File No. 70-8933
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________________________________
AMENDMENT NO. 3
TO
FORM U-1 APPLICATION-DECLARATION
UNDER
THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
____________________________________________
Cinergy Corp.
Cinergy Investments, Inc.
Cinergy Services, Inc.
139 East Fourth Street
Cincinnati, Ohio 45202
(Name of companies filing this statement
and addresses of principal executive offices)
Cinergy Corp.
(Name of top registered holding company parent)
William L. Sheafer
Treasurer
Cinergy Corp.
(address above)
(Name and address of agent of service)
Applicants request that the Commission send copies of all notices, orders
and communications in connection herewith to:
Jerome A. Vennemann William J. Grealis
Associate General Counsel President
Cinergy Corp. Cinergy Investments, Inc.
(address above). (address above)
William T. Baker, Jr.
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
1. Item 3 ("Applicable Statutory Provisions") is hereby amended by
appending the following paragraph to the text thereunder:
"Solutions' proposed business activities are entirely consistent with
Commission precedent, to wit: (1) Energy Management Services see, e.g.,
GPU, Inc., et al., Rel. No. 35-26556 (August 16, 1996); The Southern
Company, et al., Rel. No. 35-26240 (February 28, 1995) ("Southern
Development"); (2) Asset Management Services see, e.g., Entergy
Corporation, et al., Rel. No. 35-26322 (June 30, 1995) ("Entergy
Enterprises"); The Southern Company, et al., Rel. No. 35-26212 (December
30, 1994); (3) Consulting Services see, e.g., Southern Development,
supra; (4) Project Development and Ownership see The Southern Company, et
al., Rel. No. 35-26468 (February 2, 1996) ("SEI Holdings"); (5) Consumer
Services see, e.g., The Columbia Gas System, Inc., Rel. No. 35-26498
(March 25, 1996); Consolidated Natural Gas Company, et al., Rel. No. 35-26363
(August 28, 1995); (6) Customer Financing see, e.g., American
Electric Power Company, Inc., et al., Rel. No. 35-26473 (February 20,
1996); Central and South West Corporation, Rel. No. 35-26367 (September 1,
1995); and (7) Wholly-Owned Subsidiaries; Third-Party Alliances see SEI
Holdings, supra; Entergy Enterprises, supra."
2. The following exhibits are filed herewith:
A-1 Form of certificate of incorporation of Solutions
A-2 Form of by-laws of Solutions
A-3 Form of common stock certificate of Solutions
B Form of restated Appendix A to NUSA
F-1 Preliminary Opinion of Counsel
<PAGE> SIGNATURE
Pursuant to the requirements of the Act, the undersigned companies
have duly caused this amendment to be signed on their behalf by the
undersigned thereunto duly authorized.
Dated: December 11, 1996
CINERGY CORP.
By: /s/ William J. Grealis
Vice President
CINERGY INVESTMENTS, INC.
By: /s/ William J. Grealis
President
CINERGY SERVICES, INC.
By: /s/ William J. Grealis
Vice President
<PAGE>
<PAGE>
File No. 70-8933
Exhibit A-1
CERTIFICATE OF INCORPORATION
OF
CINERGY SOLUTIONS, INC.
The undersigned, for the purpose of organizing a corporation under the
General Corporation Law of the State of Delaware, certifies:
FIRST: The name of the corporation is Cinergy Solutions, Inc.
SECOND: The address of the corporation's registered office in the
State of Delaware is the Corporation Trust Center, 1209 Orange Street,
Wilmington, Delaware 19801, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
THIRD: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation
shall have authority to issue is five hundred (500) shares of common stock,
without par value.
FIFTH: The name and mailing address of the incorporator is Rosemary
E. Grieme, 139 East Fourth Street, Cincinnati, Ohio 45202.
SIXTH: A director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the
Delaware General Corporation Law, or (iv) for any transaction from which
the director derived any improper personal benefit. If the Delaware
General Corporation Law is amended after the date of the filing of this
Certificate to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of
the corporation shall be eliminated or limited to the fullest extent
permitted by the Delaware General Corporation Law, as so amended. No
repeal or modification of this Article SIXTH shall apply to or have any
effect on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such director
occurring prior to such repeal or modification.
SEVENTH: The directors shall have power to make, alter or repeal by-laws,
except as may otherwise be provided in the by-laws.
EIGHTH: Elections of directors need not be by written ballot, except
as may otherwise be provided in the by-laws.
WITNESS my signature this _____ day of _____________________, 199_.
__________________________________
Sole Incorporator
<PAGE>
File No. 70-8933
Exhibit A-2
By-Laws
Of
Cinergy Solutions, Inc.
(hereinafter called the "Corporation")
ARTICLE I
Offices
Section 1.1. Offices. The principal office of the Corporation shall
be at 139 East Fourth Street, Cincinnati, Ohio 45202. The Corporation may
have such other offices at such other places as the Board of Directors may
from time to time determine, or as the business of the Corporation may
require.
ARTICLE II
Stockholders' Meetings
Section 2.1. Annual Meeting. The annual meeting of the stockholders
may be held at such place, time, and date designated by the Board of
Directors for the election of directors, the consideration of the reports to
be laid before the meeting, and the transaction of such other business as may
be brought before the meeting.
Section 2.2. Notice of Annual Meeting. Notice of the annual meeting
shall be given in writing to each stockholder entitled to vote thereat, at
such address as appears on the records of the Corporation at least ten (10)
days and not more than forty-five (45) days prior to the meeting.
Section 2.3. Special Meetings. Special meetings of the stockholders
may be called at any time by the Chairman of the Board, the Chief Executive
Officer, or the President, or by a majority of the members of the Board of
Directors acting with or without a meeting, or by the persons who hold in the
aggregate the express percentage, as provided by statute, of all shares
outstanding and entitled to vote thereat, upon notice in writing, stating the
time, place and purpose of the meeting. Business transacted at all special
meetings shall be confined to the objects stated in the call.
Section 2.4. Notice of Special Meeting. Notice of a special meeting,
in writing, stating the time, place and purpose thereof, shall be given to
each stockholder entitled to vote thereat, at least twenty (20) days and not
more than forty-five (45) days prior to the meeting.
Section 2.5. Waiver of Notice. Notice of the time, place and purpose
of any meeting of stockholders may be waived by the written assent of every
stockholder entitled to notice, filed with or entered upon the records of the
meeting, either before or after the holding thereof.
Section 2.6. Quorum. The holders of shares entitling them to exercise
a majority of the voting power, or, if the vote is to be taken by classes,
the holders of shares of each class entitling them to exercise a majority of
the voting power of that class, present in person or by proxy at any meeting
of the stockholders, unless otherwise specified by statute, shall constitute
a quorum.
If, however, at any meeting of the stockholders, a quorum
shall fail to attend in person or by proxy, a majority in interest of the
stockholders attending in person or by proxy at the time and place of such
meeting may adjourn the meeting from time to time without further notice
(unless the meeting has been adjourned for over thirty days), other than by
announcement at the meeting at which such adjournment is taken, until a
quorum is present. At any such adjourned meeting at which a quorum shall be
present, any business may be transacted which might have been transacted at
the meeting originally called.
Section 2.7. Voting. At each meeting of the stockholders, except as
otherwise provided by statute or the Certificate of Incorporation, every
holder of record of stock of the class or classes entitled to vote at such
meeting shall be entitled to vote in person or by proxy appointed by an
instrument in writing subscribed by such stockholder and bearing a date, not
later than such time as expressly provided by statute, prior to said meeting
unless some other definite period of validity shall be expressly provided
therein.
Each stockholder shall have one (1) vote for each share of
stock having voting power, registered in his or her name on the books of the
Corporation, at the date fixed for determination of persons entitled to vote
at the meeting or, if no date has been fixed, then as expressly provided by
statute. (e.g., either the date of the meeting, the date next proceeding the
day of the meeting, or any such similar governing time frame). Cumulative
voting shall be permitted only as expressly provided by statute.
At any meeting of stockholders, a list of stockholders
entitled to vote, alphabetically arranged, showing the number and classes of
shares held by each on the date fixed for closing the books against transfers
or the record date fixed as hereinbefore provided (or if no such date has
been fixed, then as hereinbefore stated as expressly provided by statute)
shall be produced on the request of any stockholder, and such list shall be
prima facie evidence of the ownership of shares and of the right of
stockholders to vote, when certified by the Secretary or by the agent of the
Corporation having charge of the transfer of shares.
Section 2.8. Written Consent of Stockholders in Lieu of Meeting. Any
action required or permitted by statute, the Certificate of Incorporation, or
these By-Laws, to be taken at any annual or special meeting of stockholders
of the Corporation, may be taken without a meeting, without prior notice and
without a vote, if a written consent in lieu of a meeting, setting forth the
action so taken, shall be signed by all the stockholders entitled to vote
thereon. Any such written consent may be given by one or any number of
substantially concurrent written instruments of substantially similar tenor
signed by such stockholders, in person or by attorney or proxy duly appointed
in writing, and filed with the records of the Corporation. Any such written
consent shall be effective as of the effective date thereof as specified
therein.
ARTICLE III
Directors
Section 3.1. Duties and Powers. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors which may exercise all such powers of the Corporation and do all
such lawful acts and things as are not, by statute, the Certificate of
Incorporation, or these By-Laws, directed or required to be exercised or done
by the stockholders.
Section 3.2. Number and Election of Directors. The Board of Directors
shall consist of not less than three nor more than fifteen members, the exact
number of which shall be fixed by the Board of Directors. Directors shall be
elected annually by stockholders at their annual meeting, in a manner
consistent with statute and as provided in Article II, Section 2.8 of these
By-Laws, and each director so elected shall hold office until his/her
successor is duly elected and qualifies, or until his/her earlier resignation
or removal. Any director may resign at any time upon notice to the
Corporation. Directors need not be stockholders. Any director may be
removed at any time with or without cause by a majority vote of the
stockholders, unless otherwise provided by statute.
Section 3.3. Vacancies. Vacancies and newly created directorships,
resulting from any increase in the authorized number of directors, may be
filled by a majority of the directors then in office, and the directors so
chosen shall hold office for the unexpired term of the predecessor and/or
until the next annual meeting of stockholders, and until their successors are
duly elected and qualify, or until their earlier resignation or removal.
Section 3.4. Meetings. Regular meetings of the Board of Directors
may be held at such time, place, and upon such notice as the Board of
Directors may from time to time determine. Special meetings of the Board of
Directors may be called by the Chairman of the Board, the Chief Executive
Officer, the President, or by members of the board (the express percentage of
the latter as minimally provided for by statute). Notice thereof stating the
place, date and hour of the meeting shall be given to each director either by
mail (not less than forty-eight (48) hours before the date of the meeting),
by telephone or telegram (on twenty-four (24) hours' notice) or on such
shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
Section 3.5. Quorum. Except as may be otherwise specifically provided
for by statute, the Certificate of Incorporation or these By-Laws, at all
meetings of the Board of Directors, a majority of the entire Board of
Directors shall constitute a quorum for the transaction of business and the
act of a majority of the directors present at any meeting at which there is
a quorum shall be the act of the Board of Directors. If a quorum shall not
be present at any meeting of the Board of Directors, the directors present
thereat may adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present.
Section 3.6. Actions of Board. Unless otherwise provided by the
Certificate of Incorporation of the Corporation or these By-Laws, any action
required or permitted to be taken at any meeting of the Board of Directors,
or of any committee(s) thereof, may be taken without a meeting, if all the
members of the Board of Directors, or of such committee(s), as the case may
be, consent thereto in writing, and the writing(s) is filed with the minutes
of proceedings of the Board of Directors, or of such committee(s), of the
Corporation. Any such written consent to action of the Board of Directors,
or of such committee(s), shall be effectuated by the signature of the member
lastly consenting thereto in writing, unless the consent otherwise specified
a prior or subsequent effective date.
Section 3.7. Meetings by Means of Conference Telephone. Unless
otherwise provided by the Certificate of Incorporation of the Corporation or
these By-Laws, members of the Board of Directors, or any committee(s)
thereof, may participate in a meeting of the Board of Directors, or of such
committee(s), as the case may be, by means of a conference telephone or
similar communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant
to this Section 3.7 shall constitute presence in person at such meeting.
Section 3.8. Committees. The Board of Directors may, by resolution
passed by a majority of the entire Board of Directors, designate, from time
to time as they may see fit, one or more committees, each such committee to
consist of three or more of the directors of the Corporation. The Board of
Directors may designate one or more directors as alternate members of any
such committee who may replace any absent or disqualified member at any
meeting of any such committee. In the absence or disqualification of a
member of a committee, and in the absence of a designation by the Board of
Directors of an alternate member to replace the absent or disqualified
member, the member or members thereof present at any meeting and not
disqualified from voting, whether or not he/she or they constitute a quorum,
may unanimously appoint another member of the Board of Directors to act at
the meeting in the place of any absent or disqualified member. Any
committee, to the extent allowed by statute and provided in the resolution
establishing such committee, shall have and may exercise all the powers and
authority of the Board of Directors in the management of the business and
affairs of the Corporation. Each committee shall keep regular minutes and
report to the Board of Directors when required.
Section 3.9. Compensation. Each director of the Corporation (other
than directors who are salaried officers of the Corporation or any of its
affiliates) shall be entitled to receive as compensation for services such
reasonable compensation, which may include pension, disability and death
benefits, as may be determined from time to time by the Board of Directors.
Reasonable compensation may also be paid to any person other than a director
officially called to attend any such meeting.
Section 3.10. Contracts and Transactions Involving Directors. No con-
tract or transaction between the Corporation and one or more of its directors
or officers, or between the Corporation and any other corporation,
partnership, association, or other organization in which one or more of its
directors or officers are directors or officers, or have a financial
interest, shall be void or voidable solely for this reason, or solely because
the director or officer is present at or participates in the meeting of the
Board of Directors or committee thereof which authorizes the contract or
transaction, or solely because his/her or their votes are counted for such
purpose if: (i) the material facts as to his/her or their relationship or
interest and as to the contract or transaction are disclosed or are known to
the Board of Directors or the committee, and the Board of Directors or
committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though
the disinterested directors be less than a quorum; or (ii) the material facts
as to his/her or their relationship or interest and as to the contract or
transaction are disclosed or are known to the stockholders entitled to vote
thereon, and the contract or transaction is specifically approved in good
faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved or
ratified, by the Board of Directors, a committee
thereof or the stockholders. Common or interested directors may be counted
in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE IV
Officers
Section 4.1. Officers. The officers of the Corporation shall consist
of a President, a Secretary, and a Treasurer, and may consist of a Chairman
of the Board, a Chief Executive Officer, a Comptroller, one or more Vice
Presidents, one or more Assistant Secretaries, and such other officers as the
board shall from time to time deem necessary. Any number of offices may be
held by the same person, unless otherwise prohibited by statute, the
Certificate of Incorporation, or these By-Laws.
Section 4.2. Appointment, Terms, and Vacancies. The Board of
Directors, at its first meeting held after each annual meeting of
stockholders of the Corporation (i.e., the annual organization meeting of the
Board of Directors), shall appoint the officers of the Corporation who shall
hold their offices for such terms and shall exercise such powers and perform
such duties as shall be determined from time to time by the board, and such
officers shall hold office until their successors are chosen and shall
qualify, or until their earlier resignation or removal from office. Any
officer appointed by the Board of Directors may be removed at any time by the
affirmative vote of a majority of the board. Any vacancy occurring in any
office of the Corporation shall be filled by the Board of Directors.
Section 4.3. Chairman of the Board. The Chairman of the Board, if
there be one, shall be a director and shall preside at all meetings of the
Board of Directors and, in the absence or incapacity of the Chief Executive
Officer and the President, meetings of the stockholders, and shall, subject
to the board's direction and control, be the board's representative and
medium of communication, and shall have the general powers and duties as are
incident to the office of Chairman of the Board of a corporation.
Section 4.4. Chief Executive Officer. The Chief Executive Officer,
if there be one, shall preside at all meetings of the stockholders and, in
the absence or incapacity of the Chairman of the Board, meetings of the Board
of Directors. The Chief Executive Officer shall from time to time report to
the Board of Directors all matters within his or her knowledge which the
interests of the Corporation may require be brought to their notice. Where
the offices of Chief Executive Officer and President are held by different
individuals, the President will report directly to the Chief Executive
Officer.
Section 4.5. President. The President shall be the chief operating
officer of the Corporation, and shall have general and active management and
direction of the affairs of the Corporation, shall have supervision of all
departments and of all officers of the Corporation, shall see that the orders
and resolutions of the Board of Directors, or of any committee(s) thereof,
are carried fully into effect, and shall have the general powers and duties
of supervision and management as are incident to the office of President of
a corporation. In the absence or incapacity of the Chief Executive Officer,
the President also shall be the chief executive officer of the Corporation.
Section 4.6. Vice Presidents. The Vice Presidents shall perform such
duties as the Board of Directors shall from time to time require. In the
absence or incapacity of the President, the Vice President designated by the
Board of Directors (including by the Chairman of the Board), the Chief
Executive Officer, or the President shall exercise the powers and duties of
the President.
Section 4.7(a). Secretary. The Secretary shall attend all meetings of
the Board of Directors and of the stockholders of the Corporation, and act as
clerk thereof, and record all votes and the minutes of all proceedings in a
book to be kept for that purpose, shall record all written business
transactions, shall perform like duties for the standing committees when
required, and shall have the general powers and duties as are incident to the
office of Secretary of a corporation. The Secretary shall give, or cause to
be given, proper notice of all meetings of the stockholders and of the Board
of Directors, and shall perform such other duties as may be prescribed by the
Board of Directors (including by the Chairman of the Board), the Chief
Executive Officer, or the President. The Secretary shall have custody of the
seal, if there be one, of the Corporation and the Secretary or any Assistant
Secretary, if there be one, shall have authority to affix the same to any in-
strument requiring it and when so affixed, it may be attested by the
signature of the Secretary or by the signature of any such Assistant
Secretary. (The Board of Directors may give general authority to any other
officer to affix the seal of the Corporation and to attest the affixing by
his/her signature). The Secretary shall see that all books, reports,
statements, certificates and other documents and records required by statute
to be kept or filed are properly kept or filed, as the case may be.
Section 4.7(b). Assistant Secretaries. At the request of the
Secretary, or in his or her absence or incapacity to act, the Assistant
Secretary or, if there be more than one, the Assistant Secretary designated
by the Secretary, shall perform the duties of the Secretary and when so
acting shall have all the powers of and be subject to all the restrictions of
the Secretary. The Assistant Secretaries shall perform such other duties as
may from time to time be assigned to them by the Board of Directors
(including by the Chairman of the Board), the Chief Executive Officer, the
President, or the Secretary.
Section 4.8. Treasurer. The Treasurer shall be the financial officer
of the Corporation, shall keep full and accurate accounts of all collections,
receipts and disbursements in books belonging to the Corporation, shall
deposit all moneys and other valuable effects in the name and to the credit
of the Corporation, in such depositories as may be designated by the Board of
Directors, shall disburse the funds of the Corporation as may be ordered by
the Board of Directors (including by the Chairman of the Board), the Chief
Executive Officer, or the President, taking proper vouchers therefor, and
shall render to the President, the Chief Executive Officer, the Chairman of
the Board, and/or directors at any meeting of the board, or whenever they may
require it, and to the annual meeting of the stockholders, an account of all
his or her transactions as Treasurer and of the financial condition of the
Corporation, and shall have the general powers and duties as are incident to
the office of Treasurer of a corporation. If required by the Board of
Directors, the Treasurer shall give the Corporation a bond in a form and in
such sum with surety as shall be satisfactory to the Board of Directors for
the faithful performance of his or her duties as Treasurer and for the
restoration to the Corporation, in the case of his or her death, resignation,
retirement or removal from office, of all books, papers, vouchers, money and
other property of whatever kind in his or her possession, or under his or her
control, and belonging to the Corporation. The Treasurer shall perform such
other duties as may be prescribed by the Board of Directors (including by the
Chairman of the Board), the Chief Executive Officer, or the President.
Section 4.9. Comptroller. The Comptroller shall have control over all
accounts and records of the Corporation pertaining to moneys, properties,
materials and supplies, and shall have executive direction over the
bookkeeping and accounting functions and shall have the general powers and
duties as are incident to the office of comptroller of a corporation. The
Comptroller shall perform such other duties as may be prescribed by the Board
of Directors (including by the Chairman of the Board), the Chief Executive
Officer, the President, or a Vice President.
Section 4.10. Other Officers. Such other officers of the Corporation
as the Board of Directors may appoint shall perform such duties and have such
powers as from time to time may be assigned to them by the board. The Board
of Directors may delegate to any other officer of the Corporation the power
to appoint such other officers and to prescribe their respective duties and
powers.
ARTICLE V
Capital Stock
Section 5.1. Form and Execution of Certificates. The certificates for
shares of the capital stock of the Corporation shall be of such form and
content, not inconsistent with statute and the Certificate of Incorporation,
as shall be approved by the Board of Directors. Every holder of stock in the
Corporation shall be entitled to have a certificate signed, in the name of
the Corporation, by (i) either the Chairman of the Board, the Chief Executive
Officer, the President or a Vice President and (ii) by any one of the
following officers: the Secretary or an Assistant Secretary or the Treasurer
or an Assistant Treasurer. All certificates shall be consecutively numbered
in each class of shares. The name and address of the person owning the
shares represented thereby, with the number of shares and the date of issue,
shall be entered on the Corporation's books.
Section 5.2. Signatures. Any or all of the signatures on a
certificate may be a facsimile thereof. In case any officer, transfer agent
or registrar who has signed or whose facsimile signature has been placed upon
a certificate shall have ceased to be such officer, transfer agent or
registrar before such certificate is issued, it may be issued by the
Corporation with the same effect as if he/she were such officer, transfer
agent or registrar at the date of issue.
Section 5.3. Lost Certificates. The Board of Directors may direct a
new certificate to be issued in place of any certificate theretofore issued
by the Corporation alleged to have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the person claiming the certificate of
stock to be lost, stolen or destroyed. When authorizing such issue of a new
certificate, the Board of Directors may, in its discretion and as a condition
precedent to the issuance thereof, require the owner of such lost, stolen or
destroyed certificate, or his/her legal representative, to advertise the same
in such manner as the Board of Directors shall require and/or to give the
Corporation a bond in such sum as it may direct as indemnity against any
claim that may be made against the Corporation with respect to the certifi-
cate alleged to have been lost, stolen or destroyed.
Section 5.4. Transfers. The capital stock of the Corporation shall
be transferable in the manner provided by statute and in these By-Laws.
Transfers of shares shall be made on the books of the Corporation only by the
person named in the certificate or by his/her attorney lawfully constituted
in writing and upon the surrender of the certificate therefor, which shall be
canceled before a new certificate shall be issued.
Section 5.5. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of
stockholders or any adjournment thereof, or entitled to express consent to
corporate action in writing without a meeting, or entitled to receive payment
of any dividend or other distribution or allotment of any rights, or entitled
to exercise any rights in respect of any change, conversion or exchange of
stock, or for the purpose of any other lawful action, the Board of Directors
may fix, in advance, a record date, which shall not be more than sixty days
nor less than ten days before the date of such meeting, nor more than sixty
days prior to any other action. A determination of stockholders of record
entitled to notice of or to vote at a meeting of stockholders shall apply to
any adjournment of the meeting; provided, however, that the Board of
Directors may fix a new record date for the adjourned meeting.
Section 5.6. Beneficial Ownership Rights. The Corporation shall be
entitled to recognize the exclusive right of a person registered on its books
as the owner of shares to receive dividends, and to vote as such owner, and
to hold liable for calls and assessments a person registered on its books as
the owner of shares, and shall not be bound to recognize any equitable or
other claim to or interest in such share or shares on the part of any other
person, whether or not it shall have express or other notice thereof, except
as otherwise provided by statute.
ARTICLE VI
Notices
Section 6.1. Notices. Whenever written notice is required by statute,
the Certificate of Incorporation, or these By-Laws to be given to any
director, member of a committee, or stockholder, such notice may be given by
mail, addressed to each such person, at his/her address as it appears on the
records of the Corporation, with postage thereon prepaid, and such notice
shall be deemed to be given at the time when the same shall be deposited in
the United States mail, or as otherwise provided by statute. Written notice
may also be given personally or by telegram, telex or cable.
Section 6.2. Waivers of Notice. Whenever any notice is required by
statute, the Certificate of Incorporation, or these By-Laws to be given to
any director, member of a committee, or stockholder, a waiver thereof in
writing, signed by the person or persons entitled to said notice, whether
before or after the time stated therein, shall be deemed equivalent thereto.
ARTICLE VII
General Provisions
Section 7.1. Dividends. Dividends upon the capital stock of the
Corporation, subject to any provision imposed by the Certificate of
Incorporation, may be declared by the Board of Directors at any regular or
special meeting, or by written consent to the action of the board without
such meeting(s), and may be paid in cash, in property, or in shares of the
capital stock. Before payment of any dividend, there may be set aside out of
any funds of the Corporation available for dividends such sum or sums as the
Board of Directors from time to time, in its absolute discretion, deems
proper as a reserve or reserves to meet contingencies, or for equalizing
dividends, or for repairing or maintaining any property of the Corporation,
or for any proper purpose, and the Board of Directors may modify or abolish
any such reserve.
Section 7.2. Disbursements. All checks or demands for money and notes
of the Corporation shall be signed by such officer or officers or such other
person or persons as the Board of Directors may from time to time designate.
Section 7.3. Voting Securities Owned by the Corporation. Powers of
attorney, proxies, waivers of notice of meeting, consents and other
instruments relating to securities owned by the Corporation may be executed
in the name of and on behalf of the Corporation by the Chief Executive
Officer, the President, any Vice President, the Secretary, or any Assistant
Secretary, and any such officer may, in the name of and on behalf of the
Corporation, take all such action as any such officer may deem advisable to
vote in person or by proxy at any meeting of security holders of any
corporation in which the Corporation may own securities and at any such
meeting shall possess and may exercise any and all rights and power incident
to the ownership of such securities and which, as the owner thereof, the
Corporation might have exercised and possessed if present. The Board of
Directors may, by resolution, from time to time confer like powers upon any
other person or persons.
Section 7.4. Fiscal Year. The fiscal year of the Corporation shall
begin on the first day of January and end on the thirty-first day of December
each year.
Section 7.5. Corporate Seal. The seal of the Corporation (if there be
one) shall have inscribed thereon the name of the Corporation, the year of
its incorporation, the words "Corporate Seal" and "Delaware", and any such
other emblem or device as approved by the Board of Directors. The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or in
any other manner reproduced.
ARTICLE VIII
Indemnification
Section 8.1. Power to Indemnify in Actions, Suits or Proceedings
Other than Those By or in the Right of the Corporation. Subject to Section
8.3 of this Article VIII, the Corporation shall indemnify any person who was
or is a party to or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of
the Corporation) by reason of the fact that he/she is or was a director or
officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director or
officer, employee or agent of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by him/her in connection with such action,
suit or proceeding, if he/she acted in good faith and in a manner he/she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his/her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contendere or its equivalent shall not, of itself, create
a presumption that the person did not act in good faith and in a manner which
he/she reasonably believed to be in or not opposed to the best interests of
the Corporation and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his/her conduct was unlawful.
Section 8.2. Power to Indemnify in Actions, Suits or Proceedings
By or in the Right of the Corporation. Subject to Section 8.3 of this
Article VIII, the Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that he/she is or was a director
or officer of the Corporation, or is or was a director or officer of the
Corporation serving at the request of the Corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him/her in connection
with the defense or settlement of such action or suit if he/she acted in good
faith and in a manner he/she reasonably believed to be in or not opposed to
the best interests of the Corporation; except that no indemnification shall
be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable for negligence or misconduct in the
performance of his/her duty to the Corporation, unless and only to the extent
that the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled
to indemnity for such expenses which the court shall deem proper.
Section 8.3. Authorization of Indemnification. Any indem-
nification under this Article VIII (unless ordered by a court) shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director or officer is proper in
the circumstances because he/she has met the applicable standard of conduct
set forth in Section 8.1 or Section 8.2 of this Article VIII, as the case may
be. Such determination shall be made (i) by the Board of Directors by a
majority vote of a quorum consisting of directors who were not parties to
such action, suit or proceeding, or (ii) if such a quorum is not obtainable,
or, even if obtainable a quorum of disinterested directors so directs, by
independent legal counsel in a written opinion, or (iii) by the stockholders.
To the extent, however, that a director or officer of the Corporation has
been successful on the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue or matter
therein, he/she shall be indemnified against expenses (including attorneys'
fees) actually and reasonably incurred by him/her in connection therewith,
without the necessity of authorization in the specific case.
Any determination made by the disinterested directors or by
independent legal counsel under this section shall be promptly communicated
to the person who threatened or brought the action or suit by or in the right
of the Corporation under Section 8.1 and 8.2 of this Article VIII, and,
within ten days after receipt of such notification, such persons shall have
the right to petition the court (at courts' discretion) in which such action
or suit was brought to review the reasonableness of such determination.
Section 8.4. Good Faith Defined. For purposes of any determina-
tion under Section 8.3 of this Article VIII, a person shall be deemed to have
acted in good faith and in a manner he/she reasonably believed to be in or
not opposed to the best interests of the Corporation, or, with respect to any
criminal action or proceeding, to have had no reasonable cause to believe
his/her conduct was unlawful, if his/her action is based on the records or
books of account of the Corporation or another enterprise, or on information
supplied to him/her by the officers of the Corporation or another enterprise
in the course of their duties, or on the advice of legal counsel for the
Corporation or another enterprise or on information or records given or
reports made to the Corporation or another enterprise by an independent
certified public accountant, or by an appraiser or other expert selected with
reasonable care by the Corporation or another enterprise. The term "another
enterprise" as used in this Section 8.4 shall mean any other corporation or
any partnership, joint venture, trust, employee benefit plan or other
enterprise of which such person is or was serving at the request of the
Corporation as a director, officer, employee or agent. The provisions of
this Section
8.4 shall not be deemed to be exclusive or to limit in any way the circum-
stances in which a person may be deemed to have met the applicable standard
of conduct set forth in Sections 8.1 or 8.2 of this Article VIII, as the case
may be.
Section 8.5. Indemnification by a Court. Notwithstanding any
contrary determination in the specific case under Section 8.3 of this Article
VIII, and notwithstanding the absence of any determination thereunder, any
director or officer may apply to any court of competent jurisdiction in the
State of Delaware for indemnification to the extent otherwise permissible
under Sections 8.1 and 8.2 of this Article VIII. The basis of such
indemnification by a court shall be a determination by such court that
indemnification of the director or officer is proper in the circumstances
because he/she has met the applicable standards of conduct set forth in
Sections 8.1 or 8.2 of this Article VIII, as the case may be. Neither a
contrary determination in the specific case under Section 8.3 of this Article
VIII nor the absence of any determination thereunder shall be a defense to
such application or create a presumption that the director or officer seeking
indemnification has not met any applicable standard of conduct. Notice of
any application for indemnification pursuant to this Section 8.5 shall be
given to the Corporation promptly upon the filing of such application. If
successful, in whole or in part, the director or officer seeking
indemnification shall also be entitled to be paid the expense of prosecuting
such application.
Section 8.6. Expenses Payable in Advance. Expenses incurred by
a director or officer in defending or investigating a threatened or pending
action, suit or proceeding shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount
if it shall ultimately be determined that he/she is not entitled to be
indemnified by the Corporation as authorized in this Article VIII.
Section 8.7. Nonexclusivity of Indemnification and Advancement
of Expenses. The indemnification and advancement of expenses provided by or
granted pursuant to this Article VIII shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of
expenses may be entitled under any other provision of these By-Laws, or
similarly entitled under any agreement, contract, vote of stockholders or
disinterested directors, or pursuant to the direction (howsoever embodied) of
any court of competent jurisdiction or otherwise, both as to action in
his/her official capacity and as to action in another capacity while holding
such office, it being the policy of the Corporation that indemnification of
the persons specified in Sections 8.1 and 8.2 of this Article VIII shall be
made to the fullest extent permitted by statute. The provisions of this
Article VIII shall not be deemed to preclude the indemnification of any
person who is not specified in Sections 8.1 or 8.2 of this Article VIII, but
whom the Corporation has the power or obligation to indemnify under the
provisions of statute of the State of Delaware, or otherwise.
Section 8.8. Insurance. The Corporation may purchase and main-
tain insurance on behalf of any person who is or was a director or officer of
the Corporation, or is or was a director or officer of the Corporation
serving at the request of the Corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise against any liability asserted against
him/her and incurred by him/her in any such capacity, or arising out of
his/her status as such, whether or not the Corporation would have the power
or the obligation to indemnify him/her against such liability under the
provisions of this Article VIII.
Section 8.9. Certain Definitions. For purposes of this Article
VIII, references to "the Corporation" shall include, in addition to the
resulting corporation, any constituent corporation (including any constituent
of a constituent) absorbed in a consolidation or merger which, if its
separate existence had continued, would have had power and authority to
indemnify its directors or officers, so that any person who is or was a
director or officer of such constituent corporation, or is or was a director
or officer of such constituent corporation serving at the request of such
constituent corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise, shall stand in the same position under the provisions of
this Article VIII with respect to the resulting or surviving corporation as
he/she would have with respect to such constituent corporation if its
separate existence had continued. For purposes of this Article VIII,
references to "fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan; and references to "serving at the
request of the Corporation" shall include any service as a director, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director or officer with respect to an employee benefit
plan, its participants or beneficiaries; and a person who acted in good faith
and in a manner he/she reasonably believed to be in the best interests of the
participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner "not opposed to the best interests of the
Corporation", as referred to in this Article VIII.
Section 8.10. Survival of Indemnification and Advancement of
Expenses. The indemnification and advancement of expenses provided by, or
granted pursuant to, this Article VIII shall, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director or officer and shall inure to the benefit of the heirs, executors
and administrators of such a person.
Section 8.11. Limitation on Indemnification. Notwithstanding
anything contained in this Article VIII to the contrary, except for
proceedings to enforce rights to indemnification (which shall be governed by
Section 8.5 hereof), the Corporation shall not be obligated to indemnify any
director or officer in connection with a proceeding (or part thereof)
initiated by such person unless such proceeding (or part thereof) was
authorized or consented to by the Board of Directors of the Corporation.
The Corporation shall indemnify a director who was wholly
successful, on merits or otherwise, in the defense of any proceedings to
which he/she was a party because he/she was a director of the Corporation
against reasonable expenses incurred by him/her in connection with the
proceeding.
Section 8.12. Indemnification of Employees and Agents. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, provide rights to indemnification and to the advancement of
expenses to employees and agents of the Corporation, similar to those con-
ferred in this Article VIII to directors and officers of the Corporation.
ARTICLE IX
Amendments
Section 9.1. Amendments. These By-Laws may be altered, amended or
repealed, in whole or in part, or new By-Laws may be adopted: (i) by the
affirmative vote of a majority of the holders of record of the outstanding
shares entitled to vote thereon, or by the written consent of the holders of
record of a two-thirds majority of the outstanding shares entitled to vote
thereon, except as such alteration, amendment or repeal by any vote or
written consent of the stockholders is otherwise expressly prohibited by
statute; or (ii) by a majority vote of the Board of Directors, or by
unanimous written consent of the board, except as such alteration, amendment
or repeal by any vote or action of the board is otherwise expressly
prohibited by statute.
ARTICLE X
Emergency By-Laws
Section 10.1. Emergency By-Laws. The Emergency By-Laws shall be
operative during any emergency in the conduct of the business of the
Corporation resulting from an attack on the United States or on a locality in
which the Corporation conducts its business or customarily holds meetings of
its Board of Directors or its stockholders, or during any nuclear or atomic
disaster, or during the existence of any catastrophe, or similar emergency
condition, as a result of which a quorum of the Board of Directors or a
standing committee thereof cannot readily be convened for action,
notwithstanding any provision to the contrary in the preceding By-Laws, in
the Certificate of Incorporation, or in the statute. To the extent not
inconsistent with the provisions of this Section 10.1, the By-Laws of the
Corporation shall remain in effect during any emergency, and upon its
termination, the Emergency By-Laws shall cease to be operative. Any
amendments to these Emergency By-Laws may make any further or different
provision that may be practical and necessary for the circumstance of the
emergency.
During any such emergency: (A) a meeting of the Board of Directors
or a committee thereof may be called by any officer or director of the
Corporation. Notice of the time and place of the meeting or conference call
shall be given by the person calling the meeting to such of the directors as
it may be feasible to reach by any means of communication. Such notice shall
be given at such time in advance of the meeting as circumstances permit in
the judgment of the person calling the meeting; (B) the director or
directors in attendance at the meeting shall constitute a quorum; (C) the
officers or other persons designated on a list approved by the Board of
Directors before the emergency, all in such order of priority and subject to
such conditions and for such period of time (not longer than reasonably
necessary after the termination of the emergency) as may be provided in the
resolution approving the list, shall, to the extent required to provide a
quorum at any meeting of the Board of Directors, be deemed the directors for
such meeting; (D) the Board of Directors, either before or during any such
emergency, may provide, and from time to time modify, lines of succession in
the event that during such emergency any or all officers or agents of the
Corporation shall for any reason be rendered incapable of discharging their
duties; (E) the Board of Directors, either before or during any such
emergency, may, effective in the emergency, change the head office or
designate several alternative head offices or regional offices, or authorize
the officers so to do; and (F) to the extent required to constitute a quorum
at any meeting of the Board of Directors during such an emergency, the
officers of the Corporation who are present shall be deemed, in order of rank
and within the same rank in order of seniority, the directors for such
meeting.
No officer, director or employee acting in accordance with any
provision of these Emergency By-Laws shall be liable except for willful
misconduct.
These Emergency By-Laws shall be subject to alteration, amendment
or repeal by the further actions of the Board of Directors or stockholders of
the Corporation.
<PAGE>
EXHIBIT A-3
File No. 70-8933
FORM OF COMMON STOCK CERTIFICATE
OF CINERGY SOLUTIONS, INC.
Incorporated Under The Laws Of The State Of Delaware
Number Shares
Cinergy Solutions, Inc.
This Certifies that _____________ is the owner of __________ fully
paid and non-assessable shares of the capital stock of Cinergy Solutions,
Inc., transferable only on the books of said Corporation by the holder
hereof in person or by Attorney upon surrender of this Certificate properly
endorsed.
In Witness Whereof, said Corporation has caused this Certificate to be
signed by its duly authorized officers this ______ day of 199__.
___________ ____________
President Secretary
[Reverse Side of Certificate]
For Value Received, _________ hereby sell, assign and transfer unto
_________ Shares represented by the within Certificate, and do hereby
irrevocably constitute and appoint ________ Attorney to transfer the said
Shares on the books of the within named Corporation, with full power of
substitution in the premises.
Dated: ________, 199__
In presence of _________
<PAGE>
Exhibit B
File No. 70-8933
Appendix A to Nonutility Service Agreement
DESCRIPTION OF SERVICES
AND DETERMINATION OF CHARGES FOR SERVICES
I. The Service Company will maintain an accounting system for
accumulating all costs on an activity, project, program, work order or
other appropriate basis. To the extent practicable, time records of hours
worked by Service Company employees will be kept by activity, project,
program or work order. Charges for salaries will be determined from such
time records and will be computed on the basis of employees' effective
hourly rates, including the cost of fringe benefits and payroll taxes.
Records of employee-related expenses and other indirect costs will be
maintained for each functional group (a "Function") within the Service
Company. Where identifiable to a particular activity, project, program or
work order, such indirect costs will be directly assigned to such activity,
project, program or work order. Where not identifiable to a particular
activity, project, program or work order, such indirect costs within a
Function will be allocated in relationship to the directly assigned costs
of the Function. For purposes of this Appendix A, any costs not directly
assigned by the Service Company will be allocated monthly.
II. Service Company costs accumulated for each activity, project, program
or work order will be directly assigned, distributed or allocated to the
Client Companies or other Functions within the Service Company as follows:
1. Costs accumulated in an activity, project, program or work order
for services specifically performed for a single Client Company or Function
will be directly assigned and charged to such Client Company or Function.
2. Costs accumulated in an activity, project, program or work order
for services specifically performed for two or more Client Companies or
Functions will be distributed among and charged to such Client Companies or
Functions. The appropriate method of distribution will be determined by
the Service Company on a case-by-case basis consistent with the nature of
the work performed. The distribution method will be provided to each such
affected Client Company or Function.
3. Costs accumulated in an activity, project, program or work order
for services of a general nature which are applicable to all Client
Companies or Functions or to a class or classes of Client Companies or
Functions will be allocated among and charged to such Client Companies or
Functions by application of one or more of the allocation ratios enumerated
in Section III.
III. Costs accumulated in an activity, project, program or work order for
services of a general nature which are applicable to all Client Companies
or Functions or to a class or classes of Client Companies or Functions will
be allocated among and charged to such Client Companies or Functions by
application of one or more of the following allocation ratios:
1. Revenues: A ratio based on total revenues for the immediately
preceding 12 calendar months, the numerator of which is for a Client
Company or Service Company Function and the denominator of which is for all
Client Companies and/or the Service Company. This ratio will be determined
annually or at such time as may be required due to a significant change.
2. Employees. A ratio based on the total number of employees at the
end of each month for the immediately preceding 12 calendar months, the
numerator of which is for a Client Company or Service Company Function and
the denominator of which is for all Client Companies and/or the Service
Company. This ratio will be determined annually or at such time as may be
required due to a significant change.
3. Construction Expenditures. A ratio based on total construction
expenditures for the immediately preceding 12 calendar months, the
numerator of which is for a Client Company and the denominator of which is
for all Client Companies. This ratio will be determined annually or at
such time as may be required due to a significant change.
4. CPU Seconds. A ratio based on the total number of central
processing unit seconds expended to execute mainframe computer software
applications for the immediately preceding 12 calendar months, the
numerator of which is for a Client Company or Service Company Function and
the denominator of which is for all Client Companies and/or the Service
Company. This ratio will be determined annually or at such time as may be
required due to a significant change.
IV. A general description of each Function's activities is set forth
below.
1. INFORMATION SYSTEMS
Provides communications and electronic data processing services.
Examples of activities include development and support of mainframe
computer software applications; procurement and support of personal
computers and related network and software applications; operation of data
center; and installation and operation of communications systems.
2. METERS AND TRANSPORTATION
Procures and maintains meters, vehicles and similar equipment for Client
Companies. Assists Client Companies in rendering purchasing, construction,
installation, inspection, maintenance, repair and related services in
respect of customer-owned meters, vehicle fleets and similar equipment.
3. HUMAN RESOURCES
Establishes and administers policies and supervises compliance with
legal requirements in areas of employment, compensation, benefits and
employee health and safety. Processes payroll and employee benefit
payments. Supervises contract negotiations and relations with labor
unions.
4. FACILITIES
Operates and maintains office and service buildings. Provides security
and housekeeping services for such buildings and procures office furniture
and equipment.
5. ACCOUNTING
Maintains books and records of Cinergy Corp. and its affiliates,
prepares financial and statistical reports, processes payments to vendors,
prepares tax filings and supervises compliance with tax and other similar
laws and regulations.
6. PUBLIC AFFAIRS
Prepares and disseminates information to employees, customers,
government officials, communities and media. Provides graphics,
reproduction lithography, photography and video services.
7. LEGAL
Renders services relating to labor and employment law, litigation,
contracts, rates and regulatory affairs, environmental matters, financing,
financial reporting, real estate and other legal matters.
8. FINANCE
Renders services to Client Companies with respect to investments,
financing, cash management, risk management, claims, fire prevention, etc.
Prepares reports to SEC, budgets, financial forecasts, economic analyses
and other similar finance-related documents. Assists Client Companies in
rendering financial-related services to customers, such as development and
implementation of "shared savings" arrangements, and in providing financing
options to customers (loans, leases, etc.) principally in connection with
sales of Client Company goods and services.
9. INTERNAL AUDIT
Reviews internal controls and procedures to ensure that assets are
safeguarded and that transactions are properly authorized and recorded.
10. INVESTOR RELATIONS
Provides communications to investors and financial community, performs
transfer agent and shareholder record-keeping functions, administers stock
plans and performs stock-related regulatory reporting.
11. STRATEGIC PLANNING
Assists in development of business plans; monitoring of trends;
gathering and evaluation of information with respect to competitors and
customers; evaluation of business opportunities; related strategic matters.
12. EXECUTIVE
Provides general administrative and executive management services.
13. ENERGY-RELATED FACILITY MAINTENANCE
Assists Client Companies in rendering maintenance and related
consulting services in respect of customer-owned utility assets
(generation, transmission/transportation and distribution facilities) and
other energy-related facilities and equipment, such as cogeneration
facilities, fuel systems, chilled/hot water systems, fiber
optic/telecommunications facilities, outdoor and street lighting systems,
etc. To the extent Client Companies themselves own any such facilities and
equipment, such maintenance services may also be provided to any such
Client Company.
14. ENGINEERING AND CONSTRUCTION
Assists Client Companies in rendering engineering and construction and
related consulting services in respect of customer-owned utility assets
(generation, transmission/transportation and distribution facilities) and
other energy-related facilities and equipment, such as cogeneration
facilities, fuel systems, chilled/hot water systems, fiber
optic/telecommunications facilities, outdoor and street lighting systems,
etc. To the extent Client Companies themselves own any such facilities and
equipment, such engineering and construction services may also be provided
to any such Client Company.
15. MARKETING AND CUSTOMER RELATIONS
Assists Client Companies in designing, implementing and promoting
products and services to potential customers and in administering business
relationships with existing customers. Activities include assisting Client
Companies in connection with (1) advertising, (2) making initial contacts
with and designing specific proposals for potential customers; (3)
administering business relationships with customers including bill
processing and payment collection; and (4) operation of telephone call
centers with respect to foregoing matters.
16. MATERIALS MANAGEMENT
Provides services in connection with procurement of materials and
contract services and management of materials and supply inventories.
17. FUELS
Assists Client Companies in procuring fuel supplies (coal, steam, fuel
oil, gas, etc.) for customers and, where applicable, Client Companies
themselves.
18. ENVIRONMENTAL AFFAIRS
Assists Client Companies in providing energy-related environmental
services (compliance, studies, testing, licensing, monitoring, employee
training, etc.) to customers. Where applicable, such services also
provided to Client Companies themselves.
19. RATES
Assists Client Companies in connection with customer rate negotiations
and risk analysis with respect to utility service.
20. RIGHTS OF WAY
Assists in purchase/sale, surveying and recording of interests in real
estate, both for Client Companies themselves and customers thereof.
21. ENERGY-RELATED SYSTEM OPERATIONS
Assists Client Companies in rendering operational and related
consulting services in respect of customer-owned utility assets
(generation, transmission/transportation and distribution facilities) and
other energy-related facilities and equipment, such as cogeneration
facilities, fuel systems, chilled/hot water systems, fiber
optic/telecommunications facilities, outdoor and street lighting systems,
etc. To the extent Client Companies themselves own any such facilities and
equipment, such operational services may also be provided to any such
Client Company. This function also includes assistance with respect to
matters relating to disposal of associated by-products.
<PAGE>
EXHIBIT F-1
December 11, 1996
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Cinergy Corp., et al./ File No. 70-8933
Dear Sirs:
In my capacity as Associate General Counsel of Cinergy Corp.
("Cinergy"), a Delaware corporation and registered holding company under
the Public Utility Holding Company Act of 1935, as amended, I am furnishing
this opinion as an exhibit to the amended Application-Declaration in the
above docket ("Application"), in which Cinergy, Cinergy Investments, Inc.,
Cinergy's nonutility holding company subsidiary ("Investments"), and
Cinergy Services, Inc., Cinergy's service company subsidiary ("Services"),
request authority to form, finance and provide certain support services to
Cinergy Solutions, Inc. ("Solutions"), a company to be formed under
Delaware law as a wholly-owned subsidiary of Investments to engage directly
or indirectly through subsidiaries in the business of marketing to
nonassociates a wide variety of energy-related products and services to
enable customers to reduce energy costs, improve energy efficiency and
increase productivity, all as more fully described in the Application.
In connection with this opinion, I have reviewed the Application and
such other documents, records and other materials as I deemed necessary or
appropriate in order to render this opinion.
I am of the opinion that each of Cinergy, Investments and Services is
and, upon the incorporation thereof, Solutions will be, a validly organized
and duly existing corporation under the laws of the State of Delaware and
that, upon the issuance of the Commission's order herein and the receipt of
any requisite corporate or other approvals and authorizations not
heretofore received, and in the event that the proposed transactions are
consummated in accordance therewith and in accordance with the Application
(including as it may further be amended):
all state laws applicable to the proposed transactions will have
been complied with;
(a) The shares of common stock to be issued by Solutions will be
validly issued, fully paid and nonassessable shares, and
Investments, as the holder thereof, will be entitled to the
rights and privileges appertaining thereto set forth in
Solutions' certificate of incorporation and by-laws;
(b) Investments will legally acquire the shares of common stock of
Solutions referred to in the foregoing paragraph;
(c) any promissory note issued by Solutions will be a valid and
binding obligation of Solutions in accordance with the terms
thereof, and any guarantee issued by Cinergy or Investments in
respect thereof will be a valid and binding obligation of
Cinergy or Investments, as the case may be; and
(d) the consummation of the foregoing transactions and of the
other transactions described in the Application will not
violate the legal rights of the holders of any securities
issued by Cinergy or any associate company thereof.
I am a member of the bar of the State of Ohio and do not hold myself
out as an expert on the laws of any other state. As to matters involving
the laws of the State of Delaware, I have made or caused to be made a
review of such laws to the extent relevant to this opinion. I hereby
consent to the use of this opinion as an exhibit to the Application.
Very truly yours,
/s/ Jerome A. Vennemann
Jerome A. Vennemann
Associate General Counsel
