-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WmyBd+kT8xWX2JG8WcK88B4j6SPMCWQ9ImAFIRne4+2j9uoBvsBz7DdK4acWqPTC a71rkBkv2z6F+3BfmpSdNQ== 0000950168-98-002346.txt : 19980720 0000950168-98-002346.hdr.sgml : 19980720 ACCESSION NUMBER: 0000950168-98-002346 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19980717 EFFECTIVENESS DATE: 19980717 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DUKE ENERGY CORP CENTRAL INDEX KEY: 0000030371 STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC SERVICES [4911] IRS NUMBER: 560205520 STATE OF INCORPORATION: NC FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-59279 FILM NUMBER: 98667814 BUSINESS ADDRESS: STREET 1: 422 S CHURCH ST CITY: CHARLOTTE STATE: NC ZIP: 28242-0001 BUSINESS PHONE: 7045940887 MAIL ADDRESS: STREET 1: 422 S CHURCH ST CITY: CHARLOTTE STATE: NC ZIP: 28242 FORMER COMPANY: FORMER CONFORMED NAME: DUKE POWER CO /NC/ DATE OF NAME CHANGE: 19920703 S-8 1 DUKE ENERGY CORPORATION S-8 AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 17, 1998. REGISTRATION NO. 333- SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 DUKE ENERGY CORPORATION (Exact name of registrant as specified in its charter) NORTH CAROLINA 56-0205520 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.)
422 SOUTH CHURCH STREET CHARLOTTE, NC 28202-1904 (704) 594-0887 (Address, including zip code, and telephone number, including area code, of registrant's principal executive offices) DUKE ENERGY CORPORATION RETIREMENT SAVINGS PLAN AND EMPLOYEES' STOCK OWNERSHIP PLAN (Full titles of the plans) RICHARD J. OSBORNE JOHN SPUCHES EXECUTIVE VICE PRESIDENT DEWEY BALLANTINE,LLP AND CHIEF FINANCIAL OFFICER 1301 AVENUE OF THE AMERICAS 422 SOUTH CHURCH STREET NEW YORK, NEW YORK 10019-6092 CHARLOTTE, NORTH CAROLINA 28202-1904 TELEPHONE NO. 212-259-7700 TELEPHONE NO. 704-382-5159
(Names, addresses, including zip codes, and telephone numbers, including area codes, of agents for service) CALCULATION OF REGISTRATION FEE
TITLE OF PROPOSED MAXIMUM PROPOSED MAXIMUM SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE OFFER- BE REGISTERED(1) REGISTERED PER SHARE (2) ING PRICE (2) Common Stock, without par value......... 4,400,000 shares $ 58.344 $ 256,713,600 ---------- ---------- TITLE OF AMOUNT OF SECURITIES TO REGISTRATION BE REGISTERED(1) FEE Common Stock, without par value......... $ 75,815 --------------
(1) In addition, this Registration Statement also covers an indeterminate amount of interests to be offered or sold in connection with the Plans described herein pursuant to Rule 416(c) under the Securities Act of 1933, as amended. (2) Pursuant to Rule 457(h), these prices are estimated solely for the purpose of calculating the registration fee and are based upon the average of the high and low sales prices of the Registrant's Common Stock on the New York Stock Exchange on July 13, 1998. THERE ALSO ARE REGISTERED HEREUNDER SUCH ADDITIONAL INDETERMINATE NUMBER OF SHARES AS MAY BE ISSUED AS A RESULT OF THE ADJUSTMENT PROVISIONS OF THE PLANS. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS This Registration Statement on Form S-8 (the "Registration Statement") is being filed by Duke Energy Corporation (the "Company" or "Registrant") with respect to the Registrant's Retirement Savings Plan (the "Retirement Savings Plan") and the Registrant's Employees' Stock Ownership Plan (the "ESOP"; and together with the Retirement Savings Plan, the "Plans"), referred to on the cover of this Registration Statement. The document(s) containing the information required in Part I of this Registration Statement will be sent or given to each participant in the Retirement Savings Plan and each participant in the ESOP, as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "1933 Act"). Such document(s) are not being filed with the Commission but constitute (together with the documents incorporated by reference into this Registration Statement pursuant to Item 3 of Part II hereof) a prospectus that meets the requirements of Section 10(a) of the 1933 Act. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Commission are incorporated herein by reference: (Bullet) Annual Report on Form 10-K of the Company for the fiscal year ended December 31, 1997. (Bullet) Quarterly Report on Form 10-Q of the Company for the quarter ended March 31, 1998. (Bullet) Annual Reports on Form 11-K of the Retirement Savings Plan and the ESOP for the fiscal year ended December 31, 1997. (Bullet) The description of the Common Stock, without par value (the "Common Stock"), of the Company, which is contained in the Company's Registration Statement on Form S-4, Registration No. 333-23227, filed with the Commission on March 13, 1997, including any amendments or reports filed for the purpose of updating such description. All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934 after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference and to be a part hereof from the date of the filing of such documents. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Certain legal matters with respect to the Common Stock offered hereby will be passed upon for the Company by Robert S. Lilien, Vice President and General Counsel, Corporate and Energy Services. As of June 30, 1998 Mr. Lilien was the beneficial owner of 1,109 shares of Duke Energy Common Stock, and options to purchase 9,800 shares of Duke Energy Common Stock, none of which are currently exercisable. ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. Sections 55-8-50 through 55-8-58 of the North Carolina Business Corporation Act and the By-Laws of the Company permit indemnification of the Registrant's directors and officers in a variety of circumstances, which may include liabilities under the 1933 Act. In addition, the Registrant has purchased insurance permitted by the law of North Carolina on behalf of directors, officers, employees or agents which may cover liabilities under the 1933 Act. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. 1 ITEM 8. EXHIBITS.
EXHIBIT NUMBER DESCRIPTION 4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928). 4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928). 4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to Exhibit 4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997). 4(d) By-Laws of Registrant (incorporated by reference to Exhibit 4(d) of the Registrant's Form S-8 (Registration No. 333-34655) filed by the Registrant on August 29, 1997). 5 Opinion of Robert S. Lilien, Esq. 23(a) Independent Auditors' Consent of Deloitte & Touche LLP. 23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP. 23(c) Consent of Robert S. Lilien, Esq. (included in Exhibit 5). 24(a) Copy of power of attorney authorizing Robert S. Lilien, Richard J. Osborne and others to sign the Registration Statement on behalf of the Registrant and certain of its directors and officers. 24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: (a) (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plans of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(1) (i) and (a)(1) (ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2)That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (b) That, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant's annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan's annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the 2 payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. 3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Charlotte, State of North Carolina, on the 17th day of July , 1998. DUKE ENERGY CORPORATION Registrant By R. B. PRIORY R. B. PRIORY CHAIRMAN OF THE BOARD AND CHIEF EXECUTIVE OFFICER Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated.
SIGNATURE TITLE DATE R.B. PRIORY Chairman of the Board and Chief Executive July 17, 1998 Officer (Principal Executive Officer) RICHARD J. OSBORNE Executive Vice President and Chief Financial July 17, 1998 Officer (Principal Financial Officer) JEFFREY L. BOYER Vice President and Corporate Controller July 17, 1998 (Principal Accounting Officer) PAUL M. ANDERSON G. ALEX BERNHARDT ROBERT J. BROWN WILLIAM A. COLEY WILLIAM T. ESREY A majority of the Directors July 17, 1998 ANN MAYNARD GRAY HAROLD S. HOOK
4
SIGNATURE TITLE DATE W.W. JOHNSON MAX LENNON LEO E. LINBECK, JR. JAMES G. MARTIN R.B. PRIORY RUSSELL M. ROBINSON, II
Richard J. Osborne, by signing his name hereto, does hereby sign this document on behalf of the Registrant and on behalf of each of the above-named persons pursuant to a power of attorney duly executed by the Registrant and such persons, filed with the Securities and Exchange Commission as an exhibit hereto. /s/ RICHARD J. OSBORNE RICHARD J. OSBORNE ATTORNEY-IN-FACT Pursuant to the requirements of the Securities Act of 1933, the Duke Energy Corporation Benefits Committee has duly caused this Registration Statement to be signed on its behalf by the undersigned thereunto duly authorized, in the City of Charlotte, State of North Carolina, on the 17th day of July , 1998. DUKE ENERGY CORPORATION RETIREMENT SAVINGS PLAN By /s/ BARBARA B. ORR BARBARA B. ORR BENEFITS COMMITTEE CHAIR DUKE ENERGY CORPORATION EMPLOYEES' STOCK OWNERSHIP PLAN By /s/ BARBARA B. ORR BARBARA B. ORR BENEFITS COMMITTEE CHAIR 5 EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION 4(a) Retirement Savings Plan of the Registrant (incorporated by reference to Exhibit 10-X of the Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928). 4(b) Employees' Stock Ownership Plan of the Registrant (incorporated by reference to Exhibit 10-E of the Registrant's Form 10-K for the year ended December 31, 1996, File No. 1-4928). 4(c) Restated Articles of Incorporation of Registrant, dated June 18, 1997 (incorporated by reference to Exhibit 4(G) of Form S-8 (Registration No. 333-29563) filed by the Registrant on June 19, 1997). 4(d) By-Laws of Registrant (incorporated by reference to Exhibit 4(d) of the Registrant's Form S-8 (Registration No. 333-34655) filed by the Registrant on August 29, 1997). 5 Opinion of Robert S. Lilien, Esq. 23(a) Independent Auditors' Consent of Deloitte & Touche LLP. 23(b) Independent Auditors' Consent of KPMG Peat Marwick LLP. 23(c) Consent of Robert S. Lilien, Esq. (included in Exhibit 5). 24(a) Copy of power of attorney authorizing Robert S. Lilien, Richard J. Osborne and others to sign the Registration Statement on behalf of the Registrant and certain of its directors and officers. 24(b) Certified copy of resolution of the Board of Directors of the Registrant authorizing power of attorney.
6 EX-5 2 EXHIBIT 5 EXHIBIT 5 July 17, 1998 Duke Energy Corporation 422 South Church Street Charlotte, NC 282021904 Gentlemen: I am Vice President and General Counsel, Corporate and Energy Services, of Duke Energy Corporation, a North Carolina corporation (the "Company"), and in such capacity I have examined the Company's Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended (the "1933 Act"), for the registration of 4,400,000 shares of the Company's Common Stock, without par value (the "Shares"), to be issued under the Company's Retirement Savings Plan (the "Retirement Savings Plan") and the Employees' Stock Ownership Plan (the "ESOP"). I have examined and am familiar with originals or copies, certified or otherwise identified to my satisfaction, of such documents, corporate records, certificates of public officials and officers of the Company and such other instruments as I have deemed necessary or appropriate as a basis for the opinions expressed below. Based on the foregoing, I am of the opinion that the Shares are duly authorized and when the Shares have been issued and delivered in accordance with the terms of the Retirement Savings Plan and the terms of the ESOP, such Shares will be legally issued, fully paid and nonassessable. I hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In giving such consent, I do not thereby admit that I come within the category of persons whose consent is required under Section 7 of the 1933 Act, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Very truly yours, /S/ ROBERT S. LILIEN ROBERT S. LILIEN EX-23 3 EXHIBIT 23(A) EXHIBIT 23(A) INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement on Form S-8 of Duke Energy Corporation of our report dated February 13, 1998 appearing in the annual report on Form 10-K of Duke Energy Corporation for the year ended December 31, 1997. DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Charlotte, North Carolina July 17, 1998 EX-23 4 EXHIBIT 23(B) EXHIBIT 23(B) INDEPENDENT AUDITORS' CONSENT We consent to incorporation by reference in this registration statement on Form S-8 of Duke Energy Corporation of our report dated January 16, 1997, on the consolidated financial statements of PanEnergy Corp as of December 31, 1996 and for the years ended December 31, 1996 and 1995, which report appears in the Annual Report on Form 10-K of Duke Energy Corporation for the year ended December 31, 1997. KPMG Peat Marwick LLP Houston, Texas July 17, 1998 EX-23 5 EXHIBIT 23(C) EXHIBIT 23(C) CONSENT OF COUNSEL The consent of Robert S. Lilien, is contained in his opinion filed as Exhibit 5 to this Registration Statement. EX-24 6 EXHIBIT 24(A) EXHIBIT 24(A) DUKE ENERGY CORPORATION POWER OF ATTORNEY Registration Statement on Form S-8 under the Securities Act of 1933 with respect to up to 4,400,000 shares of Common Stock, without par value, of Duke Energy Corporation to be issued under the Retirement Savings Plan and the Employees' Stock Ownership Plan of said Duke Energy Corporation (Registration Statement) The undersigned DUKE ENERGY CORPORATION, a North Carolina corporation, and certain of its officers and/or directors, do each hereby constitute and appoint Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr., and each of them, to act as attorneys-in-fact for and in the respective names, places, and stead of the undersigned, to execute, seal, sign, and file with the Securities and Exchange Commission the Registration Statement of said Duke Energy Corporation and any and all amendments thereto, hereby granting to said attorneys-in-fact, and each of them, full power and authority to do and perform all and every act and thing whatsoever requisite, necessary, or proper to be done in and about the premises, as fully to all intents and purposes as the undersigned, or any of them, might or could do if personally present, hereby ratifying and approving the acts of said attorneys-in-fact. Executed the 28th day of October, 1997. DUKE ENERGY CORPORATION By /s/ R. B. PRIORY CHAIRMAN AND CHIEF EXECUTIVE OFFICER (Corporate Seal) ATTEST: ROBERT T.LUCAS III ASSISTANT SECRETARY /s/ R. B. PRIORY Chairman and Chief Executive Officer R. B. PRIORY (Principal Executive Officer and Director) /s/ RICHARD J. OSBORNE Executive Vice President and Chief Financial Officer RICHARD J. OSBORNE (Principal Financial Officer) /s/ JEFFREY L. BOYER Vice President and Corporate Controller JEFFREY L. BOYER (Principal Accounting Officer) /s/ PAUL M. ANDERSON (Director) PAUL M. ANDERSON /s/ G. ALEX BERNHARDT (Director) G. ALEX BERNHARDT /s/ ROBERT J. BROWN (Director) ROBERT J. BROWN
/s/ WILLIAM A. COLEY (Director) WILLIAM A. COLEY /s/ WILLIAM T. ESREY (Director) WILLIAM T. ESREY /s/ ANN MAYNARD GRAY (Director) ANN MAYNARD GRAY /s/ DENNIS R. HENDRIX (Director) DENNIS R. HENDRIX /s/ HAROLD S. HOOK (Director) HAROLD S. HOOK /s/ GEORGE DEAN JOHNSON, JR. (Director) /s/ W. W. JOHNSON (Director) W. W. JOHNSON /s/ MAX LENNON (Director) MAX LENNON /s/ LEO E. LINBECK, JR. (Director) LEO E. LINBECK, JR. /s/ JAMES G. MARTIN (Director) JAMES G. MARTIN /s/ BUCK MICKEL (Director) BUCK MICKEL /s/ RUSSELL M. ROBINSON, II (Director) RUSSELL M. ROBINSON, II
EX-24 7 EXHIBIT 24(B) EXHIBIT 24(B) DUKE ENERGY CORPORATION CERTIFICATE The undersigned officer of DUKE ENERGY CORPORATION, a North Carolina corporation (the "Corporation"), does hereby certify that attached hereto is a true and complete copy of a resolution adopted at a meeting of the Board of Directors of the Corporation with respect to the Registration Statements, which resolution is presently in full force and effect. IN WITNESS WHEREOF, the undersigned has hereunto set his hand and affixed the corporate seal of the Corporation this 17th day of July, 1998. /s/ ROBERT T. LUCAS III ROBERT T. LUCAS III ASSISTANT SECRETARY (Corporate Seal) FURTHER RESOLVED, that each officer and director who may be required to execute such Registration Statement or amendment thereto (whether on behalf of the Corporation or as an officer or director thereof or by attesting the seal of the Corporation or otherwise) be and hereby is authorized to execute a power of attorney appointing Richard J. Osborne, Robert S. Lilien and W. Edward Poe, Jr., and each of them, as true and lawful attorneys and agents to execute in his or her name, place and stead (in any such capacity) such Registration Statement or amendments thereto and all instruments necessary or advisable in connection therewith, to attest the seal of the Corporation thereon and to file the same with the Securities and Exchange Commission, each of said attorneys and agents to have power to act with or without the others and to have full power and authority to do and perform in the name and on behalf of each of such officers and directors, or both, as the case may be, every act whatsoever necessary or advisable to be done in the premises as fully and to all intents and purposes as any such officer or director might or could do in person; -----END PRIVACY-ENHANCED MESSAGE-----