AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 17, 1998.
REGISTRATION NO. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DUKE ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
NORTH CAROLINA 56-0205520
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
</TABLE>
422 SOUTH CHURCH STREET
CHARLOTTE, NC 28202-1904
(704) 594-0887
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
DUKE ENERGY CORPORATION
RETIREMENT SAVINGS PLAN
AND
EMPLOYEES' STOCK OWNERSHIP PLAN
(Full titles of the plans)
<TABLE>
<S> <C>
RICHARD J. OSBORNE JOHN SPUCHES
EXECUTIVE VICE PRESIDENT DEWEY BALLANTINE,LLP
AND CHIEF FINANCIAL OFFICER 1301 AVENUE OF THE AMERICAS
422 SOUTH CHURCH STREET NEW YORK, NEW YORK 10019-6092
CHARLOTTE, NORTH CAROLINA 28202-1904 TELEPHONE NO. 212-259-7700
TELEPHONE NO. 704-382-5159
</TABLE>
(Names, addresses, including zip codes, and telephone numbers,
including area codes, of agents for service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C>
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM
SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFER-
BE REGISTERED(1) REGISTERED PER SHARE (2) ING PRICE (2)
<S> <C> <C> <C>
Common Stock,
without par value......... 4,400,000 shares $ 58.344 $ 256,713,600
---------- ----------
<CAPTION>
TITLE OF AMOUNT OF
SECURITIES TO REGISTRATION
BE REGISTERED(1) FEE
<S> <C>
Common Stock,
without par value......... $ 75,815
--------------
</TABLE>
(1) In addition, this Registration Statement also covers an indeterminate amount
of interests to be offered or sold in connection with the Plans described
herein pursuant to Rule 416(c) under the Securities Act of 1933, as amended.
(2) Pursuant to Rule 457(h), these prices are estimated solely for the purpose
of calculating the registration fee and are based upon the average of the
high and low sales prices of the Registrant's Common Stock on the New York
Stock Exchange on July 13, 1998.
THERE ALSO ARE REGISTERED HEREUNDER SUCH ADDITIONAL INDETERMINATE NUMBER OF
SHARES AS MAY BE ISSUED AS A RESULT OF THE ADJUSTMENT PROVISIONS OF THE PLANS.
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
This Registration Statement on Form S-8 (the "Registration Statement") is
being filed by Duke Energy Corporation (the "Company" or "Registrant") with
respect to the Registrant's Retirement Savings Plan (the "Retirement Savings
Plan") and the Registrant's Employees' Stock Ownership Plan (the "ESOP"; and
together with the Retirement Savings Plan, the "Plans"), referred to on the
cover of this Registration Statement. The document(s) containing the information
required in Part I of this Registration Statement will be sent or given to each
participant in the Retirement Savings Plan and each participant in the ESOP, as
specified by Rule 428(b)(1) promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"1933 Act"). Such document(s) are not being filed with the Commission but
constitute (together with the documents incorporated by reference into this
Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that
meets the requirements of Section 10(a) of the 1933 Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission are incorporated herein
by reference:
(Bullet) Annual Report on Form 10-K of the Company for the fiscal year
ended December 31, 1997.
(Bullet) Quarterly Report on Form 10-Q of the Company for the quarter
ended March 31, 1998.
(Bullet) Annual Reports on Form 11-K of the Retirement Savings Plan and the
ESOP for the fiscal year ended December 31, 1997.
(Bullet) The description of the Common Stock, without par value (the
"Common Stock"), of the Company, which is contained in the
Company's Registration Statement on Form S-4, Registration No.
333-23227, filed with the Commission on March 13, 1997, including
any amendments or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of
this Registration Statement and prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold shall be deemed to be
incorporated by reference and to be a part hereof from the date of the filing of
such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Common Stock offered hereby will
be passed upon for the Company by Robert S. Lilien, Vice President and General
Counsel, Corporate and Energy Services. As of June 30, 1998 Mr. Lilien was the
beneficial owner of 1,109 shares of Duke Energy Common Stock, and options to
purchase 9,800 shares of Duke Energy Common Stock, none of which are currently
exercisable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation
Act and the By-Laws of the Company permit indemnification of the Registrant's
directors and officers in a variety of circumstances, which may include
liabilities under the 1933 Act. In addition, the Registrant has purchased
insurance permitted by the law of North Carolina on behalf of directors,
officers, employees or agents which may cover liabilities under the 1933 Act.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
1
<PAGE>
ITEM 8. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's
Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the
Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to
Exhibit 4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997).
4(d) By-Laws of Registrant (incorporated by reference to Exhibit 4(d) of
the Registrant's Form S-8 (Registration No. 333-34655) filed by the Registrant on August 29, 1997).
5 Opinion of Robert S. Lilien, Esq.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP.
23(c) Consent of Robert S. Lilien, Esq. (included in Exhibit 5).
24(a) Copy of power of attorney authorizing Robert S. Lilien, Richard J. Osborne and others to sign the Registration
Statement on behalf of the Registrant and certain of its directors and officers.
24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
</TABLE>
ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a) (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. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(iii) To include any material information with respect to the plans
of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement; provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii)
do not apply if the registration statement is on Form S-3, Form S-8 or
Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Commission by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the 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) 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 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in the registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(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 foregoing provisions, 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 of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
2
<PAGE>
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 of 1933 and will be governed by the final adjudication of such
issue.
3
<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-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 17th day
of July , 1998.
DUKE ENERGY CORPORATION
Registrant
By R. B. PRIORY
R. B. PRIORY
CHAIRMAN OF THE BOARD
AND CHIEF EXECUTIVE OFFICER
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 date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
R.B. PRIORY Chairman of the Board and Chief Executive July 17, 1998
Officer (Principal Executive Officer)
RICHARD J. OSBORNE Executive Vice President and Chief Financial July 17, 1998
Officer (Principal Financial Officer)
JEFFREY L. BOYER Vice President and Corporate Controller July 17, 1998
(Principal Accounting Officer)
PAUL M. ANDERSON
G. ALEX BERNHARDT
ROBERT J. BROWN
WILLIAM A. COLEY
WILLIAM T. ESREY A majority of the Directors July 17, 1998
ANN MAYNARD GRAY
HAROLD S. HOOK
</TABLE>
4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
W.W. JOHNSON
MAX LENNON
LEO E. LINBECK, JR.
JAMES G. MARTIN
R.B. PRIORY
RUSSELL M. ROBINSON, II
</TABLE>
Richard J. Osborne, by signing his name hereto, does hereby sign this
document on behalf of the Registrant and on behalf of each of the above-named
persons pursuant to a power of attorney duly executed by the Registrant and such
persons, filed with the Securities and Exchange Commission as an exhibit hereto.
/s/ RICHARD J. OSBORNE
RICHARD J. OSBORNE
ATTORNEY-IN-FACT
Pursuant to the requirements of the Securities Act of 1933, the Duke Energy
Corporation Benefits Committee has duly caused this Registration Statement to be
signed on its behalf by the undersigned thereunto duly authorized, in the City
of Charlotte, State of North Carolina, on the 17th day of July , 1998.
DUKE ENERGY CORPORATION
RETIREMENT SAVINGS PLAN
By /s/ BARBARA B. ORR
BARBARA B. ORR
BENEFITS COMMITTEE CHAIR
DUKE ENERGY CORPORATION
EMPLOYEES' STOCK OWNERSHIP PLAN
By /s/ BARBARA B. ORR
BARBARA B. ORR
BENEFITS COMMITTEE CHAIR
5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
<S> <C>
4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's Form
10-K for the year ended December 31, 1996, File No. 1-4928).
4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the
Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928).
4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to Exhibit
4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997).
4(d) By-Laws of Registrant (incorporated by reference to Exhibit 4(d) of
the Registrant's Form S-8 (Registration No. 333-34655) filed by
the Registrant on August 29, 1997).
5 Opinion of Robert S. Lilien, Esq.
23(a) Independent Auditors' Consent of Deloitte & Touche LLP.
23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP.
23(c) Consent of Robert S. Lilien, Esq. (included in Exhibit 5).
24(a) Copy of power of attorney authorizing Robert S. Lilien, Richard J. Osborne and others to sign the Registration
Statement on behalf of the Registrant and certain of its directors and officers.
24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
</TABLE>
6
EXHIBIT 5
July 17, 1998
Duke Energy Corporation
422 South Church Street
Charlotte, NC 282021904
Gentlemen:
I am Vice President and General Counsel, Corporate and Energy Services, of
Duke Energy Corporation, a North Carolina corporation (the "Company"), and in
such capacity I have examined the Company's Registration Statement on Form S-8
(the "Registration Statement") under the Securities Act of 1933, as amended (the
"1933 Act"), for the registration of 4,400,000 shares of the Company's Common
Stock, without par value (the "Shares"), to be issued under the Company's
Retirement Savings Plan (the "Retirement Savings Plan") and the Employees' Stock
Ownership Plan (the "ESOP").
I have examined and am familiar with originals or copies, certified or
otherwise identified to my satisfaction, of such documents, corporate records,
certificates of public officials and officers of the Company and such other
instruments as I have deemed necessary or appropriate as a basis for the
opinions expressed below.
Based on the foregoing, I am of the opinion that the Shares are duly
authorized and when the Shares have been issued and delivered in accordance with
the terms of the Retirement Savings Plan and the terms of the ESOP, such Shares
will be legally issued, fully paid and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5 to the
Registration Statement. In giving such consent, I do not thereby admit that I
come within the category of persons whose consent is required under Section 7 of
the 1933 Act, as amended, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
/S/ ROBERT S. LILIEN
ROBERT S. LILIEN
EXHIBIT 23(A)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of Duke Energy Corporation of our report dated February 13, 1998
appearing in the annual report on Form 10-K of Duke Energy Corporation for the
year ended December 31, 1997.
DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
July 17, 1998
EXHIBIT 23(B)
INDEPENDENT AUDITORS' CONSENT
We consent to incorporation by reference in this registration statement
on Form S-8 of Duke Energy Corporation of our report dated January 16, 1997, on
the consolidated financial statements of PanEnergy Corp as of December 31, 1996
and for the years ended December 31, 1996 and 1995, which report appears in the
Annual Report on Form 10-K of Duke Energy Corporation for the year ended
December 31, 1997.
KPMG Peat Marwick LLP
Houston, Texas
July 17, 1998
EXHIBIT 23(C)
CONSENT OF COUNSEL
The consent of Robert S. Lilien, is contained in his opinion filed as
Exhibit 5 to this Registration Statement.
EXHIBIT 24(A)
DUKE ENERGY CORPORATION
POWER OF ATTORNEY
Registration Statement on Form S-8 under the Securities Act of 1933
with respect to up to 4,400,000 shares of Common Stock, without par value, of
Duke Energy Corporation to be issued under the Retirement Savings Plan and the
Employees' Stock Ownership Plan of said Duke Energy Corporation
(Registration Statement)
The undersigned DUKE ENERGY CORPORATION, a North Carolina corporation, and
certain of its officers and/or directors, do each hereby constitute and appoint
Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr., and each of them,
to act as attorneys-in-fact for and in the respective names, places, and stead
of the undersigned, to execute, seal, sign, and file with the Securities and
Exchange Commission the Registration Statement of said Duke Energy Corporation
and any and all amendments thereto, hereby granting to said attorneys-in-fact,
and each of them, full power and authority to do and perform all and every act
and thing whatsoever requisite, necessary, or proper to be done in and about the
premises, as fully to all intents and purposes as the undersigned, or any of
them, might or could do if personally present, hereby ratifying and approving
the acts of said attorneys-in-fact.
Executed the 28th day of October, 1997.
DUKE ENERGY CORPORATION
By /s/ R. B. PRIORY
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
(Corporate Seal)
ATTEST:
ROBERT T.LUCAS III
ASSISTANT SECRETARY
<TABLE>
<S> <C>
/s/ R. B. PRIORY Chairman and Chief Executive Officer
R. B. PRIORY (Principal Executive Officer and Director)
/s/ RICHARD J. OSBORNE Executive Vice President and Chief Financial Officer
RICHARD J. OSBORNE (Principal Financial Officer)
/s/ JEFFREY L. BOYER Vice President and Corporate Controller
JEFFREY L. BOYER (Principal Accounting Officer)
/s/ PAUL M. ANDERSON (Director)
PAUL M. ANDERSON
/s/ G. ALEX BERNHARDT (Director)
G. ALEX BERNHARDT
/s/ ROBERT J. BROWN (Director)
ROBERT J. BROWN
</TABLE>
<PAGE>
<TABLE>
<S> <C>
/s/ WILLIAM A. COLEY (Director)
WILLIAM A. COLEY
/s/ WILLIAM T. ESREY (Director)
WILLIAM T. ESREY
/s/ ANN MAYNARD GRAY (Director)
ANN MAYNARD GRAY
/s/ DENNIS R. HENDRIX (Director)
DENNIS R. HENDRIX
/s/ HAROLD S. HOOK (Director)
HAROLD S. HOOK
/s/ GEORGE DEAN JOHNSON, JR. (Director)
/s/ W. W. JOHNSON (Director)
W. W. JOHNSON
/s/ MAX LENNON (Director)
MAX LENNON
/s/ LEO E. LINBECK, JR. (Director)
LEO E. LINBECK, JR.
/s/ JAMES G. MARTIN (Director)
JAMES G. MARTIN
/s/ BUCK MICKEL (Director)
BUCK MICKEL
/s/ RUSSELL M. ROBINSON, II (Director)
RUSSELL M. ROBINSON, II
</TABLE>
EXHIBIT 24(B)
DUKE ENERGY CORPORATION
CERTIFICATE
The undersigned officer of DUKE ENERGY CORPORATION, a North Carolina
corporation (the "Corporation"), does hereby certify that attached hereto is a
true and complete copy of a resolution adopted at a meeting of the Board of
Directors of the Corporation with respect to the Registration Statements, which
resolution is presently in full force and effect.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed
the corporate seal of the Corporation this 17th day of July, 1998.
/s/ ROBERT T. LUCAS III
ROBERT T. LUCAS III
ASSISTANT SECRETARY
(Corporate Seal)
FURTHER RESOLVED, that each officer and director who may be required to
execute such Registration Statement or amendment thereto (whether on behalf of
the Corporation or as an officer or director thereof or by attesting the seal of
the Corporation or otherwise) be and hereby is authorized to execute a power of
attorney appointing Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr.,
and each of them, as true and lawful attorneys and agents to execute in his or
her name, place and stead (in any such capacity) such Registration Statement or
amendments thereto and all instruments necessary or advisable in connection
therewith, to attest the seal of the Corporation thereon and to file the same
with the Securities and Exchange Commission, each of said attorneys and agents
to have power to act with or without the others and to have full power and
authority to do and perform in the name and on behalf of each of such officers
and directors, or both, as the case may be, every act whatsoever necessary or
advisable to be done in the premises as fully and to all intents and purposes as
any such officer or director might or could do in person;
