As filed with the Securities and Exchange Commission on July 12, 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 jurisdiction (Primary Standard (I.R.S. Employer
of incorporation or Industrial Classification Identification No.)
organization) Code Number)
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)
David T. Musselman
Senior Counsel
Cinergy Corp.
221 East 4th Street
Suite 2500
Cincinnati, OH 45201
(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: o
<TABLE>
CALCULATION OF REGISTRATION FEE
==================================================================================================================================
Proposed Maximum
Title of Each Class Amount to be Proposed Maximum Aggregate Offering Amount of
of Securities to be Registered Registered Offering Price(1) Price(1) Registration Fee(2)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
6.125% Debentures due 2004.............. $200,000,000 100% $200,000,000 $55,600
==================================================================================================================================
(1) Estimated solely for the purpose of calculating the amount of the registration fee.
(2) Calculated pursuant to Rule 457.
</TABLE>
-----------------------
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 6.125% Debentures due 2004
which have been registered under the
Securities Act of 1933, as amended
for
All Outstanding 6.125% Debentures due 2004
-----------------------
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, our
Quarterly Report on Form 10-Q for the three months ended March 31, 1999 and our
Current Report on Form 8-K dated July 6, 1999, filed pursuant to the Securities
Exchange Act of 1934 (the "Exchange Act"), are 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 6.125% Debentures due
2004, 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 6.125% Debentures due 2004,
issued by Cinergy on April 16, 1999 ("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 United States Tax Consequences of
the Exchange Offer."
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 April
15, 1999 between the Company and Fifth Third
Bank, as trustee.
New Debentures................... $200,000,000 aggregate principal amount of
6.125% Debentures due 2004.
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.................... April 15, 2004.
Interest Payment Dates........... April 15 and October 15, commencing October
15, 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 15 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 "Where You Can Find
More Information". All amounts are in thousands except per share amounts and
the ratio of earnings to fixed charges.
<TABLE>
Three Months Year Ended December 31,
Ended -----------------------------------------
March 31, 1999 1998(1) 1997 1996
-------------- ----------- ----------- -----------
(Unaudited)
<S> <C> <C> <C> <C>
Operating Revenues................................$ 1,402,279 $ 5,876,294 $ 4,387,101 $ 3,276,187
Operating Income..................................$ 234,149 $ 566,429 765,668 763,538
Preferred Dividend Requirement....................$ 1,364 $ 6,517 12,569 23,180
Net Income Before Extraordinary Item..............$ 127,245 $ 260,968 362,638 334,797
Extraordinary Item--Equity Share of Windfall
Profits Tax (Less Applicable Income Taxes of
$0)............................................ -- -- (109,400(2) --
Net Income........................................$ 127,245 $ 260,968 $ 253,238 $ 334,797
Earnings Per Common Share
Net Income Before Extraordinary Item...........$ 0.80 $ 1.65 $ 2.30 $ 2.00
Net Income.....................................$ 0.80 $ 1.65 $ 1.61 $ 2.00
Earnings Per Common Share--Assuming
Dilution
Net Income Before Extraordinary Item...........$ 0.80 $ 1.65 $ 2.28 $ 1.99
Net Income.....................................$ 0.80 $ 1.65 $ 1.59 $ 1.99
- ---------
<FN>
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 $135 million (before taxes) of
unrealized losses related to energy marketing and trading operations. For
additional information, reference is made to our Annual Report on Form
10-K for the year ended December 31, 1998, which is incorporated herein by
reference.
(2) Represents a one-time charge for the windfall profits tax levied against
our United Kingdom subsidiary, Midlands Electricity plc. For additional
information, reference is made to our Annual Report on Form 10-K for the
year ended December 31, 1998, which is incorporated herein by reference.
</FN>
</TABLE>
8
<PAGE>
Consolidated Capitalization
<TABLE>
Outstanding March 31, 1999 Outstanding December 31, 1998
--------------------------- -----------------------------
% of % of
Amount Capitalization Amount Capitalization
----------- -------------- ----------- --------------
(Unaudited)
<S> <C> <C> <C> <C>
Long-term debt...........................$ 2,605,657 49.3% $ 2,604,467 49.7%
Cumulative preferred stock
Not subject to mandatory redemption... 92,616 1.7 92,640 1.8
Common Stock equity...................... 2,592,233 49.0 $ 2,541,231 48.5
----------- ----- ----------- -----
Total Capitalization...............$ 5,290,506 100.0% $ 5,238,338 100.0%
=========== ===== =========== =====
</TABLE>
Ratio of Earnings to Fixed Charges
Set forth below is the ratio of earnings to fixed charges for the three
months ended March 31, 1999 and for each year of the five year period ended
December 31, 1998.
Three Months Year Ended December 31,
Ended ----------------------------------------------------
March 31, 1999 1998 1997 1996 1995 1994
-------------- ---- ---- ---- ---- ----
4.15 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.
10
<PAGE>
DESCRIPTION OF NEW DEBENTURES
General
The Old Debentures were, and the New Debentures will be, issued under an
indenture dated as of April 15, 1999 (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 April 15, 2004, and will bear
interest at a rate per annum of 6.125%, 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 April 15
and October 15 in each year, beginning October 15, 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 15 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.
12
<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 April 15, 2004.
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
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aggregate principal amount of the Outstanding New Debentures by notice as
provided in the Indenture may declare the 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;
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o to add any additional Events of Default for the benefit of the
Holders; or
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;
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o maintain paying agencies; and
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.
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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 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:
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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 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
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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).
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
24
<PAGE>
will remain outstanding and be entitled to the benefits of the Indenture, but
will not be entitled to any further registration 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:
25
<PAGE>
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
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 "--Resale 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 if and when 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
26
<PAGE>
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.
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.
27
<PAGE>
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:
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.
28
<PAGE>
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:
29
<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
30
<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.
31
<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, to the extent and for the periods indicated in
their reports, have been audited by Arthur Andersen LLP, independent public
accountants, 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.
32
<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
----
Where You Can Find More 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
---------------
, 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
II-1
<PAGE>
asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the 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 9th day of July, 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.
Signature Title Date
--------- ---------- -------------
(i) Principal executive officer:
*James E. Rogers Vice Chairman, President and July 9, 1999
- --------------------------------- Chief Executive Officer
James E. Rogers
(ii) Principal financial officer:
/s/ Madeleine W. Ludlow Vice President and Chief July 9, 1999
- --------------------------------- Financial Officer
Madeleine W. Ludlow
(iii) Principal accounting officer:
/s/ Bernard F. Roberts Vice President and Comptroller July 9, 1999
- ---------------------------------
Bernard F. Roberts
(iv) Directors
*Neil A. Armstrong Director July 9, 1999
*James K. Baker Director July 9, 1999
*Michael G. Browning Director July 9, 1999
*Phillip R. Cox Director July 9, 1999
*Kenneth M. Duberstein Director July 9, 1999
*Cheryl M. Foley Director July 9, 1999
II-3
<PAGE>
Signature Title Date
--------- -------- ------------
*John A. Hillenbrand II Director July 9, 1999
*George C. Juilfs Director July 9, 1999
*Melvin Perelman Director July 9, 1999
*Thomas E. Petry Director July 9, 1999
*Jackson H. Randolph Director July 9, 1999
*James E. Rogers Director July 9, 1999
*John J. Schiff, Jr. Director July 9, 1999
*Philip R. Sharp Director July 9, 1999
*Van P. Smith Director July 9, 1999
*Dudley S. Taft Director July 9, 1999
*Oliver W. Waddell Director July 9, 1999
*By:/s/ William L. Sheafer
-------------------------------------
William L. Sheafer, Attorney-in-fact
II-4
<PAGE>
EXHIBIT INDEX
Exhibit No. Document
- ---------- --------
1.1 Registration Rights Agreement dated as of April 16, 1999 among
Cinergy, Salomon Smith Barney Inc., Barclays Capital Inc., Chase
Securities Inc. and Morgan Stanley & Co. Incorporated, 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 December 7, 1998 Form 8-K).
*4.2 Indenture, dated as of April 15, 1999 between Cinergy and the
Trustee (Exhibit to Cinergy's Form 10-Q for the three months
ended March 31, 1999).
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.
E-1
EXHIBIT 1.1
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of April 16, 1999 (this
"Agreement"), among CINERGY CORP., a Delaware corporation (the "Company") and
SALOMON SMITH BARNEY INC., BARCLAYS CAPITAL INC., CHASE SECURITIES INC., AND
MORGAN STANLEY & CO. INCORPORATED as the initial purchasers (the "Initial
Purchasers") of the 6.125% Debentures due 2004 of the Company.
This Agreement is made pursuant to the Purchase Agreement, dated as
of April 13, 1999, 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 6.125% Debentures due 2004, 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
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Exchange Offer Registration Statement otherwise becomes effective and
(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 April 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 Salomon Smith Barney Inc., Barclays
Capital Inc., Chase Securities Inc. and Morgan Stanley & Co.
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
April 13, 1999 among the Company and the Initial Purchasers.
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(p) "Registrable Debentures" means the Debentures; provided,
however, that the Debentures shall cease to be Registrable Debentures
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.
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<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
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<PAGE>
complete the Exchange Offer promptly after the Exchange Offer
Registration Statement has become effective for all Debentures that
have 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 120 days following the Closing Date, then
commencing on the 121st 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
6
<PAGE>
the termination of certain transfer restrictions on the Debentures as a result
of the 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
7
<PAGE>
maintain the effectiveness of such registration statement
for the 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
8
<PAGE>
any other person any information or records reasonably
designated 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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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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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.
5. Representations and Warranties
15
<PAGE>
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 or will omit or omitted to state
a material fact required to be stated therein
16
<PAGE>
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 untrue statement of a material fact
contained in any registration statement
17
<PAGE>
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).
(c) Each Participant agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
and any person controlling
18
<PAGE>
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 relates to information supplied
by the Company or by the Participants and the
19
<PAGE>
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
SALOMON SMITH BARNEY INC.
BARCLAYS CAPITAL INC.
CHASE SECURITIES INC.
MORGAN STANLEY & CO.
INCORPORATED
By: SALOMON SMITH BARNEY INC.
By: /s/ Robert Holloman
------------------------------------
Name: Robert Holloman
Title: Managing Director
25
<PAGE>
Cinergy Corp.
Certificate
I, William Sheafer, 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
6.125% Debentures due 2004 (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 April 13, 1999,
between the Company and Salomon Smith Barney Inc., Barclays Capital Inc.,
Chase Securities Inc. and Morgan Stanley & Co. Incorporated.
April 16, 1999 /s/ William Sheafer
-----------------------------------
Name: William Sheafer
Title: Vice President and Treasurer
Exhibit 5.1
[LETTERHEAD OF TAFT, STETTINIUS & HOLLISTER LLP]
July 12, 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 6.125% Debentures due 2004
(the "New Debentures") of Cinergy Corp., a Delaware corporation (the
"Company"), to be issued in exchange for the Company's outstanding 6.125%
Debentures due 2004 pursuant to (i) the Indenture (the "Indenture") dated as
of April 15, 1999 between the Company and Fifth Third Bank, as trustee (the
"Trustee"), and (ii) the Registration Rights Agreement dated as of April 16,
1999 (the "Registration Rights Agreement") by and among the Company and
Salomon Smith Barney Inc., Barclays Capital Inc., Chase Securities Inc. and
Morgan Stanley & Co. 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
12
EXHIBIT 12.1
CINERGY CORP.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
Three
Months
Ended 12 Months Ended December 31
March 31, ------------------------------------------------
1999 1998 1997 1996 1995 1994
-------- -------- -------- -------- -------- --------
<S> <C> <C> <C> <C> <C> <C>
Earnings Available
Net Income $127,245 $260,968 $362,638 $334,797 $347,182 $191,142
Plus:
Preferred dividend requirements 1,364 6,517 12,569 23,180 30,853 35,559
Income Taxes 77,564 117,187 213,000 198,736 214,071 141,572
Interest on LOng-Term Debt 50,077 183,849 181,772 190,617 213,911 219,248
Other Interest 12,648 67,219 59,947 31,169 20,826 20,370
Interest Component of Rents(a) 2,690 10,760 10,482 9,494 10,039 10,552
-------- -------- -------- -------- -------- --------
Total Available $271,588 $646,500 $840,408 $787,993 $836,882 $618,443
======== ======== ======== ======== ======== ========
Fixed Charges
Interest Charges $ 82,725 $251,068 $241,719 $221,786 $234,737 $239,618
Interest Component of Rents(a) 2,690 10,760 10,482 9,494 10,039 10,552
-------- -------- -------- -------- -------- --------
Total Fixed Charges $ 65,415 $261,828 $252,201 $231,280 $244,776 $250,170
======== ======== ======== ======== ======== ========
Ratio of Earnings to Fixed Charges 4.15 2.47 3.33 3.41 3.42 2.47
======== ======== ======== ======== ======== ========
- ---------
(a) Estimated interest component of rentals (1/3 of rentals was used where no readily defined
interest element could be determined.
</TABLE>
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
July 12, 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
FORM 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)
6.125% Debentures due 2004
- ------------------------------------------------------------------------------
(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 8th day of July, 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 4th 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 1st day of July, 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 (2/3) 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.
14
<PAGE>
ARTICLE V
AMENDMENTS
These regulations may be changed, and new regulations adopted by the
assent thereto in writing of two-thirds (2/3) 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
6.125% Debentures due 2004
(Registered under the Securities Act of 1933)
for
All Outstanding 6.125% Debentures due 2004
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
Cincinnati, Ohio 45263 Cincinnati, Ohio 45263
Attn: Corporate Trust Attn: Corporate Trust
Department Department
To Confirm by Telephone Facsimile Transmissions:
or for Information: (513) 744-6785
(513) 579-5300
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).
<PAGE>
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.
2
<PAGE>
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
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
* 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.
(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 _________________________________________________
o 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.
3
<PAGE>
[ ] 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: ________________________________________________________________
4
<PAGE>
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 6.125% Debentures due 2004 (the "Old Debentures") in exchange for a
like aggregate principal amount of the Company's 6.125% Debentures due 2004
(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
5
<PAGE>
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.
6
<PAGE>
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_____________________________________________________________________, 1998
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_____________________________________________________________________, 1998
Capacity or Title______________________________________________________________
Name of Firm___________________________________________________________________
Address________________________________________________________________________
(Include Zip Code)
Area Code and Telephone Number_________________________________________________
<TABLE>
7
<PAGE>
<S> <C>
SPECIAL ISSUANCE INSTRUCTIONS SPECIAL DELIVERY INSTRUCTIONS
(See Instructions 1, 5 and 6) (See Instructions 1, 5 and 6)
To be completed ONLY if the New Debentures To be completed ONLY if New Debentures are to
are to be issued in the name of someone other than be sent to someone other than the registered holder
the registered holder of the Old Debentures whose of the Old Debentures whose name(s) appear(s)
name(s) appear(s) above. above, or to such registered holder(s) at an address
other than that shown above.
Issue New Debentures to: Mail New Debentures To:
Name__________________________________________________ Name_________________________________________________
(Please Print) (Please Print)
______________________________________________________ _____________________________________________________
Address_______________________________________________ Address______________________________________________
______________________________________________________ _____________________________________________________
______________________________________________________ _____________________________________________________
(Include Zip Code) (Include Zip Code)
______________________________________________________ _____________________________________________________
(Taxpayer Identification or (Taxpayer Identification or
Social Security Number) Social Security Number)
</TABLE>
8
<PAGE>
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
9
<PAGE>
(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.
10
<PAGE>
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
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<PAGE>
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.
12
EXHIBIT 99.2
NOTICE OF GUARANTEED DELIVERY
Offer to Exchange
6.125% Debentures due 2004
(Registered under the Securities Act of 1933)
for
All Outstanding 6.125% Debentures due 2004
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) 6.125% Debentures due 2004
(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
<TABLE>
<S> <C> <C>
By Hand or Overnight Delivery: Facsimile Transmissions: By Registered Or Certified Mail:
(Eligible Institutions 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 Trust Attention: Corporate Trust
Department (513) 579-5300 Department
</TABLE>
<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.
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<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 (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.
3
EXHIBIT 99.3
Offer to Exchange
6.125% Debentures due 2004
(Registered Under The Securities Act of 1933)
for Any and All Outstanding
6.125% Debentures due 2004
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 6.125% Debentures due 2004 (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 6.125% Debentures due 2004 (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,
2
EXHIBIT 99.4
Offer to Exchange
6.125% Debentures due 2004
(Registered under the Securities Act of 1933)
for Any and All Outstanding
6.125% Debentures due 2004
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 6.125% Debentures due 2004 (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 6.125%
Debentures due 2004 (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.
6.125% Debentures due 2004
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 6.125% Debentures due 2004
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 6.125% Debentures due 2004
|_| 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
