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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 15, 1994
REGISTRATION NO. 33-52853
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 3
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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NORAM ENERGY CORP.
(Exact name of registrant as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
72-0120530
(I.R.S. Employer Identification No.)
1600 SMITH STREET
11TH FLOOR
HOUSTON, TEXAS 77002
(713) 654-5699
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
HUBERT GENTRY, JR.
SENIOR VICE PRESIDENT AND GENERAL COUNSEL
1600 SMITH STREET
11TH FLOOR
HOUSTON, TEXAS 77002
(713) 654-5699
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
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Copy to:
GERRY D. OSTERLAND, ESQ.
JONES, DAY, REAVIS & POGUE
2300 TRAMMELL CROW CENTER
2001 ROSS AVENUE
DALLAS, TEXAS 75201
(214) 220-3939
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Approximate date of commencement of proposed sale to the public: From time
to time after this Registration Statement becomes effective.
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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, please check the following box: /X/
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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 this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy
nor shall there be any sale of these securities in any State in which such
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such State.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED AUGUST 15, 1994
PROSPECTUS
14,950,000 SHARES
(NorAm Logo)
COMMON STOCK
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NorAm Energy Corp., formerly known as Arkla, Inc. (the "Company"), may
offer from time to time up to an aggregate of 14,950,000 shares of Common Stock,
$.625 par value per share (the "Common Stock"). The number of shares, initial
public offering price and any other terms in connection with the offering and
sale of the Common Stock are set forth in an applicable Prospectus Supplement
accompanying this Prospectus.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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The shares of Common Stock offered hereby will be sold either through
underwriters or dealers, through agents, in other ways or through any
combination of any of the foregoing. The applicable Prospectus Supplement sets
forth the names of any underwriters, dealers or agents involved in the sale of
the shares of Common Stock in respect of which this Prospectus is being
delivered, the proposed amounts, if any, to be purchased by underwriters and the
compensation, if any, of such underwriters, dealers or agents.
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The date of this Prospectus is August ...., 1994.
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AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission, at 450
Fifth Street, N.W., Washington, D.C. 20549, and at the following Regional
Offices of the Commission: Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511; and 7 World Trade Center, New York,
New York 10048. Copies of such material can be obtained from the Public
Reference Section of the Commission, at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Company's Common Stock is listed on, and
reports, proxy statements and other information concerning the Company can be
inspected at the offices of, the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This Prospectus does not contain all of the information set forth in the
Registration Statement on Form S-3, of which this Prospectus is a part, and
exhibits relating thereto which the Company has filed with the Commission under
the Securities Act of 1933, as amended (the "Act"). Reference is made to such
Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Common Stock. Statements
contained herein concerning the provisions of documents are necessarily
summaries of such documents, and each statement is qualified in its entirety by
reference to the copy of the applicable document filed with the Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates by reference herein its Annual Report on
Form 10-K for the fiscal year ended December 31, 1993 (the "Form 10-K") and its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1994 and June
30, 1994 (the "Form 10-Qs"), which have been filed previously with the
Commission under File No. 1-3751.
All documents filed by the Company pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference in this Prospectus. The documents incorporated herein
by reference are sometimes hereinafter called the "Incorporated Documents." Any
statement contained herein or in an Incorporated Document shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that a
statement contained herein or in any other subsequently filed Incorporated
Document 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 Prospectus.
The information relating to the Company contained in this Prospectus does
not purport to be comprehensive and is based upon information contained in the
Incorporated Documents. Accordingly, the information contained herein should be
read together with the information contained in the Incorporated Documents.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any and all of the Incorporated Documents, other than the
exhibits to such documents (unless such exhibits are specifically incorporated
by reference in such documents). Requests should be directed to the Office of
the Secretary, NorAm Energy Corp., 1600 Smith Street, 11th Floor, Houston, Texas
77002, telephone number (713) 654-5699.
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THE COMPANY
The Company is principally engaged in the distribution and transmission of
natural gas including gathering, storage and marketing. On May 10, 1994, the
stockholders of the Company approved an amendment to the Company's Restated
Certificate of Incorporation to change the Company name from Arkla, Inc. to
NorAm Energy Corp. The purpose of the name change is to more accurately describe
the geographical area served by the Company.
To reflect the natural division of the Company's operations, the Company is
organized into two operating units, natural gas distribution and natural gas
pipeline. The Company operates its gas distribution business through its Arkla
division, its Entex division and its Minnegasco division. The gas transmission
operations of the Company are conducted by NorAm Gas Transmission Company,
Mississippi River Transmission Corporation and NorAm Energy Services, Inc.
The Company's principal executive offices are located at 1600 Smith Street,
11th Floor, Houston, Texas 77002. Its mailing address is P.O. Box 2628, Houston,
Texas, 77252-2628, and its telephone number is (713) 654-5699.
USE OF PROCEEDS
Unless otherwise stated in an applicable Prospectus Supplement accompanying
this Prospectus, the net proceeds of any sale of Common Stock may be used for
general corporate purposes, which may include the retirement of a portion of the
Company's long-term debt.
DESCRIPTION OF CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 150,000,000
shares of Common Stock, and (ii) 10,000,000 shares of Preferred Stock, $.10 par
value ("Preferred Stock"), of which 122,472,082 shares of Common Stock and
2,600,000 shares of $3.00 Convertible Exchangeable Preferred Stock, Series A
("Series A Preferred"), were issued and outstanding at August 8, 1994. The
following summary description of these securities is qualified in its entirety
by reference to the Restated Certificate of Incorporation of the Company which
is filed as an exhibit to the Registration Statement of which this Prospectus is
a part.
COMMON STOCK
Holders of the Common Stock are entitled to one vote for each share held of
record. The Company's Restated Certificate of Incorporation provides for
cumulative voting in the election of directors. Subject to the preferential
rights of the holders of Preferred Stock, the holders of Common Stock are
entitled to receive any dividends which may be declared by the Company's Board
of Directors out of funds legally available therefor and to share pro rata in
the net assets of the Company upon liquidation. Holders of Common Stock have no
preemptive rights and have no rights to convert their Common Stock into any
other securities and there are no redemption provisions with respect to such
shares. All outstanding shares of Common Stock are fully paid and not subject to
further calls or assessments.
PREFERRED STOCK
Holders of Preferred Stock are entitled to such dividends, liquidation
preferences, redemption rights, voting rights, conversion and exchange
privileges, and other rights and preferences as the Board of Directors of the
Company may determine in each resolution authorizing a series of Preferred
Stock. The Preferred Stock ranks prior to the Common Stock with respect to both
dividends and distribution of assets on liquidation, dissolution or winding up.
At the date hereof, the only shares of Preferred Stock issued and outstanding
are the shares of Series A Preferred which have a liquidation value of $50 per
share, are entitled to cumulative quarterly dividends when and as declared by
the Company's Board of Directors at an annual rate of $3.00 per share and are
convertible at the option of the holder at any time into shares of Common Stock
at a conversion
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price of $28 5/8 per share of Common Stock, subject to certain adjustments. The
holders of Series A Preferred do not have voting rights. However, in the event
that the Company fails to pay dividends on shares of Series A Preferred for six
consecutive quarters, the holders thereof have the right to elect two directors
to the Company's Board. Holders of Series A Preferred have no preemptive rights.
PLAN OF DISTRIBUTION
The Company may sell the shares of Common Stock offered hereby in any one
or more of the following ways: (i) through an underwriter, or an underwriting
syndicate, or dealers, (ii) through agents, (iii) in other ways, such as in
privately negotiated transactions, direct sales to one or more purchasers or
otherwise or (iv) through any combination of any of the foregoing.
The distribution of the shares of Common Stock offered hereby may be
effected from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. In connection with the sale of shares of Common Stock
offered hereby, underwriters, dealers or agents may receive compensation from
the Company or from purchasers of such shares of Common Stock in the form of
discounts, concessions or commissions. Underwriters, dealers and agents who
participate in the distribution of the shares of Common Stock offered hereby may
be deemed to be underwriters, and any discounts or commissions received by them
from the Company and any profit on the resale of any such shares by them may be
deemed to be underwriting discounts and commissions under the Act. Any such
underwriter, dealer or agent will be identified and any such compensation
received from the Company will be described in an applicable Prospectus
Supplement accompanying this Prospectus. Any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers may be
changed from time to time.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of the shares of Common
Stock offered hereby may be entitled to indemnification by the Company against
certain liabilities, including under the Act, or contribution from the Company
to payments which the underwriters or dealers may be required to make in respect
thereof. The underwriters, dealers or agents may engage in transactions with, or
perform services for, the Company in the ordinary course of business.
The specific terms and manner of sale of shares of Common Stock will be
described in an applicable Prospectus Supplement accompanying this Prospectus.
LEGAL OPINIONS
Unless otherwise indicated in an applicable Prospectus Supplement
accompanying this Prospectus, the legality of the shares of Common Stock offered
hereby will be passed upon for the Company by Hubert Gentry, Jr., Senior Vice
President, General Counsel and Secretary of the Company, 1600 Smith Street, 11th
Floor, Houston, Texas 77002. As of August 9, 1994, Mr. Gentry beneficially owned
19,138 shares of Common Stock acquired pursuant to various employee benefit
plans of the Company.
EXPERTS
The consolidated financial statements and related financial statement
schedules of the Company as of December 31, 1993 and 1992, and for the years
ended December 31, 1993, 1992 and 1991, incorporated by reference in the Form
10-K, which is incorporated by reference in this Prospectus, have been so
included in reliance on the reports of Coopers & Lybrand, independent
accountants, given on the authority of that firm as experts in accounting and
auditing.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be paid by the
registrant in connection with the sale and distribution of the securities being
registered hereby, other than underwriting discounts and commissions. All
amounts are estimated except for the Securities and Exchange Commission
registration fee.
<TABLE>
<CAPTION>
AMOUNT
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<S> <C>
Securities and Exchange Commission Registration Fee..................... $38,342.00
Transfer Agent Fees and Expenses........................................ 10,000.00
Printing and Engraving Fees............................................. 75,000.00
Accountant's Fees and Expenses.......................................... 60,000.00
Legal Fees and Expenses................................................. 100,000.00
Blue Sky Fees and Expenses.............................................. 35,000.00
Miscellaneous........................................................... 5,000.00
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Total......................................................... 323,342.00
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</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware (the "DGCL") gives
corporations the power to indemnify officers and directors under certain
circumstances.
Article III of the Company's By-Laws provides for indemnification of
officers and directors to the extent permitted by the DGCL. The Company also has
policies insuring its officers and directors against certain liabilities for
action taken in such capacities, including liabilities under the Act.
Article Seventh of the Company's Restated Certificate of Incorporation, as
amended, adopted the provision of Delaware law limiting or eliminating the
potential monetary liability of directors to the Company or its stockholders for
breaches of a director's fiduciary duty of care. However, the provision does not
limit or eliminate the liability of a director for disloyalty to the Company or
its stockholders, failing to act in good faith, engaging in intentional
misconduct or a knowing violation of the law, obtaining an improper personal
benefit or paying a dividend or approving a stock repurchase that was illegal
under section 174 of the DGCL.
Article Seventh also provides that if the DGCL is subsequently amended to
authorize further limitation or elimination of the liability of directors, such
subsequent limitation or elimination of director's liability will be
automatically implemented without further stockholder action. Furthermore,
repeal or modification of the terms of the Article Seventh will not adversely
affect any right or protection of a director existing at the time of such repeal
or modification.
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ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
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<C> <S>
*4.1 -- Restated Certificate of Incorporation of the Company, as amended.
4.2 -- By-Laws of the Company (incorporated by reference to Exhibit 4.2
of the Company's Registration Statement on Form S-8 (Registration
No. 33-54241), as filed by the Company on June 23, 1994).
*5 -- Opinion of Hubert Gentry, Jr., Senior Vice President, General
Counsel and Secretary of the Company as to the legality of the
shares of Common Stock being offered.
23.1 -- Consent of Coopers & Lybrand.
*23.2 -- Consent of Hubert Gentry, Jr., Senior Vice President, General
Counsel and Secretary of the Company (included in Exhibit 5).
*24.1 -- Powers of Attorney of each of the directors and officers of the
Company whose name appears on the signature pages hereof.
</TABLE>
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* Previously filed.
ITEM 17. UNDERTAKINGS.
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 this 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 this Registration Statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration
Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) do not apply if this
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 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; and
(4) 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 (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.
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Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons for the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 3 to
Registration Statement No. 33-52853 to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on this 15th day of August, 1994.
NORAM ENERGY CORP
(Registrant)
By /s/ MICHAEL B. BRACY
(Michael B. Bracy)
Executive Vice President
and Principal Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 3 to Registration Statement No. 33-52853 has been signed by the following
persons in the capacities and on the date indicated.
<TABLE>
<S> <C> <C>
T. MILTON HONEA* Principal executive
(T. Milton Honea) officer and Director
Chairman of the Board and
Chief Executive Officer
MICHAEL B. BRACY Principal financial
(Michael B. Bracy) officer and Director
Executive Vice President and
Principal Financial Officer
JACK W. ELLIS, II* Principal accounting
(Jack W. Ellis, II) officer
Vice President and
Corporate Controller
JOE E. CHENOWETH* Director
(Joe E. Chenoweth)
O. HOLCOMBE CROSSWELL* Director
(O. Holcombe Crosswell)
WALTER A. DeROECK* Director
(Walter A. DeRoeck)
August 15, 1994
DONALD H. FLANDERS* Director
(Donald H. Flanders)
JOHN P. GOVER* Director
(John P. Gover)
ROBERT C. HANNA* Director
(Robert C. Hanna)
MYRA JONES* Director
(Myra Jones)
SIDNEY MONCRIEF* Director
(Sidney Moncrief)
LARRY C. WALLACE* Director
(Larry C. Wallace)
D. W. WEIR, SR.* Director
(D. W. Weir, Sr.)
*By /s/ MICHAEL B. BRACY
(Michael B. Bracy
Attorney-in-Fact)
</TABLE>
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INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION OF EXHIBIT
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<S> <C>
* 4.1 -- Restated Certificate of Incorporation of the Company, as amended.
4.2 -- By-Laws of the Company (incorporated by reference to Exhibit 4.2 of
the Company's Registration Statement on Form S-8 (Registration No.
33-54241), as filed by the Company on June 23, 1994).
* 5 -- Opinion of Hubert Gentry, Jr., Senior Vice President, General
Counsel and Secretary of the Company as to the legality of the
shares of Common Stock being offered.
23.1 -- Consent of Coopers & Lybrand.
*23.2 -- Consent of Hubert Gentry, Jr., Senior Vice President, General
Counsel and Secretary of the Company (included in Exhibit 5).
*24.1 -- Powers of Attorney of each of the directors and officers of the
Company whose name appears on the signature pages hereof.
</TABLE>
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* Previously filed.
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in Amendment No. 3 to this
registration statement on Form S-3 (File No. 33-52853) of our reports, which
include explanatory paragraphs concerning (1) the Company being named as a
defendant in a lawsuit filed by the Resolution Trust Corporation for which the
ultimate outcome of the litigation cannot presently be determined and (2) the
Company's changes in accounting methods for postemployment benefits and
postretirement benefits, dated March 24, 1994, on our audits of the consolidated
financial statements and financial statement schedules of Arkla, Inc. and
Subsidiaries (since renamed NorAm Energy Corp. and Subsidiaries) as of December
31, 1993 and 1992, and for the years ended December 31, 1993, 1992, and 1991. We
also consent to the reference to our firm under the caption "Experts."
/s/ COOPERS & LYBRAND L.L.P.
COOPERS & LYBRAND L.L.P.
Houston, Texas
August 12, 1994
