As Filed With the Securities and Exchange Commission on April 3, 1998
Registration No. _________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-------------------------
HOUSTON INDUSTRIES INCORPORATED
(Exact name of issuer as specified in its charter)
-------------------------
TEXAS 74-0694415
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
1111 LOUISIANA
HOUSTON, TEXAS 77002
(Address of principal executive offices) (Zip Code)
-------------------------
HOUSTON INDUSTRIES INCORPORATED AND SUBSIDIARIES
COMMON STOCK PARTICIPATION PLAN
FOR DESIGNATED NEW EMPLOYEES AND NON-OFFICER EMPLOYEES
-------------------------
STOCK DELIVERABLE PURSUANT TO EXECUTIVE EMPLOYMENT AGREEMENTS
(Full title of the plans)
-------------------------
Hugh Rice Kelly
Executive Vice President, General Counsel, and Corporate Secretary
Houston Industries Incorporated
1111 Louisiana
Houston, Texas 77002
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (713) 207-3000
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CALCULATION OF REGISTRATION FEE
================================================================================
PROPOSED PROPOSED
MAXIMUM MAXIMUM
OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES AMOUNT TO BE PRICE OFFERING REGISTRATION
TO BE REGISTERED REGISTERED PER SHARE (2) PRICE (2) FEE (3)
- --------------------------------------------------------------------------------
Common Stock, without
par value (1) 1,300,000 shares $ 28.09 $36,517,000 $10,772.52
=========================================================================
/(1)/ Includes preference stock purchase rights of one Right per share
associated with the Common Stock. 1,000,000 of the shares registered may
be offered and sold pursuant to the Houston Industries Incorporated and
Subsidiaries Common Stock Participation Plan for Designated New Employees
and Non-Officer Employees and 300,000 of the shares registered may be
offered and sold pursuant to employment agreements between the registrant
and executives of the registrant.
/(2)/ Estimated in accordance with Rule 457(c) solely for the purpose of
calculating the registration fee and based upon the average of the high
and low sales prices of the Common Stock of Houston Industries
Incorporated reported on the New York Stock Exchange Composite Tape on
March 30, 1998.
/(3)/ Because no separate consideration is payable for the Rights, the
registration fee for such securities is included in the fee for the Common
Stock.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Note: The document(s) containing the plan information required by
Item 1 of Form S-8 and the statement of availability of registrant information
and any other information required by Item 2 of Form S-8 will be sent or given
to participants as specified by Rule 428 under the Securities Act of 1933, as
amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. The Registrant shall maintain a file of such
documents in accordance with the provisions of Rule 428. Upon request, the
Registrant shall furnish to the Commission or its staff a copy or copies of all
of the documents included in such file.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Commission by Houston
Industries Incorporated (the "Registrant" or the "Company") (File No. 1-3187)
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), are hereby incorporated herein by reference:
(1) the Annual Report on Form 10-K of the Company for the year ended
December 31, 1997;
(2) the description of the Common Stock contained in Item 4 of the
Company's Registration Statement on Form 8-B, as filed with the Commission
on July 30, 1997, pursuant to Section 12(b) of the Exchange Act.
All documents filed with the Commission by the Company pursuant to
sections 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of
this Registration Statement and prior to the filing of a post-effective
amendment to this Registration Statement which indicates that all securities
offered hereby have been sold, or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents.
Any statement contained herein or incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this Registration
Statement to the extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Registration Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article 2.02.A.(16) and Article 2.02-1 of the Texas Business
Corporation Act and Article V of the Company's Amended and Restated Bylaws
provide the Company 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, the Company has purchased insurance
against certain costs of indemnification that may be incurred by it and by its
officers and directors.
Additionally, Article IX of the Company's Restated Articles of
Incorporation provides that a director of the Company is not liable to the
Company 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) breaches of such Director's duty of
loyalty to the Company and its shareholders, (ii) acts or omissions not in good
faith or which involve intentional misconduct or knowing violation of law, (iii)
transactions from which a director receives an improper benefit, irrespective of
whether the benefit resulted from an action taken within the scope of the
director's office, (iv)
II-1
acts or omissions for which liability is specifically provided by statute and
(v) acts relating to unlawful stock repurchases or payments of dividends.
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 the Company existing at the time of the repeal or modification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The following documents are filed as a part of this Registration
Statement or incorporated by reference herein:
Report or SEC File or
Exhibit Registration Registration Exhibit
Number Document Description Statement Number Reference
- ----- -------------------- --------- ------ ---------
4.1* - Restated Articles of Incorporation of Form 10-K for the 1-3187 3(a)
the Company (Restated as of year ended
September 1997) December 31,
1997
4.2* - Amended and Restated Bylaws of the Form 10-K for the 1-3187 3(b)
Company (as of December 4, 1996) year ended
December 31,
1997
4.3* - Amended and Restated Rights Registration 333-11329 4(b)(1)
Agreement dated August 6, 1997 Statement on
between the Company and Texas Form S-4
Commerce Bank National Association,
as Rights Agent, including form of
Statement of Resolution Establishing
Series of Shares designated Series A
Preference Stock and form of Rights
Certificate
5 - Opinion of Baker & Botts, L.L.P.
[No opinion of counsel as to the
legality of the 300,000 shares
deliverable pursuant to employment
contracts between the Company and
executives is filed because no original
issuance of securities is contemplated
in connection therewith.]
23 - Consent of Deloitte & Touche LLP
24 - Powers of Attorney (included in the signature page to this
registration statement)
________________
* Incorporated herein by reference as indicated.
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ITEM 9. 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;
(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;
(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 the undertakings set forth in paragraphs (i)
and (ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act, each filing of
the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this 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 may be permitted to directors, officers and controlling persons
of the registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the Securities Act
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 and will be governed by the final
adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing this Registration Statement on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, the State of
Texas, on March 31, 1998.
HOUSTON INDUSTRIES INCORPORATED
By: /s/ Don D. Jordan
-----------------------------
Don D. Jordan, Chairman and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Hugh Rice Kelly, R. Steve Letbetter and
Stephen W. Naeve, and each of them, his true and lawful attorneys-in-fact and
agents with full power of substitution and resubstitution for him and in his
name, place and stead, in any and all capacities, to sign any or all amendments
(including post-effective amendments) to this Registration Statement and any
registration statement for the same offering filed pursuant to Rule 462 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 each and every act and thing
requisite or necessary 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 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 on Form S-8 has been signed by the following persons in
the capacities and on the dates indicated.
Signatures Title Date
---------- ----- ----
/s/ Don D. Jordan Chairman and Chief Executive March 31, 1998
- -------------------------- Officer and Director
Don D. Jordan (Principal Executive Officer and
Director)
/s/ Stephen W. Naeve Executive Vice President and March 31, 1998
- -------------------------- Chief Financial Officer
Stephen W. Naeve (Principal Financial Officer)
/s/ Mary P. Ricciardello Vice President and Comptroller March 31, 1998
- -------------------------- (Principal Accounting Officer)
Mary P. Ricciardello
/s/ James A. Baker, III Director March 31, 1998
- --------------------------
James A. Baker, III
/s/ Richard E. Balzhiser Director March 31, 1998
- --------------------------
Richard E. Balzhiser
/s/ Milton Carroll Director March 31, 1998
- --------------------------
Milton Carroll
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/s/ John T. Cater Director March 31, 1998
- --------------------------
John T. Cater
/s/ O. Holcombe Crosswell Director March 31, 1998
- --------------------------
O. Holcombe Crosswell
/s/ Robert J. Cruikshank Director March 31, 1998
- --------------------------
Robert J. Cruikshank
/s/ Linnet F. Deily Director March 31, 1998
- --------------------------
Linnet F. Deily
/s/ Joseph M. Grant Director March 31, 1998
- --------------------------
Joseph M. Grant
/s/ Robert C. Hanna Director March 31, 1998
- --------------------------
Robert C. Hanna
/s/ Lee W. Hogan Director March 31, 1998
- --------------------------
Lee W. Hogan
/s/ T. Milton Honea Director March 31, 1998
- --------------------------
T. Milton Honea
/s/ R. Steve Letbetter Director March 31, 1998
- --------------------------
R. Steve Letbetter
/s/ Alexander F. Schilt Director March 31, 1998
- --------------------------
Alexander F. Schilt
/s/ Bertram Wolfe Director March 31, 1998
- --------------------------
Bertram Wolfe
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INDEX TO EXHIBITS
Report or SEC File or
Exhibit Registration Registration Exhibit
Number Document Description Statement Number Reference
- ------ -------------------- --------- ------ ---------
4.1* - Restated Articles of Incorporation Form 10-K for the 1-3187 3(a)
of the Company (Restated as of year ended
September 1997) December 31,
1997
4.2* - Amended and Restated Bylaws of the Form 10-K for the 1-3187 3(b)
Company (as of December 4, 1996) year ended
December 31,
1997
4.3* - Amended and Restated Rights Registration 333-11329 4(b)(1)
Agreement dated August 6, 1997 Statement on Form
between the Company and Texas S-4
Commerce Bank National Association,
as Rights Agent, including form of
Statement of Resolution Establishing
Series of Shares designated Series A
Preference Stock and form of Rights
Certificate
5 - Opinion of Baker & Botts, L.L.P.
[No opinion of counsel as to the
legality of the 300,000 shares
deliverable pursuant to employment
contracts between the Company and
executives is filed because no original
issuance of securities is contemplated
in connection therewith.]
23 - Consent of Deloitte & Touche LLP
24 - Powers of Attorney (included in the signature page to this registration
statement)
________________
* Incorporated herein by reference as indicated.
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Exhibit 5
[Letterhead of Baker & Botts, L.L.P.]
April 2, 1998
Houston Industries Incorporated
Houston Industries Plaza
1111 Louisiana
Houston, Texas 77002
Ladies and Gentlemen:
As set forth in the Registration Statement on Form S-8 to be filed by
Houston Industries Incorporated, a Texas corporation (the "Company"), with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
relating to up to 1,300,000 shares (the "Shares") of common stock, without par
value, of the Company (the "Common Stock") and associated rights to purchase
Series A Preference Stock, without par value, of the Company (the "Rights"), of
which 1,000,000 Shares (the "Plan Shares") may be offered and sold from time to
time pursuant to resolution of the Company's Board of Directors authorizing the
issuance of Common Stock to (1) persons not previously employed by the Company
or its subsidiaries as an inducement to their entering into employment with the
Company and (2) non-officer employees who it is determined should be rewarded
for exceptional performance (the "Plan"), certain legal matters in connection
with the Plan Shares subject to original issuance by the Company and the Rights
associated therewith are being passed upon for you by us. At your request, this
opinion is being furnished to you for filing as Exhibit 5 to the Post-Effective
Amendment.
In our capacity as your counsel in the connection referred to above,
we have examined the Company's Restated Articles of Incorporation and Amended
and Restated Bylaws, each as amended to date, and the Amended and Restated
Rights Agreement (the "Rights Agreement") dated as of August 6, 1997 between the
Company and Chase Bank of Texas, National Association (formerly known as "Texas
Commerce Bank National Association") and have examined originals, or copies
certified or otherwise identified, of corporate records of the Company,
certificates of public officials and of representatives of the Company, statutes
and other instruments or documents, as a basis for the opinions hereinafter
expressed. In giving such opinions, we have relied upon certificates of
officers of the Company with respect to the accuracy of the material factual
matters contained in such certificates. In making our examination, we have
assumed that all signatures on all documents examined by us are genuine, that
all documents submitted to us as originals are accurate and complete, that all
documents submitted to us as copies are true and correct copies of the originals
thereof and that all information submitted to us was accurate and complete.
Houston Industries Incorporated -2- April 2, 1998
On the basis of the foregoing, and subject to the assumptions,
limitations and qualifications set forth herein, we are of the opinion that:
1. The Company is a corporation duly organized and validly existing
in good standing under the laws of the State of Texas.
2. In the case of Plan Shares originally issued by the Company
pursuant to the terms of the Plan, following due authorization of a
particular award thereunder by a duly constituted and acting committee of
the Board of Directors of the Company as provided in and in accordance with
the Plan, the Plan Shares issuable pursuant to such award will have been
duly authorized by all necessary corporate action on the part of the
Company. Upon issuance and delivery of such Plan Shares from time to time
pursuant to the terms of such award for the consideration established by
such committee (which may include, without limitation, services performed
or contracts for services to be performed) in accordance with the terms and
conditions of such award, including, if applicable, the lapse of any
restrictions relating thereto, the satisfaction of any performance
conditions associated therewith and any requisite determinations by or
pursuant to the authority of the Board of Directors or a duly constituted
and acting committee thereof as provided therein, such Plan Shares will be
validly issued, fully paid and nonassessable.
3. The issuance of the Rights associated with the Shares referred to
in paragraph 2 above has been duly authorized by all requisite corporate
action on the part of the Company and, upon issuance from time to time in
connection with the issuance of the associated Shares as provided in
paragraph 2 above and in accordance with the terms of the Rights Agreement,
the Rights associated with such Shares will be validly issued.
The opinion set forth in paragraph 3 above is limited to the valid
issuance of the Rights under the Texas Business Corporation Act. In this
connection, we do not express any opinion herein on any other aspect of the
Rights, the effect of any equitable principles or fiduciary considerations
relating to the adoption of the Rights Agreement or the issuance of the Rights,
the enforceability of any particular provisions of the Rights Agreement, or the
provisions of the Rights Agreement which discriminate or create unequal voting
power among shareholders.
This opinion is limited to the original issuance of Shares and Rights
by the Company and does not cover shares of Common Stock and related Rights
delivered by the Company out of shares and related Rights reacquired by it.
Houston Industries Incorporated -3- April 2, 1998
We are members of the Texas Bar and the opinions set forth above are
limited in all respects to matters of Texas law as in effect on the date hereof.
Very truly yours,
Baker & Botts, L.L.P
EXHIBIT 23
INDEPENDENT AUDITORS' CONSENT
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of Houston Industries Incorporated ("HII") of our report
dated February 20, 1998 (relating to the consolidated financial statements of
HII) appearing in the Annual Report on Form 10-K of HII for the year ended
December 31, 1997.
DELOITTE & TOUCHE, LLP
Houston, Texas
April 2, 1998
