<PAGE>
As Filed with the Securities and Exchange Commission on November 17, 2000
Registration No. 333-49920
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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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<TABLE>
<S> <C> <C>
CP&L Energy, Inc. North Carolina 56-2155481
CP&L Energy Capital Trust I Delaware Applied for
CP&L Energy Capital Trust II Delaware Applied for
CP&L Energy Capital Trust III Delaware Applied for
(Exact name of registrant (State of incorporation) (I.R.S. Employer
as specified in its charter) Identification No.)
</TABLE>
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(919) 546-6111
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
WILLIAM CAVANAUGH III
Chairman, President and Chief Executive Officer
ROBERT B. McGEHEE, Esq.
Executive Vice President and General Counsel
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(919) 546-6111
(Names and addresses, including zip codes, and telephone numbers, including
area codes, of agents for service)
It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
TIMOTHY S. GOETTEL, ESQ. RICHARD L. HARDEN, ESQ.
WELTON O. SEAL, JR., ESQ. Winthrop, Stimson, Putnam & Roberts
Hunton & Williams One Battery Park Plaza
421 Fayetteville Street Mall New York, New York 10004-1490
Raleigh, North Carolina 27601 (212) 858-1228
(919) 899-3094
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Approximate date of commencement of proposed sale to the public: From time
to time as market conditions warrant after the registration statement becomes
effective.
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 to be 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, 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, please 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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<TABLE>
<CAPTION>
Proposed Proposed
Amount Maximum Maximum Amount of
Title of each Class of to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit* Offering Price(1) Fee
----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Senior Debt Securities.................... (1) (2) (1) (2) $
----------------------------------------------------------------------------------------------------------
Junior Subordinated Debentures............ (1) (2) (1) (2)
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Trust Preferred Securities and Related
Guarantees(3)............................ (1) (2) (1) (2)
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Common Stock (without par value)(4)....... (1) (2) (1) (2)
----------------------------------------------------------------------------------------------------------
Preferred Stock........................... (1) (2) (1) (2)
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Stock Purchase Contracts.................. (1) (2) (1) (2)
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Stock Purchase Units(5)................... (1) (2) (1) (2)
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Total.................................... $4,000,000,000 $4,000,000,000(6) $1,056,000(7)
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</TABLE>
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(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$4,000,000,000. If any such securities are issued at an original issue
discount, then the aggregate initial offering price as so discounted shall
not exceed $4,000,000,000, notwithstanding that the stated principal
amount of such securities may exceed such amount.
(2) Omitted pursuant to General Instruction II.D. of Form S-3.
(3) No separate consideration will be received for the Guarantees by CP&L
Energy, Inc.
(4) Includes an indeterminate number of shares of Common Stock to be issued by
CP&L Energy, Inc. upon settlement of the Stock Purchase Contracts.
(5) Each Stock Purchase Unit of CP&L Energy, Inc. consists of (a) a Stock
Purchase Contract, under which the holder, upon settlement, will purchase
an indeterminate number of shares of Common Stock of CP&L Energy, Inc. and
(b) a beneficial interest in either Debt Securities, Trust Preferred
Securities, Preferred Stock or debt obligations of third parties,
including U.S. Treasury securities, purchased with the proceeds from the
sale of the Stock Purchase Units. Each beneficial interest will be pledged
to secure the obligation of such holder to purchase such shares of Common
Stock. No separate consideration will be received for the Stock Purchase
Contracts or the related beneficial interests.
(6) The registrants intend to increase the size of the offering and register
the additional securities by means of a pre-effective amendment.
(7) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933. The registrants paid $132,000 of the registration
fee on November 14, 2000.
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The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
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.
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<PAGE>
Subject to completion dated November 17, 2000
Prospectus
[CP&L Energy, Inc. Logo]
CP&L Energy, Inc.
$4,000,000,000
Senior Debt Securities
Junior Subordinated Debentures
Trust Preferred Securities and Related Guarantees
Common Stock
Preferred Stock
Stock Purchase Contracts
Stock Purchase Units
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We will provide specific terms of these securities, and the manner in which
they are being offered, in supplements to this prospectus. You should read this
prospectus and any supplement carefully before you invest. We cannot sell any
of these securities unless this prospectus is accompanied by a prospectus
supplement.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if
this prospectus is truthful or complete. Any representation to the contrary is
a criminal offense.
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The information in this prospectus is incomplete 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 it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
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This prospectus is dated , 2000
<PAGE>
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the
Securities and Exchange Commission, or SEC, utilizing a "shelf" registration
process. Under this shelf registration process, we may sell any combination of
the securities described in this prospectus in one or more offerings up to a
total dollar amount of $4,000,000,000. We may offer any of the following
securities: Senior Debt Securities, Junior Subordinated Debentures, Trust
Preferred Securities and related Guarantees, Common Stock, Preferred Stock,
Stock Purchase Contracts and Stock Purchase Units.
This prospectus provides you with a general description of the securities we
may offer. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that
offering. Any prospectus supplement may also add, update or change information
contained in this prospectus. The registration statement we filed with the SEC
includes exhibits that provide more detail on descriptions of the matters
discussed in this prospectus. You should read this prospectus and the related
exhibits filed with the SEC and any prospectus supplement together with
additional information described under the heading "WHERE YOU CAN FIND MORE
INFORMATION."
OUR COMPANY
CP&L Energy, Inc. ("CP&L Energy") was incorporated in August 1999 under the
laws of the State of North Carolina and is the holding company for Carolina
Power & Light Company and North Carolina Natural Gas Corporation. Carolina
Power & Light Company is a full-service energy provider primarily engaged in
the generation, transmission, distribution and sale of electricity in portions
of North Carolina and South Carolina. North Carolina Natural Gas Corporation is
engaged in the transmission, distribution and sale of natural gas in portions
of North Carolina.
We have agreed to acquire Florida Progress Corporation ("Florida Progress") in
a transaction scheduled to close in the fourth quarter of 2000. Florida
Progress's primary subsidiary is Florida Power Corporation ("Florida Power").
Florida Power was incorporated in Florida in 1899 and is an operating utility
engaged in the generation, purchase, transmission, distribution and sale of
electricity primarily in the State of Florida. Florida Progress' diversified
operations consist primarily of Electric Fuels Corporation ("Electric Fuels").
Formed in 1976, Electric Fuels has three main businesses: Rail Services, Inland
Marine Transportation, and Energy and Related Services. Through these units,
Electric Fuels operates one of the largest integrated providers of rail
services in the United States, owns an efficient river barge and towboat fleet,
and has coal-mining operations and terminaling facilities.
Our principal executive offices are located at 411 Fayetteville Street,
Raleigh, North Carolina 27601-1748, telephone 919-546-6111.
THE TRUSTS
Each of CP&L Energy Capital Trust I, CP&L Energy Capital Trust II and CP&L
Energy Capital Trust III, each of which we refer to in this prospectus as a
"Trust," is a statutory business trust newly formed under Delaware law by us,
as trust sponsor, and Bank One Delaware, Inc., who will serve as trustee in the
State of Delaware for the purpose of complying with the provisions of the
Delaware Business Trust Act. The original trust agreement for each of the
Trusts will be amended and restated substantially in the form filed as an
exhibit to the registration statement, effective when securities of the Trusts
are initially issued. The amended and restated trust agreement, which we will
refer to in this prospectus as the "Trust Agreement," for each of the Trusts
will be qualified as an indenture under the Trust Indenture Act of 1939.
Each Trust exists for the exclusive purposes of
. issuing two classes of trust securities--Trust Preferred Securities and
Trust Common Securities (collectively, the "Trust Securities")--which
together represent undivided beneficial interests in the assets of the
Trust;
. investing the gross proceeds of the Trust Securities in our Junior
Subordinated Debentures;
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<PAGE>
. making distributions; and
. engaging in only those other activities necessary, advisable or incidental
to the purposes listed above.
The Junior Subordinated Debentures will be the sole assets of each Trust, and
our payments under the Junior Subordinated Debentures will be the sole revenue
of each Trust. No separate financial statements of any Trust are included in
this prospectus. We consider that these financial statements would not be
material to holders of the Trust Preferred Securities because no Trust has any
independent operations and the purposes of the Trusts are as described above.
We do not expect that any Trust will be filing annual, quarterly or special
reports with the SEC.
The principal place of business of each of the Trusts will be c/o CP&L Energy,
Inc., 411 Fayetteville Street, Raleigh, North Carolina 27601-1748.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the periods indicated is as
follows:
<TABLE>
<CAPTION>
For the Twelve Months Ended December 31
---------------------------------------
1999 1998 1997 1996 1995
---- ----- ----- ----- -----
<S> <C> <C> <C> <C>
4.12x 4.38x 4.17x 4.12x 3.67x
<CAPTION>
For the Twelve Months Ended September 30
----------------------------------------
2000 1999
----- -----
<S> <C> <C> <C> <C>
4.73x 3.99x
----- -----
</TABLE>
These computations include us and our subsidiaries, and certain other companies
in which we hold an equity interest. We define "earnings" as net income before
income taxes plus fixed charges less allowances for funds used during
construction. We define "fixed charges" as the sum of interest on long-term
debt, other interest, amortization of debt discount and expense, and preference
security dividend requirements of consolidated subsidiaries.
APPLICATION OF PROCEEDS
Unless we state otherwise in any prospectus supplement, we will use the net
proceeds from the sale of the offered securities:
. to refinance debt incurred in connection with our acquisition of Florida
Progress;
. to finance our subsidiaries' ongoing construction and maintenance programs;
. to redeem, repurchase, repay, or retire outstanding indebtedness;
. to finance future acquisitions of other entities or their assets; and
. for other general corporate purposes.
In the event that any proceeds are not immediately applied, we may temporarily
invest them in U.S., state or municipal government or agency obligations,
commercial paper, bank certificates of deposit, or repurchase agreements
collateralized by U.S. government or agency obligations, or we may deposit the
proceeds with banks.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and special reports, proxy statements
and other information with the SEC. Our SEC filings are available to the public
over the Internet at the SEC's web site at http://www.sec.gov. You may also
read and copy any document we file at the SEC's public reference rooms in
Washington, D.C., New York, New York and Chicago, Illinois. The SEC's public
reference room in Washington is located at 450 5th Street, N.W., Washington,
D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on
the public reference rooms.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC 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 information that we file later with the SEC will
automatically update and supersede the information in this prospectus. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of
3
<PAGE>
1934 until we sell all of the securities being registered. As a result of the
recent completion of the holding company restructuring of CP&L Energy and
Carolina Power & Light Company, we include in the list of incorporated
documents those of Carolina Power & Light Company.
Carolina Power & Light Company
. Annual Report on Form 10-K for the year ended December 31, 1999.
. Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 2000.
. Current Report on Form 8-K filed April 20, 2000.
. Current Report on Form 8-K filed June 21, 2000.
. Current Report on Form 8-K filed July 18, 2000.
. Current Report on Form 8-K filed September 1, 2000.
. Current Report on Form 8-K filed October 31, 2000.
CP&L Energy
. Annual Report on Form 10-K for the year ended December 31, 1999.
. Quarterly Reports on Form 10-Q for the quarters ended March 31, June 30 and
September 30, 2000.
. Current Report on Form 8-K filed June 21, 2000.
. Current Report on Form 8-K filed September 1, 2000.
. Current Report on Form 8-K filed September 20, 2000.
. Current Report on Form 8-K filed October 31, 2000.
. The description of our Common Stock included under the heading "Description
of Holdings Capital Stock" in our Registration Statement on Form S-4 (File
No. 333-86243), dated August 31, 1999.
You may request a copy of these filings at no cost by writing or calling us at
the following address:
CP&L Energy, Inc.
Shareholder Relations
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Telephone: (800) 662-7232
You should rely only on the information incorporated by reference or provided
in this prospectus or any prospectus supplement. We have not authorized anyone
else to provide you with different information. We are not making any offer of
these securities in any state where the offer is not permitted. You should not
assume that the information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of those documents.
4
<PAGE>
DESCRIPTION OF DEBT SECURITIES
The term Debt Securities includes the Senior Debt Securities and the Junior
Subordinated Debentures. We will issue the Senior Debt Securities in one or
more series under one or more Senior Indentures between us and a trustee we
will identify. We will issue the Junior Subordinated Debentures in one or more
series under one or more Subordinated Indentures between us and a trustee we
will identify. The Senior Indentures and the Subordinated Indentures are called
Debt Securities Indentures. We have summarized the Debt Securities Indentures
below. The term Debt Securities Trustee refers to the Trustee under a Debt
Securities Indenture. This prospectus describes certain general terms of the
Debt Securities. When we offer to sell a particular series of Debt Securities,
we will describe the specific terms of that series in a prospectus supplement.
The form of Debt Securities Indenture is filed as an exhibit to the
registration statement of which this prospectus is a part. You should read the
form of Debt Securities Indenture for provisions that may be important to you.
In the summary below, we have included references to applicable section numbers
of the form of Debt Securities Indenture so that you can easily locate these
provisions.
General
The Senior Debt Securities offered by this prospectus will be our direct
unsecured general obligations and will rank equally with all of our other
senior and unsubordinated debt. The Junior Subordinated Debentures offered by
this prospectus will be our unsecured obligations and are junior in right of
payment to our Senior Indebtedness, as described below under the heading
"ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES--Subordination." The
information that we are providing you in this prospectus concerning the Debt
Securities Indentures and related documents is only a summary of the
information provided in those documents. You should consult the Debt Securities
themselves, the Debt Securities Indentures, any supplemental indentures and
other related documents for more complete information on the Debt Securities.
These documents appear as exhibits to the registration statement of which this
prospectus is a part, or will appear as exhibits to a Current Report on Form 8-
K, which we will file later, and which will be incorporated by reference into
this prospectus.
Because we are a holding company that conducts all of its operations through
our subsidiaries, our ability to meet our obligations under the Debt Securities
is dependent on the earnings and cash flows of those subsidiaries and the
ability of those subsidiaries to pay dividends or to advance or repay funds to
us. Holders of Debt Securities will generally have a junior position to claims
of creditors of our subsidiaries, including trade creditors, debtholders,
secured creditors, taxing authorities, guarantee holders and any holders of
preferred stock. In addition to trade debt, all of our operating subsidiaries
have ongoing corporate debt programs used to finance their business activities.
As of September 30, 2000, our subsidiaries had approximately $3.489 billion of
outstanding debt. Unless otherwise specified in a prospectus supplement, the
Debt Securities Indentures will not limit the amount of indebtedness or
preferred stock issuable by our subsidiaries.
Unless the applicable prospectus supplement states otherwise, the covenants
contained in the applicable indenture will not afford holders of Debt
Securities protection in the event we have a change in control or are involved
in a highly-leveraged transaction.
Provisions of a Particular Series
You should consult the prospectus supplement relating to any particular
series of Debt Securities for the following information:
. the title of the Debt Securities;
. any limit on aggregate principal amount of the Debt Securities or the
series of which they are a part;
. the date on which the principal of the Debt Securities will be payable;
5
<PAGE>
. the rate, including the method of determination if applicable, at which
the Debt Securities will bear interest, if any; and
-- the date from which any interest will accrue;
-- the dates on which we will pay interest; and
-- the record date for any interest payable on any interest payment date;
. the place where
-- the principal of, premium, if any, and interest on the Debt Securities
will be payable;
-- you may register transfer of the Debt Securities;
-- you may exchange the Debt Securities; and
-- you may serve notices and demands upon us regarding the Debt
Securities;
. the security registrar for the Debt Securities and whether the principal
of the Debt Securities is payable without presentment or surrender of
them;
. the terms and conditions upon which we may elect to redeem any Debt
Securities;
. the terms and conditions upon which the Debt Securities must be redeemed
or purchased due to our obligations pursuant to any sinking fund or
other mandatory redemption provisions, or at the holder's option,
including any applicable exceptions to notice requirements;
. the denominations in which we may issue Debt Securities;
. the manner in which we will determine any amounts payable on the Debt
Securities that are to be determined with reference to an index or other
fact or event ascertainable outside the applicable indenture;
. the currency, if other than United States currency, in which payments on
the Debt Securities will be payable;
. the terms according to which elections can be made by us or the holder
regarding payments on the Debt Securities in currency other than the
currency in which the Debt Securities are stated to be payable;
. the portion of the principal amount of the Debt Securities payable upon
declaration of acceleration of their maturity;
. if payments are to be made on the Debt Securities in securities or other
property, the type and amount of the securities and other property or
the method by which the amount shall be determined;
. the terms applicable to any rights to convert Debt Securities into or
exchange them for other of our securities or those of any other entity;
. if we issue Debt Securities as global securities,
-- any limitations on transfer or exchange rights or the right to obtain
the registration of transfer;
-- any limitations on the right to obtain definitive certificates for the
Debt Securities; and
-- any other matters incidental to the Debt Securities;
. whether we are issuing the Debt Securities as bearer securities;
. any limitations on transfer or exchange of Debt Securities or the right
to obtain registration of their transfer, and the terms and amount of
any service charge required for registration of transfer or exchange;
. any exceptions to the provisions governing payments due on legal
holidays, or any variations in the definition of business day with
respect to the Debt Securities;
6
<PAGE>
. any credit enhancement applicable to the Debt Securities;
. any addition to the events of default applicable to any Debt Securities
and any additions to our covenants for the benefit of the holders of the
Debt Securities; and
. any other terms of the Debt Securities not in conflict with the
provisions of the applicable Debt Securities Indenture.
For more information, see Section 301 of the form of Debt Securities Indenture.
Debt Securities may be sold at a substantial discount below their principal
amount. You should consult the applicable prospectus supplement for a
description of certain special United States Federal income tax considerations
that may apply to Debt Securities sold at an original issue discount or
denominated in a currency other than dollars.
Form, Exchange and Transfer
Unless the applicable prospectus supplement states otherwise, we will issue
Debt Securities only in fully registered form without coupons and in
denominations of $1,000 and integral multiples of that amount. For more
information, see Sections 201 and 302 of the form of Debt Securities Indenture.
Holders may present Debt Securities for exchange or for registration of
transfer, duly endorsed or accompanied by a duly executed instrument of
transfer, at the office of the security registrar or at the office of any
transfer agent we may designate. Exchanges and transfers are subject to the
terms of the applicable indenture and applicable limitations for global
securities. We may designate ourselves the security registrar. No charge will
be made for any registration of transfer or exchange of Debt Securities, but we
may require payment of a sum sufficient to cover any tax or other governmental
charge that the holder must pay in connection with the transaction. Any
transfer or exchange will become effective upon the security registrar or
transfer agent, as the case may be, being satisfied with the documents of title
and identity of the person making the request. For more information, see
Section 305 of the form of Debt Securities Indenture.
The applicable prospectus supplement will state the name of any transfer
agent, in addition to the security registrar initially designated by us, for
any Debt Securities. We may at any time designate additional transfer agents or
withdraw the designation of any transfer agent or make a change in the office
through which any transfer agent acts. We must, however, maintain a transfer
agent in each place of payment for the Debt Securities of each series. For more
information, see Section 602 of the form of Debt Securities Indenture.
We will not be required to
. issue, register the transfer of, or exchange any Debt Securities or any
tranche of any Debt Securities during a period beginning at the opening
of business 15 days before the day of mailing of a notice of redemption
of any Debt Securities called for redemption and ending at the close of
business on the day of mailing; or
. register the transfer of, or exchange any Debt Securities selected for
redemption except the unredeemed portion of any Debt Securities being
partially redeemed.
For more information, see Section 305 of the form of Debt Securities Indenture.
Payment and Paying Agents
Unless the applicable prospectus supplement states otherwise, we will pay
interest on a Debt Security on any interest payment date to the person in whose
name the Debt Security is registered at the close of business on the regular
record date for the interest payment. For more information, see Section 307 of
the form of Debt Securities Indenture.
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<PAGE>
Unless the applicable prospectus supplement provides otherwise, we will pay
principal and any premium and interest on Debt Securities at the office of the
paying agent whom we will designate for this purpose. Unless the applicable
prospectus supplement states otherwise, the corporate trust office of the Debt
Securities Trustee in New York City will be designated as our sole paying agent
for payments with respect to Debt Securities of each series. Any other paying
agents initially designated by us for the Debt Securities of a particular
series will be named in the applicable prospectus supplement. We may at any
time add or delete paying agents or change the office through which any paying
agent acts. We must, however, maintain a paying agent in each place of payment
for the Debt Securities of a particular series. For more information, see
Section 602 of the form of Debt Securities Indenture.
All money we pay to a paying agent for the payment of the principal and any
premium or interest on any Debt Security that remains unclaimed at the end of
two years after payment is due will be repaid to us. After that date, the
holder of that Debt Security may look only to us for these payments. For more
information, see Section 603 of the form of Debt Securities Indenture.
Redemption
You should consult the applicable prospectus supplement for any terms
regarding optional or mandatory redemption of Debt Securities. Except for the
provisions in the applicable prospectus supplement regarding Debt Securities
redeemable at the holder's option, Debt Securities may be redeemed only upon
notice by mail not less than 30 nor more than 60 days prior to the redemption
date. Further, if less than all of the Debt Securities of a series, or any
tranche of a series, are to be redeemed, the Debt Securities to be redeemed
will be selected by the method provided for the particular series. In the
absence of a selection provision, the Debt Securities Trustee will select a
fair and appropriate method of random selection. For more information, see
Sections 403 and 404 of the form of Debt Securities Indenture.
A notice of redemption we provide may state:
. that redemption is conditioned upon receipt by the paying agent on or
before the redemption date of money sufficient to pay the principal of
and any premium and interest on the Debt Securities; and
. that if the money has not been received, the notice will be ineffective
and we will not be required to redeem the Debt Securities.
For more information, see Section 404 of the form of Debt Securities Indenture.
Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into any other person, nor may we
transfer or lease substantially all of our assets and property to any person,
unless:
. the corporation formed by the consolidation or into which we are merged,
or the person that acquires by conveyance or transfer, or that leases,
substantially all of our property and assets
-- is organized and validly existing under the laws of any domestic
jurisdiction; and
-- expressly assumes our obligations on the Debt Securities and under the
applicable indentures;
. immediately after the transaction becomes effective, no event of
default, and no event that would become an event of default, shall have
occurred and be continuing; and
. we have delivered to the Debt Securities Trustee an officer's
certificate and opinion of counsel as provided in the applicable
indentures.
For more information, see Section 1101 of the form of Debt Securities
Indenture.
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<PAGE>
Events of Default
"Event of default" under the applicable indenture with respect to Debt
Securities of any series means any of the following:
. failure to pay any interest due on Debt Securities of that series within
30 days;
. failure to pay principal or premium when due on any Debt Security of
that series;
. breach of or failure to perform any other covenant or warranty in the
applicable indenture with respect to Debt Securities of that series for
60 days (subject to extension under certain circumstances for another
120 days) after we receive notice from the Debt Securities Trustee, or
we and the Debt Securities Trustee receive notice from the holders of at
least 33% in principal amount of the Debt Securities of that series
outstanding under the applicable indenture according to the provisions
of the applicable indenture;
. certain events of bankruptcy, insolvency or reorganization; and
. any other event of default set forth in the applicable prospectus
supplement.
For more information, see Section 801 of the form of Debt Securities Indenture.
An event of default with respect to a particular series of Debt Securities
does not necessarily constitute an event of default with respect to the Debt
Securities of any other series issued under the applicable indenture.
If an event of default with respect to a particular series of Debt
Securities occurs and is continuing, either the Debt Securities Trustee or the
holders of at least 33% in principal amount of the outstanding Debt Securities
of that series may declare the principal amount of all of the Debt Securities
of that series to be due and payable immediately. If the Debt Securities of
that series are discount securities or similar Debt Securities, only the
portion of the principal amount as specified in the applicable prospectus
supplement may be immediately due and payable. If an event of default occurs
and is continuing with respect to all series of Debt Securities issued under a
Debt Securities Indenture, including all events of default relating to
bankruptcy, insolvency or reorganization, the Debt Securities Trustee or the
holders of at least 33% in principal amount of the outstanding Debt Securities
of all series issued under that Debt Securities Indenture, considered together,
may declare an acceleration of the principal amount of all series of Debt
Securities issued under that Debt Securities Indenture. There is no automatic
acceleration, even in the event of our bankruptcy or insolvency.
The applicable prospectus supplement may provide, with respect to a series
of Debt Securities to which a credit enhancement is applicable, that the
provider of the credit enhancement may, if a default has occurred and is
continuing with respect to the series, have all or any part of the rights with
respect to remedies that would otherwise have been exercisable by the holder of
that series.
At any time after a declaration of acceleration with respect to the Debt
Securities of a particular series, and before a judgment or decree for payment
of the money due has been obtained, the event of default giving rise to the
declaration of acceleration will, without further action, be deemed to have
been waived, and the declaration and its consequences will be deemed to have
been rescinded and annulled, if
. we have paid or deposited with the Debt Securities Trustee a sum
sufficient to pay
-- all overdue interest on all Debt Securities of the particular series;
-- the principal of and any premium on any Debt Securities of that series
that have become due otherwise than by the declaration of acceleration
and any interest at the rate prescribed in the Debt Securities;
-- interest upon overdue interest at the rate prescribed in the Debt
Securities, to the extent payment is lawful; and
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-- all amounts due to the Debt Securities Trustee under the applicable
indenture; and
. any other event of default with respect to the Debt Securities of the
particular series, other than the failure to pay the principal of the
Debt Securities of that series that has become due solely by the
declaration of acceleration, has been cured or waived as provided in the
applicable indenture.
For more information, see Section 802 of the form of Debt Securities Indenture.
The applicable indenture includes provisions as to the duties of the Debt
Securities Trustee in case an event of default occurs and is continuing.
Consistent with these provisions, the Debt Securities Trustee will be under no
obligation to exercise any of its rights or powers at the request or direction
of any of the holders unless those holders have offered to the Debt Securities
Trustee reasonable indemnity. For more information, see Section 903 of the form
of Debt Securities Indenture. Subject to these provisions for indemnification,
the holders of a majority in principal amount of the outstanding Debt
Securities of any series may direct the time, method and place of conducting
any proceeding for any remedy available to the Debt Securities Trustee, or
exercising any trust or power conferred on the Debt Securities Trustee, with
respect to the Debt Securities of that series. For more information, see
Section 812 of the form of Debt Securities Indenture.
No holder of Debt Securities may institute any proceeding regarding the
applicable indenture, or for the appointment of a receiver or a trustee, or for
any other remedy under the applicable indenture unless
. the holder has previously given to the Debt Securities Trustee written
notice of a continuing event of default of that particular series;
. the holders of a majority in principal amount of the outstanding Debt
Securities of all series with respect to which an event of default is
continuing have made a written request to the Debt Securities Trustee,
and have offered reasonable indemnity to the Debt Securities Trustee, to
institute the proceeding as trustee; and
. the Debt Securities Trustee has failed to institute the proceeding, and
has not received from the holders of a majority in principal amount of
the outstanding Debt Securities of that series a direction inconsistent
with the request, within 60 days after notice, request and offer of
reasonable indemnity.
For more information, see Section 807 of the form of Debt Securities Indenture.
The preceding limitations do not apply, however, to a suit instituted by a
holder of a Debt Security for the enforcement of payment of the principal of or
any premium or interest on the Debt Securities on or after the applicable due
date stated in the Debt Securities. For more information, see Section 808 of
the form of Debt Securities Indenture.
We must furnish annually to the Debt Securities Trustee a statement by an
appropriate officer as to that officer's knowledge of our compliance with all
conditions and covenants under each of the indentures for Debt Securities. Our
compliance is to be determined without regard to any grace period or notice
requirement under the respective indenture. For more information, see Section
606 of the form of Debt Securities Indenture.
Modification and Waiver
We and the Debt Securities Trustee, without the consent of the holders of
the Debt Securities, may enter into one or more supplemental indentures for any
of the following purposes:
. to evidence the assumption by any permitted successor of our covenants
in the applicable indenture and the Debt Securities;
. to add one or more covenants or other provisions for the benefit of the
holders of outstanding Debt Securities or to surrender any right or
power conferred upon us by the applicable indenture;
. to add any additional events of default;
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. to change or eliminate any provision of the applicable indenture or add
any new provision to it, but if this action would adversely affect the
interests of the holders of any particular series of Debt Securities in
any material respect, the action will not become effective with respect
to that series while any Debt Securities of that series remain
outstanding under the applicable indenture;
. to provide collateral security for the Debt Securities;
. to establish the form or terms of Debt Securities according to the
provisions of the applicable indenture;
. to evidence the acceptance of appointment of a successor Debt Securities
Trustee under the applicable indenture with respect to one or more
series of the Debt Securities and to add to or change any of the
provisions of the applicable indenture as necessary to provide for Trust
administration under the applicable indenture by more than one trustee;
. to provide for the procedures required to permit the use of a
noncertificated system of registration for any series of Debt
Securities;
. to change any place where
-- the principal of and any premium and interest on any Debt Securities
are payable,
-- any Debt Securities may be surrendered for registration of transfer or
exchange or
-- notices and demands to or upon us regarding Debt Securities and the
applicable indentures may be served; or
. to cure any ambiguity or inconsistency, but only by means of changes or
additions that will not adversely affect the interests of the holders of
Debt Securities of any series in any material respect.
For more information, see Section 1201 of the form of Debt Securities
Indenture.
The holders of at least a majority in aggregate principal amount of the
outstanding Debt Securities of any series may waive
. compliance by us with certain provisions of the applicable indenture
(see Section 607 of the form of Debt Securities Indenture); and
. any past default under the applicable indenture, except a default in the
payment of principal, premium or interest, and certain covenants and
provisions of the applicable indenture that cannot be modified or
amended without consent of the holder of each outstanding Debt Security
of the series affected (see Section 813 of the form of Debt Securities
Indenture).
The Trust Indenture Act of 1939 may be amended after the date of the
applicable indenture to require changes to the indenture. In this event, the
indenture will be deemed to have been amended so as to effect the changes; and
we and the Debt Securities Trustee may, without the consent of any holders,
enter into one or more supplemental indentures to evidence or effect the
amendment. For more information, see Section 1201 of the form of Debt
Securities Indenture.
Except as provided in this section, the consent of the holders of a majority
in aggregate principal amount of the outstanding Debt Securities issued
pursuant to a Debt Securities Indenture, considered as one class, is required
to change in any manner the applicable indenture pursuant to one or more
supplemental indentures. If less than all of the series of Debt Securities
outstanding under a Debt Securities Indenture are directly affected by a
proposed supplemental indenture, however, only the consent of the holders of a
majority in aggregate principal amount of the outstanding Debt Securities of
all series directly affected, considered as one class, will be required.
Furthermore, if the Debt Securities of any series have been issued in more than
one tranche and if the proposed supplemental indenture directly affects the
rights of the holders of one or more, but not all, tranches, only the consent
of the holders of a majority in aggregate principal amount of the outstanding
Debt
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Securities of all tranches directly affected, considered as one class, will be
required. In addition, an amendment or modification
. may not, without the consent of the holder of each outstanding Debt
Security affected
-- change the maturity of the principal of, or any installment of
principal of or interest on, any Debt Securities;
-- reduce the principal amount or the rate of interest, or the amount of
any installment of interest, or change the method of calculating the
rate of interest;
-- reduce any premium payable upon the redemption of the Debt Securities;
-- reduce the amount of the principal of any Debt Security originally
issued at a discount from the stated principal amount that would be due
and payable upon a declaration of acceleration of maturity;
-- change the currency or other property in which a Debt Security or
premium or interest on a Debt Security is payable; or
-- impair the right to institute suit for the enforcement of any payment
on or after the stated maturity, or in the case of redemption, on or
after the redemption date, of any Debt Securities;
. may not reduce the percentage of principal amount requirement for
consent of the holders for any supplemental indenture, or for any waiver
of compliance with any provision of or any default under the applicable
indenture, or reduce the requirements for quorum or voting, without the
consent of the holder of each outstanding Debt Security of each series
or tranche affected; and
. may not modify provisions of the applicable indenture relating to
supplemental indentures, waivers of certain covenants and waivers of
past defaults with respect to the Debt Securities of any series, or any
tranche of a series, without the consent of the holder of each
outstanding Debt Security affected.
A supplemental indenture will be deemed not to affect the rights under the
applicable indenture of the holders of any series or tranche of the Debt
Securities if the supplemental indenture
. changes or eliminates any covenant or other provision of the applicable
indenture expressly included solely for the benefit of one or more other
particular series of Debt Securities or tranches thereof; or
. modifies the rights of the holders of Debt Securities of any other
series or tranches with respect to any covenant or other provision.
For more information, see Section 1202 of the form of Debt Securities
Indenture.
If we solicit from holders of the Debt Securities any type of action, we may
at our option by board resolution fix in advance a record date for the
determination of the holders entitled to vote on the action. We shall have no
obligation, however, to do so. If we fix a record date, the action may be taken
before or after the record date, but only the holders of record at the close of
business on the record date shall be deemed to be holders for the purposes of
determining whether holders of the requisite proportion of the outstanding Debt
Securities have authorized the action. For that purpose, the outstanding Debt
Securities shall be computed as of the record date. Any holder action shall
bind every future holder of the same security and the holder of every security
issued upon the registration of transfer of or in exchange for or in lieu of
the security in respect of anything done or permitted by the Debt Securities
Trustee or us in reliance on that action, whether or not notation of the action
is made upon the security. For more information, see Section 104 of the form of
Debt Securities Indenture.
Defeasance
Unless the applicable prospectus supplement provides otherwise, any Debt
Security, or portion of the principal amount of a Debt Security, will be deemed
to have been paid for purposes of the applicable indenture,
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and, at our election, our entire indebtedness in respect of the Debt Security,
or portion thereof, will be deemed to have been satisfied and discharged, if we
have irrevocably deposited with the Debt Securities Trustee or any paying agent
other than us, in trust money, certain eligible obligations, as defined in the
applicable indenture, or a combination of the two, sufficient to pay principal
of and any premium and interest due and to become due on the Debt Securities or
portions thereof. For more information, see Section 701 of the form of Debt
Securities Indenture. For this purpose, unless the applicable prospectus
supplement provides otherwise, eligible obligations include direct obligations
of, or obligations unconditionally guaranteed by, the United States, entitled
to the benefit of full faith and credit of the United States, and certificates,
depositary receipts or other instruments that evidence a direct ownership
interest in those obligations or in any specific interest or principal payments
due in respect of those obligations.
Resignation, Removal of Debt Securities Trustee; Appointment of Successor
The Debt Securities Trustee may resign at any time by giving written notice
to us or may be removed at any time by an action of the holders of a majority
in principal amount of outstanding Debt Securities delivered to the Debt
Securities Trustee and us. No resignation or removal of the Debt Securities
Trustee and no appointment of a successor trustee will become effective until a
successor trustee accepts appointment in accordance with the requirements of
the applicable indenture. So long as no event of default or event that would
become an event of default has occurred and is continuing, and except with
respect to a Debt Securities Trustee appointed by an action of the holders, if
we have delivered to the Debt Securities Trustee a resolution of our board of
directors appointing a successor trustee and the successor trustee has accepted
the appointment in accordance with the terms of the applicable indenture, the
Debt Securities Trustee will be deemed to have resigned and the successor
trustee will be deemed to have been appointed as trustee in accordance with the
applicable indenture. For more information, see Section 910 of the form of Debt
Securities Indenture.
Global Securities
We may issue some or all of the Debt Securities of any series as global
securities. We will register each Global Debt Security in the name of a
depositary identified in the applicable prospectus supplement. The Global Debt
Securities will be deposited with a depositary or nominee or custodian for the
depositary and will bear a legend regarding restrictions on exchanges and
registration of transfer as discussed below and any other matters to be
provided pursuant to the applicable indenture.
As long as the depositary or its nominee is the registered holder of a
Global Debt Security, that person will be considered the sole owner and holder
of the Global Debt Security and the securities represented by it for all
purposes under the securities and the applicable indenture. Except in limited
circumstances, owners of a beneficial interest in a Global Debt Security
. will not be entitled to have the Global Debt Security or any securities
represented by it registered in their names;
. will not receive or be entitled to receive physical delivery of
certificated securities in exchange for the Global Debt Security; and
. will not be considered to be the owners or holders of the Global Debt
Security or any securities represented by it for any purposes under the
securities or the applicable indenture.
We will make all payments of principal and any premium and interest on a
Global Debt Security to the depositary or its nominee as the holder of the
Global Debt Security. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Debt Security.
Ownership of beneficial interests in a Global Debt Security will be limited
to institutions having accounts with the depositary or its nominee, called
"participants" for purposes of this discussion, and to persons that
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hold beneficial interests through participants. When a Global Debt Security is
issued, the depositary will credit on its book entry, registration and transfer
system the principal amounts of securities represented by the Global Debt
Security to the accounts of its participants. Ownership of beneficial interests
in a Global Debt Security will be shown only on, and the transfer of those
ownership interests will be effected only through, records maintained by
. the depositary, with respect to participants' interests; or
. any participant, with respect to interests of persons held by the
participants on their behalf.
Payments by participants to owners of beneficial interests held through the
participants will be the responsibility of the participants. The depositary may
from time to time adopt various policies and procedures governing payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Debt Security. None of the following will have any responsibility or
liability for any aspect of the depositary's or any participant's records
relating to, or for payments made on account of, beneficial interests in a
Global Debt Security, or for maintaining, supervising or reviewing any records
relating to those beneficial interests:
. CP&L Energy, Inc.;
. the trustee under any applicable indenture; or
. any agent of any of the above.
The Debt Securities Indenture provides that if:
. the depositary gives notice to us that it is unwilling or unable to
continue as depositary and a successor depositary is not appointed by us
within 90 days, or
. the depositary ceases to be eligible under the Debt Securities Indenture
and a successor depositary is not appointed by us within 90 days, or
. we decide to discontinue use of the system of book-entry transfers
through the depositary or its successor,
the Global Debt Securities will be exchanged for Debt Securities in definitive
form of like tenor and of an equal aggregate principal amount, in authorized
denominations. The depositary will provide to the Debt Securities Trustee the
name or names in which the Debt Securities Trustee is to register these
definitive Debt Securities. For more information, see Section 203 of the form
of Debt Securities Indenture.
Notices
We will give notices to holders of Debt Securities by mail to their
addresses as they appear in the security register. For more information, see
Section 106 of the form of Debt Securities Indenture.
Title
The Debt Securities Trustee and its agents, and we and our agents, may treat
the person in whose name a Debt Security is registered as the absolute owner of
that Debt Security, whether or not that Debt Security may be overdue, for the
purpose of making payment and for all other purposes. For more information, see
Section 308 of the form of Debt Securities Indenture.
Governing Law
The Debt Securities Indentures and the Debt Securities will be governed by,
and construed in accordance with, the law of the State of New York. For more
information, see Section 112 of the form of Debt Securities Indenture.
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ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES
Subordination
The Junior Subordinated Debentures will be subordinate and junior in right
of payment to all of our Senior Indebtedness, as defined below.
No payment of principal of, including redemption and sinking fund payments,
or any premium or interest on, the Junior Subordinated Debentures may be made
if
. any Senior Indebtedness is not paid when due and that default continues
without waiver, or
. the maturity of any Senior Indebtedness has been accelerated because of
a default.
Upon any distribution of our assets to creditors upon any dissolution, winding-
up, liquidation or reorganization, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all principal of,
and any premium and interest due or to become due on, all outstanding Senior
Indebtedness must be paid in full before the holders of the Junior Subordinated
Debentures are entitled to payment. For more information, see Section 1502 of
the form of Debt Securities Indenture. The rights of the holders of the Junior
Subordinated Debentures will be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions applicable to Senior
Indebtedness until all amounts owing on the Junior Subordinated Debentures are
paid in full. For more information, see Section 1504 of the form of Debt
Securities Indenture.
As defined in the Subordinated Indenture, the term "Senior Indebtedness"
means
. obligations (other than non-recourse obligations and the indebtedness
issued under the Subordinated Indenture) of, or guaranteed or assumed
by, us
-- for borrowed money (including both senior and subordinated
indebtedness for borrowed money, but excluding the Junior Subordinated
Debentures and the Guarantees); or
-- for the payment of money relating to any lease that is capitalized on
our consolidated balance sheet in accordance with generally accepted
accounting principles; or
. indebtedness evidenced by bonds, debentures, notes or other similar
instruments;
. obligations with respect to letters of credit, bankers' acceptances or
similar facilities issued for our account;
. obligations issued or assumed as the deferred purchase price of property
or services, but excluding trade accounts payable or accrued liabilities
arising in the ordinary course of business;
. obligations for claims, as defined in Section 101(4) of the United
States Bankruptcy Code of 1978, as amended, in respect of derivative
products such as interest and foreign exchange rate contracts, commodity
contracts and similar arrangements; and
. obligations of the type referred to in each of the preceding bullet-
points of another person the payment of which we have guaranteed or are
responsible or liable for, directly or indirectly, as obligor or
otherwise; without limiting the generality of the foregoing.
In the case of any such indebtedness or obligations, Senior Indebtedness
includes amendments, renewals, extensions, modifications and refundings,
whether existing as of the date of the Subordinated Indenture or subsequently
incurred by us.
Any of the foregoing will not be Senior Indebtedness if it is by its terms
subordinate or junior in right of payment to any other indebtedness of ours or
equal in right of payment to the Junior Subordinated Debentures
The Subordinated Indenture does not limit the aggregate amount of Senior
Indebtedness that we may issue.
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Option to Extend Interest Payment Period
Unless the applicable prospectus supplement states otherwise, we have the
right at any time during the term of the Junior Subordinated Debentures to
defer the payment of interest at any time or from time to time for a period,
which we refer to in this prospectus as an "Extension Period," not exceeding 20
consecutive quarterly periods with respect to each Extension Period. During
each Extension Period we shall have the right to make partial payments of
interest on any interest payment date. At the end of each Extension Period, we
shall pay all interest then accrued and unpaid. No Extension Period may extend
beyond the stated maturity of the Junior Subordinated Debentures or end on a
date other than an interest payment date. At the end of the Extension Period,
we must pay all interest then accrued and unpaid. During an Extension Period,
interest will continue to accrue and holders of Junior Subordinated Debentures,
or holders of Trust Preferred Securities while outstanding, will be required to
accrue original issue discount income for United States Federal income tax
purposes.
During any Extension Period, we may not
. declare or pay any dividends or distributions on, or redeem, purchase,
acquire or make a liquidation payment with respect to, any of our
capital stock or
. make any payment of principal of or interest or premium, if any, on or
repay, repurchase or redeem any debt securities of ours that rank on a
parity with, or junior to, the Junior Subordinated Debentures,
other than, in the case of each preceding bullet point,
. repurchases, redemptions or other acquisitions of shares of our capital
stock in connection with any employment contract, benefit plan or other
similar arrangement with or for the benefit of any one or more
employees, officers, directors or consultants or in connection with a
dividend reinvestment or shareholder stock purchase plan;
. as a result of an exchange or conversion of any class or series of our
capital stock, or any capital stock of a subsidiary of ours, for any
class or series of our capital stock or of any class or series of our
then outstanding indebtedness for any class or series of our capital
stock;
. the purchase of fractional interests in shares of our capital stock
pursuant to the conversion or exchange provisions of the capital stock or
the security being converted or exchanged;
. any declaration of a dividend in the form of capital stock in connection
with any shareholders' rights plan, or the issuance of rights to capital
stock under any shareholders' rights plan, or the redemption or
repurchase of rights pursuant any such plan; or
. any dividend in the form of stock, warrants, options or other rights
where the dividend stock or the stock issuable upon exercise of the
warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks on a parity with or junior to the stock.
Prior to the termination of any Extension Period, we may further defer the
payment of interest, provided that no Extension Period may exceed 20
consecutive quarterly periods or extend beyond the stated maturity of the
Junior Subordinated Debentures. Upon the termination of any Extension Period
and the payment of all amounts then due, we may elect to begin a new Extension
Period subject to the above conditions. No interest shall be due and payable
during an Extension Period, except at its end. We must give the Trustee notice
of our election of an Extension Period at least one Business Day prior to the
earlier of
. the date the distributions on the Trust Preferred Securities would have
been payable but for the election to begin such Extension Period and
. the date the Property Trustee is required to give notice to holders of
the Trust Preferred Securities of the record date or the date such
distributions are payable,
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but in any event not less than one business day prior to such record date. The
Trustee will give notice of our election to begin a new Extension Period to the
holders of the Trust Preferred Securities.
For more information, see Section 312 of the form of Debt Securities
Indenture.
Redemption
Junior Subordinated Debentures issued to a Trust are redeemable prior to
maturity at our option in whole, but not in part, at any time within 90 days
following the occurrence and during the continuation of a Tax Event or an
Investment Company Event, each as defined under "DESCRIPTION OF TRUST PREFERRED
SECURITIES--Redemption." The redemption price will be as stated in the
applicable prospectus supplement. The proceeds of any redemption will be used
by a Trust to redeem the related Trust Preferred Securities and Trust Common
Securities. For more information, see Section 407 of the form of Debt
Securities Indenture.
Additional Sums
We will agree in the Subordinated Indenture that, if and for so long as
. a Trust is the holder of all Junior Subordinated Debentures issued by us
in connection with the issuance of Trust Preferred Securities by that
Trust and
. that Trust is required to pay any additional taxes, duties or other
governmental charges as a result of a Tax Event,
we will pay as additional sums on the Junior Subordinated Debentures the
amounts that may be required so that the distributions payable by that Trust
will not be reduced as a result of any additional taxes, duties or other
governmental charges. For more information, see Section 608 of the form of Debt
Securities Indenture. See also "DESCRIPTION OF TRUST PREFERRED SECURITIES--
Redemption."
Certain Covenants
We will agree in the Subordinated Indenture
. to continue to hold, directly or indirectly, 100% of the Trust Common
Securities of any Trust to which Junior Subordinated Debentures have
been issued while such Junior Subordinated Debentures are outstanding,
provided that certain successors that are permitted pursuant to the
Subordinated Indenture may succeed to our ownership of the Trust Common
Securities;
. not to voluntarily dissolve, wind up or liquidate a Trust to which
Junior Subordinated Debentures have been issued, other than
-- in connection with a distribution of Junior Subordinated Debentures to
the holders of the Trust Preferred Securities in liquidation of a Trust
or
-- in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreements; and
. to use our reasonable efforts, consistent with the terms and provisions
of the Trust Agreements, to cause each Trust to which Junior
Subordinated Debentures have been issued to continue not to be taxable
other than as a grantor trust for United States Federal income tax
purposes.
For more information, see Section 609 of the form of Debt Securities Indenture.
Enforcement of Certain Rights by Holders of Trust Preferred Securities
If an Event of Default has occurred and is continuing under the Subordinated
Indenture, and the Debt Securities Trustee and the holders of the Junior
Subordinated Debentures have failed to declare the principal
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due and payable, the holders of at least 33% in aggregate liquidation amount of
the related outstanding Trust Preferred Securities shall have this right. For
more information, see Section 802 of the form of Debt Securities Indenture.
If an Event of Default has occurred and is continuing under a Trust
Agreement and the event is attributable to our failure to pay any amounts
payable in respect of Junior Subordinated Debentures on the date the amounts
are otherwise payable, a registered holder of Trust Preferred Securities may
institute a direct action against us for enforcement of payment to the holder
of an amount equal to the amount payable in respect of Junior Subordinated
Debentures having a principal amount equal to the aggregate liquidation amount
of the Trust Preferred Securities held by the holder, which we refer to in this
discussion as a "Direct Action." For more information, see Section 808 of the
form of Debt Securities Indenture. We will have the right under the
Subordinated Indenture to set-off any payment made to the holders of Trust
Preferred Securities by us in connection with a Direct Action. For more
information, see Section 313 of the form of Debt Securities Indenture.
We may not amend the Subordinated Indenture to remove the foregoing right to
bring a Direct Action without the prior written consent of the holders of all
the Trust Preferred Securities. Furthermore, so long as any of the Trust
Preferred Securities are outstanding,
. no modification of the Subordinated Indenture may be made that adversely
affects the holders of the Trust Preferred Securities in any material
respect;
. no termination of the Subordinated Indenture may occur; and
. no waiver of any Debenture Event of Default or compliance with any
covenant under the Subordinated Indenture may be effective,
without the prior consent of the holders of at least a majority of the
aggregate Liquidation Amount of the outstanding Trust Preferred Securities
unless and until the principal of, accrued and unpaid interest on and premium,
if any, on the Junior Subordinated Debentures have been paid in full and
certain other conditions are satisfied. For more information, see Sections 813
and 1202 of the form of Debt Securities Indenture.
With certain exceptions, the holders of the Trust Preferred Securities would
not be able to exercise directly any remedies available to the holders of the
Junior Subordinated Debentures except under the circumstances described in this
section. See "DESCRIPTION OF TRUST PREFERRED SECURITIES--Events of Default."
DESCRIPTION OF TRUST PREFERRED SECURITIES
This prospectus describes certain general terms of the Trust Preferred
Securities. When we offer to sell a particular series of Trust Preferred
Securities, we will describe the specific terms of that series in a prospectus
supplement. The Trust Preferred Securities will be issued pursuant to one or
more Trust Agreements, which we have summarized below. This summary is not
complete. The form of Trust Agreement is filed as an exhibit to the
registration statement of which this prospectus is a part. You should read the
form of Trust Agreement for provisions that may be important to you.
General
Each Trust will exist until terminated as provided in its Trust Agreement.
The administrators and trustees of each Trust will be:
. two employees, officers or affiliates of ours as administrators (the
"Administrators");
. a financial institution that will act as property trustee and as
indenture trustee for purposes of the Trust Indenture Act (the "Property
Trustee"); and
. one trustee with its principal place of business in the State of
Delaware (the "Delaware Trustee").
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The Trust Agreement will authorize the Administrators to issue two classes
of Trust Securities: Trust Preferred Securities and Trust Common Securities. We
will own all of the Trust Common Securities issued by each Trust, which will
rank equally in right of payment with the Trust Preferred Securities issued by
the respective Trust. However, if an Event of Default occurs and is continuing
under the Trust Agreement, rights of the holders of the Trust Common Securities
to payment for distributions and otherwise will be subordinated to the rights
of the holders of the Trust Preferred Securities. We will acquire Trust Common
Securities of each Trust in a total liquidation amount of approximately three
percent of the total capital of the Trust.
Proceeds from the sale of both the Trust Preferred Securities and the Trust
Common Securities issued by each Trust will be used to purchase our Junior
Subordinated Debentures, which will be held in trust by the Property Trustee
for the benefit of the holders of the Trust Securities issued by the respective
Trust. We will guarantee the payments of distributions and payments of
redemption or liquidation with respect to the Trust Preferred Securities issued
by each Trust, but only to the extent the respective Trust has funds available
to make those payments and has not made the payments. See "DESCRIPTION OF
GUARANTEES" below.
The assets of each Trust available for distribution to the holders of Trust
Preferred Securities issued by the respective Trust will be limited to payments
from us under the Junior Subordinated Debentures held by the Trust. If we fail
to make a payment on the Junior Subordinated Debentures, the Trust will not
have sufficient funds to make related payments, including distributions, on its
Trust Preferred Securities.
Each Guarantee, when taken together with our obligations under the related
Junior Subordinated Debentures, the Subordinated Indenture, and the related
Trust Agreement, will provide a full and unconditional guaranty of amounts due
on the Trust Preferred Securities issued by the respective Trust.
The Trust Preferred Securities will have the terms, including distributions,
redemption, voting, liquidation rights and other rights or restrictions that
will be described in the related Trust Agreement or made part of it by the
Trust Indenture Act or the Delaware Business Trust Act. Terms of the Trust
Preferred Securities issued by each Trust will mirror the terms of the Junior
Subordinated Debentures held by the respective Trust. In other words, the
distribution rate and the distribution payment dates and other payment dates
for the Trust Preferred Securities will correspond with the interest rate and
interest payment dates and other dates on the Junior Subordinated Debentures.
Provisions of a Particular Series
Each Trust may issue only one series of Trust Preferred Securities. The
applicable prospectus supplement will set forth the principal terms of the
Trust Preferred Securities that will be offered, including:
. the name of the Trust Preferred Securities;
. the liquidation amount and number of Trust Preferred Securities issued;
. the annual distribution rate or rates or method of determining such rate
or rates, the payment date or dates and the record dates used to
determine the holders who are to receive distributions;
. the date from which distributions will be cumulative;
. the optional redemption provisions, if any, including the prices, time
periods and other terms and conditions on which the Trust Preferred
Securities will be purchased or redeemed, in whole or in part;
. the terms and conditions, if any, upon which the Junior Subordinated
Debentures and the related Guarantee may be distributed to holders of
those Trust Preferred Securities;
. any securities exchange on which the Trust Preferred Securities will be
listed;
. the terms and conditions, if any, upon which the Trust Preferred
Securities may be converted into securities of CP&L Energy;
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. whether the Trust Preferred Securities are to be issued in book-entry
form and represented by one or more global certificates, and if so, the
depositary for those global certificates and the specific terms of the
depositary arrangements; and
. any other relevant rights, preferences, privileges, limitations or
restrictions of the Trust Preferred Securities.
The interest rate and interest and other payment dates of each series of
Junior Subordinated Debentures issued to a Trust will correspond to the rate at
which distributions will be paid and the distribution and other payment dates
of the Trust Preferred Securities of that Trust. For more information, see
Section 401 of the form of Trust Agreement.
Distributions
The Trust Preferred Securities represent preferred, undivided, beneficial
interests in the assets of the respective Trust. The applicable prospectus
supplement will state the annual rate, as a percentage of the liquidation
amount, at which distributions on each Trust Preferred Security will be
payable, the liquidation amount and the dates on which distributions will be
payable. For more information, see Section 401 of the form of Trust Agreement.
Extensions
We have the right under the Subordinated Indenture to defer the payment of
interest on the Junior Subordinated Debentures at any time or from time to time
for a period, which we refer to in this prospectus as an "Extension Period,"
not exceeding 20 consecutive quarterly periods with respect to each Extension
Period. During each Extension Period we shall have the right to make partial
payments of interest on any interest payment date. At the end of each Extension
Period we shall pay all interest then accrued and unpaid. No Extension Period
may extend beyond the stated maturity of the Junior Subordinated Debentures or
end on a date other than an interest payment date. As a consequence of any such
deferral, distributions on the Trust Preferred Securities by a Trust will be
deferred during any such Extension Period. Distributions to which holders of
the Trust Preferred Securities are entitled will accumulate additional
distributions at the rate stated in the applicable prospectus supplement.
During an Extension Period, interest will continue to accrue and holders of
Junior Subordinated Debentures, or holders of Trust Preferred Securities while
outstanding, will be required to accrue original issue discount income for
United States Federal income tax purposes. For more information, see
"ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES--Option to Extend Interest
Payment Period."
Each Trust will use the proceeds from the issuance and sale of the Trust
Preferred Securities to purchase Junior Subordinated Debentures. The revenue of
a Trust available for distribution to holders of the Trust Preferred Securities
issued by that Trust will be limited to payments under those Junior
Subordinated Debentures. If we do not make payments on the Junior Subordinated
Debentures, a Trust will not have funds available to pay distributions or other
amounts payable on the Trust Preferred Securities issued by that Trust. The
payment of distributions and other amounts payable on the Trust Preferred
Securities issued by a Trust, if and to the extent the Trust has funds legally
available for and cash sufficient to make such payments, is guaranteed by us on
a limited basis. For more information, see "DESCRIPTION OF GUARANTEES."
Exchange and Transfer
The Property Trustee for each Trust will act as registrar and transfer agent
for the Trust Preferred Securities issued by that Trust. Holders may present
Trust Preferred Securities for exchange or for registration of transfer, duly
endorsed or accompanied by a duly executed instrument of transfer, at the
office of the Property Trustee. Exchanges and transfers are subject to the
terms of the applicable Trust Agreement and applicable limitations for global
securities. No charge will be made for any registration of transfer or exchange
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of Trust Preferred Securities, but the Property Trustee may require payment of
a sum sufficient to cover any tax or other governmental charge that the holder
must pay in connection with the transaction. Any transfer or exchange will
become effective upon the Property Trustee being satisfied with the documents
of title and identity of the person making the request.
The Property Trustee will not be required to
. issue, register the transfer of, or exchange any Trust Preferred
Securities during a period beginning at the opening of business 15 days
before the day of mailing of a notice of redemption of any Trust
Preferred Securities called for redemption and ending at the close of
business on the day of mailing; or
. register the transfer of, or exchange any Trust Preferred Securities
selected for redemption except the unredeemed portion of any Trust
Preferred Securities being partially redeemed.
For more information, see Section 505 of the form of Trust Agreement.
Payment and Paying Agents
Payments in respect of the Trust Preferred Securities will be made to the
depositary, which will credit the relevant accounts at the depositary on the
applicable Distribution Dates or, if the Trust Preferred Securities are not
held by the depositary, such payments will be made by check mailed to the
address of the holder entitled thereto as such address appears on the
securities register for the Trust Securities. The paying agent (the "Paying
Agent") initially will be the Property Trustee and any co-paying agent chosen
by the Property Trustee and acceptable to the Administrators. The Paying Agent
will be permitted to resign as Paying Agent upon 30 days' written notice to the
Property Trustee and the Administrators. If the Property Trustee is no longer
the Paying Agent, the Property Trustee will appoint a successor, which must be
a bank or trust company reasonably acceptable to the Administrators, to act as
Paying Agent. For more information, see Sections 404 and 510 of the form of
Trust Agreement.
Redemption
Upon the repayment or redemption, in whole or in part, of the Junior
Subordinated Debentures held by a Trust, the proceeds shall be applied by the
Property Trustee to redeem a Like Amount, as defined below, of the Trust
Securities issued by that Trust, upon not less than 30 nor more than 60 days'
notice, at a redemption price equal to the aggregate liquidation amount of the
Trust Preferred Securities plus accumulated but unpaid distributions to but
excluding the redemption date and the related amount of the premium, if any,
paid by us upon the concurrent redemption of the Junior Subordinated
Debentures. See "ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES--
Redemption." If less than all the Junior Subordinated Debentures held by a
Trust are to be repaid or redeemed on a redemption date, then the proceeds from
the repayment or redemption shall be allocated to the redemption
proportionately of the Trust Preferred Securities and the Trust Common
Securities issued by that Trust based on the relative liquidation amounts of
the classes. The amount of premium, if any, paid by us upon the redemption of
all or any part of the Junior Subordinated Debentures held by a Trust to be
repaid or redeemed on a redemption date shall be allocated to the redemption
proportionately of the Trust Preferred Securities and the Trust Common
Securities issued by that Trust.
We have the right to redeem the Junior Subordinated Debentures held by a
Trust
. on or after the date fixed for redemption as stated in the applicable
prospectus supplement, in whole at any time or in part from time to
time, or
. prior to the date fixed for redemption as stated in the applicable
prospectus supplement, in whole, but not in part, at any time within 90
days following the occurrence and during the continuation of a Tax Event
or an Investment Company Event, each as defined below, in each case
subject to possible regulatory approval.
For more information, see Section 407 of the form of Debt Securities Indenture
and below under "--Liquidation Distribution Upon Dissolution." A redemption of
related Junior Subordinated Debentures held by a Trust would cause a mandatory
redemption of a Like Amount of the related Trust Preferred Securities and Trust
Common Securities issued by that Trust at the redemption price.
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The redemption price, in the case of a redemption under the provisions
summarized in the immediately preceding paragraph, shall equal the liquidation
amount, as defined below, together with accumulated distributions to but
excluding the date fixed for redemption.
"Like Amount" means
. with respect to a redemption of Trust Securities, Trust Securities
having a liquidation amount equal to that portion of the principal
amount of Junior Subordinated Debentures to be contemporaneously
redeemed in accordance with the Subordinated Indenture, allocated to the
Trust Common Securities and to the Trust Preferred Securities based upon
the relative liquidation amounts of the classes and
. with respect to a distribution of Junior Subordinated Debentures to
holders of Trust Securities in connection with a dissolution or
liquidation of a Trust, Junior Subordinated Debentures having a
principal amount equal to the liquidation amount of the Trust Securities
of the holder to whom the Junior Subordinated Debentures are
distributed.
"Tax Event" means the receipt by a Trust of an opinion of counsel to us
experienced in relevant matters to the effect that, as a result of any
amendment to, or change--including any announced prospective change--in, the
laws or any regulations thereunder of the United States or any political
subdivision or taxing authority of or in the United States, or as a result of
any official or administrative pronouncement or action or judicial decision
interpreting or applying these laws or regulations, which amendment or change
is effective or which pronouncement or decision is announced on or after the
date of issuance by a Trust of Trust Preferred Securities, including, without
limitation, any of the foregoing arising with respect to, or resulting from,
any proposal, proceeding or other action commencing on or before the date of
issuance, there is more than an insubstantial risk that
. the Trust is, or will be within 90 days of the delivery of the opinion,
subject to United States Federal income tax with respect to income
received or accrued on the Junior Subordinated Debentures we have issued
to that Trust,
. interest payable by us on the Junior Subordinated Debentures is not, or
within 90 days of the delivery of the opinion, will not be, deductible
by us, in whole or in part, for United States Federal income tax
purposes or
. the Trust is, or will be within 90 days of the delivery of the opinion,
subject to more than an insubstantial amount of other taxes, duties or
other governmental charges.
"Investment Company Event" means the receipt by a Trust of an opinion of
counsel to us experienced in these matters to the effect that, as a result of
the occurrence of a change in law or regulation or a written change--including
any announced prospective change--in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the Trust is or will
be considered an "investment company" that is required to be registered under
the Investment Company Act, which change or prospective change becomes
effective or would become effective, as the case may be, on or after the date
of the issuance by that Trust of Trust Preferred Securities.
Payment of Additional Sums. If a Tax Event described in the first or third
bullet-point of the definition of Tax Event above has occurred and is
continuing and a Trust is the holder of all the Junior Subordinated Debentures
issued by us to that Trust, we will pay, with respect to the Junior
Subordinated Debentures, such additional amounts as may be necessary in order
that the amount of distributions then due and payable by a Trust on the
outstanding Trust Preferred Securities and Trust Common Securities of a Trust
will not be reduced as a result of any additional taxes, duties and other
governmental charges to which that Trust has become subject as a result of a
Tax Event.
For more information, see Section 402 of the form of Trust Agreement.
Redemption Procedures
Trust Preferred Securities of a Trust redeemed on each redemption date shall
be redeemed at the redemption price with the applicable proceeds from the
contemporaneous redemption of the Junior
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Subordinated Debentures held by that Trust. Redemptions of Trust Preferred
Securities shall be made and the redemption price shall be payable on each
redemption date only to the extent that a Trust has funds on hand available for
the payment of the redemption price. See also "--Subordination of Trust Common
Securities."
If a Trust gives a notice of redemption in respect of any Trust Preferred
Securities, then, by 12:00 noon, New York City time, on the redemption date, to
the extent funds are available, in the case of Trust Preferred Securities held
in book-entry form, the Property Trustee will deposit irrevocably with the
depositary funds sufficient to pay the applicable redemption price and will
give the depositary irrevocable instructions and authority to pay the
redemption price to the holders of the Trust Preferred Securities. With respect
to Trust Preferred Securities not held in book-entry form, the Property
Trustee, to the extent funds are available, will irrevocably deposit with the
paying agent for the Trust Preferred Securities funds sufficient to pay the
applicable redemption price and will give the paying agent irrevocable
instructions and authority to pay the redemption price to the holders upon
surrender of their certificates evidencing the Trust Preferred Securities.
Notwithstanding the foregoing, distributions payable on or prior to the
redemption date for any Trust Preferred Securities called for redemption shall
be payable to the holders of the Trust Preferred Securities on the relevant
record dates for the related distribution dates. If notice of redemption shall
have been given and funds deposited as required, then upon the date of the
deposit all rights of the holders of the Trust Preferred Securities so called
for redemption will cease, except the right of the holders of the Trust
Preferred Securities to receive the redemption price, and any distribution
payable in respect of the Trust Preferred Securities, but without interest on
the redemption price, and the Trust Preferred Securities will cease to be
outstanding. If any date fixed for redemption of Trust Preferred Securities is
not a Business Day, then payment of the redemption price payable on that date
will be made on the next succeeding day which is a Business Day, without any
interest or other payment in respect of any delay, except that, if the Business
Day falls in the next calendar year, the payment will be made on the
immediately preceding Business Day. In the event that payment of the redemption
price in respect of Trust Preferred Securities called for redemption is
improperly withheld or refused and not paid either by a Trust or by us pursuant
to the Guarantee as described under "DESCRIPTION OF GUARANTEES," distributions
on the Trust Preferred Securities will continue to accumulate at the then
applicable rate, from the redemption date originally established by a Trust for
the Trust Preferred Securities it issues to the date the redemption price is
actually paid, in which case the actual payment date will be the date fixed for
redemption for purposes of calculating the redemption price.
If less than all the Trust Preferred Securities and Trust Common Securities
are to be redeemed on a redemption date, then the aggregate liquidation amount
of the Trust Preferred Securities and Trust Common Securities to be redeemed
shall be allocated proportionately to the Trust Preferred Securities and the
Trust Common Securities based upon the relative liquidation amounts of the
classes. The particular Trust Preferred Securities to be redeemed shall be
selected on a proportionate basis not more than 60 days prior to the redemption
date by the Property Trustee from the outstanding Trust Preferred Securities
not previously called for redemption, or if the Trust Preferred Securities are
then held in the form of a Global Trust Preferred Security, as defined below,
in accordance with the depositary's customary procedures. The Property Trustee
shall promptly notify the securities registrar for the Trust Securities in
writing of the Trust Preferred Securities selected for redemption and, in the
case of any Trust Preferred Securities selected for partial redemption, the
liquidation amount to be redeemed. For all purposes of the Trust Agreements,
unless the context otherwise requires, all provisions relating to the
redemption of Trust Preferred Securities shall relate, in the case of any Trust
Preferred Securities redeemed or to be redeemed only in part, to the portion of
the aggregate liquidation amount of Trust Preferred Securities which has been
or is to be redeemed.
Notice of any redemption will be mailed at least 30 days but not more than
60 days before the redemption date to each registered holder of Trust Preferred
Securities to be redeemed at its address appearing on the securities register
for the Trust Securities. Unless we default in payment of the redemption price
on the related Junior Subordinated Debentures, on and after the redemption date
interest will cease to accrue on the Junior Subordinated Debentures or portions
of them called for redemption.
For more information, see Section 402 of the form of Trust Agreement.
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Subordination of Trust Common Securities
If on any distribution date or redemption date a payment event of default
with respect to Junior Subordinated Debentures has occurred and is continuing,
no payment on or in respect of the related Trust Common Securities shall be
made unless all amounts due in respect of the related Trust Preferred
Securities (including the liquidation amount or redemption price, if
applicable) shall have been paid or payment provided for. All funds immediately
available to the respective Property Trustee shall first be applied to the
payment in full in cash of all distributions on, or redemption price of, the
Trust Preferred Securities then due and payable.
In the case of any Event of Default, as defined below, resulting from an
event of default with respect to Junior Subordinated Debentures, the holders of
Trust Common Securities will be deemed to have waived any right to act with
respect to any Event of Default under the related Trust Agreement until the
effects of all Events of Default with respect to the related Trust Preferred
Securities have been cured, waived or otherwise eliminated. See "--Events of
Default" and "DESCRIPTION OF DEBT SECURITIES--Events of Default." Until all
Events of Default under the related Trust Agreement with respect to the Trust
Preferred Securities have been so cured, waived or otherwise eliminated, the
Property Trustee will act solely on behalf of the holders of the Trust
Preferred Securities and not on behalf of the holders of the Trust Common
Securities, and only the holders of the Trust Preferred Securities will have
the right to direct the Property Trustee to act on their behalf.
For more information, see Section 403 of the form of Trust Agreement.
Liquidation Distribution Upon Dissolution
In the event of any liquidation of a Trust, the applicable prospectus
supplement will state the amount payable on the Trust Preferred Securities
issued by that Trust as a dollar amount per Trust Preferred Security plus
accumulated and unpaid distributions to the date of payment, subject to certain
exceptions, which may be in the form of a distribution of the amount in Junior
Subordinated Debentures held by that Trust.
The holders of all the outstanding Trust Common Securities of a Trust have
the right at any time to dissolve the Trust and, after satisfaction of
liabilities to creditors of the Trust as provided by applicable law, cause the
Junior Subordinated Debentures held by that Trust to be distributed in
liquidation of the Trust to the holders of the Trust Preferred Securities and
Trust Common Securities issued by the Trust.
Pursuant to the related Trust Agreement, a Trust will automatically dissolve
upon expiration of its term or, if earlier, will dissolve on the first to occur
of:
. events of bankruptcy, dissolution or liquidation of CP&L Energy or the
holder of the Trust Common Securities, as specified in the Trust
Agreement;
. the giving by the holders of the Trust Common Securities issued by the
Trust of written direction to the Property Trustee to dissolve the
Trust, which direction, subject to the foregoing restrictions, is
optional and wholly within the discretion of the holders of the Trust
Common Securities;
. the repayment of all the Trust Preferred Securities issued by the Trust
in connection with the redemption of all the Trust Securities issued by
the Trust as described under "--Redemption"; and
. the entry of an order for the dissolution of the Trust by a court of
competent jurisdiction.
For more information, see Section 902 of the form of Trust Agreement.
If dissolution of a Trust occurs as described in the first, second or fourth
bullet-point above, the Trust will be liquidated by the Property Trustee as
expeditiously as the Property Trustee determines to be possible by
distributing, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, to the holders of the Trust Securities issued by
the Trust a Like Amount of the related Junior Subordinated Debentures, unless
the distribution is not practical, in which event the holders will be entitled
to receive out of the assets of the Trust available for distribution to
holders, after satisfaction of liabilities to creditors of the Trust as
provided by applicable law, an amount equal to, in the case of holders of the
Trust Preferred Securities, the aggregate of the liquidation amount plus
accumulated and unpaid distributions to the date of payment. In this prospectus
we
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refer to this amount as the "liquidation distribution." If the liquidation
distribution can be paid only in part because the Trust has insufficient assets
available to pay in full the aggregate liquidation distribution, then the
amounts payable directly by the Trust on its Trust Preferred Securities shall
be paid on a proportionate basis. The holders of the Trust Common Securities
issued by the Trust will be entitled to receive distributions upon any
liquidation proportionately with the holders of the Trust Preferred Securities,
except that if a payment event of default has occurred and is continuing on the
related Junior Subordinated Debentures, the Trust Preferred Securities shall
have a priority over the Trust Common Securities. See "--Subordination of Trust
Common Securities."
After the liquidation date is fixed for any distribution of Junior
Subordinated Debentures we have issued to a Trust,
. the Trust Preferred Securities issued by that Trust will no longer be
deemed to be outstanding,
. the depositary or its nominee, as the registered holder of the Trust
Preferred Securities, will receive a registered global certificate or
certificates representing the Junior Subordinated Debentures to be
delivered upon the distribution with respect to the Trust Preferred
Securities held by the depositary or its nominee and
. any certificates representing the Trust Preferred Securities not held by
the depositary or its nominee will be deemed to represent the Junior
Subordinated Debentures having a principal amount equal to the stated
liquidation amount of the Trust Preferred Securities and bearing accrued
and unpaid interest in an amount equal to the accumulated and unpaid
distributions on the Trust Preferred Securities until the certificates
are presented to the security registrar for the Trust Securities for
transfer or reissuance.
For more information, see Section 904 of the form of Trust Agreement.
If we do not redeem the Junior Subordinated Debentures we have issued to a
Trust prior to the stated maturity and the Trust is not liquidated and the
Junior Subordinated Debentures are not distributed to holders of the Trust
Preferred Securities issued by that Trust, the Trust Preferred Securities will
remain outstanding until the repayment of the Junior Subordinated Debentures
and the distribution of the liquidation distribution to the holders of the
Trust Preferred Securities.
There can be no assurance as to the market prices for Trust Preferred
Securities or the related Junior Subordinated Debentures that may be
distributed in exchange for Trust Preferred Securities if a dissolution and
liquidation of a Trust were to occur. Accordingly, the Trust Preferred
Securities that an investor may purchase, or the related Junior Subordinated
Debentures that the investor may receive on dissolution and liquidation of a
Trust, may trade at a discount to the price that the investor paid to purchase
the Trust Preferred Securities offered hereby.
Events of Default
Any one of the following events constitutes an Event of Default with respect
to the Trust Preferred Securities issued by a Trust under the related Trust
Agreement:
. the occurrence of an event of default under the Subordinated Indenture
(see "DESCRIPTION OF DEBT SECURITIES--Events of Default");
. default by the Trust in the payment of any distribution when it becomes
due and payable, and continuation of the default for a period of 30
days;
. default by the Trust in the payment of any redemption price of any Trust
Security issued by that Trust when it becomes due and payable;
. default in the performance, or breach, in any material respect, of any
covenant or warranty of the Property Trustee and the Delaware Trustee in
the Trust Agreement, other than as described above, and continuation of
the default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the appropriate trustees and
to us by the holders of at least 33% in aggregate
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liquidation amount of the outstanding Trust Preferred Securities, a
written notice specifying the default or breach and requiring it to be
remedied and stating that the notice is a "Notice of Default" under the
Trust Agreement;
. the occurrence of certain events of bankruptcy or insolvency with
respect to the Property Trustee if a successor Property Trustee has not
been appointed within 90 days of the occurrence; or
. the occurrence of certain events of bankruptcy or insolvency with
respect to the Trust.
For more information, see Section 802 of the form of Trust Agreement.
Within five business days after the occurrence of any Event of Default
actually known to the respective Property Trustee, the Property Trustee will
transmit notice of the Event of Default to the respective holders of Trust
Securities and the respective Administrators, unless the Event of Default has
been cured or waived. Within five business days after the receipt of notice
that we intend to exercise our right under the Subordinated Indenture to defer
the payment of interest on the Junior Subordinated Debentures, the Property
Trustee must notify the Holders and the Administrators that we intend to defer
these interest payments, unless we have revoked our determination to do so.
For more information, see Section 803 of the form of Trust Agreement.
The applicable Trust Agreement includes provisions as to the duties of the
Property Trustee in case an event of default occurs and is continuing.
Consistent with these provisions, the Property Trustee will be under no
obligation to exercise any of its rights or powers at the request or direction
of any of the holders unless those holders have offered to the Property
Trustee reasonable indemnity. For more information, see Section 801 of the
form of Trust Agreement. Subject to these provisions for indemnification, the
holders of a majority in liquidation amount of the related outstanding Trust
Preferred Securities may direct the time, method and place of conducting any
proceeding for any remedy available to the Property Trustee, or exercising any
trust or power conferred on the Property Trustee, with respect to the related
Trust Preferred Securities. For more information, see Section 513 of the form
of Trust Agreement.
The holders of at least a majority in aggregate liquidation amount of the
outstanding Trust Preferred Securities issued by a Trust may waive any past
default under the applicable Trust Agreement except:
. a default in the payment of principal, premium or interest;
. a default with respect to certain covenants and provisions of the
applicable Trust Agreement that cannot be modified or amended without
consent of the holder of each outstanding Trust Preferred Security; and
. a default under the Subordinated Indenture that the holders of a majority
in liquidation amount of the Trust Preferred Securities would not be
entitled to waive under the applicable Trust Agreement.
For more information, see Section 802 of the form of Trust Agreement.
If an event of default under the Subordinated Indenture has occurred and is
continuing as a result of any failure by us to pay any amounts when due in
respect of Junior Subordinated Debentures issued by us to a Trust, the related
Trust Preferred Securities will have a preference over the related Trust
Common Securities with respect to payments of any amounts in respect of the
Trust Preferred Securities as described above. See "--Subordination of Trust
Common Securities," "--Liquidation Distribution Upon Dissolution" and
"DESCRIPTION OF DEBT SECURITIES--Events of Default."
We must furnish annually to each Property Trustee a statement by an
appropriate officer as to that officer's knowledge of our compliance with all
conditions and covenants under the respective Trust Agreement. Also, the
Administrators for each Trust must file, on behalf of the respective Trust, a
statement as to our compliance with all conditions and covenants under the
respective Trust Agreement. Our compliance is to be determined without regard
to any grace period or notice requirement under the respective Trust
Agreement. For more information, see Section 817 of the form of Trust
Agreement
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Voting Rights; Amendment of Trust Agreement
Except as provided below and under "--Resignation, Removal of Property
Trustee and Delaware Trustee; Appointment of Successors" and "DESCRIPTION OF
GUARANTEES--Amendments and Assignment" and as otherwise required by law and the
applicable Trust Agreement, the holders of the Trust Preferred Securities
issued by a Trust will have no voting rights.
The Trust Agreement applicable to a Trust may be amended from time to time
by the holders of a majority in liquidation amount of its Trust Common
Securities and the respective Property Trustee, without the consent of the
holders of the Trust Preferred Securities issued by the Trust,
. to cure any ambiguity, correct or supplement any provisions in the Trust
Agreements that may be inconsistent with any other provision, or to make
any other provisions with respect to matters or questions arising under
the Trust Agreements, provided that any the amendment does not adversely
affect in any material respect the interests of any holder of Trust
Securities, or
. to modify, eliminate or add to any provisions of the Trust Agreements to
the extent as may be necessary to ensure that a Trust will not be
taxable other than as a grantor trust for United States Federal income
tax purposes at any time that any Trust Securities are outstanding or to
ensure that a Trust will not be required to register as an "investment
company" under the Investment Company Act.
The Trust Agreement may be amended by the holders of a majority of the Trust
Common Securities and the Property Trustee with
. the consent of holders representing not less than a majority in
aggregate liquidation amount of the outstanding Trust Preferred
Securities and
. receipt by the Property Trustee and the Delaware Trustee of an opinion
of counsel to the effect that the amendment or the exercise of any power
granted to the trustees in accordance with the amendment will not affect
the Trust's not being taxable other than as a grantor trust for United
States Federal income tax purposes or the Trust's exemption from status
as an "investment company" under the Investment Company Act.
Without the consent of each holder of Trust Preferred Securities affected by
the amendment or related exercise of power, the Trust Agreement applicable to a
Trust may not be amended to
. change the amount or timing of any distribution on the Trust Securities
or otherwise adversely affect the amount of any distribution required to
be made in respect of the Trust Securities as of a specified date or
. restrict the right of a holder of Trust Securities to institute suit for
the enforcement of any payment due.
For more information, see Section 1002 of the form of Trust Agreement.
So long as any Junior Subordinated Debentures are held by a Trust, the
respective Property Trustee will not
. direct the time, method and place of conducting any proceeding for any
remedy available to the Debt Securities Trustee under the Subordinated
Indenture, or execute any trust or power conferred on the Property
Trustee with respect to the Junior Subordinated Debentures,
. waive any past default that is waivable under Section 813 of the
Subordinated Indenture,
. exercise any right to rescind or annul a declaration that the Junior
Subordinated Debentures shall be due and payable or
. consent to any amendment, modification or termination of the
Subordinated Indenture or the Junior Subordinated Debentures, where
consent shall be required
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without, in each case, obtaining the prior approval of the holders of at least
a majority in aggregate liquidation amount of the Trust Preferred Securities,
except that, if a consent under the Subordinated Indenture would require the
consent of each holder of Junior Subordinated Debentures affected by the
consent, no consent will be given by the Property Trustee without the prior
written consent of each holder of the Trust Preferred Securities. For more
information, see Section 601 of the form of Trust Agreement.
A Property Trustee may not revoke any action previously authorized or
approved by a vote of the holders of the Trust Preferred Securities issued by
its respective Trust except by subsequent vote of the holders of the Trust
Preferred Securities. The Property Trustee will notify each holder of Trust
Preferred Securities of any notice of default with respect to the Junior
Subordinated Debentures. In addition, before taking any of the foregoing
actions, the Property Trustee will obtain an opinion of counsel experienced in
relevant matters to the effect that the Trust will not be taxable other than as
a grantor trust for United States Federal income tax purposes on account of the
action. For more information, see Section 601 of the form of Trust Agreement.
Any required approval of holders of Trust Preferred Securities issued by a
Trust may be given at a meeting of holders of those Trust Preferred Securities
convened for the purpose or pursuant to written consent. The Property Trustee
will cause a notice of any meeting at which holders of Trust Preferred
Securities are entitled to vote, or of any matter upon which action by written
consent of the holders is to be taken, to be given to each registered holder of
Trust Preferred Securities in the manner set forth in the applicable Trust
Agreement. For more information, see Sections 602 through 607 of the form of
Trust Agreement.
No vote or consent of the holders of Trust Preferred Securities issued by a
Trust will be required to redeem and cancel those Trust Preferred Securities in
accordance with the applicable Trust Agreement. See above under "--Redemption."
Notwithstanding that holders of Trust Preferred Securities issued by a Trust
are entitled to vote or consent under any of the circumstances described above,
any of those Trust Preferred Securities that are owned by us, the respective
Property Trustee or Delaware Trustee, or any affiliate of us or either trustee,
will, for purposes of the vote or consent, be treated as if they were not
outstanding. For more information, see the definition of "Outstanding" in
Section 101 of the form of Trust Agreement.
Resignation, Removal of Property Trustee and Delaware Trustee; Appointment of
Successors
The Property Trustee or the Delaware Trustee of a Trust may resign at any
time by giving written notice to us or may be removed at any time by an action
of the holders of a majority in liquidation amount of that Trust's outstanding
Trust Preferred Securities delivered to the trustee to be removed and to us. No
resignation or removal of either of the Trustees and no appointment of a
successor trustee will become effective until a successor trustee accepts
appointment in accordance with the requirements of the Trust Agreement. So long
as no event of default or event that would become an event of default has
occurred and is continuing, and except with respect to a trustee appointed by
an action of the holders, if we have delivered to either the Property Trustee
or the Delaware Trustee a resolution of our board of directors appointing a
successor trustee and the successor trustee has accepted the appointment in
accordance with the terms of the Trust Agreement, the Property Trustee or the
Delaware Trustee, as the case may be, will be deemed to have resigned and the
successor trustee will be deemed to have been appointed as trustee in
accordance with the Trust Agreement. For more information, see Section 811 of
the form of Trust Agreement.
Mergers, Consolidations, Amalgamations or Replacements of a Trust
A Trust may not merge with or into, consolidate, amalgamate, or be replaced
by, or convey, transfer or lease its properties and assets substantially as an
entirety to any entity, except as described below or as otherwise set forth in
the applicable Trust Agreement. A Trust may, at the request of the holders of
its Trust Common Securities and with the consent of the holders of at least a
majority in aggregate liquidation amount of its outstanding Trust Preferred
Securities, merge with or into, consolidate, amalgamate, or be replaced by or
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convey, transfer or lease its properties and assets substantially as an
entirety to a Trust organized as such under the laws of any state, so long as
. the successor entity either
-- expressly assumes all the obligations of the Trust with respect to its
Trust Preferred Securities or
-- substitutes for the Trust Preferred Securities other securities having
substantially the same terms as the Trust Preferred Securities, which
we refer to in this prospectus as the Successor Securities, so long as
the Successor Securities have the same priority as the Trust Preferred
Securities with respect to distributions and payments upon liquidation,
redemption and otherwise;
. a trustee of the successor entity, possessing the same powers and duties
as the Property Trustee, is appointed to hold the related Junior
Subordinated Debentures;
. the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not cause the Trust Preferred Securities,
including any Successor Securities, to be downgraded by any nationally
recognized statistical rating organization;
. the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Trust Preferred Securities, including
any Successor Securities, in any material respect;
. the successor entity has a purpose substantially identical to that of
the Trust;
. prior to the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, the Trust has received an opinion from
independent counsel experienced in relevant matters to the effect that
-- the merger, consolidation, amalgamation, replacement, conveyance,
transfer or lease does not adversely affect the rights, preferences and
privileges of the holders of the Trust Preferred Securities, including
any Successor Securities, in any material respect and
-- following the merger, consolidation, amalgamation, replacement,
conveyance, transfer or lease, neither the Trust nor the successor
entity will be required to register as an investment company under the
Investment Company Act; and
. CP&L Energy or any permitted successor or assignee owns all the Trust
Common Securities of the successor entity and guarantees the obligations
of the successor entity under the Successor Securities at least to the
extent provided by the applicable Guarantee.
Notwithstanding the foregoing, a Trust may not, except with the consent of
holders of 100% in aggregate liquidation amount of the Trust Preferred
Securities, consolidate, amalgamate, merge with or into, or be replaced by or
convey, transfer or lease its properties and assets substantially as an
entirety to, any other entity or permit any other entity to consolidate,
amalgamate, merge with or into, or replace it if the consolidation,
amalgamation, merger, replacement, conveyance, transfer or lease would cause
the Trust or the successor entity to be taxable other than as a grantor trust
for United States Federal income tax purposes.
For more information, see Section 905 of the form of Trust Agreement.
Global Securities
Unless stated otherwise in an applicable prospectus supplement, all of the
Trust Preferred Securities will be issued initially as global securities
(collectively, the "Global Trust Preferred Securities"). Each Global Trust
Preferred Security will be issued in the name of a depositary identified in the
applicable prospectus supplement. The Global Trust Preferred Securities will be
deposited with a depositary or nominee or custodian for the depositary and will
bear a legend regarding restrictions on exchanges and registration of transfer
as discussed below and any other matters to be provided pursuant to the Trust
Agreement.
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As long as the depositary or its nominee is the registered holder of a
Global Trust Preferred Security, that person will be considered the sole owner
and holder of the Global Trust Preferred Security and the securities
represented by it for all purposes under the securities and the Trust
Agreement. Except in limited circumstances, owners of a beneficial interest in
a Global Trust Preferred Security
. will not be entitled to have the Global Trust Preferred Security or any
securities represented by it registered in their names;
. will not receive or be entitled to receive physical delivery of
certificated securities in exchange for the Global Trust Preferred
Security; and
. will not be considered to be the owners or holders of the Global Trust
Preferred Security or any securities represented by it for any purposes
under the securities or the applicable indenture.
The Property Trustee will make all payments with respect to a Global Trust
Preferred Security to the depositary or its nominee as the holder of the Global
Trust Preferred Security. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of securities in definitive
form. These laws may impair the ability to transfer beneficial interests in a
Global Trust Preferred Security.
Ownership of beneficial interests in a Global Trust Preferred Security will
be limited to institutions having accounts with the depositary or its nominee,
called "participants" for purposes of this discussion, and to persons that hold
beneficial interests through participants. When a Global Trust Preferred
Security is issued, the depositary will credit on its book entry, registration
and transfer system the principal amounts of securities represented by the
Global Trust Preferred Security to the accounts of its participants. Ownership
of beneficial interests in a Global Trust Preferred Security will be shown only
on, and the transfer of those ownership interests will be effected only
through, records maintained by
. the depositary, with respect to participants' interests; or
. any participant, with respect to interests of persons held by the
participants on their behalf.
Payments by participants to owners of beneficial interests held through the
participants will be the responsibility of the participants. The depositary may
from time to time adopt various policies and procedures governing payments,
transfers, exchanges and other matters relating to beneficial interests in a
Global Trust Preferred Security. None of the following will have any
responsibility or liability for any aspect of the depositary's or any
participant's records relating to, or for payments made on account of,
beneficial interests in a Global Trust Preferred Security, or for maintaining,
supervising or reviewing any records relating to those beneficial interests:
. the Trust;
. the Property Trustee;
. the Delaware Trustee;
. the Administrators;
. CP&L Energy; or
. any agent of any of the above.
The Trust Agreement provides that if:
. the depositary gives notice to us that it is unwilling or unable to
continue as depositary and a successor depositary is not appointed by us
within 90 days, or
. the depositary ceases to be eligible under the Trust Agreement and a
successor depositary is not appointed by us within 90 days, or
. we decide to discontinue use of the system of book-entry transfers
through the depositary or its successor,
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the Global Trust Preferred Securities will be exchanged for Trust Preferred
Securities in definitive form of an equal aggregate Liquidation Amount, in
authorized denominations. The depositary will provide to the Property Trustee
the name or names in which the Property Trustee is to register these definitive
Trust Preferred Securities. For more information, see Section 504 of the form
of Trust Agreement.
Expenses and Taxes
In each of the Trust Agreements, we have agreed to pay
. all debts and other obligations, other than with respect to the Trust
Preferred Securities issued by a Trust and all costs and expenses of the
Trust, including
-- the costs and expenses relating to the organization of a Trust,
-- the fees and expenses of the Property Trustee and the Delaware Trustee
and
-- the costs and expenses relating to the operation of the Trust, and
. any and all taxes and all costs and expenses with respect to them, other
than withholding taxes, to which the Trust might become subject.
For more information, see Section 408 of the form of Trust Agreement and
Section 907 of the form of Debt Securities Indenture.
Information Concerning the Property Trustees
Each Property Trustee, other than during the occurrence and continuance of
an Event of Default, undertakes to perform only the duties as are specifically
set forth in the applicable Trust Agreement and, after an Event of Default,
must exercise the same degree of care and skill as a prudent person would
exercise or use in the conduct of his or her own affairs. For more information,
see Section 801 of the form of Trust Agreement. Subject to this provision, each
Property Trustee is under no obligation to exercise any of the powers vested in
it by the Trust Agreements at the request of any holder of Trust Preferred
Securities issued by the respective Trust unless it is offered reasonable
indemnity against the costs, expenses and liabilities that might be incurred by
exercising these powers. For more information, see Sections 804 and 807 of the
form of Trust Agreement.
Miscellaneous
The Administrators and the Property Trustee relating to each Trust are
authorized and directed to conduct the affairs of and to operate the Trust in
such a way that the Trust will not be deemed to be an "investment company"
required to be registered under the Investment Company Act or taxable other
than as a grantor trust for United States Federal income tax purposes and so
that the Junior Subordinated Debentures held by that Trust will be treated as
indebtedness of ours for United States Federal income tax purposes. In this
connection, each Property Trustee and the holders of Trust Common Securities
issued by the respective Trust are authorized to take any action, not
inconsistent with applicable law, the Certificate of Trust of the Trust or the
applicable Trust Agreement, that the Property Trustee and the holders of Trust
Common Securities determine in their discretion to be necessary or desirable
for these purposes, as long as this action does not materially adversely affect
the interests of the holders of the Trust Preferred Securities. For more
information, see Section 207(d) of the form of Trust Agreement
Holders of the Trust Preferred Securities have no preemptive or similar
rights. For more information, see Section 513 of the form of Trust Agreement.
A Trust may not borrow money or issue debt or mortgage or pledge any of its
assets. For more information, see Section 207(b) of the form of Trust
Agreement.
Governing Law
The Trust Agreement will be governed by and construed in accordance with the
laws of the State of Delaware.
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DESCRIPTION OF GUARANTEES
Each Guarantee will be executed and delivered by us concurrently with the
issuance of Trust Preferred Securities by a Trust for the benefit of the
holders from time to time of the Trust Preferred Securities. We will elect a
Guarantee Trustee under each Guarantee. The form of Guarantee Agreement is
filed as an exhibit to the registration statement of which this prospectus is a
part. This summary of certain provisions of the Guarantee does not purport to
be complete and is subject to, and qualified in its entirety by reference to,
all the provisions of the Guarantee, including the definitions in the Guarantee
of certain terms. Each Guarantee Trustee will hold the respective Guarantee for
the benefit of the holders of the Trust Preferred Securities issued by the
related Trust.
General
We will irrevocably agree to pay in full on a subordinated basis the
Guarantee Payments, as defined below, to the holders of the Trust Preferred
Securities issued by each Trust, as and when due, regardless of any defense,
right of set-off or counterclaim that a Trust may have or assert other than the
defense of payment. The following payments with respect to the Trust Preferred
Securities, to the extent not paid or made by or on behalf of the respective
Trust, which payments we refer to in this discussion as the "Guarantee
Payments," will be subject to the respective Guarantee:
. any accumulated and unpaid distributions required to be paid on the
Trust Preferred Securities, to the extent that the Trust has funds on
hand available for payment of these distributions at this time;
. the redemption price with respect to any Trust Preferred Securities
called for redemption, to the extent that the Trust has funds on hand
available for payment of the redemption price at this time; and
. upon a voluntary or involuntary dissolution, winding up or liquidation
of the Trust, unless the related Junior Subordinated Debentures are
distributed to holders of the Trust Preferred Securities, the lesser of
-- the aggregate of the liquidation amount and all accumulated and unpaid
distributions to the date of payment, to the extent that the Trust has
funds on hand available for these payments at this time, and
-- the amount of assets of the Trust remaining available for distribution
to holders of the Trust Preferred Securities on liquidation of the
Trust.
Our obligation to make a Guarantee Payment may be satisfied by direct payment
of the required amounts by us to the holders of the Trust Preferred Securities
or by causing the Trust to pay these amounts to the holders. For more
information, see Section 501 of the form of Guarantee Agreement.
Each Guarantee will be an irrevocable guarantee on a subordinated basis of
the obligations of the respective Trust under its Trust Preferred Securities,
but will apply only to the extent that the Trust has funds sufficient to make
these payments, and is not a guarantee of collection. For more information, see
Section 505 of the form of Guarantee Agreement.
If we do not make payments on the Junior Subordinated Debentures held by a
Trust, the Trust will not be able to pay any amounts payable in respect of its
Trust Preferred Securities and will not have funds legally available for these
payments. Both Guarantees will rank subordinate and junior in right of payment
to all our Senior Indebtedness. See "--Status of the Guarantees." The
Guarantees do not limit our incurrence or issuance of other secured or
unsecured debt, including Senior Indebtedness, whether under the Subordinated
Indenture, any other indenture that we may enter into in the future or
otherwise.
We have, through the Guarantees, the Trust Agreements, the Junior
Subordinated Debentures and the Subordinated Indenture, taken together, fully,
irrevocably and unconditionally guaranteed all of each Trust's obligations
under its Trust Preferred Securities. No single document standing alone or
operating in conjunction with fewer than all the other documents constitutes
the guarantee. It is only the combined operation of these
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documents that has the effect of providing a full, irrevocable and
unconditional guarantee of each Trust's obligations in respect of its Trust
Preferred Securities. See "RELATIONSHIP AMONG TRUST PREFERRED SECURITIES,
JUNIOR SUBORDINATED DEBENTURES AND GUARANTEES."
Status of the Guarantees
Each Guarantee will constitute an unsecured obligation of ours and will rank
subordinate and junior in right of payment to all our Senior Indebtedness in
the same manner as the Junior Subordinated Debentures. For more information,
see Section 601 of the form of Guarantee Agreement.
Each Guarantee will constitute a guarantee of payment and not of collection;
specifically, the guaranteed party may institute a legal proceeding directly
against the Guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity. Each
Guarantee will be held by the respective Guarantee Trustee for the benefit of
the holders of the related Trust Preferred Securities. A Guarantee will not be
discharged except by payment of the applicable Guarantee Payments in full to
the extent not paid or distributed by the respective Trust. For more
information, see Sections 504 and 505 of the form of Guarantee Agreement.
Amendments and Assignment
Except with respect to any changes that do not materially adversely affect
the rights of holders of the related Trust Preferred Securities, in which case
no vote will be required, a Guarantee may not be amended without the prior
approval of the holders of not less than a majority of the aggregate
liquidation amount of the related Trust Preferred Securities. The manner of
obtaining this type of approval will be as set forth under "DESCRIPTION OF
TRUST PREFERRED SECURITIES--Voting Rights; Amendment of Trust Agreement." For
more information, see Section 802 of the form of Guarantee Agreement. All
guarantees and agreements contained in each Guarantee shall bind the
successors, assigns, receivers, trustees and representatives of ours and shall
inure to the benefit of the holders of the related Trust Preferred Securities
then outstanding. For more information, see Sections 801 and 804 of the form of
Guarantee Agreement.
Events of Default
An event of default under a Guarantee will occur upon our failure to perform
any of our payment or other obligations under the Guarantee, or to perform any
non-payment obligation if the non-payment default remains unremedied for 30
days.
The holders of not less than a majority in aggregate liquidation amount of
the related Trust Preferred Securities have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Guarantee Trustee in respect of the Guarantee or to direct the exercise of any
trust or power conferred upon the Guarantee Trustee under the Guarantee. Any
registered holder of Trust Preferred Securities may institute a legal
proceeding directly against us to enforce its rights under the related
Guarantee without first instituting a legal proceeding against the related
Trust, the Guarantee Trustee or any other person or entity. For more
information, see Section 504 of the form of Guarantee Agreement.
We, as guarantor, are required to file annually with each Guarantee Trustee
a certificate as to whether or not we are in compliance with all the conditions
and covenants applicable to us under each Guarantee. For more information, see
Section 205 of the form of Guarantee Agreement.
Termination of the Guarantees
Each Guarantee will terminate and be of no further force and effect upon
full payment of the redemption price of the related Trust Preferred Securities,
upon full payment of the amounts payable with respect to the Trust Preferred
Securities upon liquidation of the respective Trust, upon distribution of the
related Junior
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Subordinated Debentures to the holders of the Trust Preferred Securities and
under certain instances, upon the exchange of the Guarantee pursuant to an
exchange offer for the Trust Preferred Securities. Each Guarantee will continue
to be effective or will be reinstated, as the case may be, if at any time any
holder of the related Trust Preferred Securities must restore payment of any
sums paid under the Trust Preferred Securities or the Guarantee. For more
information, see Section 701 of the form of Guarantee Agreement.
Governing Law
Each Guarantee will be governed by and construed in accordance with the laws
of the State of New York.
RELATIONSHIP AMONG TRUST PREFERRED SECURITIES, JUNIOR
SUBORDINATED DEBENTURES AND GUARANTEES
Full and Unconditional Guarantee
Payments of distributions and other amounts due on the Trust Preferred
Securities issued by a Trust, to the extent the Trust has funds available for
the payment, are irrevocably guaranteed by us as and to the extent set forth
under "DESCRIPTION OF GUARANTEES." Taken together, our obligations under the
related Junior Subordinated Debentures, the Subordinated Indenture, the related
Trust Agreement and the related Guarantee provide, in the aggregate, a full,
irrevocable and unconditional guarantee of payments of distributions and other
amounts due on the Trust Preferred Securities issued by a Trust. No single
document standing alone or operating in conjunction with fewer than all the
other documents constitutes the guarantee. It is only the combined operation of
these documents that has the effect of providing a full, irrevocable and
unconditional guarantee of each Trust's obligations in respect of the related
Trust Preferred Securities. If and to the extent that we do not make payments
on the Junior Subordinated Debentures issued to a Trust, the Trust will not
have sufficient funds to pay distributions or other amounts due on its Trust
Preferred Securities. A Guarantee does not cover payment of amounts payable
with respect to the Trust Preferred Securities issued by a Trust when the Trust
does not have sufficient funds to pay these amounts. In this event, the remedy
of a holder of the Trust Preferred Securities is to institute a legal
proceeding directly against us for enforcement of payment of our obligations
under Junior Subordinated Debentures having a principal amount equal to the
liquidation amount of the Trust Preferred Securities held by the holder.
Our obligations under the Junior Subordinated Debentures and the Guarantees
are subordinate and junior in right of payment to all Senior Indebtedness.
Sufficiency of Payments
As long as payments are made when due on the Junior Subordinated Debentures
issued to a Trust, these payments will be sufficient to cover distributions and
other payments distributable on the Trust Preferred Securities issued by that
Trust, primarily because:
. the aggregate principal amount of the Junior Subordinated Debentures
will be equal to the sum of the aggregate stated liquidation amount of
the Trust Preferred Securities and Trust Common Securities;
. the interest rate and interest and other payment dates on the Junior
Subordinated Debentures will match the distribution rate, distribution
dates and other payment dates for the Trust Preferred Securities;
. we will pay for any and all costs, expenses and liabilities of the Trust
except the Trust's obligations to holders of the related Trust
Securities; and
. the applicable Trust Agreement further provides that the Trust will not
engage in any activity that is not consistent with the limited purposes
of the Trust.
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Notwithstanding anything to the contrary in the Subordinated Indenture, we
have the right to set-off any payment we are otherwise required to make under
the Subordinated Indenture against and to the extent we have previously made,
or are concurrently on the date of the payment making, a payment under a
Guarantee.
Enforcement Rights of Holders of Trust Preferred Securities
A holder of any Trust Preferred Security may institute a legal proceeding
directly against us to enforce its rights under the related Guarantee without
first instituting a legal proceeding against the related Guarantee Trustee, the
related Trust or any other person or entity. See "DESCRIPTION OF GUARANTEES."
A default or event of default under any Senior Indebtedness of ours would
not constitute a default or Event of Default in respect of any Trust Preferred
Securities. However, in the event of payment defaults under, or acceleration
of, our Senior Indebtedness, the subordination provisions of the Subordinated
Indenture provide that no payments may be made in respect of the related Junior
Subordinated Debentures until the Senior Indebtedness has been paid in full or
any payment default under the Subordinated Indenture has been cured or waived.
See "ADDITIONAL TERMS OF JUNIOR SUBORDINATED DEBENTURES--Subordination."
Limited Purpose of Trust
The Trust Preferred Securities issued by a Trust represent preferred
undivided beneficial interests in the assets of the Trust, and the Trust exists
for the sole purpose of issuing its Trust Preferred Securities and Trust Common
Securities and investing the proceeds of these Trust Securities in Junior
Subordinated Debentures. A principal difference between the rights of a holder
of a Trust Preferred Security and a holder of a Junior Subordinated Debenture
is that a holder of a Junior Subordinated Debenture is entitled to receive from
us payments on Junior Subordinated Debentures held, while a holder of Trust
Preferred Securities is entitled to receive distributions or other amounts
distributable with respect to the Trust Preferred Securities from a Trust, or
from us under a Guarantee, only if and to the extent the Trust has funds
available for the payment of the distributions.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution of a Trust, other than any
dissolution involving the distribution of the related Junior Subordinated
Debentures, after satisfaction of liabilities to creditors of the Trust as
required by applicable law, the holders of the Trust Preferred Securities
issued by the Trust will be entitled to receive, out of assets held by the
Trust, the liquidation distribution in cash. See "DESCRIPTION OF TRUST
PREFERRED SECURITIES--Liquidation Distribution Upon Dissolution." Upon any
voluntary or involuntary liquidation or bankruptcy of CP&L Energy, a Trust, as
registered holder of Junior Subordinated Debentures, would be a subordinated
creditor of ours, subordinated and junior in right of payment to all Senior
Indebtedness as set forth in the Subordinated Indenture, but entitled to
receive payment in full of all amounts payable with respect to the Junior
Subordinated Debentures before any of our shareholders receives payments or
distributions. Since we are the guarantor under each of the Guarantees and have
agreed under the Subordinated Indenture to pay for all costs, expenses and
liabilities of each Trust, other than each Trust's obligations to the holders
of the respective Trust Securities, the positions of a holder of Trust
Preferred Securities and a holder of Junior Subordinated Debentures relative to
other creditors and to our shareholders in the event of our liquidation or
bankruptcy are expected to be substantially the same.
Accounting Treatment
Each Trust will be treated as a subsidiary of ours for financial reporting
purposes. Accordingly, our consolidated financial statements will include the
accounts of each Trust. The Trust Preferred Securities issued by the Trusts,
along with any other trust preferred securities that we guarantee on an
equivalent basis, will be presented as long-term debt in our consolidated
balance sheets, and appropriate disclosures about the Trust
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Preferred Securities, the related Guarantees and the Junior Subordinated
Debentures will be included in the notes to the consolidated financial
statements. We will record distributions that each Trust pays on the Trust
Preferred Securities it issues as an expense in our consolidated statement of
income.
DESCRIPTION OF CAPITAL STOCK
The following summary of the characteristics of our capital stock is
qualified in all respect by reference to our articles of incorporation and
bylaws, each as amended, copies of which are on file with the Securities and
Exchange Commission as Exhibits 3(a)(1) and 3(b)(1), respectively, to our
Quarterly Report on Form 10-Q, dated August 14, 2000. Reference is also made to
the laws of the State of North Carolina. Our authorized equity capitalization
consists of 500,000,000 shares of Common Stock, no par value per share, and
20,000,000 shares of Preferred Stock, no par value per share. As of October 31,
2000, 159,597,655 shares of our Common Stock and no shares of our Preferred
Stock were issued and outstanding.
Common Stock Listing
Our outstanding shares of Common Stock are listed on the New York Stock
Exchange under the symbol "CPL." Any additional Common Stock we issue will also
be listed on the NYSE.
Preferred Stock
Our board of directors has the authority under a "blank check" provision in
our articles to issue, without any vote or action by the CP&L Energy
shareholders, shares of CP&L Energy Preferred Stock in one or more series and
to fix the designations, preferences, rights, qualifications, limitations and
restrictions of the stock, including the dividend rights, conversion rights,
terms of redemption--including sinking fund provisions--liquidation preferences
and the number of shares constituting any series. The CP&L Energy board of
directors may also fix the voting rights, if any, of a series, except that it
does not have authority under the "blank check" provision to issue Preferred
Stock with more than one vote per share. There are no shares of CP&L Energy
Preferred Stock outstanding as of the date of this prospectus, and there are no
existing agreements or understandings for the designation of any series of
Preferred Stock or the issuance of preferred shares.
Common Stock
This description of the CP&L Energy Common Stock assumes that no CP&L Energy
Preferred Stock is issued and outstanding and that the CP&L Energy board of
directors has not determined the rights and preferences of any shares of CP&L
Energy Preferred Stock. The rights and preferences of the CP&L Energy Common
Stock, as generally described below, may change in relation to any shares of
CP&L Energy Preferred Stock that might be issued in the future.
Par Value
The CP&L Energy Common Stock does not have a stated par value. A designated
par value is not required under North Carolina law and has no useful purpose
under modern corporate practice.
Dividend Rights
Subject to the prior rights, if any, of holders of CP&L Energy Preferred
Stock, holders of CP&L Energy Common Stock are entitled to any dividends that
might be declared by CP&L Energy's board of directors. CP&L Energy may purchase
or otherwise acquire outstanding shares of CP&L Energy Common Stock out of
funds or other property legally available for this purpose.
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Voting Rights And Cumulative Voting
Each share of CP&L Energy Common Stock is entitled to one vote on all
matters on which holders of Common Stock are entitled to vote. Holders of
Common Stock do not have cumulative voting rights for the election of
directors. Consequently, the holders of more than 50% of the shares of Common
Stock voting can elect all of CP&L Energy's directors, and in this event the
holders of the remaining shares of Common Stock voting--less than 50%--would
not have sufficient votes to elect any directors.
Preemptive Rights
The holders of CP&L Energy Common Stock have no preemptive rights to
purchase additional shares of CP&L Energy Common Stock or other securities of
CP&L Energy.
Redemption/Conversion
Shares of CP&L Energy Common Stock are not subject to any redemption
provisions and are not convertible into any other securities or property.
Transfer Agent And Registrar
The transfer agent and registrar for the CP&L Energy Common Stock is
Equiserve Trust Company, N.A.
Dividends
Holders of Common Stock may receive dividends when declared by the Board of
Directors. Dividends may be paid in cash, stock or other form. In certain
cases, holders of Common Stock may not receive dividends until we have
satisfied our obligations to any holders of Preferred Stock. Under certain
circumstances, any debt instrument may restrict our ability to pay cash
dividends.
Fully Paid
All outstanding shares of Common Stock are fully paid and non-assessable.
Any additional Common Stock we issue will also be fully paid and non-
assessable.
Voting Rights
Each share of Common Stock is entitled to one vote in the election of
directors and other matters. Holders of Common Stock are not entitled to
cumulative voting rights.
Other Rights
We will notify holders of Common Stock of any shareholders' meetings
according to applicable law. If we liquidate, dissolve or wind up our business,
either voluntarily or not, holders of Common Stock will share equally in the
assets remaining after we pay our creditors and holders of Preferred Stock.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
We may issue Stock Purchase Contracts, including contracts obligating
holders to purchase from us, and us to sell to the holders, a specified number
of shares of Common Stock at a future date or dates, which we refer to in this
prospectus as "Stock Purchase Contracts." The price per share of Common Stock
and the number of shares of Common Stock may be fixed at the time the Stock
Purchase Contracts are issued or may be determined by reference to a specific
formula set forth in the Stock Purchase Contracts. The Stock Purchase
37
<PAGE>
Contracts may be issued separately or as part of units consisting of a Stock
Purchase Contract and beneficial interests in debt securities, Trust Preferred
Securities, Preferred Stock or debt obligations of third parties, including
U.S. treasury securities, securing the holders' obligations to purchase the
Common Stock under the Stock Purchase Contracts, which we refer to in this
prospectus as "Stock Purchase Units." The Stock Purchase Contracts may require
us to make periodic payments to the holders of the Stock Purchase Units or vice
versa, and these payments may be unsecured or refunded on some basis. The Stock
Purchase Contracts may require holders to secure their obligations under those
contracts in a specified manner.
The applicable prospectus supplement will describe the terms of the Stock
Purchase Contracts or Stock Purchase Units, including, if applicable,
collateral or depositary arrangements, relating to the Stock Purchase Contracts
or Stock Purchase Units.
PLAN OF DISTRIBUTION
We may sell the securities in any of three ways:
. through underwriters or dealers;
. directly through a limited number of institutional purchasers or to a
single purchaser; or
. through agents.
The applicable prospectus supplement will set forth the terms under which
the securities are offered, including
. the names of any underwriters, dealers or agents;
. the purchase price and the net proceeds to us from the sale;
. any underwriting discounts and other items constituting underwriters'
compensation;
. any initial public offering price; and
. any discounts or concessions allowed, re-allowed or paid to dealers.
We or any underwriters or dealers may change from time to time any initial
public offering price and any discounts or concessions allowed or re-allowed or
paid to dealers.
If we use underwriters in the sale, the securities will be acquired by the
underwriters for their own account and may be resold in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of the sale. Unless the
applicable prospectus supplement states otherwise, the obligations of the
underwriters to purchase the securities will be subject to certain conditions,
and the underwriters will be severally obligated to purchase all of the
securities, except that in certain cases involving a default by an underwriter,
less than all of the securities may be purchased. If we sell securities through
an agent, the applicable prospectus supplement will state the name and any
commission payable by us to the agent. Unless the prospectus supplement states
otherwise, any agent acting for us will be acting on a best efforts basis for
the period of its appointment.
The applicable prospectus supplement will state whether we will authorize
agents, underwriters or dealers to solicit offers by certain specified
institutions to purchase securities at the public offering price set forth in
the prospectus supplement pursuant to delayed delivery contracts providing for
payment and delivery on a specified future date. These contracts will be
subject to the conditions set forth in the prospectus supplement. Additionally,
the prospectus supplement will set forth the commission payable for
solicitation of these contracts.
Agents and underwriters may be entitled under agreements with us to
indemnification by us against certain civil liabilities, including liabilities
under the Securities Act of 1933.
38
<PAGE>
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference from the Carolina Power & Light
Company Annual Report on Form 10-K for the year ended December 31, 1999 have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated by reference in this prospectus, and have been so
incorporated in reliance upon the report of Deloitte & Touche LLP given upon
their authority as experts in accounting and auditing.
LEGAL OPINIONS
William D. Johnson, of our legal department, and Hunton & Williams of
Raleigh, North Carolina, our outside counsel, will issue opinions about the
legality of the offered securities for us. Any underwriters will be advised
about issues relating to any offering by their own legal counsel, Winthrop,
Stimson, Putnam & Roberts of New York, New York.
39
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<CAPTION>
Estimated
Item Total
---- -------------
<S> <C>
Securities and Exchange Commission registration fee........... $1,056,000.00
Rating agencies' fees......................................... 1,200,000.00
Trustees' fees................................................ 60,000.00
Counsels' fees................................................ 500,000.00
Accountants' fees............................................. 150,000.00
Printing and engraving........................................ 60,000.00
Blue Sky fees................................................. 20,000.00
Miscellaneous................................................. 50,000.00
-------------
Total....................................................... $3,096,000.00
=============
</TABLE>
All amounts other than the registration fee are estimated.
Item 15. Indemnification of Directors and Officers.
Sections 55-8-51 through 55-8-57 of the North Carolina Business Corporation
Act (the "NCBCA") and the Articles of Incorporation and Bylaws of CP&L Energy
provide for indemnification of the registrant's directors and officers in a
variety of circumstances, which may include liabilities under the Securities
Act of 1933, as amended. CP&L Energy has insurance covering expenditures it
might incur in connection with the lawful indemnification of its directors and
officers for their liabilities and expenses. Officers and directors of CP&L
Energy also have insurance which insures them against certain liabilities and
expenses.
As authorized by the NCBCA, and to the fullest extent permitted by it, the
CP&L Energy Articles of Incorporation provide that a CP&L Energy director will
not be liable to CP&L Energy or to any CP&L Energy shareholder for monetary
damages arising from the director's breach of his or her duties as a director.
The NCBCA permits these provisions, except for (i) acts or omissions that the
director at the time of the breach knew or believed were clearly in conflict
with the best interests of the corporation, (ii) unlawful distributions, and
(iii) any transaction from which the director derived an improper personal
benefit.
The NCBCA provides directors and officers with a right to indemnification
relating to official conduct when the director or officer has been wholly
successful in defense of a claim. In addition, a director or officer without
the right to indemnification may apply to a court for an order requiring the
corporation to indemnify the director or officer in a particular case.
The NCBCA also authorizes a corporation to indemnify directors and officers
beyond the indemnification rights granted by law. The CP&L Energy Bylaws
provide that any person who is or was a director or officer of CP&L Energy and
any person who at the request of CP&L Energy serves or has served as an officer
or director (or in any position of similar authority) of any other corporation
or other enterprise, including as an individual trustee under any employee
benefit plan, will be reimbursed and indemnified against liability and expenses
incurred by that person in connection with any action, suit or proceeding
arising out of that person's status as a director or officer of CP&L Energy (i)
if that person's acts or omissions is required, authorized or approved by any
order or orders issued pursuant to the Public Utility Holding Company Act of
1935, the Federal Power Act, or any state statute regulating CP&L Energy or any
of its subsidiaries by reason of their being public utility companies or
subsidiaries of public utility holding companies, or any amendments to the
foregoing laws, or (ii) if that person's acts or omissions were not known or
believed by him or her to be clearly in conflict with the best interests of
CP&L Energy.
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<PAGE>
Item 16. Exhibits.
<TABLE>
<C> <S>
*1(a) Form of Underwriting Agreement for Debt Securities.
*1(b) Form of Underwriting Agreement for Trust Preferred Securities.
*1(c) Form of Underwriting Agreement for Preferred Stock.
*1(d) Form of Underwriting Agreement for Common Stock.
+1(e) Form of Underwriting Agreement for Stock Purchase Units.
4(a) Amended and Restated Articles of Incorporation, as amended and restated
on June 15, 2000 (filed as Exhibit 3(a)(i), Form 10-Q for the fiscal
quarter ended June 30, 1999, File No. 1-15929, and incorporated herein
by reference).
4(b) Bylaws, as amended and restated on June 15, 2000 (filed as Exhibit
3(b)(i), Form 10-Q for the fiscal quarter ended June 30, 1999, File No.
1-15929, and incorporated herein by reference).
*4(c) Form of Debt Securities Indenture.
*4(d) Form of Guarantee Agreement to be delivered by CP&L Energy, Inc.
*4(e) Certificate of Trust of CP&L Energy Capital Trust I.
*4(f) Trust Agreement of CP&L Energy Capital Trust I, dated November 6, 2000.
*4(g) Certificate of Trust of CP&L Energy Capital Trust II.
*4(h) Trust Agreement of CP&L Energy Capital Trust II, dated November 6,
2000.
*4(i) Certificate of Trust of CP&L Energy Capital Trust III.
*4(j) Trust Agreement of CP&L Energy Capital Trust III, dated November 6,
2000.
*4(k) Form of Amended and Restated Trust Agreement.
+4(l) Form of Stock Purchase Contract Agreement.
+4(m) Form of Pledge Agreement.
*5(a) Opinion of Hunton & Williams to CP&L Energy, Inc. as to the validity of
the Senior Debt Securities, Junior Subordinated Debentures, Guarantees,
Common Stock, Preferred Stock, Stock Purchase Contracts and Stock
Purchase Units to be issued by CP&L Energy, Inc.
*5(b) Opinion of Richards, Layton & Finger, special Delaware counsel, as to
the validity of the Trust Preferred Securities to be issued by CP&L
Energy Capital Trust I, CP&L Energy Capital Trust II and CP&L Energy
Capital Trust III.
*12 Computation of Ratios of Earnings to Fixed Charges.
*23(a) Consent of Hunton & Williams (contained in Exhibit 5(a)).
*23(b) Consent of Richards, Layton & Finger (contained in Exhibit 5(b).
*23(c) Consent of Deloitte & Touche LLP.
*24 Powers of Attorney (included herein).
+25(a) Statement of Eligibility of to act as trustee as to the Debt
Securities.
+25(b) Statement of Eligibility of to act as trustee as to the Junior
Subordinated Debentures.
+25(c) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust I.
+25(d) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust I Trust Preferred Securities.
</TABLE>
II-2
<PAGE>
<TABLE>
<C> <S>
+25(e) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust II.
+25(f) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust II Trust Preferred Securities.
+25(g) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust III.
+25(h) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust III Trust Preferred Securities.
</TABLE>
--------
* Previously filed.
+ To be filed subsequent to effectiveness of this Registration Statement and
incorporated by reference.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
1. To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(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; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this registration statement
or any material change to such information in this registration
statement;
provided, however, that the registrant need not file a post-effective
amendment to include the information required to be included by subsection
(i) or (ii) if such information is contained in periodic reports filed by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
registration statement.
2. That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in this
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions described under Item 15 above, 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 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
II-3
<PAGE>
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 Act and will be governed by the final
adjudication of such issue.
(d) The undersigned registrant hereby undertakes to file an application for
the purpose of determining the eligibility of the trustee under the Indenture
to act under subsection (a) of Section 310 of the Trust Indenture Act in
accordance with the rules and regulations prescribed by the Securities and
Exchange Commission under Section 305(b)(2) of the Trust Indenture Act.
II-4
<PAGE>
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 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Raleigh, State of North Carolina, on the 17th day of
November 2000.
CP&L Energy, Inc.
/s/ Robert B. McGehee
By: _________________________________
Robert B. McGehee
Executive Vice President and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ William Cavanaugh III* President and Chief November 17, 2000
______________________________________ Executive Officer and
William Cavanaugh III Chairman of the Board
/s/ Peter M. Scott* Executive Vice President November 17, 2000
______________________________________ and Chief Financial
Peter M. Scott Officer (and principal
accounting officer)
/s/ Edwin B. Borden* Director November 17, 2000
______________________________________
Edwin B. Borden
/s/ David L. Burner* Director November 17, 2000
______________________________________
David L. Burner
/s/ Charles W. Coker* Director November 17, 2000
______________________________________
Charles W. Coker
/s/ Richard L. Daugherty* Director November 17, 2000
______________________________________
Richard L. Daugherty
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ Estell C. Lee* Director November 17, 2000
______________________________________
Estell C. Lee
/s/ William O. McCoy* Director November 17, 2000
______________________________________
William O. McCoy
/s/ E. Marie McKee* Director November 17, 2000
______________________________________
E. Marie McKee
/s/ John H. Mullin, III* Director November 17, 2000
______________________________________
John H. Mullin, III
/s/ J. Tylee Wilson* Director November 17, 2000
______________________________________
J. Tylee Wilson
</TABLE>
/s/ Robert B. McGehee
By__________________________
Robert B. McGehee
Attorney-in-Fact
II-6
<PAGE>
Pursuant to the requirements of the Securities Act of 1933, CP&L Energy
Capital Trust I has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Raleigh,
State of North Carolina, on the 17th day of November 2000.
CP&L ENERGY, INC. CAPITAL TRUST I
By CP&L Energy, Inc., as Sponsor
/s/ Thomas R. Sullivan
By: _________________________________
Thomas R. Sullivan, Treasurer
Pursuant to the requirements of the Securities Act of 1933, CP&L Energy
Capital Trust II has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Raleigh, State of North Carolina, on the 17th day of November 2000.
CP&L ENERGY, INC. CAPITAL TRUST II
By CP&L Energy, Inc., as Sponsor
/s/ Thomas R. Sullivan
By: _________________________________
Thomas R. Sullivan, Treasurer
Pursuant to the requirements of the Securities Act of 1933, CP&L Energy
Capital Trust III has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Raleigh, State of North Carolina, on the 17th day of November 2000.
CP&L ENERGY, INC. CAPITAL TRUST III
By CP&L Energy, Inc., as Sponsor
/s/ Thomas R. Sullivan
By: _________________________________
Thomas R. Sullivan, Treasurer
II-7
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit
Number Description of Document
------- -----------------------
<C> <S>
*1(a) Form of Underwriting Agreement for Debt Securities.
*1(b) Form of Underwriting Agreement for Trust Preferred Securities.
*1(c) Form of Underwriting Agreement for Preferred Stock.
*1(d) Form of Underwriting Agreement for Common Stock.
+1(e) Form of Underwriting Agreement for Stock Purchase Units.
4(a) Amended and Restated Articles of Incorporation, as amended and
restated on June 15, 2000 (filed as Exhibit 3(a)(i), Form 10-Q for the
fiscal quarter ended June 30, 1999, File No. 1-15929, and incorporated
herein by reference).
4(b) Bylaws, as amended and restated on June 15, 2000 (filed as Exhibit
3(b)(i), Form 10-Q for the fiscal quarter ended June 30, 1999, File
No. 1-15929, and incorporated herein by reference).
*4(c) Form of Debt Securities Indenture.
*4(d) Form of Guarantee Agreement to be delivered by CP&L Energy, Inc.
*4(e) Certificate of Trust of CP&L Energy Capital Trust I.
*4(f) Trust Agreement of CP&L Energy Capital Trust I, dated November 6,
2000.
*4(g) Certificate of Trust of CP&L Energy Capital Trust II.
*4(h) Trust Agreement of CP&L Energy Capital Trust II, dated November 6,
2000.
*4(i) Certificate of Trust of CP&L Energy Capital Trust III.
*4(j) Trust Agreement of CP&L Energy Capital Trust III, dated November 6,
2000.
*4(k) Form of Amended and Restated Trust Agreement.
+4(l) Form of Stock Purchase Contract Agreement.
+4(m) Form of Pledge Agreement.
*5(a) Opinion of Hunton & Williams to CP&L Energy, Inc. as to the validity
of the Senior Debt Securities, Junior Subordinated Debentures,
Guarantees, Common Stock, Preferred Stock, Stock Purchase Contracts
and Stock Purchase Units to be issued by CP&L Energy, Inc.
*5(b) Opinion of Richards, Layton & Finger, special Delaware counsel, as to
the validity of the Trust Preferred Securities to be issued by CP&L
Energy Capital Trust I, CP&L Energy Capital Trust II and CP&L Energy
Capital Trust III.
*12 Computation of Ratios of Earnings to Fixed Charges.
*23(a) Consent of Hunton & Williams (contained in Exhibit 5(a)).
*23(b) Consent of Richards, Layton & Finger (contained in Exhibit 5(b).
*23(c) Consent of Deloitte & Touche LLP.
*24 Powers of Attorney (included herein).
+25(a) Statement of Eligibility of to act as trustee as to the Debt
Securities.
+25(b) Statement of Eligibility of to act as trustee as to the Junior
Subordinated Debentures.
+25(c) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust I.
</TABLE>
II-8
<PAGE>
<TABLE>
<CAPTION>
Exhibit Number Description of Document
-------------------------------------
<C> <S>
+25(d) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust I Trust Preferred Securities.
+25(e) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust II.
+25(f) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust II Trust Preferred Securities.
+25(g) Statement of Eligibility of to act as trustee as to the Guarantee
for the benefit of the holders of Trust Preferred Securities of CP&L
Energy Capital Trust III.
+25(h) Statement of Eligibility of to act as trustee as to the CP&L
Energy Capital Trust III Trust Preferred Securities.
</TABLE>
--------
* Previously filed.
+ To be filed subsequent to effectiveness of this Registration Statement and
incorporated by reference.
II-9
