AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY , 1998
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
------------------------
PUBLIC SERVICE ENTERPRISE ENTERPRISE CAPITAL TRUST II
GROUP INCORPORATED ENTERPRISE CAPITAL TRUST III
(Exact name of registrant (Exact name of registrants as specified in Trust Agreements)
as specified in charter)
NEW JERSEY (State or other jurisdiction of DELAWARE
22-2625848 incorporation or organization) 22-3577992
22-3577994
(I.R.S. Employer Identification No.)
80 PARK PLAZA
P.O. BOX 1171
NEWARK, NEW JERSEY 07101
(973) 430-7000
(Address, including zip code, and telephone number, including area
code, of registrants' principal executive offices)
------------------------
ROBERT C. MURRAY
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
80 PARK PLAZA
P.O. BOX 1171
NEWARK, NEW JERSEY 07101
(973) 430-7000
(Name, address, including zip code, and telephone number, including
area code, of agent for service for each registrant)
WITH COPIES TO:
JAMES T. FORAN, ESQUIRE HOWARD G. GODWIN, JR., ESQUIRE
ASSOCIATE GENERAL COUNSEL BROWN & WOOD LLP
80 PARK PLAZA ONE WORLD TRADE CENTER
P.O. BOX 1171 NEW YORK, NEW YORK 10048
NEWARK, NEW JERSEY 07101
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
After the Registration Statement becomes effective, as determined by market
conditions and other factors.
------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE PER AGGREGATE OFFERING
SECURITIES TO BE REGISTERED (1) REGISTERED (2) UNIT (3)(4) PRICE (3)(4)
Public Service Enterprise Group Incorporated
Senior Debt Securities......................
Public Service Enterprise Group Incorporated
Subordinated Debt Securities................
Enterprise Capital Trust II and III
Trust Preferred Securities..................
Public Service Enterprise Group Incorporated
Guarantees with respect to Trust
Preferred Securities (5)....................
Public Service Enterprise Group Incorporated
Deferrable Interest Subordinated Debentures...
Total......................................... $500,000,000 100% $500,000,000
TITLE OF EACH CLASS OF AMOUNT OF
SECURITIES TO BE REGISTERED (1) REGISTRATION FEE
Public Service Enterprise Group Incorporated
Senior Debt Securities......................
Public Service Enterprise Group Incorporated
Subordinated Debt Securities................
Enterprise Capital Trust II and III
Trust Preferred Securities..................
Public Service Enterprise Group Incorporated
Guarantees with respect to Trust
Preferred Securities (5)....................
Public Service Enterprise Group Incorporated
Deferrable Interest Subordinated Debentures...
Total......................................... $147,500
(1) Securities registered hereunder may be sold separately, together or as units
with other securities registered hereunder.
(2) There is being registered hereunder (a) a presently indeterminate principal
amount of Senior Debt Securities and Subordinated Debt Securities and (b) a
presently indeterminate number of Trust Preferred Securities of Enterprise
Capital Trust II and III and related Guarantees and Deferrable Interest
Subordinated Debentures of Public Service Enterprise Group Incorporated for
which no separate consideration will be received, all with an aggregate
initial offering price not to exceed $500,000,000.
(3) Estimated solely for the purpose of determining the registration fee.
(4) Pursuant to Rule 457(n) and (o), the registration fee is calculated on the
basis of the proposed maximum offering price of the securities being
offered.
(5) This registration is deemed to include the rights of holders of the Trust
Preferred Securities under the Guarantees and certain backup undertakings as
described in the Registration Statement.
------------------------
Pursuant to Rule 429 under the Securities Act of 1933, the prospectuses
included in this registration statement are combined prospectuses relating also
to registration statement no. 333-43241 previously filed by the registrants on
Form S-3 and declared effective on January 8, 1998. This registration statement,
which is a new registration statement, also constitutes post-effective amendment
no. 1 to registration statement 333-43241, and such post-effective amendment no.
1 shall hereafter become effective concurrently with the effectiveness of this
registration statement and in accordance with section 8(c) of the Securities Act
of 1933.
------------------------
The Registrants hereby amend this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrants
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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
EXPLANATORY NOTE
This Registration Statement contains the following two separate prospectuses:
1. A form of prospectus to be used in connection with offerings by Public
Service Enterprise Group Incorporated of its Senior Debt Securities and
Subordinated Debt Securities (together, the "Debt Securities").
2. A form of prospectus to be used in connection with offerings by Enterprise
Capital Trust II and Enterprise Capital Trust III of Trust Preferred Securities,
together with related debt securities and guarantees of Public Service
Enterprise Group Incorporated.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THESE PROSPECTUSES SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS SUBJECT TO COMPLETION, DATED MAY , 1998
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
DEBT SECURITIES
------------------------
Public Service Enterprise Group Incorporated ("Enterprise") may offer from
time to time, together or separately, (i) one or more series of its unsecured
debt securities ("Debt Securities") which may be either senior (the "Senior
Securities") or subordinated (the "Subordinated Securities") in priority of
payment.
The Senior Securities will rank equally with all other unsubordinated and
unsecured indebtedness of Enterprise. The Subordinated Securities will be
unsecured and subordinated as described under "Description of Debt Securities --
Subordination."
When a particular series of Debt Securities is offered, a supplement to
this Prospectus (a "Prospectus Supplement") setting forth certain terms of the
offered Debt Securities (the "Offered Securities") will be delivered together
with this Prospectus. The applicable Prospectus Supplement, among other things
and where applicable, will include the specific designation, priority, aggregate
principal amount, rate (which may be fixed or variable) and time of payment of
any interest, authorized denominations, maturity, offering price, place or
places of payment, redemption terms at the option of Enterprise, terms of any
repayment at the option of the holder, terms for sinking fund payments, terms
for conversion or exchange into other securities, provisions regarding original
issue discount securities and other terms of such Debt Securities. The
applicable Prospectus Supplement may also contain applicable information about
certain federal income tax, accounting and other considerations relating to, and
any listing on a securities exchange of, the Offered Securities covered by such
Prospectus Supplement.
The aggregate initial public offering price of all Debt Securities which
may be sold under this Prospectus shall not exceed $500,000,000 less the
aggregate initial public offering price of any securities of certain Enterprise
funding entities which are sold under a separate prospectus which also
constitutes a part of the Registration Statement of which this Prospectus
constitutes a part. See "Available Information."
Enterprise may sell the Debt Securities directly, through agents,
underwriters or dealers as designated from time to time, or through a
combination of such methods. If any such agents, underwriters or dealers are
involved in the sale of the Debt Securities in respect of which this Prospectus
is being delivered, the names of such agents, underwriters or dealers and any
applicable agent's commission, underwriter's discount or dealer's purchase price
and the net proceeds to Enterprise from such sale will be set forth in, or may
be calculated on the basis set forth in, the applicable Prospectus Supplement.
See "Plan of Distribution" for possible indemnification arrangements for any
such agents, underwriters and dealers.
This Prospectus may not be used to consummate sales of the Debt Securities
without the delivery of one or more Prospectus Supplements.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1998.
AVAILABLE INFORMATION
Public Service Enterprise Group Incorporated, a New Jersey corporation, is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission
("SEC"). Such reports and other information can be inspected and copied at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. and at its regional offices at 500 West Madison Street,
Chicago, Illinois and 7 World Trade Center, New York, New York. Copies of such
reports and other information may also be obtained from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549-1004 at
prescribed rates. Such reports and other information can also be inspected at
the New York Stock Exchange, Inc. (the "New York Stock Exchange") where certain
of Enterprise's securities are listed. In addition, the SEC maintains a Web site
that contains reports, proxy and other information regarding registrants that
file electronically with the SEC. The address of such Web site is
http://www.sec.gov.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by Enterprise with the SEC
pursuant to the Exchange Act, are incorporated herein by reference:
1. Enterprise's Annual Report on Form 10-K for the year ended December
31, 1997.
2. Enterprise's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference in this Prospectus and the accompanying Prospectus
Supplement and shall be a part hereof and thereof from the date of filing of
such document. Any statement contained herein or therein or in a document all or
a portion of which is incorporated or deemed to be incorporated by reference
herein and therein shall be deemed to be modified or superseded for purposes of
this Prospectus and the accompanying Prospectus Supplement to the extent that a
statement contained herein or therein or in any other subsequently filed
document which also is or is deemed to be incorporated by reference herein and
therein modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus or the accompanying Prospectus Supplement.
Enterprise undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus and the accompanying Prospectus
Supplement are delivered, upon written or oral request of such person, a copy of
any or all documents described above, other than exhibits to such documents not
specifically incorporated by reference therein. Such requests should be directed
to the Director-Investor Relations, Public Service Electric and Gas Company, 80
Park Plaza, T6B, P.O. Box 570, Newark, New Jersey 07101, telephone (973)
430-6503.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Enterprise is a public utility holding company that neither owns nor
operates any physical properties. Enterprise has two direct, wholly owned
subsidiaries, Public Service Electric and Gas Company ("PSE&G") and Enterprise
Diversified Holdings Incorporated ("EDHI"). Enterprise's principal subsidiary,
PSE&G, is an operating public utility providing electric and gas service in
certain areas of the State of New Jersey. EDHI is the parent of Enterprise's
non-utility businesses: Community Energy Alternatives Incorporated, Public
Service Resources Corporation, Energis Resources Incorporated, Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital Funding
Corporation.
Enterprise's executive offices are located at 80 Park Plaza, Newark, New
Jersey 07101, and its telephone number is (973) 430-7000.
USE OF PROCEEDS
The net proceeds from the sale of the Debt Securities will be added to
Enterprise's general funds and will be used for general corporate purposes,
including but not limited to additional investments in its subsidiaries.
DESCRIPTION OF DEBT SECURITIES
Enterprise may issue (either separately or together with other Offered
Securities) its Debt Securities from time to time. The Senior Securities will be
issued under an Indenture (the "Senior Indenture") to be entered into between
Enterprise and First Union National Bank, Trustee (the "Senior Trustee"), and
the Subordinated Securities will be issued under an Indenture
2
(the "Subordinated Indenture") to be entered into between Enterprise and First
Union National Bank, Trustee (the "Subordinated Trustee"). The term "Trustee" as
used herein refers to either the Senior Trustee or the Subordinated Trustee, as
appropriate. The Senior Indenture and the Subordinated Indenture (being
sometimes referred to herein collectively as the "Indentures" and individually
as an "Indenture") are filed as exhibits to the registration statement. The
Indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended (the "TIA"). The following summary of certain provisions of the
Indentures does not purport to be complete and is subject to, and qualified in
its entirety by reference to, the Indentures, including the definitions of
certain terms therein. Parenthetical references below are to the Indentures or
to the TIA, as applicable.
PROVISIONS APPLICABLE TO BOTH THE SENIOR AND SUBORDINATED INDENTURES
GENERAL
The Debt Securities will be unsecured obligations of Enterprise. The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of Enterprise. The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of
Enterprise as described under " -- Subordinated Indenture
Provisions -- Subordination".
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this Prospectus and the accompanying Prospectus Supplement ("Offered
Debt Securities"), as well as other unsecured debt securities of Enterprise, may
be issued under such Indenture in one or more series, in each case as authorized
from time to time by Enterprise. The particular terms of the Offered Debt
Securities and any modifications of or additions to the general terms of the
Debt Securities as described herein that may be applicable in the case of the
Offered Debt Securities are described in the Prospectus Supplement. Accordingly,
for a description of the terms of any Offered Debt Securities, reference must be
made to both the Prospectus Supplement relating thereto and the description of
Debt Securities set forth in this Prospectus.
With respect to the Offered Debt Securities, reference is made to the
Prospectus Supplement for the following terms:
(1) The title of such Debt Securities and whether such Debt
Securities will be Senior Securities or Subordinated Securities.
(2) The aggregate principal amount of such Debt Securities and any
limit on the aggregate principal amount of Debt Securities of such
series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof or the method by which such portion will be determined.
(4) The date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of such Debt
Securities will be payable.
(5) The rate or rates at which such Debt Securities will bear
interest, if any, or the method by which such rate or rates will be
determined, the date or dates from which such interest will accrue or
the method by which such date or dates will be determined, the date or
dates on which such interest, if any, will be payable and the Regular
Record Date or Dates, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which any such
date will be determined, and the basis upon which interest will be
calculated if other than that of a 360-day year of twelve 30-day months.
(6) The date or dates on which or the period or periods within
which, the price or prices at which and the other terms and conditions
upon which, such Debt Securities may be redeemed, in whole or in part,
at the option of Enterprise and whether Enterprise is to have that
option.
(7) The obligation, if any, of Enterprise to redeem, repay or
purchase such Debt Securities, in whole or in part, pursuant to any
sinking fund or analogous provision or at the option of a holder thereof
and the period or periods within which or the date or dates on which,
the price or prices at which and the other terms and conditions upon
which, such Debt Securities will be so redeemed, repaid or purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities or both, any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms, if any,
upon which Bearer Securities of the series may be exchanged for
Registered Securities of the series and VICE VERSA (if permitted by
applicable laws and regulations), whether such Debt Securities will be
issuable initially in temporary global form, whether any such Debt
Securities will be issuable in permanent global form with or without
coupons and, if so,
3
whether beneficial owners of interests in any such permanent global
security may exchange such interests for Debt Securities of such series
in certificate form and of like tenor of any authorized form and
denomination and the circumstances under which any such exchanges may
occur, if other than in the manner provided in the applicable Indenture,
and, if Registered Securities are to be issuable as a global security,
the identity of the depository for such Debt Securities.
(9) Whether the amount of payments of principal of (or premium, if
any) or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may be based on one or more Currencies, commodities, equity
indices or other indices) and the manner in which such amounts will be
determined.
(10) The place or places, if any, other than or in addition to The
City of New York, where the principal of (and premium, if any) and
interest, if any, on such Debt Securities will be payable, where any
Registered Securities may be surrendered for registration of transfer,
where such Debt Securities may be surrendered for exchange, where Debt
Securities of a series that are convertible or exchangeable may be
surrendered for conversion or exchange and where notices or demands to
or upon Enterprise in respect of such Debt Securities and the applicable
Indenture may be served.
(11) The denomination or denominations in which such Debt
Securities will be issuable, if other than $1,000 or any integral
multiple thereof in the case of Registered Securities and $5,000 in the
case of Bearer Securities.
(12) If other than the applicable Trustee, the identity of each
Security Registrar and/or Paying Agent.
(13) The date as of which any Bearer Securities of the series and
any temporary Debt Security issued in global form representing
Outstanding Securities of the series will be dated if other than the
date of original issuance of the first Debt Security of the series to be
issued.
(14) The applicability, if at all, to such Debt Securities of the
provisions of Article Fourteen of the applicable Indenture described
under "Defeasance and Covenant Defeasance" and any provisions in
modification of, in addition to or in lieu of any of the provisions of
such Article.
(15) The Person to whom any interest on any Registered Security of
the series will be payable, if other than the Person in whose name such
Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, the manner in which, or the Person to whom, any interest on
any Bearer Security of the series shall be payable, if otherwise than
upon presentation and surrender of the coupons appertaining thereto as
they severally mature, and the extent to which, or the manner in which,
any interest payable on a temporary Debt Security issued in global form
will be paid if other than in the manner provided in the applicable
Indenture.
(16) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt
Security of such series) only upon receipt of certain certificates or
other documents or satisfaction of other conditions, the form and/or
terms of such certificates, documents or conditions.
(17) Whether and under what circumstances Enterprise will pay
Additional Amounts, as contemplated by Section 1004 of the applicable
Indenture, on such Debt Securities to any holder who is not a United
States person (including any modification to the definition of such term
as contained in the applicable Indenture as originally executed) in
respect of any tax, assessment or governmental charge and, if so,
whether Enterprise will have the option to redeem such Debt Securities
rather than pay such Additional Amounts (and the terms of any such
option).
(18) The provisions, if any, granting special rights to the holders
of such Debt Securities upon the occurrence of such events as may be
specified.
(19) Any deletions from, modifications of or additions to the
Events of Default or covenants of Enterprise with respect to such Debt
Securities (which Events of Default or covenants are consistent with the
Events of Default or covenants set forth in the general provisions of
the applicable Indenture).
(20) Whether such Debt Securities will be convertible into or
exchangeable for any other securities and, if so, the terms and
conditions upon which such Debt Securities will be so convertible or
exchangeable.
(21) Any other terms of such Debt Securities.
4
If applicable, the Prospectus Supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant to the Debt Securities being offered.
For purposes of this Prospectus, any reference to the payment of principal
of (or premium, if any) or interest, if any, on such Debt Securities will be
deemed to include mention of the payment of any Additional Amounts required by
the terms of such Debt Securities.
Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will be
discussed in the applicable Prospectus Supplement.
Each Indenture provides that the Debt Securities which are the subject of
this Prospectus and additional unsecured debt securities of Enterprise,
unlimited as to aggregate principal amount, may be issued in one or more series
thereunder, in each case as authorized from time to time by or pursuant to
authority granted by the Board of Directors of Enterprise. (Section 301 of each
Indenture) Debt Securities so issued under an Indenture are herein collectively
referred to, when a single Trustee is acting for all debt securities issued
under such Indenture, as the "Indenture Securities". Each Indenture also
provides that there may be more than one Trustee thereunder, each with respect
to one or more different series of Indenture Securities. See also "Resignation
of Trustee" herein. At a time when two or more Trustees are acting under either
Indenture, each with respect to only certain series, the term "Indenture
Securities", as used herein, will mean the one or more series with respect to
which each respective Trustee is acting. In the event that there is more than
one Trustee under either Indenture, the powers and trust obligations of each
Trustee as described herein will extend only to the one or more series of
Indenture Securities for which it is Trustee. If two or more Trustees are acting
under either Indenture, then the Indenture Securities for which each Trustee is
acting would in effect be treated as if issued under separate indentures.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of Enterprise to incur indebtedness or that would afford
holders of Debt Securities protection in the event of a highly leveraged or
similar transaction involving Enterprise. Reference is made to the Prospectus
Supplement for information with respect to any deletions from, modifications of
or additions to the Events of Default or covenants of Enterprise that are
described below, including any addition of a covenant or other provision
providing event risk or similar protection.
Enterprise has the ability to issue Indenture Securities with terms
different from those of Indenture Securities previously issued and, without the
consent of the holders thereof, to reopen a previous issue of a series of
Indenture Securities and issue additional Indenture Securities of such series
(unless such reopening was restricted when such series was created).
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable solely as Registered
Securities, solely as Bearer Securities or as both Registered Securities and
Bearer Securities. The Indentures also provide that Debt Securities of a series
may be issuable in global form. See " -- Book-Entry Debt Securities". Unless
otherwise provided in the Prospectus Supplement, Debt Securities denominated in
U.S. dollars (other than Global Securities, which may be of any denomination)
are issuable in denominations of $1,000 or any integral multiples of $1,000 (in
the case of Registered Securities) and in the denomination of $5,000 (in the
case of Bearer Securities). Unless otherwise indicated in the Prospectus
Supplement, Bearer Securities will have interest coupons attached. (Section 201
of each Indenture)
Registered Securities will be exchangeable for other Registered Securities
of the same series. If (but only if) provided in the Prospectus Supplement,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons which are in default) of any series may be similarly exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. If so provided, Bearer
Securities surrendered in exchange for Registered Securities between a Regular
Record Date or a Special Record Date and the relevant date for payment of
interest will be surrendered without the coupon relating to such date for
payment of interest, and interest will not be payable in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the terms
of the applicable Indenture. Unless otherwise specified in the Prospectus
Supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 305 of each Indenture)
Registered Securities of a series may be presented for registration of
transfer and Debt Securities of a series may be presented for exchange (i) at
each office or agency required to be maintained by Enterprise for payment of
such series as described in "Payment and Paying Agents", and (ii) at each other
office or agency that Enterprise may designate from time to
5
time for such purposes. No service charge will be made for any transfer or
exchange of Debt Securities, but Enterprise may require payment of any tax or
other governmental charge payable in connection therewith. (Section 305 of each
Indenture)
Enterprise will not be required to (i) issue, register the transfer of or
exchange Debt Securities during a period beginning at the opening of business 15
days before any selection of Debt Securities of that series to be redeemed and
ending at the close of business on (A) if Debt Securities of the series are
issuable only as Registered Securities, the day of mailing of the relevant
notice of redemption and (B) if Debt Securities of the series are issuable as
Bearer Securities, the day of the first publication of the relevant notice of
redemption, or, if Debt Securities of the series are also issuable as Registered
Securities and there is no publication, the day of mailing of the relevant
notice of redemption; (ii) register the transfer of or exchange any Registered
Security, or portion thereof, called for redemption, except the unredeemed
portion of any Registered Security being redeemed in part; (iii) exchange any
Bearer Security called for redemption, except to exchange such Bearer Security
for a Registered Security of that series and like tenor that is simultaneously
surrendered for redemption; or (iv) issue, register the transfer of or exchange
any Debt Security which has been surrendered for repayment at the option of the
holder, except the portion, if any, of such Debt Security not to be so repaid.
(Section 305 of each Indenture)
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the Prospectus Supplement, premium, if any,
and interest, if any, and Additional Amounts, if any, on Registered Securities
will be payable at any office or agency to be maintained by Enterprise in
Newark, New Jersey and New York, New York, except that at the option of
Enterprise interest (including Additional Amounts, if any) may be paid (i) by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register.
(Sections 301, 1001 and 1002 of each Indenture) Unless otherwise provided in the
Prospectus Supplement, payment of any installment of interest on Registered
Securities will be made to the Person in whose name such Registered Security is
registered at the close of business on the Regular Record Date for such
interest. (Section 307 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the Prospectus Supplement, Enterprise will be required to maintain an office
or agency (i) outside the United States at which, subject to any applicable laws
and regulations, the principal of (and premium, if any) and interest, if any, on
such series will be payable and (ii) in The City of New York for payments with
respect to any Registered Securities of such series (and for payments with
respect to Bearer Securities of such series in the limited circumstances
described below, but not otherwise); provided that, if required in connection
with any listing of such Debt Securities on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, Enterprise will maintain
an office or agency for such Debt Securities in any city located outside the
United States required by such stock exchange. (Section 1002 of each Indenture)
The initial locations of such offices and agencies will be specified in the
Prospectus Supplement. Unless otherwise provided in the Prospectus Supplement,
principal of (and premium, if any) and interest, if any, on Bearer Securities
may be paid by wire transfer to an account maintained by the Person entitled
thereto with a bank located outside the United States. (Sections 307 and 1002 of
each Indenture) Unless otherwise provided in the Prospectus Supplement, payment
of installments of interest on any Bearer Securities on or before Maturity will
be made only against surrender of coupons for such interest installments as they
severally mature. (Section 1001 of each Indenture) Unless otherwise provided in
the Prospectus Supplement, no payment with respect to any Bearer Security will
be made at any office or agency of Enterprise in the United States or by check
mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States. Notwithstanding the
foregoing, payments of principal of (and premium, if any) and interest, if any,
on Bearer Securities payable in U.S. dollars will be made at the office of
Enterprise's Paying Agent in The City of New York if (but only if) payment of
the full amount thereof in U.S. dollars at all offices or agencies outside the
United States is illegal or effectively precluded by exchange controls or other
similar restrictions. (Section 1002 of each Indenture)
Enterprise may from time to time designate additional offices or agencies,
approve a change in the location of any office or agency and, except as provided
above, rescind the designation of any office or agency.
EVENTS OF DEFAULT
The following will constitute Events of Default under each Indenture, or of
any coupon upon or any Additional Amounts payable in respect of any Debt
Security of that series or of any coupon appertaining thereto, (i) default in
the payment of the principal of (or premium, if any, on) any Debt Security of
that series when the same becomes due and payable, whether at its maturity,
earlier redemption or repayment or otherwise and continuance of such default for
a period of
6
30 days; (ii) default in the deposit of any sinking fund payment when due by the
terms of any Debt Security of that series; (iii) default in the performance, or
breach, of any covenant or agreement of Enterprise in the applicable Indenture
with respect to any Debt Security of that series, continued for 60 days after
written notice to Enterprise; (iv) certain events in bankruptcy, insolvency or
reorganization affecting Enterprise; and (v) any other Event of Default provided
with respect to Debt Securities of that series. (Section 501 of each Indenture)
Enterprise is required to file with the applicable Trustee, annually, an
officer's certificate as to Enterprise's compliance with all conditions and
covenants under the applicable Indenture. (Section 1005 of each Indenture) Each
Indenture provides that the applicable Trustee may withhold notice to the
holders of Debt Securities of a series of any default (except payment defaults
on such Debt Securities of that series) if it considers it in the interest of
the holders of Debt Securities of such series to do so. (Section 601 of each
Indenture)
If an Event of Default with respect to Debt Securities of a series has
occurred and is continuing, the applicable Trustee or the holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal amount (or, if the Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series due and payable immediately. (Section 502 of each
Indenture)
Subject to the provisions of the applicable Indenture relating to the
duties of the Trustee thereunder, in case an Event of Default with respect to
Debt Securities of a series has occurred and is continuing, such Trustee is
under no obligation to exercise any of its rights or powers under such Indenture
at the request, order or direction of the holders of Debt Securities of that
series, unless such holders have offered such Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in compliance
with such request. (Section 507 of each Indenture and TIA Section 315) Subject
to such provisions for the indemnification of the applicable Trustee, the
holders of a majority in principal amount of the Outstanding Debt Securities of
a series will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to such Trustee, or exercising any trust
or power conferred on such Trustee with respect to the Debt Securities of that
series. (Section 512 of each Indenture)
The holders of a majority in principal amount of the Outstanding Debt
Securities of a series may, on behalf of the holders of all Debt Securities of
such series and any related coupons, waive any past default under the applicable
Indenture with respect to such series and its consequences, except a default (i)
in the payment of the principal of (or premium, if any) or interest, if any, on
or Additional Amounts payable in respect of any Debt Security of such series or
any related coupons or (ii) in respect of a covenant or provision that cannot be
modified or amended without the consent of the holder of each Outstanding Debt
Security of such series affected thereby. (Section 513 of each Indenture)
MERGER OR CONSOLIDATION
Each Indenture provides that Enterprise may not consolidate with or merge
with or into any other corporation or convey or transfer its properties and
assets as an entirety or substantially as an entirety to any Person, unless
either Enterprise is the continuing corporation or such corporation or Person
assumes by supplemental indenture all the obligations of Enterprise under such
Indenture and the Indenture Securities issued thereunder and immediately after
the transaction no default shall exist. In addition, under the Indentures, no
such consolidation, merger or transfer may be made if as a result thereof any
property or assets of Enterprise would become subject to any mortgage, lien or
other encumbrance unless such Indenture Securities are secured equally and
ratably with or prior to the debt secured by such mortgage, lien or other
encumbrance. (Section 801 of each Indenture)
MODIFICATION OR WAIVER
Modification and amendment of an Indenture may be made by Enterprise and
the Trustee thereunder with the consent of the holders of a majority in
principal amount of all Outstanding Indenture Securities issued thereunder that
are affected by such modification or amendment; provided that no such
modification or amendment may, without the consent of the holder of each
Outstanding Indenture Security affected thereby, among other things: (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any such Indenture Security; (ii)
reduce the principal amount of, or the rate or amount of interest in respect of,
or any premium payable upon the redemption of, any such Indenture Security;
(iii) change any obligation of Enterprise to pay Additional Amounts in respect
of any such Indenture Security; (iv) reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof or provable
in bankruptcy; (v) adversely affect any right of repayment at the option of the
holder of any such Indenture Security; (vi) change the place or Currency of
payment of
7
principal of, or any premium or interest on, any such Indenture Security; (vii)
impair the right to institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof or on or after any Redemption Date or
Repayment Date therefor; (viii) adversely affect any right to convert or
exchange any Indenture Security; (ix) reduce the percentage in principal amount
of such Outstanding Indenture Securities, the consent of whose holders is
required to amend or waive compliance with certain provisions of such Indenture
or to waive certain defaults thereunder; (x) reduce the requirements for voting
or quorum described below; or (xi) modify any of the foregoing requirements or
any of the provisions relating to waiving past defaults or compliance with
certain restrictive provisions, except to increase the percentage of holders
required to effect any such waiver or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the holder
of each Indenture Security affected thereby. (Section 902 of each Indenture)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holder of each Outstanding Subordinated
Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Securities in a manner adverse
to the holders thereof and no such modification or amendment may adversely
affect the rights of any holder of Senior Indebtedness under Article Sixteen of
the Subordinated Indenture (described under the caption " -- Subordinated
Indenture Provisions -- Subordination") without the consent of such holder of
Senior Indebtedness. (Sections 902 and 907 of the Subordinated Indenture)
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by Enterprise with
certain covenants in the applicable Indenture. (Section 1006 of each Senior
Indenture)
Modification and amendment of an Indenture may be made by Enterprise and
the applicable Trustee thereunder, without the consent of any holder, for any of
the following purposes: (i) to evidence the succession of another Person to
Enterprise as obligor under such Indenture; (ii) to add to the covenants of
Enterprise for the benefit of the holders of all or any series of Indenture
Securities issued under such Indenture and any related coupons or to surrender
any right or power conferred upon Enterprise by such Indenture; (iii) to add
Events of Default for the benefit of the holders of all or any series of
Indenture Securities; (iv) to add to or change any provisions of such Indenture
to facilitate the issuance of, or to liberalize the terms of, Bearer Securities,
or to permit or facilitate the issuance of Indenture Securities in
uncertificated form, provided that any such actions do not adversely affect the
holders of such Indenture Securities or any related coupons; (v) to change or
eliminate any provisions of such Indenture, provided that any such change or
elimination will become effective only when there are no such Indenture
Securities Outstanding of any series created prior thereto which are entitled to
the benefit of such provisions; (vi) to secure the Indenture Securities under
the applicable Indenture pursuant to the requirements of Section 801 of such
Indenture, or otherwise; (vii) to establish the form or terms of such Indenture
Securities of any series and any related coupons; (viii) to provide for the
acceptance of appointment by a successor Trustee or facilitate the
administration of the trusts under such Indenture by more than one Trustee; (ix)
to cure any ambiguity, defect or inconsistency in such Indenture, provided such
action does not adversely affect the interests of holders of Indenture
Securities of a series issued thereunder or any related coupons in any material
respect; or (x) to supplement any of the provisions of such Indenture to the
extent necessary to permit or facilitate defeasance and discharge of any series
of Indenture Securities thereunder, provided that such action shall not
adversely affect the interests of the holders of any such Indenture Securities
and any related coupons in any material respect. (Section 901 of each Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Indenture Securities have given any request, demand, authorization,
direction, notice, consent or waiver under the applicable Indenture or whether a
quorum is present at a meeting of holders of Indenture Securities thereunder,
(i) the principal amount of an Original Issue Discount Security that will be
deemed to be outstanding will be the amount of the principal thereof that would
be due and payable as of the date of such determination upon acceleration of the
Maturity thereof, (ii) the principal amount of an Indexed Security that may be
counted in making such determination or calculation and that will be deemed
outstanding for such purpose will be equal to the principal face amount of such
Indexed Security at original issuance, unless otherwise provided with respect to
such Indexed Security pursuant to Section 301 of such Indenture and (iii)
Indenture Securities owned by Enterprise or any other obligor upon the Indenture
Securities or any Affiliate of Enterprise or of such other obligor shall be
disregarded. (Section 101 of each Indenture)
Each Indenture contains provisions for convening meetings of the holders of
Indenture Securities of a series if Indenture Securities of that series are
issuable as Bearer Securities. (Section 1501 of each Indenture) A meeting may be
called at any time by the applicable Trustee, and also, upon request, by
Enterprise or the holders of at least 10% in principal amount of the Outstanding
Indenture Securities of that series, in any such case upon notice given as
provided in the applicable Indenture. (Section 1502 of each Indenture) Except
for any consent that must be given by the holder of each Indenture Security
affected thereby, as described above, any resolution presented at a meeting (or
an adjourned meeting duly reconvened) at which a
8
quorum is present may be adopted by the affirmative vote of the holders of a
majority in principal amount of the Outstanding Indenture Securities of that
series; provided, however, that any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action that
may be made, given or taken by the holders of a specified percentage which is
less than a majority in principal amount of the Outstanding Indenture Securities
of a series may be adopted at a meeting (or an adjourned meeting duly
reconvened) at which a quorum is present by the affirmative vote of the holders
of such specified percentage in principal amount of the Outstanding Indenture
Securities of that series. Any resolution passed or decision taken at any
meeting of holders of Indenture Securities of a series duly held in accordance
with the applicable Indenture will be binding on all holders of Indenture
Securities of that series and any related coupons. The quorum at any meeting
called to adopt a resolution will be persons holding or representing a majority
in principal amount of the Outstanding Indenture Securities of a series;
provided, however, that, if any action is to be taken at such meeting with
respect to a consent or waiver which may be given by the holders of not less
than a specified percentage in principal amount of the Outstanding Indenture
Securities of a series, the persons holding or representing such specified
percentage in principal amount of the Outstanding Indenture Securities of that
series will constitute a quorum. (Section 1504 of each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture Securities affected thereby or of the holders of such
series and one or more additional series: (i) there shall be no minimum quorum
requirement for such meeting and (ii) the principal amount of the Outstanding
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action will be taken
into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken
under such Indenture. (Section 1504 of each Indenture)
SATISFACTION AND DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
Enterprise may discharge certain obligations to holders of Debt Securities
of a series that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or are by their terms
due and payable within one year (or scheduled for redemption within one year )
by irrevocably depositing with the applicable Trustee, in trust, funds in an
amount sufficient to pay the entire indebtedness on such Debt Securities for
principal (and premium, if any) and interest, if any, and any Additional Amounts
with respect thereto, to the date of such deposit (if such Debt Securities have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be. (Section 401 of each Indenture)
Each Indenture provides that, if the provisions of Article Fourteen are
made applicable to the Debt Securities of or within any series and any related
coupons pursuant to Section 301 thereunder, Enterprise may elect either (a) to
defease and be discharged from any and all obligations with respect to such Debt
Securities and any related coupons (except for the obligations to pay Additional
Amounts, if any, upon the occurrence of certain events of tax, assessment or
governmental charge with respect to payments on such Debt Securities and the
obligations to register the transfer or exchange of such Debt Securities and any
related coupons, to replace temporary or mutilated, destroyed, lost or stolen
Debt Securities and any related coupons, to maintain an office or agency in
respect of such Debt Securities and any related coupons, and to hold moneys for
payment in trust) ("defeasance") (Section 1402 of each Indenture) or (b) to be
released from its obligations under any covenant specified pursuant to Section
301 with respect to such Debt Securities and any related coupons, and any
omission to comply with such obligations shall not constitute a default or an
Event of Default with respect to such Debt Securities and any related coupons
("covenant defeasance") (Section 1403), in either case upon the irrevocable
deposit by Enterprise with the applicable Trustee (or other qualifying trustee),
in trust, of (i) an amount in U.S. dollars, (ii) Government Obligations (as
defined below) applicable to such Debt Securities and coupons that through the
payment of principal and interest in accordance with their terms will provide
money in an amount, or (iii) a combination thereof in an amount, sufficient to
pay the principal of (and premium, if any) and interest, if any, on such Debt
Securities and any related coupons, and any mandatory sinking fund or analogous
payments thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, Enterprise has
delivered to the applicable Trustee an Opinion of Counsel (as specified in the
applicable Indenture) to the effect that the holders of such Debt Securities and
any related coupons will not recognize income, gain or loss for United States
federal income tax purposes as a result of such defeasance or covenant
defeasance and will be subject to United States federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if
such defeasance or covenant defeasance had not occurred, and such Opinion of
Counsel, in the case of defeasance under clause (a) above, must refer to and be
based upon a ruling of the Internal Revenue
9
Service or a change in applicable United States federal income tax law occurring
after the date of the Indenture. (Section 1404 of each Indenture)
"Government Obligations" means securities which are (i) direct obligations
of the United States or (ii) obligations of a Person controlled or supervised by
and acting as an agency or instrumentality of the United States, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States, which are not callable or redeemable at the option of the issuer
thereof. "Government Obligations" also include a depository receipt issued by a
bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of any such
Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of
such depository receipt from the amount received by the custodian in respect of
the Government Obligation or the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt. (Section 101 of
each Indenture)
In the event Enterprise effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and coupons are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in clause (4) under "Events of Default"
(Section 501 of each Indenture) with respect to Section 1006 of each Indenture
(which Section would no longer be applicable to such Debt Securities or any
related coupons) or described in clause (4) or (6) under "Events of Default"
(Section 501 of each Indenture) with respect to any other covenant to which
there has been defeasance, the amount of Government Obligations and funds on
deposit with the applicable Trustee will be sufficient to pay amounts due on
such Debt Securities and coupons at the time of their Stated Maturity but may
not be sufficient to pay amounts due on such Debt Securities and coupons at the
time of the acceleration resulting from such Event of Default. In such case,
Enterprise would remain liable to make payment of such amounts due at the time
of, acceleration. (Section 501 of each Indenture)
If the applicable Trustee or any Paying Agent is unable to apply any money
in accordance with the applicable Indenture by reason of any order or judgment
of any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then Enterprise's obligations under such Indenture
and such Debt Securities and any related coupons shall be revived and reinstated
as though no deposit had occurred pursuant to such Indenture, until such time as
such Trustee or Paying Agent is permitted to apply all such money in accordance
with such Indenture; provided, however, that if Enterprise makes any payment of
principal of (or premium, if any) or interest, if any, on any such Debt Security
or any related coupon following the reinstatement of its obligations, Enterprise
shall be subrogated to the rights of the holders of such Debt Securities and any
related coupons to receive such payment from the money held by such Trustee or
Paying Agent.
The Prospectus Supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in global
form that will be deposited with, or on behalf of, a depository identified in
the Prospectus Supplement. Global securities may be issued in either registered
or bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the Prospectus Supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued in
registered form only, without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a Global Security
will be made by Enterprise to the applicable Trustee, and then by such Trustee
to the depository.
Enterprise anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company ("DTC"), New York, New York, that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrangements with respect
to any such Global Securities. Additional or differing terms of the depository
arrangements will be described in the Prospectus Supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or holders thereof under the
10
applicable Indenture. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in certificated form; such
laws may limit the transferability of beneficial interests in a Global Security.
If (i) DTC is at any time unwilling, unable or ineligible to continue as
depository and a successor depository is not appointed by Enterprise within 90
days following notice to Enterprise; (ii) Enterprise determines, in its sole
discretion, not to have any Debt Securities represented by one or more Global
Securities, or (iii) an Event of Default under the applicable Indenture has
occurred and is continuing, then Enterprise will issue individual Debt
Securities in certificated form in exchange for the relevant Global Securities.
In any such instance, an owner of a beneficial interest in a Global Security
will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the Prospectus Supplement,
Debt Securities so issued in certificated form will be issued in denominations
of [$1,000] or any integral multiple thereof and will be issued in registered
form only, without coupons.
The following is based on information furnished by DTC:
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the name
of Cede & Co. (DTC's partnership nominee). One fully registered Debt Security
certificate is issued with respect to each $200 million of principal amount of
the Debt Securities of a series, and an additional certificate is issued with
respect to any remaining principal amount of such series.
DTC is a limited-purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code, and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Securities Exchange
Act of 1934. DTC holds securities that its participants ("Participants") deposit
with DTC. DTC also facilitates the settlement among Participants of securities
transactions, such as transfers and pledges, in deposited securities through
electronic computerized book-entry changes in Participants' accounts, thereby
eliminating the need for physical movement of securities certificates. Direct
Participants include securities brokers and dealers, banks, trust companies,
clearing corporations and certain other organizations ("Direct Participants").
DTC is owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National Association
of Securities Dealers, Inc. Access to the DTC system is also available to others
such as securities brokers and dealers, banks and trust companies that clear
through or maintain a custodial relationship with a Direct Participant, either
directly or indirectly ("Indirect Participants"). The rules applicable to DTC
and its Participants are on file with the SEC.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt Securities
on DTC's records. The ownership interest of each actual purchaser of each Debt
Security ("Beneficial Owner") is in turn recorded on the Direct and Indirect
Participants' records. A Beneficial Owner does not receive written confirmation
from DTC of its purchase, but such Beneficial Owner is expected to receive a
written confirmation providing details of the transaction, as well as periodic
statements of its holdings, from the Direct or Indirect Participant through
which such Beneficial Owner entered into the transaction. Transfers of ownership
interests in Debt Securities are accomplished by entries made on the books of
Participants acting on behalf of Beneficial Owners. Beneficial Owners do not
receive certificates representing their ownership interests in Debt Securities,
except in the event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, the Debt Securities are registered in
the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects no
change in beneficial ownership. DTC has no knowledge of the actual Beneficial
Owners of the Debt Securities; DTC records reflect only the identity of the
Direct Participants to whose accounts Debt Securities are credited, which may or
may not be the Beneficial Owners. The Participants remain responsible for
keeping account of their holdings on behalf of their customers.
Delivery of notices and other communications by DTC to Direct Participants,
by Direct Participants to Indirect Participants, and by Direct Participants and
Indirect Participants to Beneficial Owners are governed by arrangements among
them, subject to any statutory or regulatory requirements as may be in effect
from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the Debt
Securities within an issue are being redeemed, DTC's practice is to determine by
lot the amount of interest of each Direct Participant in such issue to be
redeemed.
Neither DTC nor Cede & Co. consents or votes with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus Proxy")
to the issuer as soon as possible after the record date. The Omnibus Proxy
assigns Cede
11
& Co.'s consenting or voting rights to those Direct Participants to whose
accounts the Debt Securities are credited on the record date (identified on a
list attached to the Omnibus Proxy).
Payments of principal of (and premium, if any) and interest on the Debt
Securities will be made to DTC. DTC's practice is to credit Direct Participants'
accounts on the payable date in accordance with their respective holdings as
shown on DTC's records unless DTC has reason to believe that it will not receive
payment on the payable date. Payments by Participants to Beneficial Owners will
be governed by standing instructions and customary practices, as is 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 Participant and not of
DTC, the Paying Agent or Enterprise, subject to any statutory or regulatory
requirements as may be in effect from time to time. Payment of principal (and
premium, if any) and interest to DTC will be the responsibility of Enterprise or
the Paying Agent, disbursement of such payments to Direct Participants will be
the responsibility of DTC, and disbursement of such payments to the Beneficial
Owners will be the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
Enterprise or the applicable Paying Agent. Under such circumstances, in the
event that a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
Enterprise may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that Enterprise believes to be
reliable, but Enterprise takes no responsibility for the accuracy thereof.
Unless stated otherwise in the Prospectus Supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of Enterprise, any underwriter or agent, the applicable Trustee or any
applicable Paying Agent will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial interests
in a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
RESIGNATION OF TRUSTEE
The Trustee may resign or be removed with respect to one or more series of
Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608 of each Indenture) In the event that two or
more persons are acting as Trustee with respect to different series of Indenture
Securities under one of the Indentures, each such Trustee shall be a Trustee of
a trust thereunder separate and apart from the trust administered by any other
such Trustee (Section 609 of each Indenture), and any action described herein to
be taken by the "Trustee" may then be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Indenture Securities for
which it is Trustee.
SUBORDINATED INDENTURE PROVISIONS
SUBORDINATION
Upon any distribution of assets of Enterprise upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of (and premium,
if any) and interest, if any, on Subordinated Securities is to be subordinated
to the extent provided in the Subordinated Indenture in right of payment to the
prior payment in full of all Senior Indebtedness (Sections 1601 and 1602 of the
Subordinated Indenture), but the obligation of Enterprise to make payment of the
principal (and premium, if any) and interest, if any, on the Subordinated
Securities will not otherwise be affected. (Section 1604 of the Subordinated
Indenture) In addition, no payment on account of principal (or premium, if any),
sinking funds or interest, if any, may be made on the Subordinated Securities at
any time unless full payment of all amounts due in respect of the principal (and
premium, if any), sinking fund and interest on Senior Indebtedness has been made
or duly provided for in money or money's worth. (Section 1603 of the
Subordinated Indenture) In the event that, notwithstanding the foregoing, any
such payment by Enterprise is received by the Subordinated Trustee or the
holders of any of the Subordinated Securities before all Senior Indebtedness is
paid in full, such payment or distribution shall be paid over to the holders of
such Senior Indebtedness or on their behalf for application to the payment of
all such Senior Indebtedness remaining unpaid until all such Senior Indebtedness
has been paid in full, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness. Subject to the payment
in full of all Senior Indebtedness upon such distribution of Enterprise, the
holders of the Subordinated Securities will be subrogated to the rights of the
holders of the Senior Indebtedness to the extent of payments made to the holders
of such Senior Indebtedness out of the distributive share of the Subordinated
Securities.
12
(Section 1602 of the Subordinated Indenture) By reason of such subordination, in
the event of a distribution of assets upon insolvency, certain general creditors
of Enterprise may recover more, ratably, than holders of the Subordinated
Securities. The Subordinated Indenture provides that the subordination
provisions thereof will not apply to money and securities held in trust pursuant
to the defeasance provisions of the Subordinated Indenture. (Section 1402 of the
Subordinated Indenture). Senior Indebtedness is defined in the Subordinated
Indenture as (a) the principal of and premium, if any, and unpaid interest on
(i) indebtedness of Enterprise (including indebtedness of others guaranteed by
Enterprise), whether outstanding on the date of the Subordinated Indenture or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the Indenture Securities issued under the Subordinated Indenture and
securities issued under the Indenture dated as of January 1, 1998, including the
7.44% Deferrable Interest Subordinated Debentures, Series A of Enterprise),
unless in the instrument creating or evidencing the same or pursuant to which
the same is outstanding it is provided that such indebtedness is not senior or
prior in right of payment to the Subordinated Securities, and (ii) renewals,
extensions, modifications and refundings of any such indebtedness. (Section 101
of the Subordinated Indenture)
The Debt Securities are senior and prior in right of payment to the 7.44%
Deferrable Interest Subordinated Debentures, Series A of the Enterprise and any
guarantees issued in connection therewith and will be senior and prior in right
of payment to any debt securities or guarantees which may be issued in
connection with issuances of trust preferred securities by Enterprise Capital
Trust II or Enterprise Capital Trust III.
If this prospectus is being delivered in connection with a series of
Subordinated Securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
THE TRUSTEE UNDER THE INDENTURES
Enterprise maintains ordinary banking relationships with First Union
National Bank, including credit facilities and lines of credit. First Union
National Bank also serves as trustee under other indentures under which
Enterprise or its subsidiaries is the obligor.
PLAN OF DISTRIBUTION
Enterprise may sell the Offered Securities to or through underwriters,
dealers, or agents. or directly to one or more other purchasers.
The Prospectus Supplement sets forth the terms of the offering of the
particular series or issue of Offered Securities to which such Prospectus
Supplement relates, including, as applicable, (i) the name or names of any
underwriters or agents with whom Enterprise has entered into arrangements with
respect to the sale of such Offered Securities, (ii) the initial public offering
or purchase price of such Offered Securities, (iii) any underwriting discounts,
commissions and other items constituting underwriters' compensation from
Enterprise and any other discounts, concessions or commissions allowed or
reallowed or paid by any underwriters to other dealers, (iv) any commissions
paid to any agents, (v) the net proceeds to Enterprise and (vi) the securities
exchanges, if any, on which such of Offered Securities will be listed.
Unless otherwise set forth in the Prospectus Supplement relating to a
particular series or issue of Offered Securities, the obligations of the
underwriters to purchase such Offered Securities will be subject to certain
conditions precedent and each of the underwriters with respect to such Offered
Securities will be obligated to purchase all of the Offered Securities of such
series or issue allocated to it if any such Offered Securities are purchased.
Any initial public offering price and any discounts or concessions allowed or
reallowed or paid to dealers may be changed from time to time.
The Offered Securities may be offered and sold by Enterprise directly or
through agents designated by Enterprise from time to time. Any agent involved in
the offer or sale of the Offered Securities in respect of which this Prospectus
is delivered will be named in, and any commissions payable by the Company to
such agent will be set forth in, the applicable Prospectus Supplement. Unless
otherwise indicated in the applicable Prospectus Supplement, each such agent
will be acting on a best efforts basis for the period of its appointment.
Any underwriters, dealers or agents participating in the distribution of
the Offered Securities may be deemed to be underwriters, and any discounts or
commissions received by them on the sale or resale of Offered Securities may be
deemed to be underwriting discounts and commissions, under the Securities Act of
1933, as amended (the "Securities Act"). Underwriters, dealers and agents may be
entitled, under agreements entered into with Enterprise, to indemnification by
Enterprise against certain civil liabilities, including liabilities under the
Securities Act.
13
LEGAL OPINIONS
The validity of the Securities will be passed upon for Enterprise by James
T. Foran, Esquire, Associate General Counsel or R. Edwin Selover, Esquire, Vice
President and General Counsel, and for any underwriters, dealers or agents by
Brown & Wood LLP, One World Trade Center, New York, New York 10048. Messrs.
Selover and Foran are also employees of PSE&G.
EXPERTS
The consolidated financial statements and the related financial statement
schedules of Enterprise incorporated in this Prospectus by reference from
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
14
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THESE PROSPECTUSES SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
SUBJECT TO COMPLETION, DATED , 1998
PROSPECTUS
ENTERPRISE CAPITAL TRUST II
ENTERPRISE CAPITAL TRUST III
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT THE ISSUER THEREOF HAS
AVAILABLE FUNDS AS SET FORTH HEREIN BY
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
------------------------
Enterprise Capital Trust II and Enterprise Capital Trust III, each a
statutory business trust created under the laws of the State of Delaware (each,
an "Issuer," and collectively, the "Issuers") may severally offer, from time to
time, their respective trust preferred securities (the "Preferred Securities")
representing undivided beneficial interests in the assets of such Issuer. Public
Service Enterprise Group Incorporated, a New Jersey corporation ("Enterprise"),
will be the owner of beneficial interests represented by the common securities
(the "Common Securities") of each Issuer. First Union National Bank is the
Property Trustee of each Issuer. Concurrently with the issuance by each Issuer
of its Preferred Securities, such Issuer will invest the proceeds thereof,
together with the consideration paid by Enterprise for the Common Securities of
such Issuer, in a corresponding series of Enterprise's deferrable interest
subordinated debentures (the "Debentures"). The Debentures will be subordinate
and junior in right of payment to all Senior Indebtedness (as defined herein) of
Enterprise. The Debentures will be the sole assets of each Issuer and payments
in respect of the Debentures will be the only revenues of each Issuer.
Pursuant to a guarantee agreement to be entered into by Enterprise with
respect to each series of Preferred Securities (each, a "Guarantee"), Enterprise
will agree to make payments of cash distributions with respect to the Preferred
Securities of each Issuer and payments on liquidation or redemption with respect
to such Preferred Securities but only to the extent that such Issuer holds funds
available therefor and has not made such payments. The obligations of Enterprise
under each Guarantee will be subordinate and junior in right of payment to all
general liabilities of Enterprise. As described herein, each Guarantee, together
with Enterprise's obligations under the Debentures, the Indenture relating to
such Debentures and the Amended and Restated Trust Agreement for each Issuer,
will provide for Enterprise's full, irrevocable and unconditional guarantee of
the Preferred Securities.
The Preferred Securities may be offered in amounts, at prices and on terms
to be determined at the time of offering; provided, however, that the aggregate
initial public offering price of all Preferred Securities issued pursuant to the
Registration Statement of which this Prospectus forms a part shall not exceed
$500,000,000, less the aggregate initial public offering price of any securities
of Enterprise which are sold under a separate prospectus which also constitutes
a part of the Registration Statement of which this Prospectus constitutes a
part. Certain specific terms of an Issuer's Preferred Securities will be set
forth in an accompanying Prospectus Supplement, including where applicable and
to the extent not set forth herein, the identity of such Issuer, the specific
title, the aggregate number, the distribution rate (or the method for
determining such rate) and frequency, the liquidation amount, redemption
provisions, the right, if any, of Enterprise to dissolve such Issuer and, after
satisfaction of liabilities to creditors of the Issuer, cause the corresponding
series of Debentures to be distributed to the holders of such Issuer's Preferred
Securities and Common Securities, the period during which interest on the
corresponding series of Debentures may be deferred, the initial public offering
price, and any other special terms, as well as any planned listing on a
securities exchange, of such Preferred Securities.
The Preferred Securities may be sold in a public offering to or through
underwriters or dealers designated from time to time. See "Plan of
Distribution." The names of any such underwriters or dealers involved in the
sale of the Preferred Securities of a particular Issuer, the number of Preferred
Securities to be purchased by any such underwriters or dealers and any
applicable commissions or discounts will be set forth in the accompanying
Prospectus Supplement. The net proceeds to each Issuer will also be set forth in
the accompanying Prospectus Supplement.
The accompanying Prospectus Supplement will contain information concerning
material federal income tax considerations applicable to the Preferred
Securities offered thereby.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
The date of this Prospectus is , 1998.
STATEMENT OF AVAILABLE INFORMATION
Public Service Enterprise Group Incorporated, a New Jersey corporation, is
subject to the informational requirements of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and, in accordance therewith, files
reports and other information with the Securities and Exchange Commission
("SEC"). Such reports and other information can be inspected and copied at the
public reference facilities maintained by the SEC at 450 Fifth Street, N.W.,
Washington, D.C. and at its regional offices at 500 West Madison Street,
Chicago, Illinois and 7 World Trade Center, New York, New York. Copies of such
reports and other information may also be obtained from the Public Reference
Section of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549-1004 at
prescribed rates. Such reports and other information can also be inspected at
the New York Stock Exchange, Inc. (the "New York Stock Exchange") where certain
of Enterprise's securities are listed. In addition, the SEC maintains a Web site
that contains reports, proxy and other information regarding registrants that
file electronically with the SEC. The address of such Web site is
http://www.sec.gov.
No separate financial statements of Enterprise Capital Trust II or
Enterprise Capital Trust III, each a statutory business trust created under the
laws of the State of Delaware (each, an "Issuer," and collectively, the
"Issuers"), have been included herein. Enterprise and the Issuers do not
consider that such financial statements would be material to holders of any
Issuer's trust preferred securities (the "Preferred Securities") because each
Issuer is a newly formed special purpose entity, has no operating history or
independent operations and is not engaged in and does not propose to engage in
any activity other than holding as trust assets the corresponding series of
deferrable interest subordinated debentures (the "Debentures") of Enterprise and
issuing Preferred Securities and common securities (the "Common Securities," and
together with the Preferred Securities, the "Trust Securities") representing
undivided beneficial interests in such Debentures. See "The Issuers,"
"Description of the Preferred Securities" and "Description of the Debentures."
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by Enterprise with the SEC
pursuant to the Exchange Act, are incorporated herein by reference:
1. Enterprises's Annual Report on Form 10-K for the year ended
December 31, 1997.
2. Enterprise's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998.
Each document filed subsequent to the date of this Prospectus pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering of the related Preferred Securities shall be deemed
to be incorporated by reference in this Prospectus and the accompanying
Prospectus Supplement and shall be a part hereof and thereof from the date of
filing of such document. Any statement contained herein or therein or in a
document all or a portion of which is incorporated or deemed to be incorporated
by reference herein and therein shall be deemed to be modified or superseded for
purposes of this Prospectus and the accompanying Prospectus Supplement to the
extent that a statement contained herein or therein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein
and therein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus or the accompanying Prospectus
Supplement.
Enterprise undertakes to provide without charge to each person, including
any beneficial owner, to whom this Prospectus and the accompanying Prospectus
Supplement are delivered, upon written or oral request of such person, a copy of
any or all documents described above, other than exhibits to such documents not
specifically incorporated by reference therein. Such requests should be directed
to the Director-Investor Relations, Public Service Electric and Gas Company, 80
Park Plaza, T6B, P.O. Box 570, Newark, New Jersey 07101, telephone (973)
430-6503.
THE ISSUERS
Each of Enterprise Capital Trust II and Enterprise Capital Trust III is a
statutory business trust created under Delaware law pursuant to (i) a trust
agreement executed by Enterprise, as sponsor for each Issuer, and the Issuer
Trustees (as defined below) and (ii) the filing of a certificate of trust with
the Delaware Secretary of State. Each trust agreement will be amended and
restated in its entirety (each, as so amended and restated, a "Trust Agreement")
substantially in the form filed as an exhibit to the Registration Statement of
which this Prospectus forms a part. Each Trust Agreement will be qualified as an
indenture under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
Each Issuer exists for the exclusive purposes of issuing and selling its
Trust Securities and using the proceeds from the sale of its Trust Securities to
acquire a corresponding series of Debentures, maintaining the status of the
Issuer as a grantor trust for federal income tax purposes and engaging in those
activities necessary, convenient or incidental to the foregoing. All
2
of the Common Securities of each Issuer will be owned by Enterprise. The Common
Securities of an Issuer will rank pari passu, and payments will be made thereon
pro rata, with the Preferred Securities of that Issuer, except that upon the
occurrence and continuance of an event of default with respect to the
corresponding series of Debentures (a "Debenture Event of Default") under the
Indenture dated as of January 1, 1998 (as amended and supplemented from time to
time, the "Indenture") between Enterprise and First Union National Bank, as
trustee (the "Debenture Trustee"), the rights of the holders of such Common
Securities to payment of cash distributions ("Distributions") and payments upon
redemption and liquidation will be subordinated to the rights of the holders of
such Preferred Securities. The Indenture will be qualified as an indenture under
the Trust Indenture Act.
Each Issuer's business and affairs are conducted by three trustees, each
appointed by Enterprise as holder of the Common Securities: (i) First Union
National Bank (the "Property Trustee"); (ii) an affiliate of the Property
Trustee that has its principal place of business in the State of Delaware (the
"Delaware Trustee"); and (iii) one individual trustee who is an employee or
officer of or affiliated with Enterprise (the "Administrative Trustee," and
collectively with the Property Trustee and the Delaware Trustee, the "Issuer
Trustees"). The holder of the Common Securities, or the holders of at least a
majority in aggregate liquidation amount of an Issuer's Preferred Securities if
an event of default under the Trust Agreement (a "Trust Agreement Event of
Default") has occurred and is continuing, will be entitled to remove and replace
the Property Trustee and the Delaware Trustee. In no event will the holders of
the Preferred Securities have the right to vote to appoint, remove or replace
the Administrative Trustee, which voting rights are vested exclusively in the
holder of the Common Securities. The duties and obligations of each of the
Issuer Trustees are governed by the applicable Trust Agreement.
Pursuant to the Trust Agreement of each Issuer, Enterprise will pay all
fees and expenses related to that Issuer and the offering of its Preferred
Securities and will pay, directly or indirectly, all ongoing costs, expenses and
liabilities of that Issuer except such Issuer's obligations under its Preferred
Securities.
The principal place of business of each Issuer is 80 Park Plaza, Newark,
New Jersey 07101, and its telephone number is (973) 430-7000.
PUBLIC SERVICE ENTERPRISE GROUP INCORPORATED
Enterprise is a public utility holding company that neither owns nor
operates any physical properties. Enterprise has two direct, wholly owned
subsidiaries, Public Service Electric and Gas Company ("PSE&G") and Enterprise
Diversified Holdings Incorporated ("EDHI"). Enterprise's principal subsidiary,
PSE&G, is an operating public utility providing electric and gas service in
certain areas of the State of New Jersey. EDHI is the parent of Enterprise's
non-utility businesses: Community Energy Alternatives Incorporated, Public
Service Resources Corporation, Energis Resources Incorporated, Enterprise Group
Development Corporation, PSEG Capital Corporation and Enterprise Capital Funding
Corporation.
Enterprise's executive offices are located at 80 Park Plaza, Newark, New
Jersey 07101, and its telephone number is (973) 430-7000.
USE OF PROCEEDS
The proceeds to be received by the Issuers from the sale of the Preferred
Securities offered hereby will be used by the Issuers to purchase Debentures
from Enterprise. Unless otherwise specified in the accompanying Prospectus
Supplement, the proceeds from the sale of the Debentures will be used by
Enterprise for general corporate purposes.
DESCRIPTION OF THE PREFERRED SECURITIES
Pursuant to the terms of each Trust Agreement, the Issuers will issue the
Preferred Securities and the Common Securities. The Preferred Securities of an
Issuer will represent undivided beneficial interests in the assets of such
Issuer and the holders thereof will be entitled to a preference in certain
circumstances with respect to the payment of Distributions and amounts payable
on redemption or liquidation over the Common Securities of such Issuer, as well
as other benefits as described in the applicable Trust Agreement. Each of the
Issuers is a legally separate entity and the assets of one are not available to
satisfy the obligations of any other.
GENERAL
The Preferred Securities of each Issuer will rank pari passu, and payments
will be made thereon pro rata, with the Common Securities of that Issuer except
as described under " -- Subordination of Common Securities." The proceeds from
3
the sale of the Preferred Securities and the Common Securities will be used by
the related Issuer to purchase a corresponding series of Debentures from
Enterprise. The Debentures will be held in trust by the Property Trustee for the
benefit of the holders of the related Trust Securities. Each Guarantee Agreement
executed by Enterprise for the benefit of the holders of each Issuer's Preferred
Securities (each, a "Guarantee") will be subordinate and junior in right of
payment to all general liabilities of Enterprise. Pursuant to each Guarantee,
Enterprise will agree to make payments of Distributions and payments on
redemption or liquidation with respect to such Preferred Securities, but only to
the extent the related Issuer holds funds available therefor and has not made
such payments. See "Description of the Guarantee."
It is anticipated that the assets of each Issuer available for distribution
to the holders of its Preferred Securities will be limited to payments from
Enterprise under the corresponding series of Debentures in which such Issuer
will invest the proceeds from the issuance and sale of its Trust Securities. See
"Description of the Debentures." If Enterprise fails to make a payment on a
series of Debentures, the related Issuer will not have sufficient funds to make
related payments, including Distributions, on the corresponding series of
Preferred Securities.
DISTRIBUTIONS
Distributions on the Preferred Securities of each Issuer will be payable at
a rate specified (or at a rate whose method of determination is described) in
the accompanying Prospectus Supplement for such Preferred Securities. Unless
otherwise specified in such Prospectus Supplement, the amount of Distributions
payable for any period will be computed on the basis of a 360-day year of twelve
30-day months.
Unless otherwise specified in such Prospectus Supplement, distributions on
the Preferred Securities will be cumulative and will accumulate from the date of
original issuance and will be payable in arrears on the dates specified in the
accompanying Prospectus Supplement except as otherwise described below. Unless
otherwise specified in such Prospectus Supplement, in the event that any date on
which Distributions are otherwise payable on the Preferred Securities is not a
Business Day (as defined below), payment of such Distributions will be made on
the next succeeding day that is a Business Day (and without any interest or
other payment in respect to any such delay), except that if such Business Day is
in the next succeeding calendar year, payment of such Distributions shall be
made on the immediately preceding Business Day, in each case with the same force
and effect as if made on such date (each date on which Distributions are payable
in accordance with the foregoing is referred to herein as a "Distribution
Date"). Unless otherwise specified in such Prospectus Supplement, a "Business
Day" shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in The City of New York or the State of New Jersey are required by
law or executive order to remain closed.
Distributions on the Preferred Securities will be payable to the holders
thereof as they appear on the securities register of the related Issuer on the
relevant record date, which, as long as the Preferred Securities remain in
book-entry-only form, will be one Business Day prior to the relevant
Distribution Date. Subject to any applicable laws and regulations and the
provisions of the applicable Trust Agreement, each such payment will be made as
described under " -- Book-Entry-Only Issuance -- The Depository Trust Company."
In the event that any Preferred Securities are not in book-entry-only form, the
relevant record date for such Preferred Securities will be specified in the
applicable Prospectus Supplement.
So long as no Debenture Event of Default has occurred and is continuing
with respect to a series of Debentures, Enterprise will have the right at any
time and from time to time to defer payments of interest by extending the
interest payment period on such series of Debentures for up to the maximum
period specified in the accompanying Prospectus Supplement for such series of
Debentures (each, an "Extension Period"), provided that any such Extension
Period shall not extend beyond the maturity or any redemption date of the
Debentures of such series. As a consequence, Distributions on the corresponding
Preferred Securities would be deferred by the Issuer thereof during such
Extension Period, but the amount of Distributions to which holders of the
Preferred Securities would be entitled will continue to accumulate at the annual
rate applicable to Distributions thereon, compounded with the same frequency
with which Distributions are payable. During any Extension Period, Enterprise
may not declare or pay any dividend on, or redeem, purchase, acquire, or make a
liquidation payment with respect to, any shares of Enterprise's capital stock.
Prior to the termination of any Extension Period, Enterprise may shorten or
further extend the interest payment period on a series of Debentures, provided
that such Extension Period, together with all such previous and further
extensions thereof, may not exceed the maximum Extension Period or extend beyond
the maturity or any redemption date of such Debentures. Upon the termination of
any Extension Period and the payment of all amounts then due, Enterprise may
elect to begin a new Extension Period, subject to the above requirements. See
"Description of the Debentures -- Option to Extend Interest Payment Period."
REDEMPTION
Upon the payment of any series of Debentures at maturity or upon
redemption, the proceeds from such payment will be applied by the Property
Trustee to redeem a like amount of the corresponding Trust Securities of the
Issuer thereof at a
4
redemption price (the "Redemption Price") equal to the liquidation amount of
such Trust Securities plus all accumulated and unpaid Distributions to the
redemption date (the "Redemption Date"). The redemption terms of a particular
series of Debentures and the corresponding Trust Securities will be set forth in
the accompanying Prospectus Supplement.
If less than all the Trust Securities of the Issuer thereof are to be
redeemed on a Redemption Date, then the aggregate amount of such Trust
Securities to be redeemed shall be selected by the Property Trustee among such
Issuer's Preferred Securities and Common Securities pro rata based on the
respective aggregate liquidation amounts of such Preferred Securities and Common
Securities, subject to the provisions of " -- Subordination of Common
Securities."
REDEMPTION PROCEDURES
Notice of any redemption of Trust Securities will be given by the Property
Trustee to the holders of such Trust Securities to be redeemed not less than 30
nor more than 60 days prior to the Redemption Date. If a notice of redemption is
given with respect to any Trust Securities, then, to the extent funds are
available therefor, the Issuer thereof will irrevocably deposit with the paying
agent for such Trust Securities funds sufficient to pay the applicable
Redemption Price for the Trust Securities being redeemed on the Redemption Date
and will give such paying agent irrevocable instructions and authority to pay
the Redemption Price to the holders of such Trust Securities upon surrender
thereof. Notwithstanding the foregoing, Distributions payable on or prior to the
Redemption Date for any Trust Securities called for redemption shall be payable
to the holders of such Trust Securities on the relevant record dates for the
related Distribution Dates.
If notice of redemption shall have been given and funds irrevocably
deposited as required, then upon the date of such deposit, all rights of the
holders of such Trust Securities so called for redemption will cease, except the
right of the holders of such Trust Securities to receive the Redemption Price,
but without interest thereon, and such Trust Securities will cease to be
outstanding. In the event that any Redemption Date for Trust Securities is not a
Business Day, then the Redemption Price will be payable on the next succeeding
day that is a Business Day (and without any interest or other payment in respect
of any such delay), except that if such Business Day is in the next succeeding
calendar year, the Redemption Price will be payable on the immediately preceding
Business Day, in each case with the same force and effect as if made on such
date. In the event that payment of the Redemption Price in respect of any Trust
Securities called for redemption is improperly withheld or refused and not paid
either by the Issuer thereof or by Enterprise pursuant to the Guarantee as
described under "Description of the Guarantee," Distributions on such Trust
Securities will continue to accumulate at the then applicable rate from the
original Redemption Date to the date of payment, in which case the actual
payment date will be considered the Redemption Date for purposes of calculating
the Redemption Price.
Subject to applicable law, Enterprise or its subsidiaries may at any time
and from time to time purchase outstanding Preferred Securities by tender, in
the open market or by private agreement.
SUBORDINATION OF COMMON SECURITIES
Payment of Distributions on, and the Redemption Price of, each Issuer's
Trust Securities, as applicable, shall be made pro rata based on the respective
aggregate liquidation amounts of such Trust Securities; provided, however, that
if a Debenture Event of Default has occurred and is continuing with respect to
the corresponding series of Debentures, no payment of any Distribution on, or
Redemption Price of, any of such Issuer's Common Securities, and no other
payment on account of the liquidation of such Common Securities, shall be made
unless payment in full in cash of all accumulated and unpaid Distributions on
all of such Issuer's outstanding Preferred Securities for all Distribution
periods terminating on or prior thereto, or in the case of a redemption, the
full amount of such Redemption Price on all of such Issuer's outstanding
Preferred Securities shall have been made or provided for, and all funds
available to the Property Trustee shall first be applied to the payment in full
in cash of all Distributions on, or Redemption Price of, all of such Issuer's
outstanding Preferred Securities then due and payable.
If a Debenture Event of Default has occurred and is continuing with respect
to a series of Debentures, the holder of the related Issuer's Common Securities
will be deemed to have waived any right to act with respect to such Debenture
Event of Default until the effect of such Debenture Event of Default has been
cured, waived or otherwise eliminated with respect to the Preferred Securities.
Until any such Debenture Event of Default has been so cured, waived or otherwise
eliminated, the Property Trustee shall act solely on behalf of the holders of
the corresponding Preferred Securities and not on behalf of Enterprise, as
holder of such Common Securities, and only the holders of such Preferred
Securities will have the right to direct the Property Trustee to act on their
behalf.
5
LIQUIDATION DISTRIBUTION UPON DISSOLUTION
Pursuant to its Trust Agreement, each Issuer shall be dissolved on the
earliest to occur of: (i) the expiration of the term of such Issuer; (ii) the
bankruptcy, dissolution or liquidation of Enterprise or an acceleration of the
maturity of the corresponding series of Debentures held by such Issuer; (iii) if
provided for in the accompanying Prospectus Supplement, upon the election of
Enterprise to dissolve such Issuer and, after satisfaction of liabilities to
creditors of such Issuer, cause the distribution of the corresponding series of
Debentures to the holders of such Issuer's Trust Securities; (iv) the redemption
of all of such Issuer's Trust Securities; and (v) an order for the dissolution
of such Issuer shall have been entered by a court of competent jurisdiction. The
election of Enterprise pursuant to clause (iii) above shall be made by
Enterprise giving written notice to the Issuer Trustees not less than 30 days
prior to the date of distribution of the corresponding series of Debentures and
shall be accompanied by an opinion of counsel that such event will not be a
taxable event to the holders of the Trust Securities for federal income tax
purposes.
If a dissolution event occurs as described in clause (i), (ii) or (v) above
with respect to any Issuer, such Issuer shall be liquidated by the Issuer
Trustees as expeditiously as the Issuer Trustees determine to be possible by
distributing, after satisfaction of liabilities to creditors of such Issuer as
provided by applicable law, to the holders of its Trust Securities a like amount
of the corresponding series of Debentures, unless such distribution is
determined by the Property Trustee not to be practical, in which event such
holders will be entitled to receive out of the assets of such Issuer available
for distribution to holders, after satisfaction of liabilities to creditors of
such Issuer as provided by applicable law, an amount equal to, in the case of
holders of Trust Securities, the aggregate liquidation amount per Trust Security
specified in the accompanying Prospectus Supplement plus accumulated and unpaid
Distributions thereon to the date of payment (such amount, the "Liquidation
Distribution"). If the Liquidation Distribution with respect to an Issuer's
Preferred Securities can be paid only in part because such Issuer has
insufficient assets available to pay in full the aggregate Liquidation
Distribution, then the amounts payable by such Issuer on such Preferred
Securities shall be paid on a pro rata basis. The holders of such Issuer's
Common Securities will be entitled to receive the Liquidation Distribution upon
any such liquidation pro rata with the holders of its Preferred Securities,
except that if a Debenture Event of Default has occurred and is continuing the
Preferred Securities shall have a priority over the Common Securities with
respect to payment of such Liquidation Distribution.
TRUST AGREEMENT EVENT OF DEFAULT; NOTICE
A Debenture Event of Default shall constitute a Trust Agreement Event of
Default with respect to the Preferred Securities issued by the related Issuer
under its Trust Agreement.
Within 90 days after the occurrence of any Trust Agreement Event of Default
actually known to the Property Trustee, the Property Trustee shall transmit
notice of such Trust Agreement Event of Default to the holders of the
corresponding Trust Securities, the Administrative Trustee and Enterprise,
unless such Trust Agreement Event of Default shall have been cured or waived.
Enterprise and the Administrative Trustee are required to file annually with the
Property Trustee a certificate as to whether or not they are in compliance with
all the conditions and covenants applicable to them under each Trust Agreement.
Under each Trust Agreement, if the Property Trustee has failed to enforce
its rights under the Trust Agreement or the Indenture to the fullest extent
permitted by law and subject to the terms of the Trust Agreement and the
Indenture, any holder of the corresponding Preferred Securities may institute a
legal proceeding directly to enforce the Property Trustee's rights under the
Trust Agreement or the Indenture with respect to Debentures having a principal
amount equal to the aggregate liquidation amount of the Preferred Securities of
such holder without first instituting a legal proceeding against the Property
Trustee or any other person. To the extent that any action under the Indenture
is entitled to be taken by the holders of at least a specified percentage of the
principal amount of a series of Debentures, holders of the corresponding
Preferred Securities may take such action if such action is not taken by the
Property Trustee. Notwithstanding the foregoing, if a Trust Agreement Event of
Default attributable to Enterprise's failure to pay principal of or premium, if
any, or interest on the Debentures of any series has occurred and is continuing,
then each holder of Preferred Securities of the corresponding series may
institute a legal proceeding directly against Enterprise for enforcement of any
such payment to such holder, all as provided in the Indenture.
If a Debenture Event of Default has occurred and is continuing with respect
to a series of Debentures, the corresponding Preferred Securities shall have a
preference over the related Issuer's Common Securities with respect to the
payment of Distributions and amounts payable on redemption and liquidation as
described above. See " -- Liquidation Distribution Upon Dissolution" and " --
Subordination of Common Securities."
6
REMOVAL OF ISSUER TRUSTEES
Unless a Trust Agreement Event of Default has occurred and is continuing,
any Issuer Trustee may be removed and replaced at any time by the holder of the
Common Securities. If a Trust Agreement Event of Default has occurred and is
continuing, the Property Trustee and the Delaware Trustee may be removed and
replaced at such time only by the holders of at least a majority in aggregate
liquidation amount of the outstanding Preferred Securities. In no event will the
holders of the Preferred Securities have the right to vote to appoint, remove or
replace the Administrative Trustee, which voting rights are vested exclusively
in the holder of the Common Securities. No resignation or removal of an Issuer
Trustee and no appointment of a successor trustee shall be effective until the
acceptance of appointment by the successor trustee in accordance with the
provisions of the applicable Trust Agreement.
CO-TRUSTEES AND SEPARATE PROPERTY TRUSTEE
Unless a Trust Agreement Event of Default has occurred and is continuing,
at any time and from time to time, for the purpose of meeting the legal
requirements of the Trust Indenture Act or of any jurisdiction in which any part
of the Trust Property (as defined in each Trust Agreement) may at such time be
located, the holder of the Common Securities and the Administrative Trustee
shall have the power (i) to appoint one or more persons approved by the Property
Trustee either to act as co-trustee, jointly with the Property Trustee, of all
or any part of such Trust Property, or to act as separate trustee of any such
Trust Property, in either case with such powers as may be provided in the
instrument of appointment, and (ii) to vest in such person or persons in such
capacity any property, title, right or power deemed necessary or desirable,
subject to the provisions of the applicable Trust Agreement. If a Trust
Agreement Event of Default has occurred and is continuing, only the Property
Trustee shall have power to make such appointment.
MERGER OR CONSOLIDATION OF ISSUER TRUSTEES
Any corporation or other entity into which any Issuer Trustee may be merged
or converted or with which it may be consolidated, or any corporation or other
entity resulting from any merger, conversion or consolidation to which any
Issuer Trustee shall be a party, or any corporation or other entity succeeding
to all or substantially all the corporate trust business of any Issuer Trustee,
shall be the successor of such Issuer Trustee under the applicable Trust
Agreement, provided such corporation or other entity shall be otherwise
qualified and eligible.
MERGERS, CONSOLIDATIONS, AMALGAMATIONS OR REPLACEMENTS OF THE ISSUERS
An Issuer may not merge with or into, consolidate, amalgamate, or be
replaced by, or convey, transfer or lease its properties and assets as an
entirety or substantially as an entirety to any corporation or other entity,
except as described below or in " -- Liquidation Distribution Upon Dissolution."
An Issuer may, at the request of Enterprise, with the consent of the
Administrative Trustee and without the consent of the holders of its Preferred
Securities, merge with or into, consolidate, amalgamate, or be replaced by a
trust organized as such under the laws of any State, provided that (i) such
successor entity either (a) expressly assumes all of the obligations of such
Issuer with respect to such Preferred Securities or (b) substitutes for such
Preferred Securities other securities substantially similar to such Preferred
Securities (the "Successor Securities") so long as the Successor Securities rank
the same as such Preferred Securities rank with respect to the payment of
Distributions and payments upon redemption and liquidation, (ii) Enterprise
expressly appoints a trustee of such successor entity possessing the same powers
and duties as the Property Trustee with respect to the corresponding series of
Debentures, (iii) the Successor Securities are listed, or any Successor
Securities will be listed upon notification of issuance, on any national
securities exchange or other organization on which such Preferred Securities are
then listed, (iv) such merger, consolidation, amalgamation or replacement does
not cause such Preferred Securities (including any Successor Securities) to be
downgraded by any nationally recognized statistical rating organization, (v)
such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, (vi)
such successor entity has a purpose substantially similar to that of such
Issuer, (vii) prior to such merger, consolidation, amalgamation or replacement,
Enterprise has received an opinion of counsel to such Issuer to the effect that
(A) such merger, consolidation, amalgamation or replacement does not adversely
affect the rights, preferences and privileges of the holders of such Preferred
Securities (including any Successor Securities) in any material respect, and (B)
following such merger, consolidation, amalgamation or replacement, neither such
Issuer nor such successor entity will be required to register as an investment
company under the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and (viii) Enterprise or any permitted successor assignee owns
all of the common securities of such successor entity and guarantees the
obligations of such successor entity under the Successor Securities at least to
the extent provided by the related Guarantee and Trust Agreement.
Notwithstanding the foregoing, an Issuer shall not,
7
except with the consent of all holders of its Preferred Securities, consolidate,
amalgamate, merge with or into, or be replaced by, any other entity, or permit
any other entity to consolidate, amalgamate, merge with or into, or replace it
if such consolidation, amalgamation, merger or replacement would cause such
Issuer or the successor entity not to be classified as a grantor trust for
federal income tax purposes.
VOTING RIGHTS; AMENDMENT OF TRUST AGREEMENT
Except as provided below and under " -- Mergers, Consolidations,
Amalgamations or Replacements of the Issuers" and "Description of the Guarantee
- -- Amendments and Assignment" and as otherwise required by law and the
applicable Trust Agreement, the holders of the Preferred Securities will have no
voting rights.
A Trust Agreement may be amended from time to time by Enterprise and the
Issuer Trustees, without the consent of the holders of the corresponding
Preferred Securities, (i) to cure any ambiguity, defect or inconsistency or (ii)
to make any other change that does not adversely affect in any material respect
the interests of any holder of such Preferred Securities. A Trust Agreement may
be amended by Enterprise and the Issuer Trustees in any other respect, with the
consent of the holders of at least a majority in aggregate liquidation amount of
such Preferred Securities, except to (i) change the amount, timing or currency
or otherwise adversely affect the method of payment of any Distribution or
Liquidation Distribution, (ii) restrict the right of a holder of any such
Preferred Security to institute suit for enforcement of any Distribution,
Redemption Price or Liquidation Distribution, (iii) change the purpose of the
related Issuer, (iv) authorize the issuance of any additional beneficial
interests in the related Issuer, (v) change the redemption provisions, (vi)
change the conditions precedent for Enterprise to elect to dissolve the related
Issuer and distribute the corresponding series of Debentures to the holders of
such Preferred Securities or (vii) affect the limited liability of any holder of
such Preferred Securities, which amendment requires the consent of each holder
of the related Preferred Securities affected thereby. Notwithstanding the
foregoing, no amendment may be made without receipt by the related Issuer of an
opinion of counsel to the effect that such amendment will not affect such
Issuer's status as a grantor trust for federal income tax purposes or its
exemption from regulation as an investment company under the Investment Company
Act.
The Issuer Trustees shall not (i) direct the time, method and place of
conducting any proceeding for any remedy available to the Debenture Trustee or
executing any trust or power conferred on the Debenture Trustee with respect to
the corresponding series of Debentures, (ii) waive any past default pursuant to
Section 6.04 of the Indenture, (iii) exercise any right to rescind or annul an
acceleration of the principal of the corresponding series of Debentures or (iv)
consent to any amendment or modification of the Indenture, where such consent
shall be required, without, in each case, obtaining the consent of the holders
of at least a majority in aggregate liquidation amount of all outstanding
Preferred Securities of the corresponding series; provided, however, that where
a consent under the Indenture would require the consent of each holder of
Debentures affected thereby, no such consent shall be given by the Property
Trustee without the prior consent of each holder of the corresponding Preferred
Securities. The Issuer Trustees shall not revoke any action previously
authorized or approved by a vote of the holders of such Preferred Securities
except by subsequent vote of the holders thereof. The Property Trustee shall
notify all holders of Preferred Securities of any notice received from the
Debenture Trustee as a result of the Issuer thereof being the holder of the
corresponding Debentures. In addition to obtaining the consent of the holders of
the Preferred Securities of the corresponding series, prior to taking any of the
foregoing actions, the Issuer Trustees shall obtain an opinion of counsel to the
effect that the related Issuer will not be classified as an association taxable
as a corporation or a partnership for federal income tax purposes on account of
such action and will continue to be classified as a grantor trust for federal
income tax purposes.
Any required consent of holders of Preferred Securities may be given at a
meeting of holders of such Preferred Securities convened for such purpose or
pursuant to written consent. The Property Trustee will cause a notice of any
meeting at which holders of Preferred Securities are entitled to vote, or of any
matter upon which action by written consent of such holders is to be taken, to
be given to each holder of record of such Preferred Securities in the manner set
forth in the applicable Trust Agreement.
Notwithstanding that holders of Preferred Securities are entitled to vote
or consent under certain circumstances, any Preferred Securities that are owned
by Enterprise, the Issuer Trustees or any affiliate of Enterprise or any Issuer
Trustee shall, for purposes of such vote or consent, be treated as if they were
not outstanding.
BOOK-ENTRY-ONLY ISSUANCE -- THE DEPOSITORY TRUST COMPANY
The Depository Trust Company ("DTC") will act as securities depositary for
all of the Preferred Securities. The Preferred Securities will be issued only as
fully-registered securities registered in the name of Cede & Co. (DTC's nominee)
as
8
the holder thereof. One or more fully-registered global securities will be
issued for the Preferred Securities of each Issuer, representing in the
aggregate the total number of such Issuer's Preferred Securities, and will be
deposited with DTC.
DTC is a limited purpose trust company organized under the New York Banking
Law, a "banking organization" within the meaning of the New York Banking Law, a
member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants ("Participants") deposit with DTC. DTC
also facilitates the settlement among Participants of securities transactions,
such as transfers and pledges, in deposited securities through electronic
computerized book-entry changes in Participants' accounts, thereby eliminating
the need for physical movement of securities certificates. Direct participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock Exchange,
the American Stock Exchange, Inc. and the National Association of Securities
Dealers, Inc. Access to the DTC system is also available to others such as
securities brokers and dealers, banks and trust companies that clear through or
maintain custodial relationships with Direct Participants, either directly or
indirectly ("Indirect Participants"). The rules applicable to DTC and its
Participants are on file with the SEC.
Purchases of Preferred Securities within the DTC system must be made by or
through Direct Participants, which will receive a credit for the Preferred
Securities on DTC's records. The ownership interest of each actual purchaser of
each Preferred Security ("Beneficial Owner") is in turn to be recorded on the
Direct and Indirect Participants' records. Beneficial Owners will not receive
written confirmation from DTC of their purchases, but Beneficial Owners are
expected to receive written confirmations providing details of the transactions,
as well as periodic statements of their holdings, from the Direct or Indirect
Participants through which the Beneficial Owners purchased Preferred Securities.
Transfers of ownership interests in the Preferred Securities are to be
accomplished by entries made on the books of Participants acting on behalf of
Beneficial Owners. Beneficial Owners will not receive certificates representing
their ownership interests in Preferred Securities, except in the event that use
of the book-entry system for the Preferred Securities of such Issuer is
discontinued.
DTC has no knowledge of the actual Beneficial Owners of the Preferred
Securities; DTC's records reflect only the identity of the Direct Participants
to whose accounts such Preferred Securities are credited, which may or may not
be the Beneficial Owners. The Participants will remain responsible for keeping
account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants and by Direct and
Indirect Participants to Beneficial Owners will be governed by arrangements
among them, subject to any statutory or regulatory requirements as may be in
effect from time to time.
Redemption notices shall be sent to Cede & Co. as the registered holder of
the Preferred Securities. If less than all of an Issuer's Preferred Securities
are being redeemed, DTC's practice is to determine by lot the amount of the
interest of each Direct Participant to be redeemed.
Although voting with respect to the Preferred Securities is limited to the
holders of record of the Preferred Securities, in those instances in which a
vote is required, neither DTC nor Cede & Co. will itself consent or vote with
respect to the Preferred Securities. Under its usual procedures, DTC would mail
an omnibus proxy (the "Omnibus Proxy") to the Property Trustee as soon as
possible after the record date. The Omnibus Proxy assigns Cede & Co.'s
consenting or voting rights to those Direct Participants to whose accounts such
Preferred Securities are credited on the record date (identified in a listing
attached to the Omnibus Proxy).
Payments in respect of the Preferred Securities will be made in immediately
available funds by the Property Trustee on behalf of the related Issuer to DTC.
DTC's practice is to credit Direct Participants' accounts on the relevant
payment date in accordance with their respective holdings shown on DTC's records
unless DTC has reason to believe that it will not receive payments on such
payment date. Payments by Participants to Beneficial Owners will be governed by
standing instructions and customary practices and will be the responsibility of
such Participant and not of DTC, the Property Trustee, the Issuer of the
relevant Preferred Securities or Enterprise, subject to any statutory or
regulatory requirements as may be in effect from time to time. Payments in
respect of the Preferred Securities to DTC are the responsibility of the
Property Trustee on behalf of the related Issuer, disbursement of such payments
to Direct Participants is the responsibility of DTC and disbursements of such
payments to the Beneficial Owners is the responsibility of the Direct and
Indirect Participants.
DTC may discontinue providing its services as securities depositary with
respect to any series of Preferred Securities at any time by giving reasonable
notice to the Property Trustee and Enterprise. In the event that a successor
securities depositary is not obtained, definitive Preferred Security
certificates representing such Preferred Securities are required to be printed
and
9
delivered. Enterprise, at its option, may decide to discontinue use of the
system of book-entry transfers through DTC (or a successor depositary) as a
result of such discontinuance or as a result of DTC's ineligibility to so act,
in which case definitive certificates for such Preferred Securities will be
issued. After a Trust Agreement Event of Default, the related Issuer will issue
definitive certificates for such Issuer's Preferred Securities. Upon
distribution of definitive Preferred Securities certificates, owners of such
Preferred Securities will become the registered holders of such Preferred
Securities.
The information set forth above concerning DTC and DTC's book-entry system
has been obtained from sources that the Issuers and Enterprise believe to be
accurate, but the Issuers and Enterprise assume no responsibility for the
accuracy thereof. Neither the Issuers nor Enterprise has any responsibility for
the performance by DTC or its Participants of their respective obligations as
described herein or under the rules and procedures governing their respective
operations.
In the event that the book-entry-only system is discontinued, the payment
of any Distribution, Redemption Price and Liquidation Distribution in respect of
a series of Preferred Securities will be payable in the manner described in the
accompanying Prospectus Supplement, and the following provisions would apply.
The Property Trustee shall keep the registration books for such Preferred
Securities at its corporate office. Such Preferred Securities may be transferred
or exchanged for one or more Preferred Securities upon surrender thereof at the
corporate office of the Property Trustee by the holders or their duly authorized
attorneys or legal representatives. Upon surrender of any Preferred Securities
to be transferred or exchanged, the Property Trustee shall record the
registration of transfer or exchange in the registration books and shall deliver
new Preferred Securities appropriately registered. The Property Trustee shall
not be required to register the transfer of any Preferred Securities that have
been called for redemption or on or after the liquidation date. The Issuers and
the Property Trustee shall be entitled to treat the holders of the related
Preferred Securities, as their names appear in the registration books, as the
owners of those Preferred Securities for all purposes under the applicable Trust
Agreement.
INFORMATION CONCERNING THE PROPERTY TRUSTEE
The Property Trustee is the sole Trustee under each Trust Agreement for
purposes of the Trust Indenture Act and shall have and be subject to all of the
duties and responsibilities specified with respect to an indenture trustee under
the Trust Indenture Act. The Property Trustee, other than during the occurrence
and continuance of a Trust Agreement Event of Default, undertakes to perform
only such duties as are specifically set forth in each Trust Agreement and, upon
a Trust Agreement Event of Default, must use the same degree of care and skill
in the exercise thereof as a prudent person would exercise or use in the conduct
of his or her own affairs. Subject to this provision, the Property Trustee is
under no obligation to exercise any of the powers vested in it by any Trust
Agreement at the request of any holder of Preferred Securities unless it is
offered reasonable security or indemnity against the costs, expenses and
liabilities that might be incurred thereby. If no Trust Agreement Event of
Default has occurred and is continuing, and the Property Trustee is required to
decide between alternative courses of action, construe ambiguous provisions in a
Trust Agreement or is unsure of the application of any provision of a Trust
Agreement, and the matter is not one on which holders of Preferred Securities
are entitled under such Trust Agreement to vote, then the Property Trustee shall
take such action as is directed by Enterprise and, if not so directed, may take
such action as it deems advisable and in the best interests of the holders of
the corresponding Trust Securities and will have no liability except for its own
negligent action, negligent failure to act or willful misconduct.
MISCELLANEOUS
The Administrative Trustee is authorized and directed to conduct the
affairs of and to operate the Issuers in such a way that (i) no Issuer will be
deemed to be an "investment company" required to be registered under the
Investment Company Act or to be taxed as a corporation or partnership for
federal income tax purposes, (ii) each Issuer will be classified as a grantor
trust for federal income tax purposes and (iii) the Debentures held by such
Issuers will be treated as indebtedness of Enterprise for federal income tax
purposes. In this connection, Enterprise and the Administrative Trustee are
authorized to take any action, not inconsistent with applicable law, the
applicable certificate of trust of the related Issuer or the applicable Trust
Agreement, that Enterprise and the Administrative Trustee determine in their
discretion to be necessary or desirable for such purposes, even if such action
adversely affects the interests of the holders of the corresponding Preferred
Securities.
Holders of the Preferred Securities have no preemptive or similar rights.
No Issuer may borrow money, issue debt, execute mortgages or pledge any of
its assets.
Except as otherwise provided in the Trust Agreements, any action requiring
the consent or vote of the Issuer Trustees shall be approved by the
Administrative Trustee.
10
GOVERNING LAW
The Trust Agreements will be governed by and construed in accordance with
the laws of the State of Delaware.
DESCRIPTION OF THE GUARANTEE
Each Guarantee will be executed and delivered by Enterprise concurrently
with the issuance by each Issuer of its Preferred Securities for the benefit of
the holders from time to time of such Preferred Securities. Each Guarantee will
be qualified as an indenture under the Trust Indenture Act and First Union
National Bank will act as indenture trustee (the "Guarantee Trustee") under each
Guarantee for the purposes of compliance with the Trust Indenture Act. Reference
under this caption to Preferred Securities means the Preferred Securities to
which a Guarantee relates. The Guarantee Trustee will hold each Guarantee for
the benefit of the holders of the related Issuer's Preferred Securities.
GENERAL
Enterprise will irrevocably agree, to the extent set forth in each
Guarantee, to pay in full, to the holders of the related Issuer's Preferred
Securities, the Guarantee Payments (as defined below) (except to the extent
previously paid), as and when due, regardless of any defense, right of set-off
or counterclaim which such Issuer may have or assert. The following payments, to
the extent not paid by an Issuer (the "Guarantee Payments"), will be subject to
the applicable Guarantee (without duplication): (i) any accumulated and unpaid
Distributions required to be paid on such Preferred Securities, to the extent
that such Issuer has funds available therefor, (ii) the Redemption Price to the
extent that such Issuer has funds available therefor, and (iii) upon a voluntary
or involuntary dissolution and liquidation of such Issuer (unless the
corresponding series of Debentures are distributed to holders of such Preferred
Securities), the lesser of (a) the aggregate of the liquidation amount specified
in the Prospectus Supplement per Preferred Security plus all accumulated and
unpaid Distributions on the Preferred Securities to the date of payment, to the
extent the Issuer has funds available therefor and (b) the amount of assets of
such Issuer remaining available for distribution to holders of Preferred
Securities upon a dissolution and liquidation of such Issuer. Enterprise's
obligation to make a Guarantee Payment may be satisfied by direct payment of the
required amounts by Enterprise to the holders of the corresponding Preferred
Securities or by causing the related Issuer to pay such amounts to such holders.
While the assets of Enterprise will not be available pursuant to the Guarantee
for the payment of any Distribution, Liquidation Distribution or Redemption
Price on any Preferred Securities if the related Issuer does not have funds
available therefor as described above, Enterprise has agreed under the
applicable Trust Agreement to pay all expenses of such Issuer except such
Issuer's obligations under its Preferred Securities. Accordingly, the applicable
Guarantee, together with the backup undertakings consisting of Enterprise's
obligations under the applicable Trust Agreement, the corresponding series of
Debentures and the Indenture, provide for Enterprise's full, irrevocable and
unconditional guarantee of the Preferred Securities.
No single document executed by Enterprise in connection with the issuance
of a series of Preferred Securities will provide for Enterprise's full,
irrevocable and unconditional guarantee of the Preferred Securities. It is only
the combined operation of Enterprise's obligations under the applicable
Guarantee, the applicable Trust Agreement, the corresponding series of
Debentures and the Indenture that has the effect of providing a full,
irrevocable and unconditional guarantee of an Issuer's obligations under its
Preferred Securities. See "Relationship Among the Preferred Securities, the
Debentures and the Guarantee."
STATUS OF THE GUARANTEE
Each Guarantee will constitute an unsecured obligation of Enterprise and
will rank subordinate and junior in right of payment to all general liabilities
of Enterprise. The Trust Agreements provide that each holder of Preferred
Securities by acceptance thereof agrees to the subordination provisions and
other terms of the related Guarantee. Each Guarantee will rank pari passu with
all other Guarantees issued by Enterprise. Each Guarantee will constitute a
guarantee of payment and not of collection (i.e., the guaranteed party may
institute a legal proceeding directly against Enterprise to enforce its rights
under the Guarantee without first instituting a legal proceeding against any
other person or entity). Each Guarantee will not be discharged except by payment
of the Guarantee Payments in full to the extent not previously paid or upon
distribution to the holders of the Preferred Securities of the corresponding
series of Debentures pursuant to the applicable Trust Agreement.
11
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the corresponding Preferred Securities (in which case
no consent of the holders will be required), no Guarantee may be amended without
the prior approval of the holders of at least a majority in aggregate
liquidation amount of such Preferred Securities (excluding any Preferred
Securities held by Enterprise or an affiliate thereof). The manner of obtaining
any such approval will be as set forth under "Description of the Preferred
Securities -- Voting Rights; Amendment of Trust Agreement." All agreements
contained in each Guarantee shall bind the successors, assigns, receivers,
trustees and representatives of Enterprise and shall inure to the benefit of the
holders of the corresponding Preferred Securities.
GUARANTEE EVENTS OF DEFAULT
An event of default under a Guarantee (a "Guarantee Event of Default") will
occur upon the failure of Enterprise to perform any of its payment or other
obligations thereunder, provided that except with respect to a Guarantee Event
of Default resulting from a failure to make any of the Guarantee Payments,
Enterprise shall have received notice of such Guarantee Event of Default from
the Guarantee Trustee and shall not have cured such Guarantee Event of Default
within 60 days after receipt of such notice. The holders of at least a majority
in aggregate liquidation amount of the corresponding Preferred Securities
(excluding any Preferred Securities held by Enterprise or an affiliate thereof)
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Guarantee Trustee in respect of such
Guarantee or to direct the exercise of any trust or power conferred upon the
Guarantee Trustee under such Guarantee.
Any holder of the corresponding Preferred Securities may institute a legal
proceeding directly against Enterprise to enforce such holder's rights under
such Guarantee without first instituting a legal proceeding against the related
Issuer, the Guarantee Trustee or any other person or entity.
Enterprise, as guarantor, will be required to file annually with the
Guarantee Trustee a certificate as to whether or not Enterprise is in compliance
with all the conditions and covenants applicable to it under each Guarantee.
INFORMATION CONCERNING THE GUARANTEE TRUSTEE
The Guarantee Trustee, other than during the occurrence and continuance of
a Guarantee Event of Default, undertakes to perform only such duties as are
specifically set forth in each Guarantee and, upon a Guarantee Event of Default,
must exercise such of the rights and powers vested in it by the Guarantee and to
use the same degree of care and skill in the exercise thereof as a prudent
person would exercise or use in the conduct of his or her own affairs. Subject
to this provision, the Guarantee Trustee is under no obligation to exercise any
of the powers vested in it by any Guarantee at the request of any holder of
Preferred Securities unless it is offered reasonable indemnity against the
costs, expenses and liabilities that might be incurred thereby.
TERMINATION OF THE GUARANTEE
Each Guarantee will terminate and be of no further force and effect upon
full payment of the Redemption Price or Liquidation Distribution for the
corresponding Preferred Securities or upon distribution of the corresponding
series of Debentures to the holders of the corresponding Preferred Securities.
Each Guarantee will continue to be effective or will be reinstated, as the case
may be, if at any time any holder of the corresponding Preferred Securities must
restore payment of any sums paid under such Preferred Securities or such
Guarantee.
GOVERNING LAW
Each Guarantee will be governed by and construed in accordance with the
laws of the State of New Jersey.
DESCRIPTION OF THE DEBENTURES
GENERAL
The Debentures will be issued in one or more series under the Indenture.
Each series of Debentures will rank pari passu with all other series of
Debentures. Each series of Debentures will be unsecured and will rank
subordinate and junior in right of payment, to the extent and in the manner set
forth in the Indenture, to all Senior Indebtedness (as defined below) of
Enterprise. See " -- Subordination." The Indenture does not limit the incurrence
or issuance of Senior Indebtedness by Enterprise.
12
Enterprise is a holding company whose assets consist principally of the
stock in its wholly owned subsidiaries, PSE&G and EDHI. Therefore, Enterprise's
rights and the rights of its creditors, including the holders of the Debentures,
to participate in the assets of any subsidiary upon the latter's liquidation or
recapitalization or otherwise will be subject to the prior claims of the
subsidiary's creditors, except to the extent that claims of Enterprise itself as
a creditor of the subsidiary may be recognized.
The accompanying Prospectus Supplement will describe the following terms of
any series of Debentures: (i) the title of such series of Debentures; (ii) the
aggregate principal amount of such series of Debentures; (iii) the date or dates
on which the principal of such series of Debentures shall be payable or the
method of determination thereof; (iv) the rate or rates, if any, at which such
series of Debentures shall bear interest, the interest payment dates on which
any such interest shall be payable or the method by which any of the foregoing
shall be determined; (v) any terms regarding redemption; (vi) the maximum
Extension Period for such series of Debentures; and (vii) any other terms of
such series of Debentures not inconsistent with the provisions of the Indenture.
Certain federal income tax consequences and special considerations relating
to the applicable series of Debentures will be described in the accompanying
Prospectus Supplement.
OPTION TO EXTEND INTEREST PAYMENT PERIOD
Under the Indenture, Enterprise shall have the right at any time and from
time to time, so long as no Debenture Event of Default has occurred and is
continuing with respect to such series of Debentures, to defer payments of
interest by extending the interest payment period for such series of Debentures
for up to the maximum Extension Period provided for such series of Debentures,
provided that no Extension Period shall extend beyond the maturity or any
redemption date of such series of Debentures. At the end of the Extension
Period, Enterprise shall be obligated to pay all interest then accrued and
unpaid (together with interest thereon to the extent permitted by applicable
law). During any Extension Period, Enterprise may not declare or pay any
dividend on, or redeem, purchase, acquire, or make a liquidation payment with
respect to, any shares of Enterprise's capital stock. Prior to the termination
of any Extension Period, Enterprise may shorten or further extend the interest
payment period, provided that such Extension Period, together with all such
previous and further extensions thereof, may not exceed the maximum Extension
Period for such series of Debentures or extend beyond the maturity or any
redemption date of such series of Debentures. Upon the termination of any
Extension Period and the payment of all amounts then due, Enterprise may elect
to begin a new Extension Period, subject to the above requirements. Enterprise
shall be required to give notice to the Debenture Trustee and cause the
Debenture Trustee to give notice to the holders of the applicable series of
Debentures of its election to begin an Extension Period, or any shortening or
extension thereof, at least one Business Day prior to the date the notice of the
record or payment date of the related Distribution on the corresponding series
of Preferred Securities or payment of interest on such Debentures is required to
be given to any national securities exchange on which such Debentures or such
Preferred Securities are then listed or other applicable self-regulatory
organization but in any event not less than two Business Days prior to such
record date.
SUBORDINATION
All payments by Enterprise in respect of the Debentures shall be
subordinated to the prior payment in full of all amounts payable on Senior
Indebtedness. The term "Senior Indebtedness" means (i) the principal of and
premium, if any, in respect of (a) indebtedness of Enterprise for money borrowed
and (b) indebtedness evidenced by securities, debentures, bonds or other similar
instruments issued by Enterprise; (ii) all capital lease obligations of
Enterprise; (iii) all obligations of Enterprise issued or assumed as the
deferred purchase price of property, all conditional sale obligations of
Enterprise and all obligations of Enterprise under any title retention agreement
(but excluding trade accounts payable arising in the ordinary course of
business); (iv) certain obligations of Enterprise for the reimbursement of any
obligation, any letter of credit, banker's acceptance, security purchase
facility or similar credit transaction entered into in the ordinary course of
business of Enterprise; (v) all obligations of the type referred to in clauses
(i) through (iv) of other persons and all dividends of other persons (other than
the Preferred Securities or similar securities) for the payment of which, in
either case, Enterprise is responsible or liable as obligor, guarantor or
otherwise (other than each Guarantee and obligations ranking pari passu with
such Guarantee); and (vi) certain obligations of the type referred to in clauses
(i) through (v) of other persons secured by any lien on any property or asset of
Enterprise (whether or not such obligation is assumed by Enterprise), except for
any such indebtedness that is by its terms subordinated to or pari passu with
the Debentures and for indebtedness between or among Enterprise and its
affiliates.
13
Upon any payment or distribution of assets or securities of Enterprise,
upon any dissolution or winding-up or total or partial liquidation or
reorganization of Enterprise, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts payable
on Senior Indebtedness (including any interest accruing on such Senior
Indebtedness subsequent to the commencement of a bankruptcy, insolvency or
similar proceeding) shall be paid in full before the holders of the Debentures
or the Debenture Trustee on behalf of such holders shall be entitled to receive
from Enterprise any payment of principal of, premium, if any, or interest on,
the Debentures or distributions of any assets or securities.
No direct or indirect payment by or on behalf of Enterprise of principal
of, premium, if any, or interest on, the Debentures, whether pursuant to the
terms of the Debentures or upon acceleration or otherwise, shall be made if, at
the time of such payment, there exists (i) a default in the payment of all or
any portion of any Senior Indebtedness or (ii) any other default pursuant to
which the maturity of Senior Indebtedness has been accelerated and, in either
case, requisite notice has been given to the Debenture Trustee and such default
shall not have been cured or waived by or on behalf of the holders of such
Senior Indebtedness.
If the Debenture Trustee or any holder of the Debentures shall have
received any payment on account of the principal of, premium, if any, or
interest on, the Debentures when such payment is prohibited and before all
amounts payable on Senior Indebtedness are paid in full, then such payment shall
be received and held in trust for the holders of Senior Indebtedness and shall
be paid to the holders of the Senior Indebtedness remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full.
Nothing in the Indenture shall limit the right of the Debenture Trustee or
the holders of the Debentures to take any action to accelerate the maturity of
the Debentures or to pursue any rights or remedies against Enterprise, provided
that all Senior Indebtedness shall be paid before holders of the Debentures are
entitled to receive any payment from Enterprise of principal of, premium, if
any, or interest on, the Debentures.
Upon the payment in full of all Senior Indebtedness, the holders of the
Debentures shall be subrogated to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of assets of Enterprise made
on such Senior Indebtedness until the Debentures shall be paid in full.
CERTAIN COVENANTS OF ENTERPRISE
Enterprise will covenant that it may not declare or pay any dividend on, or
redeem, purchase, acquire or make a liquidation payment with respect to, any
shares of Enterprise's capital stock (i) during an Extension Period, (ii) if
there has occurred and is continuing any event that is, or, with the giving of
notice or the lapse of time or both would constitute, a Debenture Event of
Default or (iii) if Enterprise is in default with respect to its payment or
other obligations under any Guarantee. See " -- Debenture Events of Default" and
"Description of the Guarantee -- Guarantee Events of Default."
Any waiver of any Debenture Event of Default will require the approval of
at least a majority of the aggregate principal amount of the corresponding
series of Debentures or, if such Debentures are held by an Issuer, the approval
of at least a majority in aggregate liquidation amount of the Preferred
Securities of such Issuer; provided, however, that a Debenture Event of Default
resulting from the failure to pay the principal of, premium, if any, or interest
on, such Debentures may not be waived.
MODIFICATION OF THE INDENTURE
From time to time, Enterprise and the Debenture Trustee, without notice to
or the consent of any holders of Debentures, may amend or supplement the
Indenture for any of the following purposes: (i) to cure any ambiguity, defect
or inconsistency; (ii) to comply with the provisions of the Indenture regarding
consolidation, merger or sale, conveyance, transfer or lease of the properties
as an entirety or substantially as an entirety of Enterprise; (iii) to provide
for uncertificated Debentures in addition to or in place of certificated
Debentures; (iv) to make any other change that does not in the reasonable
judgment of Enterprise adversely affect the rights of any holder of the
Debentures; (v) to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the Trust Indenture Act; or (vi) to set
forth the terms and conditions, which shall not be inconsistent with the
Indenture, of any series of Debentures and the form of Debentures of such
series.
In addition, Enterprise and the Debenture Trustee may modify the Indenture
or any supplemental indenture or waive future compliance by Enterprise with the
provisions of the Indenture, with the consent of the holders of at least a
majority of the aggregate principal amount of the Debentures of each series
affected thereby, provided that no such modification, without the consent of
each holder of such Debentures, may (i) reduce the principal amount of such
Debentures, (ii) reduce the
14
principal amount of outstanding Debentures of any series the holders of which
must consent to an amendment of the Indenture or a waiver, (iii) change the
stated maturity of the principal of, or interest on, or the rate of interest on,
such Debentures, (iv) change the redemption provisions applicable to such
Debentures adversely to the holders thereof, (v) impair the right to institute
suit for the enforcement of any payment with respect to such Debentures, (vi)
change the currency in which payments with respect to such Debentures are to be
made, or (vii) change the subordination provisions applicable to such Debentures
adversely to the holders thereof, provided that if such Debentures are held by
an Issuer, no modification shall be made that adversely affects the holders of
the Preferred Securities of such Issuer, and no waiver of any Debenture Event of
Default with respect to such Debentures or compliance with any covenant under
the Indenture shall be effective, without the prior consent of the holders of at
least a majority of the aggregate liquidation amount of the Preferred Securities
of such Issuer or the holder of each such Preferred Security, as applicable.
DEBENTURE EVENTS OF DEFAULT
The following are "Debenture Events of Default" with respect to the
Debentures of any series: (i) default for 30 days in payment of any interest on
any Debenture of that series (other than the payment of interest during an
Extension Period); (ii) default in payment of principal of or premium, if any,
on any Debenture of that series when the same becomes due and payable; (iii)
default for 60 days after receipt by Enterprise of a "Notice of Default" in the
performance of or failure to comply with any other covenant or agreement for
such series of Debentures or in the Indenture or any supplemental indenture
under which such series of Debentures may have been issued or (iv) certain
events of bankruptcy, insolvency or reorganization of Enterprise. In case a
Debenture Event of Default has occurred and is continuing, other than one
relating to bankruptcy, insolvency or reorganization of Enterprise, in which
case the principal of, premium, if any, and any interest on, all of the
Debentures of the applicable series shall become immediately due and payable,
the Debenture Trustee or the holders of at least 25% in aggregate principal
amount of the Debentures of that series may declare the principal, together with
interest accrued thereon, of all the Debentures of that series to be due and
payable; provided, however, that if a Debenture Event of Default has occurred
and is continuing with respect to such Debentures and the Debenture Trustee or
the holders of at least 25% in aggregate principal amount of such series of
Debentures fail to declare the principal of such series of Debentures to be
immediately due and payable, then, if such Debentures are held by an Issuer, the
holders of at least 25% in aggregate liquidation amount of the corresponding
Preferred Securities shall have such right by written notice to Enterprise and
the Debenture Trustee. The holders of at least a majority in aggregate principal
amount of such series of Debentures, by notice to the Debenture Trustee, may
rescind an acceleration, provided that if the principal of such Debentures has
been declared due and payable by the holders of the corresponding Preferred
Securities, no rescission of such acceleration will be effective unless
consented to by the holders of at least a majority in aggregate liquidation
amount of the corresponding Preferred Securities.
Enterprise will be required to furnish to the Debenture Trustee annually a
statement as to the compliance by Enterprise with all conditions and covenants
under the Indenture and the Debentures and as to any Debenture Event of Default.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Enterprise may not consolidate with or merge with or into any other person
or sell, convey, transfer or lease its properties and assets as an entirety or
substantially as an entirety to any person, unless (i) the successor person
shall be organized and existing under the laws of the United States or any state
thereof or the District of Columbia and shall expressly assume by a supplemental
indenture all of the obligations of Enterprise under the Debentures and the
Indenture; (ii) immediately after giving effect to such transaction, no
Debenture Event of Default, and no event which after notice or lapse of time or
both would become a Debenture Event of Default, has occurred and is continuing;
and (iii) certain other conditions prescribed in the Indenture are met.
DEFEASANCE AND DISCHARGE
Under the terms of the Indenture, Enterprise will be discharged from any
and all obligations in respect of the Debentures of any series if Enterprise
deposits with the Debenture Trustee, in trust, (i) cash and/or (ii) United
States Government Obligations (as defined in the Indenture), which through the
payment of interest thereon and principal thereof in accordance with their terms
will provide cash in an amount sufficient to pay all the principal of, premium,
if any, and interest on, the Debentures of such series on the dates such
payments are due in accordance with the terms of such Debentures.
15
INFORMATION CONCERNING THE DEBENTURE TRUSTEE
Subject to the provisions of the Indenture relating to its duties, the
Debenture Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request, order or direction of the holders of
any series of Debentures or the holders of the corresponding Preferred
Securities, unless such holders shall have offered to the Debenture Trustee
reasonable security and indemnity. Subject to such provision for
indemnification, the holders of at least a majority in aggregate principal
amount of any series of Debentures affected or the holders of at least a
majority in aggregate liquidation amount of the corresponding Preferred
Securities (with each such series voting as a class), as applicable, will have
the right to direct the time, method and place of conducting any proceeding for
any remedy available to the Debenture Trustee with respect to such series of
Debentures or exercising any trust or power conferred on the Debenture Trustee.
The Indenture will contain limitations on the right of the Debenture
Trustee, as a creditor of Enterprise, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any such claim
as security or otherwise. In addition, the Debenture Trustee may be deemed to
have a conflicting interest and may be required to resign as Debenture Trustee
if at the time of a Debenture Event of Default (i) it is a creditor of
Enterprise or (ii) there is a default under the indenture(s) referred to below.
First Union National Bank is the Trustee under PSE&G's Indenture dated
August 1, 1924, with respect to PSE&G's First and Refunding Mortgage Bonds and
on various indentures relating to PSE&G. Enterprise and its subsidiaries
maintain other normal banking relationships with First Union National Bank.
GOVERNING LAW
The Indenture will be governed by and construed in accordance with the laws
of the State of New Jersey.
RELATIONSHIP AMONG THE PREFERRED SECURITIES,
THE DEBENTURES AND THE GUARANTEE
Payments of Distributions and redemption and liquidation payments due on a
series of Preferred Securities (to the extent the Issuer thereof has funds
available for such payments) will be guaranteed by Enterprise as and to the
extent set forth under "Description of the Guarantee." No single document
executed by Enterprise in connection with the issuance of a series of Preferred
Securities will provide for Enterprise's full, irrevocable and unconditional
guarantee of the Preferred Securities. It is only the combined operation of
Enterprise's obligations under the applicable Guarantee, the applicable Trust
Agreement, the corresponding series of Debentures and the Indenture that has the
effect of providing a full, irrevocable and unconditional guarantee of an
Issuer's obligations under its Preferred Securities.
A holder of any corresponding Preferred Security may institute a legal
proceeding directly against Enterprise to enforce its rights under such
Guarantee without first instituting a legal proceeding against the Guarantee
Trustee, the related Issuer or any other person or entity.
As long as Enterprise makes payments of interest and other payments when
due on a series of Debentures, such payments will be sufficient to cover the
payment of Distributions and redemption and Liquidation Distributions due on the
corresponding Preferred Securities, primarily because (i) the aggregate
principal amount of such series of Debentures will be equal to the sum of the
aggregate liquidation amount of the corresponding Preferred Securities and
Common Securities, (ii) the interest rate and interest and other payment dates
on such series of Debentures will match the Distribution rate and Distribution
and other payment dates for the corresponding Preferred Securities, (iii) the
applicable Trust Agreement provides that Enterprise shall pay for all and any
costs, expenses and liabilities of the Issuer of such Preferred Securities
except such Issuer's obligations under such Preferred Securities, and (iv) the
applicable Trust Agreements provide that no Issuer will engage in any activity
that is not consistent with the limited purposes of such Issuer. If and to the
extent that Enterprise does not make payments on any series of Debentures, such
Issuer will not have funds available to make payments of Distributions or other
amounts due on the corresponding Preferred Securities.
A principal difference between the rights of a holder of a Preferred
Security (which represents an undivided beneficial interest in the assets of the
Issuer thereof) and a holder of a Debenture is that a holder of a Debenture will
accrue, and (subject to the permissible extension of the interest payment
period) is entitled to receive, interest on the principal amount of Debentures
held, while a holder of Preferred Securities is entitled to receive
Distributions only if and to the extent such Issuer has funds available for the
payment of such Distributions.
16
Upon any voluntary or involuntary dissolution or liquidation of any Issuer
not involving a distribution of any series of Debentures, after satisfaction of
liabilities to creditors of such Issuer, the holders of the corresponding
Preferred Securities will be entitled to receive, out of assets held by such
Issuer, the Liquidation Distribution in cash. See "Description of the Preferred
Securities -- Liquidation Distribution Upon Dissolution." Upon any voluntary
liquidation or bankruptcy of Enterprise, each Issuer, as holder of the
Debentures, would be a creditor of Enterprise, subordinated in right of payment
to all Senior Indebtedness, but entitled to receive payment in full of
principal, premium, if any, and interest, before any stockholders of Enterprise
receive payments or distributions. Since Enterprise will be the guarantor under
each Guarantee and has agreed to pay for all costs, expenses and liabilities of
each Issuer (other than an Issuer's obligations to the holders of its Preferred
Securities), the positions of a holder of such Preferred Securities and a holder
of such Debentures relative to other creditors and to stockholders of Enterprise
in the event of liquidation or bankruptcy of Enterprise would be substantially
the same.
A default or event of default under any Senior Indebtedness would not
constitute a Debenture Event of Default. However, in the event of payment
defaults under, or acceleration of, Senior Indebtedness, the subordination
provisions of the Debentures provide that no payments may be made in respect of
the Debentures until such Senior Indebtedness has been paid in full or any
payment default thereunder has been cured or waived. Failure to make required
payments on any series of Debentures would constitute a Debenture Event of
Default.
PROPOSED TAX LAW CHANGES
From time to time, the Clinton Administration has proposed certain tax law
changes that would, among other things, generally deny interest deductions to a
corporate issuer if the debt instrument has a term exceeding 20 years and is not
reflected as indebtedness on such issuer's consolidated balance sheet. The term
of each series of Debentures may vary and may exceed 20 years. Enterprise cannot
predict what effect, if any, a proposal of the sort discussed above will have on
any series of Debentures; however, if any such proposal were to become effective
retroactively, Enterprise would be precluded from deducting interest paid on
such Debentures which might, depending on the specific terms of such Debentures
and the corresponding series of Preferred Securities, give rise to the right of
Enterprise to redeem such Debentures and thereby cause a mandatory redemption of
the corresponding series of Preferred Securities. Federal income tax information
and consequences and redemption provisions, if any, relating to each series of
Debentures and corresponding series of Preferred Securities will be discussed as
applicable in the accompanying Prospectus Supplement.
PLAN OF DISTRIBUTION
The Issuers may offer or sell Preferred Securities offered hereby to one or
more underwriters for public offering and sale by them. The Issuers may sell
Preferred Securities as soon as practicable after effectiveness of the
Registration Statement. Any such underwriter involved in the offer and sale of
the Preferred Securities will be named in an accompanying Prospectus Supplement.
Underwriters may offer and sell the Preferred Securities at a fixed price
or prices, which may be changed, or from time to time at market prices
prevailing at the time of sale, at prices relating to such prevailing market
prices or at negotiated prices. In connection with the sale of Preferred
Securities, underwriters may be deemed to have received compensation from
Enterprise in the form of underwriting discounts or commissions and may also
receive commissions. Underwriters may sell Preferred Securities to or through
dealers, and such dealers may receive compensation in the form of discounts,
concessions or commissions from such underwriters.
Any underwriting compensation paid by Enterprise on behalf of the Issuers
to underwriters in connection with the offering of Preferred Securities, and any
discounts, concessions or commissions allowed by underwriters to participating
dealers, will be set forth in an accompanying Prospectus Supplement.
Underwriters and dealers participating in the distribution of the Preferred
Securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the Preferred
Securities may be deemed to be underwriting discounts and commissions, under the
Securities Act of 1933, as amended (the "Securities Act"). Underwriters and
dealers may be entitled, under agreement with Enterprise and the Issuers, to
indemnification against and contribution toward certain civil liabilities,
including liabilities under the Securities Act, and to reimbursement by
Enterprise for certain expenses.
Underwriters and dealers may engage in transactions with, or perform
services for, Enterprise and/or any of its affiliates in the ordinary course of
business.
17
Each series of Preferred Securities will be a new issue of securities and
will have no established trading market. Any underwriters to whom Preferred
Securities are sold by the Issuers for public offering and sale may make a
market in such Preferred Securities but such underwriters will not be obligated
to do so and may discontinue any market making at any time without notice. The
Preferred Securities may or may not be listed on a national securities exchange.
No assurance can be given as to the liquidity of or the existence of trading
markets for any Preferred Securities.
LEGAL MATTERS
Certain legal matters will be passed upon for Enterprise by James T. Foran,
Esquire, Associate General Counsel of Enterprise or R. Edwin Selover, Esquire,
Vice President and General Counsel of Enterprise and by Ballard Spahr Andrews &
Ingersoll, Philadelphia, Pennsylvania, special tax counsel to Enterprise and the
Issuers, and by Richards, Layton & Finger, P.A., special Delaware counsel to
Enterprise and the Issuers, and for the underwriters by Brown & Wood LLP, New
York, New York, who may rely on the opinion of Mr. Selover or Mr. Foran as to
matters of New Jersey law. R. Edwin Selover, Esquire or James T. Foran, Esquire
and Brown & Wood LLP may rely on the opinion of Ballard Spahr Andrews &
Ingersoll as to matters of Pennsylvania law and on the opinion of Richards,
Layton & Finger, P.A. as to matters of Delaware law. Messrs. Selover and Foran
are also employees of PSE&G.
EXPERTS
The consolidated financial statements and the related financial statement
schedules of Enterprise, incorporated in this Prospectus by reference from
Enterprise's Annual Report on Form 10-K for the year ended December 31, 1997,
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their authority
as experts in accounting and auditing.
18
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
SEC registration fee.
SEC registration fee............................................................................................ $ 147,500
Printing and engraving.......................................................................................... 150,000
Legal fees and expenses......................................................................................... 297,000
Fees of accountants............................................................................................. 45,000
Fees of trustees................................................................................................ 60,000
Blue sky fees and expenses...................................................................................... 2,500
NYSE Listing Fee................................................................................................ 100,300
Rating agency fees.............................................................................................. 262,500
Miscellaneous................................................................................................... 35,200
----------
Total...................................................................................................... $1,100,000
==========
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under Section 14A:3-5 of the New Jersey Business Corporation Act,
Enterprise
(1) has power to indemnify each director and officer of Enterprise (as
well as its employees and agents) against expenses and liabilities in
connection with any proceeding involving him by reason of his being or
having been such director or officer, other than a proceeding by or in the
right of Enterprise, if (a) such director or officer acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best
interests of Enterprise, and (b) with respect to any criminal proceeding,
such director or officer had no reasonable cause to believe his conduct was
unlawful;
(2) has power to indemnify each director and officer of Enterprise
against expenses in connection with any proceeding by or in the right of
Enterprise to procure a judgment in its favor which involves such director
or officer by reason of his being or having been such director or officer,
if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of Enterprise; however, in such
proceeding no indemnification may be provided in respect to any claim,
issue or matter as to which such director or officer shall have been
adjudged to be liable to Enterprise, unless and only to the extent that the
court determines that the director or officer is fairly reasonably entitled
to indemnity for such expenses as the court shall deem proper;
(3) must indemnify each director and officer against expenses to the
extent that he has been successful on the merits or otherwise in any
proceeding referred to in (1) and (2) above or in defense of any claim,
issue or matter therein; and
(4) has power to purchase and maintain insurance on behalf of a
director or officer against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having been a
director or officer, whether or not Enterprise would have the power to
indemnify him against such expenses and liabilities under the statute.
As used in the statute, "expenses" means reasonable costs, disbursements
and counsel fees, "liabilities" means amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties, and "proceeding" means any
pending, threatened or completed civil, criminal, administrative or arbitrative
action, suit or proceeding, and any appeal therein and any inquiry or
investigation which could lead to such action, suit or proceeding.
Indemnification may be awarded by a court under (1) or (2) as well as under
(3) above, notwithstanding a prior determination by Enterprise that the director
or officer has not met the applicable standard of conduct.
Indemnification under the statute does not exclude any other rights to
which a director or officer may be entitled under a certificate of
incorporation, by-law, or otherwise.
Article 8, Section 1 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
1. Indemnification:
The corporation shall indemnify to the full extent from time to time
permitted by law any person made, or threatened to be made, a party to any
pending, threatened or completed civil, criminal, administrative or
arbitrative
II-1
action, suit, or proceeding and any appeal therein (and any inquiry or
investigation which could lead to such action, suit or proceeding) by
reason of the fact that he is or was a director, officer or employee of the
corporation or serves or served any other enterprise as a director, officer
or employee at the request of the corporation. Such right of
indemnification shall inure to the benefit of the legal representative of
any such person.
Article 8, Section 2 of Enterprise's Certificate of Amendment of
Certificate of Incorporation provides as follows:
2. Limitation of Liability:
To the full extent from time to time permitted by law, directors and
officers of the corporation shall not be personally liable to the
corporation or its shareholders for damages for breach of any duty owed to
the corporation or its shareholders. No amendment or repeal of this
provision shall adversely affect any right or protection of a director or
officer of the corporation existing at the time of such amendment or
repeal.
Each form of Underwriting Agreement between Enterprise and the Underwriters
contains a provision under which each Underwriter agrees to indemnify the
directors of Enterprise and each of its officers who signed the registration
statement against certain liabilities which might arise under the Securities Act
of 1933 (the "1933 Act") from information furnished to Enterprise in writing by
or on behalf of such Underwriter.
The directors and officers of Enterprise are insured under policies of
insurance, within the limits and subject to the limitations of the policies,
against claims made against them for acts in the discharge of their duties, and
Enterprise is insured to the extent that it is required or permitted by law to
indemnify the directors and officers for such loss. The premiums for such
insurance are paid by Enterprise.
ITEM 16. LIST OF EXHIBITS.
EXHIBIT
- -------
1-1 Form of Underwriting Agreement for Debt Securities.
1-2 Form of Underwriting Agreement for Trust Preferred Securities.*
3-1 Certificate of Trust for Enterprise Capital Trust II (Exhibit 3-2).*
3-2 Certificate of Trust for Enterprise Capital Trust III (Exhibit 3-3).*
3-3 Trust Agreement for Enterpise Capital Trust II (Exhibit 3-5).*
3-4 Trust Agreement for Enterpise Capital Trust III (Exhibit 3-6).*
3-5 Form of Amended and Restated Trust Agreement for Enterprise Capital II (Exhibit 3-8).*
3-6 Form of Amended and Restated Trust Agreement for Enterprise Capital III (Exhibit 3-9).*
4-1 Form of Preferred Security Certificate for Enterprise Capital Trust II (included in Exhibit 3-5).*
4-2 Form of Preferred Security Certificate for Enterprise Capital Trust III (included in Exhibit 3-6).*
4-3 Form of Deferrable Interest Subordinated Debenture (included in Exhibit 4-5).*
4-4 Indenture between Public Service Enterprise Group Incorporated and First Union National Bank, as Trustee,
dated January 1, 1998 providing for Deferrable Interest Subordinated Debentures in Series (Exhibit 4f).**
4-5 Form of Deferrable Interest Subordinated Debenture Supplemental Indenture (Exhibit 4-6).*
4-6 Form of Senior Indenture for Public Service Enterprise Group Incorporated.
4-7 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated.
4-8 Form of Senior Debt Security.***
4-9 Form of Subordinated Debt Security.***
4-10 Form of Guarantee Agreement for Enterprise Capital Trust II (Exhibit 4-8).*
4-11 Form of Guarantee Agreement for Enterprise Capital Trust III (Exhibit 4-9).*
5-1 Opinion of James T. Foran, Esquire relating to the validity of the
Debt Securities, the Debentures and the Guarantees, including consent.
5-2 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust II, including consent.
5-3 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust III, including consent.
8 Opinion of Ballard Spahr Andrews & Ingersoll, special tax counsel, as to tax
matters, including consent.
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by reference
to Exhibit 12 to Enterprise's Annual Report on Form 10-K for the year ended
December 31, 1997).*
23-1 Consent of Independent Auditors.
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5-1).
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5-2 and 5-3).
II-2
EXHIBIT
- -------
23-4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8).
24 Power of Attorney.
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Senior
Indenture for Public Service Enterprise Group Incorporated.
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Subordinated
Indenture for Public Service Enterprise Group Incorporated.
25-3 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Deferrable
Interest Subordinated Debenture Indenture and Deferrable Interest
Subordinated Debenture Supplemental Indenture.
25-4 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust II.
25-5 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust III.
25-6 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust II.
25-7 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust III.
- ---------------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-43241) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Enterprise's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and incorporated herein by
reference.
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(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 (a)(1) (ii) do not apply
if the registration statement is on form S-3 or form S-8 and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(b) 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 this registration statement shall be deemed to be a
new registration statement relating to the securities offered thereby, and the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
II-3
indemnification is against public policy as expressed in the Securities Act of
1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(d) The Registrants hereby undertake to provide to the underwriter at the
closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
(e) The Registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in
a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or
(4) or 497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrants, Enterprise Capital Trust II and Enterprise Capital Trust III each
certifies that it has reasonable grounds to believe it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Newark, State of New Jersey, on this fourteenth day
of May, 1998.
ENTERPRISE CAPITAL TRUST II
By: Public Service Enterprise Group
Incorporated, as Sponsor
By: /s/ E. JAMES FERLAND
--------------------------------
ENTERPRISE CAPITAL TRUST III
By: Public Service Enterprise Group
Incorporated, as Sponsor
By: /s/ E. JAMES FERLAND
--------------------------------
II-5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant,
Public Service Enterprise Group Incorporated, certifies that it has reasonable
grounds to believe it meets all of the requirements for filing on Form S-3 and
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Newark, State of New
Jersey, on this fourteenth day of May, 1998.
PUBLIC SERVICE ENTERPRISE GROUP
INCORPORATED
By: /s/ E. JAMES FERLAND
--------------------------------
E. JAMES FERLAND
CHAIRMAN OF THE BOARD AND PRESIDENT
II-6
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE CAPACITY DATE
- ------------------------------------------------------ ------------------------------------------- ------------------
/s/E. JAMES FERLAND Principal Executive Officer and Director May 14, 1998
- -------------------------------------------------------
E. JAMES FERLAND
/s/ROBERT C. MURRAY Principal Financial Officer May 14, 1998
- -------------------------------------------------------
ROBERT C. MURRAY
/s/PATRICIA A. RADO Principal Accounting Officer May 14, 1998
- -------------------------------------------------------
PATRICIA A. RADO
This Registration Statement has also been signed by Robert C. Murray,
Attorney-in-Fact, on behalf of the following Directors on May 14, 1998.
Lawrence R. Codey Irwin Lerner
Ernest H. Drew Marilyn M. Pfalz
T.J. Dermot Dunphy Forrest J. Remick
Raymond V. Gilmartin Richard J. Swift
Conrad K. Harper Josh S. Weston
By: /s/ROBERT C. MURRAY
-----------------------------
ROBERT C. MURRAY
ATTORNEY-IN-FACT
II-7
EXHIBIT INDEX
EXHIBIT
- -------
1-1 Form of Underwriting Agreement for Debt Securities.
1-2 Form of Underwriting Agreement for Trust Preferred Securities.*
3-1 Certificate of Trust for Enterprise Capital Trust II (Exhibit 3-2).*
3-2 Certificate of Trust for Enterprise Capital Trust III (Exhibit 3-3).*
3-3 Trust Agreement for Enterpise Capital Trust II (Exhibit 3-5).*
3-4 Trust Agreement for Enterpise Capital Trust III (Exhibit 3-6).*
3-5 Form of Amended and Restated Trust Agreement for Enterprise Capital II (Exhibit 3-8).*
3-6 Form of Amended and Restated Trust Agreement for Enterprise Capital III (Exhibit 3-9).*
4-1 Form of Preferred Security Certificate for Enterprise Capital Trust II (included in Exhibit 3-5).*
4-2 Form of Preferred Security Certificate for Enterprise Capital Trust III (included in Exhibit 3-6).*
4-3 Form of Deferrable Interest Subordinated Debenture (included in Exhibit 4-5).*
4-4 Indenture between Public Service Enterprise Group Incorporated and First Union National Bank, as Trustee,
dated January 1, 1998 providing for Deferrable Interest Subordinated Debentures in Series (Exhibit 4f).**
4-5 Form of Deferrable Interest Subordinated Debenture Supplemental Indenture (Exhibit 4-6).*
4-6 Form of Senior Indenture for Public Service Enterprise Group Incorporated.
4-7 Form of Subordinated Indenture for Public Service Enterprise Group Incorporated.
4-8 Form of Senior Debt Security.***
4-9 Form of Subordinated Debt Security.***
4-10 Form of Guarantee Agreement for Enterprise Capital Trust II (Exhibit 4-8).*
4-11 Form of Guarantee Agreement for Enterprise Capital Trust III (Exhibit 4-9).*
5-1 Opinion of James T. Foran, Esquire relating to the validity of the
Debt Securities, the Debentures and the Guarantees, including consent.
5-2 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust II, including consent.
5-3 Opinion of Richards, Layton & Finger, P.A., special Delaware counsel,
relating to the validity of the Preferred Securities of Enterprise
Capital Trust III, including consent.
8 Opinion of Ballard Spahr Andrews & Ingersoll, special tax counsel, as to tax
matters, including consent.
12 Computations of Ratios of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to Enterprise's Annual Report on Form 10-K
for the year ended December 31, 1997).*
23-1 Consent of Independent Auditors.
23-2 Consent of James T. Foran, Esquire (included in Exhibit 5-1).
23-3 Consent of Richards, Layton & Finger, P.A. (included in Exhibits 5-2 and 5-3).
23-4 Consent of Ballard Spahr Andrews & Ingersoll (included in Exhibit 8).
24 Power of Attorney.
25-1 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Senior
Indenture for Public Service Enterprise Group Incorporated.
25-2 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Subordinated
Indenture for Public Service Enterprise Group Incorporated.
25-3 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Indenture Trustee under the Deferrable
Interest Subordinated Debenture Indenture and Deferrable Interest
Subordinated Debenture Supplemental Indenture.
25-4 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust II.
25-5 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Property Trustee under the Amended and
Restated Trust Agreement for Enterprise Capital Trust III.
25-6 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust II.
25-7 Statement of Eligibility under the Trust Indenture Act of 1939 of
First Union National Bank, as Guarantee Trustee under the Guarantee
Agreement for Enterprise Capital Trust III.
- ---------------
* Previously filed as the indicated exhibit to Registration Statement on Form
S-3 (No. 333-43241) and incorporated herein by reference.
** Previously filed as the indicated exhibit to Enterprise's Quarterly Report
on Form 10-Q for the quarter ended March 31, 1998 and incorporated herein by
reference.
*** To be filed as an exhibit to a Current Report on Form 8-K and incorporated
herein by reference.