As filed with the Securities and Exchange Commission on October 18, 2000.
Registration Statement No. 333-_____
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
--------------------
Form S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------
CP&L Energy, Inc.
(Exact name of Registrant as specified in its Charter)
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
(919) 546-6111
(Address of principal executive office, including zip code)
North Carolina 56-2155481
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
CP&L Energy, Inc.
Stock Purchase-Savings Plan
(Full title of the Plan)
----------------------
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, addresses, including zip codes, and telephone numbers including
area codes, of agents for service)
Copy to:
TIMOTHY S. GOETTEL, ESQ.
WELTON O. SEAL, JR., ESQ.
Hunton & Williams
421 Fayetteville Street Mall
Raleigh, North Carolina 27601
(919) 899-3094
--------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Maximum Proposed Maximum
Title Of Securities Amount To Be Offering Price Aggregate Amount Of
To Be Registered Registered Per Share* Offering Price* Registration Fee*
----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value 10,000,000 shares $41.34375 $413,437,500 $109,148
================================================================================================================
* Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) of the Securities Act of 1933. This amount was
calculated based on the average of the high and low sales prices of the
Common Stock on the New York Stock Exchange on October 12, 2000.
================================================================================================================
</TABLE>
In addition, pursuant to Rule 416(c) under the Securities Act of
1933, this registration statement covers an indeterminate amount of interests
to be offered or sold pursuant to the employee benefit plan described herein.
<PAGE>
CP&L ENERGY, INC.
On June 19, 2000, through the consummation of a Share Exchange, as
defined below, CP&L Energy, Inc. (formerly CP&L Holdings, Inc.), a North
Carolina corporation (the "Company"), became the holding company for Carolina
Power & Light Company ("CP&L"). The creation of this new holding company was
effected through an Agreement and Plan of Share Exchange (the "Plan of
Exchange") between CP&L and the Company. The Plan of Exchange provided for,
among other things, a statutory share exchange pursuant to which all shares of
common stock of CP&L would be exchanged for shares of common stock of the
Company (the "Share Exchange"). The shareholders of CP&L approved the Share
Exchange on October 20, 1999.
As a result of the Share Exchange, CP&L became a direct, wholly owned
subsidiary of the Company. Each share of common stock of CP&L was exchanged for
one share of common stock of the Company.
In accordance with Rule 414 under the Securities Act of 1933, as
amended (the "Securities Act"), the Company, as the successor issuer to CP&L,
hereby expressly adopts as its own, for all purposes of the Securities Act and
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), the
Registration Statement (File No. 33-33520) filed on Form S-8 by CP&L on February
14, 1990, which refers to the Carolina Power & Light Company Stock
Purchase-Savings Plan (the "Prior Registration Statement").
The Plan shall be known henceforth as the CP&L Energy, Inc. Stock
Purchase-Savings Plan. The Plan continues to cover, among others, employees of
the Company and its subsidiaries; however, shares of stock issued in accordance
with the Plan shall be shares of the Company's common stock rather than shares
of CP&L common stock.
This Registration Statement covers 10,000,000 additional shares of
common stock, no par value, of the Company (the "Common Stock") and an
indeterminate amount of participation interests issuable pursuant to the Plan.
The contents of the Prior Registration Statement are incorporated by reference
herein.
Pursuant to Rule 429, the Prospectus related to shares of Common Stock
registered pursuant to this Registration Statement for the Plan also relates to
shares of CP&L's common stock registered pursuant to the Prior Registration
Statement.
I-1
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the Securities and
Exchange Commission (the "Commission") pursuant to the Exchange Act are hereby
incorporated by reference into this Registration Statement:
(a) the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1999;
(b) the Plan's Annual Report on Form 11-K for the fiscal year
ended December 31, 1999;
(c) the Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 2000;
(d) the Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000;
(e) the Company's Current Report on Form 8-K, dated June 21, 2000;
(f) the Company's Current Report on Form 8-K, dated September 1,
2000;
(g) the Company's Current Report on Form 8-K, dated September 20,
2000; and
(h) the description of the Company's Common Stock in the Company's
Registration Statement on Form 8-A (File No. 001-15929) filed
under the Securities Exchange Act of 1934 with respect to the
Company's Common Stock, including all amendments and reports
filed for the purpose of updating such description.
In addition to the foregoing, all documents subsequently filed by (i)
the Company or (ii) the Plan pursuant to Sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act, prior to the filing of a post-effective amendment which
indicates that all securities registered hereunder have been issued or which
deregisters all securities offered then remaining unsold, shall be deemed
incorporated by reference in this Registration Statement and to be a part hereof
from the date of the filing of such documents. Any statement, including
financial statements, contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
II-1
<PAGE>
Item 5. Interests of Named Experts and Counsel.
Certain legal matters regarding shares of Common Stock will be passed
upon for the Company by William D. Johnson, Senior Vice President and Corporate
Secretary of the Company. Mr. Johnson beneficially owns 27,083 shares of
Common Stock.
Item 6. 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
the Company provide for indemnification of the Company's directors and officers
in a variety of circumstances, which may include liabilities under the
Securities Act of 1933, as amended. The Company 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 the Company 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 Company's Articles of Incorporation provide that a director of the Company
will not be liable to the Company or to any Company 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 Company's Bylaws
provide that any person who is or was a director or officer of the Company and
any person who at the request of the Company 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 the Company (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 the Company 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 the
Company.
II-2
<PAGE>
Item 8. Exhibits.
4.1 Amended and Restated Articles of Incorporation of the Company,
as amended and restated June 15, 2000 (incorporated by
reference to Exhibit 3(a)(i) of the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000).
4.2 Bylaws of the Company, as amend and restated June 15, 2000
(incorporated by reference to Exhibit 3(b)(i) of the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2000).
5 Opinion of William D. Johnson as to the legality of the
securities being registered.
23.1 Consent of William D. Johnson (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on signature page).
Item 9. 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;
(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 Exchange Act that are
incorporated by reference in this Registration Statement.
2. That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to be a
new Registration Statement relating
II-3
<PAGE>
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) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act 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 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
II-4
<PAGE>
POWER OF ATTORNEY
Each director and/or officer of the issuer whose signature appears
below hereby appoints William Cavanaugh III, Robert B. McGehee, and Timothy S.
Goettel, and each of them severally, as his attorney-in-fact to sign in his name
and behalf, in any and all capacities stated below, and to file with the
Commission, any and all amendments, including post-effective amendments, to this
Registration Statement.
SIGNATURES
The Registrant
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 18th day of
October 2000.
CP&L ENERGY, INC.
/s/ William Cavanaugh III
----------------------------------------
William Cavanaugh III
Chairman, President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints William
Cavanaugh III, Robert B. McGehee and Timothy S. Goettel, and each of them
severally, as their attorney-in-fact to sign in their name and on their behalf,
in any and all capacities stated below, and to file with the Securities and
Exchange Commission, any and all amendments, including post-effective
amendments, to this registration statement.
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 Executive October 18, 2000
---------------------------- Officer and Chairman of the Board
William Cavanaugh III
/s/ Peter M. Scott Executive Vice President and Chief October 18, 2000
---------------------------- Financial Officer (and principal
Peter M. Scott accounting officer)
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
/s/ Edwin B. Borden Director October 18, 2000
----------------------------
Edwin B. Borden
/s/ David L. Burner Director October 18, 2000
----------------------------
David L. Burner
/s/ Charles W. Coker Director October 18, 2000
----------------------------
Charles W. Coker
/s/ Richard L. Daugherty Director October 18, 2000
----------------------------
Richard L. Daugherty
/s/ Estell C. Lee
---------------------------- Director October 18, 2000
Estell C. Lee
/s/ William O. McCoy Director October 18, 2000
----------------------------
William O. McCoy
/s/ E. Marie McKee Director October 18, 2000
----------------------------
E. Marie McKee
/s/ John H. Mullin, III Director October 18, 2000
----------------------------
John H. Mullin, III
/s/ J. Tylee Wilson Director October 18, 2000
----------------------------
J. Tylee Wilson
</TABLE>
II-6
<PAGE>
The Plan
Pursuant to the requirements of the Securities Act, the Plan 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 October 18, 2000.
CP&L ENERGY STOCK PURCHASE-SAVINGS PLAN
/s/ Robert D. Stock
------------------------------------------------
Robert D. Stock, on behalf of the CP&L Energy, Inc.
Stock Purchase-Savings Plan Administrative Committee
II-7
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
----------- -----------
4.1 Amended and Restated Articles of Incorporation of the Company,
as amended and restated June 15, 2000 (incorporated by
reference to Exhibit 3(a)(i) of the Company's Quarterly Report
on Form 10-Q for the quarter ended June 30, 2000).
4.2 Bylaws of the Company, as amend and restated June 15, 2000
(incorporated by reference to Exhibit 3(b)(i) of the Company's
Quarterly Report on Form 10-Q for the quarter ended June 30,
2000).
5 Opinion of William D. Johnson as to the legality of the
securities being registered.
23.1 Consent of William D. Johnson (included in Exhibit 5).
23.2 Consent of Deloitte & Touche LLP.
24 Power of Attorney (included on signature page).
