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As filed with the Securities and Exchange Commission on June 29, 1998
Registration No. 333-30975-99
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BEC ENERGY
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(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-6830187
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 Boylston Street, Boston, Massachusetts 02199
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 424-2000
Theodora S. Convisser
BEC Energy
800 Boylston Street
Boston, Massachusetts 02199
(617) 424-2000
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(Name, address and telephone number of agent for service)
--------------------------
Please send copies of all communications to:
David A. Fine, Esq.
Ropes & Gray
One International Place
Boston, Massachusetts 02110
_________________________________
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the
"Securities Act"), and the Securities and Exchange Commission "No-action" Letter
obtained by Boston Edison Company on February 24, 1997, BEC Energy, a
Massachusetts business trust, as successor issuer to Boston Edison Company, a
Massachusetts corporation, hereby adopts this registration statement, as
amended, for all purposes under the Securities Act and the Securities Exchange
Act of 1934, as amended. See "Description of the Transaction" herein.
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Description of the Transaction
------------------------------
This Amendment is being filed in connection with a corporate restructuring of
Boston Edison Company, a Massachusetts corporation ("Boston Edison"). The
objective of such restructuring is to have Boston Edison become a separate,
wholly-owned subsidiary of BEC Energy ("BEC Energy" or "Registrant"), a
Massachusetts business trust, the new parent holding company, with the present
holders of the common stock of Boston Edison becoming holders of the common
shares of BEC Energy.
On May 15, 1997, the shareholders of Boston Edison at their annual meeting
approved the Agreement and Plan of Merger dated March 25, 1997 (the "Merger
Agreement"). Pursuant to the Merger Agreement, Boston Edison became a
subsidiary of BEC Energy through the merger of a newly formed subsidiary of BEC
Energy, Boston Edison Mergeco Electric Company, Inc. ("Mergeco"), into Boston
Edison (the "Merger"). The Merger was effected by the filing by Boston Edison
and Mergeco of Articles of Merger with the Secretary of State of Massachusetts
on May 20, 1998 (the "Articles of Merger"), whereupon the holders of Boston
Edison Common Stock became the holders of the Common Shares of BEC Energy and
BEC Energy became the sole holder of Boston Edison Common Stock. Accordingly,
all shares of Common Stock offered under the 1997 Stock Incentive Plan (the
"Incentive Plan") will be Common Shares of BEC Energy, not shares of Boston
Edison Common Stock.
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended (the
"Securities Act"), BEC Energy, as successor issuer to Boston Edison under the
Merger Agreement and Article of Merger, hereby expressly adopts, as of June 19,
1998, Boston Edison's Registration Statement on Form S-8, as amended
(Registration No. 333-30975), which Registration Statement is applicable to
shares of Common Shares of BEC Energy issuable under the Incentive Plan, as the
Registration Statement of BEC Energy for all purposes under the Securities Act
and the Securities Exchange Act of 1934, as amended (the "Exchange Act").
PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference.
(a) BEC Energy: The following documents, which have heretofore been filed by
the Registrant (formerly known as Boston Edison Holdings) with the Securities
and Exchange Commission pursuant to the Exchange Act (File No. 1-14768), are
incorporated by reference herein and shall be deemed to be a part hereof:
(i) Form S-4 filed March 17, 1997 (File No. 333-23439).
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(ii) Description of Common Shares included in the Registration Statement on
Form S-4 filed under the Securities Act, including any amendment or report
filed for the purpose of updating such description.
(b) Boston Edison: The following documents, which have heretofore been filed
by Boston Edison with the Securities and Exchange Commission pursuant to the
Exchange Act (File No.1-2301), are incorporated by reference herein and shall be
deemed to be a part hereof:
(i) Annual Report on Form 10-K for the fiscal year ended December 31, 1997.
(ii) Any reports filed by Boston Edison with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year
covered by the Annual Report listed in (b)(i) above. The latest annual report
of the Incentive Plan for the fiscal year ended December 31, 1997, filed
pursuant to Section 13(a) or 15(d) of the Exchange Act.
(iii) All documents subsequently filed by Boston Edison or the Incentive Plan
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act prior to
the filing of a post-effective amendment which indicate that all securities
offered have been sold or which deregisters all securities then remaining
unsold shall be deemed to be incorporated herein by reference and shall be
deemed a part hereof from the date of filing of such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
BEC Energy's Amended and Restated Declaration of Trust (the "Declaration
Trust") provides that, to the extent legally permissible, each of BEC Energy's
Trustees and officers shall be indemnified by BEC Energy's trust estate against
any loss, liability or expense, including amounts paid in satisfaction of
judgments, in compromise or as fines and penalties, and counsel fees, imposed
upon or reasonably incurred by such person in connection with the defense or
disposition of any action, suit or other proceeding, whether civil or criminal,
in which such person may be involved or with which such person may be
threatened, while in office or thereafter, by reason of such person's being or
having been such a Trustee or officer, except with respect to any matter as to
which such person shall have been adjudicated in such action, suit or proceeding
not to have acted in good faith in the reasonable belief that his or her action
was in
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the best interests of BEC Energy; provided, however, that as to any matter
disposed of by a compromise payment by such Trustee or officer, pursuant to a
consent decree or otherwise, no indemnification either for said payment or for
any other expenses shall be provided unless such compromise shall be approved as
in the best interests of BEC Energy, after notice that it involves such
indemnification, (i) by a disinterested majority of the Trustees then in office,
or (ii) by a majority of the disinterested Trustees then in office, provided
that there has been obtained an opinion in writing of independent legal counsel
to the effect that such Trustee or officer appears to have acted in good faith
in the reasonable belief that his or her action was in the best interests of BEC
Energy, or (iii) by the vote, at a meeting duly called and held, of the holders
of a majority of the shares outstanding and entitled to vote thereon, exclusive
of any shares owned by any interested Trustee or officer.
In discharging his or her duties, a Trustee or officer of BEC Energy, when
acting in good faith, shall be fully protected in relying upon the books of
account of BEC Energy or of another organization in which he or she serves as
contemplated by the indemnification provisions of the Declaration of Trust,
reports made to Boston Edison or to such other organization by any of its
officers or employees or by counsel, accountants, appraisers or other experts or
consultants selected with reasonable care by the Trustees or similar governing
body of such other organization, or upon other records of the BEC Energy or of
such other organization. The rights of indemnification provided in the
Declaration of Trust shall not be exclusive of or affect any other rights to
which any Trustee or officer may be entitled and such rights shall inure to the
benefit of his or her successors, heirs, executors, administrators and other
legal representatives. As used in this provision, the terms "Trustee" and
"officer" include persons who serve at the request of BEC Energy as directors,
officers, or trustees of another organization in which BEC Energy has any direct
or indirect interest as a shareholder, creditor or otherwise.
Expenses, including counsel fees, reasonably incurred by any Trustee or
officer with respect to the defense or disposition of any action, suit or
proceeding referred to in the indemnification provisions of the Declaration of
Trust may be advanced by BEC Energy prior to the final disposition of such
action, suit or proceeding, upon receipt of an undertaking by or on behalf of
the recipient to repay such amount unless it is ultimately determined that he or
she is entitled to indemnification. Nothing contained in this provision shall
affect any rights to indemnification to which BEC Energy personnel other than
Trustees and officers may be entitled by contract or otherwise under law. No
Trustee shall be obligated to give any bond or other security for the
performance of any of his or her duties.
BEC Energy maintains two-part policies of insurance covering Trustees' and
officers' liability and reimbursement of BEC Energy for indemnification of a
Trustee or officer. The policies covering Trustees' and officers' liability
provide for payment on behalf of a Trustee or officer of any Loss (defined to
include among other things damages, judgments, settlements, costs and expenses)
arising from claims against such Trustee or officer by reason of any Wrongful
Act (as defined therein) subject to certain exclusions.
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Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8.
(a) Exhibits: See "Exhibit Index"
(b) The registrant undertakes that it will submit or has submitted the
Incentive Plan or any amendment thereto to the Internal Revenue Service ("IRS")
in a timely manner and has made or will make all changes required by the IRS in
order to qualify the plan under ERISA.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement; (i) to include any
prospectus required by Section 10(a)(3) of the Securities Act; (ii) to reflect
in the prospectus any facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof),
which, individually or in the aggregate, represent a fundamental change in the
information set forth in the registration statement; and (iii) to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement; provided, however, that paragraphs
(a)(l)(i) and (ii) shall not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13(a) or 15(d) of the
Exchange Act that are incorporated by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(3) to remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act , each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant
to Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities
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offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) The Registrant hereby undertakes that every prospectus that purports to
meet the requirements of Section 10(a)(3) of the Securities Act and is used in
connection with an offering of securities subject to Rule 415, will be filed
as a part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act, each such post-effective amendment shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Post-Effective Amendment No. 1 to the Form S-8 registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the twenty-
ninth day of June, 1998.
BEC ENERGY
BY: /s/ James J. Judge
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this Post-
Effective Amendment No. 1 to the Form S-8 Registration Statement has been signed
below by the following persons in the capacities stated below on the twenty-
ninth day of June, 1998.
*
- ------------------------------ Chairman of the Board,
THOMAS J. MAY Chief Executive Officer,
President and Trustee
/s/ James J. Judge
- ------------------------------ Senior Vice President
JAMES J. JUDGE and Treasurer (principal
accounting officer)
/s/ Theodora S. Convisser
- ------------------------------ Clerk
THEODORA S. CONVISSER
*
- ------------------------------ Trustee
THOMAS G. DIGNAN
*
- ------------------------------ Trustee
GARY L. COUNTRYMAN
*
- ------------------------------ Trustee
NELSON S. GIFFORD
*
- ------------------------------ Trustee
MATINA S. HORNER
*
- ------------------------------ Trustee
SHERRY H. PENNEY
*
- ------------------------------ Trustee
STEPHEN J. SWEENEY
* By: /s/ James J. Judge
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James J. Judge, as
attorney-in-fact
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EXHIBIT INDEX
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<TABLE>
<C> <S> <C>
Exhibit Description of Exhibit Sequential
Number Page Number
4.1 BEC Energy Amended and Restated Declaration of Trust, dated __
March 25, 1997 (incorporated by reference to Exhibit B to the
Proxy Statement/Prospectus in Part I of Registration Statement __
on Form S-4 of BEC Energy (No. 333-23439)).
4.2 By-laws of BEC Energy, dated March 25, 1997 (incorporated by __
reference to Exhibit 99.3 to the Current Report on Form 8-K
(No. 1-14768)).
15 Coopers & Lybrand L.L.P.'s Letter Re Unaudited Interim 1
Financial Information.
23 Consent of Coopers & Lybrand L.L.P. 2
24 Power of Attorney. 3
</TABLE>
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Exhibit 15
LETTER RE UNAUDITED INTERIM
FINANCIAL INFORMATION
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Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: BEC Energy Amended Registration on Form S-8
We are aware that our report dated April 23, 1998 on our review of the interim
financial information of Boston Edison Company as of March 31, 1998 and for the
quarter then ended, included in the Company's quarterly report on Form 10-Q for
the quarter then ended, is incorporated by reference in this registration
statement. Pursuant to Rule 436(c) under the Securities Act of 1933 this report
should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of the Act.
/s/ Coopers & Lybrand L.L.P.
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COOPERS & LYBRAND L.L.P.
June 29, 1998
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Exhibit 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
BEC Energy on Form S-8 of our report dated January 22, 1998, on our audits of
the consolidated financial statements and financial statement schedules of
Boston Edison Company.
/s/ Coopers & Lybrand L.L.P.
COOPERS & LYBRAND L.L.P.
June 29, 1998
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Exhibit 24
POWER OF ATTORNEY
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We, the undersigned officers and trustees of BEC Energy (the "Trust"),
hereby severally constitute Thomas J. May, James J. Judge, Douglas S. Horan and
Theodora S. Convisser and each of them singly, our true and lawful attorneys,
with full power to them and each of them to sign for us, and in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) to the registration statement on Form S-8 of Boston Edison Company's
1997 Stock Incentive Plan (No. 333-30975), and generally to do all such things
in our names and on our behalf in the capacities indicated below to enable BEC
Energy to comply with the provisions of the Securities Act of 1933, as amended,
and all requirements of the Securities and Exchange Commission, hereby ratifying
and confirming our signatures as they may be signed by our said attorneys to all
amendments to said registration statement.
Witness our hands and common seal on the respective dates set forth below.
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/s/ Thomas J. May Chairman of the Board, June 25, 1998
- ------------------------- Chief Executive Officer,
THOMAS J. MAY President and Trustee
/s/ James J. Judge Senior Vice President June 25, 1998
- ------------------------- and Treasurer (principal
JAMES J. JUDGE accounting officer
/s/ Theodora S. Convisser Clerk June 25, 1998
- -------------------------
THEODORA S. CONVISSER
/s/ Gary L. Countryman Trustee June 25, 1998
- -------------------------
GARY L. COUNTRYMAN
/s/ Thomas G. Dignan, Jr. Trustee June 25, 1998
- -------------------------
THOMAS G. DIGNAN, JR.
/s/ Nelson S. Gifford Trustee June 25, 1998
- -------------------------
NELSON S. GIFFORD
/s/ Matina S. Horner Trustee June 25, 1998
- -------------------------
MATINA S. HORNER
/s/ Sherry H. Penney Trustee June 25, 1998
- -------------------------
SHERRY H. PENNEY
/s/ Stephen J. Sweeney Trustee June 25, 1998
- -------------------------
STEPHEN J. SWEENEY
