AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1999
REGISTRATION NO. 333-____________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
---------------------------
KEYSPAN CORPORATION
(Exact name of issuer as specified in its charter)
--------------------------------------------------
NEW YORK ONE METROTECH CENTER 11-3431358
(State or other jurisdiction of BROOKLYN, NEW YORK 11201 (I.R.S. Employer
incorporation or organization) (718) 403-1000 Identification No.)
175 EAST OLD COUNTRY ROAD
HICKSVILLE, NEW YORK 11801
(516) 755-6650
(Address of Principal Executive Offices)
----------------------------------------
KEYSPAN ENERGY
LONG-TERM PERFORMANCE
INCENTIVE COMPENSATION PLAN
(Full Title of the Plan)
---------------------------
FREDERICK M. LOWTHER, ESQ. COPY TO:
GENERAL COUNSEL MATTHEW G. MALONEY, ESQ.
KEYSPAN CORPORATION DICKSTEIN SHAPIRO MORIN & OSHINSKY LLP
ONE METROTECH CENTER 2101 L STREET, NW
BROOKLYN, NEW YORK 11201 WASHINGTON, DC 20037
(718) 403-1000 (202) 785-9700
(Name, address and telephone number of agent for
service)
---------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
========================== ----------- ------------------ -------------------- ----------------
Title of Amount to Proposed Maximum Proposed Maximum Amount of
Securities to be be Offering Price Aggregate Offering Registration
Registered Registered Per Share Price Fee (1)
========================== =========== ================== ==================== ================
<S> <C> <C> <C> <C>
Common Stock
$0.01 par value..... 10,500,000 $26.9375 $282,843,750 $78,631
========================== =========== ================== ==================== ================
</TABLE>
(1) COMPUTED PURSUANT TO RULE 457 (C) AND (H)(1) BASED ON THE AVERAGE OF THE
HIGH AND LOW PRICES ON MAY 17, 1999, AS REPORTED BY THE NEW YORK STOCK
EXCHANGE.
===============================================================================
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The information required by Part I is included in documents sent or
given to participants in the Plan pursuant to Rule 428(b).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents of KeySpan Corporation, formerly known as
MarketSpan Corporation (the "Corporation"), filed with the Securities and
Exchange Commission are incorporated herein by reference:
(1) The Corporation's Form 10-K for the fiscal year ended December
31, 1998, which contains audited financial statements for the Corporation's
latest fiscal year.
(2) All other reports filed by the Corporation pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Exchange Act"),
since the end of the fiscal year ended December 31, 1998.
(3) The description of the Corporation's common stock contained in
the Corporation's Registration Statement on Form 8-A filed May 26, 1998 pursuant
to Section 12(b) of the Exchange Act.
All reports and other documents subsequently filed by the Corporation 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 indicates that all securities offered hereby
have been sold or which deregisters all securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of the filing of such reports and documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Steven L. Zelkowitz, Esq. is the Senior Vice President and Deputy General
Counsel of the Corporation. He has beneficial ownership of shares of the
Corporation's common stock with an aggregate value in excess of $50,000.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 721-726 of Article 7 of the New York Business Corporation
Law (the "BCL") provide for the indemnification and advancement of expenses to
officers and directors. Section 721 provides that indemnification and
advancement of expenses pursuant to the BCL are not exclusive of any other
rights an officer or director may be entitled to, provided that no
indemnification may 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. Section 722 provides that a
corporation may indemnify an officer or director, in the case of third party
actions, against judgments, fines, amounts paid in settlement and reasonable
expenses and, in the case of derivative actions, against
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amounts paid in settlement and reasonable expenses, provided that the director
or officer acted in good faith, for a purpose which he reasonably believed to be
in the best interests of the corporation and, in the case of criminal actions,
had no reasonable cause to believe his conduct was unlawful. In addition,
statutory indemnification may not be provided in derivative actions (i) which
are settled or otherwise disposed of or (ii) in which the director or officer is
adjudged liable to the corporation, unless and only to the extent a court
determines that the person is fairly and reasonably entitled to indemnity.
Section 723 provides that statutory indemnification is mandatory where the
director or officer has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding. Section 723 also provides
that expenses of defending a civil or criminal action or proceeding may be
advanced by the corporation upon receipt of an undertaking to repay them if and
to the extent the recipient is ultimately found not to be entitled to
indemnification. Section 725 provides for repayment of such expenses when the
recipient is ultimately found not to be entitled to indemnification. Section 726
provides that a corporation may obtain indemnification insurance indemnifying
itself and its directors and officers. The Corporation has in effect insurance
policies providing both directors and officers liability coverage and corporate
reimbursement coverage.
Section 402(b) of the BCL provides that a corporation may include in
its certificate of incorporation a provision limiting or eliminating, with
certain exceptions, the personal liability of directors to a corporation or its
shareholders for damages for any breach of duty in such capacity. The
Corporation's Certificate of Incorporation eliminates personal liability of
directors to the extent permitted by New York law.
The Corporation's Certificate of Incorporation provides generally
that the Corporation shall, except to the extent expressly prohibited by the
BCL, indemnify each of its officers and directors made or threatened to be made
a party to any action, suit or proceeding, or appeal thereof, whether civil,
criminal, administrative or investigative by reason of the fact that such person
is or was a director or officer of the Corporation against all expense,
liability and loss (including, but not limited to, all attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith. The Corporation's Certificate of Incorporation further provides for
advancement and reimbursement of such expenses incurred by an officer or
director in defending any action or proceeding in advance of the final
disposition thereof upon receipt of an undertaking by such person to repay such
amount if, and to the extent that, such person is ultimately found not to be
entitled to indemnification.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The "Exhibit Index" on page E-1 is hereby incorporated by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act of 1933 (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
3
<PAGE>
the aggregate, represent a fundamental change in the information set
forth in this 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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) The undersigned Registrant hereby undertakes that, for the
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 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) 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.
4
<PAGE>
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 May 24, 1999.
KEYSPAN CORPORATION
(Registrant)
By:/s/ Craig G. Matthews
-------------------------
Craig G. Matthews
President and Chief Operating Officer
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 24, 1999.
Signature Title and Position
--------- ------------------
* Chairman of the Board and
--------------- Chief Executive Officer
Robert B. Catell (Principal executive officer)
/s/ Craig G. Matthews President and Chief Operating
---------------------- Officer
Craig G. Matthews (Principal financial officer)
/s/ Ronald S. Jendras Vice President, Controller and
--------------------- Chief Accounting Officer
Ronald S. Jendras (Principal accounting officer)
*
-------------------- Director
Lilyan H. Affinito
* Director
--------------------
George Bugliarello
* Director
--------------------
Howard R. Curd
* Director
--------------------
Richard N. Daniel
* Director
--------------------
Donald H. Elliot
* Director
---------------------
Alan H. Fishman
5
<PAGE>
* Director
---------------------
James R. Jones
* Director
---------------------
Stephen W. McKessy
* Director
---------------------
Edward D. Miller
* Director
---------------------
Basil A. Paterson
* Director
---------------------
James Q. Riordan
* Director
---------------------
Frederic V. Salerno
* Director
---------------------
Vincent Tese
*By: /s/ Craig G. Matthews
----------------------
Craig G. Matthews
ATTORNEY-IN-FACT
- -----------------
*Such signature has been affixed pursuant to a Power of Attorney filed as an
exhibit hereto and incorporated herein by reference thereto.
6
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
*5 Opinion of Steven L. Zelkowitz, Esq., Senior Vice President and Deputy
General Counsel of the Corporation re: legality of Common Stock being
registered
*23.1 Consent of Steven L. Zelkowitz, Esq., Senior Vice President and Deputy
General Counsel of the Corporation (included in Exhibit 5)
*23.2 Consent of Arthur Andersen LLP
*24 Power of Attorney made by Lilyan H. Affinito dated May 14, 1999 which
is substantially the same as Powers of Attorney made by George
Bugliarello dated May 14, 1999; Robert B. Catell dated May 14, 1999;
Howard R. Curd dated May 14, 1999; Richard N. Daniel dated May 14,
1999; Donald H. Elliott dated May 17, 1999; Alan H. Fishman dated May
14, 1999; James R. J ones dated May 20, 1999; Stephen W. McKessy dated
May 20, 1999; Edward D. Miller dated May 13, 1999; Basil A. Paterson
dated May 14, 1999; James Q. Riordan dated May 13, 1999; Frederic V.
Salerno dated May 13, 1999, and Vincent Tese dated May 14, 1999; with
Resolution authorizing signatures.
- ---------------
*Filed Herewith
E-1
May 24, 1999
KeySpan Corporation
One MetroTech Center
Brooklyn, New York 11201
Re: KeySpan Energy Long-Term Performance Incentive Compensation Plan
Ladies and Gentlemen:
As Senior Vice President and Deputy General Counsel of KeySpan
Corporation, a New York corporation (the "Company"), I am familiar with the
Company's Registration Statement on Form S-8 (the "Registration Statement")
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, for the registration of 10,500,000 shares of the Company's
common stock, $0.01 par value per share (the "Common Stock"), issuable upon the
exercise of stock options (the "Stock Options") granted under the KeySpan Energy
Long-Term Performance Incentive Compensation Plan (the "Plan"). The Common Stock
represents authorized and unissued shares of the Company's common stock.
I have examined and am familiar with originals or copies, certified
or otherwise identified to my satisfaction, of such documents, corporate records
and other instruments as I have deemed necessary or appropriate for purposes of
this opinion.
On the basis of the foregoing, I am of the opinion that:
(i) the Company has taken all necessary corporate action to authorize
the issuance of the Common Stock;
(ii) the shares of Common Stock to be issued upon the exercise of
the Stock Options are validly authorized and when issued and
delivered in accordance with the terms of the Plan, the shares
of Common Stock so issued will be validly issued, fully paid
and non-assessable.
No opinion is expressed herein as to the laws of any jurisdiction
other than the Federal laws of the United States of America and, to the extent
required by the foregoing opinion, the Business Corporation Law of the State of
New York.
The foregoing opinion is delivered to you in connection with the
Registration Statement, and may not be relied upon by any other person or for
any other purpose.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
I wish to call to your attention that the fair market value of all
securities of the Company that I beneficially own, have received or will
receive, or which are subject to options, warrants or other rights that I have
received or will receive, exceeds $50,000.
Very truly yours,
/s/ Steven L. Zelkowitz
Steven L. Zelkowitz, Esq.
Senior Vice President and
Deputy General Counsel
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated February 12, 1999
included in MarketSpan Corporaiton's Form 10-K for the nine months ended
December 31, 1998.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
May 22, 1999
New York, New York
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each officer or director of KeySpan
Corporation(the "Corporation") whose signature appears below constitutes and
appoints Craig G. Matthews and Robert R. Wieczorek, and each of them, his true
and lawful attorney-in-fact and agent, with full power of substitution, for him
and in his name, place and stead, in any and all capacities, to sign the
Corporation's Registration Statement on Form S-8 relating to the shares of the
Corporation's Common Stock issuable under the Corporation's Long- Term
Performance Incentive Compensation Plan and to sign any and all amendments
(including post-effective amendments) and supplements thereto, and to file the
same, with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto said attorney-in-fact
and agent 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, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Dated: May 14, 1999 /s/ Lilyan H. Affinito
-----------------------
LILYAN H. AFFINITO
<PAGE>
RESOLUTIONS
RESOLVED, That the Long-Term Performance Incentive Plan (the "Incentive
Plan") in the form presented to the Board and filed with the records of this
meeting be, and the same hereby is, approved and adopted;
RESOLVED, That the Incentive Plan be submitted to shareholders of the
Corporation for approval at the 1999 Annual Meeting of Shareholders with a
recommendation that it be approved, ratified and confirmed;
RESOLVED, That the proper officers of the Corporation are, authorized,
empowered and directed in the name and on behalf of the Corporation to execute
and deliver any and all such documents, certificates, instruments, agreements,
or regulatory filing, including any amendments, modifications, or supplements
thereto, and to take all such further action as any such officer or other such
authorized person deems necessary, proper, convenient, or desirable in order to
carry out the foregoing resolutions and to effectuate the purposes and intents
thereof, the taking of any such action to be conclusive evidence of the approval
thereof by the directors of the Corporation; and
FURTHER RESOLVED, That each of the Chairman, Chief Executive Officers,
President, any Senior Vice President or any Vice President of the Corporation
shall be considered a proper officer of the Corporation for the purposes of each
of the foregoing resolutions.
Dated: March 30, 1999
