Registration No. 333-93181
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
TEXAS UTILITIES COMPANY
(DOING BUSINESS AS TXU CORP.)
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(Exact name of registrant as specified in its charter)
TEXAS 75-2669310
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(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or No.)
organization)
ENERGY PLAZA, 1601 BRYAN STREET, DALLAS, TEXAS 75201-3411
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(Address of Principal Executive Offices) (Zip Code)
EMPLOYEES' THRIFT PLAN OF THE TEXAS UTILITIES COMPANY SYSTEM
AND
ENSERCH CORPORATION EMPLOYEE STOCK PURCHASE AND SAVINGS PLAN
(Full title of the Plan)
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ROBERT A. WOOLDRIDGE, ESQ. PETER B. TINKHAM, ESQ. ROBERT J. REGER, JR., ESQ.
Worsham Forsythe Secretary and Thelen Reid
Wooldridge LLP Assistant Treasurer & Priest LLP
Energy Plaza Energy Plaza 40 West 57th Street
1601 Bryan Street 1601 Bryan Street New York, New York 10019
Dallas, Texas 75201 Dallas, Texas 75201 (212) 603-2000
(214) 979-3000 (214) 812-4600
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(Names, addresses and telephone numbers, including area codes,
of agents for service)
CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM
SECURITIES AMOUNT OFFERING AGGREGATE AMOUNT OF
TO BE TO BE PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE PRICE FEE
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Common Stock,
without par
value (2) 4,000,000 shares N/A(2) N/A(2) N/A(2)
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Preference Stock
Purchase
Rights (3) 4,000,000 rights N/A(3) N/A(3) N/A(3)
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(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Securities Act"), this registration statement covers an indeterminate amount
of interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) On December 21, 1999, TXU Corp. (the "Company") registered 4,000,000
shares of Common Stock on a registration statement on Form S-8 (File No.
333-93181) (the "Registration Statement") filed with the Securities and
Exchange Commission (the "Commission"). In connection with the filing of
that Registration Statement, the Company paid a registration fee of $35,277.
(3) Since no separate consideration is paid for the Rights, the registration
fee for such securities was included in the fee for the Common Stock. The
value attributable to the Rights, if any, is reflected in the market price
of the Common Stock.
EXPLANATORY NOTE
THIS POST EFFECTIVE AMENDMENT NO. 2 TO REGISTRATION STATEMENT NO. 333-93181
IS BEING FILED SO THAT SHARES OF COMMON STOCK, INCLUDING ATTACHED PREFERENCE
STOCK PURCHASE RIGHTS, OF TXU CORP. MAY BE OFFERED AND SOLD PURSUANT TO THE
EMPLOYEES' THRIFT PLAN OF THE TEXAS UTILITIES COMPANY SYSTEM AND THE ENSERCH
CORPORATION EMPLOYEE STOCK PURCHASE AND SAVINGS PLAN.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which have been filed by Texas Utilities
Company, doing business as TXU Corp. (Company or TXU Corp.), the Employees'
Thrift Plan of the Texas Utilities Company System and the ENSERCH Corporation
Employee Stock Purchase and Savings Plan (together, the Plan) with the
Securities and Exchange Commission (Commission) pursuant to the Securities
Exchange Act of 1934, as amended (1934 Act), are incorporated by reference in
this registration statement:
(a) Annual Report of TXU Corp. on Form 10-K for the year ended
December 31, 1999, File No. 1-12833.
(b) Current Report of TXU Corp. on Form 8-K dated March 1, 2000,
File No. 1-12833.
(c) Current Report of TXU Corp. on Form 8-K dated March 13, 2000,
File No. 1-12833.
(d) Annual Report of Employees' Thrift Plan of the Texas Utilities
Company System on Form 11-K for the Fiscal Year ended December
31, 1998, File No. 1-12833.
(e) Annual Report of ENSERCH Corporation Employee Stock Purchase
and Savings Plan on Form 11-K for the Fiscal Year ended
December 31, 1998, File No. 1-3183.
(f) The description of the Company's common stock and the rights
appurtenant thereto contained in registration statements filed
under the 1934 Act, including any amendment or report filed
for the purpose of updating such description.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
As of December 31, 1999, members of the firm of Worsham Forsythe
Wooldridge LLP owned approximately 42,000 shares of the common stock of the
Company.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article IX of the Amended and Restated Articles of Incorporation of the
Company provides as follows:
"The Corporation shall reimburse or indemnify any former, present
or future director, officer or employee of the Corporation, or any person
who may have served at its request as a director, officer or employee of
another corporation, or any former, present or future director, officer
or employee of the Corporation who shall have served or shall be serving
as an administrator, agent or fiduciary for the Corporation or for
another corporation at the request of the Corporation (and his heirs,
executors and administrators) for or against all expenses and liabilities
incurred by him or them, or imposed on him or them, including, but not
limited to, judgments, settlements, court costs and attorneys' fees, in
connection with, or arising out of, the defense of any action, suit or
proceeding in which he may be involved by reason of his being or having
been such director, officer or employee, except with respect to matters
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as to which he shall be adjudged in such action, suit or proceeding to be
liable because he did not act in good faith, or because of dishonesty or
conflict of interest in the performance of his duty.
No former, present or future director, officer or employee of
the Corporation (or his heirs, executors and administrators) shall be
liable for any act, omission, step or conduct taken or had in good faith,
which is required, authorized or approved by an order or orders issued
pursuant to the Public Utility Holding Company Act of 1935, the Federal
Power Act, or any other federal or state statute regulating the
Corporation or its subsidiaries, or any amendments to any thereof. In any
action, suit or proceeding based on any act, omission, step or conduct,
as in this paragraph described, the provisions hereof shall be brought to
the attention of the court. In the event that the foregoing provisions of
this paragraph are found by the court not to constitute a valid defense,
each such director, officer or employee (and his heirs, executors and
administrators) shall be reimbursed for, or indemnified against, all
expenses and liabilities incurred by him or them, or imposed on him or
them, including, but not limited to, judgments, settlements, court costs
and attorneys' fees, in connection with, or arising out of, any such
action, suit or proceeding based on any act, omission, step or conduct
taken or had in good faith as in this paragraph described.
The foregoing rights shall not be exclusive of other rights to which
any such director, officer or employee (or his heirs, executors and
administrators) may otherwise be entitled under any bylaw, agreement,
vote of shareholders or otherwise, and shall be available whether or not
the director, officer or employee continues to be a director, officer or
employee at the time of incurring such expenses and liabilities. In
furtherance, and not in limitation of the foregoing provisions of this
Article IX, the Corporation may indemnify and may insure any such persons
to the fullest extent permitted by the Texas Business Corporation Act, as
amended from time to time, or the laws of the State of Texas, as in
effect from time to time."
Article 2.02-1 of the Texas Business Corporation Act permits the Company,
in certain circumstances, to indemnify any present or former director, officer,
employee or agent of the Company against judgments, penalties, fines,
settlements and reasonable expenses incurred in connection with a proceeding in
which any such person was, is or is threatened to be, made a party by reason of
holding such office or position, but only to a limited extent for obligations
resulting from a proceeding in which the person is found liable on the basis
that a personal benefit was improperly received or in circumstances in which the
person is found liable in a derivative suit brought on behalf of the Company.
Article X of the Amended and Restated Articles of Incorporation of the
Company provides as follows:
"A director of the Corporation shall not be liable to the
Corporation or its shareholders for monetary damages for any act or
omission in the director's capacity as a director, except that this
provision does not eliminate or limit the liability of a director to the
extent the director is found liable for:
(a) a breach of a director's duty of loyalty to the
Corporation or its shareholders;
(b) an 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 the
law;
(c) a transaction from which the director received an
improper benefit, whether or not the benefit resulted
from an action taken within the scope of the director's
office; or
(d) an act or omission for which the liability of the
director is expressly provided for by an applicable
statute.
If the laws of the State of Texas are amended to authorize action further
eliminating or limiting the personal liability of directors, then the
liability of a director of the Corporation shall be eliminated or limited
to the fullest extent permitted by such laws as so amended. Any repeal or
modification of this Article X shall not adversely affect any right of
protection of a director of the Corporation existing at the time of such
repeal or modification."
Section 22 of the Company's bylaws provides as follows:
"Section 22. Insurance, Indemnification and Other Arrangements.
Without further specific approval of the shareholders of the Corporation,
the Corporation may purchase, enter into, maintain or provide insurance,
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indemnification or other arrangements for the benefit of any person who is
or was a director, officer, employee or agent of the Corporation or is or
was serving another entity at the request of the Corporation as a director,
officer, employee, agent or otherwise, to the fullest extent permitted by
the laws of the State of Texas, including without limitation Art. 2.02-1 of
the Texas Business Corporation Act or any successor provision, against any
liability asserted against or incurred by any such person in any such
capacity or arising out of such person's service in such capacity whether or
not the Corporation would otherwise have the power to indemnify against any
such liability under the Texas Business Corporation Act. If the laws of the
State of Texas are amended to authorize the purchase, entering into,
maintaining or providing of insurance, indemnification or other arrangements
in the nature of those permitted hereby to a greater extent than presently
permitted, then the Corporation shall have the power and authority to
purchase, enter into, maintain and provide any additional arrangements in
such regard as shall be permitted from time to time by the laws of the State
of Texas without further approval of the shareholders of the Corporation. No
repeal or modification of such laws or this Section 22 shall adversely
affect any such arrangement or right to indemnification existing at the time
of such repeal or modification."
The Company has entered into agreements with its directors which provide,
among other things, for their indemnification by the Company to the fullest
extent permitted by Texas law, unless a final adjudication establishes that the
indemnitee's acts were committed in bad faith, were the result of active and
deliberate dishonesty or that the indemnitee personally gained a financial
profit to which the indemnitee was not legally entitled. These agreements
further provide, under certain circumstances, for the advancement of expenses
and the implementation of other arrangements for the benefit of the indemnitee.
The Company has insurance covering its expenditures which might arise in
connection with its lawful indemnification of its directors and officers for
their liabilities and expenses. Officers and directors of the Company also have
insurance which insures them against certain other liabilities and expenses.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
PREVIOUSLY FILED*
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WITH FILE AS
EXHIBIT NUMBER EXHIBIT
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4(a) 333-79221 4(a)-- Amended and Restated Articles of
Incorporation of the Company.
4(b) 333-45657 4(b)-- Bylaws, as amended, of the Company.
4(c) 1-2833 1 -- Rights Agreement, dated as of February 19,
Form 8-A 1999, between the Company and The Bank of
(filed New York, which includes as Exhibit A
February 26, thereto the form of Statement of Resolution
1999) Establishing the Series A Preference Stock,
Exhibit B thereto the form of a Right
Certificate and Exhibit C thereto the
Summary of Rights to Purchase Series A
Preference Stock.
5(a) -- Opinion of Thelen Reid & Priest LLP.
5(b) -- Opinion of Worsham Forsythe Wooldridge LLP.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of PricewaterhouseCoopers.
23(c) -- Consents of Thelen Reid & Priest LLP
and Worsham Forsythe Wooldridge LLP are
contained in Exhibits 5(a) and 5(b),
respectively.
24 ** 24 -- Powers of Attorney.
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* Incorporated herein by reference.
** Previously filed with the original Registration Statement (No. 333-93181)
on December 21, 1999.
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UNDERTAKING. The Company will submit or has submitted the Plan and any
amendment thereto to the Internal Revenue Service (IRS) in a timely manner and
has made or will make all changes required by the IRS in order to qualify the
Plan.
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 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;
provided, however, that paragraphs (a)(1)(i) and (ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the registrant pursuant to Sections 13 or 15(d) of the
Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof;
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant to
Sections 13(a) or 15(d) of the Exchange Act, and each filing of the annual
report of the Employees' Thrift Plan of the Texas Utilities Company System
or the ENSERCH Corporation Employees Stock Purchase and Savings Plan
pursuant to Section 15(d) of the Securities Exchange Act that is
incorporated by reference in the registration statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof;
(b) 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 under Item 6 above, 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 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 Act and will
be governed by the final adjudication of such issue.
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SIGNATURES
THE REGISTRANT. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF
1933, THE REGISTRANT HAS DULY CAUSED THIS POST-EFFECTIVE AMENDMENT NO. 2 TO THE
REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO
DULY AUTHORIZED, IN THE CITY OF NEW YORK, AND STATE OF NEW YORK, ON THE 10TH DAY
OF MAY, 2000.
TEXAS UTILITIES COMPANY
(DOING BUSINESS AS TXU CORP.)
BY /S/ ROBERT J. REGER, JR.
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(ROBERT J. REGER, JR.
ATTORNEY-IN-FACT)
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
POST-EFFECTIVE AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT HAS BEEN SIGNED BY
THE FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATE INDICATED.
SIGNATURE TITLE DATE
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ERLE NYE*
- ----------------------------------- PRINCIPAL EXECUTIVE MAY 10, 2000
(ERLE NYE, CHAIRMAN OF THE OFFICER AND DIRECTOR
BOARD AND CHIEF EXECUTIVE )
MICHAEL J. MCNALLY*
- ----------------------------------- PRINCIPAL FINANCIAL MAY 10, 2000
(MICHAEL J. MCNALLY, OFFICER
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER)
JERRY W. PINKERTON*
- ----------------------------------- PRINCIPAL ACCOUNTING MAY 10, 2000
(JERRY W. PINKERTON, CONTROLLER) OFFICER
D. C. BONHAM*, J. S.FARRINGTON*,
WILLIAM M. GRIFFIN*, KERNEY LADAY*,
MARGARET N. MAXEY*, JAMES A. DIRECTORS MAY 10, 2000
MIDDLETON*, J. E. OESTERREICHER*,
CHARLES R. PERRY*, HERBERT H.
RICHARDSON*
*BY: /S/ ROBERT J. REGER, JR.
------------------------------- MAY 10, 2000
(ROBERT J. REGER, JR.
ATTORNEY-IN-FACT)
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THE PLAN. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THE EMPLOYEES' THRIFT PLAN OF THE TEXAS UTILITIES COMPANY SYSTEM AND THE ENSERCH
CORPORATION EMPLOYEE STOCK PURCHASE AND SAVINGS PLAN HAS DULY CAUSED THIS
POST-EFFECTIVE AMENDMENT NO. 2 TO THE REGISTRATION STATEMENT TO BE SIGNED ON ITS
BEHALF BY THE UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF DALLAS, AND
THE STATE OF TEXAS, ON THE 10TH DAY OF MAY, 2000.
EMPLOYEES' THRIFT PLAN OF THE
TEXAS UTILITIES COMPANY SYSTEM
ENSERCH CORPORATION EMPLOYEE
STOCK PURCHASE AND SAVINGS PLAN
BY: /S/ PETER B. TINKHAM
--------------------------------
(PETER B. TINKHAM, CHAIRMAN
EMPLOYEES' THRIFT PLAN COMMITTEE)
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EXHIBIT INDEX
PREVIOUSLY FILED*
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WITH FILE AS
EXHIBIT NUMBER EXHIBIT
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4(a) 333-79221 4(a)-- Amended and Restated Articles of
Incorporation of the Company.
4(b) 333-45657 4(b)-- Bylaws, as amended, of the Company.
4(c) 1-2833 1 -- Rights Agreement, dated as of February 19,
Form 8-A 1999, between the Company and The Bank of
(filed New York, which includes as Exhibit A
February 26, thereto the form of Statement of Resolution
1999) Establishing the Series A Preference Stock,
Exhibit B thereto the form of a Right
Certificate and Exhibit C thereto the
Summary of Rights to Purchase Series A
Preference Stock.
5(a) -- Opinion of Thelen Reid & Priest LLP.
5(b) -- Opinion of Worsham Forsythe Wooldridge LLP.
23(a) -- Consent of Deloitte & Touche LLP.
23(b) -- Consent of PricewaterhouseCoopers.
23(c) -- Consents of Thelen Reid & Priest LLP
and Worsham Forsythe Wooldridge LLP are
contained in Exhibits 5(a) and 5(b),
respectively.
24 ** 24 -- Powers of Attorney.
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* Incorporated herein by reference.
** Previously filed with the original Registration Statement (No. 333-93181)
on December 21, 1999.