AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 7, 2004
REGISTRATION NO. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CENTERPOINT ENERGY, INC.
(Exact name of registrant as specified in its charter)
TEXAS 1111 LOUISIANA 74-0694415
(State or other jurisdiction of HOUSTON, TEXAS 77002 (I.R.S. Employer
incorporation or organization) (713) 207-1111 Identification No.)
(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices)
RUFUS S. SCOTT
VICE PRESIDENT, DEPUTY GENERAL COUNSEL AND ASSISTANT CORPORATE SECRETARY
1111 LOUISIANA
HOUSTON, TEXAS 77002
(713) 207-1111
(Name, address, including zip code, and
telephone number, including area code,
of agent for service)
COPY TO:
GERALD M. SPEDALE
BAKER BOTTS L.L.P.
910 LOUISIANA
3000 ONE SHELL PLAZA
HOUSTON, TEXAS 77002-4995
(713) 229-1234
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement.
If the only securities being registered on this Form are to be 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, as amended (the "Securities Act"), 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
TITLE OF EACH CLASS OF SECURITIES PROPOSED MAXIMUM AGGREGATE
TO BE REGISTERED OFFERING PRICE(1)(2) AMOUNT OF REGISTRATION FEE
---------------- -------------------- --------------------------
Senior Debt Securities..................
Common Stock, par value $0.01 per share
(3).....................................
Preferred Stock, par value $0.01 per share
TOTAL............................ $1,000,000,000 $126,700(4)
(1) Estimated solely to compute the amount of the registration fee under Rule
457(o) under the Securities Act and exclusive of accrued interest,
distributions and dividends, if any. The aggregate initial offering price
of all securities issued from time to time pursuant to this registration
statement shall not exceed $1,000,000,000 or the equivalent thereof in
foreign currencies, foreign currency units or composite currencies. If any
debt securities are issued at an original issue discount, then the
offering price shall be in such greater principal amount as shall result
in an aggregate initial offering price of up to $1,000,000,000 or the
equivalent thereof in foreign currencies, foreign currency units or
composite currencies, less the dollar amount of any securities previously
issued hereunder. Any securities registered hereunder may be sold
separately or as units with other securities registered hereunder.
(2) There is being registered hereunder such indeterminate number or amount of
senior debt securities, common stock and preferred stock of
CenterPoint Energy, Inc. as may from time to time be issued at
indeterminate prices and as may be issuable upon conversion, redemption,
exchange, exercise or settlement of any securities registered hereunder,
including under any applicable antidilution provisions.
(3) Each share of common stock includes one preferred share purchase right. No
separate consideration is payable for the preferred share purchase rights.
The registration fee for these securities is included in the fee for the
common stock.
(4) Pursuant to Rule 457(p) under the Securities Act, the registrant hereby
offsets the registration fee required in connection with this Registration
Statement by $120,278 previously paid by the predecessor of the registrant
in connection with the registration of 15,000,000 shares of common stock
pursuant to the Registration Statement on Form S-3, as amended
(Registration No. 333-81119) (the "Prior Registration Statement"),
initially filed with the Commission on June 21, 1999. Accordingly, a
filing fee of $6,422 is paid herewith. Based on this offset, the unsold
securities from the Prior Registration Statement are hereby deemed
deregistered.
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.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and is not soliciting an offer to buy these securities
in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JUNE 7, 2004
PROSPECTUS
[CENTERPOINT ENERGY LOGO]
CenterPoint Energy, Inc.
1111 Louisiana
Houston, Texas 77002
(713) 207-1111
$1,000,000,000
SENIOR DEBT SECURITIES
COMMON STOCK
PREFERRED STOCK
We will provide the specific terms of the securities in one or more
supplements to this prospectus. You should read this prospectus and any
prospectus supplement carefully before you invest in our securities. Our common
stock is listed on the New York Stock Exchange and the Chicago Stock Exchange
under the symbol "CNP."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED WHETHER
THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this prospectus is , 2004.
YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. WE HAVE NOT
AUTHORIZED ANYONE TO PROVIDE YOU WITH DIFFERENT INFORMATION. WE ARE NOT MAKING
AN OFFER OF THESE SECURITIES IN ANY STATE WHERE THE OFFER IS NOT PERMITTED. YOU
SHOULD NOT ASSUME THAT THE INFORMATION CONTAINED IN THIS PROSPECTUS OR ANY
PROSPECTUS SUPPLEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THE DATE ON THE
FRONT OF THAT DOCUMENT. ANY INFORMATION WE HAVE INCORPORATED BY REFERENCE IS
ACCURATE ONLY AS OF THE DATE OF THE DOCUMENT INCORPORATED BY REFERENCE.
TABLE OF CONTENTS
Page
----
About This Prospectus.............................................................................................i
Where You Can Find More Information..............................................................................ii
Cautionary Statement Regarding Forward-Looking Information......................................................iii
About CenterPoint Energy, Inc.....................................................................................1
Ratios of Earnings to Fixed Charges and Earnings to Fixed Charges and Preferred Stock Dividends...................2
Use of Proceeds...................................................................................................2
Description of our Senior Debt Securities.........................................................................3
Description of our Capital Stock.................................................................................12
Plan of Distribution.............................................................................................19
Legal Matters....................................................................................................21
Experts..........................................................................................................21
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we have filed with the
SEC using a "shelf" registration process. Using this process, we may offer any
combination of the securities described in this prospectus in one or more
offerings with a total initial offering price of up to $1,000,000,000. This
prospectus provides you with a general description of the securities we may
offer. Each time we use this prospectus to offer securities, we will provide a
supplement to this prospectus that will describe the specific terms of that
offering. The prospectus supplement may also add to, update or change the
information contained in this prospectus. You should carefully read this
prospectus, the applicable prospectus supplement and the information contained
in the documents we refer to under the heading "Where You Can Find More
Information."
i
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any document we file with the
SEC at the SEC's public reference room located at 450 Fifth Street, N.W.,
Washington, D.C. 20549. You may obtain further information regarding the
operation of the SEC's public reference room by calling the SEC at
1-800-SEC-0330. Our filings are also available to the public on the SEC's
Internet site located at http://www.sec.gov. You can obtain information about us
at the offices of the New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
This prospectus is part of a registration statement we have filed with the
SEC relating to the securities we may offer. As permitted by SEC rules, this
prospectus does not contain all of the information we have included in the
registration statement and the accompanying exhibits and schedules we file with
the SEC. You may refer to the registration statement, the exhibits and the
schedules for more information about us and our securities. The registration
statement, exhibits and schedules are available at the SEC's public reference
room or through its Internet site.
We are "incorporating by reference" into this prospectus information we
file with the SEC. This means we are disclosing important information to you by
referring you to the documents containing the information. The information we
incorporate by reference is considered to be part of this prospectus.
Information that we file later with the SEC that is deemed incorporated by
reference into this prospectus (but not information deemed to be furnished to
and not filed with the SEC) will automatically update and supersede information
previously included.
We are incorporating by reference into this prospectus the documents
listed below and any subsequent filings we make with the SEC under Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (excluding
information deemed to be furnished and not filed with the SEC) until all the
securities are sold or after the date on which the registration statement that
includes this prospectus was initially filed with the SEC and before the
effectiveness of such registration statement:
- our Annual Report on Form 10-K for the year ended December 31, 2003
(our "2003 Form 10-K"),
- our Quarterly Report on Form 10-Q for the period ended March 31,
2004,
- our Current Report on Form 8-K filed January 29, 2004,
- Item 5 of our Current Report on Form 8-K filed February 12, 2004,
- our Current Report on Form 8-K filed March 10, 2004,
- our Current Report on Form 8-K filed April 1, 2004 which reports
that our subsidiary, CenterPoint Energy Resources Corp., entered
into a new credit agreement,
- Item 5 of our Current Report on Form 8-K filed April 1, 2004 which
reports the filing of our final true-up application,
- Item 5 of our Current Report on Form 8-K filed April 22, 2004,
- our Current Report on Form 8-K filed June 2, 2004, and
- the description of our common stock (including the related preferred
share purchase rights) contained in our Current Report on Form 8-K
filed September 6, 2002, as we may update that description from time
to time.
You may also obtain a copy of our filings with the SEC at no cost by
writing to or telephoning us at the following address:
ii
CenterPoint Energy, Inc.
Attn: Investor Relations
P.O. Box 4567
Houston, Texas 77210-4567
(713) 207-6500
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING INFORMATION
In this prospectus, including the information we incorporate by reference,
we make statements concerning our expectations, beliefs, plans, objectives,
goals, strategies, future events or performance and underlying assumptions and
other statements that are not historical facts. These statements are
"forward-looking statements" within the meaning of the Private Securities
Litigation Reform Act of 1995. Actual results may differ materially from those
expressed or implied by these statements. You can generally identify our
forward-looking statements by the words "anticipate," "believe," "continue,"
"could," "estimate," "expect," "forecast," "goal," "intend," "may," "objective,"
"plan," "potential," "predict," "projection," "should," "will" or other similar
words.
We have based our forward-looking statements on our management's beliefs
and assumptions based on information available to our management at the time the
statements are made. We caution you that assumptions, beliefs, expectations,
intentions and projections about future events may and often do vary materially
from actual results. Therefore, we cannot assure you that actual results will
not differ materially from those expressed or implied by our forward-looking
statements.
The following are some of the factors that could cause actual results to
differ materially from those expressed or implied in forward-looking statements:
- the timing and outcome of the regulatory process related to the 1999
Texas Electric Choice Law leading to the determination and recovery
of the true-up components and the securitization of these amounts,
- the timing and results of the monetization of our interest in Texas
Genco Holdings, Inc.,
- state and federal legislative and regulatory actions or
developments, including deregulation, re-regulation and
restructuring of the electric utility industry, constraints placed
on our activities or business by the Public Utility Holding Company
Act of 1935, as amended ("1935 Act"), changes in or application of
laws or regulations applicable to other aspects of our business and
actions with respect to:
- allowed rates of return,
- rate structures,
- recovery of investments, and
- operation and construction of facilities,
- industrial, commercial and residential growth in our service
territory and changes in market demand and demographic patterns,
- the timing and extent of changes in commodity prices, particularly
natural gas,
- changes in interest rates or rates of inflation,
- weather variations and other natural phenomena,
- the timing and extent of changes in the supply of natural gas,
- commercial bank and financial market conditions, our access to
capital, the cost of such capital, receipt of certain approvals
under the 1935 Act, and the results of our financing and refinancing
efforts, including availability of funds in the debt capital
markets,
iii
- actions by rating agencies,
- inability of various counterparties to meet their obligations to us,
- non-payment for our services due to financial distress of our
customers, including Reliant Energy, Inc. (formerly named Reliant
Resources, Inc.) ("RRI"),
- the outcome of the pending lawsuits against us, Reliant Energy,
Incorporated and RRI,
- the ability of RRI to satisfy its obligations to us, including
indemnity obligations and obligations to pay the "price to beat"
clawback, and
- other factors we discuss in "Risk Factors" beginning on page 26 of
our 2003 Form 10-K.
Additional risk factors are described in other documents we file with the
SEC and incorporate by reference in this prospectus.
You should not place undue reliance on forward-looking statements. Each
forward-looking statement speaks only as of the date of the particular
statement.
iv
ABOUT CENTERPOINT ENERGY, INC.
We are a public utility holding company. Our indirect wholly owned
subsidiaries include (i) CenterPoint Energy Houston Electric, LLC, which
provides electric transmission and distribution services in a 5,000-square mile
area of the Texas Gulf Coast that includes Houston, and (ii) CenterPoint Energy
Resources Corp. ("CERC"), which owns gas distribution systems serving
approximately 3 million customers in Arkansas, Louisiana, Minnesota,
Mississippi, Oklahoma and Texas. Through wholly owned subsidiaries, CERC also
owns two interstate natural gas pipelines and gas gathering systems and provides
various ancillary services. We also have an approximately 81% indirect ownership
interest in Texas Genco Holdings, Inc. ("Texas Genco"), which owns and operates
electric generating plants in Texas. We distributed approximately 19% of the
outstanding common stock of Texas Genco to our shareholders in January 2003. We
are actively pursuing a sale of our 81% indirect ownership interest in Texas
Genco.
We are a registered public utility holding company under the Public
Utility Holding Company Act of 1935, as amended ("1935 Act"). The 1935 Act and
related rules and regulations impose a number of restrictions on our activities
and those of our subsidiaries. The 1935 Act, among other things, limits our
ability and the ability of our regulated subsidiaries to issue debt and equity
securities without prior authorization, restricts the source of dividend
payments to current and retained earnings without prior authorization, regulates
sales and acquisitions of certain assets and businesses and governs affiliate
transactions.
Our executive offices are located at 1111 Louisiana, Houston, Texas 77002,
and our main telephone number at that address is 713-207-1111.
1
RATIOS OF EARNINGS TO FIXED CHARGES AND EARNINGS TO FIXED CHARGES AND
PREFERRED STOCK DIVIDENDS
The following table sets forth ratios of earnings to fixed charges for
each of the periods indicated and ratios of earnings to combined fixed
charges and preferred stock dividends for the 1999, 2000 and 2001 periods, each
calculated pursuant to SEC rules. Our predecessor redeemed all shares of its
outstanding cumulative preferred stock on December 14, 2001. Earnings from
continuing operations in 2002 and 2003 include $697 million and $661 million,
respectively, of non-cash ECOM true-up.
THREE
MONTHS
YEAR ENDED DECEMBER 31, ENDED MARCH
----------------------------------------------------- 31,
1999 2000 2001 2002 2003 2004
---- ---- ---- ---- ---- ----
Ratio of earnings from continuing
operations to fixed charges(1)......... 5.39 1.80 2.18 1.70 1.68 1.63
Ratio of earnings from continuing
operations to fixed charges and
preferred stock dividends.............. 5.38 1.80 2.18 -- -- --
----------
(1) We do not believe that the ratio for the three-month period is necessarily
indicative of the ratios for the twelve-month periods due to the seasonal
nature of our business. The ratios were calculated pursuant to applicable
rules of the SEC.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we anticipate
using any net proceeds from the sale of our securities offered by this
prospectus for general corporate purposes. These purposes may include, but are
not limited to:
- working capital,
- capital expenditures,
- acquisitions,
- the repayment or refinancing of debt or trust preferred securities,
and
- loans or advances to subsidiaries.
Pending any specific application, we may initially invest funds in short-term
marketable securities or apply them to the reduction of short-term indebtedness.
2
DESCRIPTION OF OUR SENIOR DEBT SECURITIES
The debt securities offered by this prospectus will be issued under an
indenture, dated as of May 19, 2003, between us and JPMorgan Chase Bank, as
trustee. We have filed or incorporated by reference the indenture as an exhibit
to the registration statement of which this prospectus is a part. We have
summarized selected provisions of the indenture and the debt securities below.
This summary is not complete and is qualified in its entirety by reference to
the indenture. References to section numbers in this prospectus, unless
otherwise indicated, are references to section numbers of the indenture. For
purposes of this summary, the terms "we," "our," "ours" and "us" refer only to
CenterPoint Energy, Inc. and not to any of our subsidiaries.
We may issue debt securities from time to time in one or more series under
the indenture. There is no limitation on the amount of debt securities we may
issue under the indenture. We will describe the particular terms of each series
of debt securities we offer in a supplement to this prospectus. The terms of our
debt securities will include those set forth in the indenture and those made a
part of the indenture by the Trust Indenture Act of 1939. You should carefully
read the summary below, the applicable prospectus supplement and the provisions
of the indenture that may be important to you before investing in our debt
securities.
RANKING
The debt securities offered by this prospectus will:
- be general unsecured obligations,
- rank equally in right of payment with all of our other existing and
future unsecured and unsubordinated indebtedness, and
- with respect to the assets and earnings of our subsidiaries,
effectively rank below all of the liabilities of our subsidiaries.
Subject to the exceptions, and subject to compliance with the applicable
requirements, set forth in the indenture, we may discharge our obligations under
the indenture with respect to our debt securities as described below under " --
Defeasance."
STRUCTURAL SUBORDINATION
We are a holding company that conducts substantially all of our operations
through our subsidiaries. Our only significant assets are the capital stock of
our subsidiaries, and our subsidiaries generate substantially all of our
operating income and cash flow. As a result, dividends or advances from our
subsidiaries are the principal source of funds necessary to meet our debt
service obligations. Contractual provisions or laws, including the 1935 Act, as
well as our subsidiaries' financial condition and operating requirements, may
limit our ability to obtain cash from our subsidiaries that we may require to
pay our debt service obligations, including payments on the debt securities. In
addition, the debt securities will be effectively subordinated to all of the
liabilities of our subsidiaries with regard to the assets and earnings of our
subsidiaries.
TERMS
We will describe the specific terms of the series of debt securities being
offered in a supplement to this prospectus. These terms will include some or all
of the following:
- the title of the debt securities,
- any limit on the total principal amount of the debt securities,
3
- the date or dates on which the principal of the debt securities will
be payable or the method used to determine or extend those dates,
- any interest rate on the debt securities, any date from which
interest will accrue, any interest payment dates and regular record
dates for interest payments, or the method used to determine any of
the foregoing, and the basis for calculating interest if other than
a 360-day year of twelve 30-day months,
- the place or places where payments on the debt securities will be
payable, the debt securities may be presented for registration of
transfer or exchange, and notices and demands to or upon us relating
to the debt securities may be made,
- any provisions for redemption of the debt securities,
- any provisions that would allow or obligate us to redeem or purchase
the debt securities prior to their maturity,
- the denominations in which we will issue the debt securities, if
other than denominations of an integral multiple of $1,000,
- any provisions that would determine payments on the debt securities
by reference to an index or a formula,
- any foreign currency, currencies or currency units in which payments
on the debt securities will be payable and the manner for
determining the equivalent amount in $U.S.,
- any provisions for payments on the debt securities in one or more
currencies or currency units other than those in which the debt
securities are stated to be payable,
- the portion of the principal amount of the debt securities that will
be payable if the maturity of the debt securities is accelerated, if
other than the entire principal amount,
- if the principal amount to be paid at the stated maturity of the
debt securities is not determinable as of one or more dates prior to
the stated maturity, the amount that will be deemed to be the
principal amount as of any such date for any purpose,
- any variation of the defeasance and covenant defeasance sections of
the indenture and the manner in which our election to defease the
debt securities will be evidenced, if other than by a board
resolution,
- whether we will issue the debt securities in the form of temporary
or permanent global securities, the depositories for the global
securities, and provisions for exchanging or transferring the global
securities,
- whether the interest rate of the debt securities may be reset,
- whether the stated maturity of the debt securities may be extended,
- any addition to or change in the events of default for the debt
securities and any change in the right of the trustee or the holders
of the debt securities to declare the principal amount of the debt
securities due and payable,
- any addition to or change in the covenants in the indenture,
- any additions or changes to the indenture necessary to issue the
debt securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons,
- the appointment of any paying agents for the debt securities, if
other than the trustee,
4
- the terms of any right to convert or exchange the debt securities
into any other securities or property,
- the terms and conditions, if any, pursuant to which the debt
securities are secured,
- any restriction or condition on the transferability of the debt
securities, and
- any other terms of the debt securities consistent with the
indenture. (Section 301)
Any limit on the maximum total principal amount for any series of the debt
securities may be increased by resolution of our board of directors. (Section
301). We may sell the debt securities, including original issue discount
securities, at a substantial discount below their stated principal amount. If
there are any special United States federal income tax considerations applicable
to debt securities we sell at an original issue discount, we will describe them
in the prospectus supplement. In addition, we will describe in the prospectus
supplement any special United States federal income tax considerations and any
other special considerations for any debt securities we sell which are
denominated in a currency or currency unit other than $U.S.
FORM, EXCHANGE AND TRANSFER
We will issue the debt securities in registered form, without coupons.
Unless we inform you otherwise in the prospectus supplement, we will only issue
debt securities in denominations of integral multiples of $1,000. (Section 302)
Holders generally will be able to exchange debt securities for other debt
securities of the same series with the same total principal amount and the same
terms but in different authorized denominations. (Section 305)
Holders may present debt securities for exchange or for registration of
transfer at the office of the security registrar or at the office of any
transfer agent we designate for that purpose. The security registrar or
designated transfer agent will exchange or transfer the debt securities if it is
satisfied with the documents of title and identity of the person making the
request. We will not charge a service charge for any exchange or registration of
transfer of debt securities. However, we may require payment of a sum sufficient
to cover any tax or other governmental charge payable for the registration of
transfer or exchange. Unless we inform you otherwise in the prospectus
supplement, we will appoint the trustee as security registrar. We will identify
any transfer agent in addition to the security registrar in the prospectus
supplement. (Section 305) At any time we may:
- designate additional transfer agents,
- rescind the designation of any transfer agent, or
- approve a change in the office of any transfer agent.
However, we are required to maintain a transfer agent in each place of payment
for the debt securities at all times. (Sections 305 and 1002)
If we elect to redeem a series of debt securities, neither we nor the
trustee will be required:
- to issue, register the transfer of or exchange any debt securities
of that series during the period beginning at the opening of
business 15 days before the day we mail the notice of redemption for
the series and ending at the close of business on the day the notice
is mailed, or
- to register the transfer or exchange of any debt security of that
series if we have selected the series for redemption, in whole or in
part, except for the unredeemed portion of the series. (Section 305)
5
BOOK-ENTRY
We may issue the debt securities of a series in the form of one or more
global debt securities that would be deposited with a depositary or its nominee
identified in the prospectus supplement. We may issue global debt securities in
either temporary or permanent form. We will describe in the prospectus
supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any global debt security.
PAYMENT AND PAYING AGENTS
Under the indenture, we will pay interest on the debt securities to the
persons in whose names the debt securities are registered at the close of
business on the regular record date for each interest payment. However, unless
we inform you otherwise in the prospectus supplement, we will pay the interest
payable on the debt securities at their stated maturity to the persons to whom
we pay the principal amount of the debt securities. The initial payment of
interest on any series of debt securities issued between a regular record date
and the related interest payment date will be payable in the manner provided by
the terms of the series, which we will describe in the prospectus supplement.
(Section 307)
Unless we inform you otherwise in the prospectus supplement, we will pay
principal, premium, if any, and interest on the debt securities at the offices
of the paying agents we designate. However, except in the case of a global
security, we may pay interest by:
- check mailed to the address of the person entitled to the payment as
it appears in the security register, or
- by wire transfer in immediately available funds to the place and
account designated in writing by the person entitled to the payment
as specified in the security register.
We will designate the trustee as the sole paying agent for the debt securities
unless we inform you otherwise in the prospectus supplement. If we initially
designate any other paying agents for a series of debt securities, we will
identify them in the prospectus supplement. At any time, we may designate
additional paying agents or rescind the designation of any paying agents.
However, we are required to maintain a paying agent in each place of payment for
the debt securities at all times. (Sections 307 and 1002)
Any money deposited with the trustee or any paying agent for the payment
of principal, premium, if any, and interest on the debt securities that remains
unclaimed for two years after the date the payments became due, may be repaid to
us upon our request. After we have been repaid, holders entitled to those
payments may only look to us for payment as our unsecured general creditors. The
trustee and any paying agents will not be liable for those payments after we
have been repaid. (Section 1003)
RESTRICTIVE COVENANTS
We will describe any restrictive covenants for any series of debt
securities in the prospectus supplement.
CONSOLIDATION, MERGER AND SALE OF ASSETS
Under the indenture, we may not consolidate with or merge into, or convey,
transfer or lease our properties and assets substantially as an entirety to, any
person, referred to as a "successor person" unless:
- the successor person is a corporation, partnership, trust or other
entity organized and validly existing under the laws of the United
States of America or any state thereof or the District of Columbia,
- the successor person expressly assumes our obligations with respect
to the debt securities and the indenture,
- immediately after giving effect to the transaction, no event of
default, and no event which, after notice or lapse of time or both,
would become an event of default, would occur and be continuing, and
6
- we have delivered to the trustee the certificates and opinions
required under the indenture. (Section 801)
As used in the indenture, the term "corporation" means a corporation,
association, company, limited liability company, joint-stock company or business
trust.
EVENTS OF DEFAULT
Unless we inform you otherwise in the prospectus supplement, each of the
following will be an event of default under the indenture for a series of debt
securities:
- our failure to pay principal or premium, if any, on that series when
due,
- our failure to pay any interest on that series for 30 days after the
interest becomes due,
- our failure to deposit any sinking fund payment, when due, relating
to that series,
- our failure to perform, or our breach, in any material respect, of
any other covenant or warranty in the indenture, other than a
covenant or warranty included in the indenture solely for the
benefit of another series of debt securities, for 90 days after
either the trustee or holders of at least 25% in principal amount of
the outstanding debt securities of that series have given us written
notice of the breach in the manner required by the indenture,
- specified events involving our bankruptcy, insolvency or
reorganization, and
- any other event of default we may provide for that series,
provided, however, that no event described in the fourth bullet point above will
be an event of default until an officer of the trustee, assigned to and working
in the trustee's corporate trust department, has actual knowledge of the event
or until the trustee receives written notice of the event at its corporate trust
office. (Section 501)
If an event of default for a series of debt securities occurs and is
continuing, either the trustee or the holders of at least 25% in principal
amount of the outstanding debt securities of that series may declare the
principal amount of all the debt securities of that series due and immediately
payable. In order to declare the principal amount of that series of debt
securities due and immediately payable, the trustee or the holders must deliver
a notice that satisfies the requirements of the indenture. Upon a declaration by
the trustee or the holders, we will be obligated to pay the principal amount of
the series of debt securities.
The right described in the preceding paragraph does not apply if an event
of default described in the fifth bullet point above occurs, or an event of
default described in the sixth bullet point above that applies to all
outstanding debt securities occurs. If one of the events of default described in
the fifth bullet point above occurs and is continuing with respect to the debt
securities of any series, the debt securities of that series then outstanding
under the indenture will be due and payable immediately. If any of the events of
default described in the sixth bullet point above that apply to all outstanding
debt securities occurs and is continuing, either the trustee or holders of at
least 25% in principal amount of all of the debt securities then outstanding,
treated as one class, may declare the principal amount of all of the debt
securities then outstanding to be due and payable immediately. In order to
declare the principal amount of the debt securities due and immediately payable,
the trustee or the holders must deliver a notice that satisfies the requirements
of the indenture. Upon a declaration by the trustee or the holders, we will be
obligated to pay the principal amount of the debt securities.
However, after any declaration of acceleration of a series of debt
securities, but before a judgment or decree for payment has been obtained, the
event of default giving rise to the declaration of acceleration will, without
further act, be deemed to have been waived, and such declaration and its
consequences will, without further act, be deemed to have been rescinded and
annulled if:
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- we have paid or deposited with the trustee a sum sufficient to pay:
- all overdue interest,
- the principal and premium, if any, due otherwise than by the
declaration of acceleration and any interest on such amounts,
- any interest on overdue interest, to the extent legally
permitted, and
- all amounts due to the trustee under the indenture, and
- all events of default with respect to that series of debt
securities, other than the nonpayment of the principal which became
due solely by virtue of the declaration of acceleration, have been
cured or waived. (Section 502)
If an event of default occurs and is continuing, the trustee will
generally have no obligation to exercise any of its rights or powers under the
indenture at the request or direction of any of the holders, unless the holders
offer reasonable indemnity to the trustee. (Section 603) The holders of a
majority in principal amount of the outstanding debt securities of any series
will generally have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the trustee or exercising any trust
or power conferred on the trustee for the debt securities of that series,
provided that:
- the direction is not in conflict with any law or the indenture,
- the trustee may take any other action it deems proper which is not
inconsistent with the direction, and
- the trustee will generally have the right to decline to follow the
direction if an officer of the trustee determines, in good faith,
that the proceeding would involve the trustee in personal liability
or would otherwise be contrary to applicable law. (Section 512)
A holder of a debt security of any series may only pursue a remedy under
the indenture if:
- the holder gives the trustee written notice of a continuing event of
default for that series,
- holders of at least 25% in principal amount of the outstanding debt
securities of that series make a written request to the trustee to
institute proceedings with respect to the event of default,
- the holders offer reasonable indemnity to the trustee,
- the trustee fails to pursue that remedy within 60 days after receipt
of the notice, request and offer of indemnity, and
- during that 60-day period, the holders of a majority in principal
amount of the debt securities of that series do not give the trustee
a direction inconsistent with the request. (Section 507)
However, these limitations do not apply to a suit by a holder of a debt security
demanding payment of the principal, premium, if any, or interest on a debt
security on or after the date the payment is due. (Section 508)
We will be required to furnish to the trustee annually a statement by some
of our officers regarding our performance or observance of any of the terms of
the indenture and specifying all of our known defaults, if any. (Section 1004)
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MODIFICATION AND WAIVER
We may enter into one or more supplemental indentures with the trustee
without the consent of the holders of the debt securities in order to:
- evidence the succession of another corporation to us, or successive
successions and the assumption of our covenants, agreements and
obligations by a successor,
- add to our covenants for the benefit of the holders of any series of
debt securities or to surrender any of our rights or powers,
- add events of default for any series of debt securities,
- add to or change any provision of the indenture to the extent
necessary to issue debt securities in bearer form,
- add to, change or eliminate any provision of the indenture applying
to one or more series of debt securities, provided that if such
action adversely affects the interests of any holder of any series
of debt securities, the addition, change or elimination will become
effective with respect to that series only when no security of that
series remains outstanding,
- convey, transfer, assign, mortgage or pledge any property to or with
the trustee or to surrender any right or power conferred upon us by
the indenture,
- establish the form or terms of any series of debt securities,
- provide for uncertificated securities in addition to certificated
securities,
- evidence and provide for successor trustees or to add to or change
any provisions to the extent necessary to appoint a separate trustee
or trustees for a specific series of debt securities,
- correct any ambiguity, defect or inconsistency under the indenture,
provided that such action does not adversely affect the interests of
the holders of any series of debt securities,
- supplement any provisions of the indenture necessary to defease and
discharge any series of debt securities, provided that such action
does not adversely affect the interests of the holders of any series
of debt securities,
- comply with the rules or regulations of any securities exchange or
automated quotation system on which any debt securities are listed
or traded, or
- add, change or eliminate any provisions of the indenture in
accordance with any amendments to the Trust Indenture Act of 1939,
provided that the action does not adversely affect the rights or
interests of any holder of debt securities. (Section 901)
We may enter into one or more supplemental indentures with the trustee in
order to add to, change or eliminate provisions of the indenture or to modify
the rights of the holders of one or more series of debt securities if we obtain
the consent of the holders of a majority in principal amount of the outstanding
debt securities of each series affected by the supplemental indenture, treated
as one class. However, without the consent of the holders of each outstanding
debt security affected by the supplemental indenture, we may not enter into a
supplemental indenture that:
- changes the stated maturity of the principal of, or any installment
of principal of or interest on, any debt security, except to the
extent permitted by the indenture,
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- reduces the principal amount of, or any premium or interest on, any
debt security,
- reduces the amount of principal of an original issue discount
security or any other debt security payable upon acceleration of the
maturity thereof,
- changes the place or currency of payment of principal, premium, if
any, or interest,
- impairs the right to institute suit for the enforcement of any
payment on any note,
- reduces the percentage in principal amount of outstanding debt
securities of any series, the consent of whose holders is required
for modification of the indenture, for waiver of compliance with
certain provisions of the indenture or for waiver of certain
defaults,
- makes certain modifications to the provisions for modification of
the indenture and for certain waivers, except to increase the
principal amount of debt securities necessary to consent to any such
charge,
- makes any change that adversely affects the right to convert or
exchange any debt security or decreases the conversion or exchange
rate or increases the conversion price of any convertible or
exchangeable debt security, or
- changes the terms and conditions pursuant to which any series of
debt securities is secured in a manner adverse to the holders of the
debt securities. (Section 902)
Holders of a majority in principal amount of the outstanding debt
securities of any series may waive past defaults or noncompliance with
restrictive provisions of the indenture. However, the consent of holders of each
outstanding debt security of a series is required to:
- waive any default in the payment of principal, premium, if any, or
interest, or
- waive any covenants and provisions of the indenture that may not be
amended without the consent of the holder of each outstanding debt
security of the series affected. (Sections 513 and 1006)
In order to determine whether the holders of the requisite principal
amount of the outstanding debt securities have taken an action under the
indenture as of a specified date:
- the principal amount of an "original issue discount security" that
will be deemed to be outstanding will be the amount of the principal
that would be due and payable as of that date upon acceleration of
the maturity to that date,
- if, as of that date, the principal amount payable at the stated
maturity of a debt security is not determinable, for example,
because it is based on an index, the principal amount of the debt
security deemed to be outstanding as of that date will be an amount
determined in the manner prescribed for the debt security,
- the principal amount of a debt security denominated in one or more
foreign currencies or currency units that will be deemed to be
outstanding will be the $U.S. equivalent, determined as of that date
in the manner prescribed for the debt security, of the principal
amount of the debt security or, in the case of a debt security
described in the two preceding bullet points, of the amount
described above, and
- debt securities owned by us or any other obligor upon the debt
securities or any of our or their affiliates will be disregarded and
deemed not to be outstanding.
An "original issue discount security" means a debt security issued under the
indenture which provides for an amount less than the principal amount thereof to
be due and payable upon a declaration of acceleration of maturity. Some debt
securities, including those for the payment or redemption of which money has
been deposited or set aside in
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trust for the holders and those that have been fully defeased pursuant to
Section 1402 of the indenture, will not be deemed to be outstanding. (Section
101)
We will generally be entitled to set any day as a record date for
determining the holders of outstanding debt securities of any series entitled to
give or take any direction, notice, consent, waiver or other action under the
indenture. In limited circumstances, the trustee will be entitled to set a
record date for action by holders of outstanding debt securities. If a record
date is set for any action to be taken by holders of a particular series, the
action may be taken only by persons who are holders of outstanding debt
securities of that series on the record date. To be effective, the action must
be taken by holders of the requisite principal amount of debt securities within
a specified period following the record date. For any particular record date,
this period will be 180 days or such shorter period as we may specify, or the
trustee may specify, if it set the record date. This period may be shortened or
lengthened by not more than 180 days. (Section 104)
DEFEASANCE
When we use the term defeasance, we mean discharge from some or all of our
obligations under the indenture. Unless we inform you otherwise in the
prospectus supplement, if we deposit with the trustee funds or government
securities sufficient to make payments on the debt securities of a series on the
dates those payments are due and payable, then, at our option, either of the
following will occur:
- we will be discharged from our obligations with respect to the debt
securities of that series ("legal defeasance"), or
- we will no longer have any obligation to comply with the restrictive
covenants under the indenture, and the related events of default
will no longer apply to us, but some of our other obligations under
the indenture and the debt securities of that series, including our
obligation to make payments on those debt securities, will survive.
If we defease a series of debt securities, the holders of the debt
securities of the series affected will not be entitled to the benefits of the
indenture, except for our obligations to:
- register the transfer or exchange of debt securities,
- replace mutilated, destroyed, lost or stolen debt securities, and
- maintain paying agencies and hold moneys for payment in trust.
Unless we inform you otherwise in the prospectus supplement, we will be
required to deliver to the trustee an opinion of counsel that the deposit and
related defeasance would not cause the holders of the debt securities to
recognize gain or loss for federal income tax purposes and that the holders
would be subject to federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if the deposit and related
defeasance had not occurred. If we elect legal defeasance, that opinion of
counsel must be based upon a ruling from the United States Internal Revenue
Service or a change in law to that effect. (Sections 1401, 1402, 1403 and 1404)
NOTICES
Holders will receive notices by mail at their addresses as they appear in
the security register. (Section 106)
TITLE
We may treat the person in whose name a debt security is registered on the
applicable record date as the owner of the debt security for all purposes,
whether or not it is overdue. (Section 309)
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GOVERNING LAW
New York law will govern the indenture and the debt securities. (Section
112)
REGARDING THE TRUSTEE
As of June 1, 2004, the trustee served as trustee for $2.3 billion
aggregate principal amount of our outstanding debt securities and $1.2 billion
aggregate principal amount of outstanding pollution control bonds issued on our
behalf. In addition, the trustee serves as trustee for debt securities of some
of our subsidiaries. The trustee and its affiliates are also parties to credit
agreements under which we and our affiliates have bank lines of credit. We and
our affiliates also maintain depository and other banking, investment banking
and investment management relationships with the trustee and its affiliates. The
trustee also serves as rights agent under our shareholder rights plan.
If an event of default occurs under the indenture and is continuing, the
trustee will be required to use the degree of care and skill of a prudent person
in the conduct of that person's own affairs. The trustee will become obligated
to exercise any of its powers under the indenture at the request of any of the
holders of any debt securities issued under the indenture only after those
holders have offered the trustee indemnity satisfactory to it.
If the trustee becomes one of our creditors, its rights to obtain payment
of claims in specified circumstances, or to realize for its own account on
certain property received in respect of any such claim as security or otherwise
will be limited under the terms of the indenture. (Section 613) The trustee may
engage in certain other transactions; however, if the trustee acquires any
conflicting interest (within the meaning specified under the Trust Indenture
Act), it will be required to eliminate the conflict or resign. (Section 608)
DESCRIPTION OF OUR CAPITAL STOCK
The following descriptions are summaries of material terms of our common
stock, preferred stock, articles of incorporation and bylaws. This summary is
qualified by reference to our amended and restated articles of incorporation and
amended and restated bylaws, each as amended to date, copies of which we have
filed or incorporated by reference as exhibits to the registration statement of
which this prospectus is a part, and by the provisions of applicable law. Our
authorized capital stock consists of:
- 1,000,000,000 shares of common stock, par value $0.01 per share, of
which 307,239,250 shares are outstanding as of June 1, 2004, and
- 20,000,000 shares of preferred stock, par value $0.01 per share, of
which no shares are outstanding as of June 1, 2004.
A series of our preferred stock, designated Series A Preferred Stock, has
been reserved for issuance upon exercise of the preferred stock purchase rights
attached to each share of our common stock pursuant to the shareholder rights
plan discussed below.
COMMON STOCK
VOTING RIGHTS. Holders of our common stock are entitled to one vote for
each share on all matters submitted to a vote of shareholders, including the
election of directors. There are no cumulative voting rights. Subject to the
voting rights expressly conferred under prescribed conditions to the holders of
our preferred stock, the holders of our common stock possess exclusive full
voting power for the election of directors and for all other purposes.
DIVIDENDS. Subject to preferences that may be applicable to any of our
outstanding preferred stock, the holders of our common stock are entitled to
dividends when, as and if declared by the board of directors out of funds
legally available for that purpose.
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LIQUIDATION RIGHTS. If we are liquidated, dissolved or wound up, the
holders of our common stock will be entitled to a pro rata share in any
distribution to shareholders, but only after satisfaction of all of our
liabilities and of the prior rights of any outstanding class of our preferred
stock, which may include the right to participate further with the holders of
our common stock in the distribution of any of our remaining assets.
PREEMPTIVE RIGHTS. Holders of our common stock are not entitled to any
preemptive or conversion rights or other subscription rights.
TRANSFER AGENT AND REGISTRAR. Our shareholder services division serves as
transfer agent and registrar for our common stock.
OTHER PROVISIONS. There are no redemption or sinking fund provisions
applicable to our common stock. No personal liability will attach to holders of
such shares under the laws of the State of Texas. Subject to the provisions of
our articles of incorporation and bylaws imposing certain supermajority voting
provisions, the rights of the holders of shares of our common stock may not be
modified except by a vote of at least a majority of the shares outstanding,
voting together as a single class.
PREFERRED STOCK
Our board of directors may cause us to issue preferred stock from time to
time in one or more series and may fix the number of shares and the terms of
each series without the approval of our shareholders. Our board of directors may
determine the terms of each series, including:
- the designation of the series,
- dividend rates and payment dates,
- redemption rights,
- liquidation rights,
- sinking fund provisions,
- conversion rights,
- voting rights, and
- any other terms.
The prospectus supplement relating to any series of preferred stock we are
offering will include specific terms relating to the offering. We will file the
form of the preferred stock with the SEC before we issue any of it, and you
should read it for provisions that may be important to you. The prospectus
supplement will include some or all of the following terms:
- the title of the preferred stock,
- the maximum number of shares of the series,
- the dividend rate or the method of calculating the dividend, the
date from which dividends will accrue and whether dividends will be
cumulative,
- any liquidation preference,
- any optional redemption provisions,
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- any sinking fund or other provisions that would obligate us to
redeem or purchase the preferred stock,
- any terms for the conversion or exchange of the preferred stock for
other securities of us or any other entity,
- any voting rights, and
- any other preferences and relative, participating, optional or other
special rights or any qualifications, limitations or restrictions on
the rights of the shares.
The issuance of preferred stock, while providing desired flexibility in
connection with possible acquisitions and other corporate purposes, could
adversely affect the voting power of holders of our common stock. It could also
affect the likelihood that holders of our common stock will receive dividend
payments and payments upon liquidation. The issuance of shares of preferred
stock, or the issuance of rights to purchase shares of preferred stock, could be
used to discourage an attempt to obtain control of us. For example, if, in the
exercise of its fiduciary obligations, our board were to determine that a
takeover proposal was not in our best interest, the board could authorize the
issuance of a series of preferred stock containing class voting rights that
would enable the holder or holders of the series to prevent or make the change
of control transaction more difficult. Alternatively, a change of control
transaction deemed by the board to be in our best interest could be facilitated
by issuing a series of preferred stock having sufficient voting rights to
provide a required percentage vote of the shareholders.
For purposes of the rights plan described below, our board of directors
has designated a series of preferred stock to constitute the Series A Preferred
Stock. For a description of the rights plan, see " -- Anti-Takeover Effects of
Texas Laws and Our Charter and Bylaw Provisions" and " -- Shareholder Rights
Plan."
ANTI-TAKEOVER EFFECTS OF TEXAS LAWS AND OUR CHARTER AND BYLAW PROVISIONS
Some provisions of Texas law and our articles of incorporation and bylaws
could make the following actions more difficult:
- acquisition of us by means of a tender offer,
- acquisition of control of us by means of a proxy contest or
otherwise, or
- removal of our incumbent officers and directors.
These provisions, as well as our shareholder rights plan, are designed to
discourage coercive takeover practices and inadequate takeover bids. These
provisions are also designed to encourage persons seeking to acquire control of
us to first negotiate with our board of directors. We believe that the benefits
of this increased protection gives us the potential ability to negotiate with
the proponent of an unfriendly or unsolicited proposal to acquire or restructure
us, and that the benefits of this increased protection outweigh the
disadvantages of discouraging those proposals, because negotiation of those
proposals could result in an improvement of their terms.
CHARTER AND BYLAW PROVISIONS
ELECTION AND REMOVAL OF DIRECTORS. The exact number of members of our
board of directors will be fixed from time to time by resolution of the board of
directors. Our board of directors is divided into three classes, Class I, Class
II and Class III. Each class is as nearly equal in number of directors as
possible. The terms of office of the directors of Class I expire at the annual
meeting of shareholders in 2006, of Class II expire at the annual meeting of
shareholders in 2007 and of Class III expire at the annual meeting of
shareholders in 2005. At each annual meeting, the shareholders elect the number
of directors equal to the number in the class whose term expires at the meeting
to hold office until the third succeeding annual meeting. This system of
electing and removing directors may discourage a third party from making a
tender offer for or otherwise attempting to obtain control of us, because it
generally makes it more difficult for shareholders to replace a majority of the
directors. In addition, no director may be removed except for cause, and,
subject to the voting rights expressly conferred under prescribed conditions to
the
14
holders of our preferred stock, directors may be removed for cause only by the
holders of a majority of the shares of capital stock entitled to vote at an
election of directors. Subject to the voting rights expressly conferred under
prescribed conditions to the holders of our preferred stock, any vacancy
occurring on the board of directors and any newly created directorship may be
filled by a majority of the remaining directors in office or by election by the
shareholders.
SHAREHOLDER MEETINGS. Our articles of incorporation and bylaws provide
that special meetings of holders of common stock may be called only by the
chairman of our board of directors, our chief executive officer, the president,
the secretary, a majority of our board of directors or the holders of at least
50% of the shares outstanding and entitled to vote.
MODIFICATION OF ARTICLES OF INCORPORATION. In general, amendments to our
articles of incorporation that are recommended by the board of directors require
the affirmative vote of holders of at least a majority of the voting power of
all outstanding shares of capital stock entitled to vote in the election of
directors. The provisions described above under " -- Election and Removal of
Directors" and " -- Shareholder Meetings" may be amended only by the affirmative
vote of holders of at least 66 2/3% of the voting power of all outstanding
shares of capital stock entitled to vote in the election of directors. The
provisions described below under " -- Modification of Bylaws" may be amended
only by the affirmative vote of holders of at least 80% of the voting power of
all outstanding shares of capital stock entitled to vote in the election of
directors.
MODIFICATION OF BYLAWS. Our board of directors has the power to alter,
amend or repeal the bylaws or adopt new bylaws by the affirmative vote of at
least 80% of all directors then in office at any regular or special meeting of
the board of directors called for that purpose. The shareholders also have the
power to alter, amend or repeal the bylaws or adopt new bylaws by the
affirmative vote of holders of at least 80% of the voting power of all
outstanding shares of capital stock entitled to vote in the election of
directors, voting together as a single class.
OTHER LIMITATIONS ON SHAREHOLDER ACTIONS. Our bylaws also impose some
procedural requirements on shareholders who wish to:
- make nominations in the election of directors,
- propose that a director be removed,
- propose any repeal or change in the bylaws, or
- propose any other business to be brought before an annual or special
meeting of shareholders.
Under these procedural requirements, a shareholder must deliver timely
notice to our corporate secretary of the nomination or proposal along with
evidence of:
- the shareholder's status as a shareholder,
- the number of shares beneficially owned by the shareholder,
- a list of the persons with whom the shareholder is acting in
concert, and
- the number of shares such persons beneficially own.
To be timely, a shareholder must deliver notice:
- in connection with an annual meeting of shareholders, not less than
90 nor more than 180 days prior to the date on which the immediately
preceding year's annual meeting of shareholders was held; provided
that if the date of the annual meeting is advanced by more than 30
days prior to or delayed by more than 60 days after the date on
which the immediately preceding year's annual meeting of
shareholders was held, not less than 180 days prior to the annual
meeting and not later than the last to occur of (i) the 90th day
prior to the
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annual meeting or (ii) the 10th day following the day on which we
first make public announcement of the date of the annual meeting, or
- in connection with a special meeting of shareholders, not less than
40 nor more than 60 days prior to the date of the special meeting.
In order to submit a nomination for the board of directors, a shareholder
must also submit information with respect to the nominee that we would be
required to include in a proxy statement, as well as some other information. If
a shareholder fails to follow the required procedures, the shareholder's nominee
or proposal will be ineligible and will not be voted on by our shareholders.
LIMITATION ON LIABILITY OF DIRECTORS. Our articles of incorporation
provide that no director will be personally liable to us or our shareholders for
monetary damages for breach of fiduciary duty as a director, except as required
by law as in effect from time to time. Currently, Texas law requires that
liability be imposed for the following actions:
- any breach of the director's duty of loyalty to us or our
shareholders,
- any act or omission not in good faith that constitutes a breach of
duty of the director to the corporation or an act or omission that
involves intentional misconduct or a knowing violation of law,
- a transaction from which the director received an improper benefit,
whether or not the benefit resulted from an action taken within the
scope of a director's office, and
- an act or omission for which the liability of a director is
expressly provided for by statute.
Our bylaws provide that we will indemnify our officers and directors and advance
expenses to them in connection with proceedings and claims, to the fullest
extent permitted by the Texas Business Corporation Act ("TBCA"). The bylaws
authorize our board of directors to indemnify and advance expenses to people
other than our officers and directors in certain circumstances.
TEXAS ANTI-TAKEOVER LAW
We are subject to Article 13.03 of the TBCA. That section prohibits Texas
corporations from engaging in a wide range of specified transactions with any
affiliated shareholder during the three-year period immediately following the
affiliated shareholder's acquisition of shares in the absence of certain board
of director or shareholder approvals. An affiliated shareholder of a corporation
is any person, other than the corporation and any of its wholly owned
subsidiaries, that is or was within the preceding three-year period the
beneficial owner of 20% or more of any class or series of stock entitled to vote
generally in the election of directors. Article 13.03 may deter any potential
unfriendly offers or other efforts to obtain control of us that are not approved
by our board. This may deprive our shareholders of opportunities to sell shares
of our common stock at a premium to the prevailing market price.
SHAREHOLDER RIGHTS PLAN
Each share of our common stock includes one right to purchase from us a
unit consisting of one one-thousandth of a share of our Series A Preferred Stock
at a purchase price of $42.50 per unit, subject to adjustment. The rights are
issued pursuant the Rights Agreement dated as of January 1, 2002 between us and
JPMorgan Chase Bank (the "Rights Agreement"). We have summarized selected
portions of the Rights Agreement and the rights below. This summary is qualified
by reference to the Rights Agreement, a copy of which we have filed or
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part.
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DETACHMENT OF RIGHTS; EXERCISABILITY. The rights will attach to all
certificates representing our common stock issued prior to the "release date."
That date will occur, except in some cases, on the earlier of:
- ten days following a public announcement that a person or group of
affiliated or associated persons, whom we refer to collectively as
an "acquiring person," has acquired, or obtained the right to
acquire, beneficial ownership of 20% or more of the outstanding
shares of our common stock, or
- ten business days following the start of a tender offer or exchange
offer that would result in a person becoming an acquiring person.
Our board of directors may defer the release date in some circumstances. Also,
some inadvertent acquisitions of our common stock will not result in a person
becoming an acquiring person if the person promptly divests itself of sufficient
common stock.
Until the release date:
- common stock certificates will evidence the rights,
- the rights will be transferable only with those certificates,
- new common stock certificates will contain a notation incorporating
the Rights Agreement by reference, and
- the surrender for transfer of any common stock certificate will also
constitute the transfer of the rights associated with the common
stock represented by the certificate.
The rights are not exercisable until the release date and will expire at
the close of business on December 31, 2011, unless we redeem or exchange them at
an earlier date as described below.
As soon as practicable after the release date, the rights agent will mail
certificates representing the rights to holders of record of common stock as of
the close of business on the release date. From that date on, only separate
rights certificates will represent the rights. We will also issue rights with
all shares of common stock issued prior to the release date. We will also issue
rights with shares of common stock issued after the release date in connection
with some employee benefit plans or upon conversion of some securities. Except
as otherwise determined by our board of directors, we will not issue rights with
any other shares of common stock issued after the release date.
FLIP-IN EVENT. A "flip-in event" will occur under the Rights Agreement
when a person becomes an acquiring person other than pursuant to a "permitted
offer." The Rights Agreement defines "permitted offer" as a tender or exchange
offer for all outstanding shares of our common stock at a price and on terms
that a majority of the independent directors of our board of directors
determines to be fair to and otherwise in the best interests of us and the best
interests of our shareholders.
If a flip-in event occurs, each right, other than any right that has
become null and void as described below, will become exercisable to receive (in
lieu of the shares of Series A Preferred Stock otherwise purchasable) the number
of shares of common stock, or in certain circumstances, cash, property or other
securities, which has a "current market price" equal to two times the exercise
price of the right. Please refer to the Rights Agreement for the definition of
"current market price."
FLIP-OVER EVENT. A "flip-over event" will occur under the Rights Agreement
when, at any time from and after the time a person becomes an acquiring person:
- we are acquired or we acquire any person in a merger or other
business combination transaction, other than specified mergers that
follow a permitted offer, or
- 50% or more of our assets, cash flow or earning power is sold or
transferred.
17
If a flip-over event occurs, each holder of a right, except rights that are
voided as described below, will thereafter have the right to receive, on
exercise of the right, a number of shares of common stock of the acquiring
company that has a current market price equal to two times the exercise price of
the right.
When a flip-in event or a flip-over event occurs, all rights that then
are, or under the circumstances the Rights Agreement specifies previously were,
beneficially owned by an acquiring person or specified related parties will
become null and void in the circumstances the Rights Agreement specifies.
SERIES A PREFERRED STOCK. After the release date, each right will entitle
the holder to purchase a one one-thousandth share of our Series A Preferred
Stock, which fraction will be essentially the economic equivalent of one share
of common stock.
ANTI-DILUTION. The number of outstanding rights associated with a share of
common stock, the number of fractional shares of Series A Preferred Stock
issuable upon exercise of a right and the exercise price of the right are
subject to adjustment in the event of certain stock dividends on, or a
subdivision, combination or reclassification of, our common stock occurring
prior to the release date. The exercise price of the rights and the number of
fractional shares of Series A Preferred Stock or other securities or property
issuable on exercise of the rights are subject to adjustment from time to time
to prevent dilution in the event of certain transactions affecting the Series A
Preferred Stock.
With some exceptions, we will not be required to adjust the exercise price
of the rights until cumulative adjustments amount to at least 1% of the exercise
price. The Rights Agreement also will not require us to issue fractional shares
of Series A Preferred Stock that are not integral multiples of the specified
fractional share and, in lieu thereof, we will make a cash adjustment based on
the market price of the Series A Preferred Stock on the last trading date prior
to the date of exercise. Pursuant to the Rights Agreement, we reserve the right
to require prior to the occurrence of any flip-in event or flip-over event that,
on any exercise of rights, a number of rights must be exercised so that it will
issue only whole shares of Series A Preferred Stock.
REDEMPTION OF RIGHTS. At any time until the time a person becomes an
acquiring person, we may redeem the rights in whole, but not in part at a price
of $.005 per right, payable, at our option, in cash, shares of common stock or
such other consideration as our board of directors may determine. Upon such
redemption, the rights will terminate and the only right of the holders of
rights will be to receive the $.005 redemption price.
EXCHANGE OF RIGHTS. At any time after the occurrence of a flip-in event,
and prior to a person's becoming the beneficial owner of 50% or more of our
outstanding common stock or the occurrence of a flip-over event, we may exchange
the rights (other than rights owned by an acquiring person or an affiliate or an
associate of an acquiring person, which will have become void, in whole or in
part), at an exchange ratio of one share of common stock, and/or other equity
securities deemed to have the same value as one share of common stock, per
right, subject to adjustment.
SUBSTITUTION. If we have an insufficient number of authorized but unissued
shares of common stock available to permit an exercise or exchange of rights
upon the occurrence of a flip-in event, we may substitute certain other types of
property for common stock so long as the total value received by the holder of
the rights is equivalent to the value of the common stock that the shareholder
would otherwise have received. We may substitute cash, property, equity
securities or debt, reduce the exercise price of the rights or use any
combination of the foregoing.
NO RIGHTS AS A SHAREHOLDER. Until a right is exercised, a holder of rights
will have no rights to vote or receive dividends or any other rights as a holder
of our preferred or common stock.
AMENDMENT OF TERMS OF RIGHTS. Our board of directors may amend any of the
provisions of the Rights Agreement, other than the redemption price, at any time
prior to the time a person becomes an acquiring person. Thereafter, the board of
directors may only amend the Rights Agreement in order to cure any ambiguity,
defect or inconsistency or to make changes that do not materially and adversely
affect the interests of holders of the rights, excluding the interests of any
acquiring person.
18
RIGHTS AGENT. JPMorgan Chase Bank will serve as rights agent with regard
to the rights.
ANTI-TAKEOVER EFFECTS. The rights will have anti-takeover effects. They
will cause substantial dilution to any person or group that attempts to acquire
us without the approval of our board of directors. As a result, the overall
effect of the rights may be to make more difficult or discourage any attempt to
acquire us even if such acquisition may be favorable to the interests of our
shareholders. Because our board of directors can redeem the rights or approve a
permitted offer, the rights should not interfere with a merger or other business
combination approved by the board of directors.
PLAN OF DISTRIBUTION
We may sell the offered securities in and outside the United States:
- through underwriters or dealers,
- directly to purchasers, including our affiliates,
- through agents, or
- through a combination of any of these methods.
The prospectus supplement will include the following information:
- the terms of the offering,
- the names of any underwriters or agents,
- the name or names of any managing underwriter or underwriters,
- the purchase price of the securities,
- the net proceeds to us from the sale of the securities,
- any delayed delivery arrangements,
- any underwriting discounts, commissions and other items constituting
underwriters' compensation,
- any initial public offering price,
- any discounts or concessions allowed or reallowed or paid to
dealers, and
- any commissions paid to agents.
SALE THROUGH UNDERWRITERS OR DEALERS
If we use underwriters in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
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. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
19
During and after an offering through underwriters, the underwriters may
purchase and sell the securities in the open market. These transactions may
include overallotment and stabilizing transactions and purchases to cover
syndicate short positions created in connection with the offering. The
underwriters also may impose a penalty bid, which means that selling concessions
allowed to syndicate members or other broker-dealers for the offered securities
sold for their account may be reclaimed by the syndicate if the offered
securities are repurchased by the syndicate in stabilizing or covering
transactions. These activities may stabilize, maintain or otherwise affect the
market price of the offered securities, which may be higher than the price that
might otherwise prevail in the open market. If commenced, the underwriters may
discontinue these activities at any time.
If we use dealers in the sale of securities, we will sell the securities
to them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. The dealers
participating in any sale of the securities may be deemed to be underwriters
within the meaning of the Securities Act of 1933 with respect to any sale of
these securities. We will include in the prospectus supplement the names of the
dealers and the terms of the transaction.
DIRECT SALES AND SALES THROUGH AGENTS
We may sell the securities directly. In that event, no underwriters or
agents would be involved. We may also sell the securities through agents we
designate from time to time. In the prospectus supplement, we will name any
agent involved in the offer or sale of the offered securities, and we will
describe any commissions payable by us to the agent. Unless we inform you
otherwise in the prospectus supplement, any agent will agree to use its
reasonable best efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others
who may be deemed to be underwriters within the meaning of the Securities Act of
1933 with respect to any sale of those securities. We will describe the terms of
any such sales in the prospectus supplement.
DELAYED DELIVERY CONTRACTS
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
REMARKETING
We may offer and sell any of the offered securities in connection with a
remarketing upon their purchase, in accordance with a redemption or repayment by
their terms or otherwise by one or more remarketing firms acting as principals
for their own accounts or as our agents. We will identify any remarketing firm,
the terms of any remarketing agreement and the compensation to be paid to the
remarketing firm in the prospectus supplement. Remarketing firms may be deemed
underwriters under the Securities Act of 1933.
DERIVATIVE TRANSACTIONS
We may enter into derivative transactions with third parties, or sell
securities not covered by this prospectus to third parties in privately
negotiated transactions. If the applicable prospectus supplement indicates, in
connection with those derivatives, the third parties may sell securities covered
by this prospectus and the applicable prospectus supplement, including in short
sale transactions. If so, the third parties may use securities pledged by us or
borrowed from us or others to settle those sales or to close out any related
open borrowings of stock, and may use securities received from us in settlement
of those derivatives to close out any related open borrowings of stock. The
third parties in these sale transactions will be underwriters and, if not
identified in this prospectus, will be identified in the applicable prospectus
supplement or in a post-effective amendment to the registration statement of
which this prospectus forms a part.
20
GENERAL INFORMATION
We may have agreements with the agents, dealers and underwriters to
indemnify them against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribute with respect to payments that the
agents, dealers or underwriters may be required to make. Agents, dealers and
underwriters may be customers of, engage in transactions with or perform
services for us in the ordinary course of their businesses.
Each series of offered securities will be a new issue, and other than the
common stock, which is listed on the New York Stock Exchange and the Chicago
Stock Exchange, will have no established trading market. We may elect to list
any series of offered securities on an exchange, but we are not obligated to do
so. It is possible that one or more underwriters may make a market in a series
of offered securities. However, they will not be obligated to do so and may
discontinue market making at any time without notice. We cannot assure you that
a liquid trading market for any of our offered securities will develop.
LEGAL MATTERS
The validity of the securities described in this prospectus will be passed
upon for us by Baker Botts L.L.P., Houston, Texas. Scott E. Rozzell, Esq., our
Executive Vice President, General Counsel and Corporate Secretary, or Rufus S.
Scott, our Vice President, Deputy General Counsel and Assistant Corporate
Secretary, may pass upon other legal matters for us. Any underwriters will be
advised about other issues relating to any offering by their own legal counsel.
EXPERTS
The consolidated financial statements of CenterPoint Energy and its
subsidiaries as of December 31, 2002 and 2003, and for each of the three years
in the period ended December 31, 2003, incorporated by reference in this
prospectus have been audited by Deloitte & Touche LLP, independent auditors, as
stated in their reports (which reports express an unqualified opinion and
include explanatory paragraphs referring to the distribution of RRI, the change
in method of accounting for goodwill and certain intangible assets and the
recording of asset retirement obligations), and have been so incorporated in
reliance upon the reports of such firm given upon their authority as experts in
accounting and auditing.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated expenses payable by
CenterPoint Energy, Inc., a Texas corporation ("CenterPoint"), in connection
with the offering described in this Registration Statement.
SEC registration fee................ $ 126,700
Printing expenses................... 50,000
Accounting fees and expenses........ 30,000
Legal fees and expenses............. 100,000
Trustee fees and expenses........... 10,000
Miscellaneous....................... 8,300
----------
Total........................... $ 325,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02.A.(16) and Article 2.02-1 of the Texas Business Corporation
Act and Article V of CenterPoint's Amended and Restated Bylaws provide
CenterPoint with broad powers and authority to indemnify its directors and
officers and to purchase and maintain insurance for such purposes. Pursuant to
such statutory and Bylaw provisions, CenterPoint has purchased insurance against
certain costs of indemnification that may be incurred by it and by its officers
and directors.
Additionally, Article IX of CenterPoint's Amended and Restated Articles of
Incorporation provides that a director of CenterPoint is not liable to
CenterPoint or its shareholders for monetary damages for any act or omission in
the director's capacity as director, except that Article IX does not eliminate
or limit the liability of a director for (i) any breach of such director's duty
of loyalty to CenterPoint or its shareholders, (ii) any act or omission not in
good faith that constitutes a breach of duty of such director to CenterPoint or
an act or omission that involves intentional misconduct or a knowing violation
of law, (iii) a transaction from which such director received an improper
benefit, whether or not the benefit resulted from an action taken within the
scope of the director's office or (iv) an act or omission for which the
liability of a director is expressly provided for by statute.
Article IX also provides that any subsequent amendments to Texas statutes
that further limit the liability of directors will inure to the benefit of the
directors, without any further action by shareholders. Any repeal or
modification of Article IX shall not adversely affect any right of protection of
a director of CenterPoint existing at the time of the repeal or modification.
See "Item 17. Undertakings" for a description of the Commission's position
regarding such indemnification provisions.
II-1
ITEM 16. EXHIBITS.*
The following documents are filed as part of this Registration Statement
or incorporated by reference herein:
SEC FILE OR
EXHIBIT REPORT OR REGISTRATION EXHIBIT
NUMBER DOCUMENT DESCRIPTION REGISTRATION STATEMENT NUMBER REFERENCE
------ -------------------- ---------------------- ------ ---------
4.1** Amended and Restated Registration 333-69502 3.1
Articles of Incorporation Statement on Form S-4
of CenterPoint Energy, Inc. of CenterPoint
Energy, Inc.
4.1.1** Articles of Amendment to Form 10-K of 1-31447 3.1.1
the Amended and Restated CenterPoint Energy,
Articles of Incorporation Inc. for the year
of CenterPoint Energy, Inc. ended December 31,
2001
4.2** Amended and Restated Form 10-K of 1-31447 3.2
Bylaws of CenterPoint CenterPoint Energy,
Energy, Inc. Inc. for the year
ended December 31,
2001
4.3** Statement of Resolution Form 10-K of 1-31447 3.3
Establishing Series of CenterPoint Energy,
Shares Designated Series A Inc. for the year
Preferred Stock and Form ended December 31,
of Rights Certificate 2001
4.4** Rights Agreement dated as Form 10-K of 1-31447 4.2
of January 1, 2002 between CenterPoint Energy,
CenterPoint Energy, Inc. Inc. for the year
and JPMorgan Chase Bank, ended December 31,
as Rights Agent 2001
4.5** Form of CenterPoint Registration 333-69502 4.1
Energy, Inc. Stock Statement on Form S-4
Certificate of CenterPoint
Energy, Inc.
4.6** Indenture, dated as of May Current Report on 1-31447 4.1
19, 2003, between Form 8-K of
CenterPoint Energy, Inc. CenterPoint Energy,
and JPMorgan Chase Bank as Inc. filed June 3,
trustee (the "Trustee") 2003
5.1 Opinion of Baker Botts
L.L.P.
12.1 Computation of ratios of
earnings to fixed charges
for the twelve-month
periods ended December 31,
2003, 2002, 2001, 2000 and
1999 and for the three-month
period ended March 31, 2004
12.2 Computation of ratios of
earnings to fixed charges
and preferred stock
dividends for the
twelve-month periods ended
December 31, 2001, 2000 and
1999
II-2
SEC FILE OR
EXHIBIT REPORT OR REGISTRATION EXHIBIT
NUMBER DOCUMENT DESCRIPTION REGISTRATION STATEMENT NUMBER REFERENCE
------ -------------------- ---------------------- ------ ---------
23.1 Consent of Deloitte &
Touche LLP
23.2 Consent of Baker Botts
L.L.P. (included in
Exhibit 5.1)
24.1 Powers of Attorney
(included on the signature
page of this registration
statement)
25.1 Statement of Eligibility
and Qualification under
the Trust Indenture Act of
1939 of the Trustee on
Form T-1
--------------------
* CenterPoint will file as an exhibit to a Current Report on Form 8-K (i) any
underwriting, remarketing or agency agreement relating to securities offered
hereby, (ii) the instruments setting forth the terms of any debt securities or
preferred stock, (iii) any additional required opinions of counsel with respect
to legality of the securities offered hereby and (iv) any required opinion of
counsel as to certain tax matters relative to securities offered hereby.
** Incorporated herein by reference as indicated.
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. 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) of the
Securities Act of 1933 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; and
(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 registration statement is on Form S-3 or Form S-8 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 section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in
the Registration Statement.
II-3
(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 (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 Securities and
Exchange 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
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.
(d) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as
part of this registration statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act of 1933 shall be
deemed to be part of this registration statement as of the time it was
declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
II-4
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 Houston, the State of Texas, on June 7, 2004.
CENTERPOINT ENERGY, INC.
By: /s/ David M. McClanahan
-------------------------------------
David M. McClanahan
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints David M. McClanahan, Scott E. Rozzell and Rufus
S. Scott, and each of them severally, his or her true and lawful attorney or
attorneys-in-fact and agents, with full power to act with or without the others
and with full power of substitution and resubstitution, to execute in his name,
place and stead, in any and all capacities, (i) any or all amendments (including
pre-effective and post-effective amendments) to this Registration Statement and
(ii) any Registration Statement of the type contemplated by Rule 462(b) under
the Securities Act of 1933, as amended, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorneys-in-fact and agents and each of
them full power and authority, to do and perform in the name and on behalf of
the undersigned, in any and all capacities, each and every act and thing
necessary or desirable to be done in and about the premises, to all intents and
purposes and as fully as they might or could do in person, hereby ratifying,
approving and confirming all that said attorneys-in-fact and agents or their
substitutes may lawfully do or cause to be done by virtue hereof.
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/ David M. McClanahan President, June 7, 2004
------------------------------------
David M. McClanahan Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Gary L. Whitlock Executive Vice President June 7, 2004
------------------------------------
Gary L. Whitlock and Chief Financial Officer
(Principal Financial Officer)
/s/ James S. Brian Senior Vice President and June 7, 2004
------------------------------------
James S. Brian Chief Accounting Officer
(Principal Accounting Officer)
/s/ Milton Carroll Director June 7, 2004
------------------------------------
Milton Carroll
II-5
/s/ Derrill Cody Director June 7, 2004
------------------------------------
Derrill Cody
/s/ John T. Cater Director June 7, 2004
------------------------------------
John T. Cater
/s/ O. Holcombe Crosswell Director June 7, 2004
------------------------------------
O. Holcombe Crosswell
/s/ Thomas F. Madison Director June 7, 2004
------------------------------------
Thomas F. Madison
/s/ Robert T. O'Connell Director June 7, 2004
------------------------------------
Robert T. O'Connell
/s/ Michael E. Shannon Director June 7, 2004
------------------------------------
Michael E. Shannon
II-6
INDEX TO EXHIBITS*
SEC FILE OR
EXHIBIT REPORT OR REGISTRATION EXHIBIT
NUMBER DOCUMENT DESCRIPTION REGISTRATION STATEMENT NUMBER REFERENCE
------ -------------------- ---------------------- ------ ---------
4.1** Amended and Restated Registration 333-69502 3.1
Articles of Incorporation Statement on Form S-4
of CenterPoint Energy, Inc. of CenterPoint
Energy, Inc.
4.1.1** Articles of Amendment to Form 10-K of 1-31447 3.1.1
the Amended and Restated CenterPoint Energy,
Articles of Incorporation Inc. for the year
of CenterPoint Energy, Inc. ended December 31,
2001
4.2** Amended and Restated Form 10-K of 1-31447 3.2
Bylaws of CenterPoint CenterPoint Energy,
Energy, Inc. Inc. for the year
ended December 31,
2001
4.3** Statement of Resolution Form 10-K of 1-31447 3.3
Establishing Series of CenterPoint Energy,
Shares Designated Series A Inc. for the year
Preferred Stock and Form ended December 31,
of Rights Certificate 2001
4.4** Rights Agreement dated as Form 10-K of 1-31447 4.2
of January 1, 2002 between CenterPoint Energy,
CenterPoint Energy, Inc. Inc. for the year
and JPMorgan Chase Bank, ended December 31,
as Rights Agent 2001
4.5** Form of CenterPoint Registration 333-69502 4.1
Energy, Inc. Stock Statement on Form S-4
Certificate of CenterPoint
Energy, Inc.
4.6** Indenture, dated as of May Current Report on 1-31447 4.1
19, 2003, between Form 8-K of
CenterPoint Energy, Inc. CenterPoint Energy,
and JPMorgan Chase Bank as Inc. filed June 3,
trustee (the "Trustee") 2003
5.1 Opinion of Baker Botts
L.L.P.
12.1 Computation of ratios of
earnings to fixed charges
for the twelve-month
periods ended December 31,
2003, 2002, 2001, 2000 and
1999 and for the three-month
period ended March 31, 2004
12.2 Computation of ratios of
earnings to fixed charges
and preferred stock
dividends for the
twelve-month periods ended
December 31, 2001, 2000
and 1999 and
23.1 Consent of Deloitte &
Touche LLP
SEC FILE OR
EXHIBIT REPORT OR REGISTRATION EXHIBIT
NUMBER DOCUMENT DESCRIPTION REGISTRATION STATEMENT NUMBER REFERENCE
------ -------------------- ---------------------- ------ ---------
23.2 Consent of Baker Botts
L.L.P. (included in
Exhibit 5.1)
24.1 Powers of Attorney
(included on the signature
page of this registration
statement)
25.1 Statement of Eligibility
and Qualification under
the Trust Indenture Act of
1939 of the Trustee on
Form T-1
--------------------
* CenterPoint will file as an exhibit to a Current Report on Form 8-K (i) any
underwriting, remarketing or agency agreement relating to securities offered
hereby, (ii) the instruments setting forth the terms of any debt securities or
preferred stock, (iii) any additional required opinions of counsel with respect
to legality of the securities offered hereby and (iv) any required opinion of
counsel as to certain tax matters relative to securities offered hereby.
** Incorporated herein by reference as indicated.