<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 21, 2000
Registration No. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
______________
Form S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
______________
North Carolina Natural Gas Corporation
(Exact name of registrant as specified in its charter)
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)
Delaware 56-0646235
(State of incorporation) (I.R.S. Employer Identification No.)
Don K. Davis
President and Chief Executive Officer
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:
<TABLE>
<S> <C> <C>
CHARLES R. MONROE, JR. ESQ. TIMOTHY S. GOETTEL, ESQ. RICHARD L. HARDEN, ESQ.
ANDREW A. GERBER Hunton & Williams Winthrop, Stimson, Putnam & Roberts
Hunton & Williams 421 Fayetteville Street Mall One Battery Park Plaza
101 South Tryon Street, Suite 3500 Raleigh, North Carolina 27601 New York, New York 10004-1490
Charlotte, North Carolina 28280 (919) 899-3000 (212) 858-1228
(704) 378-4700
</TABLE>
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
<TABLE>
<CAPTION>
====================================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class Amount to be Offering Price Aggregate Amount of
of Securities to be Registered Registered Per Unit Offering Price Registration Fee
------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Debt Securities..................... $300,000,000 (1) (2) $300,000,000 (1) (2) $79,200 (3)
------------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this registration statement exceed
$300,000,000. If any such securities are issued at an original issue
discount, then the aggregate initial offering price as so discounted shall
not exceed $300,000,000, notwithstanding that the stated principal amount
of such securities may exceed such amount.
(2) The proposed maximum initial offering price per unit will be determined,
from time to time, by the registrant in connection with the issuance by the
registrant of the securities registered hereunder.
(3) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933.
_________________
The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
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 Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
Subject to completion dated July 21, 2000
Prospectus
[NCNG Logo]
North Carolina Natural Gas Corporation
$300,000,000
Debt Securities
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------
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 process, we may sell the debt securities described in
this prospectus in one or more offerings up to a total dollar amount of
$300,000,000.
This prospectus provides you with a general description of the securities that
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. The 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 the matters discussed in this
prospectus. You should read this prospectus, including any documents that we
have incorporated by reference, and the related exhibits filed with the SEC and
any prospectus supplement together with additional information described below.
COMPANY AND ADDRESS
North Carolina Natural Gas Corporation is a public service corporation formed
under the laws of Delaware in 1955 and is primarily engaged in the transmission,
distribution and sale of natural gas in North Carolina. On July 15, 1999, we
were acquired by Carolina Power & Light Company, or CP&L. CP&L recently
converted to a holding company structure in which we became a wholly-owned
subsidiary of a new holding company called CP&L Energy, Inc. Our merger with
CP&L was accounted for using the purchase method of accounting and the effects
of the merger are reflected in our financial data as of the merger date.
Our principal executive offices are located at 411 Fayetteville Street, Raleigh,
North Carolina 27601-1748, telephone 919-546-6111.
RATIO OF EARNINGS TO FIXED
CHARGES
The following tables set forth our historical ratio of earnings to fixed charges
for the periods indicated:
For the Twelve Months Ended September 30
----------------------------------------
1998 1997 1996 1995
---- ---- ---- ----
5.14x 5.72x 5.32x 4.33x
For the Period From
-------------------
October 1, 1998 | July 15, 1999
to July 14, 1999 | to December 31, 1999
---------------- | --------------------
|
4.62x | 1.80x
For the Three Months Ended March 31
-----------------------------------
2000 | 1999
---- | ----
|
8.74x | 9.54x
Because of the seasonal nature of our business, our results of operations and
our ratios of earnings to fixed charges for the three-month periods ended March
31, 1999 and 2000 are not necessarily indicative of the results and ratios for
the full year.
Assuming the issuance of $300 million aggregate principal amount of debt
securities under this registration statement on January 1, 2000 at an average
interest rate of 7.5% and subsequent repayment of all previously outstanding
borrowings, our ratio of earnings to fixed charges at March 31, 2000 would have
been 3.14x.
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, and amortization of debt
discount and expense.
APPLICATION OF PROCEEDS
Unless we state otherwise in any prospectus supplement, we will use the net
proceeds from the sale of the offered securities for one or more of the
following:
. to finance our ongoing construction and maintenance program;
. to redeem, repurchase, repay, or retire outstanding indebtedness;
. to finance future acquisitions of other entities or their assets; and
. for other general corporate purposes.
We may temporarily invest any proceeds that are not immediately applied in U.S.
government or agency obligations, commercial paper, bank certificates of
deposit, or repurchase agreements collateralized by U.S. government or agency
2
<PAGE>
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 or through our Web
site at http://www.ncng.com or CP&L's Web site at http://www.cplc.com. 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 that 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 our Form 10 for the registration of securities
pursuant to Section 12(g) of the Securities Exchange Act of 1934, dated
July 21, 2000.
We also incorporate by reference any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 until
we sell all of the securities being registered.
You may request a copy of these filings at no cost, by writing or calling the
following address:
Robert F. Drennan, Jr., Manager
Investor Relations and
Funds Management
Treasury Department
Carolina Power & Light Company
411 Fayetteville Street
Raleigh, North Carolina 27601-1748
Telephone: (919) 546-7474
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.
3
<PAGE>
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms of the debt securities
offered through this prospectus. When we offer to sell a particular series, we
will describe the specific terms of that series in a prospectus supplement. The
securities will be issued under one or more indentures for debt securities, the
selected provisions of which we have summarized below. Each indenture under
which we issues securities will be independent of each other indenture unless
otherwise stated in a prospectus supplement. The summary is not complete. The
form of indenture, which includes provisions that are applicable to any
subordinated debt securities that we may issue, is filed as an exhibit to this
registration statement. You should read the form of indenture for provisions
that may be important to you. In the summary below, we have included references
to section numbers of the form of indenture so that you can easily locate these
provisions.
General
The debt securities offered by this prospectus will be our direct unsecured
general obligations. We may issue one or more new series of debt securities
under one or more indentures between us and a trustee whom we will name. The
information that we are providing you in this prospectus concerning the
indenture and related documents is only a summary of the information provided in
those documents. You should consult the debt securities themselves, the
indenture, 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.
The prospectus supplement applicable to a particular series of debt
securities may state that a particular series of debt securities will be
subordinated obligations of our company. In the following discussion, we will
refer to any of these subordinated obligations as the subordinated debt
securities. Unless the applicable prospectus supplement provides otherwise, we
will use a separate indenture for any subordinated debt securities that we may
issue.
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;
. the rate, including the method of determination if applicable, at
which the debt securities will bear interest, if any; and
- the period or periods during which such rate or rates shall be
applicable;
- the date from which any interest will accrue;
- the dates on which we will pay interest; and
4
<PAGE>
- 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;
- 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 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 of the series, in whole or in part,
as global securities,
5
<PAGE>
- the terms upon which and circumstances under which global securities
may be exchanged for certificated debt securities;
- the depositary for the global securities; and
- the form of any legend to be borne by the global 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;
. 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 indenture.
For more information, see Section 301 of the 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.
Unless the applicable prospectus supplement states otherwise, the covenants
contained in the 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.
Subordination
The applicable prospectus supplement may provide that a series of debt
securities will be subordinated debt securities, subordinate and junior in right
of payment to all of our senior indebtedness, as defined below. The indenture
under which these securities will be issued is referred to as the subordinated
debt security indenture.
No payment of principal of, including redemption and sinking fund payments,
or any premium or interest on, the subordinated debt securities may be made if
. any senior indebtedness is not paid when due,
. any applicable grace period with respect to default in payment of any
senior indebtedness has ended, and the default has not been cured or
waived, or
6
<PAGE>
. 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 subordinated debt
securities are entitled to payment. For more information, see Section 1502 of
the subordinated debt security indenture. The rights of the holders of the
subordinated debt securities 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 subordinated debt securities are
paid in full. For more information, see Section 1504 of the subordinated debt
security indenture.
As defined in the subordinated debt security indenture, the term "senior
indebtedness" means
. obligations (other than non-recourse obligations and the indebtedness
issued under the subordinated debt security indenture) of, or
guaranteed or assumed by, us
- for borrowed money (including both senior and subordinated
indebtedness for borrowed money, but excluding the subordinated
debt securities); 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.
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 debt security indenture or
subsequently incurred by us.
The subordinated debt security indenture does not limit the aggregate
amount of senior indebtedness that we may issue.
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 multiplies of that amount. For more
information, see Sections 201 and 302 of the 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 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 indenture.
7
<PAGE>
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 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 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 indenture.
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
security 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
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 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
8
<PAGE>
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
trustee will select a fair and appropriate method of random selection. For more
information, see Sections 403 and 404 of the 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 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 indenture;
. 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 will have delivered to the debt security trustee an officer's
certificate and opinion of counsel as provided in the indenture.
For more information, see Section 1101 of the indenture.
Events of Default
"Event of default" under the 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
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 security trustee,
9
<PAGE>
or we and the debt security trustee receive notice from the holders of
at least 33% in principal amount of the debt securities of that series
outstanding under the indenture according to the provisions of the
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 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 indenture.
If an event of default with respect to a particular series of debt
securities occurs and is continuing, either the debt security 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, including all events of default
relating to bankruptcy, insolvency, or reorganization, the debt security trustee
or the holders of at least 33% in principal amount of the outstanding debt
securities of all series, considered together, may declare an acceleration of
the amount payable.
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 such credit enhancement may, if a default has occurred and is
continuing with respect to such series, have all the rights with respect to
remedies that would otherwise have been exercisable by the holders of debt
securities 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 security 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
- all amounts due to the debt security trustee under the indenture;
and
10
<PAGE>
. 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 indenture.
For more information, see Section 802 of the indenture.
The indenture includes provisions as to the duties of the debt security
trustee in case an event of default occurs and is continuing. Consistent with
these provisions, the debt security 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 security trustee
reasonable indemnity. For more information, see Section 903 of the 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 security trustee, or exercising any trust or power conferred on the
debt security trustee, with respect to the debt securities of that series. For
more information, see Section 812 of the indenture.
No holder of debt securities may institute any proceeding regarding the
indenture, or for the appointment of a receiver or a trustee, or for any other
remedy under the indenture unless
. the holder has previously given to the debt security 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 security trustee,
and have offered reasonable indemnity to the debt security trustee, to
institute the proceeding as trustee; and
. the debt security 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 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
indenture.
We must furnish annually to the debt security trustee a statement by an
appropriate officer as to that officer's knowledge of our compliance with all
conditions and covenants under the indenture. Our compliance is to be determined
without regard to any grace period or notice requirement under the indenture.
For more information, see Section 606 of the indenture.
Modification and Waiver
We and the debt security 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:
11
<PAGE>
. to evidence the assumption by any permitted successor of our covenants
in the 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 indenture;
. to add any additional events of default;
. to change or eliminate any provision of the indenture or add any new
provision to it, but if this action will adversely affect the
interests of the holders of any particular series of debt securities
in any material respect, the action will become effective with respect
to that series only when there are no debt securities of that series
remaining outstanding under the indenture;
. to provide collateral security for the debt securities;
. to establish the form or terms of debt securities according to the
provisions of the indenture;
. evidence the acceptance of appointment of a successor debt security
trustee under the indenture with respect to one or more series of the
debt securities and to add to or change any of the provisions of the
indenture as necessary to provide for the administration of the trusts
under the 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 is 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 indenture may be served; or
. to cure any ambiguity or inconsistency, but only 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 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 indenture (see Section
607 of the indenture); and
12
<PAGE>
. any past default under the indenture, except a default in the payment
of principal, premium, or interest, and certain covenants and
provisions of the 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 indenture).
The Trust Indenture Act of 1939 may be amended after the date of the
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
security 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 indenture.
Except as provided in this paragraph, the consent of the holders of a
majority in aggregate principal amount of the outstanding debt securities,
considered as one class, is required to change in any manner the indenture
pursuant to one or more supplemental indentures. If less than all of the series
of debt securities outstanding 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 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
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
13
<PAGE>
. may not modify provisions of the 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
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
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 ovenant or other
provision.
For more information, see Section 1202 of the 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 security 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 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 indenture, 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 security trustee or any paying agent other than us, in trust
money, certain eligible obligations, as defined in the 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 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 of Debt Security Trustee
The debt security 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
14
<PAGE>
securities delivered to the debt security trustee and us. No resignation or
removal of the debt security trustee and no appointment of a successor trustee
will become effective until a successor trustee accepts appointment in
accordance with the requirements of the 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 security trustee appointed by an
action of the holders, if we have delivered to the debt security 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 indenture, the debt security trustee will be deemed to have resigned and the
successor trustee will be deemed to have been appointed as trustee in accordance
with the indenture. For more information, see Section 910 of the 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 indenture.
Title
The debt security 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 indenture.
Governing Law
The indenture 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 indenture.
GLOBAL SECURITIES
We may issue some or all of the debt securities of any series as global
securities. We will register each global security in the name of a depositary
identified in the applicable prospectus supplement. The global 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
indenture.
As long as the depositary or its nominee is the registered holder of a
global security, that person will be considered the sole owner and holder of the
global security and the securities represented by it for all purposes under the
securities and the indenture. Except in limited circumstances, owners of a
beneficial interest in a global security
. will not be entitled to have the global 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 security; and
. will not be considered to be the owners or holders of the global
security or any securities represented by it for any purposes under
the securities or the indenture.
15
<PAGE>
We will make all payments of principal and any premium and interest on a
global security to the depositary or its nominee as the holder of the global
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 security.
Ownership of beneficial interests in a global 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 security is issued, the
depositary will credit on its book entry, registration and transfer system the
principal amounts of securities represented by the global security to the
accounts of its participants. Ownership of beneficial interests in a global
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
such participants will be the responsibility of such 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 security. None of the following will have any
responsibility or liability for any aspect of the depositary or any
participant's records relating to, or for payments made on account of,
beneficial interests in a global security, or for maintaining, supervising or
reviewing any records relating to those beneficial interests:
. North Carolina Natural Gas Corporation;
. the trustee under any indenture; or
. any agent of any of the above.
The 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 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 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 trustee the name or names
in which the trustee is to register these definitive notes.
16
<PAGE>
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 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 any
underwriter to purchase the securities will be subject to certain conditions,
and the underwriter will be obligated to purchase 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.
17
<PAGE>
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this prospectus by reference to our Form 10 for the Registration
of Securities under the Securities Exchange Act of 1934 have been audited by
Arthur Andersen LLP, independent public accountants, as stated in their report
with respect thereto, and are incorporated herein in reliance upon the authority
of said firm as experts in giving said reports.
LEGAL OPINIONS
Hunton & Williams of Charlotte and Raleigh, North Carolina, our outside
counsel, will issue opinions about the legality of the offered securities for
us. Any underwriters will be advised about other issues relating to any offering
by their own legal counsel, Winthrop, Stimson, Putnam & Roberts of New York, New
York.
18
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated
Item Total
---- -----
Securities and Exchange Commission registration fee..... $ 79,200
Rating agencies' fees................................... 150,000
Trustees' fees.......................................... 30,000
Counsels' fees.......................................... 150,000
Accountants' fees....................................... 75,000
Printing and engraving.................................. 20,000
Blue Sky fees........................................... 20,000
Miscellaneous........................................... 10,000
------------
Total................................................ $ 534,200
All amounts other than the registration fee are estimated.
Item 15. Indemnification of Directors and Officers.
Our amended and restated certificate of incorporation provides that our
directors shall not be liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, except to the extent that exemption from
liability or limitation is not permitted under the Delaware General Corporation
Law, as may be amended. Our certificate further provides that any amendment,
modification or repeal of the foregoing provision shall not adversely affect any
right or protection of a director for any act or omission occurring prior to the
time of the amendment, modification or repeal.
As permitted by the Delaware General Corporation Law, our certificate of
incorporation and bylaws eliminate personal liability of our directors to us or
our stockholders for monetary damages for breach of fiduciary duty except for:
. any breach of the director's duty of loyalty to us or our
shareholders,
. acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law,
. any transaction from which the director derived an improper personal
benefit, or
. any breach of fiduciary duty under Section 174 of the Delaware General
Corporation Law, relating to unlawful dividends or distributions or
stock repurchases or redemptions.
As a result of these provisions, we and our stockholders may be unable to obtain
monetary damages from a director for breach of the duty of care.
Our amended and restated bylaws provide for indemnification of our
directors and officers to the extent permitted under the Delaware General
Corporation Law. As permitted by the Delaware General Corporation Law, our
bylaws provide for indemnification of our directors and officers
II-1
<PAGE>
against expenses, including attorneys' fees, judgments, money decrees, fines and
amounts paid in settlement actually and reasonably incurred by them in
connection with such action, suit or proceeding if they acted in good faith and
in a manner they reasonably believed to be in or not opposed to our best
interests, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful.
We have insurance covering expenditures we might incur in connection with
the lawful indemnification of our directors and officers for their liabilities
and expenses. Our officers and directors also have insurance that insures them
against certain liabilities and expenses.
Insofar as indemnification for liabilities under the Securities Act may be
provided to our directors, officers or controlling persons under our certificate
of incorporation, bylaws and the Delaware General Corporation Law, we are aware
that it is the opinion of the SEC that such indemnification is against public
policy as expressed in such Securities Act and is therefore unenforceable.
Item 16. Exhibits.
1 - Form of Underwriting Agreement for Debt Securities.
4 - Form of Indenture.
5 - Opinion of Hunton & Williams.
12 - Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to NCNG's Form 10 filed
July 21, 2000).
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Hunton & Williams (contained in Exhibit
5).
24 - Power of Attorney (contained on the signature page of
this registration statement).
25 - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939 of the Trustee under the
Indenture relating to Debt Securities (to be filed
subsequent to effectiveness of this registration
statement and incorporated by reference pursuant to a
Report on Form 8-K).
II-2
<PAGE>
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,
II-3
<PAGE>
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 Act and will be
governed by the final adjudication of such issue.
(d) The undersigned registrant hereby undertakes to undertake 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 21st day of
July 2000.
NORTH CAROLINA NATURAL GAS CORPORATION
/s/ Don K. Davis
-------------------------------
Don K. Davis
President and Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature appears below hereby appoints Don K. Davis,
Terrence D. Davis and Mary Lee Edmonds, 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:
Signature Title Date
--------- ----- ----
/s/ Don K. Davis President and Chief July 21, 2000
-----------------------------
Don K. Davis Executive
Officer and Director
/s/ Terrence D. Davis Senior Vice President, July 21, 2000
-----------------------------
Terrence D. Davis Operations
/s/ Mary Lee Edmonds Business Operations July 21, 2000
-----------------------------
Mary Lee Edmonds Manager
/s/ Marsha M. Lederer Controller (and principal July 21, 2000
-----------------------------
Marsha M. Lederer accounting officer)
Director July __, 2000
-----------------------------
William Cavanaugh, III
/s/ Robert B. McGehee Director July 21, 2000
-----------------------------
Robert B. McGehee
II-5
<PAGE>
/s/ Tom D. Kilgore Director July 21, 2000
-----------------------------
Tom D. Kilgore
/s/William D. Johnson Director July 21, 2000
-----------------------------
William D. Johnson
/s/ Peter M. Scott, III Director July 21, 2000
-----------------------------
Peter M. Scott, III
II-6
<PAGE>
INDEX TO EXHIBITS
Exhibit Description
-----------
Number
------
1 - Form of Underwriting Agreement for Debt Securities.
4 - Form of Indenture.
5 - Opinion of Hunton & Williams.
12 - Computation of Ratio of Earnings to Fixed Charges
(incorporated by reference to NCNG's Form 10 filed July 21,
2000).
23(a) - Consent of Arthur Andersen LLP.
23(b) - Consent of Hunton & Williams (contained in Exhibit 5).
24 - Power of Attorney (contained on the signature page of this
registration statement).
25 - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of the Trustee under the Indenture relating to
Debt Securities (to be filed subsequent to effectiveness of
this registration statement and incorporated by reference
pursuant to a Report on Form 8-K).
