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As filed with the Securities and Exchange Commission on October 23, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NRG Generating (U.S.) Inc.
(Exact name of issuer as specified in its charter)
Delaware 59-2076187
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1221 Nicollet Mall, Suite 610 55403-2445
Minneapolis, Minnesota
(Address of principal executive (Zip Code)
offices)
NRG Generating (U.S.) Inc. 1996 Stock Option Plan
NRG Generating (U.S.) Inc. 1997 Stock Option Plan
(Full title of the plan)
Timothy P. Hunstad
Vice President and Chief Financial Officer
NRG Generating (U.S.) Inc.
1221 Nicollet Mall, Suite 610
Minneapolis, Minnesota 55403-2445
(612) 373-5300
(Name, address and telephone number, including area code, of
agent for service)
The Commission is requested to mail signed copies of all orders,
notices and communications to:
Daniel T. Falstad, Esq.
Troutman Sanders LLP
600 Peachtree Street, N.E., Suite 5200
Atlanta, Georgia 30308-2216
(404) 885-3514
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CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Offering aggregate Amount of
Title of securities Amount to be price offering registration
to be registered registered (1) per share (2) price (2) fee
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Common Stock, $.01 par value, to be 500,000 $21.0625 $10,531,250 $ 3,192
issued under the NRG Generating shares
(U.S.) Inc. 1996 Stock Option Plan
Common Stock, $.01 par value, to be 250,000 $21.0625 $ 5,265,625 $ 1,596
issued under the NRG Generating shares
(U.S.) Inc. 1997 Stock Option Plan
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as
amended (the "1933 Act"), includes an indeterminate number
of additional shares which may be offered and issued to
prevent dilution resulting from stock splits, stock
dividends or similar transactions as provided in the NRG
Generating (U.S.) Inc. 1996 Stock Option Plan and the NRG
Generating (U.S.) Inc. 1997 Stock Option Plan (collectively,
the "Plans").
(2) Pursuant to Rule 457(h)(1) under the 1933 Act, the offering
price is estimated solely for the purpose of calculating the
registration fee on the basis of the average of the high and
low prices on October 20, 1997 as reported on the Nasdaq
SmallCap Market.
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Part I - Information Required in the Section 10(a) Prospectus
Item 1. Plan Information.*
Item 2. Registrant Information and Plan Annual Information.*
* Information required by Part I to be contained in the Section
10(a) prospectus is omitted from this Registration Statement
in accordance with the Note to Part I of Form S-8.
Part II - Information Required in the Registration Statement
Item 3. Incorporation of Documents by Reference.
NRG Generating (U.S.) Inc. ("NRGG" or the "Company") hereby
incorporates by reference into this registration statement the
following documents:
(a) the Company's transition report on Form 10-K
for the six month transition period ended
December 31, 1996;
(b) the Company's current report on Form 8-K
dated February 7, 1997;
(c) the Company's quarterly report on Form 10-Q
for the fiscal quarter ended March 31, 1997;
(d) the Company's current report on Form 8-K
dated April 7, 1997;
(e) the Company's quarterly report on Form 10-Q
for the fiscal quarter ended June 30, 1997; and
(f) the description of the Company's Common Stock
(then designated Class A Common Stock) contained in the
Company's Registration Statement on Form 8-A filed on
November 18, 1986 pursuant to Section 12(g) of the
Securities Exchange Act of 1934, as amended (the "1934
Act"), including any amendments or reports filed for
the purpose of updating such descriptions.
All documents filed subsequent to the date of this
registration statement by the undersigned Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act prior to the
filing of a post-effective amendment hereto which indicates that
all shares of Common Stock offered hereby have been sold or which
deregisters any shares of such Common Stock then remaining
unsold, shall also be deemed to be incorporated by reference in
this registration statement and to be a part hereof from their
respective dates of filing. Any statement contained in a
document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement
contained herein, or in any other subsequently filed document
that also is or is deemed to be incorporated by reference herein,
modifies or supersedes such statement. Any statement contained
in this registration statement shall be deemed to be modified or
superseded to the extent that a statement contained in a
subsequently filed document which is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so
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modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Pursuant to the authority conferred by Section 102 of the
Delaware General Corporation Law (the "DGCL") Article 6 of the
Certificate eliminates the personal liability of the Company's
directors to the Company or its stockholders for monetary damages
for any breach of fiduciary duty. Directors remain liable to the
extent provided by applicable law for (i) breach of a director's
duty of loyalty to the Company or its stockholders, (ii) acts or
omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) a violation of
Section 174 of the DGCL, which proscribes the payment of
dividends and stock purchases or redemptions under certain
circumstances, and (iv) any transaction from which the director
derived an improper personal benefit. If the DGCL is amended to
authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director
of the Corporation shall be eliminated or limited to the fullest
extent permitted by the DGCL, as so amended. Article 6 further
provides that no amendment to or repeal of the provisions
contained therein shall apply to or have any effect on the
liability or alleged liability of any director of the Company for
or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal.
The Company has purchased insurance which purports to insure
the Company against certain costs of indemnification which may be
incurred by it pursuant to the Certificate and to insure the
officers and directors of the Company, and of its subsidiary
companies, against certain liabilities incurred by them in the
discharge of their functions as such officers and directors
except for liabilities resulting from their own malfeasance.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following exhibits are filed as part of this
Registration Statement:
Exhibit
Number
5 Opinion of Troutman Sanders LLP
23.1 Consent of Troutman Sanders LLP (contained in opinion
filed in Exhibit 5)
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23.2 Consent of Price Waterhouse LLP
Item 9. Undertakings.
(a) Rule 415 offerings. 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 1933 Act;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. 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
and of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission (the
"Commission") pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price
represent no more than 20 percent 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 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 (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by
the Registrant pursuant to Section 13 or Section 15(d)
of the 1934 Act that are incorporated by reference in
the registration statement.
(2) That, for the purpose of determining any liability
under the 1933 Act, 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
any offering.
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(b) Filings incorporating subsequent 1934 Act documents by
reference. The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under the 1933 Act,
each filing of the Registrant's annual report pursuant to Section
13(a) or Section 15(d) of the 1934 Act 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) Filing of registration statement on Form S-8. Insofar
as indemnification for liabilities arising under the 1933 Act 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 1933 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 1933 Act and will be governed by the final adjudication of
such issue.
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SIGNATURES
Pursuant to the requirements of the 1933 Act, 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
Minneapolis, State of Minnesota, on October 23, 1997.
NRG Generating (U.S.) Inc.
(Registrant)
By: /s/ Timothy P. Hunstad
Name: Timothy P. Hunstad
Title: Vice President and Chief
Financial Officer
Pursuant to the requirements of the 1933 Act, this
registration statement, as amended, has been signed by the
following persons in the capacities and on the dates indicated.
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<S> <C> <C>
/s/ Robert T. Sherman, Jr. President, Chief Executive October 23, 1997
Robert T. Sherman, Jr. Officer and Director
(Principal Executive Officer)
/s/ Timothy P. Hunstad Vice President and Chief October 23, 1997
Timothy P. Hunstad Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Leonard Bluhm Chairman of the Board of October 23, 1997
Leonard A. Bluhm Directors
/s/ Lawrence Littman Director October 23, 1997
Lawrence I. Littman
Director October 23, 1997
Craig A. Mataczynski
/s/ David H. Peterson Director October 23, 1997
David H. Peterson
Director October 23, 1997
Spyros S. Skouras, Jr.
/s/ Charles J. Thayer Director October 23, 1997
Charles J. Thayer
Director October 23, 1997
Ronald J. Will
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Exhibit Index
Exhibit
Number
5 Opinion of Troutman Sanders LLP
23.1 Consent of Troutman Sanders LLP (contained in opinion
filed in Exhibit 5)
23.2 Consent of Price Waterhouse LLP
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Exhibit 5
Troutman Sanders LLP
Nationsbank Plaza
600 Peachtree Street, N.E. - Suite 5200
Atlanta, Georgia 30308-2216
October 23, 1997
NRG Generating (U.S.) Inc.
1221 Nicollet Mall
Suite 610
Minneapolis, Minnesota 55403-2445
Re: Registration Statement on Form S-8
Gentlemen:
This opinion is being delivered in connection with the
filing by NRG Generating (U.S.) Inc., a Delaware corporation (the
"Company"), with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, of a Registration Statement
on Form S-8 (the "Registration Statement") with respect to the
proposed offering by the Company of an aggregate of 750,000
shares of the Company's Common Stock, par value $.01 per share
(the "Shares"), to be issued in connection with the NRG
Generating (U.S.) Inc. 1996 Stock Option Plan and the NRG
Generating (U.S.) Inc. 1997 Stock Option Plan (collectively, the
"Plans").
As counsel for the Company, we have examined the relevant
corporate documents, as well as the relevant state statutes,
incident to the giving of this opinion, and we are generally
familiar with the affairs of the Company.
Based upon the foregoing, we are of the opinion that the
Shares reserved for issuance in accordance with the Plans have
been duly authorized and will, when and to the extent issued in
connection with and in accordance with the Plans and such
relevant stock option agreements granted thereunder, for a
consideration at least equal to the par value of such option
shares, be validly issued, fully paid and nonassessable.
We are members of the Bar of the State of Georgia. In
expressing the opinions set forth above, we are not passing on
the laws of any jurisdiction other than the laws of the State of
Georgia, the General Corporation Law of the State of Delaware and
the Federal law of the United States of America.
We hereby consent to the use of this opinion as an exhibit
to the Registration Statement.
Very truly yours,
/s/ Troutman Sanders LLP
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Reference Exhibit 5.
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Exhibit 23.2
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of our report dated March 13,
1997 appearing on page F-1 of NRG Generating (U.S.) Inc.'s
Transition Report on Form 10-K for the six month transition
period ended December 31, 1996.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Minneapolis, Minnesota
October 23, 1997
