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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 16, 2000
Registration No. 333-02895
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
POST-EFFECTIVE AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
____________________
CLECO CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> 2030 Donahue Ferry Road <C>
Louisiana Pineville, Louisiana 71360-5226 72-1445282
(State or other jurisdiction of (318) 484-7400 (I.R.S. Employer
incorporation or organization) (Address, including zip code, and telephone number, Identification No.)
including area code, of registrant's
principal executive offices)
</TABLE>
MICHAEL P. PRUDHOMME
SECRETARY-TREASURER
CLECO CORPORATION
2030 DONAHUE FERRY ROAD
PINEVILLE, LOUISIANA 71360-5226
(318) 484-7400
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
____________________
No additional securities are to be registered, and registration fees were paid
upon the filing of the original Registration Statement No. 333-02895.
Therefore, no further registration fee is required.
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EXPLANATORY NOTE
This Post-Effective Amendment No. 1 (this "Amendment") to the
Registration Statement on Form S-3 (Reg. No. 333-02895) (the "Registration
Statement") is being filed pursuant to Rule 414 under the Securities Act of
1933, as amended (the "Securities Act"), by Cleco Corporation, a Louisiana
corporation formerly known as Cleco Holding Corporation (the "Company"), which
is the successor to the former Cleco Corporation ("Old Cleco"), following a
reorganization and share exchange effected on July 1, 1999 (the
"Reorganization") for the purpose of forming a public utility holding company.
In connection with the Reorganization, the Company became the wholly owning
parent company of Old Cleco, which was renamed Cleco Utility Group Inc., and the
former owners of Old Cleco common stock became the owners of common stock of the
Company. Prior to the Reorganization, the Company had only nominal assets and
liabilities. In connection with the Reorganization, the Company succeeded by
operation of law to all of the assets and liabilities of Old Cleco. The
Reorganization was approved by Old Cleco's shareholders at a meeting for which
proxies were solicited pursuant to section 14(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
Except as modified by this Amendment, the Company, by virtue of this
Amendment, expressly adopts the Registration Statement as its own registration
statement for all purposes of the Securities Act and the Exchange Act.
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PART II
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 83 of the Business Corporation Law of the State of Louisiana
(the "LBCL") provides that a corporation may indemnify any person against whom
an action, suit or proceeding is brought or threatened, by reason of the fact
that he is or was a director, officer, employee or agent of the corporation or
was serving at the request of the corporation as a director, officer, employee
or agent of another business, corporation, partnership or other enterprise,
against expenses, including attorneys' fees, judgments, fines and amounts paid
in settlement actually and reasonably incurred by him in connection with any
such action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. In the case of actions by
or in the right of the corporation, the indemnity is limited to expenses,
including attorneys' fees and amounts paid in settlement not exceeding, in the
judgment of the board of directors, the estimated expense of litigating the
action to conclusion, actually and reasonably incurred in connection with a
defense or settlement; provided that no indemnity may be made in respect of any
matter in which the person shall have been adjudged by a court of competent
jurisdiction, after exhaustion of all appeals therefrom, to be liable for
willful or intentional misconduct in performance of his duty to the corporation
unless and only to the extent that the court determines upon application that
such person is fairly and reasonably entitled to such indemnity. To the extent a
person has been successful on the merits or otherwise in defense of any action,
the statute provides that he shall be indemnified against expenses actually and
reasonably incurred by him in connection therewith. Section 83 also provides
for, among other things, procedures for indemnification; advancement of
expenses; non-exclusivity of the provisions of Section 83 with respect to
indemnification and advancement of expenses; and insurance, including self-
insurance, with respect to liabilities incurred by directors, officers and
others.
Article IV of the Bylaws of the Company provides that the Company
shall indemnify any person who was or is, or is threatened to be made, a party
to or otherwise involved in any pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, administrative hearing or
other proceeding, whether civil, criminal, administrative or investigative (any
such threatened, pending or completed proceeding being hereinafter called a
"Proceeding") by reason of the fact that he is or was a director, officer,
employee or agent of the Company or is or was serving at the request of the
Company as a director, officer, employee or agent of another business, foreign
or nonprofit corporation, partnership, joint venture, trust, employee benefit
plan or other enterprise (whether the basis of his involvement in such
Proceeding is alleged action in an official capacity or in any other capacity
while serving as such), to the fullest extent permitted by applicable law, from
and against expenses, including attorney's fees, judgments, fines, amounts paid
or to be paid in settlement, liability and loss, ERISA excise taxes, actually
and reasonably incurred by him or on his behalf or suffered in connection with
such Proceeding or any claim, issue or matter therein; provided, however, that,
subject to certain exceptions set forth therein, the Company shall indemnify any
such person claiming indemnity in connection with a Proceeding initiated by such
person only if such Proceeding was authorized by the board of directors.
The Bylaws further provide that (i) the Company shall from time to
time pay, in advance of final disposition, all Expenses (as therein defined)
incurred by or on behalf of any person claiming indemnity thereunder in respect
of any Proceeding, (ii) the right to indemnification provided therein is a
contract right and no amendment, alteration or repeal of the Bylaws shall
restrict the indemnification rights granted by the Bylaws as to any person
claiming indemnification with respect to acts, events and circumstances that
occurred, in whole or in part, before such amendment, alteration or repeal,
(iii) any such indemnification may continue as to any person who has ceased to
be a director, officer, employee or agent and may inure to the benefit of the
heirs, executors and legal representative of such person and (iv) the right of
indemnification and to receive advancement of expenses contemplated by Section 1
of Article IV of the Bylaws are not exclusive of any other rights to which any
person may at any time be otherwise entitled, provided that such other
indemnification may not apply to a person's willful or intentional misconduct.
The Bylaws also set forth certain procedural and evidentiary standards
applicable to the enforcement of a claim thereunder.
The Bylaws also provide that the Company (i) may procure or maintain
insurance or other similar arrangement, at its expense, to protect itself and
any director, officer, employee or agent of the Company or other corporation,
partnership, joint venture, trust or other enterprise against any expense,
liability or loss asserted against or incurred by such person, whether or not
the Company would have the power to indemnify such person against
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such expense or liability and (ii) shall indemnify officers and directors of the
Company to the extent they are not covered by the insurance, whether or not such
persons would otherwise be entitled to indemnification under the Bylaws, as
provided in policies covering liabilities up to $85 million incurred by
directors and officers in their capacities as such, and has fiduciary and
employee benefit liability insurance policies covering liabilities up to $65
million incurred by directors, officers and certain other employees of the
Company in connection with the administration of the Company's employee benefit
plans.
Section 24(C)(4) of the LBCL provides that a corporation may eliminate
or limit the liability of a director or officer to the corporation or its
shareholders for monetary damages for breach of fiduciary duty, except for
liability (i) for any breach of the director's or officer's duty of loyalty to
the corporation or its shareholders, (ii) for acts or omissions not in good
faith or that involve intentional misconduct or a knowing violation of law,
(iii) under Section 92(D) of the LBCL relating to unlawful dividends and other
unlawful distributions, payments or returns of assets and (iv) for any
transaction from which the director or officer derived an improper personal
benefit. The Company's Articles of Incorporation include a provision consistent
with Section 24(C)(4) of the LBCL. Such provision further provides that (a) if
the LBCL is subsequently amended to authorize action further eliminating or
limiting a director's or officer's liability, such liability will be eliminated
or limited to the fullest extent permitted by such law, as so amended, and (b)
if such provision limiting or eliminating liability is repealed or modified, the
right or protection of a director or officer of the Company existing at the time
of such repeal or modification will not be affected thereby.
ITEM 16. EXHIBITS
See the attached Exhibit Index that follows the Signature Page.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant 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 Post-
Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Pineville,
State of Louisiana, on this 16th day of March, 2000.
CLECO CORPORATION
By: /s/ Gregory L. Nesbitt
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Gregory L. Nesbitt
Chairman and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Michael P. Prudhomme and Kathleen F.
Nolen, and each of them, his or her true and lawful attorneys-in-fact and agents
with power to act with or without the other, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign any or all amendments (including post-effective
amendments) to the Registration Statement and this Post-Effective Amendment
No. 1 to the Registration Statement, and all instruments necessary or incidental
thereto, to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents and each of them full power and authority to
do and perform every act whatsoever necessary or desirable to be done in and
about the premises, as fully and to all intents and purposes as they might or
could do in person, hereby ratifying and confirming all that said attorneys-in-
fact and agents or their substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 1 to the Registration Statement has been signed by the
following persons in the capacities and on the dates indicated.
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<S> <C> <C>
/s/ Gregory L. Nesbitt Chairman, Chief Executive March 16, 2000
- ------------------------------------- Officer and Director
Gregory L. Nesbitt (Principal Executive Officer)
/s/ Thomas J. Howlin Senior Vice President--Financial March 16, 2000
- ------------------------------------- Services and Chief Financial Officer
Thomas J. Howlin (Principal Financial Officer and
Principal Accounting Officer)
Director
- -------------------------------------
Sherian G. Cadoria
/s/ Richard B. Crowell
- ------------------------------------- Director March 14, 2000
Richard B. Crowell
/s/ David M. Eppler
- ------------------------------------- Director March 16, 2000
David M. Eppler
- ------------------------------------- Director
J. Patrick Garrett
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ F. Ben James, Jr.
- ------------------------------------- Director March 15, 2000
F. Ben James, Jr.
/s/ Elton R. King
- ------------------------------------- Director March 14, 2000
Elton R. King
/s/ A. DeLoach Martin, Jr.
- ------------------------------------- Director March 14, 2000
A. DeLoach Martin, Jr.
/s/ Robert T. Ratcliff
- ------------------------------------- Director March 16, 2000
Robert T. Ratcliff
/s/ Edward M. Simmons
- ------------------------------------- Director March 14, 2000
Edward M. Simmons
/s/ William H. Walker, Jr.
- ------------------------------------- Director March 16, 2000
William H. Walker, Jr.
</TABLE>
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EXHIBIT INDEX
Exhibit
No. Description
- ------- -----------
2.1* -- Plan of Reorganization and Share Exchange Agreement
dated as of June 30, 1999 between Cleco Corporation and
Cleco Holding Corporation (Incorporated herein by this
reference to Annex C to Cleco Corporation's
Registration Statement on Form S-4 (Registration No.
333-71643))
4.1** -- Form of Indenture
4.2** -- Form of Medium-Term Note (included in Exhibit 4.1)
5.1 -- Opinion of Baker Botts L.L.P.
23.1* -- Consent of PricewaterhouseCoopers LLP (Incorporated
herein by this reference to Exhibit 23 to Cleco
Corporation's Form 10-K for the fiscal year ended
December 31, 1998)
23.2* -- Consent of Baker Botts L.L.P. (included in Exhibit 5.1)
24.1 -- Powers of Attorney (included on the signature page of
this Post-Effective Amendment No. 1)
________________________________
* Incorporated herein by reference as indicated.
** To be filed by amendment or by a report on Form 8-K pursuant to Regulation
S-K, Item 601(b).
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EXHIBIT 5
[Letterhead of Baker Botts L.L.P.]
March 16, 2000
Cleco Corporation
2030 Donahue Ferry Road
Pineville, Louisiana 71360-5226
Ladies and Gentlemen:
We have acted as counsel for Cleco Corporation, a Louisiana
corporation (the "Company"), in connection with the preparation of the Post-
Effective Amendment No. 1 to Registration Statement on Form S-3 (the
"Registration Statement"), filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), on March 16, 2000 (Registration No. 333-02895). On July 1,
1999, the Company consummated a share exchange whereby the Company became the
owner of all of the outstanding capital stock of Cleco Utility Group Inc.
(formerly known as Cleco Corporation) ("Utility Group"). Under the terms of the
share exchange, holders of common stock and two series of preferred stock of
Utility Group became holders of stock of the Company. Pursuant to Rule 414
promulgated under the Securities Act, the Company is the "successor issuer" of
Utility Group. The Registration Statement registers the proposed issuance and
sale from time to time of up to $90,000,000 in aggregate principal amount of the
Company's unsecured medium-term notes (the "Remaining MTNs").
In our capacity as your counsel in the connection referred to above,
we have examined the Articles of Incorporation and Bylaws of the Company, each
as amended to date, and the Indenture, pursuant to which the Remaining MTNs will
be issued and governed, in the form to be filed as an exhibit to the
Registration Statement (the "Indenture"), and have examined the originals, or
copies certified or otherwise identified, of corporate records of the Company,
including minute books of the Company as furnished to us by the Company,
certificates of public officials and of representatives of the Company, statutes
and other instruments or documents, as a basis for the opinions hereinafter
expressed. In giving such opinions, we have relied upon certificates of
officers of the Company with respect to the accuracy of the material factual
matters contained in such certificates. In making our examination, we have
assumed that all signatures on documents examined by us are genuine, that all
documents submitted to us as originals are authentic and that
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all documents submitted to us as certified or photostatic copies conform with
the original copies of such documents.
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
With respect to each series of Remaining MTNs, when (i) the Indenture
and the supplemental indenture relating to such series of Remaining MTNs have
been duly authorized and validly executed and delivered by each of the parties
thereto; (ii) the Indenture has been duly qualified under the Trust Indenture
Act of 1939, as amended (the "Trust Indenture Act"); (iii) the Board of
Directors of the Company (the "Board") has taken all necessary corporate action
to approve and establish the terms of such series of Remaining MTNs, to approve
the issuance thereof and the terms of the offering thereof and related matters;
and (iv) such Remaining MTNs have been duly executed, authenticated, issued and
delivered in accordance with the provisions of the Indenture and the
supplemental indenture relating to such series of Remaining MTNs and the
provisions of the applicable definitive purchase, underwriting or similar
agreement approved by the Board upon payment of the consideration therefor
provided for therein, such Remaining MTNs will constitute legal, valid and
binding obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforceability thereof is subject to
the effect of (x) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws relating to or affecting creditors' rights generally
and (y) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law).
The opinions set forth above are limited in all respects to matters of
the contract law of the State of New York and the federal securities laws, in
each case as in effect on the date hereof. At your request, this opinion is
being furnished to you for filing as Exhibit 5 to the Registration Statement.
Very truly yours,
Baker Botts L.L.P.
MSS/TST/JKB
