REGISTRATION NOS. 333-80377 and 333-80377-01
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
AMENDMENT NO. 1
TO
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DQE, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA
(State or other jurisdiction of incorporation or organization)
25-1598483
(I.R.S. Employer Identification)
CHERRINGTON CORPORATE CENTER, SUITE 100
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA 15108-3189
(412) 262-4700
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
VICTOR A. ROQUE, ESQ.
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
DQE, INC.
CHERRINGTON CORPORATE CENTER, SUITE 100
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA 15108-3189
(412) 393-6000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
DQE CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
25-1837152
(I.R.S. Employer Identification)
411 SEVENTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1905
(412) 393-6700
(Address, including zip code, and telephone number,
including area code, of registrant's principal
executive offices)
J. ANTHONY TERRELL, ESQ.
CATHERINE C. HOOD, ESQ.
THELEN REID & PRIEST LLP
40 WEST 57TH STREET
NEW YORK, NEW YORK 10019-4097
(212) 603-2000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
M. DOUGLAS DUNN, ESQ.
ROBERT B. WILLIAMS, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY LLP
1 CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005
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The information in this prospectus is not complete and may be changed. A
registration statement relating to these documents has been filed with the
Securities and Exchange Commission. 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 is not permitted.
SUBJECT TO COMPLETION, DATED JULY 29, 1999
PROSPECTUS
$250,000,000
DQE CAPITAL CORPORATION
DEBT SECURITIES
UNCONDITIONALLY GUARANTEED BY
DQE, INC.
DQE Capital Corporation may offer from time to time up to $250,000,000 in
principal amount of its unsecured debt securities at prices and on terms to be
determined at the time of sale. DQE, Inc., which is the parent company of DQE
Capital, will unconditionally guarantee the payment of the debt securities.
One or more supplements to this prospectus will indicate the terms of each
series of debt securities, and each tranche within a series, including, where
applicable, the
() series designation,
() principal amount,
() stated maturity date,
() interest rate and interest payment dates,
() initial public offering price and
() provisions for redemption, if any.
DQE Capital may sell the debt securities to or through underwriters, dealers or
agents or directly to one or more purchasers. The applicable prospectus
supplement will describe each offering of the debt securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES OR PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
_______________, 1999.
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THIS PROSPECTUS INCORPORATES BY REFERENCE IMPORTANT BUSINESS AND FINANCIAL
INFORMATION ABOUT DQE THAT IS NOT INCLUDED IN OR DELIVERED WITH THIS PROSPECTUS.
SEE AVAILABLE INFORMATION. YOU MAY OBTAIN COPIES OF DOCUMENTS CONTAINING SUCH
INFORMATION FROM US, WITHOUT CHARGE, BY EITHER CALLING OR WRITING TO US AT:
DQE CAPITAL CORPORATION
411 SEVENTH AVENUE
PITTSBURGH, PENNSYLVANIA 15219-1905
ATTENTION: TREASURER
TELEPHONE: (412) 393-6700
TABLE OF CONTENTS
PAGE
AVAILABLE INFORMATION..........................................................3
DQE........................................................................... 4
DQE CAPITAL................................................................... 4
USE OF PROCEEDS............................................................... 5
DESCRIPTION OF THE DEBT SECURITIES........................................... 5
General ............................................................ 5
Guaranty of DQE; Holding
Company Structure................................................. 6
Payment and Paying Agents............................................ 7
Registration and Transfer............................................ 8
Redemption........................................................... 8
Satisfaction and Discharge........................................... 8
Events of Default.....................................................9
Remedies............................................................ 10
Consolidation, Merger
Sale of Assets................................................... 12
Modification of Indenture........................................... 13
Duties of the Trustee; Resignation;
Removal.......................................................... 16
Evidence of Compliance.............................................. 16
Governing Law....................................................... 16
PLAN OF DISTRIBUTION......................................................... 16
EXPERTS...................................................................... 17
LEGAL OPINIONS............................................................... 18
WE HAVE NOT AUTHORIZED ANYONE TO GIVE YOU ANY INFORMATION OTHER THAN THIS
PROSPECTUS AND THE USUAL SUPPLEMENTS TO THIS PROSPECTUS. YOU SHOULD NOT ASSUME
THAT THE INFORMATION CONTAINED OR INCORPORATED IN THIS PROSPECTUS IS ACCURATE AS
OF ANY DATE AFTER ___________, 1999, WHICH IS THE DATE OF THIS PROSPECTUS. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THE DEBT SECURITIES AND IT IS NOT SOLICITING
AN OFFER TO BUY THE DEBT SECURITIES IN ANY JURISDICTION IN WHICH THE OFFER IS
NOT PERMITTED.
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AVAILABLE INFORMATION
DQE, Inc., which is the parent company of DQE Capital Corporation,
files annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy this information at the SEC's
Public Reference Room and at its Regional Offices:
Public Reference Room New York Regional Office Chicago Regional Office
Judiciary Plaza 7 World Trade Center Citicorp Center
450 Fifth Street, N.W. Suite 1300 500 West Madison Street
Room 1024 New York, New York 10048 Suite 1400
Washington, D.C. 20549 Chicago, Illinois 60661-2551
You may obtain information on the operation of the SEC's public
reference rooms by calling the SEC at 1-800-SEC-0330. You may also obtain copies
of such material by mail from the Public Reference Section of the SEC, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The
SEC also maintains an Internet site that contains DQE's reports, proxy
statements and other information filed with the SEC. The address of that site is
http://www.sec.gov.
DQE's Common Stock is listed on the New York Stock Exchange, and
reports, proxy statements and other information concerning DQE can also be
inspected at the office of that exchange located at 20 Broad Street, New York,
New York 10005.
DQE is incorporating into this prospectus by reference:
() DQE's most recent Annual Report on Form 10-K filed
with the SEC pursuant to the Exchange Act and
() all other documents filed by DQE with the SEC
pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the filing of DQE's most
recent Annual Report and prior to the termination of
the offering made by this prospectus,
and all of those documents are deemed to be a part of this prospectus from the
date of filing those documents. We refer to the documents incorporated into this
prospectus by reference as the "Incorporated Documents". Any statement contained
in an Incorporated Document may be modified or superseded by a statement in this
prospectus or in any prospectus supplement or in any subsequently filed
Incorporated Document. The Incorporated Documents as of the date of this
prospectus are:
() Annual Report on Form 10-K for the year ended
December 31, 1998;
() Quarterly Report on Form 10-Q for the quarter ended
March 31, 1999; and
() Current Reports on Form 8-K dated March 19, March 26
and July 29, 1999.
DQE maintains an Internet site at http://www.dqe.com which contains
information concerning DQE and its affiliates. The information contained at
DQE's Internet site is not incorporated in this prospectus by reference and you
should not consider it a part of this prospectus.
DQE Capital is not required to file reports with the SEC. There will be
no separate reports or other information relating to DQE Capital included or
incorporated in this prospectus.
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DQE
DQE, Inc., a Pennsylvania corporation, is a multi-utility delivery and
services company. DQE has the following direct subsidiaries, in addition to DQE
Capital:
() Duquesne Light Company, a utility engaged in the generation,
transmission, distribution and sale of electric energy, is DQE's
largest subsidiary, accounting for 88.7% of DQE's consolidated
revenue as of December 31, 1998. The utility provides power to
approximately 580,000 customers in an 800 square mile area
located within the Allegheny, Beaver and, to a limited extent,
Westmoreland counties of southwestern Pennsylvania. The total
population within the area is over 1.5 million, of which over
350,000 live in Pittsburgh.
() Montauk, Inc. makes long-term investments in affordable housing
projects, sale/leasebacks, lease/leasebacks and investments in
alternative energy.
() AquaSource, Inc., is a water resource management company that
acquires, develops and manages water and wastewater service
operations and bottled water delivery companies.
() Duquesne Enterprises, Inc., is building businesses in the energy
services and technologies and electronics commerce industries and
in communications.
() DQE Energy Services, Inc. is a diversified energy services
company offering a wide range of energy solutions for industrial,
utility and consumer markets worldwide. DES' initiatives include
energy facility development and operation, domestic and
international independent power production and the production and
supply of innovative fuels.
() DQEnergy Partners, Inc. is working with owners of a wide range of
gas, electricity and telecommunication distribution systems to
help them better meet the needs of their customers and
communities.
DQE's principal executive offices are located at Cherrington Corporate
Center, Suite 100, 500 Cherrington Parkway, Coraopolis, Pennsylvania 15108-3189
and the telephone number is (412) 262-4700.
See AVAILABLE INFORMATION for the availability of additional
information about DQE.
DQE CAPITAL
DQE Capital Corporation is a Delaware corporation and a wholly-owned
subsidiary of DQE. DQE Capital's primary business purpose is to provide
financing for the operations of the direct and indirect subsidiaries of DQE
other than Duquesne Light Company.
DQE Capital's principal executive offices are located at 411 Seventh
Avenue, Pittsburgh, Pennsylvania 15219-1905 and the telephone number is (412)
393-6700.
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USE OF PROCEEDS
Unless otherwise specified in the prospectus supplement relating to any
series or tranche of the debt securities offered by this prospectus (the "Debt
Securities"), the net proceeds from the sale of Debt Securities will be loaned
to DQE and/or to one or more of DQE's direct or indirect subsidiaries (other
than Duquesne Light Company). DQE Capital expects that the proceeds will be used
for general corporate purposes, including investing in unregulated business
activities and reducing short-term debt incurred to provide interim financing
for these purposes.
DESCRIPTION OF THE DEBT SECURITIES
GENERAL
DQE Capital may issue the Debt Securities in one or more series, or in
one or more tranches within a series, under an Indenture dated as of August 1,
1999 (the "Indenture"), from DQE Capital and DQE to The First National Bank of
Chicago, as trustee (the "Trustee"). The terms of the Debt Securities will
include those stated in the Indenture and those made part of the Indenture by
the Trust Indenture Act of 1939, as amended. The following summary is not
complete and is subject in all respects to the provisions of, and is qualified
in its entirety by reference to, the Indenture and the Trust Indenture Act. DQE
Capital has filed the Indenture, as well as a form of officer's certificate to
establish a series of debt securities, as exhibits to the registration statement
of which this prospectus is a part. Capitalized terms used under this heading
which are not otherwise defined in this prospectus have the meanings set forth
in the Indenture. Wherever particular provisions of the Indenture or terms
defined in the Indenture are referred to, those provisions or definitions are
incorporated by reference as a part of the statements made in this prospectus
and those statements are qualified in their entirety by that reference.
References to article and section numbers, unless otherwise indicated, are
references to article and section numbers of the Indenture.
In addition to the Debt Securities, other debt securities may be issued
under the Indenture, without any limit on the aggregate principal amount. The
Debt Securities and all other debt securities issued under the Indenture are
collectively referred to as the "Indenture Securities." Each series of Indenture
Securities will be unsecured and will rank pari passu with all other series of
Indenture Securities, except as otherwise provided in the Indenture, and with
all other unsecured and unsubordinated indebtedness of DQE Capital. Except as
otherwise described in the applicable prospectus supplement, the Indenture does
not limit the incurrence or issuance by DQE Capital of other secured or
unsecured debt, whether under the Indenture, under any other indenture that DQE
Capital may enter into in the future or otherwise. See the prospectus supplement
relating to any offering of Debt Securities.
DQE will unconditionally guarantee the payment when due of the
principal of and premium, if any, and interest, if any, on the Indenture
Securities. See "Guaranty of DQE; Holding Company Structure".
The applicable prospectus supplements will describe the following terms
of the Debt Securities of each series or tranche:
(a) the title of the Debt Securities;
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(b) any limit upon the aggregate principal amount of the Debt
Securities;
(c) the date or dates on which the principal of the Debt
Securities is payable or the method of determination thereof and the
right, if any, to extend such date or dates;
(d) the rate or rates at which the Debt Securities will bear
interest, if any, or the method by which such rate or rates, if any,
will be determined, the date or dates from which any such interest
will accrue, the interest payment dates on which any such interest
will be payable, the right, if any, of DQE Capital to defer or extend
an interest payment date, and the regular record date for any interest
payable on any interest payment date and the person or persons to whom
interest on the Debt Securities will be payable on any interest
payment date, if other than the person or persons in whose names the
Debt Securities are registered at the close of business on the regular
record date for such interest;
(e) the place or places where, subject to the terms of the
Indenture as described below under "- Payment and Paying Agents", the
principal of and premium, if any, and interest, if any, on the Debt
Securities will be payable and where, subject to the terms of the
Indenture as described below under "- Registration and Transfer", the
Debt Securities may be presented for registration of transfer or
exchange and the place or places where notices and demands to or upon
DQE Capital in respect of the Debt Securities and the Indenture may be
served; the Security Registrar and Paying Agents for the Debt
Securities; and, if such is the case, that the principal of the Debt
Securities will be payable without presentation or surrender;
(f) any period or periods within which, date or dates on which,
the price or prices at which and the terms and conditions upon
which the Debt Securities may be redeemed, in whole or in part, at the
option of DQE Capital;
(g) the obligation or obligations, if any, of DQE Capital to
redeem or purchase any of the Debt Securities pursuant to any sinking
fund or other mandatory redemption provisions or at the option of the
Holder, and the period or periods within which, or date or dates on
which, the price or prices at which, and the terms and conditions upon
which the Debt Securities will be redeemed or purchased, in whole or
in part, pursuant to such obligation, and applicable exceptions to the
requirements of a notice of redemption in the case of mandatory
redemption or redemption at the option of the Holder;
(h) the denominations in which any of the Debt Securities will be
issuable if other than denominations of $1,000 and any integral
multiple of $1,000;
(i) if the Debt Securities are to be issued in global form, the
identity of the depositary; and
(j) any other terms of the Debt Securities.
GUARANTY OF DQE; HOLDING COMPANY STRUCTURE
DQE will unconditionally guarantee the payment of principal of and
premium, if any, and interest, if any, on the Debt Securities, when due and
payable, whether at the stated maturity date, by declaration of acceleration,
call for redemption or otherwise, in accordance with the terms of such Debt
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Securities and the Indenture. The Guaranty will be contained in the Indenture
and will also be endorsed on each Debt Security. The Guaranty will remain in
effect until the entire principal of and premium, if any, and interest, if any,
on the Debt Securities has been paid in full or otherwise discharged in
accordance with the provisions of the Indenture. (See Article Thirteen.)
DQE conducts its operations primarily through its direct and indirect
subsidiaries, and substantially all of the assets shown on DQE's consolidated
balance sheet are held by such subsidiaries. Accordingly, DQE's cash flow and
its ability to meet its obligations under the Guaranty are largely dependent
upon the earnings of such subsidiaries and the distribution or other payment of
such earnings to DQE in the form of dividends or loans or advances and repayment
of loans and advances from DQE. The subsidiaries are separate and distinct legal
entities and, except for DQE Capital, have no obligation to pay any amounts due
on the Debt Securities or to make any funds available for such payment.
Because DQE is a holding company, its obligations under the Guaranty
will be effectively subordinated to all existing and future liabilities of its
subsidiaries. Therefore, DQE's rights and the rights of its creditors, including
the rights of the Holders of the Debt Securities under the Guaranty, to
participate in the assets of any subsidiary (other than DQE Capital) upon the
liquidation or reorganization of such a subsidiary will be subject to the prior
claims of such subsidiary's creditors. To the extent that DQE may itself be a
creditor with recognized claims against any such subsidiary, DQE's claims would
still be effectively subordinated to any security interest in, or mortgages or
other liens on, the assets of such subsidiary and would be subordinated to any
indebtedness or other liabilities of such subsidiary senior to that held by DQE.
Although certain agreements to which DQE and its subsidiaries are parties limit
the incurrence of additional indebtedness, DQE and its subsidiaries retain the
ability to incur substantial additional indebtedness and other liabilities.
PAYMENT AND PAYING AGENTS
Except as may be provided in the applicable prospectus supplement, DQE
Capital will pay interest, if any, on each Debt Security on each interest
payment date to the person in whose name such Debt Security is registered (the
registered holder of any Indenture Security being called a "Holder") as of the
close of business on the regular record date relating to such interest payment
date; provided, however, that DQE Capital will pay interest at maturity (whether
at stated maturity, upon redemption or otherwise, "Maturity") to the person to
whom principal is paid. However, if there has been a default in the payment of
interest on any Debt Security, such defaulted interest may be payable to the
Holder of such Debt Security as of the close of business on a date selected by
the Trustee which is not more than 30 days and not less than 10 days before the
date proposed by DQE Capital for payment of such defaulted interest or in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which such Debt Security may be listed, if the Trustee deems such
manner of payment practicable. (See Section 307.)
Unless otherwise specified in the applicable prospectus supplement, DQE
Capital will pay the principal of and premium, if any, and interest, if any, on
the Debt Securities at Maturity upon presentation of the Debt Securities at the
corporate trust office of The First National Bank of Chicago in Chicago,
Illinois, as paying agent for DQE Capital. DQE Capital may change the place of
payment of the Debt Securities, may appoint one or more additional paying agents
(including DQE Capital) and may remove any paying agent, all at its discretion.
(See Section 502.)
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REGISTRATION AND TRANSFER
Unless otherwise specified in the applicable prospectus supplement,
Holders may register the transfer of Debt Securities, and may exchange Debt
Securities for other Debt Securities of the same series and tranche, of
authorized denominations and having the same terms and aggregate principal
amount, at the corporate trust office of The First National Bank of Chicago in
Chicago, Illinois as security registrar for the Debt Securities. DQE Capital may
change the place for registration of transfer and exchange of the Debt
Securities, may appoint one or more additional security registrars (including
DQE Capital) and may remove any security registrar, all at its discretion. (See
Section 502.) Except as otherwise provided in the applicable prospectus
supplement, no service charge will be made for any transfer or exchange of the
Debt Securities, but DQE Capital may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of the Debt Securities. DQE
Capital will not be required to execute or provide for the registration of
transfer of or the exchange of (a) any Debt Security during a period of 15 days
before giving any notice of redemption or (b) any Debt Security selected for
redemption in whole or in part, except the unredeemed portion of any Debt
Security being redeemed in part. (See Section 305.)
REDEMPTION
The applicable prospectus supplement will set forth any terms for the
optional or mandatory redemption of Debt Securities. Except as otherwise
provided in the applicable prospectus supplement with respect to Debt Securities
redeemable at the option of the Holder, Debt Securities will be redeemable only
upon notice by mail not less than 30 nor more than 60 days before the date fixed
for redemption. If less than all the Debt Securities of a series, or any tranche
thereof, are to be redeemed, the particular Debt Securities to be redeemed will
be selected by such method as shall be provided for such series or tranche, or
in the absence of any such provision, by such method of random selection as the
Security Registrar deems fair and appropriate. (See Sections 403 and 404.)
Any notice of redemption at the option of DQE Capital may state that
such redemption will be conditional upon receipt by the Paying Agent or Agents,
on or before the date fixed for such redemption, of money sufficient to pay the
principal of and premium, if any, and interest, if any, on such Debt Securities
and that if such money has not been so received, such notice will be of no force
or effect and DQE Capital will not be required to redeem such Debt Securities.
(See Section 404.)
SATISFACTION AND DISCHARGE
Any Indenture Securities, or any portion of the principal amount
thereof, will be deemed to have been paid for purposes of the Indenture and, at
DQE Capital's election, the entire indebtedness of DQE Capital and DQE in
respect thereof will be deemed to have been satisfied and discharged, if there
shall have been irrevocably deposited with the Trustee or any Paying Agent
(other than DQE Capital or DQE), in trust:
(a) money in an amount which will be sufficient, or
(b) in the case of a deposit made before the maturity of such
Indenture Securities, Eligible Obligations, which do not contain
provisions permitting the redemption or other prepayment thereof at
the option of the issuer thereof, the principal of and the interest on
which when due, without any regard to reinvestment thereof, will
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provide moneys which, together with the money, if any, deposited with
or held by the Trustee or such Paying Agent, will be sufficient, or
(c) a combination of (a) and (b) which will be sufficient,
to pay when due the principal of and premium, if any, and interest, if any, due
and to become due on such Indenture Securities. For this purpose, Eligible
Obligations include direct obligations of, or obligations unconditionally
guaranteed by, the United States, entitled to the benefit of the full faith and
credit thereof and certificates, depositary receipts or other instruments which
evidence a direct ownership interest in such obligations or in any specific
interest or principal payments due in respect thereof, and such other
obligations or instruments as shall be specified in an accompanying prospectus
supplement. (See Section 601.)
The right of DQE Capital to cause its entire indebtedness in respect of
the Indenture Securities of any series to be deemed to be satisfied and
discharged as described above will be subject to the satisfaction of conditions
specified in the instrument creating such series.
The Indenture will be deemed to have been satisfied and discharged when
no Indenture Securities remain outstanding thereunder and DQE Capital has paid
or caused to be paid all other sums payable by DQE Capital under the Indenture.
(See Section 602.)
EVENTS OF DEFAULT
Any one or more of the following events with respect to a series of
Indenture Securities that has occurred and is continuing will constitute an
"Event of Default" with respect to such series of Indenture Securities:
(a) failure to pay interest on any Indenture Security of such
series within 30 days after the same becomes due and payable;
provided, however, that no such failure will constitute an Event of
Default if DQE Capital has made a valid extension of the interest
payment period with respect to the Indenture Securities of such series
if so provided with respect to such series; or
(b) failure to pay the principal of or premium, if any, on any
Indenture Security of such series when due; provided, however, that no
such failure will constitute an Event of Default if DQE Capital has
made a valid extension of the Maturity of the Indenture Securities of
such series, if so provided with respect to such series; or
(c) failure to perform, or breach of, any covenant or warranty of
DQE Capital or DQE contained in the Indenture for 60 days after
written notice to DQE Capital and DQE from the Trustee or to DQE
Capital, DQE and the Trustee by the holders of at least 33% in
principal amount of the Outstanding Indenture Securities of such
series as provided in the Indenture unless the Trustee, or the Trustee
and the Holders of a principal amount of Securities of such series not
less than the principal amount of Indenture Securities the Holders of
which gave such notice, as the case may be, agree in writing to an
extension of such period before its expiration; provided, however,
that the Trustee, or the Trustee and the Holders of such principal
amount of Indenture Securities of such series, as the case may be,
will be deemed to have agreed to an extension of such period if
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corrective action is initiated by DQE Capital or DQE within such
period and is being diligently pursued; or
(d) certain events in bankruptcy, insolvency or reorganization
of DQE Capital or DQE.
(See Section 701.)
REMEDIES
Acceleration of Maturity
If an Event of Default applicable to the Indenture Securities of any
series occurs and is continuing, then either the Trustee or the Holders of not
less than 33% in aggregate principal amount of the Outstanding Indenture
Securities of such series may declare the principal amount (or, if any of the
Outstanding Indenture Securities of such series are Discount Securities, such
portion of the principal amount thereof as may be specified in the terms
thereof) of all of the Outstanding Indenture Securities of such series to be due
and payable immediately by written notice to the Company (and to the Trustee if
given by Holders); provided, however, that if an Event of Default occurs and is
continuing with respect to more than one series of Indenture Securities, the
Trustee or the Holders of not less than 33% in aggregate principal amount of the
Outstanding Indenture Securities of all such series, considered as one class,
may make such declaration of acceleration and not the Holders of the Indenture
Securities of any one such series.
At any time after such a declaration of acceleration with respect to
the Indenture Securities of any series has been made, but before a judgment or
decree for payment of the money due has been obtained, such declaration and its
consequences will, without further act, be deemed to have been rescinded and
annulled, if
(a) DQE Capital or DQE has paid or deposited with the Trustee a sum
sufficient to pay
(1) all overdue interest, if any, on all Indenture Securities of
such series;
(2) the principal of and premium, if any, on any Indenture
Securities of such series which have become due otherwise than by such
declaration of acceleration and interest, if any, thereon at the rate
or rates prescribed therefor in such Indenture Securities;
(3) interest, if any, upon overdue interest, if any, at the rate
or rates prescribed therefor in such Indenture Securities, to the
extent that payment of such interest is lawful; and
(4) all amounts due to the Trustee under the Indenture in respect
of compensation and reimbursement of expenses; and
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(b) all Events of Default with respect to Indenture Securities of such
series, other than the non-payment of the principal of the Indenture
Securities of such series which has become due solely by such declaration
of acceleration, have been cured or waived as provided in the Indenture.
(See Section 702.)
Right to Direct Proceedings
If an Event of Default with respect to the Indenture Securities of any
series occurs and is continuing, the Holders of a majority in principal amount
of the Outstanding Indenture Securities of such series will have the right to
direct the time, method and place of conducting any proceedings for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee; provided, however, that if an Event of Default occurs and is continuing
with respect to more than one series of Indenture Securities, the Holders of a
majority in aggregate principal amount of the Outstanding Indenture Securities
of all such series, considered as one class, will have the right to make such
direction, and not the Holders of the Indenture Securities of any one of such
series; and provided, further, that (a) such direction does not conflict with
any rule of law or with the Indenture, and could not involve the Trustee in
personal liability in circumstances where indemnity would not, in the Trustee's
sole discretion, be adequate, (b) the Trustee does not determine that the action
so directed would be unjustly prejudicial to the Holders of Indenture Securities
of such series not taking part in such direction and (c) the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction. (See Section 712.)
Limitation on Right to Institute Proceedings
No Holder of any Indenture Security will have any right to institute
any proceeding, judicial or otherwise, with respect to the Indenture or for the
appointment of a receiver or for any other remedy thereunder unless:
(a) such Holder has previously given to the Trustee written
notice of a continuing Event of Default with respect to the Indenture
Securities of any one or more series;
(b) the Holders of a majority in aggregate principal amount of
the Outstanding Indenture Securities of all series in respect of which
such Event of Default has occurred, considered as one class, have made
written request to the Trustee to institute proceedings in respect of
such Event of Default and have offered the Trustee reasonable indemnity
against costs and liabilities to be incurred in complying with such
request; and
(c) for 60 days after receipt of such notice, the Trustee has
failed to institute any such proceeding and no direction inconsistent
with such request has been given to the Trustee during such 60 day
period by the Holders of a majority in aggregate principal amount of
Indenture Securities then Outstanding.
Furthermore, no Holder of Indenture Securities of any series will be
entitled to institute any such action if and to the extent that such action
would disturb or prejudice the rights of other Holders of Indenture Securities
of such series. (See Section 707.)
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No Impairment of Right to Receive Payment
Notwithstanding that the right of a Holder to institute a proceeding
with respect to the Indenture is subject to certain conditions precedent, each
Holder of an Indenture Security will have the right, which is absolute and
unconditional, to receive payment of the principal of and premium, if any, and
interest, if any, on such Indenture Security when due and to institute suit for
the enforcement of any such payment, and such rights may not be impaired or
affected without the consent of such Holder. (See Section 708.)
Notice of Default
The Trustee is required to give the Holders notice of any default under
the Indenture to the extent required by the Trust Indenture Act, unless such
default shall have been cured or waived, except that no such notice to holders
of a default of the character described in clause (c) under "- Events of
Default" may be given until at least 75 days after the occurrence thereof. For
purposes of the preceding sentence, the term "default" means any event which is,
or after notice or lapse of time, or both, would become, an Event of Default.
The Trust Indenture Act currently permits the Trustee to withhold notices of
default (except for certain payment defaults) if the Trustee in good faith
determines the withholding of such notice to be in the interests of the holders.
(See Section 802.)
CONSOLIDATION, MERGER, SALE OF ASSETS
Neither DQE Capital nor DQE may consolidate with or merge into any
other Person, or convey or otherwise transfer, or lease, all of its properties,
as or substantially as an entirety, to any Person, unless:
(a) the Person formed by such consolidation or into which DQE
Capital or DQE, as the case requires, is merged or the Person which
acquires by conveyance or other transfer, or which leases (for a term
extending beyond the last Stated Maturity of the Indenture Securities
then Outstanding), all of the properties of DQE Capital or DQE, as the
case requires, as or substantially as an entirety, shall be a Person
organized and existing under the laws of the United States, any State
or Territory thereof or the District of Columbia or under the laws of
Canada or any Province thereof; and
(b) such Person shall expressly assume the due and punctual
payment of the principal of and premium, if any, and interest, if any,
on all the Indenture Securities then Outstanding and the performance
and observance of every covenant and condition of the Indenture to be
performed or observed by DQE Capital or DQE, as the case requires.
In the case of the conveyance or other transfer of all of the properties of DQE
Capital or DQE, as or substantially as an entirety, to any person as
contemplated above, DQE Capital or DQE, as the case requires, would be released
and discharged from all obligations under the Indenture and on all Indenture
Securities then outstanding unless DQE Capital or DQE, as the case requires,
elects to waive such release and discharge. Upon any such consolidation or
merger or any such conveyance or other transfer of properties of DQE Capital or
DQE, as the case requires, the successor or transferee would succeed to, and be
substituted for, and would be entitled to exercise every power and right of, DQE
Capital or DQE, as the case requires, under the Indenture. (See Sections 1001,
1002 and 1003).
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The Indenture will not prevent or restrict:
(a) any consolidation or merger after the consummation of
which DQE Capital or DQE would be the surviving or resulting entity;
(b) any consolidation of DQE Capital with DQE or any other
Person all of the outstanding voting securities of which are owned,
directly or indirectly, by DQE; or any merger of any of such Persons
into any other of such Persons; or any conveyance or other transfer, or
lease, of properties by any thereof to any other thereof;
(c) any conveyance or other transfer, or lease, of any part of
the properties of DQE Capital or DQE which does not constitute the
entirety, or substantially the entirety, thereof; or
(d) the approval by DQE Capital or DQE of, or the consent by
DQE Capital or DQE to, any consolidation or merger to which any direct
or indirect subsidiary or affiliate of DQE Capital or DQE, as the case
requires, may be a party or any conveyance, transfer or lease by any
such subsidiary or affiliate of any of its assets. (See Section 1004.)
MODIFICATION OF INDENTURE
Modifications Without Consent
DQE Capital, DQE and the Trustee may enter into one or more
supplemental indentures without the consent of any Holders of Indenture
Securities, for any of the following purposes:
(a) to evidence the succession of another Person to DQE Capital
or DQE, as the case may be, and the assumption by any such successor
of the covenants of such party; or
(b) to add one or more covenants of DQE Capital or DQE, as the
case may be, or other provisions for the benefit of all Holders of
Indenture Securities or for the benefit of the Holders of, or to
remain in effect only so long as there shall be Outstanding, Indenture
Securities of one or more specified series, or one or more Tranches
thereof, or to surrender any right or power conferred upon DQE Capital
or DQE by the Indenture; or
(c) to change or eliminate any provision of the Indenture or to
add any new provision to the Indenture, provided that if such change,
elimination or addition adversely affects the interests of the Holders
of the Indenture Securities of any series or Tranche in any material
respect, such change, elimination or addition will become effective
with respect to such series or Tranche only when no Indenture Security
of such series or Tranche remains Outstanding; or
(d) to provide collateral security for the Indenture Securities
or any series thereof; or
(e) to establish the form or terms of the Indenture Securities of
any series or Tranche as permitted by the Indenture; or
(f) to provide for the authentication and delivery of bearer
securities and coupons appertaining thereto representing interest, if
any, thereon and for the procedures for the registration, exchange and
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replacement thereof and for the giving of notice to, and the
solicitation of the vote or consent of, the Holders thereof, and for
any and all other matters incidental thereto; or
(g) to evidence and provide for the acceptance of appointment by
a successor trustee with respect to the Indenture Securities of one or
more series; or
(h) to provide for the procedures required to permit the
utilization of a non-certificated system of registration for all, or
any series or Tranche of, the Indenture Securities; or
(i) to change any place or places where (1) the principal of
and premium, if any, and interest, if any, on all or any series of
Indenture Securities, or any Tranche thereof, will be payable, (2) all
or any series of Indenture Securities, or any Tranche thereof, may be
surrendered for registration of transfer, (3) all or any series of
Indenture Securities, or any Tranche thereof, may be surrendered for
exchange and (4) notices and demands to or upon DQE Capital or DQE in
respect of all or any series of Indenture Securities, or any Tranche
thereof, and the Indenture may be served; or
(j) to cure any ambiguity, to correct or supplement any provision
therein which may be defective or inconsistent with any other
provision therein, or to make any other changes to the provisions
thereof or to add other provisions with respect to matters and
questions arising under the Indenture, so long as such other changes
or additions do not adversely affect the interests of the Holders of
Indenture Securities of any series or Tranche in any material respect.
Without limiting the generality of the foregoing, if the Trust
Indenture Act is amended after the date of the Original Indenture in such a way
as to require changes to the Indenture or the incorporation therein of
additional provisions or so as to permit changes to, or the elimination of,
provisions which, at the date of the Original Indenture or at any time
thereafter, were required by the Trust Indenture Act to be contained in the
Indenture, the Indenture will be deemed to have been amended so as to conform to
such amendment or to effect such changes or elimination, and DQE Capital, DQE
and the Trustee may, without the consent of any Holders of Indenture Securities,
enter into one or more supplemental indentures to evidence such amendment. (See
Section 1101.)
Modifications Requiring Consent
Except as provided above, the consent of the Holders of a majority in
aggregate principal amount of the Indenture Securities of all series then
Outstanding, considered as one class, is required for the purpose of adding any
provisions to, or changing in any manner, or eliminating any of the provisions
of, the Indenture pursuant to one or more supplemental indentures; provided,
however, that if less than all of the series of Indenture Securities Outstanding
are directly affected by a proposed supplemental indenture, then the consent
only of the Holders of a majority in aggregate principal amount of Outstanding
Indenture Securities of all series so directly affected, considered as one
class, will be required; and provided, further, that if the Indenture Securities
of any series have been issued in more than one Tranche and if the proposed
supplemental indenture directly affects the rights of the Holders of one or
more, but less than all, of such Tranches, then the consent only of the Holders
of a majority in aggregate principal amount of the Outstanding Indenture
Securities of all Tranches so directly affected, considered as one class, will
be required; and provided, further, that no such supplemental indenture may:
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<PAGE>
(a) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Indenture Security
other than pursuant to the terms thereof, or reduce the principal
amount thereof or the rate of interest thereon (or the amount of any
installment of interest thereon) or change the method of calculating
such rate or reduce any premium payable upon the redemption thereof, or
reduce the amount of the principal of any Discount Security that would
be due and payable upon a declaration of acceleration of Maturity or
change the coin or currency (or other property) in which any Indenture
Security or any premium or the interest thereon is payable, or impair
the right to institute suit for the enforcement of any such payment on
or after the Stated Maturity of any Indenture Security (or, in the case
of redemption, on or after the redemption date) without, in any such
case, the consent of the Holder of such Indenture Security;
(b) reduce the percentage in principal amount of the
Outstanding Indenture Securities of any series, or any Tranche thereof,
the consent of the Holders of which is required for any such
supplemental indenture, or the consent of the Holders of which is
required for any waiver of compliance with any provision of the
Indenture or of any default thereunder and its consequences, or reduce
the requirements for quorum or voting, without, in any such case, the
consent of the Holder of each Outstanding Indenture Security of such
series or Tranche; or
(c) modify certain of the provisions of the Indenture relating
to supplemental indentures, waivers of certain covenants and waivers of
past defaults with respect to the Indenture Securities of any series,
or any Tranche thereof, without the consent of the Holder of each
Outstanding Indenture Security of such series or Tranche.
A supplemental indenture which changes or eliminates any covenant or
other provision of the Indenture which has expressly been included solely for
the benefit of the Holders of, or which is to remain in effect only so long as
there shall be Outstanding, Indenture Securities of one or more specified
series, or one or more Tranches thereof, or modifies the rights of the Holders
of Indenture Securities of such series or Tranches with respect to such covenant
or other provision, will be deemed not to affect the rights under the Indenture
of the Holders of the Indenture Securities of any other series or Tranche.
If the supplemental indenture or other document establishing any series
or Tranche of Indenture Securities so provides, and as specified in the
applicable prospectus supplement and/or pricing supplement, the Holders of such
Indenture Securities will be deemed to have consented, by virtue of their
purchase of such Indenture Securities, to a supplemental indenture containing
the additions, changes or eliminations to or from the Indenture which are
specified in such supplemental indenture or other document, no Act of such
Holders will be required to evidence such consent and such consent may be
counted in the determination of whether the Holders of the requisite principal
amount of Indenture Securities have consented to such supplemental indenture.
(See Section 1102.)
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DUTIES OF THE TRUSTEE; RESIGNATION; REMOVAL
The Trustee will have, and will be subject to, all the duties and
responsibilities specified with respect to an indenture trustee under the Trust
Indenture Act. Subject to such provisions, the Trustee will be under no
obligation to exercise any of the powers vested in it by the Indenture at the
request of any Holder of Indenture Securities, unless such Holder offers it
reasonable indemnity against the costs, expenses and liabilities which might be
incurred thereby. The Trustee will not be required to expend or risk its own
funds or otherwise incur personal financial liability in the performance of its
duties if the Trustee reasonably believes that repayment or adequate indemnity
is not reasonably assured to it. (See Sections 801 and 803.)
The Trustee may resign at any time with respect to the Indenture
Securities of one or more series by giving written notice thereof to DQE Capital
or may be removed at any time with respect to the Indenture Securities of one or
more series by Act of the Holders of a majority in principal amount of the
Outstanding Indenture Securities of such series delivered to the Trustee and DQE
Capital. No resignation or removal of the Trustee and no appointment of a
successor trustee will become effective until the acceptance of appointment by a
successor trustee in accordance with the requirements of the Indenture. So long
as no Event of Default or event which, after notice or lapse of time, or both,
would become an Event of Default has occurred and is continuing, if DQE Capital
has delivered to the Trustee with respect to one or more series an instrument
appointing a successor trustee with respect to that or those series and such
successor has accepted such appointment in accordance with the terms of the
Indenture, the Trustee with respect to that or those series will be deemed to
have resigned and the successor will be deemed to have been appointed as trustee
in accordance with the Indenture. (See Section 810.)
EVIDENCE OF COMPLIANCE
Compliance with the Indenture provisions is evidenced by written
statements of officers of DQE Capital and DQE or persons selected or paid by DQE
Capital or DQE. In addition, the Indenture requires that DQE Capital and DQE
give the Trustee, not less than annually, a brief statement as to compliance
with the conditions and covenants under the Indenture.
GOVERNING LAW
The Indenture and the Indenture Securities will be governed by and
construed in accordance with the laws of the State of New York, except to the
extent that the Trust Indenture of 1939, as amended, shall be applicable.
PLAN OF DISTRIBUTION
DQE Capital may sell the Debt Securities in any of three ways: (1) to
or through underwriters or dealers, (2) directly to one or more purchasers or
(3) through agents. The applicable prospectus supplement or a supplement thereto
will set forth the terms of the offering of any Debt Securities, including the
names of any underwriters, dealers or agents, the purchase price of such Debt
Securities and the proceeds to DQE Capital from such sale, any underwriting
discounts or commissions and other items constituting underwriters'
compensation, the initial public offering price, any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which
such Debt Securities may be listed.
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<PAGE>
If underwriters are used in any sale of Debt Securities, such Debt
Securities will be acquired by the underwriters for their own account and may be
resold from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Such Debt Securities may be offered to the public either
through underwriting syndicates represented by managing underwriters or by
underwriters without a syndicate. Unless otherwise set forth in the applicable
prospectus supplement, the obligations of the underwriters to purchase such Debt
Securities will be subject to certain conditions precedent, and the underwriters
will be obligated to purchase all of such Debt Securities if any of such Debt
Securities are purchased, except that, in certain cases involving a default by
one or more underwriters, less than all of such Debt Securities may be
purchased. The initial public offering prices and any discounts or concessions
allowed or reallowed or paid to dealers may be changed from time to time.
The Debt Securities may also be sold directly by DQE Capital or through
agents designated by DQE Capital from time to time. Any agent involved in the
offer or sale of the Debt Securities will be named, and any commissions payable
by DQE Capital to such agent will be set forth, in the applicable prospectus
supplement or a supplement thereto. Unless otherwise indicated in the applicable
prospectus supplement, any such agent will act on a best efforts basis for the
period of its appointment.
If so indicated in the applicable prospectus supplement or a supplement
thereto, DQE Capital will authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase the Debt Securities at the
public offering price set forth in such prospectus supplement or supplement
pursuant to delayed delivery contracts providing for payment and delivery on a
future date specified in such prospectus supplement or supplement. Such
contracts will be subject only to those conditions set forth in the applicable
prospectus supplement or supplement thereto and such prospectus supplement or
supplement will set forth the commissions payable for solicitation of such
contracts.
Any underwriters, dealers or agents participating in the distribution
of the Debt Securities may be deemed to be underwriters and any discounts or
commissions received by them on the sale or resale of the Debt Securities may be
deemed to be underwriting discounts and commissions under the Securities Act of
1933, as amended. Agents and underwriters may be entitled under agreements
entered into with DQE Capital to indemnification by DQE Capital against certain
liabilities, including liabilities under the Securities Act and other securities
laws, or to contribution with respect to payments that the agents or
underwriters may be required to make in respect thereof.
Any underwriters, dealers or agents participating in the distribution
of the Debt Securities, and/or affiliates thereof, may engage in transactions
with and perform services for DQE Capital and its affiliates in the ordinary
course of business.
EXPERTS
The consolidated financial statements and the related financial
statement schedule incorporated in this prospectus by reference to DQE's most
recent Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is included in such Form
10-K, and have been so incorporated in reliance upon the report of such firm
given upon their authority as experts in accounting and auditing.
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LEGAL OPINIONS
The validity of the Debt Securities and the Guaranty and certain other
matters will be passed upon for DQE Capital and DQE by David R. High, Esq.,
employed by DQE as its Associate General Counsel, and by Thelen Reid & Priest
LLP, special counsel for DQE Capital and DQE, and for any agents, underwriters
or dealers by Milbank, Tweed, Hadley & McCloy LLP. In giving their opinions,
Thelen Reid & Priest LLP and Milbank, Tweed, Hadley & McCloy LLP may rely on the
opinion of Mr. High as to all matters of Pennsylvania law, and Mr. High may rely
upon the opinion of Thelen Reid & Priest LLP as to all matters of New York law
and certain matters of federal securities law.
18
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SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
DQE, INC. HAS DULY CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF PITTSBURGH, AND COMMONWEALTH OF PENNSYLVANIA, ON THE 29TH DAY OF JULY, 1999.
DQE, INC.
(REGISTRANT)
BY /s/ Gary L. Schwass
-----------------------------------
GARY L. SCHWASS,
EXECUTIVE VICE PRESIDENT AND CHIEF
FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED,
THIS AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE
FOLLOWING PERSONS IN THE CAPACITIES INDICATED ON THE 29TH DAY OF JULY, 1999.
SIGNATURE TITLE
- --------- -----
* President, Chief Executive Officer and
- ----------------------------- Director (Principal Executive Officer)
David D. Marshall
/s/ Gary L. Schwass Executive Vice President and Chief
- ----------------------------- Financial Officer (Principal Financial
Gary L. Schwass Officer)
*
- ----------------------------- Vice President, Controller and Treasurer
Morgan K. O'Brien (Principal Accounting Officer)
*
- ----------------------------- Director
Daniel Berg
- ----------------------------- Director
Doreen E. Boyce
*
- ----------------------------- Director
Robert P. Bozzone
II-1
<PAGE>
* Director
- -----------------------------
Sigo Falk
- ----------------------------- Director
William H. Knoell
* Director
- -----------------------------
Thomas J. Murrin
* Director
- -----------------------------
Eric W. Springer
*By:/s/ Gary L. Schwass Director
-------------------------
Gary L. Schwass
As Attorney-in-Fact
II-2
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, DQE CAPITAL
CORPORATION HAS DULY CAUSED THIS AMENDMENT TO THE REGISTRATION STATEMENT TO BE
SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY
OF PITTSBURGH, AND COMMONWEALTH OF PENNSYLVANIA, ON THE 29TH DAY OF JULY, 1999.
DQE CAPITAL CORPORATION
(REGISTRANT)
BY /s/ Gary L. Schwass
--------------------------
GARY L. SCHWASS, PRESIDENT
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
AMENDMENT TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING
PERSONS IN THE CAPACITIES INDICATED ON THE 29TH DAY OF JULY, 1999.
SIGNATURE TITLE
--------- -----
/s/ Gary L. Schwass
- ----------------------------- President and Director
Gary L. Schwass (Principal Executive Officer)
*
- ----------------------------- Vice President and Director
James D. Mitchell (Principal Financial Officer)
* Vice President and Director
- -----------------------------
Morgan K. O'Brien
*
- ----------------------------- Controller (Principal
James E. Wilson Accounting Officer)
*
- ----------------------------- Director
David D. Marshall
*
- ----------------------------- Director
Victor A. Roque
*
- ----------------------------- Director
Jack E. Saxer, Jr.
*By: /s/ Gary L. Schwass
--------------------------
Gary L. Schwass
As Attorney-in-Fact
II-3
