
Thanksgiving Day................................................... November 25
Christmas Day...................................................... December 24*
</TABLE>
- --------
* Observed.
U.S. Equity Markets
Closed--2000
<TABLE>
<S> <C>
New Year's Day...................................................... January 1*
Martin Luther King Jr. Day.......................................... January 17
Presidents Day...................................................... February 21
Good Friday......................................................... April 21
Memorial Day........................................................ May 29
Independence Day.................................................... July 4
Labor Day........................................................... September 4
Thanksgiving Day.................................................... November 23
Christmas Day....................................................... December 25
</TABLE>
- --------
* New Year's Day 2000 falls on a Saturday. The New York Stock Exchange will
open for regular trading hours on Friday, December 31, 1999, and Monday,
January 3, 2000.
U.S. Equity Markets
Closed--2001 (to July 4)
<TABLE>
<S> <C>
New Year's Day...................................................... January 1
Martin Luther King Jr. Day.......................................... January 15
Presidents Day...................................................... February 19
Good Friday......................................................... April 13
Memorial Day........................................................ May 28
Independence Day.................................................... July 4
</TABLE>
A-4
<PAGE>
You should rely only on the information contained or incorporated by reference
in this Prospectus. We have not authorized any other person to provide you with
different information. If anyone provides you with different or inconsistent
information, you should not rely on it. We are not making an offer to sell our
Common Stock in any state where the offer or sale is not permitted. You should
assume that the information contained in this Prospectus is accurate only as of
its date. Our business, financial condition, results of operations and
prospects may have changed since that date.
[LOGO]
InvestorDirect
CHOICE
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DUKE ENERGY CORPORATION
COMMON STOCK
(without par value)
PROSPECTUS
, 1999
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution (Estimated):
<TABLE>
<S> <C>
Securities and Exchange Commission Filing Fee.................. $157,939*
Printing Costs................................................. 25,000
Legal Fees and Expenses........................................ 30,000
Accounting Fees................................................ 5,000
Listing Fees of New York Stock Exchange........................ 36,500
Blue Sky Fees and Expenses..................................... 3,000
Miscellaneous.................................................. 5,000
--------
Total........................................................ $262,439
========
</TABLE>
- --------
* Actual.
Item 15. Indemnification of Directors and Officers.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act and the By-Laws of the registrant permit indemnification of the
registrant's directors and officers in a variety of circumstances, which may
include liabilities under the Securities Act of 1933. In addition, the
registrant has purchased insurance permitted by the law of North Carolina on
behalf of directors, officers, employees or agents which may cover liabilities
under the Securities Act of 1933.
Item 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<C> <C> <S>
4(A)* -- Restated Articles of Incorporation of the registrant, dated June
18, 1997 (incorporated by reference to Exhibit 4(G) of Form S-8
(Registration No. 333-29563) filed by the registrant on June 19,
1997).
4(B) -- Articles of Amendment of the registrant dated April 28, 1999.
4(C) -- By-Laws of the registrant, as amended.
4(D)* -- Rights Agreement, dated as of December 17, 1998, between the
registrant and The Bank of New York, as Rights Agent, including
the form of Rights Certificate (incorporated by reference to
Exhibit 4.1 to the Current Report on Form 8-K of the registrant
dated February 11, 1999).
5 -- Opinion of Ellen T. Ruff, Esq.
23(A) -- Independent Auditors' Consent of Deloitte & Touche LLP.
23(B) -- Independent Auditors' Consent of KPMG LLP.
23(C) -- Consent of Ellen T. Ruff, Esq. (included in Exhibit 5).
24(A) -- Copy of power of attorney authorizing Richard J. Osborne and
others to sign the Registration Statement on behalf of the
registrant and certain of its directors and officers.
24(B) -- Certified copy of resolution of the Board of Directors of the
registrant authorizing the power of attorney.
</TABLE>
- --------
* Previously filed.
II-1
<PAGE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3, Form S-8 or Form F-3, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with
the securities being registered, the registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Securities Act of 1933 and
will be governed by the final adjudication of such issue.
II-2
<PAGE>
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 on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Charlotte, North Carolina, on the 25th day of June, 1999.
Duke Energy Corporation
R. B. Priory
By: _________________________________
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
R.B. Priory Chairman of the Board, June 25, 1999
President and Chief Executive Officer
(Principal Executive Officer)
Richard J. Osborne Executive Vice President June 25, 1999
and Chief Financial Officer
(Principal Financial Officer)
Jeffrey L. Boyer Vice President and Corporate Controller June 25, 1999
(Principal Accounting Officer)
G. Alex Bernhardt
Robert J. Brown
William A. Coley
William T. Esrey
Ann Maynard Gray
Dennis R. Hendrix
Harold S. Hook All of the Directors June 25, 1999
George Dean Johnson, Jr.
Max Lennon
Leo E. Linbeck, Jr.
James G. Martin
R.B. Priory
Russell M. Robinson, II
</TABLE>
Richard J. Osborne, by signing his name hereto, does hereby sign this
document on behalf of the registrant and on behalf of each of the above-named
persons pursuant to a power of attorney duly executed by the registrant and
such persons, filed with the Securities and Exchange Commission as an exhibit
hereto.
/s/ Richard J. Osborne
-------------------------------------
Richard J. Osborne
Attorney-in-Fact
II-3
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Exhibit
------- -------
<C> <S>
4(A)* Restated Articles of Incorporation of the registrant, dated June 18,
1997 (incorporated by reference to Exhibit 4(G) of Form S-8
(Registration No. 333-29563) filed by the registrant on June 19,
1997).
4(B) Articles of Amendment of the registrant dated April 28, 1999.
4(C) By-Laws of the registrant, as amended.
4(D)* Rights Agreement, dated as of December 17, 1998, between the
registrant and The Bank of New York, as Rights Agent, including the
form of Rights Certificate (incorporated by reference to Exhibit 4.1
to the Current Report on Form 8-K of the registrant dated February 11,
1999).
5 Opinion of Ellen T. Ruff, Esq.
23(A) Independent Auditors' Consent of Deloitte & Touche LLP.
23(B) Independent Auditors' Consent of KPMG LLP.
23(C) Consent of Ellen T. Ruff, Esq. (included in Exhibit 5).
24(A) Copy of power of attorney authorizing Richard J. Osborne and others to
sign the Registration Statement on behalf of the registrant and
certain of its directors and officers.
24(B) Certified copy of resolution of the Board of Directors of the
registrant authorizing the power of attorney.
</TABLE>
- --------
* Previously filed.
<PAGE>
ARTICLES OF AMENDMENT
OF
DUKE ENERGY CORPORATION
Exhibit 4B
The undersigned corporation hereby submits these Articles of Amendment for
the purpose of amending its Articles of Incorporation:
1. The name of the corporation is Duke Energy Corporation.
2. The following amendment to the Articles of Incorporation of the
corporation was adopted by the holders of its Common Stock on the 15th day of
April, 1999, in the manner prescribed by law:
The first unnumbered paragraph of Article IV of the Articles of
Incorporation was amended to read as follows:
The total number of authorized shares of this Corporation is
1,024,000,000 shares, divided unto 12,500,000 shares of Preferred Stock of
the par value of $100 each (hereafter called Preferred Stock), 10,000,000
shares of Preferred Stock A of the par value of $25 each (hereafter called
Preferred Stock A), 1,500,000 shares of Preference Stock of the par value
of $100 each (hereafter called Preference Stock), and 1,000,000,000 shares
of Common Stock without nominal or par value (hereafter called Common
Stock) .
3. Only shares of Common Stock of the corporation were entitled to vote
with respect to the amendment. The number of such shares of the corporation
outstanding at the time of such adoption was 364,145,736; the number of votes
entitled to be cast thereon was 363,464,761; and the number of votes
indisputably represented at the meeting of shareholders was 301,118,240.
4. The number of votes cast for such amendment was 255,717,157, and the
number of votes cast against such amendment was 43,442,086. The total number of
undisputed votes cast for the amendment was sufficient for approval of the
amendment.
This 28th day of April, 1999.
DUKE ENERGY CORPORATION
By: -------------------------------
Richard B. Priory
Chairman of the Board, President
and Chief Executive Officer
<PAGE>
EXHIBIT 4C
BY-LAWS
OF
DUKE ENERGY CORPORATION
Date of Adoption:
July 28, 1997
Amended February 17, 1999
<PAGE>
TABLE OF CONTENTS
---------------------------
Page
ARTICLE I Offices............................................................1
Section 1.1. Principal Office......................................1
Section 1.2. Other Offices.........................................1
ARTICLE II Meetings of Shareholders...........................................1
Section 2.1. Place of Meetings.....................................1
Section 2.2. Annual Meetings.......................................1
Section 2.3. Special Meetings......................................1
Section 2.4. Notice of Meetings....................................1
Section 2.5. Voting Group..........................................2
Section 2.6. Quorum................................................2
Section 2.7. Voting of Shares......................................2
Section 2.8. Proxies...............................................3
Section 2.9. Notice of Shareholder Business and Nominations........3
Section 2.10. Conduct of Meetings..................................5
Section 2.11. Inspectors of Elections..............................5
Section 2.12. Shareholders' List...................................6
ARTICLE III Board of Directors................................................6
Section 3.1. General Powers........................................6
Section 3.2. Number and Qualifications.............................6
Section 3.3. Election of Directors; Classes........................6
Section 3.4. Removal...............................................7
Section 3.5. Newly Created Directorships; Vacancies................7
Section 3.6. Compensation of Directors.............................7
ARTICLE IV Meetings of Directors..............................................8
Section 4.1. Regular Meetings......................................8
Section 4.2. Special Meetings......................................8
Section 4.3. Notice................................................8
Section 4.4. Quorum and Manner of Acting...........................8
Section 4.5. Action by Consent of Board of Directors...............8
Section 4.6. Conference Telephone Meetings.........................8
ARTICLE V Committees of the Board............................................9
Section 5.1. Management and Other Committees.......................9
Section 5.2........................................................9
Section 5.3.......................................................10
ARTICLE VI Officers..........................................................10
Section 6.1. Elected Officers.....................................10
Section 6.2. Election and Term of Office..........................10
Section 6.3. Chairman of the Board and Chief Executive Officer....10
i
<PAGE>
Section 6.4. President............................................11
Section 6.5. Vice Presidents......................................11
Section 6.6. Secretary............................................11
Section 6.7. Treasurer............................................11
Section 6.8. Controller...........................................12
Section 6.9. Assistant Secretaries, Assistant Treasurers and
Assistant Controllers...............................12
Section 6.10. Removal.............................................12
Section 6.11. Vacancies...........................................12
ARTICLE VII Stock Certificates and Transfers.................................12
Section 7.1. Certificates for Shares..............................12
Section 7.2. Share Transfer Records...............................13
Section 7.3. Lost, Stolen or Destroyed Certificates...............13
Section 7.4. Fixing Record Date...................................13
Section 7.5. Holder of Record.....................................14
ARTICLE VIII Contracts, Checks and Drafts, Deposits and Proxies..............14
Section 8.1. Contracts............................................14
Section 8.2. Checks and Drafts....................................14
Section 8.3. Deposits.............................................14
Section 8.4. Proxies..............................................14
ARTICLE IX Indemnification...................................................15
Section 9.1. Indemnification......................................15
ARTICLE X Miscellaneous......................................................15
Section 10.1. Fiscal Year..........................................15
Section 10.2. Distributions........................................15
Section 10.3. Seal.................................................16
Section 10.4. Waiver of Notice.....................................16
Section 10.5. Time Periods.........................................16
Section 10.6. Resignations.........................................16
Section 10.7. Definitions..........................................16
ARTICLE XI Emergency Provisions..............................................16
Section 11.1. General..............................................16
Section 11.2. Unavailable Directors................................17
Section 11.3. Authorized Number of Directors.......................17
Section 11.4. Quorum...............................................17
Section 11.5. Creation of Emergency Committee......................17
Section 11.6. Constitution of Emergency Committee..................17
Section 11.7. Powers of Emergency Committee........................18
Section 11.8. Directors Becoming Available.........................18
Section 11.9. Election of Board of Directors.......................18
Section 11.10. Termination of Emergency Committee..................18
Section 11.11. Nonexclusive Powers.................................18
ii
<PAGE>
ARTICLE XII Amendments.......................................................18
Section 12.1. Amendments...........................................18
iii
<PAGE>
BY-LAWS
OF
DUKE ENERGY CORPORATION
(Adopted July 28, 1997 & Amended February 17,
1999)
ARTICLE I
Offices
Section 1.1. Principal Office. The principal office of the Corporation shall
be located in Charlotte, North Carolina.
Section 1.2. Other Offices. The Corporation may have such other offices
either within or without the State of North Carolina as the Board of Directors
may designate or as the business of the Corporation may from time to time
require.
ARTICLE II
Meetings of Shareholders
Section 2.1. Place of Meetings. All meetings of shareholders shall be held
at such place either within or without the State of North Carolina as shall be
fixed by the Board of Directors and designated in the notice of the meeting.
Section 2.2. Annual Meetings. The annual meeting of shareholders for the
election of directors and for the transaction of such other business as may
properly come before the meeting shall be held on such date and at such time as
may be fixed by the Board of Directors.
Section 2.3. Special Meetings. Except as otherwise required by law and
subject to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation, special
meetings of shareholders for any purpose or purposes may be called only by (i)
the Board of Directors pursuant to a resolution stating the purpose or purposes
thereof or (ii) by the Chairman of the Board of Directors. No business other
than that stated in the notice shall be transacted at any special meeting.
Section 2.4. Notice of Meetings. Written or printed notice, stating the place,
day and hour of the meeting of shareholders and the purpose or purposes for
which the meeting is called, shall be delivered by the Corporation not less than
10 calendar days nor more than 60 calendar days before the date of the meeting,
either personally, by mail, or by such other means as may be permitted by law to
each shareholder of record entitled to
1
<PAGE>
vote at such meeting; provided that such notice must be given to all
shareholders with respect to any meeting at which a merger or share exchange is
to be submitted to shareholders for approval and in such other instances as
required by law. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail with postage thereon prepaid, correctly
addressed to the shareholder at such shareholder's address as it appears on the
stock transfer books of the Corporation. Such further notice shall be given as
may be required by law. When a meeting is adjourned to a different date, time or
place, notice need not be given of the new date, time or place if the new date,
time or place is announced at the meeting before adjournment and if a new record
date is not or must not be fixed for the adjourned meeting; but if a new record
date is fixed for the adjourned meeting (which must be done if the new date is
more than 120 days after the date of the original meeting), notice of the
adjourned meeting must be given as provided in this Section 2.4 to persons who
are shareholders as of the new record date.
Section 2.5. Voting Group. All shares of one or more classes or series that
under the Articles of Incorporation or the North Carolina Business Corporation
Act are entitled to vote and be counted together collectively on a matter at a
meeting of shareholders constitute a voting group. All shares entitled by the
Articles of Incorporation or the North Carolina Business Corporation Act to vote
generally on a matter are for that purpose a single voting group. Classes or
series of shares shall not be entitled to vote separately by voting group unless
expressly authorized by the Articles of Incorporation or specifically required
by law.
Section 2.6. Quorum. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting of shareholders only if a quorum of that
voting group exists. Unless otherwise required by law, the Articles of
Incorporation or a By-Law adopted by the shareholders, a majority of the votes
entitled to be cast on the matter by the voting group constitutes a quorum of
that voting group for action on that matter. Once a share is represented for
any purpose at a meeting, it is deemed present for quorum purposes for the
remainder of the meeting and for any adjournment of that meeting unless a new
record date is or must be set for that adjourned meeting. In the absence of a
quorum at the opening of any meeting of shareholders, such meeting may be
adjourned from time to time by the vote of a majority of the votes cast on the
motion to adjourn; and, subject to the provisions of Section 2.4, at any
adjourned meeting any business may be transacted that might have been transacted
at the original meeting if a quorum exists with respect to the matter proposed.
Section 2.7. Voting of Shares. Each outstanding share entitled to vote shall
be entitled to one vote on each matter submitted to a vote at a meeting of
shareholders. Except in the election of directors, the vote of a majority of
shares voted on any matter at a meeting of shareholders at which a quorum is
present shall be the act of the shareholders on that matter, unless the vote of
a greater number is required by law or by the Articles of Incorporation.
Election of directors at all meetings of the shareholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any class of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect directors under specified circumstances, those
nominees for election as directors
2
<PAGE>
who receive the highest number of votes at a meeting at which a quorum is
present up to the maximum number of directors to be elected at such meeting
shall be deemed to have been elected.
Section 2.8. Proxies. Shares may be voted either in person or by one or more
proxies authorized by a written appointment of proxy signed by the shareholder
or by the shareholder's duly authorized attorney-in-fact. An appointment of
proxy is valid for 11 months from the date of its execution, unless a different
period is expressly provided in the appointment form.
Section 2.9. Notice of Shareholder Business and Nominations.
(A) Annual Meetings of Shareholders. (1) Nominations of persons for election
to the Board of Directors and the proposal of business to be considered by the
shareholders may be made at an annual meeting of shareholders (a) pursuant to
the Corporation's notice of meeting pursuant to Section 2.4 of these By-Laws,
(b) by or at the direction of the Board of Directors, or (c) by any shareholder
of the Corporation who was a shareholder of record at the time of giving of
notice provided for in this By-Law, who is entitled to vote at the meeting and
who complies with the notice procedures set forth in this By-Law.
(2) For nominations or other business to be properly brought before an annual
meeting by a shareholder pursuant to clause (c) of paragraph (A)(1) of this By-
Law, the shareholder must have given timely notice thereof in writing to the
Secretary of the Corporation. To be timely, a shareholder's notice shall be
delivered to the Secretary at the principal executive offices of the Corporation
not later than the close of business on the 90th calendar day nor earlier than
the close of business on the 120th calendar day prior to the first anniversary
of the preceding year's annual meeting; provided, however, that in the event
that the date of the annual meeting is more than 30 calendar days before or more
than 60 calendar days after such anniversary date, notice by the shareholder to
be timely must be so delivered not earlier than the close of business on the
120th calendar day prior to such annual meeting and not later than the close of
business on the later of the 90th calendar day prior to such annual meeting or
the 10th calendar day following the calendar day on which public announcement of
the date of such meeting is first made by the Corporation. In no event shall the
public announcement of an adjournment of an annual meeting of shareholders
commence a new time period for the giving of a shareholder's notice as described
above. Such shareholder's notice shall set forth (a) as to each person whom the
shareholder proposes to nominate for election or reelection as a director all
information relating to such person that is required to be disclosed in
solicitations of proxies for election of directors in an election contest, or is
otherwise required, in each case pursuant to Regulation 14A under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and Rule 14a-11
thereunder (including such person's written consent to being named in the proxy
statement as a nominee and to serving as a director if elected); (b) as to any
other business that the shareholder proposes to bring before the meeting, a
brief description of the business desired to be brought before the meeting, the
reasons for conducting such business at
3
<PAGE>
the meeting and any material interest in such business of such shareholder and
the beneficial owner, if any, on whose behalf the proposal is made; and as to
the shareholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (i) the name and address of such
shareholder, as they appear on the Corporation's books, and of such beneficial
owner and (ii) the class and number of shares of the Corporation which are owned
beneficially and of record by such shareholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph (A)(2) of this
By-Law to the contrary, in the event that the number of directors to be elected
to the Board of Directors of the Corporation is increased and there is no public
announcement by the Corporation naming all of the nominees for director or
specifying the size of the increased Board of Directors at least 100 calendar
days prior to the first anniversary of the preceding year's annual meeting of
shareholders, a shareholder's notice required by this By-Law shall also be
considered timely, but only with respect to nominees for any new positions
created by such increase, if it shall be delivered to the Secretary at the
principal executive offices of the Corporation not later than the close of
business on the 10th calendar day following the day on which such public
announcement is first made by the Corporation.
(B) Special Meetings of Shareholders. Only such business shall be conducted at
a special meeting of shareholders as shall have been brought before the meeting
pursuant to the Corporation's notice of meeting under Section 2.4 of these By-
Laws. Nominations of persons for election to the Board of Directors may be made
at a special meeting of shareholders at which directors are to be elected
pursuant to the Corporation's notice of meeting (a) by or at the direction of
the Board of Directors, or (b) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any shareholder
of the Corporation who is a shareholder of record at the time of giving of
notice provided for in this By-Law, who shall be entitled to vote at the meeting
and who complies with the notice procedures set forth in this By-Law. In the
event the Corporation calls a special meeting of shareholders for the purpose of
electing one or more directors to the Board of Directors, any shareholder may
nominate a person or persons (as the case may be) for election to such
position(s) as specified in the Corporation's notice of meeting pursuant to such
clause (b), if the shareholder's notice required by paragraph (A)(2) of this By-
Law shall be delivered to the Secretary at the principal executive offices of
the Corporation not earlier than the close of business on the 120th calendar day
prior to such special meeting and not later than the close of business on the
later of the 90th calendar day prior to such special meeting or the 10th
calendar day following the day on which public announcement is first made of the
date of such special meeting and of the nominees proposed by the Board of
Directors to be elected at such meeting. In no event shall the public
announcement of an adjournment of a special meeting of shareholders commence a
new time period for the giving of a shareholder's notice as described above.
(C) General. (1) Only such persons who are nominated in accordance with the
procedures set forth in this By-Law shall be eligible to serve as directors and
only such business shall be conducted at a meeting of shareholders as shall have
been brought
4
<PAGE>
before the meeting in accordance with the procedures set forth in this By-Law.
Except as otherwise provided by law, the Articles of Incorporation or these By-
Laws, the chairman of the meeting shall have the power and duty to determine
whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set
forth in this By-Law and, if any proposed nomination or business is not in
compliance with this By-Law, to declare that such defective proposal or
nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean disclosure in
a press release reported by the Dow Jones News Service, Associated Press or
comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a shareholder
shall also comply with all applicable requirements of the Exchange Act and the
rules and regulations thereunder with respect to the matters set forth in this
By-Law. Nothing in this By-Law shall be deemed to affect any rights (i) of
shareholders to request inclusion of proposals in the Corporation's proxy
statement pursuant to Rule 14a-8 under the Exchange Act or (ii) of the holders
of any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation to elect directors under specified circumstances.
Section 2.10. Conduct of Meetings. The Board of Directors may to the extent
not prohibited by law adopt such rules and regulations for the conduct of the
meeting of shareholders as it shall deem appropriate. Except to the extent
inconsistent with such rules and regulations as adopted by the Board of
Directors, the chairman of any meeting of shareholders shall have the right and
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are appropriate for the proper
conduct of the meeting. Such rules, regulations or procedures, whether adopted
by the Board of Directors or prescribed by the chairman of the meeting, may to
the extent not prohibited by law include, without limitation, the following: (i)
the establishment of an agenda or order of business for the meeting; (ii) rules
and procedures for maintaining order at the meeting and the safety of those
present; (iii) limitations on attendance at or participation in the meeting to
shareholders of record of the Corporation, their duly authorized and constituted
proxies or such other persons as the chairman of the meeting shall determine;
(iv) restrictions on entry to the meeting after the time fixed for the
commencement thereof; and (v) limitations on the time allotted to questions or
comments by participants. The date and time of the opening and the closing of
the polls for each matter upon which the shareholders will vote at a meeting
shall be announced at the meeting by the person presiding over the meeting.
Unless, and to the extent, determined by the Board of Directors or the chairman
of the meeting, meetings of shareholders shall not be required to be held in
accordance with the rules of parliamentary procedure.
Section 2.11. Inspectors of Elections. The Board of Directors may appoint,
or may authorize the Chairman of the Board to appoint, one or more inspectors,
which inspector
5
<PAGE>
or inspectors may include individuals who serve the Corporation in other
capacities, including, without limitation, as officers, employees, agents or
representatives, to act at the meetings of shareholders and make a written
report thereof. If no inspector has been appointed to act or is able to act at a
meeting of shareholders, the chairman of the meeting shall appoint one or more
inspectors to act at the meeting. Each inspector, before discharging such
person's duties, shall take and sign an oath faithfully to execute the duties of
inspector with strict impartiality and according to the best of such person's
ability. The inspectors shall, by majority vote, resolve all questions regarding
voting of shares, including the shares represented at the meeting, the
qualification of voters, the validity of proxies, the existence of a quorum as
to any voting group, and the acceptance, rejection and tabulation of votes.
Section 2.12. Shareholders' List. Before each meeting of shareholders, the
Secretary of the Corporation shall prepare an alphabetical list of the
shareholders entitled to notice of such meeting. The list shall be arranged by
voting group (and within each voting group by class or series of shares) and
show the address of and number of shares held by each shareholder. The list
shall be kept on file at the principal office of the Corporation, or at a place
identified in the meeting notice in the city where the meeting will be held, for
the period beginning two business days after notice of the meeting is given and
continuing through the meeting, and shall be available for inspection on written
demand by any shareholder, personally or by or with such shareholder's
representative, at any time during regular business hours. The list shall also
be available at the meeting and shall be subject to inspection on written demand
by any shareholder, personally or by or with such shareholder's representative,
at any time during the meeting or any adjournment thereof.
ARTICLE III
Board of Directors
Section 3.1. General Powers. The business and affairs of the Corporation
shall be managed under the direction of the Board of Directors. In addition to
the powers and authorities by these By-Laws expressly conferred upon them, the
Board of Directors may exercise all such powers of the Corporation and do all
such lawful acts and things as are not by statute or by the Articles of
Incorporation or by these By-Laws required to be exercised or done by the
shareholders.
Section 3.2. Number and Qualifications. The number of directors constituting
the Board of Directors shall be not less than twelve nor more than twenty-four,
as may be fixed from time to time by the Board of Directors. A director must be
a shareholder of the Corporation.
Section 3.3. Election of Directors; Classes. The directors, other than those
who may be elected by the holders of any class of stock having a preference over
the Common Stock as to dividends or upon liquidation to elect directors under
specified circumstances, shall be classified, with respect to the time for which
they severally hold office into three classes, as nearly equal in number as
possible. Such classes shall originally consist of
6
<PAGE>
one class (Class I) of seven directors who shall be elected at the annual
meeting of shareholders held in 1991 for a term expiring at the annual meeting
of shareholders held in 1992; a second class (Class II) of six directors who
shall be elected at the annual meeting of shareholders held in 1991 for a term
expiring at the annual meeting of shareholders to be held in 1993; and a third
class (Class III) of six directors who shall be elected at the annual meeting of
shareholders held in 1991 for a term expiring at the annual meeting of
shareholders to be held in 1994; with each class to hold office until its
successor is elected and qualified. The Board of Directors shall increase or
decrease the number of directors in one or more classes as may be appropriate
whenever it increases or decreases the number of directors pursuant to the
Articles of Incorporation and Section 3.2 of these By-Laws, in order to ensure
that the three classes shall be as nearly equal in number as possible. At each
annual meeting of shareholders, the successors of the class of directors whose
term expires at that meeting shall be elected to hold office for a term expiring
at the annual meeting of shareholders held in the third year following the year
of their election.
Section 3.4. Removal. Subject to the rights of any class of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
directors under specified circumstances, a director may be removed from office
only with cause. "Cause" for removal of a director under this Section 3.4 means
fraudulent or dishonest acts, or gross abuse of authority in the discharge of
duties to the Corporation, and must be established after written notice of
specific charges and an opportunity to meet and refute such charges.
Section 3.5. Newly Created Directorships; Vacancies. Except as may be
otherwise provided for or fixed by or pursuant to any provisions of the Articles
of Incorporation relating to the rights of the holders of any class of stock
having a preference over the Common Stock as to dividends or upon liquidation to
elect directors under specified circumstances, newly created directorships
resulting from any increase in the number of directors and any vacancies on the
Board of Directors resulting from death, resignation, disqualification, removal
or other cause shall be filled only by the affirmative vote of a majority of the
remaining directors then in office, even though less than a quorum of the Board
of Directors. Any director elected in accordance with the preceding sentence
shall hold office until the expiration of the full term of the class for which
such director is elected and until such director's successor shall have been
elected and qualified. No decrease in the number of directors constituting the
Board of Directors shall shorten the term of any incumbent director.
Section 3.6. Compensation of Directors. Directors, as such, may receive,
pursuant to resolution of the Board of Directors, fixed fees and other
compensation for their services as directors, including, without limitation,
their services as members of committees of the Board of Directors.
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ARTICLE IV
Meetings of Directors
Section 4.1. Regular Meetings. A regular meeting of the Board of Directors
shall be held without other notice than this By-Law as soon as practicable after
the annual meeting of shareholders. The Board of Directors may, by resolution,
provide the time and place for the holding of additional regular meetings
without other notice than such resolution.
Section 4.2. Special Meetings. Special meetings of the Board of Directors
shall be called at the request of the Chairman of the Board or a majority of the
Board of Directors then in office. The person or persons authorized to call
special meetings of the Board of Directors may fix the place and time of the
meetings.
Section 4.3. Notice. Notice of any special meeting of directors shall be
given to each director at such director's business or residence in writing by
hand delivery, first-class or overnight mail or courier service, facsimile
transmission or orally by telephone. If mailed by first-class mail, such notice
shall be deemed adequately delivered when deposited in the United States mails
so addressed, with postage thereon prepaid, at least 5 calendar days before such
meeting. If by overnight mail or courier service, such notice shall be deemed
adequately delivered when the notice is delivered to the overnight mail or
courier service company at least 24 hours before such meeting. If by facsimile
transmission, such notice shall be deemed adequately delivered when the notice
is transmitted at least 12 hours before such meeting. If by telephone or by
hand delivery, the notice shall be given at least 12 hours prior to the time set
for the meeting. Neither the business to be transacted at, nor the purpose of,
any regular or special meeting of the Board of Directors need be specified in
the notice of such meeting.
Section 4.4. Quorum and Manner of Acting. Unless the Articles of
Incorporation or these By-Laws provide otherwise, a majority of the number of
directors fixed pursuant to these By-Laws shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors. Unless
required by law or the Articles of Incorporation or these By-Laws provide
otherwise, the affirmative vote of a majority of the directors present at a
meeting at which a quorum is present shall be the act of the Board of Directors.
Section 4.5. Action by Consent of Board of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors may be taken
without a meeting if all members of the Board of Directors consent thereto in
writing, whether before or after such action, and the writing or writings are
included with the minutes or filed with the corporate records.
Section 4.6. Conference Telephone Meetings. Members of the Board of
Directors may participate in a meeting of the Board of Directors by means of
conference telephone or similar communications equipment by means of which all
persons participating in the
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meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
ARTICLE V
Committees of the Board
Section 5.1. Management and Other Committees. The Board of Directors may
designate a Management Committee consisting of two or more directors of the
Corporation which shall include the Chairman of the Board who shall act as
chairman. Subject to delegations of authority or any other restrictions adopted
by the Board of Directors, the Management Committee may exercise all of the
authority of the Board of Directors when it is not in session, except that the
Management Committee may not (i) authorize distributions; (ii) approve, or
propose to shareholders, action that is required by law to be approved by
shareholders; (iii) fill vacancies on the Board of Directors or on any of its
Committees; (iv) amend the Articles of Incorporation; (v) adopt, amend or repeal
By-Laws; (vi) approve a plan of merger not requiring shareholder approval; (vii)
authorize or approve reacquisition of shares, except according to a formula or
method prescribed by the Board of Directors; or (viii) authorize or approve the
issuance or sale or contract for the sale of shares, or determine the
designation and relative rights, preferences and limitations of a class or
series of shares, except within limits specifically prescribed by the Board of
Directors. Any resolutions adopted or other action taken by the Management
Committee within the scope of its authority shall be deemed for all purposes to
be adopted or taken by the Board of Directors.
The Board of Directors may also designate one or more other Committees of the
Board of Directors which shall consist of two or more directors of the
Corporation. Any such Committee, other than the Management Committee (the
powers of which are expressly provided for herein), may to the extent permitted
by law exercise such powers and shall have such responsibilities as shall be
specified in the designating resolution. The Board of Directors shall have
power at any time to fill vacancies in, to change the membership of, or to
dissolve any such Committee. Nothing herein shall be deemed to prevent the
Board of Directors from appointing one or more Committees consisting in whole or
in part of persons who are not directors of the Corporation; provided, however,
that no such Committee shall have or may exercise any authority of the Board of
Directors.
Section 5.2 Each Committee shall keep written minutes of its proceedings and
shall report such proceedings to the Board when required. A majority of the
members of a Committee of the Board of Directors shall be necessary to
constitute a quorum and the affirmative vote of the majority of the members
present at a meeting at which a quorum is present shall be necessary to
constitute action by the Committee. A Committee may also act by the written
consent of all members thereof although not convened in a meeting provided that
such written consent is filed with the Minute Books of the Committee.
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Section 5.3 Each Committee shall fix the time and place of its meetings,
unless the Board of Directors shall otherwise provide. Notice of meetings of
any Committee shall be given to each member of the Committee in the manner
provided for in Section 4.3 of these By-Laws.
ARTICLE VI
Officers
Section 6.1. Elected Officers. The elected officers of the Corporation shall
be a Chairman of the Board, a President, a Secretary, a Treasurer, a Controller
and such other officers (including, without limitation, Executive Vice
Presidents and Senior Vice Presidents and Vice Presidents) as the Board of
Directors from time to time may deem proper. The Chairman of the Board and the
President shall be chosen from among the directors. All officers elected by the
Board of Directors shall each have such powers and duties as generally pertain
to their respective offices, subject to the specific provisions of this Article
VI. Such officers shall also have such powers and duties as from time to time
may be conferred by the Board of Directors or by any committee thereof. The
Board of Directors or the Management Committee may from time to time appoint
such other officers (including one or more Vice Presidents, Assistant
Secretaries and Assistant Treasurers), as may be necessary or desirable for the
conduct of the business of the Corporation. Such other officers and agents
shall have such duties and shall hold their offices for such terms as shall be
provided in these By-Laws or, to the extent consistent with these By-Laws, as
may be prescribed by the Board of Directors or the Management Committee, as the
case may be.
Section 6.2. Election and Term of Office. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of shareholders.
If the election of officers shall not be held at such meeting, such election
shall be held as soon thereafter as practicable. Each officer shall hold office
until such person's successor shall have been duly elected and shall have
qualified or until such person's death or until he or she shall resign or shall
be removed pursuant to Section 6.10.
Section 6.3. Chairman of the Board and Chief Executive Officer. The Chairman
of the Board shall be the Chief Executive Officer of the Corporation and shall
be responsible for the general management of the affairs of the Corporation and
shall perform all duties incidental to such person's office which may be
required by law and all such other duties as are properly required of the
Chairman of the Board by the Board of Directors. The Chairman of the Board
shall preside at all meetings of shareholders and of the Board of Directors and
shall make reports to the Board of Directors and the shareholders, and shall see
that all orders and resolutions of the Board of Directors and of any committee
thereof are carried into effect. The Chairman of the Board may also serve as
President, if so elected by the Board.
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Section 6.4. President. The President shall act in a general executive
capacity and shall assist the Chairman of the Board in the administration and
operation of the Corporation's business and general supervision of its policies
and affairs. The President shall in the absence of or because of the inability
to act of the Chairman of the Board, perform all duties of the Chairman of the
Board and preside at all meetings of shareholders and of the Board of Directors.
Section 6.5. Vice Presidents. The Executive Vice Presidents, the Senior Vice
Presidents and the Vice Presidents shall have such powers and duties as may be
prescribed for them, respectively, by the Board of Directors, the Management
Committee or the Chairman of the Board. Each of such officers shall report to
the Chairman of the Board or such other officer as the Chairman of the Board
shall direct.
Section 6.6. Secretary. The Secretary shall attend all meetings of the
shareholders and of the Board of Directors, shall keep a true and faithful
record thereof in proper books and shall have the custody and care of the
corporate seal, records, minute books and stock books of the Corporation and of
such other books and papers as in the practical business operations of the
Corporation shall naturally belong in the office or custody of the Secretary or
as shall be placed in the Secretary's custody by order of the Board of Directors
or the Management Committee. The Secretary shall keep a suitable record of the
addresses of shareholders and shall, except as may be otherwise required by
statute or these By-Laws, sign and issue all notices required for meetings of
shareholders or of the Board of Directors. The Secretary shall sign all papers
to which the Secretary's signature may be necessary or appropriate, shall affix
and attest the seal of the Corporation to all instruments requiring the seal,
shall have the authority to certify the By-Laws, resolutions of the shareholders
and Board of Directors and other documents of the Corporation as true and
correct copies thereof and shall have such other powers and duties as are
commonly incidental to the office of Secretary and as may be prescribed by the
Board of Directors, the Management Committee or the Chairman of the Board.
Section 6.7. Treasurer. The Treasurer shall have charge of and supervision
over and be responsible for the funds, securities, receipts and disbursements of
the Corporation; cause the moneys and other valuable effects of the Corporation
to be deposited in the name and to the credit of the Corporation in such banks
or trust companies or with such bankers or other depositories as shall be
selected in accordance with resolutions adopted by the Board of Directors; cause
the funds of the Corporation to be disbursed by checks or drafts upon the
authorized depositories of the Corporation, and cause to be taken and preserved
proper vouchers for all moneys disbursed; render to the proper officers and to
the Board of Directors, the Management Committee and the Finance Committee,
whenever requested, a statement of the financial condition of the Corporation
and of all his or her transactions as Treasurer; cause to be kept at the
principal executive offices of the Corporation correct books of account of all
its business and transactions; and, in general, perform all duties incident to
the office of Treasurer and such other duties as are given to him or her by the
By-Laws or as may be assigned to him or her by the Chairman of the Board or the
Board of Directors.
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Section 6.8. Controller. The Controller shall be the chief accounting
officer of the Corporation; shall keep full and accurate accounts of all assets,
liabilities, commitments, revenues, costs and expenses, and other financial
transactions of the Corporation in books belonging to the Corporation, and
conform them to sound accounting principles with adequate internal control;
shall cause regular audits of these books and records to be made; shall see that
all expenditures are made in accordance with procedures duly established, from
time to time, by the Corporation; shall render financial statements upon the
request of the Board of Directors; and, in general, shall perform all the duties
ordinarily connected with the office of Controller and such other duties as may
be assigned to him or her by the Chairman of the Board or the Board of
Directors.
Section 6.9. Assistant Secretaries, Assistant Treasurers and Assistant
Controllers. Assistant Secretaries, Assistant Treasurers and Assistant
Controllers, when elected or appointed, shall respectively assist the Secretary,
the Treasurer and the Controller in the performance of the respective duties
assigned to such principal officers, and in assisting such principal officer,
each of such assistant officers shall for such purpose have the powers of such
principal officer; and, in case of the absence, disability, death, resignation
or removal from office of any principal officer, such principal officer's duties
shall, except as otherwise ordered by the Board of Directors or the Management
Committee, temporarily devolve upon such assistant officer as shall be
designated by the Chairman of the Board.
Section 6.10. Removal. Any officer or agent may be removed by the
affirmative vote of a majority of the directors then in office whenever, in
their judgment, the best interests of the Corporation would be served thereby.
In addition, any officer or agent appointed by the Management Committee may be
removed by the Management Committee whenever, in its judgment, the best
interests of the Corporation would be served thereby. Any removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Section 6.11. Vacancies. A newly created elected office and a vacancy in any
elected office because of death, resignation or removal may be filled by the
Board of Directors for the unexpired portion of the term at any meeting of the
Board of Directors. Any vacancy in an office appointed by the Management
Committee because of death, resignation or removal may be filled by the
Management Committee.
ARTICLE VII
Stock Certificates and Transfers
Section 7.1. Certificates for Shares. The Board of Directors may authorize
the issuance of some or all of the shares of the Corporation's classes or series
without issuing certificates to represent such shares. If shares are
represented by certificates, the certificates shall be in such form as required
by law and as determined by the Board of Directors. Certificates shall be
signed, either manually or in facsimile, by the Chairman of the Board, the
President or a Vice President and by the Secretary or Treasurer or an Assistant
Secretary or an Assistant Treasurer. In case any officer or officers who shall
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have signed, or whose facsimile signature or signatures shall have been used on,
any such certificate or certificates shall cease to be such officer or officers
of the Corporation, whether because of death, resignation or otherwise, before
such certificate or certificates shall have been delivered by the Corporation,
such certificate or certificates may nevertheless be adopted by the Corporation
and be issued and delivered as though the person or persons who signed such
certificate or certificates or whose facsimile signature or signatures shall
have been used thereon had not ceased to be such officer or officers of the
Corporation and the issuance and delivery of any such certificate or
certificates shall be conclusive evidence of such adoption. All certificates
for shares shall be consecutively numbered or otherwise identified and entered
into the stock transfer books of the Corporation. When shares are represented
by certificates, the Corporation shall issue and deliver to each shareholder to
whom such shares have been issued or transferred certificates representing the
shares owned by such shareholder. When shares are not represented by
certificates, then within a reasonable time after the issuance or transfer of
such shares, the Corporation shall send the shareholder to whom such shares have
been issued or transferred a written statement of the information required by
law to be on certificates.
Section 7.2. Share Transfer Records. The Corporation shall maintain share
transfer records, containing the name and address of each shareholder of record
and the number and class or series of shares held by such shareholder.
Transfers of shares of the Corporation shall be made only on the share transfer
records of the Corporation by the holder of record thereof or by a duly
authorized agent, transferee or legal representative and only upon surrender for
cancellation of the certificate for such shares (if the shares are represented
by certificates).
Section 7.3. Lost, Stolen or Destroyed Certificates. No certificate for
shares of stock in the Corporation shall be issued in place of any certificate
alleged to have been lost, destroyed or stolen, except on production of such
evidence of such loss, destruction or theft and on delivery to the Corporation
of a bond of indemnity in such amount, upon such terms and secured by such
surety, as the Board of Directors or any financial officer may in its or such
person's discretion require. A new certificate may be issued without requiring
any bond if the Board of Directors or such financial officer so determines.
Section 7.4. Fixing Record Date. The Board of Directors may fix a future
date as the record date for one or more voting groups in order to determine the
shareholders entitled to notice of a meeting of shareholders, to vote or to take
any other action. Such record date may not be more than 70 days before the
meeting or action requiring a determination of shareholders. A determination of
shareholders entitled to notice of or to vote at a meeting of shareholders is
effective for any adjournment of the meeting unless the Board of Directors fixes
a new record date for the adjourned meeting, which it must do if the meeting is
adjourned to a date more than 120 days after the date fixed for the original
meeting. If no record date is fixed by the Board of Directors for the
determination of shareholders entitled to notice of or to vote at a meeting of
shareholders, the close of business on the day before the first notice of the
meeting is delivered to shareholders shall be the record date for such
determination of shareholders. The Board of Directors
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may fix a date as the record date for determining shareholders entitled to a
distribution or share dividend. If no record date is fixed by the Board of
Directors for such determination, it is the date the Board of Directors
authorizes the distribution or share dividend.
Section 7.5. Holder of Record. Except as otherwise required by law, the
Corporation may treat the person in whose name the shares stand of record on its
books as the absolute owner of the shares and the person exclusively entitled to
receive notification and distributions, to vote and to otherwise exercise the
rights, powers and privileges of ownership of such shares.
ARTICLE VIII
Contracts, Checks and Drafts, Deposits and Proxies
Section 8.1. Contracts. The Board of Directors may authorize any officer or
officers, agent or agents, to enter into any contract or execute and deliver any
instrument in the name of and on behalf of the Corporation, and such authority
may be general or confined to specific instances.
Section 8.2. Checks and Drafts. All checks, drafts or other orders for the
payment of money, issued in the name of the Corporation, shall be signed by such
officer or officers, agent or agents of the Corporation and in such manner as
shall from time to time be determined by the Board of Directors.
Section 8.3. Deposits. All funds of the Corporation not otherwise employed
shall be deposited from time to time to the credit of the Corporation in such
depositories as may be selected by or under the authority of the Board of
Directors.
Section 8.4. Proxies. Unless otherwise provided by the Board of Directors,
the Chairman of the Board, the President or any Executive Vice President, Senior
Vice President or Vice President may from time to time appoint an attorney or
attorneys or agent or agents of the Corporation, in the name and on behalf of
the Corporation, to cast the votes which the Corporation may be entitled to cast
as the holder of stock or other securities in any other corporation, any of
whose stock or other securities may be held by the Corporation, at meetings of
the holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the Corporation as such holder, to any action
by such other corporation, and may instruct the person or persons so appointed
as to the manner of casting such votes or giving such consent, and may execute
or cause to be executed in the name and on behalf of the Corporation and under
its corporate seal or otherwise, all such written proxies or other instruments
as he or she may deem necessary or proper in the premises.
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ARTICLE IX
Indemnification
Section 9.1. Indemnification. Any person who is or was serving as a
director, officer, employee or agent of the Corporation or who, at the request
of the Corporation, is or was serving as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise or
as a trustee or administrator under an employee benefit plan, shall be
indemnified by the Corporation, to the fullest extent permitted by law, against
(a) litigation expenses, including costs, expenses and reasonable attorneys'
fees incurred by any such person in connection with any threatened, pending or
completed action, suit or proceedings, whether civil, criminal, administrative
or investigative, whether formal or informal, and whether or not brought by or
on behalf of the Corporation, arising out of such person's status as such or
such person's activities in any of the foregoing capacities, (b) liability,
including payments made by such person in satisfaction of any judgment, money
decree, fine (including an excise tax assessed with respect to an employee
benefit plan), penalty or settlement for which such person may have become
liable in any such action, suit or proceeding, and (c) reasonable costs,
expenses and attorneys' fees incurred by such person in connection with the
enforcement of the indemnification rights provided herein. Any person who is or
was serving in any of the foregoing capacities for or on behalf of the
Corporation shall be conclusively deemed to be doing or to have done so in
reliance upon, and as consideration for, the indemnification rights provided
herein.
Any such litigation expenses shall be paid by the Corporation in advance of the
final disposition of any action, suit or proceeding upon receipt of an unsecured
written promise by or on behalf of any such person to repay such amount unless
it shall ultimately be determined that such person is entitled to be indemnified
by the Corporation against such expenses.
The rights of indemnification provided herein (which shall be deemed to be a
contract between any such person and the Corporation enforceable on the part of
such person notwithstanding any subsequent amendment or repeal of this By-Law)
shall inure to the benefit of the estates or legal representatives of any such
person and shall not be exclusive of any other rights to which such person may
be entitled apart from this By-Law, by contract, resolution or otherwise.
ARTICLE X
Miscellaneous
Section 10.1. Fiscal Year. The fiscal year of the Corporation shall begin on
the first day of January in each year and shall end on the thirty-first day of
December of such year.
Section 10.2. Distributions. The Board of Directors may from time to time
authorize,
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and the Corporation may grant, distributions and share dividends to its
shareholders pursuant to law and subject to the provisions of the Articles of
Incorporation.
Section 10.3. Seal. The corporate seal of the Corporation shall be circular
in form and shall consist of two concentric circles between which is the name of
the Corporation and the location of its principal office and in the center of
which is inscribed the word "SEAL". The corporate seal may be used by causing
it or a facsimile thereof to be impressed or reproduced or otherwise.
Section 10.4. Waiver of Notice. Whenever any notice is required to be given
to any shareholder or director of the Corporation under the provisions of the
North Carolina Business Corporation Law or these By-Laws, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether before
or after the time stated therein, shall be deemed equivalent to the giving of
such notice. Neither the business to be transacted at, nor the purpose of, any
annual or special meeting of the shareholders or the Board of Directors or
committee thereof need be specified in any waiver of notice of such meeting.
Section 10.5. Time Periods. In applying any provision of these By-Laws which
requires that an act be done or not be done a specified number of days prior to
an event or that an act be done during a period of a specified number of days
prior to an event, calendar days shall be used, the day of the doing of the act
shall be excluded, and the day of the event shall be included.
Section 10.6. Resignations. Any director or any officer, whether elected or
appointed, may resign at any time by giving written notice of such resignation
to the Chairman of the Board or the Secretary, and such resignation shall be
deemed to be effective when communicated unless the notice specifies a later
effective date. No formal action shall be required on behalf of the Corporation
to make any such resignation effective.
Section 10.7. Definitions. Unless the context otherwise requires, terms used
in these By-Laws shall have the meanings assigned to them in the North Carolina
Business Corporation Act to the extent defined therein.
ARTICLE XI
Emergency Provisions
Section 11.1. General. The provisions of this Article shall be operative only
during a national emergency declared by the President of the United States or
the person performing the President's functions, or in the event of a nuclear,
atomic or other attack on the United States or on a locality in which the
Corporation conducts its principal business or customarily holds meetings of its
Board of Directors or its shareholders, or during the existence of any other
catastrophic event or similar emergency, as a result of which a quorum of the
Board of Directors cannot readily be assembled for action. Said provisions in
such event shall override all other By-Laws of the Corporation in conflict with
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any provisions of this Article, and shall remain operative during such
emergency, but thereafter shall be inoperative; provided that all actions taken
in good faith pursuant to such provisions shall thereafter remain in full force
and effect unless and until revoked by action taken pursuant to the provisions
of the By-Laws other than those contained in this Article.
Section 11.2. Unavailable Directors. All directors of the Corporation who
are not available to perform their duties as directors by reason of physical or
mental incapacity or for any other reason or who are unwilling to perform their
duties or whose whereabouts are unknown shall automatically cease to be
directors, with like effect as if such persons had resigned as directors, so
long as such unavailability continues.
Section 11.3. Authorized Number of Directors. The authorized number of
directors shall be the number of directors remaining after eliminating those who
have ceased to be directors pursuant to Section 11.2, or the minimum number
required by law, whichever number is greater.
Section 11.4. Quorum. The number of directors necessary to constitute a
quorum shall be one-third of the authorized number of directors as specified in
Section 11.3, or such other minimum number as, pursuant to the law or lawful
decree then in force, it is possible for the by-laws of a corporation to
specify.
Section 11.5. Creation of Emergency Committee. In the event the number of
directors remaining after eliminating those who have ceased to be directors
pursuant to Section 11.2 is less than the minimum number of authorized directors
required by law, then until the appointment of additional directors to make up
such required minimum, all the powers and authorities which the Board of
Directors could by law delegate, including all powers and authorities which the
Board of Directors could delegate to a committee, shall be automatically vested
in an emergency committee, and the emergency committee shall thereafter manage
the affairs of the Corporation pursuant to such powers and authorities and shall
have all other powers and authorities as may by law or lawful decree be
conferred on any person or body of persons during a period of emergency.
Section 11.6. Constitution of Emergency Committee. The emergency committee
shall consist of all the directors remaining after eliminating those who have
ceased to be directors pursuant to Section 11.2, provided that such remaining
directors are not less than three in number. In the event such remaining
directors are less than three in number, the emergency committee shall consist
of three persons, who shall be the remaining director or directors and either
one or two officers or employees of the Corporation, as the remaining director
or directors may in writing designate. If there is no remaining director, the
emergency committee shall consist of the three most senior officers of the
Corporation who are available to serve, and if and to the extent that officers
are not available, the most senior employees of the Corporation. Seniority
shall be determined in accordance with any designation of seniority in the
minutes of the proceedings of the Board of Directors, and in the absence of such
designation, shall be determined by rate of remuneration.
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Exhibit 5
ELLEN T. RUFF, ESQ.
Attorney-At-Law
June 25, 1999
Duke Energy Corporation
526 South Church Street
Charlotte, NC 28202
Ladies and Gentlemen:
I am Vice President and General Counsel, Corporate, Gas and Electric
Operations, of Duke Energy Corporation, a North Carolina corporation (the
"Corporation"), and in such capacity I have examined the Corporation's
Registration Statement on Form S-3 (the "Registration Statement") under the
Securities Act of 1933, as amended (the "1933 Act"), for the registration of
10,000,000 shares of the Corporation's Common Stock, without par value (the
"Shares"), to be issued under the InvestorDirect Choice Plan of the Corporation
(the "Plan").
I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Corporation and such other
instruments as I have deemed necessary or appropriate as a basis for the
opinions expressed below.
Based on the foregoing, I am of the opinion that the Shares are duly
authorized and when the Shares have been sold in accordance with the terms of
the Plan, such Shares will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement in connection with the issuance of the Shares, and I also
consent to the use of my name and the reference made to me under the caption
"Validity of the Securities" in the Prospectus constituting part of the
Registration Statement. In giving such consent, I do not thereby admit that I
come within the category of persons whose consent is required under Section 7 of
the 1933 Act or the rules and regulations of the Securities and Exchange
Commission thereunder.
Very truly yours,
/s/ Ellen T. Ruff
------------------
Ellen T. Ruff
<PAGE>
Exhibit 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement on Form S-3 of Duke Energy Corporation of our report dated February
12, 1999 appearing in the annual report on Form 10-K of Duke Energy Corporation
for the year ended December 31, 1998 and to the reference to us under the
heading "Experts" in the Prospectus which is a part of this Registration
Statement.
/s/ Deloitte & Touche LLP
- -------------------------
Deloitte & Touche LLP
Charlotte, North Carolina
June 25, 1999
<PAGE>
Exhibit 23(B)
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this Registration
Statement on Form S-3 of Duke Energy Corporation of our report dated January 16,
1997, on the consolidated balance sheet of PanEnergy Corp as of December 31,
1996 and the related consolidated statements of income, common stockholders'
equity and cash flows for the year ended December 31, 1996 appearing in the
annual report on Form 10-K of PanEnergy Corp for the year ended December 31,
1996, and to the reference to our firm under the heading "Experts" in the
Prospectus.
/s/ KPMG LLP
- ------------
KPMG LLP
Houston, Texas
June 25, 1999
<PAGE>
Exhibit 23(C)
CONSENT OF COUNSEL
The consent of Ellen T. Ruff, Esq., is contained in her opinion filed
as Exhibit 5 to this Registration Statement.
<PAGE>
Exhibit 24(A)
DUKE ENERGY CORPORATION
Power of Attorney
-----------------
Registration Statement on Form S-3 under the Securities Act of 1933
with respect to up to 10,000,000 shares of Common Stock, without par value, of
Duke Energy Corporation to be issued under the InvestorDirect Choice Plan of
said
Duke Energy Corporation
(Registration Statement)
The undersigned, Duke Energy Corporation, a North Carolina
corporation, and certain of its officers and/or directors, do each hereby
constitute and appoint Richard B. Priory, Richard J. Osborne, David L. Hauser
and Ellen T. Ruff, and each of them, to act as attorneys-in-fact for and in the
respective names, places, and stead of the undersigned, to execute, seal, sign,
and file with the Securities and Exchange Commission the Registration Statement
of said Duke Energy Corporation and any and all amendments thereto, hereby
granting to said attorneys-in-fact, and each of them, full power and authority
to do and perform all and every act and thing whatsoever requisite, necessary,
or proper to be done in and about the premises, as fully to all intents and
purposes as the undersigned, or any of them, might or could do if personally
present, hereby ratifying and approving the acts of said attorneys-in-fact.
Executed the 15th day of April, 1999.
DUKE ENERGY CORPORATION
By /s/ R. B. Priory
----------------
Chairman, President and
Chief Executive Officer
(Corporate Seal)
ATTEST:
/s/ Robert T. Lucas III
- -----------------------
Assistant Secretary
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
/s/ R.B. Priory Chairman, President and Chief Executive Officer
- ----------------------------------------- (Principal Executive Officer and Director)
R. B. Priory
/s/ Richard J. Osborne Executive Vice President and Chief Financial Officer
- ----------------------------------------- (Principal Financial Officer)
Richard J. Osborne
/s/ Jeffrey L. Boyer Vice President and Corporate Controller
- ----------------------------------------- (Principal Accounting Officer)
Jeffrey L. Boyer
/s/ G. Alex Bernhardt
- ----------------------------------------- (Dire
ctor)
G. Alex Bernhardt
/s/ Robert J. Brown
- ----------------------------------------- (Director)
Robert J. Brown
/s/ William A. Coley
- ----------------------------------------- (Director)
William A. Coley
/s/ William T. Esrey
- ----------------------------------------- (Director)
William T. Esrey
/s/ Ann M. Gray
- ----------------------------------------- (Director)
Ann M. Gray
/s/ Dennis R. Hendrix
- ----------------------------------------- (Director)
Dennis R. Hendrix
/s/ Harold S. Hook
- ----------------------------------------- (Director)
Harold S. Hook
/s/ George Dean Johnson, Jr.
- ----------------------------------------- (Director)
George Dean Johnson, Jr.
/s/ Max Lennon
- ----------------------------------------- (Director)
Max Lennon
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
<S> <C>
/s/ Leo E. Linbeck, Jr.
- ----------------------------------------- (Director)
Leo E. Linbeck, Jr.
/s/ James G. Martin
- ----------------------------------------- (Director)
James G. Martin
/s/ Russell M. Robinson, II
- ----------------------------------------- (Director)
Russell M. Robinson, II
</TABLE>
<PAGE>
Exhibit 24(B)
DUKE ENERGY CORPORATION
CERTIFICATE
The undersigned officer of DUKE ENERGY CORPORATION, a North Carolina
corporation (the "Corporation"), does hereby certify that attached hereto is a
true and complete copy of a resolution adopted at a meeting of the Board of
Directors of the Corporation with respect to the Registration Statement on Form
S-3 of Duke Energy Corporation relating to its InvestorDirect Choice Plan, which
resolution is presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and
affixed the corporate seal of the Corporation this 25th day of June, 1999.
/s/ Robert T. Lucas III
----------------------------------------
Robert T. Lucas III
Assistant Secretary
(Corporate Seal)
FURTHER RESOLVED, that each officer and director who may be required
to execute such post-effective amendment or post-effective amendments (whether
on behalf of the Corporation or as an officer or director thereof or by
attesting the seal of the Corporation or otherwise) be, and hereby is,
authorized to execute a power of attorney appointing Richard B. Priory, Richard
J. Osborne, David L. Hauser and Ellen T. Ruff, and each of them, as true and
lawful attorneys and agents to execute in his or her name, place and stead (in
any such capacity) such post-effective amendment or post-effective amendments
and all instruments necessary or advisable in connection therewith, to attest
the seal of the Corporation thereon and to file the same with the Securities and
Exchange Commission, each of said attorneys and agents to have power to act with
or without the other, and to have full power and authority to do and perform in
the name and on behalf of each of such officers and directors, or both, as the
case may be, every act whatsoever necessary or advisable to be done in the
premises as fully and to all intents and purposes as any such officer or
director might or could do in person;
