[Federal Register Volume 59, Number 113 (Tuesday, June 14, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14399]
[[Page Unknown]]
[Federal Register: June 14, 1994]
-----------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
[Release No. 35-26063]
Filings Under the Public Utility Holding Company Act of 1935
(``Act'')
June 7, 1994.
Notice is hereby given that the following filing(s) has/have been
made with the Commission pursuant to provisions of the Act and rules
promulgated thereunder. All interested persons are referred to the
application(s) and/or declaration(s) for complete statements of the
proposed transaction(s) summarized below. The application(s) and/or
declaration(s) and any amendments thereto is/are available for public
inspection through the Commission's Office of Public Reference.
Interested persons wishing to comment or request a hearing on the
application(s) and/or declaration(s) should submit their views in
writing by July 1, 1994, to the Secretary, Securities and Exchange
Commission, Washington, DC 20549, and serve a copy on the relevant
applicant(s) and/or declarant(s) at the address(es) specified below.
Proof of service (by affidavit or, in case of any attorney at law, by
certificate) should be filed with the request. Any request for hearing
shall identify specifically the issues of fact or law that are
disputed. A person who so requests will be notified of any hearing, if
ordered, and will receive a copy of any notice or order issued in the
matter. After said date, the application(s) and/or declaration(s), as
filed or as amended, may be granted and/or permitted to become
effective.
CINergy Corp. (70-8427)
CINergy Corp. (``CINegy''), 139 East Fourth Street, Cincinnati,
Ohio 45202, a Delaware corporation not currently subject to the Act,
has filed an application-declaration under sections 5, 6(a), 7,
9(a)(1), 9(a)(2), 10, 13(b) and rules 80-91 and 93-94 thereunder.
The application-declaration seeks approvals relating to the
proposed combination of Cincinnati Gas & Electric Company (``CG&E''),
an Ohio combination electric and gas public-utility holding company
exempt from registration under section 3(a)(2) of the Act pursuant to
rule 2, and PSI Resources, Inc. (``PSI''), an Indiana public-utility
holding company exempt from registration under section 3(a)(1) of the
Act pursuant to rule 2, by which CG&E and PSI's electric public-utility
subsidiary, PSI Energy, Inc. (``Energy''), would become wholly owned
subsidiaries of CINergy. Following the transaction, CINergy would
register with the Commission under Section 5 of the Act. CINergy also
seeks approvals in connection with services to be rendered by CINergy
Services, Inc. (``Services''), CINergy's newly formed service company
subsidiary, the formation of a new CINergy subsidiary that will hold
certain of the CINergy system's non-utility assets, and the issuance of
shares of CINergy common stock for CINergy's dividend reinvestment and
employee benefit plans.
CG&E and its public-utility subsidiary companies are primarily
engaged in providing electric and gas service in the southwestern
portion of Ohio and adjacent areas in Kentucky and Indiana.\1\ The
service area covers approximately 3,000 square miles has an estimated
population of 1.8 million, and includes the cities of Cincinnati and
Middletown in Ohio, Covington and Newport in Kentucky, and Lawrenceburg
in Indiana. As of February 28, 1994, there were 88,458,656 shares of
CG&E common stock, par value $8.50 per share, and 3,300,000 shares of
CG&E cumulative preferred stock (400,000 of which were redeemed on
April 1, 1994) outstanding. CG&E's principal executive office is
located in Cincinnati, Ohio. On a consolidated basis, for the year
ended December 31, 1993, CG&E's operating revenues were approximately
$1.75 billion with consolidated assets of approximately $5.1 billion,
consisting of $3.28 billion in electric utility property, plant, and
equipment and $504 million in gas utility property, plant, and
equipment, and $1.36 billion in other corporate assets.
---------------------------------------------------------------------------
\1\CG&E wholly owns four public-utility subsidiary companies--
The Union Light, Heat and Power Company, an electric and gas
subsidiary company, Miami Power Corporation, a subsidiary which owns
a 138 kV transmission line, The West Harrison Gas and Electric
Company, an electric subsidiary company, and Lawrenceburg Gas
Company, a gas subsidiary company. In addition, CG&E owns 9% of Ohio
Valley Electric Corp., an electric subsidiary company.
CG&E directly or indirectly owns all the issued and outstanding
common stock in five non-utility companies and minority interests in
five limited partnerships. Three are direct subsidiaries--Tri-State
Improvement Company, a real estate development company formed to
acquire and hold property for use in CG&E's utility operations, CGE
Corp., formed to hold CG&E's non-utility interests, and KO
Transmission Company, used to acquire an interest in an interstate
natural gas pipeline.
CGE Corp. has three wholly owned non-utility subsidiaries--
Enertech Associates International, Inc. (``Enertech''), CG&E
Resource Marketing, Inc. (``Resource Marketing''), and CGE ECK, Inc.
(``CGE ECK''). Enertech provides, among other things, consulting,
fuel brokering, operation and maintenance services, and demand-side
management services worldwide and also pursues investment
opportunities worldwide. Resource Marketing holds CG&E's 25%
interest in U.S. Energy Partners, a gas marketing partnership that
will compete with traditional regulated merchant service and will
broker gas to industrial and large commercial customers. CGE ECK
holds CG&E's 30-35% interest in a Czech limited liability company
which will own and operate a Czech generating facility.
The limited partnerships are North Rhine I Limited Partnership
(CG&E has a $300,000 commitment representing a 10.91% limited
partnership interest), North Rhine II Limited Partnership (CG&E has
a $300,000 commitment representing a 5.61% limited partnership
interest), Franciscan Homes II Limited Partnership (CG&E has a
$300,000 commitment representing a 2.07% limited partnership
interest), Blue Chip Capital Fund (CG&E has a $1 million commitment
representing 2.3% of the fund), and Blue Chip Opportunity Fund (CG&E
has a $500,000 commitment representing 4.1% of the fund). North
Rhine I and II and Franciscan Homes II Limited Partnerships provide
low income housing in CG&E's service territory. Blue Chip Capital
and Opportunity Funds promote community development through
investment in female and minority owned businesses in CG&E
territory.
---------------------------------------------------------------------------
PSI owns all the issued and outstanding common stock of Energy, an
Indiana corporation engaged in the production, transmission,
distribution, and sale of electric energy in north central, central,
and southern Indiana.\2\ Energy services a population of approximately
1.9 million in 69 counties in Indiana. As of February 28, 1994 there
were 57,114,573 shares of PSI common stock outstanding. PSI has no
shares of preferred stock outstanding. As of February 28, 1994, there
were 5,118,335 preferred shares of Energy outstanding. PSI's principal
corporate office is located in Plainfield, Indiana. On a consolidated
basis, for the year ended December 31, 1993, PSI's operating revenues
were approximately $1.1 billion, and its total assets were
approximately $2.7 billion, of which $2.2 billion was electric utility
plant.
---------------------------------------------------------------------------
\2\Energy has two subsidiaries, PSI Energy Argentina, Inc. and
South Construction Company, a company used to own real estate and
interests in real estate which are either not used and useful in the
conduct of Energy's business or which have some defect in title
which is unacceptable to Energy.
PSI either directly or indirectly owns PSI Argentina, Inc.
(``PSI Argentina'') and Costanera Power Corp. Through these
subsidiaries, PSI is a 10% shareholder of Argelec S.A., a 6%
shareholder of Central Costanera S.A., an Argentine electric
generating company, and an 8% shareholder in Distrilec Inversora
S.A. (``Distrilec''). Distrilec owns 51% of Edesur S.A., an electric
distribution system. PSI Argentina also wholly owns an inactive
subsidiary, Energy Services Inc. of Buenos Aires, formed to provide
operating and consulting services to foreign utilities.
PSI wholly owns three active non-utility subsidiaries, PSI
Recycling, Inc. (which recycles material from Energy and other
sources), PSI Investments, Inc. (``Investments'') (which oversees
investments in nonregulated businesses), and PSI Argentina.
Investments has two active subsidiaries, Power Equipment Supply Co.
(which sells equipment among other things) and Wholesale Power
Services, Inc. (``WPS'') (which activities include, among others,
power brokering, electricity futures, consulting services in
wholesale power related markets). WPS, also through a division,
formed International Power Exchange, an electronic bulletin board
for the bulk power market.
Investments has five inactive subsidiaries--PSI Power Resource
Operations Inc. and PSI Power Resource Development, Inc. (which
develop, construct, operate, maintain, and own independent power
producer/cogeneration projects), PSI Environmental Corp. (which
provides environmental services), PSI International, Inc. and PSI
Sunnyside, Inc. (both formed to develop, construct, operate, and own
cogenerating or power production facilities).
PSI also holds minority interests in five limited partnerships--
CID Partnership, L.P. ($350,000 investment at year-end 1993), CID
Ventures, L.P. (3.7% interest with a $1 million investment at year-
end 1993), CID Equity Capital III, L.P. (a 8.2% interest with a
$800,000 investment at year-end 1993), Cambridge Ventures, L.P. (a
7.6% interest with a $250,000 investment at year-end 1993), and
Circle Centre Mall (a $1.2 million commitment to be invested in mid-
1994 representing a 4.2% interest). CID Equity Partners is a private
venture capital partnership dedicated to building successful
companies through long-term investments in growing Indiana and other
midwestern businesses. Circle Centre Mall is a 700,000 square foot
shopping mall under construction in downtown Indianapolis.
---------------------------------------------------------------------------
CINergy was incorporated in Delaware on June 30, 1993 to become a
holding company over CG&E and Energy following the proposed merger. At
present, the common stock of CINergy, which consists of 100 issued and
outstanding shares, is owned by PSI and by Tri-State Improvement
Company, a wholly owned non-utility subsidiary of CG&E. Each company
owns 50 shares.
CINergy Sub, Inc. (``CINergy Sub''), a subsidiary of CINergy, was
incorporated under the laws of Ohio on July 1, 1993. The authorized
capital stock of CINergy Sub consists of 100 shares of common stock, no
par value. CINergy has entered into a subscription agreement for all
such shares. No shares of CINergy Sub common stock have been issued.
CINergy Sub has and prior to the closing of the proposed merger will
have, no operations other than the activities necessary to accomplish
the proposed combination of CINergy Sub and CG&E as described below.
Pursuant to an Agreement and Plan of Reorganization, dated as of
December 11, 1992, as amended and restated on July 2, 1993 and as of
September 10, 1993 (``Merger Agreement''), PSI will be merged with and
into CINergy, with CINergy as the surviving corporation (``PSI
Merger''), and CINergy Sub will be merged with and into CG&E, with CG&E
as the surviving corporation (``CG&E Merger''). As a result of the PSI
Merger and the CG&E Merger, CG&E and Energy will become operating
subsidiaries of CINergy, and CINergy will be a holding company under
section 2(a)(7) of the Act.
Specifically, upon consummation of the proposed transaction: (1)
Each issued and outstanding share of CG&E common stock (other than
treasury and certain other shares which will be cancelled, and shares
held by holders who dissent in compliance with Ohio law) will be
converted into the right to receive one share of CINergy common stock,
par value $.01 per share (``CG&E Conversion Ratio''); (2) each issued
and outstanding share of PSI common stock (other than treasury and
certain other shares which will be cancelled, and shares held by
holders who dissent in compliance with Indiana law) will be converted
into the right to receive that number of shares of CINergy common stock
obtained by dividing $30.69 by the average closing sale price of the
CG&E common stock for the 15 consecutive trading days preceding the
fifth trading day prior to the PSI Merger; provided that, if the actual
quotient obtained thereby is less than .909, the quotient shall be
.909, and if the actual quotient obtained thereby is more than 1.023,
the quotient shall be 1.023 (``PSI Conversion Ratio''); (3) the
aggregate of all shares of CINergy Sub common stock issued and
outstanding prior to the transaction will be converted into the right
to receive that number of shares of CG&E common stock equivalent to the
aggregate number of shares of CG&E common stock issued and outstanding
immediately prior to the transaction; and (4) all shares of capital
stock of CINergy issued and outstanding immediately prior to the
transaction will be cancelled. Holders of PSI common stock entitled to
receive fractional shares of CINergy common stock will receive a cash
payment in lieu of such fractional shares. These cash payments will be
determined by multiplying the fractional share interest by the average
of the last reported sales price per share of CG&E common stock on the
consolidated tape for the ten business days prior to and including the
last business day on which CG&E common stock was traded on the New York
Stock Exchange, without any interest thereon.\3\ The outstanding shares
of preferred stock of CG&E and Energy will not be affected. CINergy
states that the transaction is expected to be tax-free to CG&E, PSI,
and Energy shareholders (except as to dissenters' rights and fractional
shares). Based on the capitalization of PSI and CG&E on February 28,
1994 and PSI Conversion Ratio of 1.023, the shareholders of PSI and
CG&E would own securities representing approximately 40% and 60%,
respectively, of the outstanding voting power of CINergy. CINergy
states that the proposed merger is a pure stock-for-stock exchange and
qualifies for treatment as a pooling of interests.
---------------------------------------------------------------------------
\3\Fractional shares of CG&E and PSI common stock held in
accounts under the dividend reinvestment plans, the 401(k) savings
plans, and the employee benefit plans of CG&E and PSI will be
converted into the applicable number of shares (or fractional
shares) of CINergy common stock under the corresponding plans of
CINergy, CG&E, or PSI, in accordance with the appropriate CG&E or
PSI Conversion Ratio.
---------------------------------------------------------------------------
Following the merger, CG&E's utility subsidiaries will remain
subsidiaries of CG&E, the non-utility subsidiaries of PSI will become
subsidiaries of CINergy, and the non-utility subsidiaries of CG&E will
remain subsidiaries of CG&E. The Merger Agreement provides that
CINergy's principal corporate office will be in Cincinnati, Ohio.
CINergy's board of directors, which will be classified into three
classes, will consist of a total of 19 directors, 10 of whom will be
designated by CG&E and 9 of whom will be designated by PSI.
CINergy requests authority to form a new subsidiary (``Holding
Company Sub'') to hold certain of the CINergy system's non-utility
interests. It is anticipated that Holding Company Sub will be
incorporated in Delaware, and that its capitalization will consist of
100 shares of common stock, par value $.01 per share, all of which will
be issued to, and acquired by, CINergy at a price not more than $1 per
share. CINergy expects that Holding Company Sub will acquire all the
outstanding capital stock of some or all of the following non-utility
subsidiaries: Enertech, Resource Marketing, CGE ECK, PSI Recycling,
Inc., PSI Argentia, Power Equipment Supply Company, WPS, PSI Power
Resource Development, Inc., PSI Power Resource Operations Inc., PSI
Environmental Corp., PSI International, Inc., and PSI Sunnyside, Inc.
CINergy also requests authorizations with respect to the activities
of Services, which was incorporated in Delaware on February 23, 1994 to
serve as the service company for the CINergy system after the proposed
merger. CINergy proposes that Services provide companies in the CINergy
system with a variety of administrative, management, and support
services. It is anticipated that Services will be staffed by transfer
of personnel from the current employee rosters of CG&E, PSI, and their
subsidiaries. CINergy states that Services' accounting and cost
allocation methods and procedures will comply with the Commission's
standards for service companies in registered holding-company systems,
and that Services' billing system will use the Commission's ``Uniform
System of Accounts of Mutual Service Companies and Subsidiary Service
Companies.'' Services' service agreement calls for pre-filing review by
state commissions of any amendment to its service agreement. For
CINergy's utility subsidiaries, Services proposes to provide services
at cost. For CINergy's non-utility subsidiaries, Services proposes that
charges be at fair market value and requests an exemption from the ``at
cost'' requirements of section 13(b).
In addition, CINergy requests authority through December 31, 1995
to issue and/or acquire in open market transactions an aggregate amount
up to 10 million shares of CINergy common stock for CINergy's
shareholder dividend reinvestment, stock purchase plan, stock-based
employee benefit plans, and the CG&E and Energy 401(k) plans. CINergy
has not finalized its dividend reinvestment plan (``CINergy DRIP'') but
anticipates that the terms will be the following. All holders of record
of shares of CINergy common stock, Energy cumulative preferred or
preference stock or CG&E cumulative preferred stock will be eligible to
participate in the CINergy DRIP. Full investment of funds will be
possible under the CINergy DRIP, subject to a minimum of $25 and a
maximum of $100,000 purchase limits. There will be no brokerage or
other fees on purchases. All costs of administration of the CINergy
DRIP will be paid by CINergy; however, charges will be incurred by
participants who direct the plan administrator to sell their shares on
withdrawal.
The shares of additional common stock purchased under the CINergy
DRIP with optional cash payments and reinvested dividends, if any, may
be, in the discretion of CINergy, authorized but unissued CINergy
common stock or shares of CINergy common stock purchased on the open
market by the plan administrator. CINergy will not change the source of
shares of common stock to open-market purchases unless capital needs or
market conditions warrant. When purchases of shares of CINergy common
stock under the CINergy DRIP come from authorized but unissued shares,
the purchase price of such shares will be the average of the high and
low prices (computed to four decimal places) of CINergy common stock,
as reported in the New York Stock Exchange Composite Transactions
section of The Wall Street Journal, for the appropriate investment
date, or if no trading in CINergy common stock occurs on such date, the
next preceding date on which such trading occurred. When CINergy common
stock purchased for each investment date comes from purchases on the
open market, the purchase price will be the weighted average price
(computed to four decimal places), excluding brokerage commissions, of
such shares acquired for the plan. CINergy will pay all administrative
costs of acquisition, including brokerage fees and commissions. It is
anticipated that there will be no discount program under the CINergy
DRIP.
A participant may sell or withdraw all or a portion of his/her
shares at any time. Sales of shares through the CINergy DRIP will not
be ``matched'' with other participants' purchases, but will be executed
without regard to such purchases. Proceeds from any sale, less
applicable brokerage commission, will be remitted to a participant
following settlement through the independent agent.
Whether the participant requests to sell the shares in his/her
account or elects to receive certificates for the full shares in his/
her account, the participant's interest in fractional shares will be
paid in cash on the basis of the price paid to the participant for his/
her whole shares. A participant will be entitled to request in writing
and receive a certificate representing the full shares of CINergy
common stock credited to his/her account.
CINergy proposes to use the proceeds from the sale of the newly-
issued shares of additional common stock for the repayment of
indebtedness, for working capital, or for other general corporate
purposes. CINergy will not, however, use such proceeds to acquire the
securities of or any interest in any exempt wholesale generators or in
any foreign utility company until such time as such investment shall be
approved by order or by regulation of the Commission, to the extent
such approval is required under the Act.
CG&E and PSI will discontinue their respective dividend
reinvestment plans following the consummation of the proposed merger.
CINergy proposes to adopt four stock-based plans--CINergy Stock
Option Plan (``Stock Option Plan''), CINergy Emplyee Stock Purchase and
Savings Plan (``ESOP''), CINergy Performance Shares Plan (``Performance
Plan''), and CINergy Directors' Deferred Compensation Plan
(``Directors' Plan''). Although the final terms of these plans have not
been established, the anticipated terms are set forth below.
The Stock Option Plan is a plan by which non-employee directors,
officers of CINergy or any of its subsidiaries, and employees who are
executive employees, employed in a significant executive supervisory,
administrative, operational or professional capacity, or who have the
potential to contribute to the future success of any participating
employer, may be granted incentive stock options, nonqualified stock
options, stock appreciation rights and/or cash awards granted in
connection with nonqualified stock options to reimburse an optionee for
the income taxes imposed upon the exercise of such an option. Each
outside director will receive an automatic grant of nonqualified stock
option to purchase 12,500 shares of CINergy common stock. This grant
vests at the rate of 20% per year beginning with the first anniversary
of the date of the grant.
The option price must be no less than 100% of the fair market value
of CINergy common stock on the date of the grant. The terms of
incentive stock options may not exceed ten years from the date of
grant. Each grantee will receive an agreement setting out the terms and
conditions of the grant. The Stock Option Plan will be administered by
the compensation committee of the CINergy board, which committee will
consist of outside directors.
Upon the consummation of the proposed merger, the PSI Stock Option
Plan will be merged into the Stock Option Plan.
The ESOP is an employee stock purchase plan in which eligible
employees of CINergy and its subsidiaries may be granted options to
purchase shares of CINergy common stock. All employees of CINergy or
its subsidiaries will be eligible to participate in the ESOP, except
part-time employees, employees who have not been employed by CINergy
or, in the case of the first offering, by Energy or CG&E, for at least
nine months as of the first date of the offering and any full officer
of Energy, CG&E, or any other participating employer.
Each offering under the plan consists of an offering period of 26
months. During the offering period, plan participants may make after-
tax contributions to a savings account under the plan in an aggregate
amount to up to ten percent of the participant's annual base salary
multiplied by 26/12ths. Amounts contributed to the savings account will
earn interest. The employee may terminate participation at any time,
but cannot renew participation prior to a new offering period. At the
end of the offering period, a participant may exercise his/her option
to purchase shares of CINergy common stock at a five percent discount
from the fair market value of the shares on the first day of the
offering period, receive the cash held in his/her savings account, or
receive a combination of both.
Upon consummation of the proposed merger, the PSI Stock Purchase
and Savings Plan will be merged into the ESOP.
The Performance Plan is a long-term incentive compensation plan.
Officers of CINergy or any of its subsidiaries, and employees who are
executive employees, employed in a significant executive supervisory,
administrative, operational or professional capacity, or who have the
potential to contribute to the future success of any participating
employer, may participate in the plan.
Employees who participate in the Performance Plan will be granted
awards payable in a combination of shares of CINergy common stock and
cash. The awards will be payable in two equal annual installments
following the end of a performance period. Awards will be based on a
percentage of a participant's annual base salary and the attainment of
the individual, group, and corporate goals established by each
participating employer's board of directors.
Upon consummation of the proposed transaction, the PSI and Energy
Performance Shares Plans will be merged into the Performance Plan.
The Director's Plan will allow each director of CINergy or any of
its subsidiaries to defer fees for serving as a director and to have
them accrued either in terms of cash or in terms of theoretical units
of shares of CINergy common stock. If deferred in theoretical units of
stock, the stock will be distributed to the director at the time he/she
retires from the appropriate board. Amounts deferred in cash will be
paid at the same time.
Upon the consummation of the proposed merger, the PSI Directors'
Deferred Compensation Plan will be merged into this plan. Directors
currently participating in that plan will make new elections prior to
such time to participate in, and transfer therein deferrals to, the
Directors' Plan.
In addition, CINergy proposes to maintain on substantially the same
terms, the CG&E and PSI 401(k) plans, except that shares of CINergy
common stock will be used instead of CG&E common stock and Energy
common stock. The CG&E plans are known as the savings Incentive Plan
(``CG&E SIP'') and the Deferred Compensation and Investment Plan
(``CG&E DCIP'') and are mirror 401(k) plans with savings features. All
non-exempt full-time employees of CG&E with one year of service are
eligible to participate in the CG&E SIP. All full-time exempt employees
of CG&E DCIP.
Both the CG&E SIP and the CG&E DCIP accept before-tax and after-tax
contributions from employees. Employee contributions are invested
according to employee instructions. CG&E matches $.55 per dollar of
employee contributions, through the first five percent of the
employee's salary. This match is made solely in CG&E common stock.
Shares acquired under the CG&E SIP and the CG&E DCIP are placed at the
average high and low price on the New York Stock Exchange on the
trading day immediately preceding their acquisition.
Energy has 401(k) plans for all of its eligible employees which
allow employees to make both before-tax and after-tax contributions.
Eligible employees can save up to 10% of their before-tax eligible
compensation and up to 10% of their after-tax compensation. The company
matches, in PSI common stock, employees' before-tax contribution in two
components: (1) A base match equal to $.70 for every dollar an eligible
employee contributes, up to the first four percent of compensation; and
(2) a potential incentive match equal to $.10 to $.30 for each dollar
contributed, up to the first four percent of compensation. The amount
of the incentive match depends on the level of corporate goals
achieved.
Shares may be purchased in the open market or may be issued by PSI
and are priced based on the closing price of PSI common stock as set
forth in the New York Stock Exchange Composite Transactions section of
the Wall Street Journal for the date on which the contributions are
invested.
For the Commission, by the Division of Investment Management,
pursuant to delegated authority.
Margaret H. McFarland,
Deputy Secretary.
[FR Doc. 94-14399 Filed 6-13-94; 8:45 am]
BILLING CODE 8010-01-M
