-----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, Ko8iJLYSIh1ZnRUGEr/6FapYc4q78XNSb/fGkOgQtawepIQeZbogqUFvhHPqflg/ fl3KMm5WWi8tQMc3uz4sJw== 0000795185-97-000007.txt : 19971024 0000795185-97-000007.hdr.sgml : 19971024 ACCESSION NUMBER: 0000795185-97-000007 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19971023 EFFECTIVENESS DATE: 19971023 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: NRG GENERATING U S INC CENTRAL INDEX KEY: 0000795185 STANDARD INDUSTRIAL CLASSIFICATION: COGENERATION SERVICES & SMALL POWER PRODUCERS [4991] IRS NUMBER: 592076187 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-38603 FILM NUMBER: 97699849 BUSINESS ADDRESS: STREET 1: 1221 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55403 BUSINESS PHONE: 6123735300 MAIL ADDRESS: STREET 1: 1221 NICOLLET MALL CITY: MINNEAPOLIS STATE: MN ZIP: 55403 FORMER COMPANY: FORMER CONFORMED NAME: O BRIEN ENVIRONMENTAL ENERGY INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: OBRIEN ENERGY SYSTEMS INC DATE OF NAME CHANGE: 19910804 S-8 1 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
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 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. 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 2 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) 3 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. 4 (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. 5 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.
/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
6 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 EX-5 2 EXHIBIT 5 OPINION OF TROUTMAN SANDERS LLP 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 EX-23.1 3 EXHIBIT 23.1 CONSENT OF TROUTMAN SANDERS LLP (CONTAINED IN OPINION FILED IN EXHIBIT 5) Reference Exhibit 5. EX-23.2 4 EXHIBIT 23.2 CONSENT OF PRICE WATERHOUSE LLP 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 -----END PRIVACY-ENHANCED MESSAGE-----