-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UN/Qxk5geK9gWpF9IIZLUPSqlJBTZzRVjMgZpGumQdTz6YK521rOnOYFxwF+nXpK CVfXbXaXhGM2zv2d2NauhA== 0000950172-05-001543.txt : 20050512 0000950172-05-001543.hdr.sgml : 20050512 20050512150516 ACCESSION NUMBER: 0000950172-05-001543 CONFORMED SUBMISSION TYPE: 425 PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20050512 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: Deer Holding Corp. CENTRAL INDEX KEY: 0001326160 IRS NUMBER: 202777218 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 425 SEC ACT: 1934 Act SEC FILE NUMBER: 132-02302 FILM NUMBER: 05824019 BUSINESS ADDRESS: STREET 1: P.O. BOX 1244 CITY: CHARLOTTE STATE: NC ZIP: 28201 BUSINESS PHONE: 704-382-8114 MAIL ADDRESS: STREET 1: 1209 ORANGE STREET CITY: WILMINGTON STATE: DE ZIP: 19801 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DUKE ENERGY CORP CENTRAL INDEX KEY: 0000030371 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 560205520 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 425 BUSINESS ADDRESS: STREET 1: 526 SOUTH CHURCH STREET CITY: CHARLOTTE STATE: NC ZIP: 28202 BUSINESS PHONE: 7045940887 MAIL ADDRESS: STREET 1: 526 S. CHURCH ST. CITY: CHARLOTTE STATE: NC ZIP: 28202 FORMER COMPANY: FORMER CONFORMED NAME: DUKE POWER CO /NC/ DATE OF NAME CHANGE: 19920703 425 1 dc560082.txt ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 _________________ FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 _________________ Date of Report: May 12, 2005 (Date of earliest event reported: May 8, 2005) DUKE ENERGY CORPORATION (Exact Name of Registrant as Specified in its Charter) North Carolina 1-4928 56-0205520 (State or Other Jurisdiction (Commission (IRS Employer of Incorporation) File Number) Identification No.) 526 South Church Street, Charlotte, North Carolina 28202-1904 (Address of Principal Executive Offices, including Zip code) (704) 594-6200 (Registrant's telephone number, including area code) Not Applicable (Former Name or Former Address, if Changed Since Last Report) ================================================================================ Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions: [X] Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) [X] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) [ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) [ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) ================================================================================ Item 1.01. Entry into a Material Definitive Agreement. The information set forth under "Item 3.03 Material Modification to Rights of Security Holders" is incorporated herein by reference. Item 3.03. Material Modification to Rights of Security Holders. In connection with the previously announced Agreement and Plan of Merger (the "Merger Agreement"), dated as of May 8, 2005, by and among Duke Energy Corporation, a North Carolina corporation ("Duke"), Cinergy Corp., a Delaware corporation ("Cinergy"), Deer Holding Corp., a Delaware corporation ("Holdco"), Deer Acquisition Corp., a North Carolina corporation ("Merger Sub A"), and Cougar Acquisition Corp., a Delaware corporation ("Merger Sub B"), Duke has executed an amendment (the "Amendment"), dated as of May 8, 2005, to the Rights Agreement between Duke and The Bank of New York, as rights agent, dated as of December 17, 1998 (the "Rights Agreement"), in order to make the Rights Agreement inapplicable to the Mergers (as defined in the Merger Agreement). The Amendment provides, among other matters, that (i) none of Holdco, Merger Sub A, Merger Sub B or Cinergy or any of its affiliates or associates will become an Acquiring Person (as defined in the Rights Agreement) as a result of their acquisition of common stock of Duke as a result of their approval, execution, delivery or performance of the Merger Agreement or the consummation of the Mergers or any other transaction contemplated by the Merger Agreement or the taking of any other action in furtherance thereof, (ii) none of a Stock Acquisition Date, a Triggering Event or a Distribution Date (each as defined in the Rights Agreement) shall occur by reason of the approval, execution, delivery or performance of the Merger Agreement, consummation of the Mergers or of any other transaction contemplated by the Merger Agreement or the taking of any other action in furtherance thereof, and (iii) no person shall be an Acquiring Person following the Effective Time (as defined in the Merger Agreement) and none of a Stock Acquisition Date, a Triggering Event or a Distribution Date shall occur after the Effective Time. The foregoing description of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, which is filed as Exhibit 4.1 hereto and is incorporated into this report by reference. * * * Additional Information and Where to Find It In connection with the proposed transaction, a registration statement of Deer Holding Corp., which will include a joint proxy statement of Duke and Cinergy, and other materials will be filed with the SEC. WE URGE INVESTORS TO READ THE REGISTRATION STATEMENT AND PROXY STATEMENT AND THESE OTHER MATERIALS CAREFULLY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT DUKE, CINERGY, DEER HOLDING CORP., AND THE PROPOSED TRANSACTION. Investors will be able to obtain free copies of the registration statement and proxy statement (when available) as well as other filed documents containing information about Duke and Cinergy at http://www.sec.gov, the SEC's website. Free copies of Duke's SEC filings are also available on Duke's website at www.duke-energy.com/investors, and free copies of Cinergy's SEC filings are also available on Cinergy's website at www.cinergy.com/investors. Participants in the Solicitation Duke, Cinergy and their respective executive officers and directors may be deemed, under SEC rules, to be participants in the solicitation of proxies from Duke's or Cinergy's stockholders with respect to the proposed transaction. Information regarding the officers and directors of Duke is included in its definitive proxy statement for its 2005 Annual Meeting filed with the SEC on March 31, 2005. Information regarding the officers and directors of Cinergy is included in its definitive proxy statement for its 2005 Annual Meeting filed with the SEC on March 28, 2005. More detailed information regarding the identity of potential participants, and their direct or indirect interests, by securities, holdings or otherwise, will be set forth in the registration statement and proxy statement and other materials to be filed with the SEC in connection with the proposed transaction. Item 9.01. Financial Statements and Exhibits. (c) Exhibits. 4.1 Amendment No. 1, dated as of May 8, 2005, to the Rights Agreement, dated as of December 17, 1998, between Duke and The Bank of New York, as rights agent. SIGNATURE Pursuant to the requirements of the Securities and Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. DUKE ENERGY CORPORATION Date: May 12, 2005 By: /s/ Edward M. Marsh, Jr. ------------------------- Name: Edward M. Marsh, Jr. Title: Assistant Secretary EXHIBIT INDEX Exhibit Description - ------- ----------- 4.1 Amendment No. 1, dated as of May 8, 2005, to the Rights Agreement, dated as of December 17, 1998, between Duke and The Bank of New York, as rights agent. EX-4 2 was615903.txt EXHIBIT 4.1 - AMEND. NO. 1 TO RIGHTS AGMT. EXHIBIT 4.1 AMENDMENT NO. 1 TO THE RIGHTS AGREEMENT AMENDMENT NO. 1 (this "Amendment"), dated as of May 8, 2005, to the Rights Agreement (the "Agreement"), dated as of December 17, 1998, between Duke Energy Corporation, a North Carolina corporation (the "Company"), and the Bank of New York, a New York banking corporation, as Rights Agent (the "Rights Agent"). WHEREAS, the Company and the Rights Agent have previously entered into the Agreement; and WHEREAS, Section 27 of the Agreement provides that the board of directors of the Company (the "Board") may, prior to the Distribution Date (as defined in the Agreement) supplement or amend any provision of the Agreement without the approval of any holders of Rights Certificates; and WHEREAS, the Company, Deer Holding Corp., a Delaware corporation, ("Acquiror"), [Cougar] Corp., a Delaware corporation ("[Cougar]"), Deer Acquisition Corp., a North Carolina corporation and wholly-owned subsidiary of Acquiror ("Merger Sub A"), and Cougar Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Acquiror ("Merger Sub B"), have entered into an Agreement and Plan of Merger, dated as of May 8, 2005, as amended or supplemented from time to time (the "Merger Agreement"), pursuant to which Merger Sub A will merge with and into the Company with the Company as the surviving corporation and pursuant to which the Company will become a wholly-owned subsidiary of Acquiror; and WHEREAS, the Board of directors of the Company (the "Board") has determined that it is in the best interests of the Company and its stockholders and consistent with the objectives of the Board in adopting the Agreement to amend the Agreement to except the Merger Agreement and the transactions contemplated thereby from the Agreement; and WHEREAS, the Company shall deliver to the Rights Agent a certificate, dated as of the date hereof, of an appropriate officer of the Company certifying that this Amendment is in compliance with the terms of Section 27 of the Agreement. NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which the parties hereby acknowledge, the parties agree as follows: ARTICLE 1 AMENDMENT Section 1.1. Section 1(a) of the Agreement shall be amended by inserting the following provisions at the end of Section 1(a): "Notwithstanding the foregoing or any provision to the contrary in this Agreement, none of Deer Holding Corp., a Delaware corporation, ("Acquiror") or Deer Acquisition Corp., a North Carolina corporation and wholly-owned subsidiary of Acquiror ("Merger Sub A"), or [Cougar], a Delaware corporation ("[Cougar]"), nor any of its affiliates or associates, or Cougar Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of Acquiror ("Merger Sub B") is, nor shall any of them be deemed to be, an Acquiring Person by virtue of (i) their acquisition, or their right to acquire, beneficial ownership of Common Stock of the Company as a result of their approval, execution, delivery or performance of the Agreement and Plan of Merger (the "Merger Agreement"), dated as of May 8, 2005 by and among Acquiror, [Cougar], Merger Sub A, and Merger Sub B, (ii) the consummation of the Mergers (as defined in the Merger Agreement) or the taking of any action in furtherance thereof, or (iii) the consummation of any other transaction contemplated by the Merger Agreement or the taking of any action in furtherance thereof, it being the purpose of the Company in adopting this amendment to the Agreement that neither the execution of the Merger Agreement by any of the parties nor the consummation of the transactions contemplated thereby shall in any respect give rise to any provision of the Agreement becoming effective. In addition to the immediately preceding sentence and notwithstanding any provision to the contrary in this Agreement, as of the Effective Time (as defined in the Merger Agreement) and thereafter, no Person shall be deemed an Acquiring Person by virtue of their acquisition, or their right to acquire, beneficial ownership of Common Stock of the Company." Section 1.2. Section 1(k) of the Agreement shall be amended by inserting the following at the end of Section 1(k): "Notwithstanding the foregoing or any provision to the contrary in this Agreement, a Stock Acquisition Date shall not occur by reason of the approval, execution, delivery or performance of the Merger Agreement, the consummation of the Mergers or of any other transaction contemplated by the Merger Agreement or the taking of any action in furtherance thereof. In addition to the immediately preceding sentence and notwithstanding any provision to the contrary in this Agreement, as of the Effective Time (as defined in the Merger Agreement) and thereafter, a Stock Acquisition Date shall not occur by reason of any Person's acquisition, or their right to acquire, beneficial ownership of Common Stock or other equity interests of the Company." Section 1.3. Section 1(n) of the Agreement shall be amended by inserting the following at the end of Section 1(n): "Notwithstanding the foregoing or any provision to the contrary in this Agreement, a Triggering Event shall not occur by reason of the approval, execution, delivery or performance of the Merger Agreement, the consummation of the Mergers or of any other transaction contemplated by the Merger Agreement or the taking of any actions in furtherance thereof. In addition to the immediately preceding sentence and notwithstanding any provision to the contrary in this Agreement, as of the Effective Time (as defined in the Merger Agreement) and thereafter, a Triggering Event shall not occur by reason of any Person's acquisition, or their right to acquire, beneficial ownership of Common Stock or other equity interests of the Company." Section 1.4. Section 3(a) of the Agreement shall be amended by inserting the following at the end of Section 3(a): "Notwithstanding the foregoing or any provision to the contrary in this Agreement, a Distribution Date shall not occur by reason of the approval, execution, delivery or performance of the Merger Agreement, the consummation of the Mergers or of any other transaction contemplated by the Merger Agreement or the taking of any action in furtherance thereof. In addition to the immediately preceding sentence and notwithstanding any provision to the contrary in this Agreement, as of the Effective Time (as defined in the Merger Agreement) and thereafter, a Distribution Date shall not occur by reason of any Person's acquisition, or their right to acquire, beneficial ownership of Common Stock or other equity interests of the Company." ARTICLE II MISCELLANEOUS Section 2.1. Termination of Merger Agreement. If for any reason the Merger Agreement is terminated and the Merger is abandoned, then this Amendment shall thereafter be of no further force and effect and the Agreement shall remain exactly the same as it existed immediately prior to execution of this Amendment. Section 2.2. Definitions. Terms not otherwise defined in this Amendment shall have the meaning ascribed to such terms as in the Agreement. The term "Agreement" as used in the Agreement shall be deemed to refer to the Agreement as amended hereby, and all references to the Agreement shall be deemed to include this Amendment. Section 2.3. Governing Law. This Amendment shall be deemed to be a contract made under the laws of the State of North Carolina and for all purposes shall be governed by and construed in accordance with the laws of such State applicable to contracts made and to be performed entirely within such State; provided, however, that the rights and obligations of the Rights Agent shall be governed by and construed in accordance with the laws of the State of New York. Section 2.4. Counterparts. This Amendment may be executed in any number of counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument. Section 2.5. Effectiveness. This Amendment shall be effective as of the date first written above, and except as expressly set forth herein, the Agreement shall remain in full force and effect and otherwise shall be unaffected hereby. Section 2.6. Severability. If any term or other provision of this Amendment is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Amendment shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Amendment so as to effect the original intent of the parties as closely as possible to the fullest extent permitted by applicable law in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the extent possible. Section 2.7. Identity of Cougar. As used herein, ["Cougar"] shall refer to a legal entity, the identity of which will be provided in a supplemental letter from the Company to the Rights Agent within one business day of the execution of this Amendment. [SIGNATURE PAGE FOLLOWS] IN WITNESS WHEREOF, a duly authorized representative of each party has executed this Amendment, as of the date first written above. DUKE ENERGY CORPORATION By: /s/ Edward M. Marsh, Jr. ------------------------------------- Name: Edward M. Marsh, Jr. Title: Deputy General Counsel and Assistant Secretary THE BANK OF NEW YORK, As Rights Agent By: /s/ John I. Sivertsen ------------------------------------- Name: John I. Sivertsen Title: Vice President May 9, 2005 The Bank of New York 101 Barclay Street 12 West New York, New York 10286 ATTN: Stock Transfer Administration RE: Amendment No. 1 to the Rights Agreement of Duke Energy Corporation ------------------------------------------ To Whom It May Concern: Pursuant to Section 2.7 of Amendment Number One to the Rights Agreement, dated as of December 17, 1998 (the "Amendment"), the identity of the party "[Cougar]" identified in the Amendment is Cinergy Corp. This supplemental letter, executed as of the date hereof, shall serve as the sole document satisfying the requirements of Section 2.7 of the Amendment. Sincerely, By: /s/ Edward M. Marsh, Jr. ------------------------------ Name: Edward M. Marsh, Jr. Title: Deputy General Counsel and Assistant Secretary -----END PRIVACY-ENHANCED MESSAGE-----