ENERGY EAST CORP, S-8, 2000-05-19

ENERGY EAST CORP
S-8, 2000-05-19
ELECTRIC SERVICES

Previous: NEWMARK HOMES CORP, DEFR14A, 2000-05-19

Next: PIMCO VARIABLE INSURANCE TRUST, 497, 2000-05-19

<PAGE>
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------

SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549

------------------------

FORM S-8

REGISTRATION STATEMENT
UNDER

THE SECURITIES ACT OF 1933

------------------------

ENERGY EAST CORPORATION
(Exact name of Registrant as specified in its charter)

<TABLE>
<S> <C>
NEW YORK 14-1798693
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
</TABLE>

P.O. BOX 12904
ALBANY, NEW YORK 12212-2904

(Address of principal executive offices)

ENERGY EAST CORPORATION
2000 STOCK OPTION PLAN
(Full title of plan)

------------------------

DANIEL W. FARLEY
SECRETARY
ENERGY EAST CORPORATION
P.O. BOX 12904
ALBANY, NEW YORK 12212-2904

(Name and address of agent for service)

------------------------

(518) 434-3049
(Telephone number, including area code, of agent for service)

------------------------

CALCULATION OF REGISTRATION FEE

<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF SECURITIES TO BE AMOUNT OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED TO BE REGISTERED PER SHARE OFFERING PRICE REGISTRATION FEE
<S> <C> <C> <C> <C>
Common Stock ($.01 Par
Value).................. 9,263,205 Shs. (1) $21.125 (2) $195,685,206 (2) $51,661
</TABLE>

(1) The number of shares of Common Stock registered herein is subject to
adjustment to prevent dilution resulting from stock splits, stock dividends
or similar transactions.

(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).

- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>

<PAGE>

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE

The Securities and Exchange Commission allows us to "incorporate by
reference" information into this Registration Statement, which means that we can
disclose important information to you by referring you to another document filed
separately with the SEC. The information incorporated by reference is deemed to
be part of this Registration Statement. The information filed with the SEC in
the future will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
by us with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, until we file a post-effective amendment to this
Registration Statement which indicates that all of the securities have been sold
or which deregisters all securities then remaining unsold.

1. Our Annual Report on Form 10-K for the year ended December 31,
1999.

2. Our Quarterly Report on Form 10-Q for the quarter ended March
31, 2000.

3. Our Current Reports on Form 8-K filed January 31, 2000, February
8, 2000 and February 18, 2000.

ITEM 4. DESCRIPTION OF SECURITIES

The following statements with respect to our common stock, par value
$.01 per share, and preferred stock, par value $.01 per share, are summaries of
certain provisions of our Restated Certificate of Incorporation, as amended
("Charter"), setting forth the designations, preferences, privileges and voting
powers of such stock and their restrictions or qualifications. These statements
are summaries and we refer to the Charter for the full provisions.

GENERAL. Our Charter provides that, to the extent permitted by the
Business Corporation Law of the State of New York ("BCL") and our Charter, our
Board of Directors is authorized, at any time or from time to time, to establish
and designate one or more series of our preferred stock and to fix the number of
shares and the relative rights, preferences and limitations of each such series.

DIVIDENDS. Subject to any prior rights of our preferred stock, if any
should become outstanding, dividends on our common stock will be paid if, when
and as determined by our Board of Directors from time to time out of funds
legally available for that purpose.

VOTING RIGHTS. Holders of our common stock are entitled to one vote for
each share held by them on all matters submitted to the stockholders and are
entitled to cumulative voting in the election of directors. Our Charter provides
for the adoption of a plan of merger or consolidation by the affirmative vote of
the stockholders entitled to cast a majority of the votes entitled to be cast.
Our Charter and By-Laws require the affirmative vote of the stockholders
entitled to cast two-thirds of the votes entitled to be cast in order for
stockholders to alter, amend, repeal, or adopt any provision inconsistent with,
certain specified provisions of our By-Laws. Our Board of Directors is divided
into three classes serving staggered three year terms.

2
<PAGE>

LIQUIDATION. In the event of any liquidation, dissolution or winding
up, either voluntary or involuntary, after payment or provision for payment
shall have been made of the amounts to which the holders of our preferred stock
shall be entitled under the provisions of any series of our preferred stock
established by the Board of Directors, the holders of our common stock will be
entitled, to the exclusion of the holders of our preferred stock of any series,
to share ratably, according to the number of shares held by them, in all
remaining assets of ours available for distribution.

PREEMPTIVE AND OTHER RIGHTS. The holders of our capital stock are not
entitled to any preemptive rights to subscribe for or purchase any part of any
issue, sale or offering of any shares of our capital stock of any class or
series, now or hereafter authorized, or of any options, warrants or rights to
subscribe for or purchase any such shares, or of any securities convertible
into, exchangeable for, or carrying options, warrants or rights to subscribe for
or purchase, any such shares, regardless of whether such issue, sale or offering
is for cash, property, services or otherwise. Our common stock is not subject to
redemption or to any further calls or assessments and is not entitled to the
benefit of any sinking fund provisions. The shares of our common stock to be
issued in connection with the Plan when issued will be fully paid and
non-assessable.

LISTING. Our common stock is listed on the New York Stock Exchange.

TRANSFER AGENT AND REGISTRAR. The Transfer Agent and Registrar for our
common stock is ChaseMellon Shareholder Services, L.L.C., P.O. Box 3315, South
Hackensack, New Jersey 07606-1915.

ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL

The validity of the Energy East shares to be issued under the Plan will
be passed upon for Energy East by Huber Lawrence & Abell. As of May 1, 2000,
members of Huber Lawrence & Abell owned 4,524 shares of Energy East common
stock.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

The BCL provides that if a derivative action is brought against a
director or officer, we may indemnify him against amounts paid in settlement
and reasonable expenses, including attorney's fees, incurred by him in
connection with the defense or settlement of such action, if such director or
officer acted in good faith for a purpose which he reasonably believed to be
in our best interests, except that no indemnification shall be made without
court approval in respect of a threatened action, or a pending action settled
or otherwise disposed of, or in respect of any matter as to which such
director or officer has been found liable to us. In a nonderivative action or
threatened action, the BCL provides that we may indemnify a director or
officer against judgments, fines, amounts paid in settlement and reasonable
expenses, including attorney's fees incurred by him in defending such action
if such director or officer acted in good faith for a purpose which he
reasonably believed to be in our best interests.

Under the BCL, a director or officer who is successful, either in a
derivative or nonderivative action, is entitled to indemnification as outlined
above. Under any other circumstances, such director or officer may be
indemnified only if certain conditions specified in the BCL are met. The
indemnification provisions of the BCL are not exclusive of any other rights to
which a director or officer seeking indemnification may be entitled pursuant to
the provisions of the certificate of incorporation or the by-laws of a
corporation or, when authorized by such certificate of incorporation or by-laws,
pursuant to a shareholder's resolution, a director's resolution or an agreement
providing for such indemnification.

3
<PAGE>

The above is a general summary of certain provisions of the BCL and is
subject, in all cases, to the specific and detailed provisions of Sections
721-725 of the BCL.

Our By-Laws provide that to the extent not prohibited by law, we shall
indemnify each person made, or threatened to be made, a party to any civil or
criminal action or proceedings by reason of the fact that he, or his testator or
intestate, (i) is or was a director or officer of ours or (ii) is or was serving
any other corporations of any type or kind, domestic or foreign, or any
partnership, joint venture, trust, employee benefit plan or other enterprise, in
any capacity at our request.

Our By-Laws also provide, among other things, that:

(1) no indemnification shall be made to or on behalf of any
director or officer, if a judgment or other final adjudication
adverse to the director or officer establishes that his acts
were committed in bad faith or were the result of active and
deliberate dishonesty and were material to the cause of action
so adjudicated, or that he personally gained in fact a
financial profit or other advantage to which he was not
legally entitled;

(2) the rights to indemnification and advancement of defense
expenses granted by or pursuant to the By-Laws shall not limit
or exclude, but shall be in addition to, any other rights
which may be granted by or pursuant to any statute,
certificate of incorporation, by-law, resolution or agreement;
and

(3) we may, with the approval of the Board of Directors, enter
into an agreement with any person who is, or is about to
become, a director or officer of ours, or who is serving, or
is about to serve, at our request, as a director, officer, or
in any other capacity, any other corporation of any type or
kind, domestic or foreign, or any partnership, joint venture,
trust, employee benefit plan or other enterprise, which
agreement may provide for indemnification of such person and
advancement of defense expenses to such person upon such
terms, and to the extent, not prohibited by law.

We have insurance policies indemnifying our directors and officers
against certain obligations that may be incurred by them, subject to certain
retention and co-insurance provisions.

ITEM 8. LIST OF EXHIBITS

See Exhibit Index.

ITEM 9. UNDERTAKINGS

A. UNDERTAKING TO UPDATE ANNUALLY

The Registrant hereby undertakes:

(1) to file, during any period in which offers or sales
are being made of the securities registered hereby, 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 this Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental

4
<PAGE>

change in the information set forth in this
Registration Statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low and high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Securities and Exchange Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;

(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
this Registration Statement or any material change to
such information in this Registration Statement;

Provided, however, that the undertakings set forth in paragraphs (i)
and (ii) do not apply if this Registration Statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the Securities and Exchange
Commission by the Registrant pursuant to Section 13 or Section 15(d) of
the Exchange Act that are incorporated by reference in this
Registration Statement;

(2) that, for the purpose 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.

(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. INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE

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 Section 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 this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.

C. INDEMNIFICATION

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 provisions of the Registrant's By-Laws, the BCL 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

5
<PAGE>

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.

SIGNATURES

Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of New York, State of New York, on the
19th day of May, 2000.

ENERGY EAST CORPORATION

By W. W. VON SCHACK*
--------------------------------
CHAIRMAN

Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on May 19th, 2000.

PRINCIPAL EXECUTIVE, FINANCIAL AND ACCOUNTING OFFICER:

W. W. von Schack* Chairman and Director

DIRECTORS:

RICHARD AURELIO* Director

JAMES A. CARRIGG* Director

ALISON P. CASARETT* Director

JOSEPH J. CASTIGLIA* Director

LOIS B. DeFLEUR* Director

PAUL L. GIOIA* Director

JOHN M. KEELER* Director

BEN E. LYNCH* Director

WALTER G. RICH* Director

* By T. G. BORKOWSKY
-------------------------------------
(T. G. Borkowsky, ATTORNEY-IN-FACT)

6
<PAGE>

EXHIBIT INDEX

EXHIBIT NO.
- -----------

5 Opinion of Huber Lawrence & Abell with respect to the legality of the
securities registered hereunder.

23-1 Consent of PricewaterhouseCoopers LLP.

23-2 Consent of Huber Lawrence & Abell. (Included in opinion filed as
Exhibit No. 5).

24-1 Power of Attorney of Directors and Officers.

24-2 Power of Attorney of Registrant.

<PAGE>

EXHIBIT 5

May 19, 2000

Energy East Corporation
P.O. Box 12904
Albany, New York 12212-2904

Dear Sirs:

In connection with the proposed offering and sale by Energy East
Corporation (the "Company") of not to exceed an aggregate of 9,263,205 shares of
its Common Stock ($.01 Par Value) (the "Stock") pursuant to the terms of its
2000 Stock Option Plan ("Plan"), the Company is filing with the Securities and
Exchange Commission a Registration Statement under the Securities Act of 1933,
as amended, on Form S-8 (the "Registration Statement") with which this opinion
is to be included as an Exhibit.

As your counsel, we are generally familiar with the corporate
proceedings of the Company and are generally familiar with the Plan.

In our opinion, when the actions as hereinafter set forth shall have
been taken, the Stock will have been duly authorized, and when sold, will be
legally issued, fully paid and non-assessable:

(a) The Registration Statement shall have been filed with the
Securities and Exchange Commission and shall have become
effective;

(b) The Board of Directors of the Company shall have authorized
the issuance and sale of the Stock;

(c) The common stockholders of the Company shall have approved the
issuance and sale of the Stock in accordance with the terms of
the Plan; and

(d) The Stock shall have been appropriately issued and delivered
to the purchaser or purchasers thereof in accordance with the
terms of the Plan and the consideration therefor received by
the Company.

We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the making of the statements with reference to our
firm under the heading "Legal Opinion" in the related prospectus.

Very truly yours,

/s/ HUBER LAWRENCE & ABELL

<PAGE>

EXHIBIT 23-1

CONSENT OF INDEPENDENT ACCOUNTANTS

We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated January 28, 2000, except as to Note
15, which is as of February 8, 2000, relating to the financial statements and
financial statement schedule, which appears in Energy East Corporation's Annual
Report on Form 10-K for the year ended December 31, 1999. We also consent to the
reference to us under the heading "Experts" in the related Prospectus pertaining
to the 2000 Stock Option Plan.

/s/ PRICEWATERHOUSECOOPERS LLP

New York, New York
May 19, 2000

<PAGE>

EXHIBIT 24-1

POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
officer of Energy East Corporation, a New York corporation, hereby constitutes
and appoints W.W. von Schack, K.M. Jasinski, Esq., D.W. Farley, R.D. Kump and
T.G. Borkowsky, Esq. and each of them (with full power to each of them to act
alone) his or her true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him or her and on his or her behalf and in
his or her name, place and stead, to sign, execute and file with the Securities
and Exchange Commission, Washington, D.C. under the provisions of the Securities
Act of 1933, as amended, a Registration Statement on Form S-8 for the
registration of not to exceed 9,263,205 shares of Common Stock ($.01 Par Value)
through the Corporation's 2000 Stock Option Plan, any and all amendments to such
Registration Statement and any and all other documents requisite to be filed
with respect thereto, with all exhibits and other documents in connection
therewith, granting unto said attorneys, and each of them or their substitutes
or substitute, full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, in order to
effectuate the same as fully to all intents and purposes as he or she might or
could do.