-----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, MamDGgUMwlsid1djkPKDOO/XvBZ/89+aZTqh8sj3eic3nSnjN1CBP/aSQy76CeHZ 4EenhR+YtYI6RrUL51yfhg== 0000950152-01-501905.txt : 20010515 0000950152-01-501905.hdr.sgml : 20010515 ACCESSION NUMBER: 0000950152-01-501905 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20010514 GROUP MEMBERS: CINERGY CORP GROUP MEMBERS: CINERGY ENERGY SOLUTIONS, INC. GROUP MEMBERS: CINERGY SOLUTIONS, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: U S ENERGY SYSTEMS INC CENTRAL INDEX KEY: 0000351917 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC, GAS & SANITARY SERVICES [4900] IRS NUMBER: 521216347 STATE OF INCORPORATION: DE FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-47687 FILM NUMBER: 1633866 BUSINESS ADDRESS: STREET 1: 515 N FLAGLER DR STREET 2: STE 702 CITY: WEST PALM BEACH STATE: FL ZIP: 33401 BUSINESS PHONE: 5618209779 MAIL ADDRESS: STREET 1: 515 NORTH FLAGLER DRIVE STREET 2: SUITE 702 CITY: WEST PALM BEACH STATE: FL ZIP: 33401 FORMER COMPANY: FORMER CONFORMED NAME: U S ENVIROSYSTEMS INC /DE/ DATE OF NAME CHANGE: 19960607 FILED BY: 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: SC 13D/A 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 SC 13D/A 1 l88337asc13da.txt CINERGY CORP./U.S. ENERGY SYSTEMS, INC. SC 13D/A 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 1) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13d-2(a) U.S. ENERGY SYSTEMS, INC. (Name of Issuer) Common Stock (Title of Class of Securities) 902 951 102 (CUSIP Number) Mr. Wayne A. Harris Senior Counsel Cinergy Services, Inc. 139 East Fourth Street Cincinnati, Ohio 45202 513-287-3020 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) May 10, 2001 (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ]. (Continued on following pages) (Page 1 of 13 Pages) ================================================================================ 2
- ------------------------------------------------ -------------------------------------------- CUSIP No. 902951102 13D Page 2 of 13 Pages - ------------------------------------------------ -------------------------------------------- - ------------------------------------------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CINERGY ENERGY SOLUTIONS, INC., 139 EAST FOURTH STREET, CINCINNATI, OHIO 45202 - ------------------------------------------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] NOT APPLICABLE - ------------------------------------------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] NOT APPLICABLE - ------------------------------------------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 1,967,000 SHARES SHARES ------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY NOT APPLICABLE OWNED BY ------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 1,967,000 SHARES REPORTING ------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON WITH NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,967,000 SHARES - ------------------------------------------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] NOT APPLICABLE - ------------------------------------------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 20.0% - ------------------------------------------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------------------------------------------
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- ------------------------------------------------ ---------------------------------------------- CUSIP No. 902951102 13D Page 3 of 13 Pages - ------------------------------------------------ ---------------------------------------------- - -------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CINERGY SOLUTIONS, INC., 139 EAST FOURTH STREET, CINCINNATI, OHIO 45202 - -------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 2,550,333 SHARES SHARES ------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY NOT APPLICABLE OWNED BY ------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 2,550,333 SHARES REPORTING ------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON WITH NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,550,333 SHARES; CINERGY ENERGY SOLUTIONS, INC. IS A WHOLLY OWNED SUBSIDIARY OF CINERGY SOLUTIONS, INC. - -------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES |_| NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.6% - -------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - --------------------------------------------------------------------------------------------------------------------
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- ------------------------------------------------ ---------------------------------------------- CUSIP No. 902951102 13D Page 4 of 13 Pages - ------------------------------------------------ ---------------------------------------------- - -------------------------------------------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY) CINERGY CORP., 139 EAST FOURTH STREET, CINCINNATI, OHIO 45202 - -------------------------------------------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [ ] NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 3 SEC USE ONLY - -------------------------------------------------------------------------------------------------------------------- 4 SOURCE OF FUNDS NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION DELAWARE - -------------------------------------------------------------------------------------------------------------------- 7 SOLE VOTING POWER NUMBER OF 2,550,333 SHARES SHARES ------------------------------------------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY NOT APPLICABLE OWNED BY ------------------------------------------------------------------------------------------- 9 SOLE DISPOSITIVE POWER EACH 2,550,333 SHARES REPORTING ------------------------------------------------------------------------------------------- 10 SHARED DISPOSITIVE POWER PERSON WITH NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,550,333 SHARES HELD INDIRECTLY THROUGH ITS INTERESTS IN ITS AFFILIATES, CINERGY ENERGY SOLUTIONS, INC., AND CINERGY SOLUTIONS, INC., BOTH WHOLLY OWNED INDIRECT SUBSIDIARIES OF CINERGY CORP. - -------------------------------------------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] NOT APPLICABLE - -------------------------------------------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 27.6% - -------------------------------------------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON CO - --------------------------------------------------------------------------------------------------------------------
5 - ------------------------------- ------------------------------ CUSIP No. 902951102 13D Page 5 of 13 Pages - ------------------------------- ------------------------------ ITEM 1. SECURITY AND ISSUER. Item 1. is amended to read as follows: Title of Class of Securities: Common Stock, $0.01 par value per share Name of Issuer: U.S. Energy Systems, Inc. Address of Issuer's Principal Executive Offices: One North Lexington Avenue, White Plains, NY 10601 ITEM 2. IDENTITY AND BACKGROUND. Item 2. is amended to read as follows: This Schedule 13D is being filed by Cinergy Energy Solutions, Inc. ("Cinergy Energy"), Cinergy Solutions, Inc. ("Cinergy Solutions") and Cinergy Corp. ("Cinergy"), with Cinergy Energy, Cinergy Solutions and Cinergy being referred to sometimes hereinafter as the "Reporting Persons." This Amendment No. 1 to Schedule 13D dated May 14, 2001, amends and supplements the Schedule 13D dated October 23, 2000 and is filed to reflect information required under Rule 13d-2 under the Securities and Exchange Act, as amended, with respect to the beneficial ownership of the Reporting Persons. This Schedule 13D relates to the shares of Common Stock, $0.01 par value per share, of U.S. Energy Systems, Inc. ("U.S. Energy Systems"), a corporation incorporated under the laws of the State of Delaware, with its principal executive offices located at One North Lexington Avenue, White Plains, NY 10601. Cinergy is a corporation incorporated under the laws of the State of Delaware. Cinergy is a utility holding company which, along with its subsidiaries, is engaged primarily in the generation, transmission, distribution and sale of electricity and the sale and transportation of natural gas in Indiana, Kentucky and Ohio. Cinergy's Common Stock is listed for trading on the New York Stock Exchange. Cinergy's principal address and business address is 139 East Fourth Street, Cincinnati, Ohio 45202. Cinergy Energy is a corporation incorporated under the laws of the State of Delaware. Cinergy Energy is engaged primarily in cogeneration projects. Cinergy Energy's principal address and business address is 139 East Fourth Street, Cincinnati, Ohio 45202. Cinergy Energy is an indirect wholly-owned subsidiary of Cinergy and a direct subsidiary of Cinergy Solutions. Cinergy Solutions is a corporation incorporated under the laws of the State of Delaware. Cinergy Solutions is engaged primarily in cogeneration and energy outsourcing for industrial customers. Cinergy Solution's principal address and business address is 139 East Fourth Street, Cincinnati, Ohio 45202. Cinergy Solutions is an indirect wholly-owned subsidiary of Cinergy. The name, citizenship, present position with the Reporting Persons, present principal occupation and business address of each of the directors and executive officers of the Reporting Persons are set forth in Schedule A hereto, which exhibit is hereby incorporated by reference into this Schedule 13D. None of the persons listed in Schedule A has any direct or indirect interest in U.S. Energy Systems as of the date of this Schedule 13D. None of the Reporting Persons or the persons listed in Schedule A has during the last five years been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activity subject to, United States federal or state securities laws or finding any violation with respect to such laws as a result of a civil proceeding of a judicial or administrative body of competent jurisdiction. 6 - ------------------------------ -------------------------------- CUSIP No. 902951102 13D Page 6 of 13 Pages - ------------------------------ -------------------------------- ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. Item 3. is amended by adding the following paragraph: The total amount of funds used by Cinergy Energy to obtain an option to exchange its Class B common shares in Zahren Alternative Power Corporation ("Zapco") into 1,967,000 shares of Common Stock of U.S. Energy Systems is $11.5 million. Cinergy Energy obtained such funds from its affiliate, Cinergy Investments, Inc. ITEM 4. PURPOSE OF TRANSACTION. Item 4. is amended so that all references therein to Cinergy Solutions shall include also Cinergy Energy. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5. Is amended to read as follows: (a) Cinergy Solutions owns 583,333 shares of the Common Stock of U.S. Energy Systems, Inc., representing approximately 7.6% of the outstanding shares of Common Stock of U.S. Energy Systems (calculated based upon 7,695,558 shares of Common Stock reported as outstanding as of December 31, 2000 as reported on April 4, 2001 by U.S. Energy Systems in its report on Form 10-KSB filed with the Securities and Exchange Commission for its fiscal year ended December 31, 2000). Cinergy does not directly own any shares of Common Stock of U.S. Energy Systems, but may be deemed to beneficially own the shares of Common Stock of U.S. Energy Systems held by Cinergy Solutions and the option to acquire 1,967,000 shares of the Common Stock of U.S. Energy Systems, Inc. in the event that Cinergy Energy exercises its option to exchange its shares of the Class B Common Stock of Zapco for shares of U.S. Energy Systems, Inc. Based upon 7,695,558 shares of Common Stock reported as outstanding on December 31, 2000 as reported on April 4, 2001 by U.S. Energy Systems, Inc. in its report on Form 10-KSB filed with the Securities and Exchange Commission for its fiscal year ended December 31, 2000, Cinergy Energy, if it exercised its option, could own approximately 20.0% of the outstanding shares of U.S. Energy Systems, Inc. None of the persons listed in Schedule A has any direct or indirect interest in U.S. Energy Systems, Inc. as of the date of this Schedule 13D. (b) Cinergy Energy has the sole power to exercise the option to exchange its shares of the Class B Common Stock of Zapco for shares of U.S. Energy Systems, Inc. Cinergy Solutions has the power to direct the vote and the indirect power to direct the exercise by Cinergy Energy of the option to exchange its shares of the Class B Common Stock of Zapco for shares of U.S. Energy Systems, Inc. through its direct interest in Cinergy Energy. Cinergy Solutions has the sole power to direct the vote and sole power to direct the disposition of all the shares of Common Stock of U.S. Energy Systems held by it. Cinergy has the indirect power to direct the vote and the indirect power to direct the disposition of the shares of Common Stock of U.S. Energy Systems held by Cinergy Solutions through its indirect interest in Cinergy Solutions. Further, Cinergy indirectly has the power to direct the exercise by Cinergy Energy of the option to exchange its shares of the Class B Common Stock of Zapco for shares of U.S. Energy Systems, Inc. through its direct interest in Cinergy Energy. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6. Is amended to read as follows: On May 10, 2001, Cinergy Energy Solutions, Inc. invested approximately $11.5 million in USE Acquisition Corp., a subsidiary of U.S. Energy Systems, Inc., immediately before USE Acquisition Corp. effected a merger between itself and Zahren Alternative Power Corporation ("Zapco") with Zapco being the surviving corporation. In consideration of this investment by Cinergy Energy Solutions, Inc., all of the shares of Class B Common Stock of USE Acquisition Corp. were issued to Cinergy Energy Solutions, Inc. Through the merger, the Class B Common Shares of USE Acquisition Corp. were exchanged for the identical number of Class B shares of Zapco. Accordingly, as a result of 7 - ------------------------------- --------------------------- 13D Page 7 of 13 Pages CUSIP No. 902951102 - ------------------------------- --------------------------- the merger and this investment, Cinergy Energy owns approximately 45.74% of the equity of Zapco and U.S. Energy Systems, Inc. owns approximately 54.26% of the equity of Zapco. Zapco is a developer, owner and operator of landfill gas and cogeneration projects in the United States. Cinergy Energy made its investment pursuant to a subscription agreement whereby Cinergy Energy agreed to buy from USE Acquisition Corp. immediately prior to the merger all 4,574 shares of USE Acquisition Corp. Class B Common Stock for $11,500,000 in cash. These shares represent 45.74% of USE Acquisition Corp.'s common stock. U.S. Energy Systems, Inc. holds all 5,426 shares of Class A Stock which represents the remaining 54.26% of USE Acquisition Corp.'s common stock. Upon completion of the merger, the Class A and Class B shares of USE Acquisition Corp. were converted into Class A and Class B shares of Zapco, respectively. As a result of this subscription, following the merger, U.S. Energy Systems, Inc. and Cinergy Energy are the sole shareholders of Zapco. The Class A Common Stock and Class B Common Stock are identical except that the Class A Common Stock has superior voting rights with the result that U.S. Energy Systems, Inc. can appoint four of five directors and generally hold 80% of the voting power (with exceptions for, among other things, matters outside of the ordinary course of business). Cinergy Energy received an option exercisable within two years after the merger to convert its Class B Stock into an aggregate of 1,967,000 shares of U.S. Energy Systems, Inc. Common Stock. During the same period U.S. Energy Systems, Inc. is entitled to acquire the Class B Stock from Cinergy Energy for approximately $14,600,000. In either event, U.S. Energy Systems, Inc. would own 100% of Zapco. Previously, in October 2000, Cinergy Solutions, Inc. invested $3.5 million in U.S. Energy Systems, Inc. in exchange for 583,333 shares of its common stock and a Cinergy Solutions, Inc. executive joined the U.S. Energy Systems, Inc. board. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7. Is amended to add the following exhibits: The Joint Filing Statement adding Cinergy Energy as a Reporting Person , Subscription Agreement and amendment to the Subscription agreement are included as Exhibits 99.7, 99.8 and 99.9, respectively, and are hereby incorporated into this Schedule 13D by reference. 99.7 Joint Filing Statement 99.8 Subscription Agreement 99.9 Amendment No. 1 To Subscription Agreement By and Among U.S. Energy Systems, Inc., Use Acquisition Corp. and Cinergy Energy Solutions, Inc. 8 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 8 of 13 Pages - ------------------------------- --------------------------- After reasonable inquiry and to the bet of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Date: May 14, 2001 CINERGY CORP. By: /s/ M. Stephen Harkness ----------------------- Name: M. Stephen Harkness Title: Vice President 9 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 9 of 13 Pages - ------------------------------- --------------------------- SCHEDULE A ---------- CINERGY CORP. - -------------
BUSINESS ADDRESS PRINCIPAL BUSINESS (OR RESIDENCE POSITION WITH ADDRESS IF NO CORPORATION; PRINCIPAL BUSINESS ADDRESS NAME; CITIZENSHIP OCCUPATION, IF DIFFERENT AVAILABLE) ----------------- ------------------------ ---------- Jackson H. Randolph Director and Chairman Emeritus 139 East Fourth Street United States of America of Cinergy Corp. Cincinnati, Ohio 45202 James E. Rogers Director and Chairman of the 139 East Fourth Street United States of America Board, President and Chief Executive Cincinnati, Ohio 45202 Officer of Cinergy Corp. James K. Baker Director of Cinergy Corp.; 139 East Fourth Street United States of America retired Vice Chairman of Arvin Cincinnati, Ohio 45202 Industries, Inc. (worldwide supplier of automotive parts) Michael G. Browning Director of Cinergy Corp.; 139 East Fourth Street United States of America Chairman and President of Cincinnati, Ohio 45202 Browning Investments, Inc. (real estate venture firm) Phillip R. Cox Director of Cinergy Corp.; 139 East Fourth Street United States of America President and Chief Executive Cincinnati, Ohio 45202 Officer of Cox Financial Corporation (financial and estate planning services) John A. Hillenbrand II Director of Cinergy Corp.; 139 East Fourth Street United States of America Chairman, President and Chief Cincinnati, Ohio 45202 Executive Officer of Glynnadam, Inc. (personal investment holding company); Chairman of Able Body Corporation and Nambe' Mills, Inc.; Vice Chairman of Pri-Pak, Inc. George C. Julifs Director of Cinergy Corp.; 139 East Fourth Street United States of America President and Chief Executive Cincinnati, Ohio 45202 Officer of SENCORP (international holding company with subsidiaries that manufacture fastening systems and commercialize health care technologies)
10 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 10 of 13 Pages - ------------------------------- ---------------------------
BUSINESS ADDRESS PRINCIPAL BUSINESS (OR RESIDENCE POSITION WITH ADDRESS IF NO CORPORATION; PRINCIPAL BUSINESS ADDRESS NAME; CITIZENSHIP OCCUPATION, IF DIFFERENT AVAILABLE) - ----------------- ------------------------ ---------- Thomas E. Petry Director of Cinergy Corp.; retired 139 East Fourth Street United States of America Chairman of the Board and Chief Cincinnati, Ohio 45202 Executive Officer of Eagle-Picher Industries, Inc. (diversified manufacturer of industrial and automotive products) Mary L. Schapiro Director of Cinergy Corp.; 139 East Fourth Street United States of America President of NASD Regulation, Cincinnati, Ohio 45202 Inc. (independent regulatory subsidiary of the NASD) John J. Schiff, Jr. Director of Cinergy Corp.; 139 East Fourth Street United States of America Chairman of the Board, President Cincinnati, Ohio 45202 and Chief Executive Officer of Cincinnati Financial Corporation (insurance holding company) and The Cincinnati Insurance Company Philip R. Sharp, Ph.D. Director of Cinergy Corp.; 139 East Fourth Street United States of America Lecturer in Public Policy at Cincinnati, Ohio 45202 Harvard University's John F. School of Government; Chairman of the Secretary's Electric System Reliability Task Force Dudley S. Taft Director of Cinergy Corp.; 139 East Fourth Street United States of America President and Chief Executive Cincinnati, Ohio 45202 Officer of Taft Broadcasting Company (media investment company) Oliver W. Waddell Director of Cinergy Corp.; retired 139 East Fourth Street United States of America Chairman of the Board of Star Cincinnati, Ohio 45202 Banc Corporation (now Firstar Corporation, a bank holding company) R. Foster Duncan ExecutiveVice President and Chief 139 East Fourth Street United States of America Financial Officer of Cinergy Corp. Cincinnati, Ohio 45202 Michael J. Cyrus Vice President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 John Bryant Vice President of Cinergy Corp. 139 East Fourth Street United Kingdom Cincinnati, Ohio 45202
11 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 11 of 13 Pages - ------------------------------- ---------------------------
BUSINESS ADDRESS PRINCIPAL BUSINESS (OR RESIDENCE POSITION WITH ADDRESS IF NO CORPORATION; PRINCIPAL BUSINESS ADDRESS NAME; CITIZENSHIP OCCUPATION, IF DIFFERENT AVAILABLE) ----------------- ------------------------ ---------- William J. Grealis Executive Vice President and 139 East Fourth Street United States of America Chief of Staff of Cinergy Corp. Cincinnati, Ohio 45202 J. Joseph Hale, Jr. Vice President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 M. Stephen Harkness Vice President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Donald B. Ingle, Jr. Vice President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Julie S. Janson Secretary of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Bernard F. Roberts Vice President and Comptroller 139 East Fourth Street United States of America of Cinergy Corp. Cincinnati, Ohio 45202 Lisa D. Gamblin Vice President and Treasurer 139 East Fourth Street United States of America of Cinergy Corp. Cincinnati, Ohio 45202 Larry E. Thomas Group President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 James L. Turner Vice President of Cinergy Corp. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Jerome A. Vennemann Vice President, General Counsel 139 East Fourth Street United States of America and Assistant Secretary of Cinergy Cincinnati, Ohio 45202 Corp.
CINERGY SOLUTIONS, INC. - -----------------------
BUSINESS ADDRESS PRINCIPAL BUSINESS (OR RESIDENCE POSITION WITH ADDRESS IF NO CORPORATION; PRINCIPAL BUSINESS ADDRESS NAME; CITIZENSHIP OCCUPATION, IF DIFFERENT AVAILABLE) ----------------- ------------------------ ---------- James E. Rogers Director of Cinergy Solutions, Inc. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Donald B. Ingle, Jr. Director and Chief Executive 139 East Fourth Street United States of America Officer of Cinergy Solutions, Inc.; Cincinnati, Ohio 45202
12 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 12 of 13 Pages - ------------------------------- ---------------------------
Charles J. Winger Director and Vice President of 139 East Fourth Street United States of America Cinergy Solutions, Inc.; Vice Cincinnati, Ohio 45202 Felicia A. Ferguson Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 M. Stephen Harkness President and Chief Operating 139 East Fourth Street United States of America Officer of Cinergy Solutions, Inc. Cincinnati, Ohio 45202 Charles M. O'Donnell Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Donna L. Robichaud Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Jeremiah J. Sullivan Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Bernard F. Roberts Comptroller of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Lisa D. Gamblin Treasurer of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Jerome A. Vennemann Secretary of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Douglas C. Taylor Assistant Secretary 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Ronald J. Brothers Assistant Secretary 139 East Fourth Street United States of America Cincinnati, Ohio 45202
CINERGY ENERGY SOLUTIONS, INC. - ------------------------------
BUSINESS ADDRESS PRINCIPAL BUSINESS (OR RESIDENCE POSITION WITH ADDRESS IF NO CORPORATION; PRINCIPAL BUSINESS ADDRESS NAME; CITIZENSHIP OCCUPATION, IF DIFFERENT AVAILABLE) ----------------- ------------------------ ---------- James E. Rogers Director of Cinergy Solutions, Inc. 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Donald B. Ingle, Jr. Director and Chief Executive 139 East Fourth Street United States of America Officer of Cinergy Solutions, Inc.; Cincinnati, Ohio 45202 Charles J. Winger Director and Vice President of 139 East Fourth Street United States of America Cinergy Solutions, Inc.; Vice Cincinnati, Ohio 45202 Felicia A. Ferguson Vice President of Cinergy 139 East Fourth Street
13 - ------------------------------- --------------------------- CUSIP No. 902951102 13D Page 13 of 13 Pages - ------------------------------- ---------------------------
United States of America Solutions, Inc. Cincinnati, Ohio 45202 M. Stephen Harkness President and Chief Operating 139 East Fourth Street United States of America Officer of Cinergy Solutions, Inc. Cincinnati, Ohio 45202 Charles M. O'Donnell Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Donna L. Robichaud Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Jeremiah J. Sullivan Vice President of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Bernard F. Roberts Comptroller of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Lisa D. Gamblin Treasurer of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Jerome A. Vennemann Secretary of Cinergy 139 East Fourth Street United States of America Solutions, Inc. Cincinnati, Ohio 45202 Douglas C. Taylor Assistant Secretary 139 East Fourth Street United States of America Cincinnati, Ohio 45202 Ronald J. Brothers Assistant Secretary 139 East Fourth Street United States of America Cincinnati, Ohio 45202
EX-99.7 2 l88337aex99-7.txt EXHIBIT 99.7 1 Exhibit 99.7 JOINT FILING STATEMENT In accordance with Rule 13d-1(k) of Regulation 13D of the Securities Exchange Act of 1934, as amended, the entities listed below agree to the joint filing on behalf of each of them of this Statement on Schedule 13D (including any and all amendments thereto) with respect to the shares of Common Stock of U.S. Energy Corp., and further agree that this Joint Filing Statement shall be included as an Exhibit to such joint filings. In evidence thereof the undersigned, being duly authorized, hereby executes this Statement on this May 14, 2001. CINERGY ENERGY SOLUTIONS, INC. By: /s/ M. Stephen Harkness ----------------------- Name: M. Stephen Harkness Title: President CINERGY SOLUTIONS, INC. By: /s/ M. Stephen Harkness ----------------------- Name: M. Stephen Harkness Title: President CINERGY CORP. By: /s/ M. Stephen Harkness ----------------------- Name: M. Stephen Harkness Title: Vice President EX-99.8 3 l88337aex99-8.txt EXHIBIT 99.8 1 Exhibit 99.8 SUBSCRIPTION AGREEMENT This SUBSCRIPTION AGREEMENT (this "AGREEMENT") is made and entered into as of the 28th day of November, 2000 by and between Cinergy Energy Solutions, Inc. ("CES"), a wholly-owned indirect subsidiary of Cinergy Solutions Holding Company, Inc. ("CHSC"), U.S. Energy Systems, Inc., a Delaware corporation ("USE"), and USE Acquisition Corp. a Delaware corporation (the "COMPANY,") a wholly-owned subsidiary of USE. RECITALS CES desires to subscribe for 4,574 shares of Class B Common Stock the Company (the "SHARES") for $11,500,000 (the "SUBSCRIPTION PRICE"), upon and subject to the terms and conditions of this Agreement. The Company shall use the proceeds received from CES in exchange for the Shares to finance in part the acquisition of Zahren Alternative Power Corporation, a Delaware corporation ("ZAPCO") pursuant to an Agreement and Plan of Reorganization and Merger by and among USE, the Company and ZAPCO dated as of the date hereof (the "Merger Agreement"). NOW, THEREFORE, in consideration of and in reliance upon the above Recitals, which by this reference are incorporated herein, the terms, covenants, conditions and representations contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. SUBSCRIPTION. In consideration for the payment of the Subscription Price in cash payable by CES, the Company agrees to issue to CES the Shares. 2. REPRESENTATIONS; WARRANTIES; COVENANTS. A. CES represents and warrants to the Company that the following are true, complete and correct as of the date of this Agreement and, where applicable, covenants with the Company as follows: (i) CES is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to enter into this Agreement, the Indemnification Agreement dated as of the date hereof among the Company , USE and CES, (the "Indemnification Agreement ") and the stockholders' agreement dated as of the date hereof among the Company, CES and USE (the "STOCKHOLDERS' AGREEMENT" and together with Indemnification Agreement and this Agreement the "TRANSACTION AGREEMENTS") and perform its obligations hereunder and thereunder. 1 2 (ii) The execution, delivery and performance of the Transaction Agreements (a) have been duly authorized by all necessary corporate action, and (b) do not and will not violate, breach or constitute a default (or an event which with or without notice and/or lapse of time would constitute a default) under the CES's organizational documents, any agreement or instrument by which it is bound or any law, regulation, order, award, judgment, decree, license, permit or instrument to which it is subject. Each Transaction Agreement is valid and enforceable against the Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors' rights generally and applicable equitable principles. (iii) CES has obtained all consents, approvals, novations, waivers or notifications of any third party or governmental entity (collectively, "CONSENTS") which are necessary or required on its part for the consummation of the transactions contemplated by the Transaction Agreements. (iv) There is no action, suit, legal or administrative proceeding, arbitration, investigation or other proceeding or claim pending or, to the knowledge of CES, threatened against, or affecting CES that, if adversely determined, might reasonably be expected to have a material adverse effect on its ability to consummate the transactions contemplated by the Transaction Agreements. (v) CES understands that the Shares have not been registered under the Securities Act of 1933, as amended (the "ACT"), or the securities or similar laws of any state and are offered in reliance on exemptions therefrom. (vi) CES understands that neither the Securities and Exchange Commission nor any other Federal or state agency has recommended, approved or endorsed the acquisition of the Shares as an investment or passed on the accuracy or adequacy of the information set forth in any Company's documents. (vii) CES is a special purpose C Corporation which is an indirect wholly owned subsidiary of CSHC. (viii) CES confirms that the Shares were not offered to it by any means of general solicitation or general advertising, that it has received no representations, warranties or written communications with respect to the offering of the Shares other than those contained in this Agreement, and in entering into the transactions contemplated by the Transaction Agreements CES is not relying upon any information other than that contained in this Agreement and the results of its own independent investigation. (ix) CES is acquiring the Shares solely for its own account, for investment purposes only, and not with a view to the distribution or resale thereof. (x) CES acknowledges that the Company is making no representations concerning the value of the Shares except as specifically set forth herein. 2 3 (xi) CES will not sell or otherwise transfer the Shares without registration under the Act or an exemption therefrom and agrees that it must bear the economic risk of the purchase for an indefinite period of time because, among other reasons, the Shares have not been registered under the Act or under the securities laws of any state and, therefore, cannot be resold, pledged, assigned or otherwise disposed of unless it is subsequently registered under the Act and under applicable state securities laws or an exemption from such registration is available. CES understands that the Company is under no obligation to register the Shares on behalf of CES or to assist CES in complying with any exemption from such registration under the Act. (xii) CES acknowledges, represents, agrees and is aware that: (a) the Company has no financial and operating history; (b) the representations, warranties, agreements, undertakings and acknowledgments made by CES in this Agreement are made with the intent that they be relied upon by the Company in determining the suitability of CES as a purchaser of the Shares and shall survive the issuance of the Shares to CES; and (c) the Shares are illiquid and CES must bear the economic risk of its purchase of the Shares for an indefinite period of time. (xiii) Assuming the accuracy of USE's and the Company's representations and warranties contained in Sections B and C hereof and ZAPCO'S representations and warranties contained in Section 3.29 of the Merger Agreement, the consummation of the transactions described herein shall not cause USE, the Company or the Surviving Corporation (as such term is defined in the Merger Agreement) to become (i) an "affiliate" of an "electric utility company," or a "subsidiary company" of an electric utility company as such terms are defined by the Public Utility Holding Company Act of 1935 ("PUHCA") (ii) subject to the Federal Power Act or Natural Gas Act, or (iii) subject to regulation as a "public utility," a "local distribution company," an "electric load serving entity" or a similar entity under the laws of any state, except to the extent with respect to the foregoing clauses (i), (ii) and (iii) that USE or the Company or the Surviving Corporation is already subject to regulation as such thereunder. (xiv) Assuming the accuracy of USE's representations and warranties contained in Section C hereof and ZAPCO'S representations and warranties contained in Section 3.29 of the Merger Agreement, the consummation of the transactions described herein shall not cause any qualifying facility within the meaning of the Public Utility Regulatory Policies Act of 1978 ("PURPA") and 18 C.F.R. Part 292 ("Qualifying Facility") in which USE, the Surviving Corporation or any of their subsidiaries owns an equity interest to lose its status as such under PURPA. 3 4 (xv) CES acknowledges that it understands that the Company intends to apply the proceeds of the Subscription Price towards the cost of acquiring ZAPCO pursuant to the Merger Agreement. (xvi) CES acknowledges that this Agreement contains no representations or warranties concerning ZAPCO and that neither the Company nor USE is making any representations or warranties, directly or indirectly, concerning ZAPCO, its business, or its prospects. B. The Company hereby represents and warrants to CES that the following are true, complete and correct as of the date of this Agreement: (i) The Company is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to enter into this Agreement and the other Transaction Agreements to which it is a party and perform its respective obligations hereunder and thereunder. (ii) The execution, delivery and performance of the Transaction Agreements to which it is a party (i) have been duly authorized by all necessary corporate action, (ii) do not and will not violate, breach or constitute a default (or an event which with or without notice and/or lapse of time would constitute a default) under the Company's organizational documents, any agreement or instrument by which any of them is bound or any law, regulation, order, award, judgment, decree, license, permit or instrument to which any of them is subject, and (iii) will not result in the creation or imposition of any lien, claim, charge or other encumbrance upon any of the assets or properties of the Company. Each Transaction Agreement to which it is a party is valid and enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors' rights generally and applicable equitable principles. (iii) The Company has obtained all Consents which are necessary or required on its part for the consummation of the transactions contemplated by the Transaction Agreements to which it is a party. (iv) The Shares, when issued, sold and delivered in accordance with the terms of this Agreement, will be duly and validly issued, fully paid, non-assessable and free and clear of all liens and encumbrances. (v) The entire authorized capital stock of the Company consists of 5,426 shares of Class A Common Stock, .01 par value (the "Class A Shares") and 4,574 shares of Class B Common Stock, .01 par value (the "Class B Shares") of which all of the Class A Shares have been issued to USE and all of the Class B Shares shall be issued CES pursuant to this Agreement. There are no outstanding options, warrants or commitments on the part of the Company to issue any equity securities of the Company. All of the issued and outstanding Shares are duly authorized, validly issued, fully paid and nonassessable, were not issued in 4 5 violation of any law or of any preemptive or similar rights of any shareholder or other person. (vi) The representations and warranties of the Company made by it as "Merger Sub" in Article IV of the Merger Agreement as modified or qualified by the disclosure schedules attached thereto (the "Disclosure Schedules") delivered by the Company to ZAPCO in connection with the execution of the Merger Agreement are hereby incorporated by this reference as if more fully set forth herein and constitute representations made by the Company to CES pursuant to this Agreement. (vii) The Company is not an "electric utility company," a "holding company" or an "affiliate" of an "electric utility company" as such terms are defined by PUHCA. C. USE hereby represents and warrants to CES that the following are true, complete and correct as of the date of this Agreement: (i) USE is duly organized, validly existing and in good standing under the laws of the State of Delaware and, subject to the approval of its shareholders, has all requisite corporate power and authority to enter into this Agreement and the other Transaction Agreements to which it is a party and perform its respective obligations hereunder and thereunder. (ii) The execution, delivery and performance of the Transaction Agreements to which it is a party (i) have been duly authorized by all necessary corporate action (other than the approval of its shareholders), (ii) do not and will not violate, breach or constitute a default (or an event which with or without notice and/or lapse of time would constitute a default) under USE's organizational documents, any agreement or instrument by which any of them is bound or any law, regulation, order, award, judgment, decree, license, permit or instrument to which any of them is subject, and (iii) will not result in the creation or imposition of any lien, claim, charge or other encumbrance upon any of the assets or properties of USE. Each Transaction Agreement to which it is a party is valid and enforceable against USE in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization and similar laws affecting creditors' rights generally and applicable equitable principles. (iii) USE has obtained all Consents which are necessary or required on its part for the consummation of the transactions contemplated by the Transaction Agreements to which it is a party. (iv) The representations and warranties of USE made by it as "Parent" in Article IV of the Merger Agreement as modified or qualified by the Disclosure Schedules delivered by USE to ZAPCO in connection with the execution of the Merger Agreement are hereby incorporated by this reference as if more fully set forth herein and constitute representations and warranties made by USE to CES pursuant to this Agreement. 5 6 (v) USE is not an "electric utility company" or a "holding company" or, to its knowledge, an "affiliate" of an "electric utility company" or a "subsidiary" of a "holding company" as such terms are defined by PUHCA. USE or its subsidiaries has duly self-certified or obtained certification from the Federal Energy Regulatory Commission that each of its cogeneration or small power production facilities is a Qualifying Facility. No more than 38% of the equity interests of any such facility is held by an electric utility or utilities or by an electric utility holding company or companies or any combination thereof. To USE's knowledge, no more than 8% of the voting power of USE's outstanding voting securities are held by an electric utility holding company or companies or any subsidiary thereof. 3. CONDITIONS TO CLOSING. A. CONDITIONS TO THE OBLIGATIONS OF BOTH PARTIES. The respective obligations of each party to effect this Agreement and the other transactions contemplated herein shall be subject to the satisfaction at or prior to the Closing of the following conditions, any or all of which may be waived, in whole or in part, to the extent permitted by applicable law: (a) No governmental entity or federal or state court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, executive order, decree, judgment, injunction or other order (whether temporary, preliminary or permanent), in any case which is in effect and which prevents or prohibits the transactions contemplated in this Agreement. (b) All consents, approvals and authorizations legally required to be obtained to consummate the transactions contemplated hereby have been obtained. (c) None of the Transaction Documents shall have been modified or terminated or challenged in court. B. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The obligations of the Company to effect the transactions contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of CES contained in this Agreement shall be true and correct in all material respects as of the Closing, except that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. CES shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing. (b) At or prior to the Closing, all filings necessary under federal and state securities laws to permit the issuance and delivery of the Shares in connection with the Agreement in compliance with such laws shall have been made, and any authorizations in connection therewith from all applicable securities regulatory authorities shall have been obtained. 6 7 (c) All conditions set forth in Sections 7.01 and 7.02 of the Merger Agreement shall have been satisfied except for (i) the conditions described in Section 7.01(e) and (ii) any condition set forth in such Sections 7.01 and 7.02 which is not satisfied due to a breach by the Company of any representation, warranty, covenant or obligation contained in any of the Transaction Documents (as defined in the Merger Agreement) to which the Company is a party. (d) The Cinergy Gasco Purchase and Sale Agreement shall have been executed by all parties thereto, in substantially the form of Exhibit 7.01(e-2), and all conditions to closing thereunder, other than the payment of the "Purchase Price" (as defined therein) pursuant to Section 8.4 therein shall have been satisfied or waived by the appropriate party thereunder. C. CONDITIONS TO THE OBLIGATIONS OF CES. The obligations of CES to effect the transaction contemplated herein are also subject to the following conditions: (a) Each of the representations and warranties of the Company and USE contained in this Agreement shall be true and correct in all material respects as of the Closing, except that those representations and warranties which address matters only as of a particular date shall remain true and correct in all material respects as of such date. Each of the Company and USE shall have performed or complied in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it on or prior to the Closing. (b) All conditions to closing set forth in Article VII of the Merger Agreement except for (i) the conditions described in Sections 7.01(e), 7.03(j) (to the extent a Change of Control (as defined in the Merger Agreement) is caused by Cinergy Corp., Cinergy Investments, Inc., CHSC, Cinergy Solutions, Inc., CES or any of their Affiliates (each a "Cinergy Entity") and 7.03(l) (to the extent CSHC fails to deliver its Guarantee (as defined in the Merger Agreement)) and 7.03(n) (to the extent Cinergy Corp. fails to take the actions or deliver the documents necessary to effectuate the partS of the Hancock Debt Service Reserve Arrangement (as defined in the Merger Agreement) as acceptable in form and substance to AJG , Cinergy Corp., the Company and USE and applicable to Cinergy Corp. or (ii) or any condition which is not satisfied due to a breach by a Cinergy Entity of any representation, warranty, covenant or obligation contained in any of the Transaction Documents (as defined in the Merger Agreement) to which it is a party shall have been satisfied and neither USE or the Company shall have waived or agreed to any subscription agreement modification of such conditions. (c) The Cinergy Gasco Purchase and Sale Agreement shall have been executed by all parties thereto (other than Cinergy Gasco Solutions, LLC), in substantially the form of Exhibit 7.01(e-2), and all conditions to closing thereunder, other than the payment of the "Purchase Price" (as defined therein) pursuant to Section 8.4 therein shall have been satisfied or waived by the appropriate party thereunder. (d) There shall not have been a "Change in Law" (as defined in the Cinergy Gasco Purchase and Sale Agreement). (e) The Closing (as defined in the Cinergy Gasco Purchase and Sale Agreement) shall have occurred by March 31, 2001. 7 8 4. CLOSING. The closing (the "CLOSING") of the transactions contemplated by this Agreement shall take place at the Effective Time (as defined in the Merger Agreement) and place as shall be agreed upon by CES and the Company. The parties agree that at Closing: A. The Company shall deliver to CES against delivery of the items listed in Section 4(B): (i) a certificate evidencing the Shares; (ii) a certificate of Good Standing of the Company from the Secretary of State of Delaware; (iii) a certificate of the resolutions of the Company's Board of Directors approving the transactions contemplated hereby; (iv) the Stockholders Agreement annexed hereto as Exhibit A duly executed by USE and the Company; (v) the Indemnification Agreement annexed hereto as Exhibit B duly executed by USE and the Company (vi) all agreements referred to in the Merger Agreement to which any Cinergy Entity is a party duly executed by the other parties thereto; and (vii) such other instruments as CES or its counsel shall reasonably deem necessary to consummate the transactions contemplated hereby. B. CES shall deliver to the Company against delivery of the items listed in Section 4(A): (i) the Subscription Price; (ii) a certificate of Good Standing of CES from the Secretary of State of Delaware; (iii) a certificate of the resolutions of CES' Board of Directors approving the transactions contemplated hereby; and (iv) the Stockholders Agreement annexed hereto as Exhibit A duly executed by CES; and (v) the Indemnification Agreement duly executed by CES 8 9 (vi) all agreements referred to in the Merger Agreement to which any Cinergy Entity is a party duly executed by the applicable Cinergy Entity; and (vii) such other instruments as the Company or its counsel shall reasonably deem necessary to consummate the transactions contemplated hereby. C. All proceedings taken and all documents executed and delivered by the parties at the Closing shall be deemed to have been taken and executed simultaneously, and no proceeding shall be deemed taken nor any document executed or delivered until all have been taken, executed and delivered. 5. FURTHER ASSURANCES. The parties hereto shall execute and deliver such agreements and arrangements which are customary in connection with transactions of this type. In addition to the actions specifically provided for elsewhere in this Agreement, each of the parties hereto shall use its best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things, reasonably necessary, proper or advisable under applicable laws, regulations and agreements to effectuate and make effective the transactions contemplated by this Agreement, including, without limitation, using its best efforts to obtain the consents and approvals, to enter into any amendatory agreements and to make the filings and applications necessary or desirable in order to effectuate the transactions contemplated by this Agreement. 6. ACCESS TO INFORMATION A. COOPERATION WITH RESPECT TO GOVERNMENT FILINGS AND REPORTS. CES and the Company agree to provide the other party (without cost to such other party) with access during reasonable business hours and for a reasonable business purpose and such cooperation and information, including, but not limited to, all records, books, contracts, instruments, computer data and other data, including all historical financial and tax information, and personnel with relevant knowledge of such information, as may be reasonably requested by the other in connection with the preparation or filing of any government report or other government filing, contemplated by this Agreement. Such cooperation and information shall include, without limitation, promptly forwarding copies of appropriate notices and forms or other communications received from or sent to any government authority to the appropriate party. Each party shall make its employees and facilities available during normal business hours and on reasonable prior notice shall provide explanation of any documents or information provided hereunder. B. COOPERATION WITH CONFIDENTIALITY. CES and the Company agree to use their reasonable best efforts to protect the confidentiality of all non-public information, attorney-client privileged information, attorney work product information and other privileged information concerning the other party which is disclosed pursuant to this Agreement and neither party shall waive any claim that information is privileged without the written consent of the other party. 9 10 7. HANCOCK DEBT SERVICE RESERVE ARRANGEMENT CES shall cause Cinergy Corp. to take all actions and deliver all documents necessary to effectuate the parts of the Hancock Debt Service Reserve Arrangement applicable to Cinergy Corp. acceptable in form and substance to AJG, Cinergy Corp., the Company and USE. 8. MISCELLANEOUS. A. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the representations or warranties set forth in Article 2 of this Agreement shall survive the Closing for a period of eighteen months following the Effective Time, subject to the terms of the Indemnification Agreement. B. NOTICES. All notices and other communications given or made pursuant hereto shall be sent by reputable overnight courier next day delivery and shall be deemed to have been duly given or made as of the date so sent for delivery, to the parties at the following addresses (or at such other address for a party as shall be specified by like changes of address): (a) If to the Company and USE: U.S. Energy Systems, Inc. One North Lexington Avenue 4th Floor White Plains, New York 10601 Attention: Goran Mornhed, President and Chief Operating Officer Fax: (914) 271-5315 With a copy to: U.S. Energy Systems, Inc. One North Lexington Avenue 4th Floor White Plains, New York 10601 Attention: Barbara Farr, Esq., General Counsel Fax: (718) 832-0263 (b) if to CES: Cinergy Energy Solutions, Inc. c/o Cinergy Solutions, Inc. 1000 East Main Street 10 11 Plainfield, IN 46168 Attention: M. Stephen Harkness, President and Chief Operating Officer Facsimile: 317-838-2090 with a copy to: Cinergy Corp. 221 East Fourth Street Cincinnati, Ohio 45201 Attention: Jerome A. Vennemann, Esq. Facsimile: 513-287-1363 C. HEADINGS. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. D. SEVERABILITY. The provisions of this Agreement shall be deemed severable and the invalidity or unenforceability of any provision shall not affect the validity and enforceability of the other provisions hereof. If any provision of this Agreement, or the application thereof to any person or entity or any circumstance, is invalid or unenforceable, (a) a suitable and equitable provision shall be substituted therefor in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid and unenforceable provision and (b) the remainder of this Agreement and the application of such provision to other persons, entities or circumstances shall not be affected by such invalidity or unenforceability, nor shall such invalidity or unenforceability affect the validity or enforceability of such provision, or the application thereof, in any other jurisdiction. E. ENTIRE AGREEMENT. This Agreement, the agreements referenced in the Merger Agreement to which USE, the Company and any Cinergy Entity are all parties, and the Disclosure Schedules constitute the entire agreement of the parties and supersede all prior agreements and undertakings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof and, except as otherwise expressly provided herein, are not intended to confer upon any other person any rights or remedies hereunder. F. MUTUAL DRAFTING. Each party hereto has participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties. G. GOVERNING LAW. This Agreement shall be governed by, and construed in accordance with, the Laws of the State of Delaware, regardless of the laws that might otherwise govern under applicable choice of law principles. H. RESERVED I. EXPENSES. Except as otherwise provided herein, each party shall bear its own fees and expenses incurred in connection with, relating to or arising out of the 11 12 negotiation, preparation, execution, delivery and performance of this Agreement, and the effectuation of the transactions contemplated hereby, including, without limitation, financial advisors', attorneys', accountants' and other professional fees and expenses. J. ASSIGNMENT; NO THIRD PARTY RIGHTS; SUCCESSORS AND ASSIGNS. This Agreement shall not be assigned by any party hereto or by operation of law or otherwise without the consent of the other party hereto. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and its successors and permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any rights, benefits or remedies of any nature whatsoever under or by reason of this Agreement. K. NO CONSEQUENTIAL DAMAGES. Except as otherwise provided in this Agreement, it is agreed that no party hereto will be responsible to the others for any indirect, special, incidental or consequential loss or damage whatsoever (including lost profits and opportunity costs) arising out of this Agreement. L. COUNTERPARTS. This Agreement may be executed in one or more counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. 12 13 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth hereinabove. CINERGY ENERGY SOLUTIONS, INC. By: /s/ M. Stephen Harkness ---------------------------------------- Name: M. Stephen Harkness -------------------------------------- Title: President and Chief Operating Officer -------------------------------------- USE ACQUISITION CORP. By: /s/ Goran Mornhed ---------------------------------------- Name: -------------------------------------- Title: -------------------------------------- U.S. ENERGY SYSTEMS, INC. By: /s/ Goran Mornhed ---------------------------------------- Name: -------------------------------------- Title: -------------------------------------- 13 EX-99.9 4 l88337aex99-9.txt EXHIBIT 99.9 1 Exhibit 99.9 AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT BY AND AMONG U.S. ENERGY SYSTEMS, INC., USE ACQUISITION CORP. AND CINERGY ENERGY SOLUTIONS, INC. ------------------------------ This Amendment No. 1 to the Subscription Agreement (the "Amendment") is made as of the 25th day of January , 2001 by and among U.S. Energy Systems, Inc. ("Parent"), USE Acquisition Corp. ("Merger Sub"), and Cinergy Energy Solutions, Inc. (the "Company"). Unless indicated otherwise, capitalized terms shall have the same meanings herein as they have in the Agreement (as defined below). W I T N E S S E T H ------------------- WHEREAS, Parent, Merger Sub and the Company previously entered into that certain Subscription Agreement dated as of November 28, 2000 (the "Agreement"); and WHEREAS, the Parent, Merger Sub and the Company now wish to amend the Agreement. NOW, THEREFORE, in consideration of $10.00 and other consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. Section 3.C.(e) of the Agreement is hereby amended by deleting the existing paragraph in its entirety and inserting in its place the following paragraph: The Closing (as defined in the Cinergy Gasco Purchase and Sale Agreement) shall have occurred by May 4, 2001. 1 2 2. Except as amended hereby, the Agreement is as hereby ratified and confirmed and, as so amended, remains in full force and effect on the date hereof. IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this Amendment to be executed as of the date first written above. U.S. ENERGY SYSTEMS, INC. By: /s/ Goran Mornhed --------------------------------- Name: Goran Mornhed Title: President and Chief Operating Officer USE ACQUISITION CORP. By: /s/ Goran Mornhed --------------------------------- Name: Goran Mornhed Title: President CINERGY ENERGY SOLUTIONS, INC. By: /s/ M. Stephen Harkness --------------------------------- Name: M. Stephen Harkness Title: President and Chief Operating Officer 2 -----END PRIVACY-ENHANCED MESSAGE-----