As filed with the Securities and Exchange Commission on March 8, 2002
Registration No. 333-81940
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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DUKE ENERGY CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
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NORTH CAROLINA 56-0205520
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
DAVID L. HAUSER
SENIOR VICE PRESIDENT
526 SOUTH CHURCH STREET AND TREASURER
CHARLOTTE, NORTH CAROLINA 28202 526 SOUTH CHURCH STREET
(704) 594-6200 CHARLOTTE, NORTH CAROLINA 28202
(Address, including zip code, and (704) 594-6200
telephone number, including area code, (Name, address, including zip code,
of registrant's principal and telephone number,including area
executive offices) code, of agent for service)
Copies to:
MARTHA B. WYRSCH JEFFERY B. FLOYD
DUKE ENERGY CORPORATION VINSON & ELKINS L.L.P.
370 17TH STREET, SUITE 900 1001 FANNIN, SUITE 2300
DENVER, COLORADO 80202 HOUSTON, TEXAS 77002-6760
(303) 595-3331 (713) 758-2222
Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement as
determined by market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. |_|
If any of the securities being registered on this form are being
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box. |X|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. |_|
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE PRICE PER OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED SHARE (2) PRICE (2) FEE (2)(3)
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Common Stock (1) .................. 36,000,000 shares $35.91 $1,292,760,000 $118,934
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(1) Includes Duke Energy Corporation Preference Stock Purchase Rights. Prior to
the occurrence of certain events, purchase rights for Duke Energy
Corporation Series A Participating Preference Stock will not be evidenced
separately from the Duke Energy Corporation Common Stock.
(2) Pursuant to Rule 457(f), the registration fee was computed on the basis of
the market value of the 36,000,000 shares of Duke Energy Common Stock
assumed to be issued by the registrant in connection with the exchange or
redemption of the exchangeable shares, computed in accordance with Rule
457(c) on the basis of the average ($35.91) of the high and low price of
the shares of Duke Energy Common Stock reported on the New York Stock
Exchange on March 1, 2002.
(3) The registrant previously paid a registration fee of $103,285 upon the
initial filing of this registration statement on February 1, 2002.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED MARCH 8, 2002
PROSPECTUS
36,000,000 SHARES
DUKE ENERGY CORPORATION
COMMON STOCK
This prospectus relates to the shares of our common stock issuable upon
exchange or redemption of the exchangeable shares of 3946509 Canada Inc., our
indirect subsidiary that we call Exchangeco in this prospectus. The exchangeable
shares are being issued to the former shareholders of Westcoast Energy Inc. who
are residents of Canada and who elect to receive the exchangeable shares in
connection with our acquisition of Westcoast Energy. Each exchangeable share may
be exchanged for one share of our common stock, plus all payable and unpaid
dividends, if any, on the exchangeable share. Because the shares of our common
stock offered by this prospectus will be issued only in exchange for, or upon
the redemption of, the exchangeable shares, we will not receive any cash
proceeds from this offering. We are paying all expenses of registration incurred
in connection with this offering.
Our common stock is listed on the New York Stock Exchange, or NYSE,
under the trading symbol "DUK." On March 7, 2002, the last reported sale price
of our common stock on the NYSE was $36.95 per share.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy and accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
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The date of this prospectus is ___________, 2002
TABLE OF CONTENTS
PAGE
About This Prospectus.........................................................1
Where You Can Find More Information...........................................1
Duke Energy Corporation.......................................................3
Use of Proceeds...............................................................4
Description of the Common Stock...............................................4
Plan of Distribution..........................................................7
Income Tax Considerations.....................................................7
Experts......................................................................13
Legal Matters................................................................13
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ABOUT THIS PROSPECTUS
This prospectus constitutes part of the registration statement on Form
S-3 filed with the Securities and Exchange Commission under the Securities Act
of 1933 utilizing a "shelf" registration or continuous offering process. It
omits some of the information contained in the registration statement, and
reference is made to the registration statement for further information with
respect to us and the securities we are offering. Any statement contained in
this prospectus concerning the provisions of any document filed as an exhibit to
the registration statement or otherwise filed with the Securities and Exchange
Commission is not necessarily complete, and in each instance reference is made
to the copy of the document filed.
You should rely only on the information contained or incorporated by
reference in this prospectus. We have not authorized any other person to provide
you with different information. If anyone provides you with different or
inconsistent information, you should not rely on it. We will not issue these
securities in any jurisdiction where such issuance is not permitted. You should
assume that the information in this prospectus is accurate only as of the date
on the cover page or earlier dates as specified herein. Our business, financial
condition, results of operations and prospects may have changed since those
dates.
This prospectus provides you with a general description of the common
stock that will be issued pursuant to this prospectus. The registration
statement filed with the Securities and Exchange Commission includes exhibits
that provide more details about the matters discussed in this prospectus. You
should read this prospectus and the related exhibits filed with the Securities
and Exchange Commission, together with the additional information described
under "Where You Can Find More Information."
Unless we have indicated otherwise, or the context otherwise requires,
references to "Duke Energy," "we," "us" and "our" or similar terms are to Duke
Energy Corporation and its subsidiaries.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports and other information
with the Securities and Exchange Commission (File No. 1-4928). You may read and
copy any documents that are filed at the Securities and Exchange Commission
Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 20549.
You may also obtain copies of these documents at prescribed rates from
the Public Reference Section of the Securities and Exchange Commission at its
Washington address.
Please call the Securities and Exchange Commission at 1-800-SEC-0330
for further information.
Our filings are also available to the public through:
o the Securities and Exchange Commission web site at
http://www.sec.gov; and
o The New York Stock Exchange
20 Broad Street
New York, New York 10005.
Information about us is also available on our web site at
http://www.duke-energy.com. Such web site is not a part of this prospectus.
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The Securities and Exchange Commission allows us to "incorporate by
reference" the information we file with it, which means that we can disclose
important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus
and should be read with the same care. Information that we file later with the
Securities and Exchange Commission will automatically update and supersede that
information. The following documents are incorporated in and made a part of this
prospectus by reference:
o Our annual report on Form 10-K for the year ended December 31, 2000;
o Our quarterly reports on Form 10-Q for the quarters ended March 31,
2001, June 30, 2001 and September 30, 2001; and
o Our current reports on Form 8-K dated March 5, 2001, March 13, 2001,
September 21, 2001 (excluding the information furnished in Item 9
thereof, which is not deemed filed and which is not incorporated by
reference herein), November 20, 2001 and January 9, 2002.
We will provide without charge a copy of these filings, other than any
exhibits unless the exhibits are specifically incorporated by reference into
this prospectus. You may request your copy by writing us at the following
address or telephoning one of the following numbers:
Investor Relations Department
Duke Energy Corporation
P.O. Box 1005
Charlotte, North Carolina 28201
(704) 382-3853 or (800) 488-3853 (toll-free)
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DUKE ENERGY CORPORATION
Duke Energy, together with its subsidiaries, is an integrated energy
and energy services provider with the ability to offer physical delivery and
management of both electricity and natural gas throughout the United States and
abroad. Duke Energy, directly or through its subsidiaries, provides these and
other services through seven business segments:
o Franchised Electric
o Natural Gas Transmission
o Field Services
o North American Wholesale Energy
o International Energy
o Other Energy Services
o Duke Ventures
Franchised Electric generates, transmits, distributes and sells
electric energy in central and western North Carolina and the western portion of
South Carolina. Its operations are conducted primarily through Duke Power and
Nantahala Power and Light. These electric operations are subject to the rules
and regulations of the United States Federal Energy Regulatory Commission
("FERC"), the North Carolina Utilities Commission and the Public Service
Commission of South Carolina.
Natural Gas Transmission provides interstate transportation and storage
of natural gas for customers primarily in the Mid-Atlantic, New England and
southeastern United States. Its operations are conducted primarily through Duke
Energy Gas Transmission Corporation. The interstate natural gas transmission and
storage operations are subject to the rules and regulations of the FERC.
Field Services gathers, processes, transports, markets and stores
natural gas and produces, transports, markets and stores natural gas liquids.
Its operations are conducted primarily through Duke Energy Field Services, LLC,
a limited liability company that is approximately 30% owned by Phillips
Petroleum Company. Field Services operates gathering systems in western Canada
and eleven contiguous states that serve major natural gas-producing regions in
the Rocky Mountains, Permian Basin, Mid-Continent, East Texas-Austin Chalk-North
Louisiana areas and onshore and offshore Gulf Coast areas.
North American Wholesale Energy's activities include asset development,
operation and management of electric power generation facilities, primarily
through Duke Energy North America, LLC, and commodity sales and services related
to natural gas and electricity, primarily through Duke Energy Trading and
Marketing, LLC, a limited liability company that is approximately 40% owned by
Exxon Mobil Corporation. This segment also includes Duke Energy Merchants, which
develops new business lines in the evolving energy commodity markets. North
American Wholesale Energy conducts its business throughout the United States and
Canada.
International Energy conducts its operations through Duke Energy
International, LLC. International Energy's activities include asset development,
operation and management of natural gas and electric power generation facilities
and energy trading and marketing of natural gas and electricity. These
activities are focused on the Latin American, Asia Pacific and European regions.
Other Energy Services is a combination of businesses that provide
engineering, consulting, construction and integrated energy solutions worldwide,
primarily through Duke Engineering & Services, Inc., Duke/Fluor Daniel and
DukeSolutions, Inc. Duke/Fluor Daniel is a 50/50 partnership between Duke Energy
and Fluor Enterprises, Inc.
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Duke Ventures is comprised of our other diverse businesses, primarily
operating through Crescent Resources, Inc., DukeNet Communications, LLC and Duke
Capital Partners. Crescent Resources develops high quality commercial,
residential and multi-family real estate projects and manages land holdings
primarily in the southeastern United States. DukeNet Communications provides
fiber optic networks for industrial, commercial and residential customers. Duke
Capital Partners, a wholly owned merchant finance company, provides financing,
investment banking and asset management services to wholesale and commercial
energy markets.
The foregoing information about us and our business segments is only a
general summary and is not intended to be comprehensive. For additional
information about us and our business segments you should refer to the
information described under the caption "Where You Can Find More Information."
Our principal executive offices are located at 526 South Church Street,
Charlotte, North Carolina 28202 (telephone (704) 594-6200).
USE OF PROCEEDS
Because the shares of common stock will be issued in exchange for or
upon the redemption of the exchangeable shares, we will not receive any cash
proceeds upon the issuance of the common stock.
DESCRIPTION OF THE COMMON STOCK
The following description of the common stock is only a summary and is
not intended to be comprehensive. For additional information you should refer to
the applicable provisions of the North Carolina Business Corporation Act and our
Restated Articles of Incorporation ("Articles") and By-Laws. The Articles and
By-Laws are exhibits to the registration statement, of which this prospectus is
a part.
GENERAL
We are authorized to issue up to 2,000,000,000 shares of common stock.
At February 28, 2002, 778,199,474 shares of common stock were outstanding. We
are also authorized to issue up to 12,500,000 shares of Preferred Stock,
10,000,000 shares of Preferred Stock A and 1,500,000 shares of Preference Stock.
At February 28, 2002, 2,154,984 shares of Preferred Stock, 1,257,185 shares of
Preferred Stock A and no shares of Preference Stock were outstanding. The
Preferred Stock, Preferred Stock A and Preference Stock together are sometimes
called the "Preferred Stocks."
DIVIDENDS
Holders of common stock are entitled to such dividends as may be
declared from time to time by the Board of Directors from legally available
funds but only if full dividends on all outstanding series of the Preferred
Stocks for the then current and all prior dividend periods and any required
sinking fund payments with respect to any outstanding series of such securities
have been paid or provided for.
VOTING RIGHTS
Subject to the rights, if any, of the holders of the Preferred Stocks
which may be outstanding or as otherwise provided by law, the holders of common
stock have exclusive voting rights, each share being entitled to one vote.
Holders of common stock have noncumulative voting rights, which means that the
holders of more than 50% of the shares voting for the election of directors can
elect 100% of the directors and the holders of the remaining shares voting for
the election of directors will not be able to elect any directors.
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Whenever dividends on any part of any outstanding Preferred Stock or
Preferred Stock A are in arrears in an amount equivalent to the total dividends
required to be paid on that Preferred Stock or Preferred Stock A in any period
of 12 calendar months, the holders of the Preferred Stock as a class have the
exclusive right to elect a majority of the authorized number of directors and
the holders of the Preferred Stock A as a class have the exclusive right to
elect two directors. Those rights cease whenever we pay all accrued and unpaid
dividends in full. Whenever six quarterly dividends on any outstanding series of
the Preference Stock are in arrears or any required sinking fund payments are in
default, the holders of the Preference Stock as a class have the exclusive right
to elect two directors. This right ceases whenever all dividends and required
sinking fund obligations in default have been paid in full or provided for. In
addition, the consent of the holders of specified percentages of any outstanding
Preferred Stock, Preferred Stock A or Preference Stock, or some or all of the
holders of such classes, is required in connection with certain increases in
authorized amounts of or changes in stock senior to the common stock or in
connection with any sale of substantially all of our assets or certain mergers.
RIGHTS UPON LIQUIDATION
The holders of common stock are entitled in liquidation to share
ratably in our assets after payment of all debts and liabilities and after
required preferential payments to the holders of outstanding Preferred Stocks.
MISCELLANEOUS
The outstanding shares of common stock are, and the shares of common
stock issued hereunder will be, upon payment for them, fully paid and
nonassessable. Holders of common stock have no preemptive rights and no
conversion rights. The common stock is not subject to redemption and is not
entitled to the benefit of any sinking fund provisions.
TRANSFER AGENT AND REGISTRAR
We act as transfer agent and registrar for the common stock.
PREFERENCE STOCK PURCHASE RIGHTS
Each share of common stock has attached to it a Preference Stock
Purchase Right. The Preference Stock Purchase Rights initially are represented
only by the certificates for the shares of common stock and will not trade
separately from those shares unless and until:
o ten days after it is publicly announced that a person or group (with
certain exceptions) has acquired, or has obtained the right to
acquire, the beneficial ownership of 15% or more of the outstanding
common stock (an "acquiring person"); or
o ten business days (or a later date determined by our Board of
Directors) after the date a person or group commences, or public
announcement is made that the person or group intends to commence, a
tender or exchange offer that would result in the person or group
becoming an acquiring person.
If and when the Preference Stock Purchase Rights separate, each Preference Stock
Purchase Right will entitle the holder to purchase 1/10,000 of a share of our
Series A Participating Preference Stock for an exercise price that is presently
$190.
In the event that a person or group becomes an acquiring person, each
Preference Stock Purchase Right (except for Preference Stock Purchase Rights
beneficially owned by the acquiring person or its
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transferees, which Preference Stock Purchase Rights become void) will entitle
its holder to purchase, for the exercise price, a number of shares of common
stock having a market value of twice the exercise price. Also, if, after ten
days following the date of the announcement that a person or group has become an
acquiring person:
o we are involved in a merger or similar form of business combination
in which we are not the surviving corporation or in which we are the
surviving corporation but the common stock is changed or exchanged;
or
o more than 50% of our assets or earning power is sold or transferred;
then each Preference Stock Purchase Right (except for voided Preference Stock
Purchase Rights) will entitle its holder to purchase, for the exercise price, a
number of shares of common stock of the acquiring company having a value of
twice the exercise price. If any person or group acquires from 15% to but
excluding 50% of the outstanding common stock, our Board of Directors may, at
its option, exchange each outstanding Preference Stock Purchase Right (except
for those held by an acquiring person or its transferees) for one share of
common stock or 1/10,000 of a share of Series A Participating Preference Stock.
Our Board of Directors may redeem the Preference Stock Purchase Rights
for $0.01 per Preference Stock Purchase Right prior to ten business days after
the date of the public announcement that a person or group has become an
acquiring person.
The Preference Stock Purchase Rights will not prevent a takeover of us.
However, the existence of the Preference Stock Purchase Rights may cause
substantial dilution to a person or group that acquires 15% or more of the
common stock unless the Board of Directors first redeems those Preference Stock
Purchase Rights.
CERTAIN ANTI-TAKEOVER MATTERS
Our Articles and By-Laws include a number of provisions that may have
the effect of encouraging persons considering unsolicited tender offers or other
unilateral takeover proposals to negotiate with the Board of Directors rather
than pursue non-negotiated takeover attempts. Those provisions include:
Classified Board of Directors; Removal of Directors; Vacancies
Our Articles provide for a Board of Directors divided into three
classes, with one class being elected each year to serve for a three-year term.
As a result, at least two annual meetings of shareholders may be required for
shareholders to change a majority of the Board of Directors. Our shareholders
may remove directors only for cause. Vacancies and newly created directorships
on the Board of Directors may be filled only by the affirmative vote of a
majority of the directors remaining in office, and no decrease in the number of
directors may shorten the term of an incumbent director. The classification of
directors and the inability of shareholders to remove directors without cause or
to fill vacancies and newly created directorships on the Board of Directors will
make it more difficult to change the composition of the Board of Directors, but
will promote continuity of existing management.
Advance Notice Requirements
Our By-Laws establish advance notice procedures with regard to
shareholder proposals relating to the nomination of persons for election as
directors or new business to be brought before annual meetings of shareholders.
These procedures provide that shareholders must give timely notice of such
proposals in
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writing to the Secretary of Duke Energy. Generally, to be timely with respect to
an annual meeting of shareholders, notice must be received at our principal
executive offices not less than 90 days nor more than 120 days prior to the
first anniversary date of the annual meeting for the preceding year. The notice
must contain certain information specified in the By-Laws.
Special Meetings of Shareholders
Neither our Articles nor our By-Laws give shareholders the right to
call a special meeting of shareholders. The By-Laws provide that special
meetings of shareholders may be called only by the Board of Directors or the
Chairman of the Board.
Amendment of Certain Charter Provisions
Our Articles require the approval of not less than 80% of the voting
power of all outstanding shares of Duke Energy capital stock entitled to vote
generally in the election of directors, voting together as a single class, to
amend provisions relating to the minimum and maximum size of the Board of
Directors, the classification of the Board of Directors, the removal of
directors, the filling of vacancies and newly created directorships on the Board
of Directors and the requirement that a decrease in the number of directors
constituting the Board of Directors may not shorten the term of any incumbent
director. This amendment provision will make it more difficult to dilute the
anti-takeover effects of our Articles and By-Laws.
PLAN OF DISTRIBUTION
We will distribute the shares of common stock covered by this
prospectus only upon exchange or redemption of the exchangeable shares of
Exchangeco, and no broker, dealer or underwriter has been engaged in connection
with the exchange or redemption. Each exchangeable share of Exchangeco may be
exchanged or redeemed for one share of common stock. We will pay all expenses
incurred in connection with the distribution described in this prospectus.
INCOME TAX CONSIDERATIONS
CANADIAN FEDERAL INCOME TAX CONSIDERATIONS
In the opinion of Stikeman Elliott, our Canadian counsel, the following
is an accurate summary of the principal Canadian federal income tax
considerations under the Canadian Income Tax Act generally applicable to you if
you hold exchangeable shares or acquire common stock on the redemption,
retraction or exchange of exchangeable shares and if, for purposes of the
Canadian Income Tax Act, you are or are deemed to be resident in Canada at all
relevant times, you deal with us at arm's length, you are not affiliated with us
and you hold your exchangeable shares and will hold the common stock as capital
property. This discussion does not apply to you if you are a "financial
institution," as defined in the Canadian Income Tax Act, and are therefore
subject to the mark-to-market rules of the Canadian Income Tax Act. This summary
also does not apply to you if Duke Energy is or will be a "foreign affiliate" of
you for purposes of the Canadian Income Tax Act.
The exchangeable shares and common stock will generally be considered
to be capital property to you unless the shares are held by you in the course of
carrying on a business or the shares are acquired in a transaction considered to
be an adventure in the nature of trade. If the exchangeable shares might not
otherwise qualify as capital property, you may be entitled to obtain this
qualification by making the irrevocable election provided under subsection 39(4)
of the Canadian Income Tax Act. If you do not hold your exchangeable shares or
will not hold common stock as capital property, you should consult your own tax
advisors for information and advice having regard to your particular
circumstances.
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This summary is based on the current provisions of the Canadian Income
Tax Act and regulations, the current provisions of the Convention Between the
United States of America and Canada with Respect to Taxes on Income and on
Capital, signed September 26, 1980, as amended and our Canadian counsel's
understanding of the current published administrative practices of the Canada
Customs and Revenue Agency (the "CCRA"). This summary takes into account all
specific proposals to amend the Canadian Income Tax Act and regulations that
have been publicly announced by or on behalf of the Minister of Finance (Canada)
prior to the date hereof and assumes that all of these proposed amendments will
be enacted in their present form. No assurances can be given that any proposed
amendments will be enacted in the form proposed, or at all. This summary is not
exhaustive of all possible Canadian federal income tax considerations and,
except for the foregoing, does not take into account or anticipate any changes
in law, whether by legislative, administrative or judicial decision or action,
nor does it take into account provincial, territorial or foreign income tax
legislation or considerations, which may differ from the Canadian federal income
tax considerations described below. No advance income tax ruling has been sought
or obtained from the CCRA to confirm the tax consequences of any of the
transactions relating to the exchangeable shares or the acquisition of the
common stock on the redemption, retraction or exchange of exchangeable shares.
For purposes of the Canadian Income Tax Act, all amounts relating to
the acquisition, holding or disposition of common stock, including dividends,
adjusted cost base amounts and proceeds of disposition, must be converted into
Canadian dollars based on the prevailing United States dollar exchange rate
generally at the time these amounts arise.
THIS SUMMARY IS OF A GENERAL NATURE ONLY AND IS NOT INTENDED TO BE, AND
SHOULD NOT BE CONSTRUED TO BE, LEGAL, BUSINESS OR TAX ADVICE TO YOU. THEREFORE,
YOU SHOULD CONSULT YOUR OWN TAX ADVISORS WITH RESPECT TO YOUR PARTICULAR
CIRCUMSTANCES.
Redemption or Exchange of Exchangeable Shares
On a redemption (including a retraction) of your exchangeable shares by
Exchangeco, you will be deemed to have received a dividend equal to the amount,
if any, by which the redemption proceeds exceed the paid-up capital (for
purposes of the Canadian Income Tax Act) of the exchangeable shares so redeemed.
For these purposes, the redemption proceeds will be the fair market value of the
common stock received from Exchangeco on the redemption plus the amount, if any,
of all payable and unpaid dividends on the exchangeable shares paid on the
redemption. The amount of any such deemed dividend will be subject to the tax
treatment described below under "Dividends on Exchangeable Shares."
On a redemption (including a retraction) of your exchangeable shares,
you will also be considered to have disposed of your exchangeable shares, but
the amount of the deemed dividend will be excluded in computing your proceeds of
disposition for purposes of computing any capital gain or capital loss arising
on the disposition. If you are a corporation, in some circumstances the amount
of any such deemed dividend may be treated as proceeds of disposition and not as
a dividend. The taxation of capital gains and capital losses is described below.
On an exchange of your exchangeable shares with our indirect
wholly-owned subsidiary, 3058368 Nova Scotia Company (hereinafter referred to as
"Callco"), or with us for the common stock, you will generally realize a capital
gain (or a capital loss) equal to the amount by which the proceeds of
disposition of your exchangeable shares, net of any reasonable costs of
disposition, exceed (or are less than) the adjusted cost base to you of the
exchangeable shares immediately before the exchange. For these purposes, the
proceeds of disposition will be the fair market value at the time of the
exchange of the common stock which you receive plus any other amounts received
from us as part of the exchange, but less any amount paid in satisfaction of
declared and unpaid dividends owed to you by Exchangeco. The taxation of capital
gains and capital losses is described below.
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On October 18, 2000, the Minister of Finance announced that the
Department of Finance will consider future amendments to the Canadian Income Tax
Act to allow holders of shares of a Canadian corporation to exchange such shares
for shares of a non-Canadian corporation on a tax-deferred basis. It is possible
that the tax proposals described in this announcement, if enacted into law,
could, from the time any such change takes effect, allow you to exchange
exchangeable shares for common stock on a tax-deferred basis. However, no
specifics have been announced regarding what the requirements for such treatment
may be.
BECAUSE OF THE EXISTENCE OF CERTAIN CALL RIGHTS HELD BY CALLCO WHICH
GIVE CALLCO THE OVERRIDING RIGHT TO PURCHASE YOUR EXCHANGEABLE SHARES UPON A
REDEMPTION (INCLUDING A RETRACTION) BY EXCHANGING A SHARE OF COMMON STOCK FOR
EACH EXCHANGEABLE SHARE AS WELL AS CERTAIN RIGHTS OF HOLDERS OF EXCHANGEABLE
SHARES TO FORCE THE EXCHANGE OF EXCHANGEABLE SHARES WITH DUKE ENERGY FOR COMMON
STOCK UPON THE OCCURRENCE OF THE LIQUIDATION, DISSOLUTION OR WINDING-UP OF
EXCHANGECO OR DUKE ENERGY, YOU CANNOT CONTROL WHETHER YOU WILL RECEIVE COMMON
STOCK BY WAY OF A REDEMPTION (INCLUDING A RETRACTION) OF YOUR EXCHANGEABLE
SHARES BY EXCHANGECO OR BY WAY OF PURCHASE OF THE EXCHANGEABLE SHARES BY DUKE
ENERGY OR CALLCO. AS DESCRIBED ABOVE, THE CANADIAN FEDERAL INCOME TAX
CONSEQUENCES OF A REDEMPTION (INCLUDING A RETRACTION) DIFFER FROM THOSE OF A
PURCHASE.
Disposition of Exchangeable Shares Other Than on Redemption or Exchange
A disposition or deemed disposition of your exchangeable shares, other
than on the redemption or exchange of your exchangeable shares, will generally
result in a capital gain (or capital loss) to the extent that the proceeds of
disposition, net of any reasonable costs of disposition, exceed (or are less
than) the adjusted cost base to you immediately before the disposition. The
taxation of capital gains and capital losses is described below.
Acquisition and Disposition of the Common Stock
The cost of the common stock received on a retraction, redemption or
exchange of exchangeable shares will be equal to the fair market value of the
common stock at the time of that event, and will be averaged with the adjusted
cost base of any other shares of common stock held by you at that time as
capital property (other than common stock considered to have been continually
held by you since 1971) for the purpose of determining the adjusted cost base of
your common stock.
A disposition or deemed disposition of the common stock by you will
generally result in a capital gain (or a capital loss) equal to the amount by
which the proceeds of disposition, net of any reasonable costs of disposition,
exceed (or are less than) the adjusted cost base to you of such shares
immediately before the disposition. The taxation of capital gains and capital
losses is described below.
Dividends on Exchangeable Shares
If you are an individual, dividends received or deemed to be received
on the exchangeable shares will be included in computing your income, and will
be subject to the gross-up and dividend tax credit rules normally applicable to
taxable dividends received from a corporation resident in Canada. Subject to the
discussion below, if you are a corporation, other than a "specified financial
institution" as defined in the Canadian Income Tax Act, dividends received or
deemed to be received on the exchangeable shares normally will be included in
your income and deductible in computing your taxable income.
The exchangeable shares will be "term preferred shares," as defined in
the Canadian Income Tax Act. Consequently, if you are a "specified financial
institution," as defined in the Canadian Income Tax Act, a dividend received or
deemed to be received on a redemption of the exchangeable shares will be
deductible in computing your taxable income only if:
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o you did not acquire the exchangeable shares in the ordinary course
of carrying on your business; or
o at the time the dividend is received, the exchangeable shares are
listed on a prescribed stock exchange in Canada (which currently
includes the Toronto Stock Exchange (TSE), on which it is expected
that the exchangeable shares will be listed) and you, either alone
or together with persons with whom you do not deal at arm's length,
do not receive (or are not deemed to receive) dividends in respect
of more than 10% of the issued and outstanding exchangeable shares.
In addition, if you are a corporation and if we or any other person
with whom we do not deal at arm's length (including Exchangeco) are a "specified
financial institution" (for purposes of the Canadian Income Tax Act) at the time
that dividends are paid on the exchangeable shares, subject to the exemption
described below, dividends received or deemed to be received by you will be
included in your taxable income but will not be deductible by you in computing
your taxable income. We have advised Canadian counsel that we will be a
specified financial institution for purposes of the Canadian Income Tax Act
immediately after our acquisition of Westcoast Energy. This denial of the
dividend deduction will not apply if, at the time the dividends are received or
deemed to be received by you, the exchangeable shares are listed on a prescribed
stock exchange in Canada (which currently includes the TSE, on which it is
expected that the exchangeable shares will be listed), we and Callco are
"related" to Exchangeco for the purposes of the Canadian Income Tax Act and
dividends are not paid to you (together with persons with whom you do not deal
at arm's length or any trust or partnership of which you or any such person is a
beneficiary or member) in respect of more than 10% of the issued and outstanding
exchangeable share held by persons other than us and our affiliates.
If you are a "private corporation," as defined in the Canadian Income
Tax Act, or any other corporation resident in Canada and controlled or deemed to
be controlled by or for the benefit of an individual or a related group of
individuals, you may be liable under Part IV of the Canadian Income Tax Act to
pay a refundable tax of 33 1/3% of any dividends received or deemed to be
received on your exchangeable shares to the extent that these dividends are
deductible in computing your taxable income.
If you are throughout the relevant taxation year a "Canadian-controlled
private corporation," as defined in the Canadian Income Tax Act, you may be
liable to pay an additional refundable tax of 62/3% on dividends received or
deemed to be received on your exchangeable shares that are not deductible in
computing taxable income.
Dividends on the Common Stock
Dividends on the common stock will be included in your income for the
purposes of the Canadian Income Tax Act. If you are an individual, you will not
be subject to the gross-up and dividend tax credit rules in the Canadian Income
Tax Act applicable to dividends received from corporations resident in Canada.
If you are a corporation, you will be required to include these dividends in
computing your income and will not be entitled to deduct the amount of these
dividends in computing your taxable income. If you are a "Canadian-controlled
private corporation," as defined in the Canadian Income Tax Act, you may be
liable to pay an additional refundable tax of 6 2/3% on such dividends. If there
is United States non-resident withholding tax on any dividends you receive on
the common stock, you will generally be eligible for foreign tax credit or
deduction treatment where applicable under the Canadian Income Tax Act.
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Taxation of Capital Gains and Capital Losses
One-half of any capital gain (the "taxable capital gain") realized by
you on a disposition or deemed disposition of exchangeable shares or the common
stock must be included in your income for the year of the disposition. One-half
of any capital loss (the "allowable capital loss") realized by you may be
deducted by you against taxable capital gains realized in the year of the
disposition. Any allowable capital losses in excess of taxable capital gains in
the year of disposition may be carried back up to three taxation years or
forward indefinitely and deducted against net taxable capital gains in those
other years to the extent and in the circumstances prescribed in the Canadian
Income Tax Act.
Capital gains realized by an individual or trust, other than certain
trusts, may give rise to alternative minimum tax under the Canadian Income Tax
Act.
If you are a "Canadian-controlled private corporation," as defined in
the Canadian Income Tax Act, you may be liable to pay an additional refundable
tax of 6 2/3% on taxable capital gains.
If you are a corporation, the amount of any capital losses arising from
a disposition or deemed disposition of exchangeable shares may be reduced by the
amount of any dividends received or deemed to have been received by you on the
exchangeable shares to the extent and under circumstances prescribed by the
Canadian Income Tax Act. Similar rules may apply where you are a corporation
that is a member of a partnership or a beneficiary of a trust that owns
exchangeable shares or where a trust or partnership of which a corporation is a
beneficiary or a member is a member of a partnership or a beneficiary of a trust
that owns any of these shares. You should consult your own tax advisors if these
rules may be relevant to you.
Foreign Property Information Reporting
If you are a "specified Canadian entity" (as defined in the Canadian
Income Tax Act), you may be required to file an information return relating to
any "specified foreign property" (as defined in the Canadian Income Tax Act)
owned by you, which would include the common stock, the exchangeable shares and
certain exchange and voting rights relating thereto. You should consult you own
advisors about whether you must comply with these rules with respect to the
ownership of exchangeable shares or common stock.
Foreign Investment Entity Draft Legislation
Draft legislation regarding the taxation of investments in "foreign
investment entities" was released on August 2, 2001. In general, if the draft
legislation applies, a holder of an interest in a foreign investment entity
generally will be required to take into account in computing income changes in
the value of that interest. A corporation is not a foreign investment entity if
the "carrying value" of all of its "investment property" is not greater than
one-half of the "carrying value" of all of its property or if its principal
business is not an "investment business" within the meaning of those terms in
the draft legislation. We believe that we are not currently a "foreign
investment entity" within the meaning of the draft legislation, however, no
assurances can be given in this regard or as to our status in the future. In any
event, in general, these proposed rules will not apply to the common stock or
the exchangeable shares so long as the common stock is widely held and actively
traded and listed on a prescribed stock exchange, unless it is reasonable to
conclude that you had a tax avoidance motive for the acquisition of the shares
in the terms contemplated by the draft legislation.
It was originally announced that the draft legislation would be
applicable for taxation years commencing after 2001. However, on December 17,
2001, the Department of Finance (Canada) issued a press release announcing that
the effective date for the proposed rules will be delayed one year, generally
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to take effect for taxation years commencing after 2002, in order to allow for a
full consideration of submissions on the draft legislation. It is possible that
the draft legislation may be amended before it is enacted in final form.
U.S. FEDERAL INCOME TAX CONSIDERATIONS
In the opinion of Vinson & Elkins L.L.P., our United States counsel,
the following is an accurate summary of the principal United States federal
income tax considerations under the United States Internal Revenue Code of 1986,
as amended (the "Code"), generally applicable to you if you are a holder of
exchangeable shares and you are not:
o a citizen or resident of the United States;
o a corporation or other entity taxable as a corporation created or
organized in or under the laws of the United States or of any
political subdivision thereof;
o an estate, the income of which is subject to United States federal
income taxation regardless of its source; or
o a trust if a United States court is able to exercise primary
supervision over the administration of the trust and one or more
United States persons have the authority to control all substantial
decisions of the trust.
This summary does not discuss all United States federal income tax
considerations that may be relevant to you in light of your particular
circumstances or if you are subject to special treatment under the Code. This
summary is applicable to you only if you hold exchangeable shares as capital
assets and does not consider your tax treatment if you hold exchangeable shares
through a partnership or other pass-through entity. Furthermore, this summary
does not discuss any aspects of foreign, state or local taxation. This summary
is based on current provisions of the Code, existing, temporary and proposed
regulations promulgated under the Code and administrative and judicial
interpretations of the Code, all of which are subject to change, possibly with
retroactive effect. No advance income tax ruling has been sought or obtained
from the Internal Revenue Service (the "IRS") regarding the tax consequences of
the transactions described herein.
YOU ARE ADVISED TO CONSULT YOUR TAX ADVISORS WITH RESPECT TO THE UNITED
STATES FEDERAL, STATE, LOCAL AND FOREIGN TAX CONSEQUENCES OF THE TRANSACTIONS
DESCRIBED HEREIN.
Sale or Exchange of Exchangeable Shares
You generally will not be subject to United States federal income tax
on any gain realized on the sale or exchange of exchangeable shares, including
the exchange of exchangeable shares for common stock, unless the gain is
effectively connected with your United States trade or business or, if you are
an individual, you are present in the United States for 183 days or more during
the taxable year of disposition and certain other conditions are satisfied.
Dividends on the Common Stock
Dividends paid to you as a holder of common stock generally will be
subject to withholding of United States federal income tax at a rate of 30% (or
such lower rate as may be specified by an applicable income tax treaty) unless
the dividend is effectively connected with the conduct of your trade or business
within the United States (or if a tax treaty applies, is attributable to your
United States permanent establishment), in which case the dividend will be taxed
at ordinary United States federal income tax
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rates. If you are a corporation, such effectively connected income may also be
subject to an additional "branch profits tax." You will be required to satisfy
certain certification requirements to claim treaty benefits or otherwise claim a
reduction of, or exemption from, the withholding tax described above.
Sale or Exchange of Common Stock
You generally will not be subject to United States federal income tax
on any gain realized on the sale or exchange of shares of common stock unless:
o the gain is effectively connected with your United States trade or
business;
o you are an individual and you are present in the United States for
183 days or more during the taxable year of disposition and certain
other conditions are satisfied; or
o you have owned (actually or constructively) more than 5% of our
outstanding common stock.
Backup Withholding and Information Reporting
You are generally subject to information reporting requirements with
respect to dividends paid by us to you and any tax withheld with respect to such
dividends. Copies of the information returns reporting such dividends and
withholding may also be made available to the tax authorities in the country in
which you reside under the provisions of an applicable income tax treaty. You
will be subject to backup withholding unless applicable certification
requirements are met. Payment of the proceeds of a sale of shares of the common
stock within the United States or through certain United States brokers is
subject to both backup withholding and information reporting unless you as
beneficial owner certify under penalties of perjury that you are not a United
States person for purposes of the Code (and the payor does not have actual
knowledge or reason to know that you are a United States person) or otherwise
establishes an exemption.
Backup withholding tax is not a separate tax. Any amounts withheld
under the backup withholding rules are generally allowable as a credit against
your United States federal income tax liability (if any), which may entitle you
to a refund, provided that the required information is furnished to the IRS.
The discussion of United States federal income tax consequences set
forth above is for general information only and does not purport to be a
complete analysis or listing of all potential tax effects that may apply to you.
You are strongly encouraged to consult your tax adviser to determine the
particular tax consequences to you, including the application and effect of
United States federal, state, local and foreign tax laws.
EXPERTS
The consolidated financial statements and the related financial
statement schedule incorporated in this prospectus by reference from our annual
report on Form 10-K for the year ended December 31, 2000 have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their report, which is
incorporated herein by reference, and have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in accounting and
auditing.
LEGAL MATTERS
Certain legal matters with respect to the offering of the securities
will be passed on for us by Edward M. Marsh, Jr., Esq., who is our Deputy
General Counsel and Assistant Secretary. As of December 31, 2001, Mr. Marsh
owned 9,918 shares of our common stock or common stock units and
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options to purchase 36,350 shares, 5,850 of which were exercisable. Certain
federal Canadian and U.S. tax matters will be passed upon for us by Stikeman
Elliott, Toronto, Canada, and Vinson & Elkins L.L.P., Houston, Texas, as set
forth under "Income Tax Considerations."
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION (ESTIMATED):
The estimated expenses of issuance and distribution to be borne by Duke
Energy Corporation are as follows:
SEC Filing Fee..................................... $118,934*
Printing Costs..................................... 75,000
Legal Fees and Expenses............................ 10,000
Accounting Fees.................................... 12,000
Miscellaneous...................................... 4,066
--------
TOTAL.............................................. $220,000
========
* Actual
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the North Carolina Business
Corporation Act and the By-Laws of Duke Energy Corporation permit
indemnification of its directors and officers in a variety of circumstances,
which may include liabilities under the Securities Act of 1933, as amended (the
"Securities Act"). In addition, Duke Energy Corporation has purchased insurance
permitted by the law of North Carolina on behalf of directors, officers,
employees or agents which may cover liabilities under the Securities Act.
The Restated Articles of Incorporation of Duke Energy Corporation
provide that a director shall not be personally liable for monetary damages for
breach of fiduciary duty as a director except to the extent such exemption from
liability or limitation thereof is not permitted under the North Carolina
Business Corporation Act.
ITEM 16. EXHIBITS.
The following documents are filed as exhibits to this registration
statement, including those exhibits incorporated herein by reference to a prior
filing of Duke Energy Corporation under the Securities Act or the Securities
Exchange Act of 1934, as amended (the "Exchange Act") as indicated in
parentheses:
Exhibit No. Exhibits
----------- --------
3(A) -- Restated Articles of Incorporation of the registrant,
dated June 18, 1997 (filed with Form S-8, Registration
No. 333-29563, effective June 19, 1997, as
Exhibit 4(G)).
3(B) -- Articles of Amendment to Restated Articles of
Incorporation of the registrant (filed with the
registrant's annual report on Form 10-K, File No. 1-4928,
for the year ended December 31, 1999, as Exhibit 3-A).
3(C) -- By-Laws of the registrant, as amended (filed with Form
S-3, Registration No. 333-52204, as Exhibit 4(B)).
*5 -- Opinion of Edward M. Marsh.
*8(A) -- Opinion of Stikeman Elliott regarding tax matters.
*8(B) -- Opinion of Vinson & Elkins L.L.P. regarding tax
matters.
II-1
Exhibit No. Exhibits
----------- --------
*23(A) -- Consent of Edward M. Marsh, Jr. (contained in Exhibit 5).
*23(B) -- Consent of Stikeman Elliott (contained in Exhibit 8(A)).
*23(C) -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 8(B)).
*23(D) -- Independent Auditors' Consent.
*24 -- Power of Attorney.
99 -- Amended and Restated Combination Agreement, dated as
of September 20, 2001, by and between Duke Energy
Corporation, 3058368 Nova Scotia Company, 3946509
Canada Inc., and Westcoast Energy Inc. (filed with
Form 10-Q for the quarter ended September 30, 2001,
File No. 1-4928, as Exhibit 10.7).
* Filed herewith
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form
of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of Duke Energy
Corporation's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
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Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the indemnification provisions described in Item 15 above
or in contractual arrangements pursuant thereto, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant, Duke Energy Corporation, certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-3 and has
duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Charlotte, State of North
Carolina, on the 8th day of March, 2002.
DUKE ENERGY CORPORATION
By: Richard B. Priory
Chairman of the Board, President,
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following directors and officers
of Duke Energy Corporation in the capacities and on the date indicated.
SIGNATURE TITLE DATE
--------- ----- ----
R.B. Priory Chairman of the Board, President, March 8, 2002
and Chief Executive Officer
(Principal Executive Officer)
Robert P. Brace Executive Vice President and March 8, 2002
Chief Financial Officer (Principal
Financial Officer)
Keith G. Butler Senior Vice President and Corporate March 8, 2002
Controller (Principal Accounting
Officer)
G. Alex Bernhardt
Robert J. Brown
William A. Coley
William T. Esrey
Ann Maynard Gray
Dennis R. Hendrix A majority of the Directors March 8, 2002
George Dean Johnson, Jr.
D. Max Lennon
Leo E. Linbeck, Jr.
James G. Martin
James T. Rhodes
Myron L. Caldwell, by signing his name hereto, does hereby sign this document on
behalf of Duke Energy Corporation and on behalf of each of the above-named
persons pursuant to a power of attorney duly executed by Duke Energy Corporation
and such persons, filed with the Securities and Exchange Commission as an
exhibit hereto.
/s/ MYRON L. CALDWELL
------------------------------
Myron L. Caldwell
II-4
INDEX TO EXHIBITS
Exhibit No. Exhibits
----------- --------
3(A) -- Restated Articles of Incorporation of the registrant,
dated June 18, 1997 (filed with Form S-8, Registration
No. 333-29563, effective June 19, 1997, as
Exhibit 4(G)).
3(B) -- Articles of Amendment to Restated Articles of
Incorporation of the registrant (filed with the
registrant's annual report on Form 10-K, File No. 1-4928,
for the year ended December 31, 1999, as Exhibit 3-A).
3(C) -- By-Laws of the registrant, as amended (filed with Form
S-3, Registration No. 333-52204, as Exhibit 4(B)).
*5 -- Opinion of Edward M. Marsh.
*8(A) -- Opinion of Stikeman Elliott regarding tax matters.
*8(B) -- Opinion of Vinson & Elkins L.L.P. regarding tax
matters.
*23(A) -- Consent of Edward M. Marsh, Jr. (contained in Exhibit 5).
*23(B) -- Consent of Stikeman Elliott (contained in Exhibit 8(A)).
*23(C) -- Consent of Vinson & Elkins L.L.P. (contained in Exhibit 8(B)).
*23(D) -- Independent Auditors' Consent.
*24 -- Power of Attorney.
99 -- Amended and Restated Combination Agreement, dated as
of September 20, 2001, by and between Duke Energy
Corporation, 3058368 Nova Scotia Company, 3946509
Canada Inc., and Westcoast Energy Inc. (filed with
Form 10-Q for the quarter ended September 30, 2001,
File No. 1-4928, as Exhibit 10.7).
* Filed herewith
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