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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
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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)
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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))
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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.
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Name: Edward M. Marsh, Jr.
Title: Assistant Secretary
EXHIBIT INDEX
Exhibit Description
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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.