SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
FORM U-1/A
AMENDMENT NO. 5
TO
FORM U-1
APPLICATION
UNDER THE
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
Energy East Corporation
(formerly known as NGE Resources, Inc.)
One Commerce Plaza
Suite 2006A - 20th Floor
Albany, New York 12260
(Name of company or companies filing this statement and
address of principal executive offices)
Daniel W. Farley
c/o Energy East Corporation
One Commerce Plaza
Suite 2006A - 20th Floor
Albany, New York 12260
Telephone: (518) 434-3014
(Names and addresses of agents for service)
Copies to:
Leonard Blum, Esq.
Huber Lawrence & Abell
605 Third Avenue
New York, New York 10158
Telephone: (212)682-6200
Joanne Rutkowski, Esq.
LeBouef, Lamb, Greene & MacRae, L.L.P.
1875 Connecticut Avenue, N.W.
Washington, D.C. 20009
Telephone: (202) 986-8000
<PAGE>
This Amendment No. 5 on Form U-1/A to the Form U-1 of Energy
East Corporation (formerly known as NGE Resources, Inc.) is being
filed for the following purposes:
1. To amend the first two paragraphs of Item 1. A. to read
as follows:
Item 1. Description of Proposed Transaction.
A. Introduction
Energy East Corporation (formerly known as NGE Resources,
Inc.), a New York corporation ("HoldCo"), seeks authorization
from the Securities and Exchange Commission ("Commission") under
Sections 3(a)(1), 9(a)(2) and 10 of the Public Utility Holding
Company Act of 1935 (the "1935 Act" or "Act"), in connection with
the proposed corporate reorganization of New York State Electric
& Gas Corporation ("NYSEG"), a New York electric and gas utility
company. The reorganization is being proposed as part of a
comprehensive rate and restructuring plan to satisfy electric
industry restructuring goals established by the Public Service
Commission of the State of New York ("PSC"). Specifically,
HoldCo hereby applies for the approval of the Commission pursuant
to Section 9(a)(2) of the 1935 Act (i) to acquire all of the
outstanding shares of common stock of NYSEG ("NYSEG Common
Stock") pursuant to a Plan of Exchange ("Plan of Exchange"), a
form of which is filed as Exhibit B-1 hereto, and (ii) to engage
in the proposed transactions described in this application which
will result in HoldCo owning all of the outstanding NYSEG Common
Stock and all of the outstanding common stock of GenSub, a New
York corporation ("GenSub"), which will become an "electric
utility company" for purposes of the 1935 Act. In addition,
HoldCo hereby applies pursuant to Section 3(a)(1) of the 1935 Act
for an order exempting HoldCo and each of its subsidiary
companies from all provisions of the 1935 Act (except for Section
9(a)(2) thereof).
The proposed Plan of Exchange is anticipated to be
implemented as soon as practicable after the Annual Meeting of
the holders of NYSEG Common Stock ("Stockholders") currently
expected to be held in April 1998. To facilitate this schedule,
the applicant requests that the Commission issue an order in this
matter by February 27, 1998. If the Stockholders approve the
proposed Plan of Exchange and the requisite regulatory approvals
are obtained, the share exchange pursuant to the Plan of Exchange
will become effective upon the filing of a Certificate of
Exchange by the Department of State of the State of New York
("Effective Time").
2. To amend the second-to-last paragraph of Item 1. C. to
read as follows:
The consummation of the Reorganization, including the Plan
of Exchange, is subject to various conditions. These conditions
include the approval of the Commission under Section 9(a)(2) of
the 1935 Act and the granting by the Commission of an exemption
under Section 3(a)(1) of the 1935 Act as requested in this
application, and the approval of the PSC, the FERC, and the NRC.
The Plan of Exchange is subject to approval by the affirmative
vote of two-thirds of the votes of the outstanding shares of
NYSEG Common Stock at the Annual Meeting of Stockholders
currently expected to be held in April 1998. Since the requisite
order of the Commission is being obtained by this application,
the vote of the holders of NYSEG Preferred Stock is not required
in connection with the Plan of Exchange.
3. To amend the first paragraph of Item 3. B. to read as
follows:
Item 3. Applicable Statutory Provisions.
B. The Exemption under Section 3(a)(1)
HoldCo does not intend to register as a holding company
under the 1935 Act. As demonstrated below, HoldCo respectfully
submits that it should be granted, by Commission order, an
exemption under Section 3(a)(1) of the 1935 Act. Section 3(a)(1)
of the 1935 Act makes available an exemption from all of the
provisions of the 1935 Act (except for Section 9(a)(2) thereof)
to a "holding company" if:
such holding company, and every subsidiary company
thereof which is a public-utility company from which
such holding company derives, directly or indirectly,
any material part of its income, are predominately
intrastate in character and carry on their business
substantially in a single State in which such holding
company and every such subsidiary company thereof are
organized.
HoldCo will satisfy such requirements. HoldCo, NYSEG and GenSub
all are organized and carry on, or in the case of HoldCo and
GenSub will carry on, their business substantially in New York
State (GenSub will sell some electricity at wholesale from
certain of its generating stations into the Pennsylvania-New
Jersey-Maryland Interconnection(PJM Power Pool)) and neither
NYSEG, HoldCo nor GenSub will derive any material part of its
income from a utility company that carries on its business and/or
is organized outside of New York State. Neither NYSEG nor GenSub
makes any electricity sales to retail customers outside of New
York State.
4. To amend the first sentence of Item 5 to read as
follows:
The Reorganization is anticipated to be implemented as soon
as practicable after the Annual Meeting of Stockholders currently
expected to be held in April 1998.
<PAGE>
5. To amend Item 6 by adding the exhibit listed below:
Item 6. Exhibits and Financial Statements.
The following exhibit is being filed with this Amendment
No. 5:
NO. DESCRIPTION METHOD OF FILING
F-1 Preliminary opinion of counsel. Filed herewith.
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Amendment No. 5 to be signed on its behalf by the undersigned
thereunto duly authorized.
Energy East Corporation
Date: February 27, 1998 By Daniel W. Farley
Daniel W. Farley
Secretary
EXHIBIT F-1
February 26, 1998
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We have acted as counsel for Energy East Corporation
(formerly known as NGE Resources, Inc.), (the "Company")
currently a wholly-owned subsidiary of New York State Electric &
Gas Corporation ("NYSEG") in connection with the Company's
Application on Form U-1, as amended from time to time (the
"Application"), filed with the Securities and Exchange Commission
(the "Commission") under the Public Utility Holding Company Act
of 1935, as amended (the "Act"). As described in the
Application, all of the outstanding shares of Common Stock of the
Company, which will then be owned by NYSEG, will be canceled and
all of the outstanding shares of NYSEG Common Stock will be
exchanged on a share-for-share basis for the Company's Common
Stock (the "Share Exchange"). Upon consummation of the Share
Exchange, each person who owned NYSEG Common Stock immediately
prior to the Share Exchange will own a corresponding number of
shares and percentage of the outstanding shares of the Company's
Common Stock, and the Company will own all of the outstanding
shares of NYSEG Common Stock.
In connection therewith, the Company has filed a
Registration Statement on Form S-4, as the same may be amended
from time to time (the "Registration Statement"), with the
Commission under the Securities Act of 1933, as amended,
registering 76,000,000 shares of the Company's Common Stock, with
a par value of One Cent ($.01) per share, which are issuable upon
the consummation of, and subsequent to, the Share Exchange
contemplated by the Agreement and Plan of Share Exchange (the
"Plan of Exchange") between the Company and NYSEG filed as
Exhibit A to the Proxy Statement and Prospectus which forms a
part of the Registration Statement. All capitalized terms not
otherwise defined herein have the same meanings as defined in the
Registration Statement.
As counsel to the Company, we are generally familiar with
its corporate proceedings and have examined the Application, the
Registration Statement and the Plan of Exchange and such other
documents as we have deemed relevant and necessary as a basis for
the opinion hereinafter set forth. In addition, we have made
such other and further investigations as we have deemed relevant
and necessary as a basis for the opinion hereinafter set forth.
<PAGE>
In such examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of the
originals of such latter documents.
Based on the foregoing and upon such further examination of
corporate records and documents and matters of law as we have
considered necessary or desirable for the purposes of this
opinion, it is our opinion that:
(a) the Company is validly organized and duly existing under
the laws of the State of New York;
(b) when all necessary regulatory approvals shall have been
obtained, when the Company's Common Stock shall have been
issued and exchanged in accordance with the terms of the
Plan of Exchange as proposed in the Application and the
Registration Statement, and when the Certificate of Exchange
shall have been filed by the Department of State of the
State of New York or become effective as may be specified in
the Certificate of Exchange, (i) all laws of the State of
New York applicable to the transactions contemplated in the
Application will have been complied with; (ii) the Company's
Common Stock will be legally issued, fully paid and non-
assessable, and the holders thereof will be entitled to the
rights appertaining thereto set forth in the Company's
Certificate of Incorporation, as amended from time to time;
(iii) the Company will legally acquire GenSub's and NYSEG's
Common Stock; and (iv) the consummation of the transactions
proposed in the Application will not violate the legal
rights of the holders of any securities issued by the
Company, NYSEG or any associate company thereof.
The opinion expressed herein is limited to the laws of
the State of New York and to applicable United States
federal law and we express no opinion as to the laws of any
other jurisdiction.
We hereby consent to the filing of this opinion as
Exhibit F-1 to the Application.
Very truly yours,
Huber Lawrence & Abell
