As filed with the Securities and Exchange Commission on April 8, 1999
Registration No. 333-_________
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
Form S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-----------------------
Cinergy Corp.
(Exact name of registrant as specified in its charter)
Delaware 4931 31-1385023
(State or other (Primary Standard (I.R.S. Employer
jurisdiction of Industrial Classification Identification No.)
incorporation Code Number)
or organization)
139 East Fourth Street
Cincinnati, Ohio 45202
(513) 421-9500
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
Bradley C. Arnett, Esq.
Senior Counsel
Cinergy Corp.
221 East Fourth Street
Suite 2500
P.O. Box 960
Cincinnati, OH 45201-0960
(513) 421-9500
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Copies to:
Charles S. Whitman, III, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
(212) 450-4000
-----------------------
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: [ ]
<TABLE>
CALCULATION OF REGISTRATION FEE
==========================================================================================================
Title of Each Class Proposed Maximum
of Securities to be Amount to be Proposed Maximum Aggregate Offering Amount of
Registered Registered Offering Price(1) Price(1) Registration Fee(2)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6.53% Debentures due 2008... $200,000,000 100% $200,000,000 $55,600
==========================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee.
(2) Calculated pursuant to Rule 457.
-----------------------
The registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
===============================================================================
<PAGE>
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, dated , 1999
Prospectus
, 1999
Cinergy Corp.
Offer to Exchange
$200,000,000 6.53% Debentures due 2008
which have been registered under the
Securities Act of 1933, as amended
for
All Outstanding 6.53% Debentures due 2008
-----------------------
The Exchange Offer will expire at 5:00 P.M., New York City time, on ,
1999, unless extended.
-----------------------
Terms of the Exchange Offer:
o We will exchange all outstanding debentures that are validly tendered
and not withdrawn prior to the expiration of the Exchange Offer.
o You may withdraw tenders of outstanding debentures at any time prior
to the expiration of the Exchange Offer.
o The exchange of debentures will not be a taxable exchange for United
States federal income tax purposes.
o We will not receive any proceeds from the Exchange Offer.
o The terms of the debentures to be issued are substantially identical
to the outstanding debentures, except for certain transfer
restrictions, registration rights and related additional interest
provisions relating to the outstanding debentures.
-----------------------
The Securities and Exchange Commission and state securities regulators have not
approved or disapproved these securities, or determined if this prospectus is
truthful or complete. Any representation to the contrary is a criminal offense.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the Securities and Exchange Commission (the "Commission"). You
may read and copy any document that we file at the Public Reference Room of the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Information on
the operation of the Public Reference Room may be obtained by calling the
Commission at 1-800-SEC-0330. You may also read our filings at the regional
offices of the Commission located at Citicorp, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661 and 7 World Trade Center, New York, New York
10048 or over the Internet at the Commission's home page at http://www.sec.gov.
This prospectus constitutes part of a registration statement on Form S-4
filed with the Commission under the Securities Act of 1933 (the "Securities
Act"). It omits some of the information contained in the registration
statement, and reference is made to the registration statement for further
information with respect to Cinergy Corp. and the New Debentures being offered.
Any statement contained in this prospectus concerning the provisions of any
document filed as an exhibit to the registration statement or otherwise filed
with the Commission is not necessarily complete, and in each instance reference
is made to the copy of the document filed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
Our Annual Report on Form 10-K for the year ended December 31, 1998, filed
pursuant to the Securities Exchange Act of 1934 (the "Exchange Act"), is
incorporated into this prospectus by reference.
We also incorporate by reference any filings made with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent
to the date of this prospectus and prior to the termination of this exchange
offer. You may request a copy of these filings at no cost, by writing or
telephoning the office of Mr. William L. Sheafer, Vice President and Treasurer,
Cinergy Corp., 139 East Fourth Street, Cincinnati, Ohio 45202, telephone number
(513) 421-9500.
2
<PAGE>
SUMMARY
This summary may not contain all the information that may be important to
you. You should read the entire prospectus, including the financial data and
related notes, before making an investment decision. Unless the context
indicates otherwise, the words "Cinergy", "the Company", "we", "our", "ours",
and "us" refer to Cinergy Corp. and its subsidiaries and joint ventures
(including unconsolidated entities).
The Company
We are a registered holding company under the Public Utility Holding
Company Act of 1935 and the parent company of:
o The Cincinnati Gas & Electric Company ("CG&E");
o PSI Energy, Inc. ("PSI");
o Cinergy Services, Inc. ("Services");
o Cinergy Global Resources, Inc. ("Global Resources"); and
o Cinergy Investments, Inc. ("Investments").
CG&E is an operating utility primarily engaged in providing electric and
gas service in the southwestern portion of Ohio and, through its principal
subsidiary, The Union Light, Heat and Power Company, in neighboring areas in
Kentucky. PSI is an operating utility primarily engaged in providing electric
service in north central, central and southern Indiana. Services provides
management, financial, administrative, engineering, legal and other services to
Cinergy and its subsidiaries. We conduct our international businesses through
Global Resources and its subsidiaries, and our non-regulated business through
Investments and its subsidiaries.
Cinergy is a Delaware corporation that was created in October 1994 through
the merger of CG&E and PSI Resources, Inc. Our principal executive offices are
located at 139 East Fourth Street, Cincinnati, Ohio 45202; our telephone number
is (513) 421-9500.
3
<PAGE>
The Exchange Offer
Securities Offered................ We are offering up to $200,000,000
aggregate principal amount of 6.53%
Debentures due 2008, which have been
registered under the Securities Act ("New
Debentures").
The Exchange Offer................ We are offering to issue the New
Debentures in exchange for a like
principal amount of outstanding 6.53%
Debentures due 2008, issued by Cinergy on
December 16, 1998 ("Old Debentures"). We
are offering to issue the New Debentures
to satisfy our obligations contained in
the registration rights agreement entered
into when the Old Debentures were sold in
transactions pursuant to Rule 144A under
the Securities Act and therefore not
registered with the Commission. For
procedures for tendering, see "The
Exchange Offer."
Tenders, Expiration Date,
Withdrawal........................ The Exchange Offer will expire at 5:00
p.m. New York City time on , 1999, unless
it is extended. If you decide to exchange
your Old Debentures for New Debentures,
you must acknowledge that you are not
engaging in, and do not intend to engage
in, a distribution of the New Debentures.
If you decide to tender your Old
Debentures pursuant to the Exchange Offer,
you may withdraw them at any time prior to
, 1999. If we decide for any reason not to
accept any Old Debentures for exchange,
your Old Debentures will be returned to
you without expense promptly after the
Exchange Offer expires.
Federal Income Tax Consequences... Your exchange of Old Debentures for New
Debentures pursuant to the Exchange Offer
will not result in any income, gain or
loss to you for Federal income tax
purposes. See "Certain Federal Income Tax
Considerations."
Use of Proceeds................... We will not receive any proceeds from the
issuance of the New Debentures pursuant to
the Exchange Offer.
Exchange Agent.................. Fifth Third Bank is the exchange agent for
the Exchange Offer.
4
<PAGE>
Consequences of Exchanging Debentures Pursuant to the Exchange Offer
Based on interpretations by the Commission's staff in no-action letters
issued to third parties, we believe that New Debentures issued in exchange for
Old Debentures pursuant to the Exchange Offer may be offered for resale, resold
or otherwise transferred by you without registering the New Debentures under
the Securities Act or delivering a prospectus:
o so long as you are not one of our "affiliates", as defined in Rule 405
of the Securities Act;
o so long as you acquire the New Debentures in the ordinary course of
your business; and
o unless you are a broker dealer, so long as you do not have any
arrangement with any person to participate in the distribution of the
New Debentures.
Unless you are a broker-dealer, you must acknowledge that:
o you are not engaged in, and do not intend to engage in, a distribution
of the New Debentures; and
o you have no arrangement or understanding to participate in a
distribution of the New Debentures.
If you are an affiliate of Cinergy, or you are engaged in, intend to
engage in or have any arrangement or understanding with respect to, the
distribution of New Debentures acquired in the Exchange Offer, you should not
rely on our interpretations of the position of the Commission's staff and must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction.
If you are a broker-dealer and receive New Debentures for your own account
pursuant to the Exchange Offer:
o you must acknowledge that you will deliver a prospectus in connection
with any resale of such New Debentures; and
o you may use this prospectus, as it may be amended or supplemented
from time to time, in connection with the resale of New Debentures
received in exchange for Old Debentures acquired by you as a result
of market-making or other trading activities.
For a period of 90 days after the expiration of the Exchange Offer, we
will make this prospectus available to any broker-dealer for use in connection
with any such resale.
You may offer or sell the New Debentures in certain jurisdictions only if
they have been registered or qualified for sale there, or an exemption from
registration or qualification is available and is complied with. Subject to the
limitations specified in the registration rights agreement, we will register or
qualify the New Debentures for offer or sale under the securities laws of any
jurisdictions that you reasonably request in writing. Unless you request that
the sale of the New Debentures be registered or qualified in a jurisdiction, we
currently do not intend to register or qualify the sale of the New Debentures
in any jurisdiction. If you do not comply with the requirement described in
this paragraph, you could incur liability under the Securities Act, and we will
not indemnify you in such circumstances.
5
<PAGE>
The New Debentures
The terms of the New Debentures and the Old Debentures are identical in
all material respects, except that the New Debentures have been registered
under the Securities Act and certain transfer restrictions, registration rights
and related additional interest provisions applicable to the Old Debentures do
not apply to the New Debentures.
Issuer............................ Cinergy will issue the New Debentures
pursuant to the Indenture dated as of
December 16, 1998 between the Company and
Fifth Third Bank, as trustee.
New Debentures.................... $200,000,000 aggregate principal amount of
6.53% Debentures due 2008.
Ranking........................... Cinergy is a holding company. As a
consequence, the New Debentures offered
hereby will be structurally subordinate to
all secured and unsecured debt of our
operating subsidiaries.
Maturity Date..................... December 16, 2008.
Interest Payment Dates............ June 16 and December 16, commencing June
16, 1999.
Sinking Fund...................... None.
Record Date....................... The Business Day immediately preceding
each Interest Payment Date.
Optional Redemption............... We have the right to redeem the New
Debentures, in whole or in part, from time
to time and at any time, upon not less
than 30 days' notice to the holders of the
New Debentures, at a redemption price
equal to the greater of:
(A) 100% of the principal amount of the
New Debentures to be redeemed; and
(B) the sum of the present values of the
remaining scheduled payments of
principal and interest on the New
Debentures to be redeemed (exclusive
of interest accrued to the date of
redemption) discounted to the date of
redemption on a semi-annual basis
(assuming a 360-day year consisting
of twelve 30-day months) at the
treasury rate plus 25 basis points,
plus accrued and unpaid interest on
the principal amount being redeemed
to the date of redemption.
Trustee............................ Fifth Third Bank.
Events of Default.................. Each of the following will constitute an
event of default under the Indenture with
respect to the New Debentures:
6
<PAGE>
o failure to pay principal of or any
premium on any New Debenture when
due;
o failure to pay any interest on any
New Debenture when due and
continuance of such default for a
period of 30 days;
o failure to perform any other covenant
in the Indenture, continued for 90
days after written notice has been
given by the Trustee or the holders
of at least 35% in principal amount
of the New Debentures, as provided in
the Indenture; and
o certain events of bankruptcy,
insolvency or reorganization.
See "Description of New Debentures--Events
of Default."
Use of Proceeds.................... We will not receive any proceeds from the
issuance of the New Debentures.
7
<PAGE>
Selected Consolidated Income Information
The following tables show selected financial information of Cinergy. This
information is derived from our historical results. See "Available
Information". All amounts are in thousands except per share amounts and the
ratio of earnings to fixed charges.
<TABLE>
Year Ended December 31,
-------------------------------------------
1998(1) 1997 1996
------------- ---------- ----------
(Thousands, except per share amounts)
<S> <C> <C> <C>
Operating Revenues........................................... $5,876,294 $4,387,101 $3,276,187
Operating Income............................................. $ 566,429 765,668 763,538
Preferred Dividend Requirement............................... $ 6,517 12,569 23,180
Net Income Before Extraordinary Item......................... $ 260,968 362,638 334,797
Extraordinary Item--Equity Share of Windfall
Profits Tax (Less Applicable Income Taxes of $0).......... -- (109,400)(2) --
Net Income................................................... $ 260,968 $ 253,238 $ 334,797
Earnings Per Common Share
Net Income Before Extraordinary Item...................... $ 1.65 $ 2.30 $ 2.00
Net Income................................................ $ 1.65 $ 1.61 $ 2.00
Earnings Per Common Share--Assuming Dilution
Net Income Before Extraordinary Item...................... $ 1.65 $ 2.28 $ 1.99
Net Income................................................ $ 1.65 $ 1.59 $ 1.99
</TABLE>
- ---------
Notes:
(1) The period reflects charges against income relating to (a) a one-time
charge of $80 million (before taxes) reflecting the implementation of a
1989 settlement of a dispute with the Wabash Valley Power Association,
Inc. that resulted from the cancellation of the Marble Hill nuclear power
station in 1984 and (b) the recording of $135 million (before taxes) of
unrealized losses related to energy marketing and trading operations. For
additional information, reference is made to our Annual Report on Form
10-K for the year ended December 31, 1998, which is incorporated herein by
reference.
(2) Represents a one-time charge for the windfall profits tax levied against
our United Kingdom subsidiary, Midlands Electricity plc. For additional
information, reference is made to our Annual Report on Form 10-K for the
year ended December 31, 1998, which is incorporated herein by reference.
8
<PAGE>
Consolidated Capitalization
<TABLE>
Outstanding December 31, 1998 Outstanding December 31, 1997
----------------------------- -----------------------------
% of % of
Amount Capitalization Amount Capitalization
------------ -------------- ------------ --------------
(Thousands) (Thousands)
<S> <C> <C> <C> <C>
Long-term debt..........................................$2,604,467 49.7% $2,150,902 44.2%
Cumulative preferred stock
Not subject to mandatory redemption.................. 92,640 1.8 177,989 3.6
Common Stock equity..................................... 2,541,231 48.5 2,539,200 52.2
---------- ----- ---------- -----
Total Capitalization..............................$5,238,338 100.0% $4,868,091 100.0%
========== ===== ========== =====
</TABLE>
Ratio of Earnings to Fixed Charges
Set forth below is the ratio of earnings to fixed charges for each year of
the five year period ended December 31, 1998.
Year Ended December 31,
--------------------------------------------
1998 1997 1996 1995 1994
---- ---- ---- ---- ----
2.47 3.33 3.41 3.42 2.47
For the purpose of computing the ratio of earnings to fixed charges,
earnings consist of pretax income from continuing operations plus fixed
charges. Fixed charges consist of:
o interest expense;
o amortized premiums, discounts and capitalized expenses related to
indebtedness; and
o an estimate of the interest within rental expense.
9
<PAGE>
USE OF PROCEEDS
We will not receive any cash proceeds from the issuance of the New
Debentures offered under this prospectus. New Debentures will be exchanged for
Old Debentures as described in this prospectus on our receipt of Old Debentures
in like principal amount. The Old Debentures surrendered in exchange for the
New Debentures will be retired and canceled. Accordingly, the issuance of the
New Debentures will not result in any change in our indebtedness.
The net proceeds to us from the sale of the Old Debentures was
approximately $198 million (after deduction of underwriting discounts and
commissions and other expenses of the offering). Such net proceeds were used to
repay a portion of outstanding short-term indebtedness incurred primarily to
acquire our investment in Midlands Electricity plc, a United Kingdom regional
electric company.
10
<PAGE>
DESCRIPTION OF NEW DEBENTURES
General
The Old Debentures were, and the New Debentures will be, issued under an
indenture dated as of December 16, 1998 (the "Indenture) between Cinergy and
Fifth Third Bank, as trustee (the "Trustee"). Because this is a summary it does
not contain all the information that may be important to you. You should read
the entire Indenture, including the definitions therein of certain terms used
below. We have filed a copy of the Indenture as an exhibit to the registration
statement which includes this prospectus.
The terms of the New Debentures are identical in all material respects to
the terms of the Old Debentures, except for the removal of certain transfer
restrictions, registration rights and related additional interest provisions
applicable to the Old Debentures.
The New Debentures will be general unsecured obligations of Cinergy and
will rank pari passu with all of our other unsecured and unsubordinated
obligations. The Indenture permits us to incur additional indebtedness in the
future.
Structural Subordination
Cinergy is a holding company. As a consequence, the New Debentures will be
structurally subordinate to all secured and unsecured debt of our operating
subsidiaries.
Principal Amount, Interest and Maturity
o We will issue New Debentures with an aggregate principal amount of up
to $200,000,000.
o The New Debentures will mature on December 16, 2008, and will bear
interest at a rate per annum of 6.53%, computed on the basis of a
360-day year of twelve 30-day months.
o We will pay interest on the New Debentures semi-annually on June 16
and December 16 in each year, beginning June 16, 1999, to registered
holders of record on the Business Day immediately preceding such
Interest Payment Date. A "Business Day" means any day other than a
day on which banking institutions in the City of New York or the City
of Cincinnati are authorized or obligated to close.
o Principal of, premium, if any, and interest on the New Debentures
will be payable and the New Debentures will be transferable at the
corporate trust office of the Trustee in the City of Cincinnati,
located at 38 Fountain Square Plaza, Cincinnati, Ohio 45263, provided
that payment of interest may be made at our option by checks mailed
to the registered holders of the New Debentures.
o We will issue the New Debentures in denominations of $100,000 and any
integral multiple of $1,000 above that amount.
Optional Redemption
The New Debentures will be redeemable, in whole or from time to time in
part, at our option on any date (each, a "Redemption Date") at a redemption
price equal to the greater of:
(A) 100% of the principal amount of the New Debentures to be redeemed; and
11
<PAGE>
(B) the sum of the present values of the remaining scheduled payments of
principal and interest thereon (exclusive of interest accrued to the Redemption
Date) discounted to the Redemption Date on a semiannual basis (assuming a 360-
day year consisting of twelve 30-day months) at the Treasury Rate plus 25 basis
points,
plus, in either case, accrued and unpaid interest on the principal amount
being redeemed to such Redemption Date.
Notwithstanding the paragraph above, installments of interest on the New
Debentures that are due and payable on an Interest Payment Date falling on or
prior to the relevant Redemption Date will be payable to the Holders of such
New Debentures registered as such at the close of business on the relevant
Regular Record Date according to their terms and the provisions of the
Indenture.
"Treasury Rate" means, with respect to any Redemption Date for the New
Debentures:
o the yield, under the heading that represents the average for the
immediately preceding week, appearing in the most recently published
statistical release designated "H.15(519)" or any successor
publication that is published weekly by the Board of Governors of the
Federal Reserve System and that establishes yields on actively traded
United States Treasury securities adjusted to constant maturity under
the caption "Treasury Constant Maturities" for the maturity
corresponding to the Comparable Treasury Issue (if no maturity is
within three months before or after the Final Maturity Date, yields
for the two published maturities most closely corresponding to the
Comparable Treasury Issue shall be determined and the Treasury Rate
shall be interpolated or extrapolated from such yields on a
straight-line basis, rounding to the nearest month); or
o if such release (or any successor release) is not published during
the week preceding the calculation date or does not contain such
yields, the rate per annum equal to the semiannual equivalent yield
to maturity of the Comparable Treasury Issue, calculated using a
price for the Comparable Treasury Issue (expressed as a percentage of
its principal amount) equal to the Comparable Treasury Price for such
Redemption Date.
The Treasury Rate shall be calculated on the third Business Day preceding
the Redemption Date. As used in the immediately preceding sentence and in the
definition of "Reference Treasury Dealer Quotations" below, the term "Business
Day" means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in The City of New York are authorized or
obligated by law or executive order to close.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Independent Investment Banker as having a maturity comparable
to the remaining term of the New Debentures to be redeemed that would be
utilized, at the time of election, and in accordance with customary financial
practice, in pricing new issues of corporate securities of comparable maturity
to the remaining term of the New Debentures.
"Independent Investment Banker" means an independent investment banking
institution of national standing appointed by the Trustee after consultation
with us.
"Comparable Treasury Price" means, with respect to any Redemption Date for
the New Debentures:
o the average of four Reference Treasury Dealer Quotations for such
Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations; or
o if the Trustee obtains fewer than four Reference Treasury Dealer
Quotations, the average of all such quotations.
"Reference Treasury Dealer" means a primary U.S. Government securities
dealer in New York City (a "Primary Treasury Dealer"). If such Primary Treasury
Dealer should cease to be a Treasury Dealer, the Trustee in consultation with
us shall substitute another Primary Treasury Dealer.
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<PAGE>
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any Redemption Date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m. New York
City time, on the third Business Day preceding such Redemption Date.
"Final Maturity Date" means December 16, 2008.
We will mail notice of any redemption at least 30 days but not more than
60 days before the relevant Redemption Date to each holder of New Debentures to
be redeemed. If less than all the New Debentures are to be redeemed at our
option, the Trustee will select, in such manner as it deems fair and
appropriate, the New Debentures to be redeemed.
Unless we default in payment of the redemption price, on and after the
Redemption Date interest will cease to accrue on the New Debentures or portions
thereof called for redemption.
Mandatory Redemption
We are not required to make mandatory redemption of, or sinking fund
payments with respect to, the New Debentures.
Consolidation, Merger, and Sale of Assets
The Indenture does not contain any covenant that restricts our ability to
merge or consolidate with or into any other corporation, sell or convey all or
substantially all of our assets or property to any person, firm or corporation
or otherwise engage in restructuring transactions, provided that the successor
entity assumes due and punctual payment of principal or premium, if any, and
interest on the New Debentures.
Limitation on Liens
Nothing contained in the Indenture in any way restricts or prevents us or
any of our subsidiaries or joint ventures from incurring any indebtedness:
provided, that we may not issue, assume or guarantee any Debt (as defined
below) secured by a Lien (as defined below) upon any of our property or assets
(other than cash) without effectively providing that the outstanding New
Debentures (together with any other indebtedness or obligation then existing or
thereafter created ranking equally with the New Debentures) are secured equally
and ratably with (or prior to) such Debt so long as such Debt is so secured.
This restriction on Liens will not, however, apply to the following:
o Liens in existence on the date of original issuance of the New
Debentures;
o any Lien created or arising over any property which we acquire,
construct or create, but only if:
- such Lien secures only principal amounts (not exceeding the cost
of such acquisition, construction or creation) of Debt incurred
for the purposes of such acquisition, construction or creation,
together with any costs, expenses, interest and fees incurred in
relation thereto or a guarantee given in respect thereof;
- such Lien is created or arises on or before 90 days after the
completion of such acquisition, construction or creation; and
- such Lien is confined solely to the property so acquired,
constructed or created;
o any Lien to secure Debt incurred by us in connection with a
specifically identifiable project where the Lien relates and is
confined to a property or properties (including, without limitation,
shares or other rights of ownership in the entity(ies) which own such
property or project) involved in such project and acquired by
13
<PAGE>
us after the date of original issuance of the New Debentures and the
recourse of the creditors in respect of such Debt is limited to any
or all of such project and property (including shares or other rights
of ownership);
o any Lien securing amounts not more than 90 days overdue or otherwise
being contested in good faith;
o rights of financial institutions to offset credit balances in
connection with the operation of cash management programs established
for our benefit or in connection with the issuance of letters of
credit for our benefit;
o any Lien securing Debt incurred by us in connection with the
financing of accounts receivable;
o any Lien incurred or deposits made in the ordinary course of
business, including, but not limited to:
- any mechanics', materialmen's, carriers', workmen's, vendors' or
other like Liens; and
- any Liens securing amounts in connection with workers'
compensation, unemployment insurance and other types of social
security;
o any Lien upon specific items of our inventory or other goods and
proceeds securing our obligations in respect of bankers' acceptances
issued or created for the account of such person to facilitate the
purchase, shipment or storage of such inventory or other goods;
o any Lien incurred or deposits made securing the performance of
tenders, bids, leases, trade contracts (other than for borrowed
money), statutory obligations, surety bonds, appeal bonds, government
contracts, performance bonds, return-of-money bonds and other
obligations of like nature incurred in the ordinary course of
business;
o any Lien constituted by a right of set off or right over a margin
call account or any form of cash or cash collateral or any similar
arrangement for obligations incurred in respect of the hedging or
management of risks under transactions involving any currency or
interest rate swap, cap or collar arrangements, forward exchange
transaction, option, warrant, forward rate agreement, futures
contract or other derivative instrument of any kind;
o any Lien arising out of title retention or like provisions in
connection with the purchase of goods and equipment in the ordinary
course of business;
o any Lien securing reimbursement obligations under letters of credit,
guarantees and other forms of credit enhancement given in connection
with the purchase of goods and equipment in the ordinary course of
business;
o Liens on any property or assets:
- acquired from a corporation which is merged with or into Cinergy
and is not created in anticipation of any such transaction
(unless such Lien was created to secure or provide for the
payment of any part of the purchase price of such corporation);
or
- existing at the time of acquisition of such property or assets
by us and which is not created in anticipation of such
acquisition (unless such Lien was created to secure or provide
for the payment of any part of the purchase price of such
property or assets);
o Liens required by any contract or statute in order to permit us to
perform any contract or subcontract made with or at the request of a
governmental entity or any department, agency or instrumentality
thereof, or to
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secure partial, progress, advance or any other payments by us to such
governmental unit pursuant to the provisions of any contract or
statute;
o any Lien securing:
- industrial revenue, development or similar bonds issued by or
for our benefit, provided that such industrial revenue,
development or similar bonds are nonrecourse to Cinergy; or
- taxes or assessments or other applicable governmental charges or
levies;
o any Lien which arises:
- pursuant to any order of attachment, distraint or similar legal
process arising in connection with court proceedings and any
Lien which secures the reimbursement obligation for any bond
obtained in connection with an appeal taken in any court
proceeding, so long as the execution or other enforcement of
such Lien arising pursuant to such legal process is effectively
stayed and the claims secured thereby are being contested in
good faith and, if appropriate, by appropriate legal
proceedings, or any Lien in favor of a plaintiff or defendant in
any action before a court or tribunal as security for costs or
expenses; or
- by operation of law or by order of a court or tribunal or any
lien which arises by an agreement of similar effect, including,
without limitation, judgement liens; or
o any extension, renewal or replacement (or successive extensions,
renewals or replacements), as a whole or in part, of any Liens
referred to in the above clauses, for amounts not exceeding the
principal amount of the Debt secured by the Lien so extended, renewed
or replaced, provided that such extension, renewal or replacement
Lien is limited to all or a part of the same property or assets that
were covered by the Lien extended, renewed or replaced (plus
improvements on such property or assets).
"Consolidated Net Tangible Assets" is defined in the Indenture as the
total of all assets (including revaluations thereof as a result of commercial
appraisals, price level restatement or otherwise) appearing, on our most recent
consolidated balance sheet as of the date of determination, net of applicable
reserves and deductions but excluding goodwill, trade names, trademarks,
patents, unamortized debt discount and all other like intangible assets (which
term shall not be construed to include such revaluations), less the aggregate
of our consolidated current liabilities appearing on such balance sheet.
"Debt" is defined in the Indenture as all of our obligations evidenced by
bonds, debentures, notes or similar evidences of indebtedness in each case for
money borrowed.
"Lien" is defined in the Indenture as any mortgage, lien, pledge, security
interest or other encumbrance; provided, however, that the term "Lien" shall
not mean any easements, rights-of-way, restrictions and other similar
encumbrances and encumbrances consisting of zoning restrictions, leases,
subleases, licenses, sublicenses, restrictions on the use of property or
defects in the title thereto.
Limitation on Sale and Lease-Back Transactions
The Indenture provides that, so long as any of the New Debentures remain
outstanding, we will not enter into any arrangement with any person providing
for the leasing by us of any assets which have been or are to be sold or
transferred by us to such person (a "Sale and Lease-Back Transaction") unless:
o such transaction involves a lease for a temporary period not to
exceed three years;
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o such transaction is with an affiliate of ours;
o we would be entitled to incur Debt secured by a Lien on the assets or
property involved in such transaction at least equal in amount to the
Attributable Debt with respect to such Sale and Lease-Back
Transaction, without equally and ratably securing the New Debentures,
as described under "--Limitation on Liens" above, other than as
described with respect to extensions, renewals and replacements of
any Liens;
o such transaction is entered into within 90 days after our initial
acquisition of the assets or property subject to such transaction; or
o within the 12 months preceding the sale or transfer or the 12 months
following the sale or transfer, regardless of when such sale or
transfer may have been made, we apply in the case of a sale or
transfer for cash, an amount equal to the net proceeds thereof and,
in the case of a sale or transfer otherwise than for cash, an amount
equal to the fair value of the assets so leased at the time of
entering into such arrangement (as determined by our Board of
Directors):
- to the retirement of Debt, incurred or assumed by us which by
its terms matures at, or is extendible or renewable at the
option of the obligor to, a date more than 12 months after the
date of incurring, assuming or guaranteeing such Debt; or
- to investment in any of our assets.
Notwithstanding the restrictions in the Indenture on Liens and Sale and
Lease-Back Transactions, we may, in addition to amounts permitted under such
restrictions, create Indebtedness (as defined in the Indenture) secured by
Liens, or enter into Sale and Lease-Back Transactions; provided that, after
giving effect thereto, the aggregate outstanding amount of all such
Indebtedness secured by Liens plus Attributable Debt resulting from such Sale
and Lease-Back Transactions does not exceed 10% of Consolidated Net Tangible
Assets.
"Attributable Debt" is defined in the Indenture as, with respect to any
particular Sale and Lease-Back Transaction, at the time of determination, the
present value (discounted at the rate of interest implicit in such transaction
determined in accordance with generally accepted accounting principles) of the
obligation of the lessee for net rental payments during the remaining term of
the lease included in such Sale and Lease-Back Transaction (including any
period for which such lease has been extended or may, at the option of the
lessor, be extended).
Events of Default
Each of the following will constitute an Event of Default under the
Indenture with respect to the New Debentures:
o failure to pay principal of or any premium on any New Debenture when
due;
o failure to pay any interest on the New Debentures when due and
continuance of such default for a period of 30 days;
o failure to perform any other covenant in the Indenture, continued for
90 days after written notice has been given by the Trustee or the
Holders of at least 35% in principal amount of the Outstanding New
Debentures as provided in the Indenture; and
o certain events of bankruptcy, insolvency or reorganization involving
Cinergy.
If an Event of Default (other than a bankruptcy, insolvency or
reorganization Event of Default) with respect to the New Debentures at the time
Outstanding occurs and is continuing, either the Trustee or the Holders of at
least 35% in aggregate principal amount of the Outstanding New Debentures by
notice as provided in the Indenture may declare the
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principal amount of the New Debentures to be due and payable immediately. If a
bankruptcy, insolvency or reorganization Event of Default with respect to the
New Debentures at the time Outstanding occurs, the principal amount of all the
New Debentures will automatically, and without any action by the Trustee or any
Holder, become immediately due and payable. After any such declaration of
acceleration, but before a judgment or decree based on acceleration, the
Holders of a majority in aggregate principal amount of the Outstanding New
Debentures may, under certain circumstances, rescind and annul such
acceleration if all Events of Default, other than the non-payment of
accelerated principal, have been cured or waived as provided in the Indenture.
For information as to waiver of defaults, see "Modification and Waiver."
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default occurs and is continuing, the Trustee will
be under no obligation to exercise any of its rights or powers under the
Indenture at the-request or direction of any of the Holders, unless such
Holders shall have offered to the Trustee reasonably satisfactory indemnity.
Subject to such provisions for the indemnification of the Trustee, the Holders
of a majority in principal amount of the Outstanding New Debentures will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the New Debentures.
No Holder of a New Debenture will have any right to institute any
proceeding with respect to the Indenture, or for the appointment of a receiver
or a trustee, or for any other remedy thereunder, unless:
o such Holder has previously given to the Trustee written notice of a
continuing Event of Default with respect to the New Debentures;
o the Holders of at least 35% in aggregate principal amount of the
Outstanding New Debentures have made written request, and such Holder
or Holders have offered reasonably satisfactory indemnity, to the
Trustee to institute such proceeding as trustee; and
o the Trustee has failed to institute such proceedings, and has not
received from the Holders of a majority in aggregate principal amount
of the Outstanding New Debentures a direction inconsistent with such
request, within 60 days after such notice, request and offer.
However, such limitations do not apply to a suit instituted by a Holder
of a New Debenture for the enforcement of payment of the principal of or any
premium or interest on such New Debenture on or after the applicable due date
specified in such New Debenture.
We are required to furnish to the Trustee annually a statement by certain
of our officers as to whether or not we are, to our knowledge, in default in
the performance or observance of any of the terms, provisions and conditions of
the Indenture and, if so, specifying all such known defaults.
Modification and Waiver
The Indenture may be modified and amended at any time or from time to time
without the consent of any Holders by supplemental indentures (in form
satisfactory to the Trustee) entered into by us (when authorized by a Board
Resolution) and the Trustee, for any of the following purposes:
o to evidence the succession of another entity to us and the assumption
by any such successor of our covenants in the Indenture and in the
New Debentures;
o to add to our covenants for the benefit of the Holders or to
surrender any right or power in the Indenture conferred upon us;
o to add any additional Events of Default for the benefit of the
Holders; or
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o to cure any ambiguity, to correct or supplement any provision in the
Indenture which may be inconsistent with any other provision in the
Indenture, or to make any other provisions with respect to matters or
questions arising under the Indenture which are not inconsistent with
the provisions of the Indenture, provided that such action pursuant
to this clause must not adversely affect the interests of the Holders
in any material respect.
The Trustee is authorized to join with us in the execution of any such
supplemental indenture, and to make any further appropriate agreements and
stipulations which may be therein contained.
With the written consent of the Holders of not less than a majority in
principal amount of the Outstanding New Debentures, delivered to us and the
Trustee, we, when authorized by a Board Resolution, and the Trustee may enter
into an indenture or indentures supplemental to the Indenture for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of modifying in any manner the rights of the
Holders under the Indenture; provided, however, that no such supplemental
indenture may, without the consent of the Holder of each Outstanding New
Debenture affected thereby:
o change the maturity date of the principal of, or any installment of
interest on, any New Debenture, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or change the place of payment where, or the
coin or currency in which, any New Debenture or interest thereon is
payable, or impair the right to institute suit for the enforcement of
any such payment on or after the maturity date thereof (or, in the
case of redemption, on or after the date of redemption);
o reduce the percentage in principal amount of the Outstanding New
Debentures, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of the
Indenture or certain defaults hereunder and their consequences)
provided for in the Indenture; or
o modify certain other provisions specified in the Indenture.
It is not necessary for any written consent of Holders to approve the
particular form of any proposed supplemental indenture, but it is sufficient if
the written consent approves the substance thereof.
Defeasance and Covenant Defeasance
The Indenture provides that we may elect, at our option at any time, to
have the provisions of Section 1102, relating to defeasance and discharge of
indebtedness, or Section 1103, relating to defeasance of certain restrictive
covenants in the Indenture, applied to the New Debentures.
Defeasance and Discharge. The Indenture provides that, if we exercise our
option to have Section 1102 applied to any New Debentures, we will be
discharged from all of our obligations with respect to such New Debentures upon
the deposit in trust for the benefit of the Holders of such New Debentures of
money or U.S. Government Obligations, or both, which, through the payment of
principal and interest in respect thereof in accordance with their terms, will
provide money in an amount sufficient to pay the principal of and any premium
and interest on such New Debentures on the respective Stated Maturities in
accordance with the terms of the Indenture and such New Debentures.
Notwithstanding the foregoing, under the Indenture, we will not be
discharged from certain obligations to:
o exchange or register the transfer of New Debentures;
o replace stolen, lost or mutilated New Debentures;
o maintain paying agencies; and
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o hold moneys for payment in trust.
Such defeasance or discharge may occur only if, among other things, we
have delivered to the Trustee an Opinion of Counsel to the effect that we have
received from, or there has been published by, the United States Internal
Revenue Service a ruling, or there has been a change in tax law, in either case
to the effect that Holders of such New Debentures will not recognize gain or
loss for federal income tax purposes as a result of such deposit, defeasance,
and discharge and will be subject to federal income tax on the same amount, in
the same manner and at the same times as would have been the case if such
deposit, defeasance and discharge were not to occur.
Defeasance of Certain Covenants. The Indenture provides that, if we
exercise our option to have Section 1103 applied to any New Debentures, we may
omit to comply with certain restrictive covenants and the occurrence of certain
Events of Default, which are described above (with respect to such restrictive
covenants) under "Events of Default", will be deemed not to be or result in an
Event of Default, in each case with respect to such New Debentures. In order to
exercise such option, we will be required to:
o deposit, in trust for the benefit of the Holders of such New
Debentures, money or U.S. Government Obligations, or both, which,
through the payment of principal and interest in respect thereof in
accordance with their terms, will provide money in an amount
sufficient to pay the principal of and any premium and interest on
such New Debentures on the respective Stated Maturities in accordance
with the terms of the Indenture and such New Debentures; and
o among other things, deliver to the Trustee an Opinion of Counsel to
the effect that Holders of such New Debentures will not recognize
gain or loss for federal income tax purposes as a result of such
deposit and defeasance of certain obligations and will be subject to
federal income tax on the same amount, in the same manner and at the
same times as would have been the case if such deposit and defeasance
were not to occur.
In the event we exercise this option with respect to any New Debentures
and such New Debentures are declared due and payable because of the occurrence
of any Event of Default, the amount of money and U.S. Government Obligations so
deposited in trust would be sufficient to pay amounts due on such New
Debentures at the time of their respective Stated Maturities but may not be
sufficient to pay amounts due on such New Debentures upon any acceleration
resulting from such Event of Default. In such case, we would remain liable for
such payments.
Transfer and Exchange
At the option of the Holder, subject to the terms of the Indenture and the
limitations applicable to Global Debentures, New Debentures will be
exchangeable for other Debentures, of any authorized denomination and of like
tenor and aggregate principal amount. A Holder may transfer or exchange
Debentures in accordance with the Indenture.
Subject to the terms of the Indenture and the limitations applicable to
Global Debentures, New Debentures may be presented for exchange as provided
above or for registration of transfer (duly endorsed or with the form of
transfer endorsed thereon duly executed) at the office of the security
registrar (the "Security Registrar" or "Registrar") or at the office of any
transfer agent designated by us for such purpose. No service charge will be
made for any registration of transfer or exchange of New Debentures, but we may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith. Such transfer or exchange will be
effected upon the Security Registrar or such transfer agent, as the case may
be, being satisfied with the documents of title and identity of the person
making the request. We have appointed the Trustee as Security Registrar. We may
at any time designate additional transfer agents or rescind the designation of
any transfer agent or approve a change in the office through which any transfer
agent acts, except that we will be required to maintain a transfer agent in
each Place of Payment for the New Debentures.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and we may require a
Holder to pay any taxes and fees required by law or permitted by the
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Indenture. We are not required to transfer or exchange any New Debenture
selected for redemption. Also, we are not required to transfer or exchange any
New Debenture for a period of 15 days before a selection of New Debentures to
be redeemed.
Book-Entry, Delivery and Form
The certificates representing the New Debentures will be issued in fully
registered form, without coupons. Except as described below, the New Debentures
will be deposited with, or on behalf of, the Depository Trust Company, New
York, New York ("DTC"), and registered in the name of DTC's nominee, in the
form of a global debenture (the "Global New Debenture").
We expect that pursuant to procedures established by DTC:
o upon deposit of the Global New Debenture, DTC or its custodian will
credit on its internal system interests in the Global New Debentures
to the accounts of persons who have accounts with DTC
("Participants"); and
o ownership of the Global New Debenture will be shown on, and the
transfer of ownership thereof will be effected only through, records
maintained by DTC or its nominee (with respect to interests of
Participants) and the records of Participants (with respect to
interests of persons other than Participants). Ownership of
beneficial interests in the Global New Debenture will be limited to
Participants or persons who hold interests through Participants.
So long as DTC or its nominee is the registered owner or holder of the New
Debentures, DTC or such nominee will be considered the sole owner or holder of
the New Debentures represented by the Global New Debenture for all purposes
under the Indenture. No beneficial owner of an interest in the Global New
Debenture will be able to transfer such interest except in accordance with
DTC's procedures, in addition to those provided for under the Indenture with
respect to the New Debentures.
Payments of the principal of or premium and interest on the Global New
Debenture will be made to DTC or its nominee, as the case may be, as the
registered owner thereof. None of Cinergy, the Trustee or any paying agent
under the Indenture will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in the Global New Debenture or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interest.
We expect that DTC or its nominee, upon receipt of any payment of the
principal of or premium and interest on the Global New Debenture, will credit
Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global New
Debenture as shown on the records of DTC or its nominee. We also expect that
payments by Participants to owners of beneficial interests in the Global New
Debenture held through such Participants will be governed by standing
instructions and customary practice as is now the case with securities held for
the accounts of customers registered in the names of nominees for such
customers. Such payments will be the responsibility of such Participants.
Transfers between Participants in DTC will be effected in accordance with
DTC rules and will be settled in immediately available funds. If a holder
requires physical delivery of a certificated New Debenture for any reason,
including to sell New Debentures to persons in states which require physical
delivery of the New Debentures or to pledge such securities, such holder must
transfer its interest in the Global New Debenture in accordance with the normal
procedures of DTC and with the procedures set forth in the Indenture.
DTC has advised us that:
o it will take any action permitted to be taken by a holder of New
Debentures (including the presentation of New Debentures for exchange
as described below) only at the direction of one or more Participants
to whose
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account at DTC interests in the Global New Debenture are credited and
only in respect of such portion of the aggregate principal amount of
New Debentures as to which such Participant or Participants has or
have given such direction. However, if there is an Event of Default
under the Indenture, DTC will exchange the Global New Debenture for
certificated New Debentures, which it will distribute to its
Participants;
o it is a limited purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a
"clearing corporation" within the meaning of the Uniform Commercial
Code and a "clearing agency" registered pursuant to the provisions of
Section 17A of the Exchange Act; and
o it was created to hold securities for its Participants and facilitate
the clearance and settlement of securities transactions between
Participants through electronic book-entry changes in accounts of its
Participants, thereby eliminating the need for physical movement of
certificates. Participants include securities brokers and dealers,
banks, trust companies and clearing corporations and certain other
organizations. Indirect access to the DTC system is available to
others such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant,
either directly or indirectly ("Indirect Participants").
Although DTC has agreed to the foregoing procedures in order to facilitate
transfers of interest in the Global New Debentures among Participants, it is
under no obligation to perform such procedures, and such procedures may be
discontinued at any time. Neither Cinergy nor the Trustee will have any
responsibility for the performance by DTC or its Participants or Indirect
Participants of their respective obligations under the rules and procedures
governing their operations.
Transfers of Interests in Global New Debentures for Certificated New Debentures
An entire Global New Debenture may be exchanged for definitive Debentures
in registered, certificated form without interest coupons ("Certificated New
Debentures") if:
o DTC:
- notifies us that it is unwilling or unable to continue as
depositary for the Global New Debentures and we thereupon fail
to appoint a successor depositary within 90 days; or
- has ceased to be a clearing agency registered under the Exchange
Act;
o we notify the Trustee in writing that we elect to cause the issuance
of Certificated New Debentures; or
o there shall have occurred and be continuing a Default or an Event of
Default with respect to the New Debentures.
In any such case, we will notify the Trustee in writing that, upon
surrender by the Direct and Indirect Participants of their interest in such
Global New Debenture, Certificated New Debentures will be issued to each person
that such Direct and Indirect Participants and DTC identify as being the
beneficial owner of the related New Debentures.
Beneficial interests in Global New Debentures held by any Direct or
Indirect Participant may be exchanged for Certificated New Debentures (for
itself or on behalf of an Indirect Participant), but only upon at least 20
days' prior written notice given to the Trustee by or on behalf of DTC in
accordance with customary DTC procedures. Certificated New Debentures delivered
in exchange for any beneficial interest in any Global New Debenture will be
registered in the names, and issued in any approved denominations, requested by
DTC on behalf of such Direct or Indirect Participants (in accordance with DTC's
customary procedures).
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Neither Cinergy nor the Trustee will be liable for any delay by the holder
of the Global New Debentures or DTC in identifying the beneficial owners of New
Debentures, and Cinergy and the Trustee may conclusively rely on, and will be
protected in relying on, instructions from the holder of the Global New
Debenture or DTC for all purposes.
Payment and Paying Agent
Principal of and any premium and interest on the New Debentures will be
payable at the office of the Paying Agent or Paying Agents as we may designate
for such purpose from time to time, except that at our option payment of any
interest may be made by check mailed to the address of the Person entitled
thereto as such address appears in the Security Register. The corporate trust
office of the Trustee in the City of Cincinnati will be designated as our sole
Paying Agent for payments with respect to the New Debentures. We may at any
time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that we will be required to maintain a Paying Agent in each place
of payment for the New Debentures.
All moneys paid by us to a Paying Agent for the payment of the principal
of or any premium or interest on any New Debenture which remains unclaimed at
the end of 18 months after such principal, premium or interest has become due
and payable will be repaid to us, and the Holder of such New Debenture
thereafter may look only to us for payment thereof.
Title
Cinergy, the Trustee, and any agent of Cinergy or the Trustee may treat
the Person in whose name a New Debenture is registered as the absolute owner
thereof (whether or not such New Debenture may be overdue) for the purpose of
making payment and for all other purposes.
Governing Law
The Indenture and the New Debentures will be governed by, and construed in
accordance with, the law of the State of New York.
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THE EXCHANGE OFFER
Pursuant to a Registration Rights Agreement among Cinergy and the Initial
Purchasers (the "Registration Rights Agreement"), we agreed to use our
reasonable best efforts to cause to become effective a registration statement
(the "Exchange Offer Registration Statement") with respect to an issue of debt
securities identical in all material respects to the Old Debentures and, upon
becoming effective, to offer the holders of the Old Debentures the opportunity
to exchange their Old Debentures for New Debentures. The Registration Rights
Agreement also provides that in the event that due to a change in current
interpretations by the Commission, we are not permitted to effect such Exchange
Offer, we will instead file a registration statement covering resales by the
holders of Old Debentures (a "Shelf Registration Statement") and will use our
reasonable best efforts to cause such Shelf Registration Statement to become
effective and to keep such Shelf Registration Statement effective for two years
from the date on which we delivered the Old Debentures to the Initial
Purchasers (the "Closing Date").
Under the Registration Rights Agreement, we agreed to use our reasonable
best efforts to:
o file the Exchange Offer Registration Statement or a Shelf
Registration Statement with the Commission;
o have such Exchange Offer Registration Statement or Shelf Registration
Statement declared effective by the Commission within 180 days after
the Closing Date; and
o commence the Exchange Offer and issue the New Debentures in exchange
for all Old Debentures validly tendered in accordance with the terms
of the Exchange Offer prior to the close of the Exchange Offer, or,
in the alternative, cause such Shelf Registration Statement to remain
effective for two years from the Closing Date.
If we fail to comply with the above provisions, the Registration Rights
Agreement provides that additional interest ("Additional Interest") shall be
assessed as follows:
o if an Exchange Offer Registration Statement or Shelf Registration
Statement is not declared effective within 180 days following the
Closing Date, then commencing on the 181st day after the Closing
Date, Additional Interest shall be accrued on the Old Debentures over
and above the accrued interest at a rate of .25% per annum; or
o Additional Interest shall be accrued on the Old Debentures over and
above the accrued interest at a rate of .25% per annum (immediately
following the relevant event) if either:
- we have not exchanged New Debentures for all Old Debentures
validly tendered in accordance with the terms of the Exchange
Offer on or prior to 35 days after the date on which the
Exchange Offer Registration Statement was declared effective; or
- if applicable, the Shelf Registration Statement has been
declared effective but such Shelf Registration Statement ceases
to be effective at any time prior to two years from the Closing
Date.
However, the Additional Interest rate on the Old Debentures may not
exceed .25% per annum. Additional Interest on the Old Debentures will cease to
accrue:
o upon the effectiveness of the Exchange Offer Registration Statement
or Shelf Registration Statement; or
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o upon the exchange of New Debentures for all Old Debentures tendered
or upon the effectiveness of the Shelf Registration Statement which
had ceased to remain effective prior to two years from the Closing
Date.
Any amounts of Additional Interest will be payable in cash, on the same
original payment dates of the Old Debentures. The amount of Additional Interest
will be determined by multiplying the applicable Additional Interest rate by
the principal amount of the Old Debentures, multiplied by a fraction, the
numerator of which is the number of days such Additional Interest rate was
applicable during such period (determined on the basis of a 360-day year
comprised of twelve 30-day months), and the denominator of which is 360.
Old Debentures not tendered in the Exchange Offer will bear interest at
the same rates as in effect at the time of issuance of the Old Debentures.
Terms of the Exchange Offer; Period for Tendering Old Debentures
Upon the terms and subject to the conditions set forth in this prospectus
and in the accompanying letter of transmittal (the "Letter of Transmittal"), we
will:
o accept for exchange Old Debentures which are properly tendered on or
prior to the Expiration Date and not withdrawn as permitted below;
and
o keep the Exchange Offer open for not less than 20 business days (or
longer if required by applicable law) after the date notice of the
Exchange Offer is mailed to the holders of the Old Debentures.
As used herein, the term "Expiration Date" means 5:00 p.m., New York City
time, on , 1999; provided, however, that if we, in our sole discretion, have
extended the period of time for which the Exchange Offer is open, the term
"Expiration Date" means the latest time and date to which the Exchange Offer is
extended.
As of the date of this prospectus, $200,000,000 in aggregate principal
amount of the Old Debentures were outstanding. The Exchange Offer is not
conditioned upon any minimum principal amount of Old Debentures being tendered.
This prospectus, together with the Letter of Transmittal, is first being sent
on or about the date set forth on the cover page to all Holders of Old
Debentures at the addresses set forth in the security register with respect to
Old Debentures maintained by the Trustee.
We expressly reserve the right:
o at any time or from time to time, to extend the period of time during
which the Exchange Offer is open, and thereby delay acceptance of any
Old Debentures; and
o to amend or terminate the Exchange Offer, and not to accept for
exchange any Old Debentures not theretofore accepted for exchange,
upon the occurrence of any of the conditions of the Exchange Offer
specified below under "Certain Conditions to the Exchange Offer."
We will give oral or written notice of any extension, amendment,
non-acceptance or termination to the Holders of the Old Debentures as promptly
as practicable, such notice in the case of any extension to be issued by means
of a press release or other public announcement no later than 9:00 a.m., New
York City time, on the next business day after the previously scheduled
Expiration Date. Without limiting the manner in which we may choose to make any
public announcement and subject to applicable law, we shall have no obligation
to publish, advertise or otherwise communicate any such public announcement
other than by issuing a release to the Dow Jones News Service.
Holders of Old Debentures do not have appraisal or dissenters' rights in
connection with the Exchange Offer. Old Debentures which are not tendered for
exchange or are tendered but not accepted in connection with the Exchange Offer
will remain outstanding and be entitled to the benefits of the Indenture, but
will not be entitled to any further registration
24
<PAGE>
rights under the Registration Rights Agreement. We intend to conduct the
Exchange Offer in accordance with the applicable requirements of the Exchange
Act and the rules and regulations of the Commission thereunder.
Procedures for Tendering Old Debentures
The tender to us of Old Debentures by a Holder thereof as set forth below
and the acceptance thereof by us will constitute a binding agreement between
the tendering Holder and us upon the terms and subject to the conditions set
forth in this prospectus and in the accompanying Letter of Transmittal. Except
as set forth below, a Holder who wishes to tender Old Debentures for exchange
pursuant to the Exchange Offer must transmit a properly completed and duly
executed Letter of Transmittal, including all other documents required by such
Letter of Transmittal, to Fifth Third Bank (the "Exchange Agent") at the
address set forth below under "Exchange Agent" on or prior to the Expiration
Date. In addition:
o certificates for such Old Debentures must be received by the Exchange
Agent along with the Letter of Transmittal;
o a timely confirmation of a book-entry transfer (a "Book-Entry
Confirmation") of such Old Debentures, if such procedure is
available, into the Exchange Agent's account at DTC pursuant to the
procedure for book-entry transfer described below, must be received
by the Exchange Agent prior to the Expiration Date; or
o the Holder must comply with the guaranteed delivery procedures
described below.
The method of delivery of Old Debentures, Letters of Transmittal and all
other required documents is at the election and risk of the Holders. If such
delivery is by mail, it is recommended that registered mail, properly insured,
with return receipt requested, be used. In all cases, sufficient time should be
allowed to assure timely delivery. No Letters of Transmittal or Old Debentures
should be sent to Cinergy.
Signatures on a Letter of Transmittal or a notice of withdrawal, as the
case may be, must be guaranteed unless the Old Debentures surrendered for
exchange pursuant thereto are tendered:
o by a registered Holder of the Old Debentures who has not completed
the box entitled "Special Issuance Instructions" or "Special Delivery
Instructions" on the Letter of Transmittal; or
o for the account of an Eligible Institution (as defined below).
In the event that signatures on a Letter of Transmittal or a notice of
withdrawal, as the case may be, are required to be guaranteed, such guarantees
must be by a firm which is a member of a registered national securities
exchange or a member of the National Association of Securities Dealers, Inc. or
by a commercial bank or trust company having an office or correspondent in the
United States (collectively, "Eligible Institutions"). If Old Debentures are
registered in the name of a person other than the person signing the Letter of
Transmittal, the Old Debentures surrendered for exchange must be endorsed by,
or be accompanied by a written instrument or instruments of transfer or
exchange, in satisfactory form as determined by us in our sole discretion, duly
executed by the registered Holder with the signature thereon guaranteed by an
Eligible Institution.
All questions as to the validity, form, eligibility (including time of
receipt) and acceptance of Old Debentures tendered for exchange will be
determined by Cinergy in its sole discretion, which determination will be final
and binding. We reserve the absolute right:
o to reject any and all tenders of any particular Old Debentures not
properly tendered or to not accept any particular Old Debentures
which acceptance might, in our judgment or the judgment of our
counsel, be unlawful; and
25
<PAGE>
o to waive any defects or irregularities or conditions of the Exchange
Offer as to any particular Old Debentures either before or after the
Expiration Date (including the right to waive the ineligibility of
any Holder who seeks to tender Old Debentures in the Exchange Offer).
Unless waived, any defects or irregularities in connection with the tender
of Old Debentures for exchange must be cured within such reasonable period of
time as we determine. Neither Cinergy, the Exchange Agent nor any other person
will be under any duty to give notification of any defect or irregularity with
respect to any tender of Old Debentures for exchange, nor will any of them
incur any liability for failure to give such notification.
If the Letter of Transmittal is signed by a person or persons other than
the registered Holder or Holders of Old Debentures, such Old Debentures must be
endorsed or accompanied by appropriate powers of attorney, in either case
signed exactly as the name or names of the registered Holder or Holders that
appear on the Old Debentures.
If the Letter of Transmittal or any Old Debentures or powers of attorney
are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers or corporations or others acting in a fiduciary or
representative capacity, such person should so indicate when signing and,
unless waived by Cinergy, proper evidence satisfactory to Cinergy of its
authority to so act must be submitted.
By executing, or otherwise becoming bound by a Letter of Transmittal, each
holder of the Old Debentures (other than certain specified holders) will
represent that:
o it is not our affiliate;
o any New Debentures to be received by it were acquired in the ordinary
course of business; and
o it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the New
Debentures.
If the tendering Holder is a broker-dealer that will receive New Debentures for
its own account in exchange for Old Debentures that were acquired as a result
of market-making activities or other trading activities, it will be required to
acknowledge that it will deliver a prospectus in connection with any resale of
such New Debentures. See "--Resales of the New Debentures."
Acceptance of Old Debentures for Exchange; Delivery of New Debentures
Upon satisfaction or waiver of all of the conditions to the Exchange
Offer, we will accept, promptly after the Expiration Date, all Old Debentures
properly tendered and will issue the New Debentures promptly after acceptance
of the Old Debentures. See "Certain Conditions to the Exchange Offer" below.
For purposes of the Exchange Offer, we will be deemed to have accepted properly
tendered Old Debentures for exchange when, as and if we have given oral or
written notice thereof to the Exchange Agent.
In all cases, issuance of New Debentures for Old Debentures that are
accepted for exchange pursuant to the Exchange Offer will be made only after
timely receipt by the Exchange Agent of certificates for such Old Debentures or
a timely Book-Entry Confirmation of such Old Debentures into the Exchange
Agent's account at DTC pursuant to the book-entry transfer procedures described
below, a properly completed and duly executed Letter of Transmittal and all
other required documents. If any tendered Old Debentures are not accepted for
any reason set forth in the terms and conditions of the Exchange Offer or if
certificates representing Old Debentures are submitted for a greater principal
amount than the Holder desires to exchange, such unaccepted or non-exchanged
Old Debentures will be returned without expense to the tendering Holder thereof
(or, in the case of Old Debentures tendered by book-entry transfer into the
Exchange Agent's account at DTC pursuant to the book-entry transfer procedures
described below, such non- exchanged Old Debentures will be credited to an
account maintained with DTC) as promptly as practicable after the expiration or
termination of the Exchange Offer.
26
<PAGE>
Book-Entry Transfer
The Exchange Agent will make a request to establish an account with
respect to the Old Debentures at DTC for purposes of the Exchange Offer
promptly after the date of this prospectus. Any financial institution that is a
participant in DTC's systems may make book-entry delivery of Old Debentures by
causing DTC to transfer such Old Debentures into the Exchange Agent's account
in accordance with DTC's Automated Tender Offer Program ("ATOP") procedures for
transfer. However, the exchange for the Old Debentures so tendered will only be
made after timely confirmation of such book-entry transfer of Old Debentures
into the Exchange Agent's account, and timely receipt by the Exchange Agent of
an Agent's Message (as such term is defined in the next sentence) and any other
documents required by the Letter of Transmittal. The term "Agent's Message"
means a message, transmitted by DTC and received by the Exchange Agent and
forming a part of a Book-Entry Confirmation, which states that DTC has received
an express acknowledgment from a Participant tendering Old Debentures that are
the subject of such Book-Entry Confirmation that such Participant has received
and agrees to be bound by the terms of the Letter of Transmittal, and that we
may enforce such agreement against such Participant. Although delivery of Old
Debentures may be effected through book-entry transfer into the Exchange
Agent's account at DTC, the Letter of Transmittal (or facsimile thereof),
properly completed and duly executed, with any required signature guarantees
and any other required documents, must in any case be delivered to and received
by the Exchange Agent at its address set forth under "--Exchange Agent" on or
prior to the Expiration Date, or the guaranteed delivery procedure set forth
below must be complied with.
Delivery of documents to DTC in accordance with its procedures does not
constitute delivery to the Exchange Agent.
Guaranteed Delivery Procedures
If a registered Holder of the Old Debentures desires to tender such Old
Debentures and the Old Debentures are not immediately available, or time will
not permit such Holder's Old Debentures or other required documents to reach
the Exchange Agent before the Expiration Date, or the procedure for book-entry
transfer cannot be completed on a timely basis, a tender may be effected if:
o the tender is made through an Eligible Institution;
o prior to the Expiration Date, the Exchange Agent receives from such
Eligible Institution a properly completed and duly executed Letter of
Transmittal (or a facsimile thereof) and Notice of Guaranteed
Delivery, substantially in the form provided by us (by telegram,
telex, facsimile transmission, mail or hand delivery), setting forth
the name and address of the Holder of Old Debentures and the amount
of Old Debentures tendered, stating that the tender is being made
thereby and guaranteeing that within five New York Stock Exchange
("NYSE") trading days after the date of execution of the Notice of
Guaranteed Delivery, the certificates of all physically tendered Old
Debentures, in proper form for transfer, or a Book-Entry
Confirmation, as the case may be, and any other documents required by
the Letter of Transmittal will be deposited by the Eligible
Institution with the Exchange Agent; and
o the certificates for all physically tendered Old Debentures, in
proper form for transfer, or a Book-Entry Confirmation, as the case
may be, and all other documents required by the Letter of
Transmittal, are received by the Exchange Agent within five NYSE
trading days after the date of execution of the Notice of Guaranteed
Delivery.
Withdrawal Rights
Tenders of Old Debentures may be withdrawn at any time prior to the
Expiration Date.
For a withdrawal to be effective, a written notice of withdrawal must be
received by the Exchange Agent at one of the addresses set forth below under
"Exchange Agent." Any such notice of withdrawal must specify:
27
<PAGE>
o the name of the person having tendered the Old Debentures to be
withdrawn;
o the Old Debentures to be withdrawn (including the principal amount of
such Old Debentures); and
o (where certificates for Old Debentures have been transmitted) the
name in which such Old Debentures are registered, if different from
that of the withdrawing Holder.
If certificates for Old Debentures have been delivered or otherwise
identified to the Exchange Agent, then, prior to the release of such
certificates, the withdrawing Holder must also submit the serial numbers of the
particular certificates to be withdrawn and a signed notice of withdrawal with
signatures guaranteed by an Eligible Institution unless such Holder is an
Eligible Institution. If Old Debentures have been tendered pursuant to the
procedure for book-entry transfer described above, any notice of withdrawal
must specify the name and number of the account at DTC to be credited with the
withdrawn Old Debentures and otherwise comply with the procedures of such
facility. All questions as to the validity, form and eligibility (including
time of receipt) of such notices will be determined by us, and our
determination will be final and binding on all parties. Any Old Debentures so
withdrawn will be deemed not to have been validly tendered for exchange for
purposes of the Exchange Offer. Any Old Debentures which have been tendered for
exchange but which are not exchanged for any reason will be returned to the
Holder thereof without cost to such Holder (or, in the case of Old Debentures
tendered by book-entry transfer into the Exchange Agent's account at DTC
pursuant to the book-entry transfer procedures described above, such Old
Debentures will be credited to an account maintained with DTC for the Old
Debentures) as soon as practicable after withdrawal, rejection of tender or
termination of the Exchange Offer. Properly withdrawn Old Debentures may be
re-entered by following one of the procedures described under "Procedures for
Tendering Old Debentures" above at any time on or prior to the Expiration Date.
Certain Conditions to the Exchange Offer
Notwithstanding any other provisions of the Exchange Offer, we are not
required to accept for exchange, or to issue New Debentures in exchange for,
any Old Debentures and may terminate or amend the Exchange Offer, if at any
time before the acceptance of such Old Debentures for exchange or the exchange
of the New Debentures for such Old Debentures, such acceptance or issuance
would violate applicable law or any interpretation of the Commission's staff.
The condition in the paragraph immediately above is for our sole benefit
and may be asserted by us regardless of the circumstances giving rise to such
condition. Our failure at any time to exercise the foregoing rights is not to
be deemed a waiver of any such right and each such right shall be deemed an
ongoing right which may be asserted at any time and from time to time.
In addition, we will not accept for exchange any Old Debentures tendered,
and no New Debentures will be issued in exchange for any such Old Debentures,
if at such time any stop order is threatened or in effect with respect to the
Registration Statement of which this prospectus constitutes a part or the
qualification of the indenture under the Trust Indenture Act.
Exchange Agent
Fifth Third Bank has been appointed as the Exchange Agent for the Exchange
Offer. All executed Letters of Transmittal should be directed to the Exchange
Agent at one of the addresses set forth below. Questions and requests for
assistance, requests for additional copies of this prospectus or of the Letter
of Transmittal and requests for Notices of Guaranteed Delivery should be
directed to the Exchange Agent, addressed as follows:
28
<PAGE>
Deliver To:
Fifth Third Bank, Exchange Agent
By Mail or By Hand:
Fifth Third Center
38 Fountain Square
Cincinnati, Ohio 45263
Attention: Corporate Trust Department
By Facsimile:
(513) 744-6785
Confirm by Telephone:
(513) 579-5300
Delivery to an address other than as set forth above or transmission of
instructions via facsimile other than as set forth above does not constitute a
valid delivery.
Fees and Expenses
The principal solicitation is being made by mail; however, additional
solicitation may be made by telegraph, telephone or in person by our officers,
regular employees and affiliates. We will not pay any additional compensation
to any such officers and employees who engage in soliciting tenders. We will
not make any payment to brokers, dealers, or others soliciting acceptances of
the Exchange Offer. However, we will pay the Exchange Agent reasonable and
customary fees for its services and will reimburse it for its reasonable
out-of-pocket expenses in connection therewith.
The estimated cash expenses to be incurred in connection with the Exchange
Offer will be paid by us and are estimated in the aggregate to be $75,000.
Transfer Taxes
Holders who tender their Old Debentures for exchange will not be obligated
to pay any transfer taxes in connection therewith, except that Holders who
instruct us to register New Debentures in the name of, or request that Old
Debentures not tendered or not accepted in the Exchange Offer to be returned
to, a person other than the registered tendering Holder will be responsible for
the payment of any applicable transfer tax thereon.
Resale of the New Debentures
Under existing interpretations of the Commission's staff contained in
several no-action letters to third parties, the New Debentures would be freely
transferable after the Exchange Offer without further registration under the
Securities Act. However, any purchaser of Old Debentures who is an "affiliate"
of Cinergy or who intends to participate in the Exchange Offer for the purpose
of distributing the New Debentures:
o will not be able to rely on the interpretation of the Commission's
staff;
o will not be able to tender its Old Debentures in the Exchange Offer;
and
29
<PAGE>
o must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with any sale or
transfer of the debentures unless such sale or transfer is made
pursuant to an exemption from such requirements.
By executing, or otherwise becoming bound by, the Letter of Transmittal
each holder of the Old Debentures (other than certain specified holders) will
represent that:
o it is not our "affiliate";
o any New Debentures to be received by it were acquired in the ordinary
course of its business; and
o it has no arrangement with any person to participate in the
distribution (within the meaning of the Securities Act) of the New
Debentures.
In addition, in connection with any resales of New Debentures, any
participating broker-dealer who acquired debentures for its own account as a
result of market-making or other trading activities must deliver a prospectus
meeting the requirements of the Securities Act. The Commission has taken the
position that participating broker-dealers may fulfill their prospectus
delivery requirements with respect to the New Debentures (other than a resale
of an unsold allotment from the original sale of the Old Debentures) with the
prospectus contained in the Exchange Offer Registration Statement. Under the
Registration Rights Agreement, we are required to allow participating
broker-dealers and other persons, if any, subject to similar prospectus
delivery requirements to use this prospectus as it may be amended or
supplemented from time to time, in connection with the resale of such New
Debentures.
30
<PAGE>
CERTAIN UNITED STATES TAX CONSEQUENCES OF THE EXCHANGE OFFER
The exchange of Old Debentures for New Debentures pursuant to the Exchange
Offer will not result in any United States federal income tax consequences to
Holders. When a Holder exchanges an Old Debenture for a New Debenture pursuant
to the Exchange Offer, the Holder will have the same adjusted basis and holding
period in the New Debenture as in the Old Debenture immediately before the
exchange.
PLAN OF DISTRIBUTION
Each participating broker-dealer pursuant to the Exchange Offer must
acknowledge that it will deliver a prospectus in connection with any resale of
New Debentures. This prospectus, as it may be amended or supplemented from time
to time, may be used by a participating broker-dealer in connection with
resales of New Debentures received in exchange for Old Debentures where such
Old Debentures were acquired as a result of market-making activities or other
trading activities. We have agreed that we will make this prospectus, as
amended or supplemented, available to any participating broker-dealer for use
in connection with any such resale and participating broker-dealers shall be
authorized to deliver this prospectus for a period not exceeding 90 days after
the Expiration Date.
We will not receive any proceeds from any sales of the New Debentures by
participating broker-dealers. New Debentures received by participating
broker-dealers for their own account pursuant to the Exchange Offer may be sold
from time to time, in one or more transactions in the over-the-counter market,
in negotiated transactions, through the writing of options on the New
Debentures or a combination of such methods of resale, at market prices
prevailing at the time of resale, at prices related to such prevailing market
prices or at negotiated prices. Any such resale may be made directly to
purchasers or to or through brokers or dealers who may receive compensation in
the form of commissions or concessions from any such participating
broker-dealer that resells the New Debentures that were received by it for its
own account pursuant to the Exchange Offer. Any broker or dealer that
participates in a distribution of such New Debentures may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit on any
such resale of New Debentures and any omissions or concessions received by any
such persons may be deemed to be underwriting compensation under the Securities
Act. The Letter of Transmittal states that by acknowledging that it will
deliver and by delivering a prospectus, a participating broker-dealer will not
be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act.
We will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any participating broker-dealer
that requests such documents in the Letter of Transmittal. See "The Exchange
Offer."
LEGAL MATTERS
The validity of the debentures in respect of which this prospectus is
being delivered will be passed on for Cinergy by Taft, Stettinius & Hollister
LLP.
EXPERTS
The consolidated financial statements and schedule, incorporated by
reference in this prospectus, have been audited by Arthur Andersen LLP,
independent public accountants, as indicated in their report with respect
thereto, and are incorporated herein by reference in reliance upon the
authority of such firm as experts in accounting and auditing. Reference is
made to said report, which includes an explanatory paragraph with respect
to the change in method of accounting for energy trading and risk
management activities effective December 31, 1998, as discussed in Note 1
to the consolidated financial statements.
31
<PAGE>
===============================================================================
You should rely only on the information
contained in this prospectus. We have not
authorized anyone to provide you with information
different from that contained in this prospectus.
We are not making an offer of these securities in
any state where the offer is not permitted. The
information contained in this prospectus is accurate
only as of the date of this prospectus.
-----------------------
TABLE OF CONTENTS
Page
----
Available Information...............................2
Incorporation of Certain Documents
by Reference.....................................2
Prospectus Summary..................................3
Use of Proceeds....................................10
Description of New Debentures......................11
The Exchange Offer.................................22
Certain United States Tax Consequences of the
Exchange Offer..................................30
Plan of Distribution...............................30
Legal Matters......................................30
Experts............................................30
===============================================================================
Cinergy Corp.
----------
Prospectus
----------
March o, 1999
===============================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
As a Delaware corporation subject to the Delaware General Corporation Law
("DGCL"), the Registrant is empowered by Section 145 of such law to indemnify
officers and directors against certain expenses, liabilities and payments, as
therein provided. Article VI of the Registrant's By-Laws provides that the
Registrant shall indemnify specified persons, including its officers and
directors against liabilities under certain circumstances. Also, Article VI
provides that the Registrant may purchase and maintain insurance on behalf of
or for any director, officer, employee or agent for protection against certain
liabilities or claims asserted against such persons. In addition, Article Sixth
of the Registrant's Certificate of Incorporation provides limits to the
personal liability of its directors for breach of fiduciary duties to the
fullest extent permitted by the DGCL.
The Registrant maintains an insurance policy covering its directors and
officers against certain civil liabilities, including liabilities under the
Securities Act.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers, or persons controlling the
Registrant pursuant to the foregoing provisions, the Registrant has been
informed that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is therefore
unenforceable.
Item 21. Exhibits and Financial Statement Schedules
(a) Exhibits (see index to exhibits at E-1).
Item 22. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i) to include
any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii)
to reflect in the prospectus any facts or events arising after the effective
date of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the registration statement; and (iii) to
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant
II-1
<PAGE>
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
(c) The undersigned Registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Item 4, 10(b), 11, or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through
the date of responding to the request.
(d) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration statement on Form S-4 to be signed on its
behalf by the undersigned, thereunto duly authorized, in Cincinnati, Ohio on
the 8th day of April, 1999.
CINERGY CORP.
By: *James E. Rogers
-----------------------------------
James E. Rogers,
Vice Chairman, President and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-4 has been signed below by the following
persons in the capacities and on the dates indicated.
<TABLE>
Signature Title Date
--------- ----- ----
<S> <C> <C>
(i) Principal executive officer:
*James E. Rogers Vice Chairman, President and April 8, 1999
- -------------------------------- Chief Executive Officer
James E. Rogers
(ii) Principal financial officer:
/s/ Madeleine W. Ludlow Vice President and April 8, 1999
- -------------------------------- Chief Financial Officer
Madeleine W. Ludlow
(iii) Principal accounting officer:
/s/ Bernard F. Roberts Vice President and April 8, 1999
- -------------------------------- Comptroller
Bernard F. Roberts
(iv) Directors
*Neil A. Armstrong Director April 8, 1999
*James K. Baker Director April 8, 1999
*Michael G. Browning Director April 8, 1999
*Phillip R. Cox Director April 8, 1999
*Kenneth M. Duberstein Director April 8, 1999
*Cheryl M. Foley Director April 8, 1999
*John A. Hillenbrand II Director April 8, 1999
II-3
<PAGE>
Signature Title Date
--------- ----- ----
*George C. Juilfs Director April 8, 1999
*Melvin Perelman Director April 8, 1999
*Thomas E. Petry Director April 8, 1999
*Jackson H. Randolph Director April 8, 1999
*James E. Rogers Director April 8, 1999
*John J. Schiff, Jr. Director April 8, 1999
*Philip R. Sharp Director April 8, 1999
*Van P. Smith Director April 8, 1999
*Dudley S. Taft Director April 8, 1999
*Oliver W. Waddell Director April 8, 1999
*By: /s/ William L. Sheafer
------------------------------------
William L. Sheafer, Attorney-in-fact
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
- ----------- --------
1.1 Registration Rights Agreement dated as of December 16, 1998
among Cinergy and Morgan Stanley & Co. Incorporated, ABN AMRO
Incorporated and Chase Securities Inc., as initial purchasers.
*3.1.1 Certificate of Incorporation (Exhibit to Cinergy's 1993 Form
10-K).
*3.1.2 By-laws (Exhibit to Cinergy's October 15, 1998 Form 8-K).
*4.2 Indenture, dated as of December 16, 1998 between Cinergy and the
Trustee (Exhibit to Cinergy's 1998 10-K).
5.1 Opinion of Taft, Stettinius & Hollister LLP with respect to the
New Debentures.
12.1 Computation of Ratio of Earnings to Fixed Charges.
*21.1 Subsidiaries of Cinergy (Exhibit to Cinergy's 1998 Form 10-K)
23.1 Consent of Taft, Stettinius & Hollister LLP (contained in
their opinion filed as Exhibit 5.1).
23.2 Consent of Arthur Andersen LLP.
24.1 Powers of Attorney.
24.2 Certified copy of a resolution of Cinergy's Board of Directors.
25.1 Statement of Eligibility of Fifth Third Bank on Form T-1.
99.1 Form of Letter of Transmittal.
99.2 Form of Notice of Guaranteed Delivery.
99.3 Form of Letter to Clients.
99.4 Form of Letter to Nominees.
99.5 Form of Instructions to Registered Holder and/or Book-Entry
Transfer Participant from Owner.
- ---------
* Incorporated by reference as indicated.
Exhibit 1.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of December 16, 1998 (this
"Agreement"), among CINERGY CORP., a Delaware corporation (the "Company") and
MORGAN STANLEY & CO. INCORPORATED, ABN AMRO Incorporated and Chase Securities
Inc. as the initial purchasers (the "Initial Purchasers") of the 6.53%
Debentures due 2008 of the Company.
This Agreement is made pursuant to the Purchase Agreement, dated as of
December 9, 1998, among the Company and the Initial Purchasers (the "Purchase
Agreement"). In order to induce the Initial Purchasers to enter into the
Purchase agreement, the Company has agreed to provide the registration rights
provided for in the Agreement to the Initial Purchasers and their respective
direct and indirect transferees. The execution of the Agreement is a condition
to the closing of the transactions contemplated by the Purchase Agreement.
1. Certain Definitions.
For purposes of this Registration Rights Agreement, the following
terms shall have the following respective meanings:
(a) "Closing Date" means the date on which the Debentures
are initially issued.
(b) "Commission" means the Securities and Exchange
Commission, or any other federal agency at the time administering
the Exchange Act or the Securities Act, whichever is the relevant
statute for the particular purpose.
(c) "Debentures" means the 6.53 % Debentures due 2008, to be
issued under the Indenture and sold by the Company to the Initial
Purchasers, and Debentures (other than Exchange Debentures) issued
in exchange therefor or in lieu thereof pursuant to the Indenture.
(d) "Effectiveness Period" means the period commencing with
the date hereof and ending on the date that all Debentures have
ceased to be Registrable Debentures.
(e) "Effective Time", in the case of (i) an Exchange Offer,
means the time and date as of which the Commission declares the
Exchange Offer Registration Statement effective or as of which the
Exchange Offer Registration Statement otherwise becomes effective
and
<PAGE>
(ii) a Shelf Registration, means the time and date as of
which the Commission declares the Shelf Registration effective or
as of which the Shelf Registration otherwise becomes effective.
(f) "Exchange Act" means the Securities Exchange Act of 1934,
or any successor thereto, as the same shall be amended from time
to time.
(g) "Exchange Offer" has the meaning assigned thereto in
Section 2(a).
(h) "Exchange Offer Registration Statement" has the meaning
assigned thereto in Section 2(a).
(i) "Exchange Registration" has the meaning assigned thereto
in Section 3(f).
(j) "Exchange Debentures" has the meaning assigned thereto
in Section 2(a).
(k) "Holder" means each Initial Purchaser for so long as it
owns any Registrable Debentures, and such of its respective
successors and assigns who acquire Registrable Debentures,
directly or indirectly, from such person or from any successor or
assign of such person, in each case for so long as such person
owns any Registrable Debentures.
(l) "Indenture" means the Indenture, dated as of December
16, 1999, between the Company and The Fifth Third Bank, as
Trustee, as the same shall be amended from time to time.
(m) "Initial Purchasers" mean Morgan Stanley & Co.
Incorporated, Chase Securities Inc., and ABN AMRO Incorporated.
(n) "Person" means a corporation, association, partnership,
limited liability company, business, individual, or any other
entity or organization, including any government or political
subdivision thereof or governmental agency.
(o) "Purchase Agreement" means the Purchase Agreement dated
as of December 9, 1998 among the Company and the Initial
Purchasers.
(p) "Registrable Debentures" means the Debentures; provided,
however, that the Debentures shall cease to be Registrable
Debentures
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<PAGE>
when (i) the Debentures have been exchanged for Exchange Debentures in
an Exchange Offer as contemplated in Section 2(a); (ii) in the
circumstances contemplated by Section 2(b), a registration statement
registering the Debentures under the Securities Act has been declared
or becomes effective and the Debentures have been sold or otherwise
transferred by the holder thereof pursuant to such effective
registration statement; (iii) the Debentures are sold pursuant to Rule
144 under circumstances in which any legend borne by the Debentures
relating to restrictions on transferability thereof, under the
Securities Act or otherwise, is removed or the Debentures are eligible
to be sold pursuant to paragraph (k) of Rule 144; or (iv) the
Debentures shall cease to be outstanding.
(q) "Registration Default" has the meaning assigned thereto in
Section 2(c).
(r) "Additional Interest" has the meaning assigned thereto
in Section 2(c).
(s) "Registration Expenses" has the meaning assigned thereto
in Section 4.
(t) "Resale Period" means the period beginning on the date
the Shelf Registration becomes effective and ending on the earlier
of (i) the Shelf Registration ceasing to be effective or (ii) the
second anniversary of the Closing Date.
(u) "Restricted Holder" means (i) a holder that is an
affiliate of the Company within the meaning of Rule 405, (ii) a
holder who acquires Exchange Debentures outside the ordinary
course of such holder's business, (iii) a holder who has
arrangements or understandings with any person to participate in
the Exchange Offer for the purpose of distributing Exchange
Debentures, or (iv) a broker-dealer who receives Debentures for
its own account but did not acquire the Debentures as a result of
market-making activities or other trading activities.
(v) "Rule 144," "Rule 405" and "Rule 415" means, in each
case, such rule promulgated under the Securities Act, as such Rule
may be amended from time to time, or any similar rule or
regulation hereafter adopted by the SEC.
3
<PAGE>
(w) "Securities Act" means the Securities Act of 1933 and
the rules and regulations promulgated by the SEC thereunder, all
as the same shall be amended from time to time.
(x) "Shelf Registration Statement" has the meaning assigned
thereto in Section 2(b).
(y) "Trust Indenture Act" means the Trust Indenture Act of
1939, or any successor thereto, and the rules, regulations and
forms promulgated thereunder, all as the same shall be amended
from time to time.
Unless the context otherwise requires, any reference herein to a
"Section" or "clause" refers to a Section or clause, as the case may be, of
this Agreement, and the words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
particular Section or other subdivision. Unless the context otherwise requires,
any reference to a statute, rule or regulation refers to the same (including
any successor statute, rule or regulation thereto) as it may be amended from
time to time.
2. Registration Under the Securities Act.
(a) Except as set forth in Section 2(b), the Company agrees
to use its reasonable best efforts to file under the Securities
Act a registration statement (the "Exchange Offer Registration
Statement") relating to an offer to exchange (the "Exchange
Offer") any and all of the Debentures for a like aggregate amount
of Debentures issued by the Company, which have the same terms as
the Debentures (and are entitled to the benefits of a trust
indenture which has been qualified under the Trust Indenture Act),
except that they have been registered pursuant to an effective
registration statement under the Securities Act, do not contain
restrictions on transfers and do not contain provisions for the
additional interest contemplated in Section 2(c) below (such new
Debentures hereinafter called "Exchange Debentures"). The Company
agrees to use its reasonable best efforts to cause the Exchange
Offer Registration Statement to become effective under the
Securities Act within 180 days after the Closing Date. The
Company agrees to use its reasonable best efforts to register the
Exchange Offer under the Securities Act on the appropriate form
and to comply with all applicable requirements of the Securites
Act, the Exchange Act and other applicable laws in connection with
the Exchange Offer. The Company further agrees to use its
reasonable best efforts to commence and complete the Exchange
Offer promptly after the Exchange Offer Registration Statement has
become effective for all Debentures that have
4
<PAGE>
been properly tendered and not withdrawn on or prior to the expiration
of the Exchange Offer. The Exchange Offer will be deemed completed
only (i) if the Exchange Debentures received by holders (other than
Restricted Holders) in the Exchange Offer for Debentures are, upon
receipt, transferable by each such holder without restriction imposed
thereon by the Securities Act or the Exchange Act and without material
restrictions imposed thereon by the blue sky or securities laws of a
substantial majority of the States of the United States of America and
(ii) upon the Company having exchanged, pursuant to the Exchange
Offer, Exchange Debentures for all Debentures that have been properly
tendered and not withdrawn before the expiration of the Exchange
Offer, which shall be on a date that is at least 30 days following the
commencement of the Exchange Offer.
(b) If (i) because of any change in law or in applicable
interpretations by the staff of the Commission, the Company is not
permitted to effect the Exchange Offer or (ii) in the case of any
holder, other than a Restricted Holder, that participates in the
Exchange Offer, such holder does not receive Exchange Debentures
on the date of the exchange that may be sold without restriction
under state and federal securities laws (other than due solely to
the status of such holder as an affiliate of the Company within
the meaning of the Securities Act), then in addition to or in lieu
of conducting the Exchange Offer contemplated by Section 2(a), the
Company shall file under the Securities Act as promptly as
practicable a "shelf" registration statement providing for the
registration of, and the sale on a continuous or delayed basis by
the holders of, all of the Registrable Debentures, pursuant to
Rule 415 or any similar rule that may be adopted by the Commission
(the "Shelf Registration Statement"). The Company agrees to use
its reasonable best efforts to cause the Shelf Registration
Statement to become or be declared effective and to keep such
Shelf Registration Statement continuously effective for a period
ending on the earlier of (i) the second anniversary of the Closing
Date or (ii) such time as there are no longer any Registrable
Debentures outstanding. The Company further agrees to supplement
or make amendments to the Shelf Registration Statement, as and
when required by the rules, regulations or instructions applicable
to the registration form used for such Shelf Registration
Statement or by the Securities Act or rules and regulations
thereunder for shelf registrations, and the Company agrees to
furnish to the holders of the Registrable Debentures copies of any
such supplement or amendment prior to its being used or promptly
following its filing with the Commission.
5
<PAGE>
(c) If any of the following events (any such event a
"Registration Default") shall occur, then, as liquidated damages,
additional interest (the "Additional Interest") shall become
payable in respect of the Debentures as follows:
(i) if the Exchange Offer Registration Statement or a
Shelf Registration Statement is not filed with the Commission
within 150 days following the Closing Date, then commencing
on the 151st day after the Closing Date, Additional Interest
shall accrue on the principal amount of the Debentures at a
rate of 0.25% per annum; or
(ii) if neither the Exchange Offer Registration Statement
nor a Shelf Registration Statement is declared effective by
the Commission on or prior to the 180th day following the
Closing Date, then commencing on the 181st day after the
Closing Date, Additional Interest shall accrue on the
principal amount of the Debentures at a rate of 0.25% per
annum; or
(iii) if either (A) the Company has not exchanged Exchange
Debentures for all Debentures validly tendered and not
withdrawn, in accordance with the terms of the Exchange
Offer, on or prior to 35 days after the date on which the
Exchange Offer Registration Statement was declared effective,
or (B) if applicable, the Shelf Registration Statement has
been declared effective but such Shelf Registration Statement
ceases to be effective at any time prior to two years from
the Closing Date, then commencing on (x) the 36th day after
such effective date, in the case of (A) above, or (y) the day
such Shelf Registration Statement ceases to be effective, in
the case of (B) above, Additional Interest shall accrue on
the principal amount of Debentures at a rate of 0.25% per
annum.
provided, however, that the Additional Interest rate on the Debentures, shall
not exceed in the aggregate 0.25% per annum; provided further, however, that
(1) upon the filing of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (i) above), (2) upon the
effectiveness of the Exchange Offer Registration Statement or a Shelf
Registration Statement (in the case of clause (ii) above), (3) upon the
exchange of Exchange Debentures for all Debentures validly tendered and not
withdrawn (in the case of clause (iii) (A) above), or upon the effectiveness of
the Shelf Registration Statement which had ceased to remain effective (in the
case of clause (iii) (B) above), or (4) upon the termination of certain
transfer restrictions on the Debentures as a result of the
6
<PAGE>
application of Rule 144(k), Additional Interest on the Debentures as a result
of such clause (or the relevant subclause thereof), as the case may be, shall
cease to accrue.
(d) Any reference herein to a registration statement shall
be deemed to include any document incorporated therein by
reference as of the applicable Effective Time and any reference
herein to any post-effective amendment to a registration statement
shall be deemed to include any document incorporated therein by
reference as of a time after such Effective Time.
(e) Notwithstanding any other provision of this Agreement,
no holder of Registrable Debentures who does not comply with the
provisions of Section 3(d), if applicable, shall be entitled to
receive Additional Interest unless and until such holder complies
with the provisions of such section, if applicable.
3. Registration Procedures.
The following provisions shall apply to registration statements filed
pursuant to Section 2:
(a) At or before the Effective Time of the Exchange Offer
or the Shelf Registration Statement, as the case may be, the
Company shall qualify the Indenture under the Trust Indenture Act.
(b) In connection with the Company's obligations with
respect to the Shelf Registration Statement, if applicable, the
Company shall, as soon as reasonably practicable (or as otherwise
specified herein):
(i) prepare and file with the Commission a registration
statement with respect to the Shelf Registration Statement on
any form which may be utilized by the Company and which shall
permit the disposition of the Registrable Debentures in
accordance with the intended method or methods thereof, as
specified in writing by the holders of the Registrable
Debentures, and use its reasonable best efforts to cause such
registration statement to become effective as soon as
practicable thereafter;
(ii) prepare and file with the Commission such amendments
and supplements to such registration statement and the
prospectus included therein as may be necessary to effect and
maintain the effectiveness of such registration statement for
the
7
<PAGE>
period specified in Section 2(b) and as may be required by
the applicable rules and regulations of the Commission and
the instructions applicable to the form of such registration
statement, and furnish to the holders of the Registrable
Debentures copies of any such supplement or amendment
simultaneously with or prior to its being used or filed with
the Commission;
(iii) comply, as to all matters within the Company's
control, with the provisions of the Securities Act with
respect to the disposition of all of the Registrable
Debentures covered by such registration statement in
accordance with the intended methods of disposition by the
holders thereof provided for in such registration statement;
(iv) provide to any of (A) the holders of the Registrable
Debentures to be included in such registration statement, (B)
the underwriters (which term, for purposes of this Agreement,
shall include a person deemed to be an underwriter within the
meaning of Section 2(11) of the Securities Act), if any,
thereof, (C) the sales or placement agent, if any, therefor,
(D) counsel for such underwriters or agent and (E) not more
than one counsel for all the holders of such Registrable
Debentures who so request of the Company in writing the
opportunity to participate in the preparation of such
registration statement, each prospectus included therein or
filed with the Commission and each amendment or supplement
thereto;
(v) for a reasonable period prior to the filing of such
registration statement, and throughout the Resale Period,
make available at reasonable times at the Company's principal
place of business or such other reasonable place for
inspection by the persons referred to in Section 3(b)(iv),
who shall certify to the Company that they have a current
intention to sell their Registrable Debentures pursuant to
the Shelf Registration Statement, such financial and other
information and books and records of the Company, and cause
the officers, employees, counsel and independent certified
public accountants of the Company to respond to such
inquiries, as shall be reasonably necessary, in the judgment
of the respective counsel referred to in such Section, to
conduct a reasonable investigation within the meaning of
Section 11 of the Securities Act; provided, however, that
each such party shall be required to maintain in confidence
and not to disclose to any other person any information or
records reasonably designated
8
<PAGE>
by the Company in writing as being confidential, until such
time as (A) such information becomes a matter of public
record (whether by virtue of its inclusion in such
registration statement or otherwise), or (B) such person
shall be required so to disclose such information pursuant to
a subpoena or order of any court or other governmental agency
or body having jurisdiction over the matter (subject to the
requirements of such order, and only after such person shall
have given the Company prompt prior written notice of such
requirement and the opportunity to contest the same or seek
an appropriate protective order), or (C) such information is
required to be set forth in such registration statement or
the prospectus included therein or in an amendment to such
registration statement or an amendment or supplement to such
prospectus in order that such registration statement,
prospectus, amendment or supplement, as the case may be, does
not contain an untrue statement of a material fact or omit to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(vi) promptly notify the selling holders of Registrable
Debentures, the sales or placement agent, if any, therefor
and the managing underwriter or underwriters, if any, thereof
named in the Shelf Registration Statement or a supplement
thereto, and confirm such notice in writing, (A) when such
registration statement or the prospectus included therein or
any prospectus amendment or supplement or post-effective
amendment has been filed, and, with respect to such
registration statement or any post-effective amendment, when
the same has become effective, (B) of the issuance by the
Commission of any stop order suspending the effectiveness of
such registration statement or the initiation or written
threat of any proceedings for that purpose, (C) of the
receipt by the Company of any notification with respect to
the suspension of the qualification of the Registrable
Debentures for sale in any jurisdiction or the initiation or
written threat of any proceeding for such purpose, or (D) at
any time when a prospectus is required to be delivered under
the Securities Act, that such registration statement,
prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of the Securities Act
and the Trust Indenture Act and the rules and regulations of
the Commission thereunder;
9
<PAGE>
(vii) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of such
registration statement or any post-effective amendment
thereto at the earliest practicable date;
(viii) if requested by any managing underwriter or
underwriters, any placement or sales agent or any holder of
Registrable Debentures, promptly incorporate in a prospectus
supplement or post-effective amendment such information as is
required by the applicable rules and regulations of the
Commission relating to the terms of the sale of such
Registrable Debentures, including information with respect to
the principal amount of Registrable Debentures being sold by
such holder or agent or to any underwriters, the name and
description of such holder, agent or underwriter, the
offering price of such Registrable Debentures and any
discount, commission or other compensation payable in respect
thereof, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the
offering of the Registrable Debentures to be sold by such
holder or agent or to such underwriters; and make all
required filings of such prospectus supplement or
post-effective amendment promptly after notification of the
matters to be incorporated in such prospectus supplement or
post-effective amendment;
(ix) furnish to each holder of Registrable Debentures,
each placement or sales agent, if any, therefor, each
underwriter, if any, thereof and the respective counsel
referred to in Section 3(b)(iv) an executed copy (or, in the
case of a holder of Registrable Debentures, a conformed copy)
of such registration statement, each such amendment or
supplement thereto (in each case including all exhibits
thereto) and such number of copies of such registration
statement (excluding exhibits thereto) and of the prospectus
included in such registration statement (including each
preliminary prospectus and any summary prospectus), in
conformity in all material respects with the applicable
requirements of the Securities Act and the Trust Indenture
Act and the rules and regulations of the Commission
thereunder; and the Company hereby consents to the use of
such prospectus (including any such preliminary or summary
prospectus) and any amendment or supplement thereto by each
such holder and by any such agent and underwriter, in each
case in the form most recently provided to such person by the
Company in connection with the offering and sale of the
Registrable Debentures covered by the prospectus (including
any
10
<PAGE>
such preliminary or summary prospectus) or any supplement or
amendment thereto; and
(x) use its reasonable best efforts to (A) register or
qualify the Registrable Debentures to be included in such
registration statement under such securities laws or blue sky
laws of such United States jurisdictions as any holder of
such Registrable Debentures and each placement or sales
agent, if any, therefor and underwriter, if any, thereof
shall reasonably request, and (B) keep such registrations or
qualifications in effect and comply with such laws so as to
permit the continuance of offers, sales and dealings therein
in such jurisdictions during the period the Shelf
Registration Statement is required to remain effective under
Section 2(b) and for so long as may be necessary to enable
any such holder, agent or underwriter to complete its
distribution of Debentures pursuant to such registration
statement but in any event not later than the date through
which the Company is required to keep the Shelf Registration
Statement effective pursuant to Section 2(b); provided,
however, that the Company shall not be required for any such
purpose to (1) qualify as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to
qualify but for the requirements of this Section 3(b)(x), (2)
consent to general service of process in any such
jurisdiction or (3) make any changes to its certificate of
incorporation or by-laws or any agreement between it and its
stockholders.
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information by such party; provided that the
Company shall use its reasonable best efforts to obtain the necessary
information from any party responsible for providing such information.
(c) In the event that the Company would be required,
pursuant to Section 3(b)(vi)(D), to notify the selling holders of
Registrable Debentures, the placement or sales agent, if any,
therefor or the managing underwriters, if any, thereof named in
the Shelf Registration Statement or a supplement thereto of the
existence of the circumstances described therein, the Company
shall promptly prepare and furnish to each such holder, to each
placement or sales agent, if any, and to each such underwriter, if
any, a reasonable number of copies of a prospectus supplemented or
amended so that, as thereafter delivered to purchasers of
Registrable Debentures, such prospectus shall conform in all
material
11
<PAGE>
respects to the applicable requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the Commission
thereunder. Each holder of Registrable Debentures agrees that upon
receipt of any notice from the Company, pursuant to Section
3(b)(vi)(D), such holder shall forthwith discontinue (and cause any
placement or sales agent or underwriters acting on their behalf to
discontinue) the disposition of Registrable Debentures pursuant to the
registration statement applicable to such Registrable Debentures until
such holder (i) shall have received copies of such amended or
supplemented prospectus and, if so directed by the Company, such
holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in such holder's
possession of the prospectus covering such Registrable Debentures at
the time of receipt of such notice or (ii) shall have received notice
from the Company that the disposition of Registrable Debentures
pursuant to the Shelf Registration Statement may continue.
(d) The Company may require each holder of Registrable
Debentures as to which any registration pursuant to Section 2(b)
is being effected to furnish to the Company such information
regarding such holder and such holder's intended method of
distribution of such Registrable Debentures as the Company may
from time to time reasonably request in writing, but only to the
extent that such information is required in order to comply with
the Securities Act. Each such holder agrees to notify the Company
as promptly as practicable of any inaccuracy or change in
information previously furnished by such holder to the Company or
of the occurrence of any event in either case as a result of which
any prospectus relating to such registration contains or would
contain an untrue statement of a material fact regarding such
holder or such holder's intended method of disposition of such
Registrable Debentures or omits to state any material fact
regarding such holder or such holder's intended method of
disposition of such Registrable Debentures required to be stated
therein or necessary to make the statements therein not
misleading, and promptly to furnish to the Company any additional
information required to correct and update any previously
furnished information or required so that such prospectus shall
not contain, with respect to such holder or the disposition of
such Registrable Debentures, an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(e) Until the expiration of two years after the Closing
Date, the Company will not, and will not permit any of its
"affiliates" (as defined in Rule 144) to resell any of the
Debentures that have been reacquired by any
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<PAGE>
of them except pursuant to an effective registration statement
under the Securities Act.
(f) In connection with the Company's obligations with
respect to the registration of Exchange Debentures as contemplated
by Section 2(a) (the "Exchange Registration"), if applicable, the
Company shall, as soon as reasonably practicable (or as otherwise
specified):
(i) prepare and file with the Commission such amendments
and supplements to the Exchange Offer Registration Statement
and the prospectus included therein as may be necessary to
effect and maintain the effectiveness thereof for the periods
and purposes contemplated in Section 2(a) hereof and as may
be required by the applicable rules and regulations of the
Commission and the instructions applicable to the form of the
Exchange Offer Registration Statement, and promptly provide
each broker-dealer holding Exchange Debentures with such
number of copies of the prospectus included therein (as then
amended or supplemented), in conformity in all material
respects with the requirements of the Securities Act and the
Trust Indenture Act and the rules and regulations of the
Commission thereunder, as such broker-dealer reasonably may
request for use in connection with resales of Exchange
Debentures;
(ii) promptly notify each broker-dealer that has
requested or received copies of the prospectus included in
the Exchange Offer Registration Statement, and confirm such
advice in writing, (A) when any prospectus amendment or
supplement or post-effective amendment to the Exchange Offer
Registration Statement has been filed, and, with respect to
any post-effective amendment to the Exchange Offer
Registration Statement, when the same has become effective,
(B) of the issuance by the Commission of any stop order
suspending the effectiveness of the Exchange Offer
Registration Statement or the initiation or threatening of
any proceedings for that purpose, (C) of the receipt by the
Company of any notification with respect to the suspension of
the qualification of the Exchange Debentures for sale in any
United States jurisdiction or the initiation or threatening
in writing of any proceeding for such purpose, or (D) at any
time when a prospectus is required to be delivered under the
Securities Act, that the Exchange Offer Registration
Statement, prospectus, prospectus amendment or supplement or
post-effective amendment does not conform in all material
respects to the applicable requirements of
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<PAGE>
the Securities Act and the Trust Indenture Act and the
rules and regulations of the Commission thereunder;
(iii) in the event that the Company would be required,
pursuant to Section 3(f)(ii)(D), to notify any broker-dealers
holding Exchange Debentures, promptly prepare and furnish to
each such holder a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter
delivered to purchasers of such Exchange Debentures, such
prospectus shall conform in all material respects to the
applicable requirements of the Securities Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder or notify such broker-dealers that the offer and
sale of Exchange Debentures pursuant to the Exchange Offer
Registration Statement may continue;
(iv) use its reasonable best efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Exchange Offer Registration Statement or any post-effective
amendment thereto at the earliest practicable date;
(v) use its reasonable best efforts to register or
qualify the Exchange Debentures under the securities laws or
blue sky laws of such jurisdictions as are contemplated by
Section 2(a) no later than the commencement of the Exchange
Offer, provided, however, that the Company shall not be
required for any such purpose to (1) qualify as a foreign
corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 3(f)(v), (2) consent to general service of
process in any such jurisdiction or (3) make any changes to
its certificate of incorporation or by-laws or any agreement
between it and its stockholders; and
(vi) make generally available to its security holders as
soon as practicable but no later than eighteen months after
the effective date of such registration statement, an earning
statement of the Company and its subsidiaries complying with
Section 11(a) of the Securities Act (including, at the option
of the Company, Rule 158 thereunder).
In case any of the foregoing obligations is dependent upon information provided
or to be provided by a party other than the Company, such obligation shall be
subject to the provision of such information; provided that the Company shall
use
14
<PAGE>
its reasonable best efforts to obtain the necessary information from any party
responsible for providing such information.
4. Registration Expenses.
The Company agrees to bear and to pay or cause to be paid promptly
upon request being made therefor all expenses incident to the Company's
performance of or compliance with this Agreement, including (a) all Commission
and any NASD registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Debentures or Exchange
Debentures for offering and sale under the State securities and blue sky laws
referred to in Section 3(b)(x) and Section 3(f)(v) hereof, including reasonable
fees and disbursements of one counsel for the placement or sales agent or
underwriters, if any, in connection with such qualifications, (c) all expenses
relating to the preparation, printing, distribution and reproduction of each
registration statement required to be filed hereunder, each prospectus included
therein or prepared for distribution pursuant hereto, each amendment or
supplement to the foregoing, the certificates representing the Debentures and
all other documents relating hereto, (d) fees and expenses of the Trustee under
the Indenture, and of any escrow agent or custodian, (e) internal expenses
(including all salaries and expenses of the Company's officers and employees
performing legal or accounting duties), (f) fees, disbursements and expenses of
counsel and independent certified public accountants of the Company (including
the expenses of any opinions or "cold comfort" letters required by or incident
to such performance and compliance) and (g) reasonable fees, disbursements and
expenses of one counsel for the holders of Registrable Debentures retained in
connection with a Shelf Registration Statement, as selected by the holders of
at least a majority in aggregate principal amount of the Registrable Debentures
being registered and approved by the Company, and fees, expenses and
disbursements of any other persons, including special experts, retained by the
Company in connection with such registration (collectively, the "Registration
Expenses"). To the extent that any Registration Expenses are incurred, assumed
or paid by any holder of Registrable Debentures or any placement or sales agent
therefor or underwriter thereof, the Company shall reimburse such person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a documented request therefor. Notwithstanding the
foregoing, the holders of the Registrable Debentures being registered shall pay
all agency fees and commissions and underwriting discounts and commissions
attributable to the sale of such Registrable Debentures and the fees and
disbursements of any counsel or other advisors or experts retained by such
holders (severally or jointly), other than the counsel and experts specifically
referred to above.
15
<PAGE>
5. Representations and Warranties
The Company represents and warrants to, and agrees with, the Initial
Purchasers and each of the holders from time to time of Registrable Debentures
that:
(a) Each registration statement covering Registrable
Debentures and each prospectus (including any preliminary or
summary prospectus) contained therein or furnished pursuant to
Section 3(c) or Section 3(f) hereof and any further amendments or
supplements to any such registration statement or prospectus, when
it becomes effective or is filed with the Commission, as the case
may be, and, in the case of an underwritten offering of
Registrable Debentures, at the time of the closing under the
underwriting agreement relating thereto, will conform in all
material respects to the applicable requirements of the Securities
Act and the Trust Indenture Act and the rules and regulations of
the Commission thereunder and will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; and at all times subsequent to the Effective Time when
a prospectus would be required to be delivered under the
Securities Act, other than from such time as a notice has been
given to holders of Registrable Debentures pursuant to Section
3(b)(vi)(D) or Section 3(f)(ii)(D) hereof until such time as the
Company furnishes an amended or supplemented prospectus pursuant
to Section 3(c) or Section 3(f)(iii) hereof or such time as the
Company provides notice that offers and sales pursuant to the
Exchange Offer Registration Statement or the Shelf Registration
Statement, as the case may be, may continue, each such
registration statement, and each prospectus (including any summary
prospectus) contained therein or furnished pursuant to Section
3(b) or Section 3(f) hereof, as then amended or supplemented, will
conform in all material respects to the applicable requirements of
the Securities Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder; provided, however, that
this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of
a holder of Registrable Debentures expressly for use therein.
(b) Any documents incorporated by reference in any
prospectus referred to in Section 5(a) hereof, when they become or
became effective or are or were filed with the Commission, as the
case may be, will conform or conformed in all material respects to
the requirements of the Securities Act or the Exchange Act, as
applicable, and none of such documents will contain or contained
an untrue statement of a material fact
16
<PAGE>
or will omit or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by a
holder of Registrable Debentures expressly for use therein.
(c) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not contravene any provision
of applicable law or the certificate of incorporation or by-laws
of the Company or, except to the extent that any such
contravention would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, any indenture or
instrument relating to indebtedness for money borrowed or any
agreement to which the Company is a party or any order, rule,
regulation or decree of any court or governmental agency or
authority located in the United States having jurisdiction over
the Company or any property of the Company; and, to the best
knowledge of the Company, no consent, authorization or order of,
or filing or registration with, any court or governmental agency
or authority is required for the consummation by the Company of
the transactions contemplated by this Agreement, except the
registration under the Securities Act contemplated hereby,
qualification of the Indenture, under the Trust Indenture Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under State securities or blue
sky laws.
(d) This Agreement has been duly authorized, executed and
delivered by the Company.
6. Indemnification
(a) In connection with an Exchange Offer Registration
Statement or a Shelf Registration Statement, the Company agrees to
indemnify and hold harmless each of the holders of Registrable
Debentures included in such Exchange Offer Registration Statement
or Shelf Registration Statement, and each person who is named in
such Exchange Offer Registration Statement or Shelf Registration
Statement or a supplement thereto as a placement or sales agent or
as an underwriter in any offering or sale of such Registrable
Debentures and each person who controls any such person (each, a
"Participant") from and against any and all losses, claims,
damages and liabilities (including the fees and expenses of
counsel in connection with any governmental or regulatory
investigation or proceeding) caused by any untrue statement or
alleged
17
<PAGE>
untrue statement of a material fact contained in any registration
statement under which such Registrable Debentures were registered
under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto, or caused by any
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information furnished
in writing to the Company by any Participant expressly for use
therein.
(b) In case any action shall be brought against any Participant, based
upon any registration statement under which the Registrable Debentures were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto and in respect of which
indemnity may be sought against the Company, such Participant shall promptly
notify the Company in writing, and the Company, upon the request of such
Participant, shall assume the defense thereof on behalf of such Participant,
including the employment of counsel and payment of all expenses. In any such
action, any Participant shall have the right to employ its own counsel but the
fees and expenses of such counsel shall be at the expense of such Participant
unless (i) the employment of such counsel has been specifically authorized in
writing by the Company or (ii) the named parties to any such action (including
any impleaded parties) include both such Participant and the Company and such
Participant shall have been advised by such counsel that there may be one or
more legal defenses available to it which are different from or additional to
those available to the Company (it being understood, however, that the Company
shall not, in connection with any one such action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (in addition to one firm
of local counsel) for all such Participants, which firm shall be designated in
writing by you, and that such fees and expenses shall be reimbursed as they are
incurred). The Company shall not be liable for indemnification (or contribution
as provided below) with respect to the settlement of any such action effected
without its written consent, but if settled with the written consent of the
Company or if there be a final judgment for the plaintiff in any such action,
the Company agrees to indemnify and hold harmless any Participant from and
against any loss or liability by reason of such settlement or judgment (or to
make contribution as provided below).
18
<PAGE>
(c) Each Participant agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers and any person
controlling the Company to the same extent as the foregoing indemnity from the
Company to each Participant, but only with reference to information relating to
such Participant furnished in writing by such Participant expressly for use in
any registration statement under which such Registrable Debentures were
registered under the Securities Act, or any preliminary, final or summary
prospectus contained therein or furnished by the Company to any such
Participant, or any amendment or supplement thereto. In case any action shall
be brought against the Company, any of its directors or any such officer or
controlling person based on any registration statement under which such
Registrable Debentures were registered under the Securities Act, or any
preliminary, final or summary prospectus contained therein or furnished by the
Company to any such Participant, or any amendment or supplement thereto and in
respect of which indemnity may be sought against any Participant, each
Participant shall have the rights and duties given to the Company, and the
Company, its directors or any such officer or controlling person shall have the
rights and duties given to each Participant, by Section 6(b).
(d) If the indemnification provided for in Section 6(a) is unavailable
to any Participant or other indemnified party in respect of any losses, claims,
damages or liabilities referred to therein, then the Company, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Participants
on the other from the offering of the Registrable Debentures or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Participants on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Participants
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total purchasing discounts and commissions received by the
Participants, in each case as set forth in any registration statement under
which such Registrable Debentures were registered under the Securities Act, or
any preliminary, final or summary prospectus contained therein or furnished by
the Company to any such Participant, or any amendment or supplement thereto.
The relative fault of the Company and of the Participants shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
19
<PAGE>
relates to information supplied by the Company or by the Participants and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(e) If the indemnification provided for in this Section 6 is sought
solely by the Company under Section 6(c) hereof and there is no claim for
indemnification by any Participant arising out of the same misstatement or
omission and if such indemnification is unavailable to the Company in respect
of any losses, claims, damages or liabilities referred to in Section 6(c), then
the Participants, in lieu of indemnifying the Company, shall contribute to the
amount paid or payable by the Company as a result of such losses, claims,
damages or liabilities in such proportion as is appropriate to reflect the
relative fault of the Company on the one hand and of the Participants on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company on the one hand and of the
Participants on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Participants and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(f) The Company and the Participants agree that it would not be just
and equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Participants were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the two immediately preceding
paragraphs. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in such paragraphs
shall be deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 6, no Participant shall be
required to contribute any amount in excess of the amount by which the total
price at which the Registrable Debentures purchased by it and distributed to
the public were offered to the public in connection with the initial offering
of the Debentures exceeds the amount of any damages which such Participant has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who is not guilty of such
fraudulent misrepresentation. The Participants' obligations to contribute
pursuant to this Section 6 are several in proportion to their respective
purchasing percentages and not joint.
20
<PAGE>
(g) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company set forth in
this Agreement shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Participant or by or on behalf of the Company, its directors or
officers or any person controlling the Company and (iii) acceptance of and
payment for any of the Registrable Debentures.
7. Rule 144.
The Company covenants to the holders of Registrable Debentures that
the Company shall use its reasonable best efforts to timely file the reports
required to be filed by it under the Exchange Act or the Securities Act
(including the reports under Section 13 and 15(d) of the Exchange Act referred
to in subparagraph (c)(1) of Rule 144 adopted by the Commission under the
Securities Act) and the rules and regulations adopted by the Commission
thereunder, all to the extent required from time to time to enable such holder
to sell Registrable Debentures without registration under the Securities Act
within the limitations of the exemption provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
or successor rule or regulation hereafter adopted by the Commission. Upon the
request of any holder of Registrable Debentures in connection with that
holder's sale pursuant to Rule 144, the Company shall deliver to such holder a
written statement as to whether it has complied with such requirements.
Notwithstanding the foregoing, nothing in this Section 7 shall be deemed to
require the Company to register any of its securities under any section of the
Exchange Act.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company represents,
warrants, covenants and agrees that it has not granted, and shall
not grant, registration rights with respect to Registrable
Debentures which would be inconsistent with the terms contained in
this Agreement.
(b) Notices. All notices, requests, claims, demands,
waivers and other communications hereunder shall be in writing and
shall be deemed to have been duly given when delivered by hand, if
delivered personally or by courier, or three days after being
deposited in the mail (registered or certified mail, postage
prepaid, return receipt requested) as follows: If to the Company,
to it at 139 East Fourth Street, Cincinnati, Ohio 45202, Attn:
Vice President and Treasurer; if to an Initial Purchaser, to it at
the address for the Initial Purchasers set forth in the Purchase
Agreement; and if to a holder, to the address of such holder set
forth in the security register
21
<PAGE>
or other records of the Company or to such other address as the
Company or any such holder may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall
be effective only upon receipt.
(c) Parties in Interest. All the terms and provisions of
this Agreement shall be binding upon, shall inure to the benefit
of and shall be enforceable by the respective successors and
assigns of the parties hereto. In the event that any transferee
of any holder of Registrable Debentures shall acquire Registrable
Debentures, in any manner, whether by gift, bequest, purchase,
operation of law or otherwise, such transferee shall, without any
further writing or action of any kind, be deemed a party hereto
for all purposes and such Registrable Debentures shall be held
subject to all of the terms of this Agreement, and by taking and
holding such Registrable Debentures such transferee shall be
entitled to receive the benefits of, and be conclusively deemed to
have agreed to be bound by and to perform, all of the applicable
terms and provisions of this Agreement.
(d) Survival. The respective indemnities, agreements,
representations, warranties and each other provision set forth in
this Agreement or made pursuant hereto shall remain in full force
and effect regardless of any investigation (or statement as to the
results thereof) made by or on behalf of any holder of Registrable
Debentures, any director, officer or partner of such holder, any
agent or underwriter or any director, officer or partner thereof,
or any controlling person of any of the foregoing, and shall
survive delivery of and payment for the Registrable Debentures
pursuant to the Purchase Agreement and the transfer and
registration of Registrable Debentures by such holder and the
consummation of an Exchange Offer.
(e) LAW GOVERNING. THIS REGISTRATION RIGHTS AGREEMENT
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW YORK.
(f) Headings. The descriptive headings of the several
Sections and paragraphs of this Agreement are inserted for
convenience only, do not constitute a part of this Agreement and
shall not affect in any way the meaning or interpretation of this
Agreement.
(g) Entire Agreement; Amendments. This Agreement and the
other writings referred to herein (including the Indenture) or
delivered pursuant hereto which form a part hereof contain the
entire understanding
22
<PAGE>
of the parties with respect to its subject matter. This Agreement
supersedes all prior agreements and understandings between the parties
with respect to its subject matter. This Agreement may be amended and
the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively) only by a written instrument duly executed by the
Company and the holders of at least a majority in aggregate principal
amount of the Registrable Debentures at the time outstanding. Each
holder of any Registrable Debentures at the time or thereafter
outstanding shall be bound by any amendment or waiver effected
pursuant to this Section 8(g), whether or not any notice, writing or
marking indicating such amendment or waiver appears on such
Registrable Debentures or is delivered to such holder.
(h) Inspection. For so long as this Agreement shall be in
effect, this Agreement and a complete list of the names and
addresses of all the holders of Registrable Debentures shall be
made available for inspection and copying on any business day by
any holder of Registrable Debentures for proper purposes only
(which shall include any purpose related to the rights of the
holders of Registrable Debentures under the Debentures, the
Indenture and this Agreement) at the offices of the Company at the
address thereof set forth in Section 8(b) above, or at the office
of the Trustee under the Indenture.
(i) Counterparts. This Agreement may be executed by the
parties in counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together
constitute one and the same instrument.
(j) Remedies. In the event of a breach by the Company of
its obligations under this Agreement, each Holder of Registrable
Debentures, in addition to being entitled to exercise all rights
granted by law, including recovery of damages, will be entitled to
specific performance of its rights under this Agreement; provided
that the sole damages payable for a violation of the terms of this
Agreement for which liquidated damages are expressly provided
pursuant to Section 2(c) hereof shall be such liquidated damages.
The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of
any of the provisions of this Agreement and hereby further agrees
that, in the event of any action for specific performance in
respect of such breach, it shall waive the defense that a remedy
at law would be adequate.
23
<PAGE>
(k) Successors and Assigns. Any person who purchases any
Registrable Debentures from an Initial Purchaser shall be deemed,
for purposes of this Agreement, to be an assignee of such Initial
Purchaser. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties and
shall inure to the benefit of and be binding upon each Holder of
any Registrable Debentures.
(l) Severability. If any term, provision, covenant or
restriction of this Agreement is held to be invalid, illegal, void
or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in full
force and effect and shall in no way be affected, impaired or
invalidated thereby, and the parties hereto shall use their best
efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated
and declared to be the intention of the parties that they would
have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter
declared invalid, illegal, void or unenforceable.
(m) Attorneys' Fees. In any action or proceeding brought
to enforce any provision of this Agreement, or where any provision
hereof is validly asserted as a defense, the prevailing party, as
determined by the court, shall be entitled to recover reasonable
attorneys' fees in addition to any other available remedy.
(n) Further Assurances. Each of the parties hereto shall
use all reasonable efforts to take, or cause to be taken, all
appropriate action, do or cause to be done all things reasonably
necessary, proper or advisable under applicable law, and execute
and deliver such documents and other papers, as may be required to
carry out the provisions of this Agreement and the other documents
contemplated hereby and consummate and make effective the
transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the
Effectiveness Period, except for any liabilities or obligations
under Sections 4 or 5 hereof and the obligations to make payments
of and provide for liquidated damages under Section 2(c) hereof to
the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in
accordance with their terms.
24
<PAGE>
Agreed to and accepted as of the date referred to above.
CINERGY CORP.
By: /s/ William Sheafer
-----------------------------------
Name: William Sheafer
Title: Vice President and Treasurer
MORGAN STANLEY & CO.
INCORPORATED
ABN AMRO INCORPORATED
CHASE SECURITIES INC.
By: MORGAN STANLEY & CO.
INCORPORATED
By: /s/ Michael Fusco
-----------------------------------
Name: Michael Fusco
Title: Vice President
<PAGE>
Cinergy Corp.
Certificate
-----------
I, William Shaefer, Vice President and Treasurer of Cinergy Corp., a
Delaware corporation (the "Company"), hereby certify that I have authorized the
issuance by the Company of $200,000,000 aggregate principal amount of 6.53%
Debentures due 2008 (the "Debentures") pursuant to the resolutions of the Board
of Directors of the Company adopted July 29, 1998 with terms and provisions as
set forth in the Purchase Agreement, dated December 9, 1998, between the
Company and Morgan Stanley & Co. Incorporated, ABN AMRO Incorporated and Chase
Securities Inc.
December 16, 1998
/s/ William Sheafer
----------------------------------
Name: William Sheafer
Title: Vice President and Treasurer
Exhibit 5.1
[LETTERHEAD OF TAFT, STETTINIUS & HOLLISTER LLP]
April 8, 1999
Cinergy Corp.
139 E. Fourth Street
Cincinnati, OH 45202
Dear Sirs:
In connection with the registration under the Securities Act of 1933
(the "Act") of $200 million principal amount of 6.53% Debentures due 2008
(the "New Debentures") of Cinergy Corp., a Delaware corporation (the
"Company"), to be issued in exchange for the Company's outstanding 6.53%
Debentures due 2008 pursuant to (i) the Indenture (the "Indenture") dated
as of December 16, 1998 between the Company and Fifth Third Bank, as
trustee (the "Trustee"), and (ii) the Registration Rights Agreement dated
as of December 16, 1998 (the "Registration Rights Agreement") by and among
the Company and Morgan Stanley & Co. Incorporated, Chase Securities Inc.
and ABN AMRO Incorporated, we, as your counsel, have examined such
corporate records, certificates and other documents, and such questions of
law, as we have considered necessary or appropriate for the purposes of
this opinion.
Upon the basis of such examination, we advise you that, in our
opinion, the New Debentures have been duly authorized by the Company; and
when the Securities and Exchange Commission declares the Company's
Registration Statement on Form S-4 effective and the New Debentures have
been duly executed, authenticated, issued and delivered in accordance with
the terms of the Registration Rights Agreement and the Indenture, the New
Debentures will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
The foregoing opinion is limited to the federal laws of the United
States of America, the Delaware General Corporation Law and the laws of the
State of New York, and we are expressing no opinion as to the effect of the
laws of any other jurisdiction.
In connection with the foregoing, we have assumed that at the time of
the issuance and delivery of the New Debentures there will not have
occurred any change in law affecting the validity, legally binding
character or enforceability of the New Debentures and that the issuance and
delivery of the New Debentures, all of the terms of the New Debentures and
the performance by the Company of its obligations thereunder will comply
with applicable law and with each requirement or restriction imposed by any
court or governmental body having jurisdiction over the Company and will
not result in a default under or a breach of any agreement or instrument
then binding upon the Company.
In rendering the foregoing opinion, we have relied as to certain
matters on information obtained from public officials, officers of the
Company and other sources believed by us to be responsible, and we have
assumed (i) that the Indenture has been duly authorized, executed and
delivered by the Trustee, (ii) that the New Debentures will conform to the
form thereof set forth in the Indenture, (iii) that the Trustee's
certificates of authentication of the New Debentures will be manually
signed by one of the Trustee's authorized officers and (iv) that the
signatures on all documents examined by us are genuine, assumptions which
we have not independently verified.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus. In giving such consent, we do not hereby admit
that we are in the category of persons whose consent is required under
Section 7 of the Act.
Very truly yours,
/S/ TAFT, STETTINIUS &
HOLLISTER LLP
EXHIBIT 12.1
CINERGY CORP.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
12 Months Ended December 31
-----------------------------------------------------------------
1998 1997 1996 1995 1994
---------- -------- -------- -------- --------
(Thousands, except ratios)
<S> <C> <C> <C> <C> <C>
Earnings Available
Net Income $260,968 $362,638 $334,797 $347,182 $191,142
Plus:
Preferred Dividend Requirements 6,517 12,569 23,180 30,853 35,559
Income Taxes 117,187 213,000 198,736 214,071 141,572
Interest on Long-term Debt 183,849 181,772 190,617 213,911 219,248
Other Interest 67,219 59,947 31,169 20,826 20,370
Interest Component of Rents (a) 10,760 10,482 9,494 10,039 10,552
========== ======== ======== ======== ========
Total Available $646,500 $840,408 $787,993 $836,882 $618,443
========== ======== ======== ======== ========
Fixed Charges
Interest Charges $251,068 $241,719 $221,786 $234,737 $239,618
Interest Component of Rents (a) 10,760 10,482 9,494 10,039 10,552
========== ======== ======== ======== ========
Total Fixed Charges $261,828 $252,201 $231,280 $244,776 $250,170
========== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 2.47 3.33 3.41 3.42 2.47
========== ======== ======== ======== ========
</TABLE>
- ------------------
(a) Estimated interest component of rentals (1/3 of rentals was used where no
readily defined interest element could be determined).
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 28, 1999,
included in Cinergy Corp.'s Annual Report on Form 10-K for the year ended
December 31, 1998, and to all references to our Firm included in this
Registration Statement.
/S/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Cincinnati, Ohio
April 7, 1999.
EXHIBIT 24.1
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 2nd day of February, 1999.
/S/ NEIL A. ARMSTRONG
Neil A. Armstrong
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ JAMES K. BAKER
James K. Baker
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ MICHAEL G. BROWNING
Michael G. Browning
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ PHILLIP R. COX
Phillip R. Cox
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ KENNETH S. DUBERSTEIN
Kenneth M. Duberstein
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ CHERYL M. FOLEY
Cheryl M. Foley
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ JOHN A. HILLENBRAND II
John A. Hillenbrand II
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ GEORGE C. JUILFS
George C. Juilfs
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ MELVIN PERELMAN
Melvin Perelman, Ph.D.
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ THOMAS E. PETRY
Thomas E. Petry
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 9th day of February, 1999.
/S/ JACKSON H. RANDOLPH
Jackson H. Randolph
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney to be
executed as of this 29th day of July, 1998.
/S/ JAMES E. ROGERS
James E. Rogers
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ JOHN J. SCHIFF, JR.
John J. Schiff, Jr.
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ PHILIP R. SHARP
Philip R. Sharp, Ph.D.
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ VAN P. SMITH
Van P. Smith
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ DUDLEY S. TAFT
Dudley S. Taft
POWER OF ATTORNEY
KNOW ALL BY THESE PRESENTS, that the undersigned hereby constitutes
and appoints Charles J. Winger, William L. Sheafer, Cheryl M. Foley and
Jerome A. Vennemann, or any of them, the undersigned's true and lawful
attorney-in-fact and agent for the undersigned and in the undersigned's
name to sign Registration Statements of Cinergy Corp. on Form S-3 or such
appropriate form as may be required, including any and all amendments and
supplements thereto (the "Registration Statements"), for the registration
of up to an aggregate of $400,000,000 principal amount or par value, as the
case may be, of (i) senior unsecured indebtedness ("Senior Debentures"),
(ii) junior unsecured subordinated debentures ("Subordinated Debentures"),
(iii) securities representing undivided beneficial interests in one or more
direct or indirect subsidiary limited partnerships, limited liability
companies or statutory business trusts holding Senior Debentures as assets,
and/or (iv) preferred securities of one or more direct or indirect
subsidiary limited partnerships, limited liability companies or statutory
business trusts holding Subordinated Debentures as assets, and to file such
Registration Statements, with all exhibits thereto and other documents in
connection therewith, with the Securities and Exchange Commission, granting
unto the attorneys-in-fact and agents, full authority to do each act
necessary to be done, as fully to all purposes that the undersigned might
do in person, hereby ratifying all that the attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this Power of Attorney
to be executed as of this 29th day of July, 1998.
/S/ OLIVER W.WADDELL
Oliver W. Waddell
EXHIBIT 24.2
CERTIFICATE OF ASSISTANT CORPORATE SECRETARY
--------------------------------------------
I, JEROME A. VENNEMANN, an Assistant Corporate Secretary of Cinergy
Corp., a Delaware corporation, DO HEREBY CERTIFY that the following is a
true and correct copy of a resolution duly adopted by the Board of
Directors of said corporation on July 29, 1998, and that such resolution
has not been amended and is in full force and effect on the date hereof:
RESOLVED FURTHER That each officer and director of the Corporation who
may be required to sign and execute each Registration Statement
covering such securities or amendments and supplements thereto or
documents in connection therewith (whether for or on behalf of the
Corporation, or as an officer of the Corporation, or otherwise) is
hereby authorized to execute a power of attorney appointing Charles J.
Winger, Vice President and Chief Financial Officer, William L.
Sheafer, Vice President and Treasurer, Cheryl M. Foley, Vice
President, General Counsel and Corporate Secretary, and Jerome A.
Vennemann, Assistant Corporate Secretary, and each of them, severally,
his or her true and lawful attorney or attorneys to sign in his or her
name, place and stead in any such capacity such Registration
Statements any and all amendments thereto, including amendments or
supplements to the prospectus contained in such Registration Statement
or amendments thereto and the addition or amendment of exhibits and
other documents in connection therewith, and to file the same with the
Commission, each of such attorneys to have power to act with or
without the other, and to have full power and authority to do and
perform, in the name and on behalf of each of such officers and
directors who shall have executed such a power of attorney, every act
whatsoever which such attorneys, or either of them, may deem necessary
or advisable to be done in connection therewith as fully and to all
intents and purposes as such officers or directors might or could do
in person.
IN WITNESS WHEREOF, I have hereunto subscribed my name this 8th day of
April, 1999.
/S/ JEROME A. VENNEMANN
Jerome A. Vennemann
Assistant Corporate Secretary
Exhibit 25.1
T-1 File No. ____
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Statement of Eligibility Under the
Trust Indenture Act of 1939 of a Corporation
Designated to Act as Trustee
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(B)(2)
FIFTH THIRD BANK
- ------------------------------------------------------------------------------
(Exact name of trustee as specified in its charter)
Ohio
- ------------------------------------------------------------------------------
(Jurisdiction of incorporation or organization if not a national bank)
----------------------------------------------------------------------
31-0854433
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
38 Fountain Square Plaza, Cincinnati, Ohio
- ------------------------------------------------------------------------------
(Address of principal executive offices)
45263
- ------------------------------------------------------------------------------
(Zip Code)
Paul L. Reynolds, 5th and Walnut Streets
Cincinnati, Ohio, 45263 (513) 579-5300
- ------------------------------------------------------------------------------
(Name, address and telephone number of agent for service)
CINERGY CORP.
---------------------------------------------------
(Exact name of obligor as specified in its charter)
Delaware
- ------------------------------------------------------------------------------
(State or other jurisdiction of incorporation or organization)
31-1385023
- ------------------------------------------------------------------------------
(I.R.S. Employer Identification No.)
139 East Fourth Street, Cincinnati, Ohio
- ------------------------------------------------------------------------------
(Address of principal executive offices)
45202
- ------------------------------------------------------------------------------
(Zip Code)
6.53% Debentures Due 2008
- ------------------------------------------------------------------------------
(Title of the indenture securities)
<PAGE>
Item 1. General information.
Furnish the following information as to the trustee -
(a) Name and address of each examining or supervising authority to
which it is subject.
Ohio Superintendent of Banks
State Office Tower
30 E. Broad Street
Columbus, Ohio 43215
Federal Reserve Bank of Cleveland
East Sixth Street and Superior Avenue
Cleveland, Ohio 44101
Federal Deposit Insurance Corporation,
Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
Items 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15 are not applicable by virtue
of the answer to Item 13.
Item 13. Defaults by the obligor.
(a) State whether there is or has been a default with respect to the
securities under this indenture. Explain the nature of any such default.
None.
(b) If the Trustee is a trustee under another indenture under which
any other securities, or certificates of interest or participation in any
other securities, of the obligor are outstanding, or is trustee for more
than one outstanding series of securities under the indenture, state
whether there has been a default under any such indenture or series,
identify the indenture or series affected, and explain the nature of any
such default.
None.
2
<PAGE>
Item 16. List of Exhibits.
List below all exhibits filed as a part of this statement of
eligibility. (Exhibits identified in parentheses, on file with the
Commission, are incorporated herein by reference as exhibits hereto.)
(1) A copy of the Certificate of Incorporation of the trustee as now in
effect.
(2) A copy of the certificate of authority of the trustee to commence
business. (Included in Exhibit 1)
(3) A copy of the authorization of the trustee to exercise corporate
trust powers.
(4) A copy of the existing code of regulations of the trustee
incorporating amendments to date.
(5) A copy of each indenture referred to in Item 4.
(6) The consent of the trustee required by Section 321 (b) of the Trust
Indenture Act of 1939.
(7) A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
(8) A copy of any order pursuant to which the foreign trustee is
authorized to act as sole trustee under indentures qualified or to
be qualified under the Act.
(9) Foreign trustees are required to file a consent to service of
process of Form F-X
3
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Fifth Third Bank, a corporation organized and existing under the
laws of the State of Ohio, has duly caused this statement of eligibility
and qualification to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Cincinnati and the State of Ohio, on
the 7th day of April, 1999.
FIFTH THIRD BANK
By: /S/ KERRY R. BYRNE
Kerry R. Byrne,
Vice President and Trust Officer
4
<PAGE>
EXHIBIT 1
CERTIFICATE OF INCORPORATION
OF THE TRUSTEE AS NOW IN EFFECT
CERTIFICATE OF AMENDED ARTICLES OF INCORPORATION
OF
FIFTH THIRD BANK
F.K.A. The Fifth Third Bank
George A. Schaefer, Jr., President and Paul L. Reynolds, Assistant
Secretary, of the above named Ohio banking corporation do hereby certify
that in a writing signed by all the shareholders who would be entitled to
notice of a meeting held for that purpose, the following resolution to
amend the Articles was adopted:
RESOLVED, that the Articles of Incorporation, as amended, of The Fifth Third
Bank, (the "Company"), be and the same hereby are amended so that Article
First thereof shall henceforth be and read as follows:
FIRST: The name of said Corporation shall be "Fifth Third Bank'.
IN WITNESS WHEREOF, the above named officers, acting for and on behalf
of the corporation, have hereto subscribed their names this 4(th) day of
October 1998.
By: /s/ George A. Schaefer, Jr.
--------------------------------------
George A. Schaefer, Jr., President
By: /s/ Paul L. Reynolds
--------------------------------------
Paul L. Reynolds, Assistant Secretary
Approved this 2nd day of November, 1999.
/s/ W. Curtis Stitt
- ---------------------------------
W. Curtis Stitt, Superintendent
Division of Financial Institutions
5
<PAGE>
CERTIFICATE OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
George A. Schaefer, Jr., President and Phillip C. Long, Secretary to
The Fifth Third Bank, an Ohio banking corporation, with its principal
office located at Cincinnati, Hamilton County, Ohio, do hereby certify that
a duly called meeting of the Board of Directors held on May 18, 1993, at
which a quorum was present and at a special meeting of the shareholder on
May 18, 1993, the following resolution to amend the Third Amended Articles
of Incorporation which adopted by affirmative vote of all the Directors in
attendance and by an unanimous vote of the sole shareholder.
RESOLVED, that Article FOURTH of the Third Amendment Articles of
Incorporation be and is hereby amended in its entirety to read as
follows:
FOURTH: The maximum number of shares with the corporation is
authorized to have outstanding shall be Thirty-Two Thousand (32,000)
shares with a par value of Two Thousand Two Hundred Dollars
($2,200.00) per share.
IN WITNESS WHEREOF, said George A. Schaefer, Jr., President and
Phillip C. Long, Secretary of The Fifth Third Bank, acting for and on
behalf of said corporation have hereunto subscribed their names this 18th
day of May , 1993.
/s/ George A. Schaefer, Jr.
----------------------------------------
George A. Schaefer, Jr., President
Approved this 16th day of June, 1993
/s/ Allison M. Meeks
- ------------------------------------
Allison M. Meeks, Superintendent
/s/ Phillip C. Long
----------------------------------------
Phillip C. Long, Secretary
6
<PAGE>
THIRD AMENDED ARTICLES OF INCORPORATION
OF
THE FIFTH THIRD BANK
FIRST: The name of said Corporation shall be "The Fifth Third Bank".
SECOND: The place in Ohio where its principal office is to be located
is Cincinnati, Hamilton County, and its principal business there
transacted.
THIRD: Said Corporation is formed for the purposes of (a) receiving
on deposit or in trust, moneys, securities and other valuable property, on
such terms as may be agreed, and of doing the business of a savings bank
and of a trust company; (b) of disposing of box vaults for safekeeping of
valuables by lease or otherwise; (c) of investing and loaning the funds of
the company and those received by it on deposit or in trust; (d) of doing
a commercial banking business; and, (e) of doing the business of a special
plan bank, and in furtherance of said purposes, to exercise all the powers
of which may be lawfully exercised by a corporation formed therefore, and
to do all things necessary to incident thereto.
FOURTH: The maximum number of shares which the corporation is
authorized to have outstanding shall be Thirty-Two Thousand (32,000) shares
with a par value of One Thousand Nine Hundred Dollars ($1,900.00) per
share.
FIFTH: These Amended Articles of Incorporation supersede and take the
place of the existing Articles of Incorporation.
7
<PAGE>
EXHIBIT 2
CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
(INCLUDED IN EXHIBIT 1)
8
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
[See Attached]
9
<PAGE>
STATE OF OHIO
DIVISION OF FINANCIAL INSTITUTIONS
This is to certify that Fifth Third Bank, Cincinnati, Ohio, organized under
the laws of the State of Ohio has complied with the laws relating to trust
companies under Section 1111.04 of the Ohio Revised Code and is qualified to
exercise trust powers in Ohio.
Witness my hand at Columbus, Ohio, this 1(st) day of March, 1999.
/s/ F. Scott O'Donnell
--------------------------
F. SCOTT O'DONNELL
Superintendent
Division of Financial Institutions
10
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING CODE OF REGULATIONS OF THE TRUSTEE
INCORPORATING AMENDMENTS TO DATE
[See Attached]
11
<PAGE>
Code of Regulations of Fifth Third Bank
ARTICLE I
STOCKHOLDERS
Section 1. Meetings. The annual meeting of the Stockholders shall be
held at the principal office of the Company at such hour, as may be fixed
in the notice of such meeting, and on such date, not earlier than the
second Tuesday of January or later than the third Tuesday of April of each
year, as shall be fixed by the Board of Directors and communicated in
writing to the Shareholders not later than twenty (20) days prior to such
meeting.
Section 2. Quorum. Stockholders, whether in person or by lawful
proxies, representing a majority in amount of the outstanding stock of the
Company, shall constitute a quorum at any stockholders' meeting. If there
be less than a majority in amount of such stock at any meeting, the meeting
may be adjourned from time to time.
ARTICLE II
DIRECTORS
Section 1. Number. The Board of Directors shall be composed of
eighteen (18) persons unless this number is changed by: (1) the
Shareholders in accordance with the laws of Ohio or (2) the vote of a
majority of the Directors in office. The Directors may increase the number
to not more than twenty-four (24) persons and may decrease the number to
not less than fifteen (15) persons. Any Director's office created by the
Directors by reason of an increase in their number may be filled by action
of a majority of the Directors in office.
Section 2. Term. Directors shall hold office until the expiration of
the term for which they were erected, and shall continue in office until
their respective successors shall have been duly elected and qualified.
Section 3. Qualifications and Compensation. No person shall serve as
a Director who is not the owner of record of at least Five Hundred
($500.00) Dollars par value of stock of the Company. Each Director shall
be entitled to receive such compensation for attendance at meetings of the
Board of Directors of Committees thereof as the Board of Directors may,
from time to time, fix.
Section 4. Replacement or Removal. Directors may be replaced or
removed as provided by Ohio Law, provided that Directors may be removed
without cause only by an affirmative vote of not less than two-thirds (_)
of the outstanding shares of the Company.
Section 5. Vacancies. Any vacancy occurring in the Board of
Directors may be filled by the Board of Directors until an election to fill
such vacancy is had.
Section 6. Quorum. A majority of the whole authorized number of
Directors, as the same shall be established from time to time in accordance
with Section 1 of this Code of Regulations, shall constitute a quorum for a
meeting of the Directors, except that a majority of the Directors in office
constitute a quorum for the filling of a vacancy or vacancies of the Board.
12
<PAGE>
Section 7. Election of Officers. The Board of Directors at the first
meeting after the election of Directors may elect one of its own number
Chairman of the Board and one of its own number Vice Chairman of the Board; and
it shall elect one of its own number President. It may also elect one or more
vice presidents (one or more of whom may be designated Executive Vice President
and/or Senior Vice President and/or Vice President and Trust Officer), a
Cashier, a Secretary, and a Treasurer, and it may appoint such other officers
as the Board may deem advisable. Any two of said offices may be held by the
same person. Officers so elected shall hold office during the term of the Board
by whom they are elected, subject to the power of the Board to remove them at
its discretion. They shall be bonded in such amount and with such survey or
sureties as the Board of Directors shall require.
Section 8. Meetings of the Board. Regular meetings of the Board of
Directors shall be held on the third Tuesday of each month, or at such
other times as may be determined by the Board of Directors. Except as
otherwise provided by law, any business may be transacted at any regular
meeting of the Board of Directors. Special meetings shall be held upon the
call of the Chairman of the Board, if one be elected, or by the President,
or in their absence, by a Vice President or any three (3) Directors.
Section 9. Notice of Meetings. The Secretary shall give notice of
each meeting of the Board of Directors, whether regular or special, to each
member of the Board.
Section 10. Committees.
Section 10.1 Executive Committee. The Board of Directors shall
appoint any Executive Committee consisting of at least three (3) members,
all of whom may be members of the Board of Directors, or at least one (1)
of whom shall be a Director, the remainder to be officers of the Bank.
Such Executive Committee shall serve until their successors are appointed.
A majority of the members of said Committee shall constitute a quorum. The
Executive Committee shall conduct the business of the Company and shall
have all the powers of the Board of Directors when said Board is not in
session, except that of declaring a dividend. The Secretary of the Company
shall keep a record of the Committee's proceedings, which, signed by the
Chairman of the Committee, shall be presented at the meetings of the
Committee and at the meetings of the Board of Directors.
Section 10.2 Other Committees. The Board of Directors shall appoint a
Trust Committee of which the Vice President and Trust Officer and at least
three (3) of its members who are not officers of the Company shall be
members. The Vice President and Trust Officer shall be Chairman of the
Trust Committee. In addition thereto, the Chairman of the Board, Chief
Executive Officer, may appoint such additional Committees, by and with the
approval of the Board of Directors, as may be deemed desirable or
necessary.
Each such Committee, so appointed, shall have such powers and perform
such duties, not inconsistent with law, as may be delegated to it by the
Board of Directors.
Section 11. Indemnification. The Company shall indemnify each
Director and each Officer of the Company, and each person employed by the
Company who serves at the written request of the President of the Company
as a director, trustee, officer, employee or agent of another corporation,
domestic or foreign, non-profit or for profit, partnership, joint venture,
trust or other
13
<PAGE>
enterprise, to the full extent permitted by Ohio law. The term "Officer"
as used in this Section shall include the Chairman of the Board and the
Vice Chairman of the Board if such offices are filled, the President, each
Vice President, the Treasurer, the Secretary, the Cashier, the Controller,
the Auditor, the Counsel and any other person who is specifically
designated as an "Officer" within the operation of this Section by action
of the Board of Directors. The Company may indemnify assistant Officers,
employees and others by action of the Board of Directors to the extent
permitted by Ohio law.
ARTICLE III
OFFICERS
Section 1. Powers and Duties. The Chairman of the Board if the
office be filled, otherwise the Vice Chairman of the Board, if the office
be filled, otherwise the President shall preside at all meetings of the
Stockholders, the Board of Directors, and the supervision and control over
the business of the Company and shall serve at the pleasure of the Board of
Directors. In the absence or disability of any of the foregoing officers,
their respective duties shall be performed by the Chairman of the Board,
the Vice Chairman of the Board, the President, or by a Vice President
specifically designated by the Board of Directors, in the order named.
The Secretary, or in his absence or disability, the Assistant
Secretary, shall act, ex officio, as Secretary of all meetings of the
Stockholders, the Board of Directors and the Executive Committee. The
other officers of the Company shall have such powers and duties as usually
and customarily attach to their offices.
ARTICLE IV
CERTIFICATES OF STOCK
Section 1. Form. Certificates for shares of stock shall be signed by
the Chairman of the Board, or by the President, or by one of the Vice
Presidents, and by the Secretary or Treasurer or by the Cashier or an
Assistant Cashier, shall contain such statements as are required by law,
and shall otherwise be in such form as the Board of Directors may, from
time to time, require.
Section 2. Transfers. Shares shall be transferable on the books of
the Company by the holders thereof in person or by duly authorized attorney
upon surrender of the certificates therefor with duly executed assignment
endorsed thereon or attached thereto.
Section 3. Closing of Transfer Books. The books for transfer of the
stock of the Company shall be closed for at least five (5) days preceding
the annual meeting of stockholders, and may be closed by order of the Board
of Directors, or Executive Committee, for a like period before any other
meeting of the Stockholders.
ARTICLE V
AMENDMENTS
14
<PAGE>
These regulations may be changed, and new regulations adopted by the
assent thereto in writing of two-thirds (_) of the Stockholders of the
Company in number an in amount; or by a majority of such Stockholders in
number and in amount, at a meeting held for that purpose, notice of which
has been given by the President, the Secretary, or any two (2) Directors
personally or by written notice, to each Stockholders, and by publication
once a week for four (4) consecutive weeks in some newspaper of general
circulation in Hamilton County, Ohio, or in such other manner as may then
be authorized by the laws of Ohio.
15
<PAGE>
EXHIBIT 5
A COPY OF EACH INDENTURE REFERRED TO IN ITEM 4
(NOT APPLICABLE)
16
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321 (B)
OF THE TRUST INDENTURE ACT OF 1939
[See Attached]
17
<PAGE>
EXHIBIT 6 TO FORM T-1
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture
Act of 1939 in connection with the proposed issuance of Debt Securities of
Cinergy Corp., Fifth Third Bank hereby consents that reports of examination
by Federal, State, Territorial or District Authorities may be furnished by
such authorities to the Securities and Exchange Commission upon request
therefor.
FIFTH THIRD BANK
By: /S/ KERRY R. BYRNE
Kerry R. Byrne,
Vice President and Trust Officer
<PAGE>
EXHIBIT 7
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE
PUBLISHED PURSUANT TO LAW OR THE REQUIREMENTS
OF ITS SUPERVISING OR EXAMINING AUTHORITY
[See Attached]
<PAGE>
R E P O R T O F C O N D I T I O N
Consolidated Report of Condition of FIFTH THIRD BANK of CINCINNATI, OHIO
and Foreign and Domestic Subsidiaries, a member of the Federal Reserve
System, at the close of business on December 31, 1998, published in
accordance with a call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
ASSETS Thousands
of Dollars
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin....................................... 502,214
Interest-bearing balances.................................. 996
Securities:
Held-to-maturity securities................................ 4,916
Available-for-sale securities.............................. 2,853,814
Federal funds sold and securities purchased................ ///////
under agreements to resell.............................. 325,900
Loans and lease financing receivables:
Loans and lease, net of unearned income....... 7,469,628
LESS: Allowance for loan and lease losses....... 106,477
LESS: Allocated transfer risk reserve................. 0
Loans and leases, net of unearned income, allowance,
and reserve............................................. 7,363,151
Trading Assets............................................. 8,950
Premises and fixed assets (including capitalized leases)... 138,579
Other real estate owned.................................... 1,030
Investments in unconsolidated subsidiaries and
associated companies.................................... 0
Customers' liability to this bank on
acceptances outstanding................................. 46,686
Intangible assets.......................................... 70,182
Other assets............................................... 409,458
Total assets............................................... 11,727,876
<PAGE>
LIABILITIES
Deposits:
In domestic offices...................................... 5,134,343
Noninterest-bearing............................ 1,538,081
Interest-bearing............................... 3,596,262
In foreign offices, Edge and Agreement subsidiaries,
and IBFs:................................................ 353,824
Noninterest-bearing.................................... 0
Interest-bearing..................................353,824
Federal funds purchased and securities sold under agreements
to repurchase............................................ 3,742,117
Demand notes issued to the U.S. Treasury.................... 2,768
Trading liabilities......................................... 0
Other borrowed money (including mortgage indebtedness and obligations
under capitalized leases):.................................. //////////
With a remaining maturity of one year or less............ 100,542
With a remaining maturity of more than one year through
three years.............................................. 202,000
With a remaining maturity of more than three years 0
Not applicable
Bank's liability on acceptances executed and outstanding.... 47,161
Subordinated notes and debentures........................... 847,752
Other liabilities........................................... 427,687
Total liabilities........................................... 10,858,194
EQUITY CAPITAL
Perpetual preferred stock and related surplus............... 0
Common stock................................................ 70,400
Surplus..................................................... 212,048
Undivided profits and capital reserves...................... 566,331
Net unrealized holding gains (losses) on
available-for-sale securities............................ 20,902
Cumulative foreign currency translation adjustments......... 0
Total equity capital........................................ 896,628
Total liabilities and equity capital........................ 11,727,876
<PAGE>
EXHIBIT 8
A COPY OF ANY ORDER PURSUANT TO WHICH THE FOREIGN TRUSTEE IS AUTHORIZED TO ACT
AS SOLE TRUSTEE UNDER INDENTURES QUALIFIED OR TO BE QUALIFIED UNDER THE ACT
(NOT APPLICABLE)
<PAGE>
EXHIBIT 9
FOREIGN TRUSTEES ARE REQUIRED TO FILE A CONSENT TO SERVICE OF
PROCESS OF FORM F-X
(NOT APPLICABLE)
Exhibit 99.1
LETTER OF TRANSMITTAL
Offer to Exchange
6.53% Debentures due 2008
(Registered under the Securities Act of 1933)
for
All Outstanding 6.53% Debentures due 2008
of
CINERGY CORP.
Pursuant to the Prospectus
Dated , 1999
----------------------------------------------------------------------
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW
YORK CITY TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED.
----------------------------------------------------------------------
THE EXCHANGE AGENT FOR THE EXCHANGE OFFER IS:
FIFTH THIRD BANK
By Registered or Certified Mail: By Overnight Delivery or Hand:
Fifth Third Bank Fifth Third Bank
Fifth Third Center Fifth Third Center
38 Fountain Square 38 Fountain Square
Cincinnatti, Ohio 45263 Cincinnatti, Ohio 45263
Attn: Corporate Trust Attn: Corporate Trust
Department Department
To Confirm by Telephone
or for Information: Facsimile Transmissions:
(513) 579-5300 (513) 744-6785
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER
THAN AS SET FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE DOES NOT CONSTITUTE A
VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY
BEFORE THIS LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the
same meaning given them in the Prospectus (as defined below).
This Letter of Transmittal is to be completed by holders of Old
Debentures (as defined below) if Old Debentures are to be forwarded herewith.
If tenders of Old Debentures are to be made by book-entry transfer to an
account maintained by Fifth Third Bank (the "Exchange Agent") at The
Depository Trust Company ("DTC") pursuant to the procedures set forth in "The
Exchange Offer--Book-Entry Transfer" in the Prospectus and in accordance with
the Automated Tender Offer Program ("ATOP") established by DTC, a tendering
holder will become bound by the terms and conditions hereof in accordance with
the procedures established under ATOP.
Holders of Old Debentures whose certificates (the
"Certificates") for such Old Debentures are not immediately available or who
cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the Expiration Date (as defined in the
Prospectus) or who cannot complete the procedures for book-entry transfer on a
timely basis, must tender their Old Debentures according to the guaranteed
delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery
Procedures" in the Prospectus. SEE INSTRUCTION 1. DELIVERY OF DOCUMENTS TO DTC
IN ACCORDANCE WITH ITS PROCEDURES DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE
AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
<TABLE>
- ------------------------------------------------------------------------------------------------------------------------
DESCRIPTION OF OLD DEBENTURES TENDERED
Name(s) and address(es) of Registered Holder(s) Old Debentures Tendered
(Please fill in, if blank) (attach additional list if necessary)
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Principal Amount of
Old Debentures
Certificate Principal Amount Tendered
Number(s)* of Old Debentures* (if less than all)**
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
-----------------------------------------------------------------
Total Amount
Tendered
- ------------------------------------------------------------------------------------------------------------------------
* Need not be completed by book-entry holders.
** Old Debentures may be tendered in whole or in part in denominations of
$1,000 and integral multiples thereof. All Old Debentures held shall be
deemed tendered unless a lesser number is specified in this column.
</TABLE>
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[ ] CHECK HERE IF TENDERED OLD DEBENTURES ARE BEING DELIVERED BY
BOOK-ENTRY TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE
EXCHANGE AGENT WITH DTC AND COMPLETE THE FOLLOWING:
Name of Tendering Institution _____________________________________
DTC Account Number ________________________________________________
Transaction Code Number ___________________________________________
[ ] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OLD DEBENTURES ARE BEING DELIVERED PURSUANT
TO A NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE
EXCHANGE AGENT AND COMPLETE THE FOLLOWING:
Name of Registered Holder(s) ______________________________________
Window Ticket Number (if any) _____________________________________
Date of Execution of Notice of Guaranteed Delivery ________________
Name of Institution which Guaranteed ______________________________
If Guaranteed Delivery is to be made By Book-Entry Transfer:
Name of Tendering Institution _____________________________________
DTC Account Number ________________________________________________
Transaction Code Number ___________________________________________
[ ] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OLD
DEBENTURES ARE TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER
SET FORTH ABOVE.
[ ] CHECK HERE IF YOU ARE A BROKER-DEALER WHO ACQUIRED THE OLD
DEBENTURES FOR ITS OWN ACCOUNT AS A RESULT OF MARKET MAKING OR OTHER
TRADING ACTIVITIES (A "PARTICIPATING BROKER-DEALER") AND WISH TO
RECEIVE 10 ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY
AMENDMENTS OR SUPPLEMENTS THERETO.
Name: _____________________________________________________________
Address: __________________________________________________________
__________________________________________________________
Ladies and Gentlemen:
The undersigned hereby tenders to Cinergy Corp., a Delaware
corporation (the "Company"), the above described aggregate principal amount of
the Company's 6.53% Debentures due 2008 (the "Old Debentures") in exchange for
a like aggregate principal amount of the Company's 6.53% Debentures due 2008
(the "New Debentures"), upon the terms and subject to the conditions set forth
in the Prospectus dated , 1999 (as the same may be amended or
supplemented from time to time, the "Prospectus"), receipt of which is
acknowledged, and in this Letter of Transmittal (which, together with the
Prospectus, constitute the "Exchange Offer"). The Exchange Offer has been
registered under the Securities Act of 1933, as amended (the "Securities Act").
Subject to and effective upon the acceptance for exchange of
all or any portion of the Old Debentures tendered herewith in accordance with
the terms and conditions of the Exchange Offer (including, if the Exchange
Offer is extended or amended, the terms and conditions of any such extension
or amendment), the undersigned hereby sells, assigns and transfers to or upon
the order of the Company all right, title and interest in and to such Old
Debentures as are being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Old Debentures, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest), subject only to
the right of withdrawal described in the Prospectus, to (i) deliver
Certificates for Old Debentures to the Company together with all accompanying
evidences of transfer and authenticity to, or upon the order of, the Company,
upon receipt by the Exchange Agent, as the undersigned's agent, of the
Exchange Debentures to be issued in exchange for such Old Debentures, (ii)
present Certificates for such Old Debentures for transfer, and to transfer the
Old Debentures on the books of the Company, and (iii) receive for the account
of the Company all benefits and otherwise exercise all rights of beneficial
ownership of such Old Debentures, all in accordance with the terms and
conditions of the Exchange Offer.
THE UNDERSIGNED HEREBY REPRESENTS AND WARRANTS THAT THE
UNDERSIGNED HAS FULL POWER AND AUTHORITY TO TENDER, EXCHANGE, SELL, ASSIGN AND
TRANSFER THE OLD DEBENTURES TENDERED HEREBY AND THAT, WHEN THE SAME ARE
ACCEPTED FOR EXCHANGE, THE COMPANY WILL ACQUIRE GOOD, MARKETABLE AND
UNENCUMBERED TITLE THERETO, FREE AND CLEAR OF ALL LIENS, RESTRICTIONS, CHARGES
AND ENCUMBRANCES, AND THAT THE OLD DEBENTURES TENDERED HEREBY ARE NOT SUBJECT
TO ANY ADVERSE CLAIMS OR PROXIES. THE UNDERSIGNED WILL, UPON REQUEST, EXECUTE
AND DELIVER ANY ADDITIONAL DOCUMENTS DEEMED BY THE COMPANY OR THE EXCHANGE
AGENT TO BE NECESSARY OR DESIRABLE TO COMPLETE THE EXCHANGE, ASSIGNMENT AND
TRANSFER OF THE OLD DEBENTURES TENDERED HEREBY, AND THE UNDERSIGNED WILL
COMPLY WITH ITS OBLIGATIONS UNDER THE REGISTRATION RIGHTS AGREEMENT. THE
UNDERSIGNED HAS READ AND AGREES TO ALL OF THE TERMS OF THE EXCHANGE OFFER.
The name(s) and address(es) of the registered holder(s) of the
Old Debentures tendered hereby should be printed above, if they are not
already set forth above, as they appear on the Certificates representing such
Old Debentures. The Certificate number(s) and the Old Debentures that the
undersigned wishes to tender should be indicated in the appropriate boxes
above.
If any tendered Old Debentures are not exchanged pursuant to
the Exchange Offer for any reason, or if Certificates are submitted for more
Old Debentures than are tendered or accepted for exchange, Certificates for
such unaccepted or nonexchanged Old Debentures will be returned (or, in the
case of Old Debentures tendered by book-entry transfer, such Old Debentures
will be credited to an account maintained at DTC), without expense to the
tendering holder, promptly following the expiration or termination of the
Exchange Offer.
The undersigned understands that tenders of Old Debentures
pursuant to any one of the procedures described in "The Exchange
Offer--Procedures for Tendering Old Debentures" in the Prospectus and in the
instructions hereto will, upon the Company's acceptance for exchange of such
tendered Old Debentures, constitute a binding agreement between the
undersigned and the Company upon the terms and subject to the conditions of
the Exchange Offer. In all cases in which a Participant elects to accept the
Exchange Offer by transmitting an express acknowledgment in accordance with
the established ATOP procedures, such Participant shall be bound by all of the
terms and conditions of this Letter of Transmittal. The undersigned recognizes
that, under certain circumstances set forth in the Prospectus, the Company may
not be required to accept for exchange any of the Old Debentures tendered
hereby.
Unless otherwise indicated herein in the box entitled "Special
Issuance Instructions" below, the undersigned hereby directs that the New
Debentures be issued in the name(s) of the undersigned or, in the case of a
book-entry transfer of Old Debentures, that such New Debentures be credited to
the account indicated above maintained at DTC. If applicable, substitute
Certificates representing Old Debentures not exchanged or not accepted for
exchange will be issued to the undersigned or, in the case of a book-entry
transfer of Old Debentures, will be credited to the account indicated above
maintained at DTC. Similarly, unless otherwise indicated under "Special
Delivery Instructions," please deliver New Debentures to the undersigned at
the address shown below the undersigned's signature.
BY TENDERING OLD DEBENTURES AND EXECUTING, OR OTHERWISE
BECOMING BOUND BY, THIS LETTER OF TRANSMITTAL, THE UNDERSIGNED HEREBY
REPRESENTS AND AGREES THAT (I) THE UNDERSIGNED IS NOT AN "AFFILIATE" OF THE
COMPANY, (II) ANY NEW DEBENTURES TO BE RECEIVED BY THE UNDERSIGNED ARE BEING
ACQUIRED IN THE ORDINARY COURSE OF ITS BUSINESS AND (III) THE UNDERSIGNED HAS
NO ARRANGEMENT OR UNDERSTANDING WITH ANY PERSON TO PARTICIPATE IN A
DISTRIBUTION (WITHIN THE MEANING OF THE SECURITIES ACT) OF SUCH NEW
DEBENTURES. BY TENDERING OLD DEBENTURES PURSUANT TO THE EXCHANGE OFFER AND
EXECUTING, OR OTHERWISE BECOMING BOUND BY, THIS LETTER OF TRANSMITTAL, A
HOLDER OF OLD DEBENTURES WHICH IS A BROKER-DEALER REPRESENTS AND AGREES,
CONSISTENT WITH CERTAIN INTERPRETIVE LETTERS ISSUED BY THE STAFF OF THE
DIVISION OF CORPORATION FINANCE OF THE SECURITIES AND EXCHANGE COMMISSION TO
THIRD PARTIES, THAT (A) SUCH OLD DEBENTURES HELD BY THE BROKER-DEALER ARE HELD
ONLY AS A NOMINEE, OR (B) SUCH OLD DEBENTURES WERE ACQUIRED BY SUCH
BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES AND IT WILL DELIVER THE PROSPECTUS (AS AMENDED OR
SUPPLEMENTED FROM TIME TO TIME) MEETING THE REQUIREMENTS OF THE SECURITIES ACT
IN CONNECTION WITH ANY RESALE OF SUCH NEW DEBENTURES (PROVIDED THAT, BY SO
ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, SUCH BROKER-DEALER WILL NOT BE
DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT).
THE COMPANY HAS AGREED THAT, SUBJECT TO THE PROVISIONS OF THE
REGISTRATION RIGHTS AGREEMENT, THE PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A PARTICIPATING BROKER-DEALER
(AS DEFINED BELOW) IN CONNECTION WITH RESALES OF NEW DEBENTURES RECEIVED IN
EXCHANGE FOR OLD DEBENTURES, WHERE SUCH OLD DEBENTURES WERE ACQUIRED BY SUCH
PARTICIPATING BROKER-DEALER FOR ITS OWN ACCOUNT AS A RESULT OF MARKET-
MAKING ACTIVITIES OR OTHER TRADING ACTIVITIES, FOR A PERIOD ENDING 90 DAYS
AFTER THE EXPIRATION DATE (SUBJECT TO EXTENSION UNDER CERTAIN LIMITED
CIRCUMSTANCES DESCRIBED IN THE PROSPECTUS) OR, IF EARLIER, WHEN ALL SUCH
NEW DEBENTURES HAVE BEEN DISPOSED OF BY SUCH PARTICIPATING BROKER-DEALER.
IN THAT REGARD, EACH BROKER DEALER WHO ACQUIRED OLD DEBENTURES FOR ITS OWN
ACCOUNT AS A RESULT OF MARKET-MAKING OR OTHER TRADING ACTIVITIES (A
"PARTICIPATING BROKER-DEALER"), BY TENDERING SUCH OLD DEBENTURES AND
EXECUTING, OR OTHERWISE BECOMING BOUND BY, THIS LETTER OF TRANSMITTAL,
AGREES THAT, UPON RECEIPT OF NOTICE FROM THE COMPANY OF THE OCCURRENCE OF
ANY EVENT OR THE DISCOVERY OF ANY FACT WHICH MAKES ANY STATEMENT CONTAINED
OR INCORPORATED BY REFERENCE IN THE PROSPECTUS UNTRUE IN ANY MATERIAL
RESPECT OR WHICH CAUSES THE PROSPECTUS TO OMIT TO STATE A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS CONTAINED OR INCORPORATED BY
REFERENCE THEREIN, IN LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE
MADE, NOT MISLEADING OR OF THE OCCURRENCE OF CERTAIN OTHER EVENTS SPECIFIED
IN THE REGISTRATION RIGHTS AGREEMENT, SUCH PARTICIPATING BROKER-DEALER WILL
SUSPEND THE SALE OF NEW DEBENTURES PURSUANT TO THE PROSPECTUS UNTIL THE
COMPANY HAS AMENDED OR SUPPLEMENTED THE PROSPECTUS TO CORRECT SUCH
MISSTATEMENT OR OMISSION AND HAS FURNISHED COPIES OF THE AMENDED OR
SUPPLEMENTED PROSPECTUS TO THE PARTICIPATING BROKER-DEALER OR THE COMPANY
HAS GIVEN NOTICE THAT THE SALE OF THE NEW DEBENTURES MAY BE RESUMED, AS THE
CASE MAY BE. IF THE COMPANY GIVES SUCH NOTICE TO SUSPEND THE SALE OF THE
NEW DEBENTURES, IT SHALL EXTEND THE 90-DAY PERIOD REFERRED TO ABOVE DURING
WHICH PARTICIPATING BROKER-DEALERS ARE ENTITLED TO USE THE PROSPECTUS IN
CONNECTION WITH THE RESALE OF NEW DEBENTURES BY THE NUMBER OF DAYS DURING
THE PERIOD FROM AND INCLUDING THE DATE OF THE GIVING OF SUCH NOTICE TO AND
INCLUDING THE DATE WHEN PARTICIPATING BROKER-DEALERS SHALL HAVE RECEIVED
COPIES OF THE SUPPLEMENTED OR AMENDED PROSPECTUS NECESSARY TO PERMIT
RESALES OF THE NEW DEBENTURES OR TO AND INCLUDING THE DATE ON WHICH THE
COMPANY HAS GIVEN NOTICE THAT THE SALE OF NEW DEBENTURES MAY BE RESUMED, AS
THE CASE MAY BE.
All authority herein conferred or agreed to be conferred in
this Letter of Transmittal shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, executors, administrators, personal representatives, trustees
in bankruptcy, legal representatives successors and assigns of the
undersigned. Except as stated in the Prospectus, this tender is irrevocable.
HOLDER(S) SIGN HERE
(See Instructions 2, 5 and 6)
(Note: Signature(s) Must be Guaranteed if Required by Instruction 2)
Must be signed by registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Old Debentures hereby tendered or on a security
position listing, or by any person(s) authorized to become the registered
holder(s) by endorsements and documents transmitted herewith. If signature
is by an attorney-in-fact, executor, administrator, trustee, guardian,
officer of a corporation or another acting in a fiduciary or representative
capacity, please set forth the signer's full title. See Instruction 5.
______________________________________________________________________________
(Signature(s) of Holder(s))
Date ___________________________________________________________________, 1999
Name(s) ______________________________________________________________________
______________________________________________________________________________
(Please Print)
Capacity: ____________________________________________________________________
(Include Full Title)
Address ______________________________________________________________________
______________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _______________________________________________
______________________________________________________________________________
(Tax Identification or Social Security Number(s))
GUARANTEE OF SIGNATURE(S)
(See Instructions 2 and 5)
Authorized Signature _________________________________________________________
Name _________________________________________________________________________
______________________________________________________________________________
(Please Print)
Date ___________________________________________________________________, 1999
Capacity or Title ____________________________________________________________
Name of Firm _________________________________________________________________
Address ______________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number _______________________________________________
SPECIAL ISSUANCE INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if the New Debentures
are to be issued in the name of someone other than
the registered holder of the Old Debentures whose
name(s) appear(s) above.
Issue New Debentures to:
Name _____________________________________________
(Please Print)
__________________________________________________
Address __________________________________________
__________________________________________________
__________________________________________________
(Include Zip Code)
__________________________________________________
(Taxpayer Identification or
Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6)
To be completed ONLY if New Debentures are to
be sent to someone other than the registered holder
of the Old Debentures whose name(s) appear(s)
above, or to such registered holder(s) at an address
other than that shown above.
Mail New Debentures To:
Name _____________________________________________
(Please Print)
__________________________________________________
Address __________________________________________
__________________________________________________
__________________________________________________
(Include Zip Code)
__________________________________________________
(Taxpayer Identification or
Social Security Number)
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. DELIVERY OF LETTER OF TRANSMITTAL AND CERTIFICATES;
GUARANTEED DELIVERY PROCEDURES. This Letter of Transmittal is to be completed
if Certificates are to be forwarded herewith. If tenders are to be made
pursuant to the procedures for tender by book-entry transfer set forth in "The
Exchange Offer--Book-Entry Transfer" in the Prospectus and in accordance
with ATOP established by DTC, a tendering holder will become bound by the
terms and conditions hereof in accordance with the procedures established
under ATOP. Certificates, or timely confirmation of a book-entry transfer
of such Old Debentures into the Exchange Agent's account at DTC, as well as
this Letter of Transmittal (or facsimile thereof), if required, properly
completed and duly executed, with any required signature guarantees, and
any other documents required by this Letter of Transmittal, must be
received by the Exchange Agent at one of its addresses set forth herein on
or prior to the Expiration Date. Old Debentures may be tendered in whole
or in part in the principal amount of $1,000 and integral multiples of
$1,000.
Holders who wish to tender their Old Debentures and (i) whose
Old Debentures are not immediately available or (ii) who cannot deliver their
Old Debentures, this Letter of Transmittal and all other required documents to
the Exchange Agent on or prior to the Expiration Date or (iii) who cannot
complete the procedures for delivery by book-entry transfer on a timely
basis, may tender their Old Debentures by properly completing and duly
executing a Notice of Guaranteed Delivery pursuant to the guaranteed
delivery procedures set forth in "The Exchange Offer--Guaranteed Delivery
Procedures" in the Prospectus. Pursuant to such procedures: (i) such
tender must be made by or through an Eligible Institution (as defined
below); (ii) a properly completed and duly executed Letter of Transmittal
(or facsimile) thereof and Notice of Guaranteed Delivery, substantially in
the form made available by the Company, must be received by the Exchange
Agent on or prior to the Expiration Date; and (iii) the Certificates (or a
book-entry confirmation (as defined in the Prospectus)) representing all
tendered Old Debentures, in proper form for transfer, together with a
Letter of Transmittal (or facsimile thereof), properly completed and duly
executed, with any required signature guarantees and any other documents
required by this Letter of Transmittal, must be received by the Exchange
Agent within five New York Stock Exchange trading days after the date of
execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer--Guaranteed Delivery Procedures" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or
transmitted by telegram, telex, facsimile or mail to the Exchange Agent, and
must include a guarantee by an Eligible Institution in the form set forth in
such Notice. For Old Debentures to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm which is a member of a
registered national securities exchange or a member of the National
Association of Securities Dealers, Inc. or a commercial bank or trust company
having an office or correspondent in the United States.
THE METHOD OF DELIVERY OF OLD DEBENTURES, THIS LETTER OF
TRANSMITTAL AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF
THE TENDERING HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT
REGISTERED MAIL WITH RETURN RECEIPT REQUESTED, PROPERLY INSURED, BE USED. IN
ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO ASSURE TIMELY DELIVERY. NO
LETTERS OF TRANSMITTAL OR OLD DEBENTURES SHOULD BE SENT TO THE COMPANY.
The Company will not accept any alternative, conditional or
contingent tenders. Each tendering holder, by execution of a Letter of
Transmittal (or facsimile thereof), or any Agent's Message in lieu thereof,
waives any right to receive any notice of the acceptance of such tender.
2. GUARANTEE OF SIGNATURES. No signature guarantee on this
Letter of Transmittal is required if:
(i) this Letter of Transmittal is signed by the
registered holder (which term, for purposes of this document, shall
include any participant in DTC whose name appears on a security
position listing as the owner of the Old Debentures) of Old Debentures
tendered herewith, unless such holder(s) has completed either the box
entitled "Special Issuance Instructions" or the box entitled "Special
Delivery Instructions" above, or
(ii) such Old Debentures are tendered for the account of a
firm that is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the
signature(s) on this Letter of Transmittal. See Instruction 5.
3. INADEQUATE SPACE. If the space provided in the box captioned
"Description of Old Debentures" is inadequate, the Certificate number(s)
and/or the principal amount of Old Debentures and any other required
information should be listed on a separate signed schedule which is attached
to this Letter of Transmittal.
4. PARTIAL TENDERS AND WITHDRAWAL RIGHTS. Tenders of Old
Debentures will be accepted only in the principal amount of $1,000 and
integral multiples thereof. If less than all the Old Debentures evidenced by
any Certificate submitted are to be tendered, fill in the principal amount of
Old Debentures which are to be tendered in the box entitled "Principal Amount
of Old Debentures Tendered (if less than all)." In such case, new
Certificate(s) for the remainder of the Old Debentures that were evidenced by
your old Certificate(s) will only be sent to the holder of the Old Note,
promptly after the Expiration Date. All Old Debentures represented by
Certificates delivered to the Exchange Agent will be deemed to have been
tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Old Debentures
may be withdrawn at any time on or prior to the Expiration Date. In order for
a withdrawal to be effective on or prior to that time, a written notice of
withdrawal must be timely received by the Exchange Agent at one of its
addresses set forth above or in the Prospectus on or prior to the Expiration
Date. Any such notice of withdrawal must specify the name of the person who
tendered the Old Debentures to be withdrawn, identify the Old Debentures to be
withdrawn (including the principal amount of such Old Debentures) and (where
Certificates for Old Debentures have been transmitted) specify the name in
which such Old Debentures are registered, if different from that of the
withdrawing holder. If Certificates for the Old Debentures have been delivered
or otherwise identified to the Exchange Agent, then prior to the release of
such Certificates, the withdrawing holder must submit the serial numbers of
the particular certificates for the Old Debentures to be withdrawn and a
signed notice of withdrawal with signatures guaranteed by an Eligible
Institution, unless such holder is an Eligible Institution. If Old Debentures
have been tendered pursuant to the procedures for book-entry transfer set
forth in the Prospectus under "The Exchange Offer--Book-Entry Transfer," any
notice of withdrawal must specify the name and number of the account at DTC to
be credited with the withdrawal of Old Debentures and otherwise comply with
the procedures of such facility. Old Debentures properly withdrawn will not be
deemed validly tendered for purposes of the Exchange Offer, but may be
retendered at any time on or prior to the Expiration Date by following one of
the procedures described in the Prospectus under "The Exchange
Offer--Procedures for Tendering Old Debentures."
All questions as to the validity, form and eligibility
(including time of receipt) of such withdrawal notices will be determined by
the Company, whose determination shall be final and binding on all parties.
Any Old Debentures which have been tendered for exchange but which are not
exchanged for any reason will be returned to the holder thereof without cost
to such holder (or, in the case of Old Debentures tendered by book-entry
transfer into the Exchange Agent's account at DTC pursuant to the book-entry
procedures described in the Prospectus under "The Exchange Offer--Book-Entry
Transfer" such Old Debentures will be credited to an account maintained with
DTC for the Old Debentures) as soon as practicable after withdrawal, rejection
of tender or termination of the Exchange Offer.
5. SIGNATURES ON LETTER OF TRANSMITTAL, ASSIGNMENTS AND
ENDORSEMENTS. If this Letter of Transmittal is signed by the registered
holder(s) of the Old Debentures tendered hereby, the signature(s) must
correspond exactly with the name(s) as written on the face of the
Certificate(s) without alteration, enlargement or any change whatsoever.
If any of the Old Debentures tendered hereby are owned of
record by two or more joint owners, all such owners must sign this Letter of
Transmittal.
If any tendered Old Debentures are registered in different
names on several Certificates, it will be necessary to complete, sign and
submit as many separate Letters of Transmittal (or facsimiles thereof) as
there are different registrations of Certificates.
If this Letter of Transmittal or any Certificates or powers of
attorney are signed by trustees, executors, administrators, guardians,
attorneys-in-fact, officers of corporations or others acting in a fiduciary or
representative capacity, such persons should so indicate when signing and,
unless waived by the Company, proper evidence satisfactory to the Company of
such persons' authority to so act must be submitted.
When this Letter of Transmittal is signed by the registered
holder(s) of the Old Debentures listed and transmitted hereby, no
endorsement(s) of Certificate(s) or written instrument or instruments of
transfer or exchange are required unless New Debentures are to be issued in
the name of a person other than the registered holder(s). Signature(s) on such
Certificate(s) or written instrument or instruments of transfer or exchange
must be guaranteed by an Eligible Institution.
If this Letter of Transmittal is signed by a person other than
the registered holder(s) of the Old Debentures listed, the Certificates must
be endorsed or accompanied by a written instrument or instruments of transfer
or exchange, in satisfactory form as determined by the Company in its sole
discretion and executed by the registered holder(s), in either case signed
exactly as the name or names of the registered holder(s) appear(s) on the
Certificates. Signatures on such Certificates or written instrument or
instruments of transfer or exchange must be guaranteed by an Eligible
Institution.
6. SPECIAL ISSUANCE AND DELIVERY INSTRUCTIONS. If New
Debentures are to be issued in the name of a person other than the signer of
this Letter of Transmittal, or if New Debentures are to be sent to someone
other than the signer of this Letter of Transmittal or to an address other
than that shown above, the appropriate boxes on this Letter of Transmittal
should be completed. Certificates for Old Debentures not exchanged will be
returned by mail or, if tendered by book-entry transfer, by crediting the
account indicated above maintained at DTC. See Instruction 4.
7. IRREGULARITIES. The Company will determine, in its sole
discretion, all questions as to the form, validity, eligibility (including
time of receipt) and acceptance for exchange of any tender of Old Debentures,
which determination shall be final and binding. The Company reserves the
absolute right to reject any and all tenders of any particular Old Debentures
not properly tendered or to not accept any particular Old Debentures which
acceptance might, in the judgment of the Company or its counsel, be unlawful.
The Company also reserves the absolute right, in its sole discretion, to waive
any defects or irregularities or conditions of the Exchange Offer as to any
particular Old Debentures either before or after the Expiration Date
(including the right to waive the ineligibility of any holder who seeks to
tender Old Debentures in the Exchange Offer). The interpretation of the terms
and conditions of the Exchange Offer as to any particular Old Debentures
either before or after the Expiration Date (including the Letter of
Transmittal and the instructions thereto) by the Company shall be final and
binding on all parties. Unless waived, any defects or irregularities in
connection with the tender of Old Debentures for exchange must be cured within
such reasonable period of time as the Company shall determine. Neither the
Company, the Exchange Agent nor any other person shall be under any duty to
give notification of any defect or irregularity with respect to any tender of
Old Debentures for exchange, nor shall any of them incur any liability for
failure to give such notification.
8. QUESTIONS, REQUESTS FOR ASSISTANCE AND ADDITIONAL COPIES.
Questions and requests for assistance may be directed to the Exchange Agent at
its address and telephone number set forth on the front of this Letter of
Transmittal. Additional copies of the Prospectus, the Notice of Guaranteed
Delivery and the Letter of Transmittal may be obtained from the Exchange Agent
or from your broker, dealer, commercial bank, trust company or other nominee.
9. LOST, DESTROYED OR STOLEN CERTIFICATES. If any
Certificate(s) representing Old Debentures have been lost, destroyed or
stolen, the holder should promptly notify the Exchange Agent. The holder will
then be instructed as to the steps that must be taken in order to replace the
Certificate(s). This Letter of Transmittal and related documents cannot be
processed until the procedures for replacing lost, destroyed or stolen
Certificate(s) have been followed.
10. SECURITY TRANSFER TAXES. Holders who tender their Old
Debentures for exchange will not be obligated to pay any transfer taxes in
connection therewith, except that holders who instruct the Company to register
New Debentures in the name of or request that Old Debentures not tendered or
not accepted in the Exchange Offer to be returned to, a person other than the
registered tendering holder will be responsible for the payment of any
applicable transfer tax thereon.
IMPORTANT: THIS LETTER OF TRANSMITTAL (OR FACSIMILE THEREOF),
OR AN AGENT'S MESSAGE IN LIEU THEREOF, AND ALL OTHER REQUIRED
DOCUMENTS MUST BE RECEIVED BY THE EXCHANGE AGENT
ON OR PRIOR TO THE EXPIRATION DATE.
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
Offer to Exchange
6.53% Debentures due 2008
(Registered under the Securities Act of 1933)
for
All Outstanding 6.53% Debentures due 2008
of
CINERGY CORP.
This Notice of Guaranteed Delivery or one substantially equivalent hereto
must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's (as defined below) 6.53% Debentures due 2008
(the "Old Debentures") are not immediately available, (ii) Old Debentures, the
Letter of Transmittal and any other documents required by the Letter of
Transmittal cannot be delivered to Fifth Third Bank (the "Exchange Agent") on
or prior to the Expiration Date (as defined in the Prospectus referred to
below) or (iii) the procedures for book-entry transfer cannot be completed on a
timely basis. This Notice of Guaranteed Delivery may be delivered by hand or
sent by facsimile transmission, overnight courier, telex, telegram or mail to
the Exchange Agent. See "The Exchange Offer - Guaranteed Delivery Procedures"
in the Prospectus dated , 1999 (which, together with the related
Letter of Transmittal, constitutes the "Exchange Offer") of Cinergy Corp.,
a Delaware corporation (the "Company").
The Exchange Agent for the Exchange Offer is:
FIFTH THIRD BANK
By Hand or Overnight Facsimile Transmissions: By Registered Or
Delivery: (Eligible Institutions Certified Mail:
Only)
Fifth Third Bank Fifth Third Bank
Fifth Third Center (513) 744-6785 Fifth Third Center
38 Fountain Square 38 Fountain Square
Cincinnati, Ohio 45263 To Confirm by Telephone Cincinnati, Ohio 45263
or for Information Call:
Attention: Corporate Attention: Corporate
Trust Department (513) 579-5300 Trust Department
<PAGE>
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA A
FACSIMILE TRANSMISSION TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT
CONSTITUTE A VALID DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A LETTER OF TRANSMITTAL IS REQUIRED TO BE
GUARANTEED BY AN "ELIGIBLE INSTITUTION" UNDER THE INSTRUCTIONS THERETO, SUCH
SIGNATURE GUARANTEE MUST APPEAR IN THE APPLICABLE SPACE PROVIDED ON THE LETTER
OF TRANSMITTAL.
2
<PAGE>
THE FOLLOWING GUARANTEE MUST BE COMPLETED
GUARANTEE OF DELIVERY
(Not to be used for Signature Guarantee)
The undersigned, a firm which is a member of a registered national
securities exchange or a member of the National Association of Securities
Dealers, Inc. or a commercial bank or trust company having an office or
correspondent in the United States, hereby guarantees to deliver to the
Exchange Agent, at one of its addresses set forth above, either the
certificates for all physically tendered Old Debentures, in proper form for
transfer, or confirmation of the book-entry transfer of such Old Debentures to
the Exchange Agent's account at The Depository Trust Company ("DTC"), pursuant
to the procedures for book-entry transfer set forth in the Prospectus, in
either case together with one or more properly completed and duly executed
Letter(s) of Transmittal (or facsimile thereof) and any other documents
required by such Letter of Transmittal, within five New York Stock Exchange
trading days after the date of execution of this Notice of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of
Transmittal and the Old Debentures tendered hereby to the Exchange Agent within
the time period set forth above and that failure to do so could result in a
financial loss to the undersigned.
Name of Firm:______________________ _____________________________
(Authorized Signature)
Address:___________________________ Title:_______________________
___________________________________ Name:________________________
(Zip Code) (Please type or print)
Area Code and Telephone Number: Date:________________________
___________________________________
NOTE: DO NOT SEND OLD DEBENTURES WITH THIS NOTICE OF GUARANTEED DELIVERY.
ACTUAL SURRENDER OF OLD DEBENTURES MUST BE MADE PURSUANT TO, AND BE ACCOMPANIED
BY, A PROPERLY COMPLETED AND FULLY EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER
REQUIRED DOCUMENTS.
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Exhibit 99.3
Offer to Exchange
6.53% Debentures due 2008
(Registered Under The Securities Act of 1933)
for Any and All Outstanding
6.53% Debentures due 2008
of
CINERGY CORP.
To Our Clients:
We are enclosing herewith a Prospectus, dated , 1999, of
Cinergy Corp., a Delaware corporation (the "Company"), and a related Letter of
Transmittal (which together constitute the "Exchange Offer") relating to the
offer by the Company to exchange its 6.53% Debentures due 2008 (the "New
Debentures"), pursuant to an offering registered under the Securities Act of
1933, as amended (the "Securities Act"), for a like principal amount of its
issued and outstanding 6.53% Debentures due 2008 (the "Old Debentures") upon
the terms and subject to the conditions set forth in the Exchange Offer.
Please note that the Exchange Offer will expire at 5:00 p.m., New York
City time, on , 1999, unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Debentures being tendered.
We are the holder of record and/or participant in the book-entry transfer
facility of Old Debentures held by us for your account. A tender of such Old
Debentures can be made only by us as the record holder and/or participant in
the book-entry transfer facility and pursuant to your instructions. The Letter
of Transmittal is furnished to you for your information only and cannot be used
by you to tender Old Debentures held by us for your account.
We request instructions as to whether you wish to tender any or all of the
Old Debentures held by us for your account pursuant to the terms and conditions
of the Exchange Offer. We also request that you confirm that we may on your
behalf make the representations contained in the Letter of Transmittal.
Pursuant to the Letter of Transmittal, each holder of Old Debentures will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Debentures to be received by the holder are being
acquired in the
<PAGE>
ordinary course of its business and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Debentures. If the tendering holder
is a broker-dealer that will receive New Debentures for its own account in
exchange for Old Debentures, we will represent on behalf of such broker-dealer
that the Old Debentures to be exchanged for the New Debentures were acquired by
it as a result of market-making activities or other trading activities, and
acknowledge on behalf of such broker-dealer that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Debentures. By acknowledging that it will deliver and by delivering a
prospectus meeting the requirements of the Securities Act in connection with
any resale of such New Debentures, such broker-dealer is not deemed to admit
that it is an "underwriter" within the meaning of the Securities Act.
Very truly yours,
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Exhibit 99.4
Offer to Exchange
6.53% Debentures due 2008
(Registered under the Securities Act of 1933)
for Any and All Outstanding
6.53% Debentures due 2008
of
CINERGY CORP.
To Registered Holders and The Depository
Trust Company Participants:
We are enclosing herewith the material listed below relating to the offer
by Cinergy Corp., a Delaware corporation (the "Company"), to exchange its 6.53%
Debentures due 2008 (the "New Debentures"), pursuant to an offering registered
under the Securities Act of 1933, as amended (the "Securities Act"), for a like
principal amount of its issued and outstanding 6.53% Debentures due 2008 (the
"Old Debentures") upon the terms and subject to the conditions set forth in the
Company's Prospectus, dated , 1999, and the related Letter of Transmittal
(which together constitute the "Exchange Offer").
Enclosed herewith are copies of the following documents:
1. Prospectus dated , 1999;
2. Letter of Transmittal;
3. Notice of Guaranteed Delivery;
4. Instruction to Registered Holder and/or Book-Entry Transfer Participant
from Owner; and
5. Letter which may be sent to your clients for whose account you hold Old
Debentures in your name or in the name of your nominee, to accompany the
instruction form referred to above, for obtaining such client's
instruction with regard to the Exchange Offer.
<PAGE>
We urge you to contact your clients promptly. Please note that the
Exchange Offer will expire at 5:00 p.m., New York City time, on , 1999
unless extended.
The Exchange Offer is not conditioned upon any minimum number of Old
Debentures being tendered.
Pursuant to the Letter of Transmittal, each holder of Old Debentures will
represent to the Company that (i) the holder is not an "affiliate" of the
Company, (ii) any New Debentures to be received by it are being acquired in the
ordinary course of its business and (iii) the holder has no arrangement or
understanding with any person to participate in a distribution (within the
meaning of the Securities Act) of such New Debentures. If the tendering holder
is a broker-dealer that will receive New Debentures for its own account in
exchange for Old Debentures, you will represent on behalf of such broker-dealer
that the Old Debentures to be exchanged for the New Debentures were acquired by
it as a result of market-making activities or other trading activities, and
acknowledge on behalf of such broker-dealer that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such New Debentures. By acknowledging that it will deliver and by delivering a
prospectus meeting the requirements of the Securities Act in connection with
any resale of such New Debentures, such broker-dealer is not deemed to admit
that it is an "underwriter" within the meaning of the Securities Act.
The enclosed Instruction to Registered Holder and/or Book-Entry Transfer
Participant from Owner contains an authorization by the beneficial owners of
the Old Debentures for you to make the foregoing representations.
The Company will not pay any fee or commission to any broker or dealer or
to any other persons (other than the Exchange Agent) in connection with the
solicitation of tenders of Old Debentures pursuant to the Exchange Offer. The
Company will pay or cause to be paid any transfer taxes payable on the transfer
of Old Debentures to it, except as otherwise provided in Instruction 10 of the
enclosed Letter of Transmittal.
Additional copies of the enclosed material may be obtained from the
undersigned.
Very truly yours,
FIFTH THIRD BANK
NOTHING CONTAINED HEREIN OR IN THE ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU THE AGENT OF CINERGY CORP. OR FIFTH THIRD BANK
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<PAGE>
OR AUTHORIZE YOU TO USE ANY DOCUMENT OR MAKE ANY STATEMENT ON THEIR BEHALF IN
CONNECTION WITH THE EXCHANGE OFFER OTHER THAN THE DOCUMENTS ENCLOSED HEREWITH
AND THE STATEMENTS CONTAINED THEREIN.
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Exhibit 99.5
INSTRUCTION TO REGISTERED HOLDER AND/OR
BOOK-ENTRY TRANSFER FACILITY PARTICIPANT FROM OWNER
OF
CINERGY CORP.
6.53% Debentures due 2008
To Registered Holder and/or Participant of the Book-Entry Transfer
Facility:
The undersigned hereby acknowledges receipt of the Prospectus dated
, 1999 (the "Prospectus") of Cinergy Corp., a Delaware corporation
(the "Company"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer"). Capitalized terms used but not defined herein have the meaning as
ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or book-entry transfer
facility participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Old Debentures held by you for the account
of the undersigned.
The aggregate face amount of the Old Debentures held by you for the
account of the undersigned is (fill in amount):
$___________ of the 6.53% Debentures due 2008
With respect to the Exchange Offer, the undersigned hereby instructs you
(check appropriate box):
[ ] To TENDER the following Old Debentures held by you for the account of the
undersigned (insert principal amount of Old Debentures to be tendered, if any):
$___________ of the 6.53% Debentures due 2008
[ ] NOT to TENDER any Old Debentures held by you for the account of the
undersigned.
<PAGE>
If the undersigned instructs you to tender the Old Debentures held by you
for the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature
below, hereby makes to you), the representations and warranties contained in
the Letter of Transmittal that are to be made with respect to the undersigned
as a beneficial owner, including but not limited to the representations, that
(i) the holder is not an "affiliate" of the Company, (ii) any New Debentures to
be received by the holder are being acquired in the ordinary course of its
business and (iii) the holder has no arrangement or understanding with any
person to participate in a distribution (within the meaning of the Securities
Act) of such New Debentures. If the undersigned is a broker-dealer that will
receive New Debentures for its own account in exchange for Old Debentures, it
represents that such Old Debentures were acquired as a result of market-making
activities or other trading activities, and it acknowledges that it will
deliver a prospectus meeting the requirements of the Securities Act in
connection with any resale of such New Debentures. By acknowledging that it
will deliver and by delivering a prospectus meeting the requirements of the
Securities Act in connection with any resale of such New Debentures, such
broker-dealer is not deemed to admit that it is an "underwriter" within the
meaning of the Securities Act of 1933, as amended.
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<PAGE>
SIGN HERE
Name of beneficial owner(s):___________________________________________________
Signature(s):__________________________________________________________________
Name(s) (please print):________________________________________________________
Address:_______________________________________________________________________
_______________________________________________________________________________
Telephone Number:______________________________________________________________
Taxpayer Identification or Social Security Number:_____________________________
_______________________________________________________________________________
Date:__________________________________________________________________________
3
