-----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, Sq4tekxVRFC4Avk7Po0N3mTBR4Y42n7lEj/pHsImgaNWUM/95dVKC355F4RdSUc3 vB5aXFLUolK+NQIDaIgNiA== 0000899652-02-000011.txt : 20020413 0000899652-02-000011.hdr.sgml : 20020413 ACCESSION NUMBER: 0000899652-02-000011 CONFORMED SUBMISSION TYPE: U-1/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20020115 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CINERGY CORP CENTRAL INDEX KEY: 0000899652 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931] IRS NUMBER: 311385023 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: U-1/A SEC ACT: 1935 Act SEC FILE NUMBER: 070-09577 FILM NUMBER: 2509274 BUSINESS ADDRESS: STREET 1: 139 E FOURTH ST CITY: CINCINNATI STATE: OH ZIP: 45202 BUSINESS PHONE: 5132872644 MAIL ADDRESS: STREET 1: 139 E FOURTH STREET STREET 2: P.O BOX 960 CITY: CINCINATI STATE: OH ZIP: 45202 U-1/A 1 amendmenttoformu1.txt File No. 70-9577 SECURITIES AND EXCHANGE COMMISSION 450 FIFTH STREET WASHINGTON, D.C. 20549 ------------------------------------------ AMENDMENT NO. 8 (POST-EFFECTIVE AMENDMENT NO. 6) TO FORM U-1 APPLICATION-DECLARATION UNDER THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935 -------------------------------------------- Cinergy Corp. Cinergy Global Resources, Inc. Cinergy Capital & Trading, Inc. 139 East Fourth Street Cincinnati, Ohio 45202 (Name of companies filing this statement and address of principal executive offices) Cinergy Corp. (Name of top registered holding company) Wendy L. Aumiller Acting Treasurer Cinergy Corp. (address above) (Name and address of agent for service) Please direct communications to: George Dwight II/ Senior Counsel Cinergy Corp. (address above) 513-287-2643 (ph) 513-287-3810 (f) gdwight@cinergy.com William C. Weeden William T. Baker, Jr. Skadden Arps Slate Meagher & Flom Thelen Reid & Priest LLP 1400 New York Avenue, N.W. 40 West 57th Street Washington, D.C. 20005 New York, New York 10019 202-371-7877 (ph) 212-603-2106 (ph) 202-371-7012 (f) 212-603-2001 (f) wweeden@skadden.com wbaker@thelenreid.com --------------------- The post-effective amendment in this docket filed on December 14, 2001 is hereby amended and restated in its entirety (exclusive of the exhibits filed therewith) to read as follows: Item 1. Description of Proposed Transactions A. Background: Original Application; Prior Orders In November 1999, Cinergy Corp. ("Cinergy"), a Delaware corporation and registered holding company under the Public Utility Holding Company Act of 1935 (the "Act"), and certain of its subsidiaries, filed the initial application-declaration in this file (such document, including the amendments thereto filed prior to the Commission's most recent order herein dated May 18, 2001, the "Original Application"), which proposed comprehensive new financing authority for Cinergy, including with respect to investments in "exempt wholesale generators" as defined in Section 32 of the Act ("EWGs") and "foreign utility companies" as defined in Section 33 of the Act ("FUCOs" and together with EWGs, "EWG/FUCO Projects"), intended to supersede authority granted under various prior orders. Specifically, over a five-year period, subject to the terms and conditions specified in the Original Application, Cinergy proposed the following transactions: 1. New Financing Authority. Cinergy requested authority (i) to increase its total capitalization (excluding retained earnings and accumulated other comprehensive income) by $7,000,000,000, through the issuance and/or sale of any combination of debt or equity securities, whether directly or through one or more special-purpose subsidiaries, and (ii) to increase the level of its guarantees outstanding at any time to $2,000,000,000. Under the new financing authority, Cinergy proposed to apply proceeds to, among other purposes, investments in EWG/FUCO Projects, as follows. 2. EWG/FUCO Projects Limit. Cinergy's "aggregate investment" in EWG/FUCO Projects (as defined in Rule 53(a) under the Act) would not exceed the sum of (i) an amount equal to 100% of Cinergy's "consolidated retained earnings" (as defined in Rule 53(a) under the Act) plus (ii) $2,000,000,000, excluding any investments subject to the Restructuring Limit, defined below ("EWG/FUCO Projects Limit"). 3. Restructuring Limit. With respect solely to the transfer of Cinergy's utility subsidiaries' generating assets to one or more EWG affiliates ("Restructuring Subsidiaries"), Cinergy's aggregate investment in Restructuring Subsidiaries would not exceed an amount based on the net book value of the generating assets at the time of transfer ("Restructuring Limit"). The net book value of Cinergy's utility subsidiaries' generating assets at December 31, 1999 was approximately $2.9 billion. By order dated June 23, 2000 in this file (HCAR No. 27190) ("June 2000 Order"), the Commission authorized Cinergy, from time to time through June 23, 2005 ("Five-Year Period"), to use proceeds of securities issued under the authority granted in that order for an aggregate investment in EWG/FUCO Projects equal to Cinergy's aggregate investment at June 23, 2000 plus $1 billion ("June 2000 Investment Limitation"). Cinergy's aggregate investment at June 23, 2000 was $731 million and accordingly the June 2000 Investment Limitation was $1.731 billion. In the June 2000 Order, the Commission reserved jurisdiction over (1) any increase in Cinergy's aggregate investment in an aggregate amount greater than the June 2000 Investment Limitation and (2) any increase in Cinergy's total capitalization (excluding retained earnings and accumulated other comprehensive income) by an aggregate amount greater than the $5 billion authorized in that order. By order dated May 18, 2001 in this file (HCAR No. 27140) ("May 2001 Order" and together with the June 2000 Order, "Prior Orders"), the Commission granted Cinergy increased authority to invest in EWG/FUCO Projects, superseding the June 2000 Investment Limitation. In particular, subject to the terms and conditions specified in the June 2000 Order, the Commission authorized Cinergy over the Five-Year Period to use financing proceeds for additional investments in EWG/FUCO Projects, provided that Cinergy's aggregate investment did not exceed the EWG/FUCO Projects Limit (i.e., a sum equal to 100% of consolidated retained earnings plus $2 billion). Pending completion of the record, the Commission continued to reserve jurisdiction over: (1) any increase in Cinergy's total capitalization (excluding retained earnings and accumulated other comprehensive income) by an aggregate amount greater than $5 billion, and (2) any use of financing proceeds for transactions subject to the Restructuring Limit. B. Request for Further Supplemental Order; Continued Reservation of Jurisdiction Cinergy now requests that the Commission issue a further supplemental order in this proceeding at the earliest practicable date, as set forth below. Cinergy proposes that the Commission continue to reserve jurisdiction over (1) any increase in Cinergy's total capitalization (excluding retained earnings and accumulated other comprehensive income) by an aggregate amount greater than $5,000,000,000 and (2) any increase in Cinergy's aggregate investment from the use of financing proceeds in respect of any potential restructuring transaction involving electric generating facilities of any Cinergy utility subsidiary, other than The Cincinnati Gas & Electric Company. 1. CG&E Restructuring Transaction Regarding the jurisdiction reserved over any use of financing proceeds for transactions subject to the Restructuring Limit, Cinergy requests a partial release thereof in light of the pending transfer ("CG&E Restructuring Transaction") of the entirety of the electric generating facilities of Cinergy's Ohio utility subsidiary, The Cincinnati Gas & Electric Company ("CG&E"), to its affiliate, Cinergy Power Investments, Inc. ("CPI"), a presently inactive Ohio corporation and a "Restructuring Subsidiary" within the meaning of the Prior Orders. Specifically, subject to all applicable terms and conditions specified in the Original Application and the Prior Orders, Cinergy requests that the Commission release jurisdiction over any use by Cinergy of proceeds of financing transactions authorized by the Commission in the Prior Orders, such that, over the Five-Year Period, pursuant to the Restructuring Limit, Cinergy may make an aggregate investment in CPI up to a maximum amount based on the net book value of the CG&E electric generating facilities transferred to CPI. At September 30, 2001, CG&E's electric generating facilities had a net book value of approximately $1,801 million. In late October 2001, CPI applied to the Federal Energy Regulatory Commission ("FERC") for EWG status (see EG02-13-000), including as exhibits thereto copies of orders of the Ohio, Indiana and Kentucky public utility commissions, the state commissions having jurisdiction over the retail rates and charges of Cinergy's utility subsidiaries, making the determinations contemplated by Section 32(c) of the Act. (See the exhibits filed herewith.) At the same time, CPI, CG&E and various other Cinergy subsidiaries filed applications with FERC under Sections 203 and 205 of the Federal Power Act seeking approval of the CG&E Restructuring Transaction and related transactions (see, e.g., EC02-15-000 (203 application)). The FERC certified CPI as an EWG by order dated December 21, 2001 (see Exhibit D-1(b)). Currently, CPI is a direct, wholly-owned subsidiary of CG&E. Upon receipt of FERC authorization and all other necessary approvals and third-party consents (expected no later than by March 2002), CG&E will contribute its electric generating facilities and related plant-specific assets and liabilities to CPI. CG&E will then distribute CPI to Cinergy in exchange for shares of CG&E common stock with an equivalent aggregate value held by Cinergy, and Cinergy will thereupon contribute CPI to an intermediate nonutility holding company, Cinergy Wholesale Energy, Inc.1 As described in the Original Application, the CG&E Restructuring Transaction is being carried out pursuant to Ohio's customer choice and electric industry restructuring statute, which went into effect on January 1, 2001,2 and the order of the Ohio commission dated August 31, 2000 approving CG&E's transition plan settlement. An integral component of that settlement was CG&E's commitment to transfer its electric generating facilities to an EWG affiliate.3 2. Financing Authority Clarification Cinergy also requests clarification of one of the terms of the general financing authority of the Prior Orders. Specifically, the June 2000 Order granted Cinergy authority over the Five-Year Period, subject to the restrictions set forth therein, to issue and sell, among other things, common stock and securities linked to common stock, including "stock purchase contracts" and "stock purchase units." The June 2000 Order did not specifically mention warrants and options as securities linked to common stock. As part of the supplemental order proposed herein, Cinergy requests Commission clarification that, pursuant to the June 2000 Order, subject to the terms and conditions thereof, Cinergy may issue warrants and options to acquire shares of its common stock, as subsumed within securities linked to common stock. Item 2. Fees, Commissions and Expenses Cinergy estimates total fees and expenses in connection with the preparation and filing of this amendment of not more than $15,000, consisting chiefly of outside counsel fees and expenses. Item 3. Applicable Statutory Provisions Sections 6(a), 7, 9(a), 10, 32 and 33 of the Act and Rule 53 are or may be applicable to the proposed transactions. Item 4. Regulatory Approval The FERC, as well as the Ohio, Indiana and Kentucky public utility commissions, have jurisdiction over the proposed transactions in regard to CPI's status as an EWG. The FERC has certified CPI as an EWG, and each of such state commissions has issued orders in respect thereto. Subject to the preceding paragraph, the proposed transactions are not subject to the jurisdiction of any state or federal commission, other than this Commission. Item 5. Procedure Applicants request that the Commission issue an order as soon as practicable granting and permitting this amended Application-Declaration to become effective, which seeks a release of jurisdiction and a clarification. Applicants waive a recommended decision by a hearing officer or other responsible officer of the Commission; consent that the Staff of the Division of Investment Management may assist in the preparation of the Commission's order; and request that there be no waiting period between the issuance of the Commission's order and its effectiveness. Applicants do not believe any requirement for publication of a notice is applicable to the proposed transactions, given that the proposed transactions are limited to a request for release of jurisdiction and a minor clarification in regard to authority previously granted to Cinergy. Item 6. Exhibits D-1(a) EWG Application filed by CPI (FERC Docket No. EG02-13-000) (previously filed) D-1(b) FERC Order dated December 21, 2001 certifying CPI as an EWG D-2 Order of the Indiana Utility Regulatory Commission dated October 3, 2001 in Cause No. 42072 (previously filed) D-3(a) Order of the Kentucky Public Service Commission dated June 1, 2001 in Case No. 2001-058 (previously filed) D-3(b) Order of the Kentucky Public Service Commission dated May 11, 2001 in Case No. 2001-058 (previously filed) D-3 Order of the Public Utilities Commission of Ohio dated August 31, 2000 in Case Nos. 99-1658-EL-ETP et seq.(previously filed) SIGNATURE Pursuant to the requirements of the Public Utility Holding Company Act of 1935, each of the undersigned companies has duly caused this amendment to this application-declaration on Form U-1 to be signed on its behalf by the officer indicated below. Dated: January 15, 2002 CINERGY CORP. By: /s/Wendy L. Aumiller Wendy L. Aumiller Acting Treasurer CINERGY GLOBAL RESOURCES, INC. By: /s/Wendy L. Aumiller Wendy L. Aumiller Acting Treasurer CINERGY CAPITAL & TRADING, INC. By: /s/Wendy L. Aumiller Wendy L. Aumiller Acting Treasurer - -------- 1 To the extent these transactions are not exempt from Commission jurisdiction pursuant to Section 32(c)(B), authority therefor has been granted in HCAR No. 27393 (May 4, 2001) (adjustments to capitalization of wholly-owned subsidiaries of Cinergy, including via share exchange transactions) and HCAR No. 26984 (March 1, 1999)(creation of intermediate nonutility holding companies). 2 See Ohio Rev. Code Ann.ss.ss.4928.01et seq. (1999). 3 The Ohio commission's order is filed as an exhibit to this amended application. EX-99 2 exhibit.txt EXHIBIT D-1(b) 97 F.E.R.C. P61,342; 2001 FERC LEXIS 3032, * Cinergy Power Investments, Inc. Docket No. EG02-13-000 FEDERAL ENERGY REGULATORY COMMISSION - COMMISSION 97 F.E.R.C. P61,342; 2001 FERC LEXIS 3032 DETERMINATION OF EXEMPT WHOLESALE GENERATOR STATUS AND INTERPRETATION OF SECTION 32 OF THE PUBLIC UTILITY HOLDING COMPANY ACT OF 1935, AS AMENDED December 21, 2001 CORE TERMS: electric, protest, motion to intervene, energy, intervene, wholesale, eligible, Commission's Rules of Practice, public interest, affiliate, qualify, owning, plants PANEL: [*1] Before Commissioners: Pat Wood, III, Chairman; William L. Massey, Linda Breathitt, and Nora Mead Brownell OPINION: On October 29, 2001, Cinergy Power Investments, Inc., (CPI or Applicant) filed an application for determination of exempt wholesale generator (EWG) status pursuant to section 32 of the Public Utility Holding Company Act of 1935, as amended by the Energy Policy Act of 1992 (PUHCA). n1 In this order we grant the Applicant's request for EWG status, as we have determined that this Applicant qualifies as an EWG under PUHCA. Our determination serves the public interest by ensuring that applicants who qualify for EWG status under PUHCA will receive such status as Congress intended. - - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 15 U.S.C.ss.79z-5a (2001). ------------------ - - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Notice of the application was published in the Federal Register, n2 with comments or interventions due on or before November 21, 2001. Timely motions to intervene were submitted by the Southwestern Electric Cooperative, Inc. and the Public Service Commission of the Commonwealth [*2] of Kentucky. A timely motion to intervene and protest was filed by the Industrial Energy Users-Ohio (IEU-Ohio). Additionally, on November 28, 2001 the Public Utilities Commission of Ohio filed a motion to intervene out of time which raised no substantive issues. - - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n2 66 Fed. Reg. 56,097 (2001). --------------------------- - - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - On November 30, 2001, Cinergy Services Inc. (Cinergy) filed an answer in response to IEU-Ohio's motion to intervene and protest. Cinergy indicates that nothing contained in IEU-Ohio's protest addresses this EWG application and therefore argues that this application is not protested. A. Procedural Matters Pursuant to Rule 214 of the Commission's Rules of Practice and Procedure, 18 C.F.R. ss. 385.214 (2001), the timely, unopposed motions to intervene serve to make the intervenors parties to this proceeding. Pursuant to Rule 214(d) of the Commission's Rules of Practice and Procedure, 18 C.F.R. ss. 385.214(d) (2001), the Commission will grant the late-filed motion to intervene by the Public Utilities Commission [*3] of Ohio given the early stage of the proceeding, the fact that no disruption of the proceeding or undue prejudice to existing parties will result, and the fact that the party's interests are not adequately represented by other parties in the proceeding. B. CPI's EWG Application Applicant has submitted a sworn statement by a representative legally authorized to bind Applicant stating that: 1. Applicant will be engaged directly, or indirectly through one or more affiliates as defined in section 2(a)(11)(B) of PUHCA, and exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities as defined in section 32(a)(2) of PUHCA and selling electric energy at wholesale; 2. The eligible facilities (Facilities) consist of thirteen generating plants capable of producing between 78 and 913 MW of capacity. The plants are fueled by either oil, coal, or natural gas. The facilities, which are all located in the State of Ohio, will also include interconnecting transmission facilities, which are limited to those facilities which are necessary to effect sales of electric energy at wholesale; 3. No portion of the Facilities will [*4] be owned or operated by an "electric utility company" that is an "associate company" or "affiliate" of CPI as such terms are defined in section 2(a)(11) of PUHCA; 4. CPI is an "associate company" of the following "electric utility companies" (as such terms are defined under PUHCA): PSI Energy, CCG&E, ULH&P, and Miami Power Corporation; and 5. A rate or charge for, or in connection with, the construction of the Facilities, or for electric energy produced thereby, was in effect on October 24, 1992. The relevant state authorities have made the requisite findings under Section 32(c) of PUHCA that allowing each Facility to become an eligible facility benefits consumers, is in the public interest, and does not violate state law. Discussion IEU-Ohio's protest fails to state any grounds on which it opposes CPI's EWG application. This Commission finds little value in the practice of submitting a protest in multiple dockets without regard to the fact of whether a contested issue is actually raised in each of those dockets. Conclusion Based on the information contained in its application, the Commission determines that Applicant is an EWG as defined in section 32(a) (1) of PUHCA. As [*5] required by section 32(a) (1) of PUHCA, the Secretary is directed to notify the Securities and Exchange Commission of this determination. By the Commission. -----END PRIVACY-ENHANCED MESSAGE-----