As filed with the Securities and Exchange Commission on October 10, 2002 Registration No. 333- _____________________________________________________________________________________________ |
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SECURITIES AND EXCHANGE COMMISSION _____________________ |
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Form S-3 |
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REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 |
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Pepco Holdings, Inc. |
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DELAWARE |
52-2297449 |
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Pepco Holdings, Inc. 701 Ninth Street, N.W. Washington, D.C. 20068 (202) 872-3526 (Name, address, including zip code, and telephone number, including area code, of agent for service) _____________________ |
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Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20004 (202) 662-6000 _____________________ |
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CALCULATION OF REGISTRATION FEE |
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Title of Each Class |
Proposed Maximum Aggregate Offering Price(1)(2)(3) |
Amount of Registration Fee |
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Common Stock (par value $0.01 per share) Debt Securities Stock Purchase Contracts Stock Purchase Units |
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Total |
$500,000,000 |
$46,000 |
(1) |
Includes an indeterminate principal amount or number of debt securities, shares of common stock, stock purchase contracts and stock purchase units, provided that in no event will the aggregate initial price of all debt securities, common stock, stock purchase contracts and stock purchase units sold under this registration statement exceed $500,000,000. If any such securities are issued at an original issue discount, then the aggregate initial offering price as so discounted shall not exceed $500,000,000 notwithstanding that the stated principal amount of such securities may exceed such amount. In addition, there are being registered hereunder an indeterminate number of shares of common stock issuable upon settlement of stock purchase contracts or upon conversion or exchange of other securities. |
(2) |
Estimated solely for the purpose of determining the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended. The proposed maximum initial offering price per security will be determined from time to time by the registrant in connection with the issuance of the securities. |
(3) |
Exclusive of accrued interest on debt securities, if any. _____________________ |
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 it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED OCTOBER 10, 2002 |
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PROSPECTUS |
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$500,000,000 Common Stock Debt Securities Stock Purchase Contracts Stock Purchase Units _____________________ |
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By this prospectus, we may offer these securities from time to time in one or more series with an aggregate offering price not to exceed $500,000,000. We will provide you with specific information about the offering and the terms of these securities in supplements to this prospectus. You should read this prospectus and the relevant prospectus supplement carefully before you invest. This prospectus may not be used to sell securities unless accompanied by a prospectus supplement. _____________________ Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense. _____________________ |
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The date of this prospectus is , 2002. |
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TABLE OF CONTENTS |
2 |
ABOUT THIS PROSPECTUS |
3 |
WHERE YOU CAN FIND MORE INFORMATION |
3 |
FORWARD-LOOKING STATEMENTS |
4 |
P EPCO HOLDINGS, INC. |
5 |
USE OF PROCEEDS |
7 |
RATIO OF EARNINGS TO FIXED CHARGES |
7 |
DESCRIPTION OF DEBT SECURITIES |
8 |
DESCRIPTION OF COMMON STOCK |
19 |
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS |
21 |
PLAN OF DISTRIBUTION |
21 |
LEGAL MATTERS |
23 |
EXPERTS |
23 |
This prospectus is part of a registration statement we filed with the Securities and Exchange Commission. You should rely only on the information we have provided or incorporated by reference in this prospectus or any prospectus supplement. We have not authorized anyone to provide you with additional or different information. We are not making an offer of these securities in any jurisdiction where the offer is not permitted. You should assume that the information in this prospectus or any prospectus supplement is accurate only as of the date on the front of the document and that any information we have incorporated by reference is accurate only as of the date of the document incorporated by reference. |
ABOUT THIS PROSPECTUS |
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This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission utilizing a "shelf" registration process. Under this shelf process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $500,000,000. This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described under the heading "Where You Can Find More Information." For more detailed information about the securities, you can also read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated by reference to earlier SEC filings listed in the registration statement. In this prospectus, unless the context indicates otherwise, the words "PHI," "the company," "we," "our," "ours" and "us" refer to Pepco Holdings, Inc. and its consolidated subsidiaries. WHERE YOU CAN FIND MORE INFORMATION We file annual, quarterly and special reports, proxy statements and other information with the SEC. Our SEC filings are available to the public over the internet at the SEC's web site at http://www.sec.gov. You may also read and copy any document we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can obtain further information on the operation of the public reference room by calling the SEC at 1-800-SEC-0330. Our common stock is listed on the New York Stock Exchange under the ticker symbol "POM." 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 on Form S-3 filed with the SEC under the Securities Act of 1933. It does not contain all of the information that is important to you. You should read the registration statement for further information about us and the securities. Statements contained in this prospectus concerning the provisions of any document filed as an exhibit to the registration statement or otherwise filed with the SEC highlight selected information, and in each instance reference is made to the copy of the document filed. The SEC allows us to "incorporate by reference" the information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is an important part of this prospectus, and information that we file later with the SEC will automatically update and may supersede this information. We incorporate by reference the documents listed below that we, Potomac Electric Power Company ("Pepco"), and Conectiv have filed with the SEC and any future filing that we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange Act of 1934 from the date of filing of the initial registration statement until we sell all of the securities. |
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Our Joint Proxy Statement-Prospectus included in our Registration Statement on Form S-4 (declared effective on May 30, 2001); |
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Our Annual Report on Form 10-K for the year ended December 31, 2001; |
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The description of our common stock included in our Registration Statement on Form 8-A, filed on July 23, 2002, registering the common stock under Section 12(b) of the Securities Exchange Act, and any amendment or report subsequently filed for the purpose of updating such description; |
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Pepco's Annual Report on Form 10-K for the year ended December 31, 2001; |
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Conectiv's Annual Report on Form 10-K for the year ended December 31, 2001; |
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Our Quarterly Reports on Form 10-Q for the quarter ended March 31, 2002 and the quarter ended June 30, 2002; |
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Pepco's Quarterly Reports on Form 10-Q for the quarter ended March 31, 2002 and the quarter ended June 30, 2002; |
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Conectiv's Quarterly Reports on Form 10-Q for the quarter ended March 31, 2002 and the quarter ended June 30, 2002; |
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Our Current Reports on Form 8-K filed May 31, 2002, June 7, 2002 (as amended by Form 8-K/A filed July 3, 2002), July 18, 2002, August 2, 2002 (as amended by Forms 8-K/A filed August 14, 2002 and October 9, 2002), September 4, 2002, and September 12, 2002; |
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Pepco's Current Reports on Form 8-K filed January 24, 2002, January 25, 2002, April 25, 2002, May 31, 2002, July 25, 2002, and July 26, 2002; and |
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Conectiv's Current Reports on Form 8-K filed January 31, 2002, April 2, 2002, June 7, 2002, July 18, 2002, July 25, 2002, and July 26, 2002. |
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If you request copies of any of the documents incorporated by reference, we will send you the copies you requested at no charge. However, we will not send exhibits to such documents, unless such exhibits are specifically incorporated by reference in such documents. You should direct requests for such copies to Pepco Holdings, Inc., 701 Ninth Street, N.W., Washington, D.C. 20068, attention: Corporate Secretary. The telephone number is (202) 872-2900. |
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Prevailing governmental policies and regulatory actions affecting the energy industry, including with respect to allowed rates of return, industry and rate structure, acquisition and disposal of assets and facilities, operation and construction of plant facilities, recovery of purchased power expenses, and present or prospective wholesale and retail competition (including but not limited to retail wheeling and transmission costs); |
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Changes in and compliance with environmental and safety laws and policies; |
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Weather conditions; |
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Population growth rates and demographic patterns; |
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Competition for retail and wholesale customers; |
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General economic conditions; |
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Growth in demand, sales and capacity to fulfill demand; |
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Changes in tax rates or policies or in rates of inflation; |
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Changes in project costs; |
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Unanticipated changes in operating expenses and capital expenditures; |
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Capital market conditions; |
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Restrictions imposed by the Public Utility Holding Company Act of 1935; |
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Competition for new energy development opportunities and other opportunities; |
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Legal and administrative proceedings (whether civil or criminal) and settlements that influence our business and profitability; |
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Pace of entry into new markets; |
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Success in marketing services; |
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Trading counterparty credit risk; |
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Ability to secure electric and natural gas supply to fulfill sales commitments at favorable prices; |
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Volatility in market demand and prices for energy, capacity and fuel; |
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Operating performance of power plants; |
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Interest rate fluctuations and credit market concerns; and |
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Effects of geopolitical events, including the threat of domestic terrorism. |
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Any forward-looking statements speak only as of the date of this prospectus or any prospectus supplement, and we undertake no obligation to update any forward-looking statements to reflect events or circumstances after the date on which such statements are made or to reflect the occurrence of unanticipated events. New factors emerge from time to time, and it is not possible for us to predict all of such factors, nor can we assess the impact of any such factor on our business or the extent to which any factor, or combination of factors, may cause results to differ materially from those contained in any forward-looking statements. |
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PRO FORMA |
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12 Months Ended |
Year Ended |
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2.59x |
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Pepco |
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12 Months |
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Year Ended December 31, |
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For purposes of calculating the Ratio of Earnings to Fixed Charges, earnings consist of net income plus income taxes plus fixed charges, and fixed charges consist of interest expense, distributions of Company Obligated Mandatorily Redeemable Preferred Securities of Subsidiary Trust and interest factor in rentals. |
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Conectiv |
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6 Months |
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Year Ended December 31, |
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For purposes of calculating the Ratio of Earnings to Fixed Charges, earnings, including Allowance for Funds Used During Construction, are income from continuing operations plus income taxes and fixed charges, less non-utility capitalized interest and undistributed earnings of equity method investees. Fixed charges include gross interest expense, the estimated interest component of rentals and preferred stock dividend requirements of subsidiaries. Preferred stock dividend requirements for purposes of computing the ratio have been increased to an amount representing the pre-tax earnings which would be required to cover such dividend requirements. |
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the title of the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which the principal of the debt securities will be payable; |
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the rate or rates at which the debt securities will bear interest, if any; |
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the currency or currency unit of payment if other than United States dollars; |
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the date from which interest, if any, on the debt securities will accrue, the dates on which interest, if any, will be payable, the date on which payment of interest, if any, will commence, and the record dates for any interest payments; |
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our right, if any, to extend interest payment periods and the duration of any extension; |
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any redemption, repayment or sinking fund provisions; |
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the place or places where the principal of and any premium and interest on the debt securities will be payable; |
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the denominations in which the debt securities will be issuable; |
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the index, if any, with reference to which the amount of principal of or any premium or interest on the debt securities will be determined; |
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any addition to or change in the events of default set forth in the Indenture applicable to the debt securities and any change in the right of the trustee or the holders to declare the principal amount of the debt securities due and payable; |
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any addition to or change in the covenants set forth in the Indenture; and |
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any other terms of the debt securities not inconsistent with the provisions of the Indenture. |
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Structural Subordination We are a holding company that conducts all of our operations through subsidiaries. Because the claims of our subsidiaries' creditors, including debtholders, and preferred stock holders are superior to our claims, as the direct or indirect holder of the common stock of our subsidiaries, with respect to the assets of our subsidiaries, the debt securities will be subordinated to all existing and future preferred stock and liabilities, including indebtedness, trade payables, guarantees, lease obligations and letter of credit obligations, of our subsidiaries. Most of our subsidiaries have outstanding indebtedness, and Pepco, DPL and ACE have outstanding shares of preferred stock. The provisions of the Indenture do not limit the amount of indebtedness or preferred stock issuable by our subsidiaries. Global Securities We may issue registered debt securities of a series in the form of one or more fully registered global debt securities, each of which we refer to in this prospectus as a registered global security, that we will deposit with a depositary (or with a nominee of a depositary) identified in the prospectus supplement relating to such series and registered in the name of the depositary (or a nominee). In such a case, we will issue one or more registered global securities. The face of such registered global securities, will set forth the aggregate principal amount of the series of debt securities that such global registered securities represent. The depositary (or its nominee) will not transfer any registered global security unless and until it is exchanged in whole or in part for debt securities in definitive registered form, except that: |
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the depositary may transfer the whole registered global security to a nominee; |
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the depositary's nominee may transfer the whole registered global security to the depositary; |
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the depositary's nominee may transfer the whole registered global security to another of the depositary's nominees; and |
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the depositary (or its nominee) may transfer the whole registered global security to its (or its nominee's) successor. |
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Depositary Arrangements Generally, ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for such registered global security, which persons are referred to in this prospectus as participants, or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will credit, on its book-entry registration and transfer system, the participants' accounts with the respective principal amounts of the debt securities represented by such registered global security that are beneficially owned by such participants. Any dealers, underwriters or agents participating in the distribution of such debt securities will designate the accounts to credit. For participants, the depositary will maintain the only record of their ownership of a beneficial interest in the registered global security and they will only be able to transfer such interests through the depositary's records. For people who hold through a participant, the relevant participant will maintain such records for beneficial ownership and transfer. The laws of some states may require that certain purchasers of securities take physical delivery of such securities in definitive form. These restrictions and such laws may impair the ability to own, transfer or pledge beneficial interests in registered global securities. So long as the depositary (or its nominee) is the record owner of a registered global security, such depositary (or its nominee) will be considered the sole owner or holder of the debt securities represented by such registered global security for all purposes under the Indenture. Except as set forth below, owners of beneficial interests in a registered global security will not be entitled to have the debt securities represented by such registered global security registered in their names, and will not receive or be entitled to receive physical delivery of such debt securities in definitive form and will not be considered the owners or holders under the Indenture. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary and, if such person is not a participant, on the procedures of the participant through which such person owns its interest, to exercise any rights of a holder under the Indenture. We understand that under existing industry practices, if we request any action of holders, or if any owner of a beneficial interest in a registered global security desires to give or take any action allowed under the Indenture, the depositary would authorize the participants holding the relevant beneficial interests to give or take such action, and such participants would authorize beneficial owners owning through such participants to give or take such action or would otherwise act upon the instruction of beneficial owners holding through them. Interest and Premium Payments of principal, premium, if any, and any interest on debt securities represented by a registered global security registered in the name of a depositary (or its nominee) will be made to the depositary (or its nominee) as the registered owner of such registered global security. We and our agents will have no responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in any registered global security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests, and neither will the trustee and its agents. We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payment of principal, premium, if any, or any interest in respect of such registered global security, will immediately credit participants' accounts with payments in amounts proportionate to their respective beneficial interests in such registered global security as shown on the depositary's records. We also expect that payments by participants to owners of beneficial interests in such registered global security held through such participants will be governed by standing customer instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such participants. Withdrawal of Depositary If the depositary for any debt securities represented by a registered global security notifies us that it is unwilling or unable to continue as depositary or ceases to be eligible as a depositary under applicable law, and a successor depositary is not appointed within 90 days, debt securities in definitive form will be issued in exchange for the relevant registered global security. In addition, we may at any time and in our sole discretion determine not to have any of the debt securities of a series represented by one or more registered global securities and, in such event, debt securities of such series in definitive form will be issued in exchange for all of the registered global security or registered global securities representing such debt securities. Any debt securities issued in definitive form in exchange for a registered global security will be registered in such name or names that the depositary gives to the trustee. We expect that such instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in such registered global security. (Indenture, Section 305.) Payment and Paying Agents Unless the relevant prospectus supplement indicates otherwise, payment of interest on a debt security on any interest payment date will be made to the person in whose name such debt security is registered at the close of business on the regular record date for such interest payment. If there has been a default in the payment of interest on any debt security, the defaulted interest may be paid to the holder of such debt security as of the close of business on a date no less than 10 nor more than 15 days before the date established by us for proposed payment of such defaulted interest or in any other manner permitted by any securities exchange on which that debt security may be listed, if the trustee finds it practicable. (Indenture, Section 307.) Unless the relevant prospectus supplement indicates otherwise, principal of, premium, if any, and any interest on the debt securities will be payable at the office of the paying agent designated by us. However, we may elect to pay interest by check mailed to the address of the person entitled to such payment at the address appearing in the security register. Unless otherwise indicated in the relevant prospectus supplement, the corporate trust office of the trustee in the City of New York will be designated as our sole paying agent for payments with respect to debt securities of each series. Any other paying agents initially designated by us for the debt securities of a particular series will be named in the relevant prospectus supplement. We may at any time designate additional paying agents or rescind the designation of any paying agent or approve a change in the office through which any paying agent acts, except that we will be required to maintain a paying agent in each place of payment for the debt securities of a particular series. (Indenture, Section 602.) All moneys paid by us to a paying agent for the payment of the principal of, premium, if any, or any interest on any debt security which remain unclaimed for two years after such principal, premium or interest has become due and payable will be repaid to us, and the holder of such debt security thereafter may look only to us for payment. (Indenture, Section 602.) Registration and Transfer If debt securities at any time are issued otherwise than as registered global securities, the transfer of the debt securities may be registered, and debt securities may be exchanged for other debt securities of the same series, of authorized denominations and with the same terms and aggregate principal amount, at the offices of the trustee. We may change the place for registration of transfer and exchange of the debt securities and designate additional places for registration of transfer and exchange. (Indenture, Section 602.) No service charge will be made for any transfer or exchange of the debt securities. However, we may require payment to cover any tax or other governmental charge that may be imposed in connection with any transfer or exchange. We will not be required to register the transfer of, or to exchange, the debt securities of any series during the 15 days prior to the date on which notice of redemption of any debt securities of that series is mailed or any debt security that is selected for redemption. (Indenture, Section 305.) Defeasance The Indenture provides that we may defease and be discharged from all obligations with respect to the debt securities and the Indenture ("legal defeasance") or be released from our obligations under certain covenants under the Indenture with respect to the debt securities such that our failure to comply with the defeased covenants will not constitute an Event of Default ("covenant defeasance"). We may effect a legal defeasance or a covenant defeasance by |
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irrevocably depositing in trust with the trustee money or Eligible Obligations (as defined in the Indenture) or a combination of money and Eligible Obligations, which will be sufficient to pay when due the principal of, and any premium and interest on, the debt securities, and |
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satisfying certain other conditions specified in the Indenture. |
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We may not effect a legal defeasance or a covenant defeasance unless we deliver to the trustee an opinion of counsel to the effect that the holders of the affected debt securities will |
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not recognize income, gain or loss for United States federal income tax purposes as a result of the legal defeasance or the covenant defeasance and |
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be subject to United States federal income tax on the same amounts, in the same manner and at the same times as if the legal defeasance or covenant defeasance had not occurred. |
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In the case of legal defeasance, such opinion must be based upon a change in law or a ruling of the Internal Revenue Service. (Indenture, Article 7.) |
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(i) |
any mortgage, pledge, security interest, lien or encumbrance (collectively, "lien") upon any capital stock created at the time it is acquired by us or any Significant Subsidiary or within 360 days after that time to secure all or any portion of the purchase price for the capital stock; |
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(ii) |
any lien upon any capital stock existing at the time it (or any corporation or other legal entity that directly, or indirectly, owns such capital stock) is acquired by us or any Significant Subsidiary, whether or not the secured obligations are assumed by us or such Significant Subsidiary; |
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(iii) |
any judgment, levy, execution, attachment or other similar lien arising in connection with court proceedings, provided that: |
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(a) |
the execution or enforcement of the lien is effectively stayed within 60 days after entry of the corresponding judgment or the corresponding judgment has been discharged within that 60-day period and the claims secured by the lien are being contested in good faith by appropriate proceedings timely commenced and diligently prosecuted; or |
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the payment of the lien is covered in full by insurance (except for the applicable deductibles) and the insurance company has not denied or contested coverage thereof; or |
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so long as the lien is adequately bonded, any appropriate and duly initiated legal proceedings for the review of the corresponding judgment, decree or order shall not have been fully terminated or the period within which these proceedings may be initiated shall not have expired; or |
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(iv) |
any lien related to the financing of any property of any Significant Subsidiary, the obligee in respect of which has no recourse to us and recourse only to the assets of such Significant Subsidiary financed in whole or in part with the proceeds of the Indebtedness secured by such lien and to the capital stock of such Significant Subsidiary; provided that the only property of such Significant Subsidiary is the property financed in whole or in part with the proceeds of the debt secured by such lien; provided further that the obligee referenced herein shall be deemed not to have recourse to us to the extent that we have entered into obligations to provide equity contributions (or credit support for such equity contributions or subordinated loans in lieu of equity contributions) or performance guarantees with respect to engineering, procurement or construction contracts or other project documents (excluding loan documents or other debt instruments) related to the assets being financed, or similar obligations, which obligations are, in nature and amount, then customary for project sponsors in connection with financings of the type contemplated in this clause (iv). |
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We refer to the liens permitted by clauses (i) through (iv) above as "Permitted Liens." |
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(ii) |
all indebtedness for money borrowed secured by a lien upon property owned by us or any Subsidiary and upon which indebtedness for money borrowed we, or any Subsidiary, customarily pay interest, although we, or such Subsidiary, have not assumed or become liable for the payment of the indebtedness for money borrowed; and |
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Consolidated Shareholders' Equity; |
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Consolidated Indebtedness for money borrowed, which is total indebtedness as shown on the consolidated balance sheet of us and our Consolidated Subsidiaries, inclusive of any that is due and payable within one year of the date the sum is determined; |
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(iii) |
any preference or preferred stock of us or any Consolidated Subsidiary which is subject to mandatory redemption or sinking fund provisions; and, without duplication, |
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(iv) |
Company Obligated Mandatorily Redeemable Preferred Securities of Subsidiary Trust. |
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(i) |
indebtedness secured by property of us or any Consolidated Subsidiary, whether or not we or such Consolidated Subsidiary is liable for the payment of the indebtedness, unless, in the case that we or such Consolidated Subsidiary is not so liable, the property has not been included among the Assets of us or such Consolidated Subsidiary on the balance sheet; |
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(ii) |
deferred liabilities; |
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(iii) |
indebtedness of us or any Consolidated Subsidiary that is expressly subordinated in right and priority of payment to other liabilities of us or such Consolidated Subsidiary; and |
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Company Obligated Mandatorily Redeemable Preferred Securities of Subsidiary Trust. |
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The surviving or successor entity is organized and validly existing under the laws of any domestic jurisdiction and it expressly assumes our obligations on all debt securities under the Indenture; |
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Immediately after giving effect to the transaction, no Event of Default under the Indenture or no event which, after notice or lapse of time or both, would become an Event of Default shall have occurred and be continuing; and |
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We shall have delivered to the trustee an officer's certificate and an opinion of counsel as provided in the Indenture. |
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Failure to pay interest on such debt securities within 30 days after it is due; |
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Failure to pay the principal of or any premium on any such debt securities when due; |
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Failure to perform any other covenant in the Indenture, other than a covenant that does not relate to such series of debt securities, that continues for 90 days after we receive written notice from the trustee, or we and the trustee receive a written notice from the holders of a majority in aggregate principal amount of the debt securities of that series; or |
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(iv) |
Events of our bankruptcy, insolvency or reorganization specified in the Indenture. (Indenture, Section 801.) |
||||||||
An Event of Default for a particular series of debt securities does not necessarily constitute an Event of Default for any other series of debt securities issued under the Indenture. The trustee may withhold notice to the holders of debt securities of any default, except default in the payment of principal or interest, if it considers the withholding of notice to be in the interests of the holders. Remedies |
|||||||||
(i) |
We have paid or deposited with the trustee a sum sufficient to pay: |
||||||||
(a) |
all matured installments of interest on all debt securities of the series; |
||||||||
(b) |
the principal of and premium, if any, on any debt securities of the series which have become due otherwise than by acceleration; |
||||||||
(c) |
interest on overdue interest (to the extent allowed by law) and on principal and any premium which have become due otherwise than by acceleration at the prescribed rates, if any, set forth in such debt securities; and |
||||||||
(d) |
all amounts due to the trustee under the Indenture; and |
||||||||
(ii) |
Any other Event of Default under the Indenture with respect to the debt securities of that series has been cured or waived as provided in the Indenture. |
||||||||
There is no automatic acceleration, even in the event of our bankruptcy, insolvency or reorganization. (Indenture, Section 802.) |
|||||||||
(i) |
The holder has previously given to the trustee written notice of a continuing Event of Default under the Indenture; |
||||||||
(ii) |
The holders of a majority in aggregate principal amount of the outstanding debt securities of all series in respect of which an Event of Default under the Indenture shall have occurred and be continuing have made a written request to the trustee, and have offered reasonable indemnity to the trustee, to institute proceedings; and |
||||||||
(iii) |
The trustee has failed to institute any proceeding for 60 days after notice. (Indenture, Section 807.) |
||||||||
However, these limitations do not apply to a suit by a holder of a debt security for payment of the principal, premium, if any, or interest on the debt security on or after the applicable due date. (Indenture, Section 808.) |
|||||||||
(i) |
To evidence the assumption by any permitted successor of our covenants in the Indenture and in the debt securities; |
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(ii) |
To add to our covenants or to surrender any of our rights or powers under the Indenture; |
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(iii) |
To add additional events of default under the Indenture; |
||||||||
(iv) |
To change, eliminate or add any provision to the Indenture; provided, however, that, if the change will adversely affect the interests of the holders of debt securities of any series in any material respect, the change, elimination or addition will become effective only: |
||||||||
(a) |
when the consent of the holders of debt securities of such series has been obtained in accordance with the Indenture; or |
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(b) |
when no debt securities of the affected series remain outstanding under the Indenture; |
||||||||
(v) |
To provide collateral security for all but not part of the debt securities; |
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(vi) |
To establish the form or terms of debt securities of any series as permitted by the Indenture; |
||||||||
(vii) |
To provide for the authentication and delivery of bearer securities; |
||||||||
(viii) |
To evidence and provide for the acceptance of appointment of a successor trustee; |
||||||||
(ix) |
To provide for the procedures required for use of a noncertificated system of registration for the debt securities of all or any series; |
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(x) |
To change any place where principal, premium, if any, and interest shall be payable, debt securities may be surrendered for registration of transfer or exchange, and notices to us may be served; |
||||||||
(xi) |
To cure any ambiguity or inconsistency or to make any other provisions with respect to matters and questions arising under the Indenture; provided that the action does not adversely affect the interests of the holders of debt securities of any series in any material respect; or |
||||||||
(xii) |
To modify, eliminate or add to the provisions of the Indenture to such extent as shall be necessary to effect the qualification of the Indenture under the Trust Indenture Act of 1939 and to add to the Indenture such other provisions as may be expressly required under the Trust Indenture Act. (Indenture, Section 1201.) |
||||||||
The holders of at least a majority in aggregate principal amount of the debt securities of all series then outstanding may waive our compliance with some restrictive provisions of the Indenture. (Indenture, Section 607.) The holders of not less than a majority in principal amount of the outstanding debt securities of any series may waive any past default under the Indenture with respect to that series, except a default in the payment of principal, premium, if any, or interest and certain covenants and provisions of the Indenture that cannot be modified or be amended without the consent of the holder of each outstanding debt security of the series affected. (Indenture, Section 813.) |
|||||||||
(i) |
Change the stated maturity of the principal of, or any installment of principal of or interest on, any debt security, or reduce the principal amount of any debt security or its rate of interest or change the method of calculating the interest rate or reduce any premium payable upon redemption, or change the currency in which payments are made, or impair the right to institute suit for the enforcement of any payment on or after the stated maturity of any debt security, without the consent of the holder; |
||||||||
(ii) |
Reduce the percentage in principal amount of the outstanding debt securities of any series the consent of the holders of which is required for any supplemental indenture or any waiver of compliance with a provision of the Indenture or any default thereunder and its consequences without the consent of all the holders of the series; or |
||||||||
(iii) |
Modify some of the provisions of the Indenture relating to supplemental indentures, waivers of some covenants and waivers of past defaults with respect to the debt securities of any series, without the consent of the holder of each outstanding debt security affected thereby. (Indenture, Section 1202.) |
||||||||
A supplemental indenture which changes the Indenture solely for the benefit of one or more particular series of debt securities, or modifies the rights of the holders of debt securities of one or more series, will not affect the rights under the Indenture of the holders of the debt securities of any other series. Resignation of a Trustee |
|||||||||
· |
prior to the time the stockholder became an interested stockholder, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder; |
||||||||
· |
the interested stockholder owned at least 85% of the voting stock of the corporation, excluding specified shares, upon consummation of the transaction which resulted in the stockholder becoming an interested stockholder; or |
||||||||
· |
at or subsequent to the time the stockholder became an interested stockholder, the business combination is approved by the board of directors of the corporation and authorized by the affirmative vote, at an annual or special meeting, and not by written consent, of at least 66 2/3% of the outstanding voting shares of the corporation, excluding shares held by that interested stockholder. |
||||||||
A business combination generally includes: |
|||||||||
· |
mergers, consolidations and sales or other dispositions of 10% or more of the assets of a corporation to or with an interested stockholder; |
||||||||
· |
specified transactions resulting in the issuance or transfer to an interested stockholder of any capital stock of the corporation or its subsidiaries; and |
||||||||
· |
other transactions resulting in a disproportionate financial benefit to an interested stockholder. |
||||||||
The provisions of the Delaware business combination statute do not apply to a corporation if, subject to certain requirements, the certificate of incorporation or bylaws of the corporation contain a provision expressly electing not to be governed by the provisions of the statute or the corporation does not have voting stock listed on a national securities exchange, authorized for quotation on the Nasdaq Stock Market or held of record by more than 2,000 stockholders. |
|||||||||
· |
the terms of the offering of the securities; |
||||||||
· |
the proceeds we will receive from such a sale; |
||||||||
· |
any underwriting discounts, sales commissions and other items constituting underwriters' compensation; |
||||||||
· |
any initial public offering price; |
||||||||
· |
any commissions payable to agents; |
||||||||
· |
any discounts or concessions allowed or reallowed or paid to dealers; and |
||||||||
· |
any securities exchanges on which we may list the securities. |
||||||||
We may distribute the securities from time to time in one or more transactions at: |
|||||||||
· |
a fixed price; |
||||||||
· |
prices that may be changed; |
||||||||
· |
market prices at the time of sale; |
||||||||
· |
prices related to prevailing market prices; and |
||||||||
· |
negotiated prices. |
||||||||
We will describe the method of distribution in the relevant prospectus supplement. |
|||||||||
· |
the name of the managing underwriter, if any; |
||||||||
· |
the name of any other underwriters; and |
||||||||
· |
the terms of the transaction, including any underwriting discounts and other items constituting compensation of the underwriters and dealers, if any. |
||||||||
The underwriters will acquire any securities for their own accounts and they 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. |
|||||||||
· |
entitle the underwriters to indemnification by us against certain civil liabilities under the Securities Act, or to contribution with respect to payments that the underwriters may be required to make related to any such civil liability; |
||||||||
· |
subject the obligations of the underwriters to certain conditions precedent; and |
||||||||
· |
obligate the underwriters to purchase all securities offered in a particular offering if any such securities are purchased. |
||||||||
In connection with an offering of the securities, underwriters may engage in transactions that stabilize, maintain or otherwise affect the price of the securities. Specifically, underwriters may: |
|||||||||
· |
overallot in connection with the offering, creating a short position; |
||||||||
· |
bid for, and purchase, the securities in the open market to cover short positions; |
||||||||
· |
bid for, and purchase, the securities in the open market to stabilize the price of the securities; and |
||||||||
· |
reclaim selling concessions allowed for distributing the securities in the offering if the underwriter repurchases previously distributed securities in covering transactions, in stabilization transactions or otherwise. |
||||||||
Any of these activities may stabilize or maintain the market price of the securities above independent market levels. Underwriters are not required to engage in these activities, and may end any of these activities at any time. |
|||||||||
· |
Consolidated financial statements of Pepco Holdings, Inc. as of December 31, 2001 and for the period from February 9, 2001 (inception) to December 31, 2001, included in the Annual Report on Form 10-K of Pepco Holdings, Inc. for the period ended December 31, 2001. |
||||||||
· |
Consolidated financial statements of Potomac Electric Power Company as of December 31, 2001 and 2000 and for each of the three years in the period ended December 31, 2001, included in the Annual Report on Form 10-K of Potomac Electric Power Company for the year ended December 31, 2001. |
||||||||
· |
Consolidated financial statements of Conectiv as of December 31, 2001 and 2000 and for each of the three years in the period ended December 31, 2001, included in the Annual Report on Form 10-K of Conectiv for the year ended December 31, 2001. |
||||||||
The aforementioned financial statements have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. |
PART II Set forth below is an estimate of the approximate amount of our fees and expenses (other than underwriting discounts and commissions) in connection with the issuance of the securities: |
||||||
Registration fee |
$ 46,000* |
|||||
Fees of rating agencies |
133,000 |
|||||
Stock exchange listing fees |
45,000 |
|||||
Printing |
125,000 |
|||||
Accounting fees |
65,000 |
|||||
Legal fees |
90,000 |
|||||
Trustee's fees and expenses |
10,000 |
|||||
Blue sky expenses |
20,000 |
|||||
Miscellaneous, including traveling, telephone, copying, shipping, and |
|
|||||
Total |
$574,000 |
|||||
* All items are estimated except the registration fee. |
||||||
1.01 |
Form of Underwriting Agreement relating to debt securities.* |
|||||
1.02 |
Form of Underwriting Agreement relating to common stock.* |
|||||
1.03 |
Form of Sales Agency Agreement relating to common stock.* |
|||||
1.04 |
Form of Underwriting Agreement relating to stock purchase contracts.* |
|||||
1.05 |
Form of Underwriting Agreement relating to stock purchase units.* |
|||||
4.01 |
Certificate of Incorporation of the Company. (Filed as Exhibit 3.1 to the Company's Current Report on Form 8-K Report dated August 1, 2002 and incorporated by reference herein) |
|||||
4.02 |
Bylaws of the Company. (Filed as Exhibit 3.2 to the Company's Current Report on Form 8-K Report dated August 1, 2002 and incorporated by reference herein) |
|||||
4.03 |
Indenture, dated September 6, 2002, between the Company and The Bank of New York, as Trustee. |
|||||
4.04 |
Specimen of certificate representing common stock of the Company. |
|||||
4.05 |
Form of stock purchase contract.* |
|||||
4.06 |
Form of stock purchase unit.* |
|||||
4.07 |
Form of pledge agreement.* |
|||||
4.08 |
Form of debt security.* |
|||||
5.01 |
Opinion of William T. Torgerson, Esq. |
|||||
12.01 |
Statement of computation of ratio of earnings to fixed charges of the Company. |
|||||
12.02 |
Statement of computation of ratio of earnings to fixed charges of Pepco. (Filed as Exhibit 12 to Pepco's Quarterly Report on Form 10-Q for the Period Ended June 30, 2002 and incorporated by reference herein) |
|||||
12.03 |
Statement of computation of ratio of earnings to fixed charges of Conectiv. (Filed as Exhibit 12 to Conectiv's Quarterly Report on Form 10-Q for the Period Ended June 30, 2002 and incorporated by reference herein) |
|||||
15.01 |
Letter on Unaudited Financial Information. |
|||||
23.01 |
Independent Accountants' Consent with respect to the Company. |
|||||
23.02 |
Independent Accountants' Consent with respect to Pepco. |
|||||
23.03 |
Independent Accountants' Consent with respect to Conectiv. |
|||||
23.04 |
Consent of William T. Torgerson (included in Exhibit 5.01). |
|||||
23.05 |
Consent of Covington & Burling. |
|||||
24.01 |
Power of Attorney. |
|||||
25.01 |
Form T-1 Statement of Eligibility of The Bank of New York to act as Trustee under the Indenture. |
|||||
*To be filed as an exhibit to a subsequent Current Report on Form 8-K. |
||||||
ITEM 17.
UNDERTAKINGS. |
||||||
(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; |
|||||
(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; |
|||||
(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; and |
|||||
(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. |
|||||
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 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. |
||||||
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 provisions described in Item 15 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 officer, director 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 of 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. |
SIGNATURES |
|||
PEPCO HOLDINGS, INC. By: John M. Derrick, Jr. Chairman and Chief Executive Officer |
|||
Pursuant to the requirements of Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated. |
|||
Signature |
Title |
Date |
|
|
|||
JOHN M. DERRICK, JR.* John M. Derrick, Jr. |
Chairman, Chief Executive |
October 10, 2002 |
|
ANDREW W. WILLIAMS* Andrew W. Williams |
Senior Vice President and Chief |
October 10, 2002 |
|
JAMES P. LAVIN* James P. Lavin |
Controller |
October 10, 2002 |
|
EDMUND B. CRONIN, JR.* Edmund B. Cronin, Jr. |
Director |
October 10, 2002 |
|
TERENCE C. GOLDEN* Terence C. Golden |
Director |
October 10, 2002 |
|
GEORGE F. MACCORMACK* George F. MacCormack |
Director |
October 10, 2002 |
|
RICHARD B. MCGLYNN* Richard B. McGlynn |
Director |
October 10, 2002 |
|
Judith A. McHale |
Director |
||
FLORETTA D. MCKENZIE* Floretta D. McKenzie |
Director |
October 10, 2002 |
|
LAWRENCE C. NUSSDORF* Lawrence C. Nussdorf |
Director |
October 10, 2002 |
|
PETER F. O'MALLEY* Peter F. O'Malley |
Director |
October 10, 2002 |
|
PAULINE A. SCHNEIDER* Pauline A. Schneider |
Director |
October 10, 2002 |
|
DENNIS R. WRAASE* Dennis R. Wraase |
Director |
October 10, 2002 |
|
A. THOMAS YOUNG* A. Thomas Young |
Director |
October 10, 2002 |
|
*By: /s/ELLEN SHERIFF ROGERS |
October 10, 2002 |