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 under the Act. 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 amendment(s) is/are available for public inspection through the Commission's Branch 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 April 9, 2001, to the Secretary, Securities and Exchange Commission, Washington, D.C. 20549-0609, 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 the case of an attorney at law, by certificate) should be filed with the request. Any request for hearing should identify specifically the issues of facts 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 April 9, 2001, the application(s) and/or declaration(s), as filed or as amended, may be granted and/or permitted to become effective.
Cinergy Corp. (70-9789)
Notice of Proposal To Amend Certificate of Incorporation To Issue Preferred Stock; Order Authorizing Solicitation of Proxies
Cinergy Corp. (“Cinergy”), 139 East Fourth Street, Cincinnati, Ohio 45202, a registered holding company, has filed a declaration with the Commission, under sections 6(a)(2), 7(e), and 12(e) of the Act and rules 54, 62(d), and 65 under the Act.
By order dated June 23, 2000 (HCAR No. 27190) (“Prior Order”), the Commission authorized Cinergy to engage in various financing transactions over a five-year period commencing with the date of the Prior Order, including the issuance of preferred securities, subject to the terms and conditions of the Prior Order.
Cinergy is currently authorized, under its certificate of incorporation, to issue 600 million shares of common stock. Cinergy requests authorization to amend its certificate of incorporation to permit the company to issue preferred stock in addition to the common stock. Specifically, Cinergy intends to issue up to 10,000,000 shares of preferred stock in one or more series with the terms of each series to be determined by Cinergy's Board of Directors (“Proposed Start Printed Page 16074Amendment”). Under the Delaware General Corporation Law, Cinergy may amend its certificate of incorporation to create new classes of stock upon appropriate action by the Board of Directors and shareholders duly adopting the proposed amendment. Cinergy's Board of Directors unanimously approved the Proposed Amendment. In order for the Proposed Amendment to be adopted, not less than a majority of the outstanding shares of common stock entitled to vote must be voted in favor of the Proposed Amendment.
Cinergy requests authorization for the solicitation of proxies from its shareholders for the purpose of obtaining the required shareholder approval of the Proposed Amendment at the shareholder meeting to be held on May 1, 2001. Cinergy requests authorization for the solicitation of proxies as soon as practicable under rule 62(d). It appears to the Commission that Cinergy's declaration regarding the proposed solicitation of proxies should be permitted to become effective immediately under rule 62(d).
For the purposes of compliance with rule 54, Cinergy states that it does not currently meet the conditions of rule 53(a). As of December 31, 2000, Cinergy's “aggregate investment,” as defined in rule 53(a)(1), in exempt wholesale generators (“EWGs”) and foreign utility companies (“FUCOs”) was approximately $1,371,200,000. This amount is equal to approximately 119% of Cinergy's average “consolidated retained earnings,” also as defined in rule 53(a)(1), for the four quarters ending December 31, 2000, of approximately $1,151,200,000. This amount exceeds the 50% “safe harbor” limitation contained in the rule. However, by order dated March 23, 1998 (HCAR No. 26848) (“1998 Order”), the Commission authorized Cinergy to increase its aggregate investment in EWGs and FUCOs to an amount equal to 100% of Cinergy's average “consolidated retained earnings” (“100% Cap”). By order dated June 23, 2000 (HCAR No. 27190) (“2000 Order”), the Commission granted Cinergy additional authorization to invest in EWGs and FUCOs beyond that granted in the 1998 Order. Specifically, the 2000 Order authorized investment of $1,000,000,000 in addition to Cinergy's aggregate investment as of the date of the 2000 Order (approximately $731,000,000). Therefore, although Cinergy's aggregate investment at December 31, 2000, exceeds the 50% “safe harbor” limitation and the 100% Cap, this investment is below the limitation authorized by the 2000 Order. Cinergy states that none of the adverse conditions of rule 53(b) exist.
As of September 30, 1997, the most recent period for which financial statement information was evaluated in the 1998 Order, Cinergy's consolidated capitalization consisted of 44.1% equity and 55.9% debt. As of December 31, 2000, Cinergy's consolidated capitalization consisted of 41.3% equity and 58.7% debt. Cinergy represents that the proposed transactions will have no impact on its consolidated capitalization; however the ultimate issuance of the preferred stock will increase the equity component of capitalization.
Fees and expenses in connection with the proposed transactions described in the declaration are estimated to be $158,500. Cinergy further states that no state or federal commission, other than this Commission, has jurisdiction over the proposed transactions.
It Is Ordered, under rule 62 under the Act, that the declaration regarding the proposed solicitation of proxies become effective immediately, subject to the terms and conditions contained in rule 24 under the Act.Start Signature
For the Commission, by the Division of Investment Management, pursuant to delegated authority.
Jonathan G. Katz,
1. As of December 31, 2000, Cinergy's senior unsecured debt was rated “investment grade” by all the major rating agencies.Back to Citation
[FR Doc. 01-7107 Filed 3-21-01; 8:45 am]
BILLING CODE 8010-01-M