As Filed with the Securities and Exchange Commission on August 14, 2000
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
under
THE SECURITIES ACT OF 1933
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KEYSPAN CORPORATION
(Exact name of registrant as specified in its charter)
NEW YORK
(State of incorporation)
11-3431358
(I.R.S. employer identification number)
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STEVEN L. ZELKOWITZ, ESQ.
ONE METROTECH CENTER, BROOKLYN, NEW YORK 11201
175 EAST OLD COUNTRY ROAD, HICKSVILLE, NEW YORK 11801
(718) 403-1000 (BROOKLYN)
(516) 755-6650 (HICKSVILLE)
(Address, including zip code, and telephone
number, including area code, of
registrant's principal executive offices
and agent for service)
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COPY TO:
RAYMOND W. WAGNER, ESQ.
SIMPSON THACHER & BARTLETT
425 LEXINGTON AVENUE
NEW YORK, NEW YORK 10017-3954
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after this Registration Statement becomes effective as determined by market
conditions.
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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, 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. |_|
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 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE
ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C> <C>
PROPOSED PROPOSED
MAXIMUM MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE AGGREGATE PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT (2) OFFERING PRICE (2) REGISTRATION FEE
Debt Securities $1,650,000,000 (1) 100% $1,650,000,000 $435,600
====================================================================================================================================
</TABLE>
(1) Or an equivalent amount, based upon the exchange rate on the applicable
trade date, in a foreign currency or currency unit identified by the Issuer on
the issue date.
(2) Estimated solely for the purpose of calculating the registration fee.
1
<PAGE>
SUBJECT TO COMPLETION, DATED AUGUST 14, 2000 PROSPECTUS
KEYSPAN CORPORATION
$1,650,000,000
DEBT SECURITIES
o We plan to issue up to $1,650,000,000 of debt securities.
o The debt securities may be offered as separate series, in amounts, prices
and on terms to be determined at the time of the sale. When we offer debt
securities, we will provide you with a prospectus supplement or a term
sheet describing the terms of the specific issue of debt securities
including the offering price of the securities.
o We may sell the debt securities to agents, underwriters or dealers, or
may sell them directly to other purchasers.
o You should read this prospectus and the prospectus supplement or the term
sheet relating to the specific issue of debt securities carefully before
you invest.
-------------------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
The date of this prospectus is
August , 2000.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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Page
<S> <C>
About this Prospectus.......................................................................................................
Risk Factors................................................................................................................
Where You Can Find More Information.........................................................................................
Forward-Looking Statements..................................................................................................
KeySpan Energy..............................................................................................................
Use of Proceeds.............................................................................................................
Ratio of Earnings to Fixed Charges..........................................................................................
Description of Securities...................................................................................................
Certain U.S. Federal Income Tax Consequences to Non-U.S. Persons ...........................................................
Plan of Distribution........................................................................................................
Legal Opinions..............................................................................................................
Experts.....................................................................................................................
</TABLE>
<PAGE>
ABOUT THIS PROSPECTUS
As used in this prospectus and any prospectus supplement or term sheet,
except as the context otherwise requires, "we," "us," "our," "our Company," and
"KeySpan Energy" mean KeySpan Corporation d/b/a KeySpan Energy, together with
its consolidated subsidiaries.
RISK FACTORS
For each series of debt securities, we will include risk factors, if
appropriate, in the prospectus supplement relating to that series.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any of these documents at the
SEC's public reference rooms in Washington, D.C., New York, New York and
Chicago, Illinois. Please call the SEC at 1-800-SEC-0330 for further information
on the public reference rooms. Our SEC filings are also available to the public
on the SEC's web site at http://www.sec.gov.
We filed a registration statement on Form S-3 with the SEC covering the
debt securities. For further information on us and the debt securities, you
should refer to the registration statement and its exhibits. This prospectus
summarizes material provisions of the indenture. Because the prospectus may not
contain all the information that you may find important, you should review the
full text of these documents. We have included copies of these documents in an
exhibit to our registration statement of which this prospectus is a part.
The SEC allows us to "incorporate by reference" the information that we
file with the SEC, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is considered to be part of this prospectus, and later information that the we
file with the SEC will automatically update and supersede this information. We
incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities
Exchange Act of 1934 until all of the securities are sold.
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
1999;
o Our Quarterly Report on Form 10-Q for the quarterly periods ended March
31, 2000 and June 30, 2000;
o Our Current Reports on Form 8-K dated November 5, 1999 , December 2,
1999, January 19, 2000, January 27, 2000, February 1, 2000, March 27,
2000, July 12, 2000 and July 26, 2000.
You may request a copy of these filings, at no cost, over the Internet at
our web site at http://www.keyspanenergy.com or by writing or telephoning us at
the following address:
Investor Relations
KeySpan Corporation
One MetroTech Center
Brooklyn, New York, 11201
(718) 403-3196
<PAGE>
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement or term sheet. We have not
authorized anyone else to provide you with different information. We are not
making an offer of these debt securities in any state where the offer is not
permitted. You should not assume that the information in this prospectus or any
supplement is accurate as of any date other than the date on the front of these
documents.
FORWARD-LOOKING STATEMENTS
Some of the information included in this prospectus, any prospectus
supplement or term sheet and the documents we have incorporated by reference
contain forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995, as amended. Such statements relate to future
events or our future financial performance. We use words such as "anticipate,"
"believe," "expect," "may," "project," "will" or other similar words to identify
forward-looking statements.
Without limiting the foregoing, all statements relating to our
o anticipated capital expenditures,
o future cash flows and borrowings,
o pursuit of potential future acquisition opportunities, and
o sources of funding
are forward-looking statements. These forward-looking statements are based on
numerous assumptions that we believe are reasonable, but they are open to a wide
range of uncertainties and business risks and actual results may differ
materially from those discussed in these statements.
Among the factors that could cause actual results to differ materially
are:
o available sources and costs of fuel;
o federal and state regulatory initiatives that increase competition,
threaten cost and investment recovery and impact rate structure;
o our ability to successfully reduce our cost structures;
o the successful integration of Eastern and EnergyNorth;
o the degree to which we develop unregulated business ventures;
o our ability to identify and make complementary acquisitions, as well as
the successful integration of those acquisitions; and
o inflationary trends and interest rates.
When considering these forward-looking statements, you should keep in
mind the cautionary statements in this document, any prospectus supplement or
term sheet and the documents incorporated by reference. We will not update these
statements unless the securities laws require us to do so.
<PAGE>
KEYSPAN ENERGY
KeySpan Energy was formed in connection with a business combination in May
1998 of KeySpan Energy Corporation, the parent of The Brooklyn Union Gas
Company, and certain businesses of the Long Island Lighting Company. Our core
business is gas distribution, conducted by our two regulated gas subsidiaries,
The Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York and
KeySpan Gas East Corporation d/b/a KeySpan Energy Delivery Long Island.
Together, they distribute gas to approximately 1.6 million customers.
We are also a major, and growing, generator of electricity. We own and
operate five large generating plants and 42 smaller facilities in Nassau and
Suffolk Counties on Long Island and a major facility in Queens County in New
York City. Under contractual arrangements, we provide power, electric
transmission-and-distribution services, billing and other customer services for
approximately one million electric customers of the Long Island Power Authority.
Our other subsidiaries are involved in oil and gas exploration and production,
gas storage, wholesale and retail gas and electric marketing, appliance service,
and large energy-system ownership, installation and management. We also invest
in, and participate in the development of, pipelines and other energy projects,
domestically and internationally.
In November 1999, KeySpan Energy and Eastern Enterprises announced that
they had signed a definitive merger agreement under which we will acquire all of
the common stock of Eastern for $64.00 per share in cash, subject to adjustment.
The transaction has a total value of approximately $2.5 billion ($1.7 billion in
equity and $0.8 billion in assumed debt and preferred stock). The transaction
will be accounted for as a purchase.
Eastern owns and operates Boston Gas Company, Colonial Gas Company, Essex
Gas Company, Midland Enterprises Inc., Transgas Inc. and ServicEdge Partners,
Inc. In July 1999, Eastern announced it had entered into an agreement to acquire
EnergyNorth, Inc. owner of New Hampshire's largest natural gas distributor,
EnergyNorth Natural Gas, Inc. EnergyNorth is located across the Massachusetts
border from, but contiguous to, areas served by Eastern's gas distribution
subsidiaries. In connection with our acquisition of Eastern, Eastern has amended
its agreement with EnergyNorth to provide for an all cash acquisition of
EnergyNorth shares at a price per share of $61.13, subject to adjustment. The
restructured EnergyNorth acquisition is expected to close contemporaneously with
the KeySpan Energy/Eastern transaction.
The increased size and scope of our combined organization should enable
KeySpan Energy, Eastern and EnergyNorth to provide enhanced, cost-effective
customer service and to capitalize on the above-average growth opportunities for
natural gas in the Northeast and provide additional resources to our unregulated
businesses. The combined company will serve approximately 2.4 million gas
distribution customers.
The transactions among KeySpan Energy, Eastern and EnergyNorth have
already received all required shareholder approvals, as well as the approval of
the New Hampshire Public Utility Commission. However, it is conditioned upon the
approval of the SEC, which is currently reviewing applications filed by us,
Eastern and EnergyNorth under the Public Utility Holding Company Act. We
anticipate that the transactions can be completed by the end of 2000, but we are
unable to determine when or if the required SEC approvals will be obtained.
Following consummation of these transactions, KeySpan Energy will be a
holding company registered under the Public Utility Holding Company Act of 1935,
as amended.
<PAGE>
USE OF PROCEEDS
We are issuing the debt securities in order to finance our acquisition of
Eastern and EnergyNorth, by either using the proceeds to finance the acquisition
of Eastern's and EnergyNorth's common stock or for any other proper Company
purpose, including to redeem or replace short term financing instruments, such
as bank loans or commercial paper issued to finance those acquisitions.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows our consolidated ratio of earnings to fixed
charges for the periods indicated.
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<S> <C> <C> <C> <C> <C>
Twelve Months Nine Months Year Six Months
Ended Ended Ended Ended Ended Ended
December 31, March 31 March 31 December 31 December 31 June 30,
1996 (a) 1997 (a) 1998(a) 1998 1999 2000
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2.15 2.21 2.44 (b) 3.23 4.14
</TABLE>
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(a) Represents ratio of earnings to fixed charges for our predecessor, Long
Island Lighting Company.
(b) For the nine months ended December 31, 1998, earnings were insufficient
to cover fixed charges by $365.0 million. During the nine months ended
December 31, 1998, we incurred the following special charges (after tax):
charges associated with the transaction with the Long Island Power
Authority of $107.9 million; charges associated with the combination of
Long Island Lighting Company's gas and electric services businesses with
KeySpan Energy Corporation of $83.5 million; an impairment charge of
$54.1 million to write-down the value of proved gas reserves; and a
charge of $13.0 million to establish a not-for-profit philanthropic
foundation.
<PAGE>
DESCRIPTION OF SECURITIES
In this description, "we," "us," "our," "our Company," and "KeySpan
Energy" mean KeySpan Corporation and not any of our subsidiaries.
The debt securities will be issued under an indenture, dated as of
October 1, 2000, between us and The Chase Manhattan Bank, as trustee. The
indenture provides for the issuance from time to time of debt securities in an
unlimited dollar amount and an unlimited number of series.
We are a holding company with no independent operations or source of
income of our own. We conduct substantially all of our operations through our
subsidiaries and, as a result, we depend on the earnings and cash flow of, and
dividends or distributions from our subsidiaries to provide the funds necessary
to meet our debt and contractual obligations. Furthermore, a substantial portion
of our consolidated assets, earnings and cash flow is derived from the
operations of our regulated utility subsidiaries, whose legal authority to pay
dividends or make other distributions to us is subject to regulation by the New
York Public Service Commission. In addition, upon consummation of the
transactions with Eastern and EnergyNorth, we expect to register as a holding
company under the Public Utility Holding Company Act. As a result, our corporate
and financial activities and our subsidiaries (including their ability to pay
dividends to us) will be subject to regulation by the SEC.
The following description of the terms of the debt securities summarizes
the material terms that will apply to the debt securities. The description is
not complete, and we refer you to the indenture, a copy of which is an exhibit
to the registration statement of which this prospectus is a part. For your
reference, in several cases below we have noted the section in the indenture
that the paragraph summarizes. Capitalized terms have the meanings assigned to
them in the indenture. The referenced sections of the indenture and the
definitions of capitalized terms are incorporated by reference in the following
summary.
Prospective purchasers of debt securities should be aware that special
U.S. Federal income tax, accounting and other considerations may be applicable
to instruments such as the debt securities. The prospectus supplement or term
sheet relating to an issue of debt securities will describe these
considerations, if they apply.
Specific terms of each series
Each time that we issue a new series of debt securities, the prospectus
supplement or term sheet relating to that new series will specify the particular
amount, price and other terms of those debt securities. These terms may include:
o the title of the debt securities;
o any limit on the total principal amount of the debt securities;
o the date or dates on which the principal of the debt securities will
be payable or their manner of determination;
o the interest rate or rates of the debt securities; the date or dates from
which interest will accrue on the debt securities; and the interest
payment dates and the regular record dates for the debt securities; or,
in each case, their manner of determination;
o the place or places where the principal of and premium and interest on
the debt securities will be paid;
<PAGE>
o the period or periods within which, the price or prices at which and the
terms on which any of the debt securities may be redeemed, in whole or in
part at our option, and any remarketing arrangements;
o the terms on which we would be required to redeem, repay or purchase debt
securities required by any sinking fund, mandatory redemption or similar
provision; and the period or periods within which, the price or prices at
which and the terms and conditions on which the debt securities will be
so redeemed, repaid or purchased in whole or in part;
o the denomination in which the debt securities will be issued, if other
than denominations of $1,000 and any whole multiple thereof;
o the portion of the principal amount of the debt securities that is
payable on the declaration of acceleration of the maturity, if other than
their principal amount; these debt securities could include original
issue discount, or OID, debt securities or indexed debt securities, which
are each described below;
o whether and under what circumstances we will pay additional amounts under
any debt securities held by a person who is not a U.S. person for tax
payments, assessments or other governmental charges and whether we have
the option to redeem the debt securities which are affected by the
additional amounts instead of paying the additional amounts;
o the form in which we will issue the debt securities, whether registered,
bearer or both, and any restrictions on the exchange of one form of debt
securities for another and on the offer, sale and delivery of the debt
securities in either form;
o whether the debt securities will be issuable as global securities;
o whether the amounts of payments of principal of, premium, if any, and
interest, if any, on the debt securities are to be determined with
reference to an index, formula or other method, and if so, the manner in
which such amounts will be determined;
o if the debt securities are issuable in definitive form upon the
satisfaction of certain conditions, the form and terms of such
conditions;
o any trustees, paying agents, transfer agents, registrars, depositories
or similar agents with respect to the debt securities;
o any additions or deletions to the terms of the debt securities with
respect to the events of default or covenants governing the debt
securities;
o the foreign currency or units of two or more foreign currencies in which
payment of the principal of and premium and interest on any debt
securities will be made, if other than U.S. dollars, and the holders'
right, if any, to elect payment in a foreign currency or foreign currency
unit other than that in which the debt securities are payable;
o whether and to what extent the debt securities are subject to
defeasance on terms different from those described under "Defeasance
of indenture;" and
o any other terms of the debt securities that are not inconsistent with
the indenture.
(section 301)
<PAGE>
We may issue debt securities as OID debt securities. OID debt securities
bear no interest or bear interest at below-market rates and are sold at a
discount below their stated principal amount. If we issue OID debt securities,
the prospectus supplement or term sheet will contain the issue price, the rate
at which interest will accrete, and the date from which such interest will
accrete on the OID debt securities.
We may also issue indexed debt securities. Payments of principal of, and
premium and interest on, indexed debt securities are determined with reference
to the rate of exchange between the currency or currency unit in which the debt
security is denominated and any other currency or currency unit specified by us,
to the relationship between two or more currencies or currency units or by other
similar methods or formulas specified in the prospectus supplement or term
sheet.
Ranking
The debt securities will be our unsecured and unsubordinated obligations
and will rank equally with all our other unsecured and unsubordinated debt.
Form and denomination
The prospectus supplement or term sheet will describe the form which the
debt securities will have, including insertions, omissions, substitutions and
other variations permitted by the indenture and any legends required by any
laws, rules or regulations. (section 201)
We will issue debt securities in denominations of $1,000 and whole
multiples thereof, unless the prospectus supplement or term sheet states
otherwise. (section 302)
Payment
We will pay principal of and premium and interest on its registered debt
securities at the place and time described in the debt securities. We will pay
installments of interest on any registered debt security to the person in whose
name the registered debt security is registered at the close of business on the
regular record date for these payments. We will pay principal and premium on
registered debt securities only against surrender of these debt securities.
(section 1001) If we issue debt securities in bearer form, the prospectus
supplement or term sheet will describe where and how payment will be made.
Material covenants
The indenture includes the following material covenants:
Lien on assets
If we mortgage, pledge or otherwise subject to any lien the whole or any
part of any property or assets which we now own or acquire in the future, then
we will secure the debt securities to the same extent and in the same proportion
as the debt or other obligation that is secured by that mortgage, pledge or
other lien. The debt securities will remain secured for the same period as the
other debt remains secured. This restriction does not apply, however, to any of
the following:
o purchase-money mortgages or liens;
<PAGE>
o liens on any property or asset that existed at the time when we
acquired that property or asset;
o any deposit or pledge to secure public or statutory obligations;
o any deposit or pledge with any governmental agency required in order
to qualify us to conduct our business, or any part of our business, or
to entitle us to maintain self-insurance or to obtain the benefits of
any law relating to workmen's compensation, unemployment insurance,
old age pensions or other social security;
o any deposit or pledge with any court, board, commission or
governmental agency as security related to the proper conduct of any
proceeding before it;
o any mortgage, pledge or lien on any property or asset of any of our
affiliates, even if the affiliate may have acquired that property or
asset from us;
o liens for taxes, assessments or governmental charges or levies not yet
delinquent or being contested in good faith by us, if we have made
appropriate reserves;
o liens of landlords and liens of mechanics and materialmen incurred in
the ordinary course of business for sums not yet due or being
contested in good faith by us, if we have made appropriate reserves;
o leases or subleases which we have granted to others in the ordinary
course of business;
o easements, rights-of-way, restrictions and other similar encumbrances
which we have incurred in the ordinary course of business and which do
not interfere with the ordinary conduct of our business;
o liens incurred in connection with the issuance by a state or a political
subdivision of a state of any securities the interest on which is exempt
from federal income taxes under Section 103 of the Internal Revenue Code
or any other laws or regulations in effect at the time of the issuance; or
o liens for the sole purpose of extending, renewing or replacing all or a
part of the indebtedness secured by any lien referred to in the foregoing
clauses or in this clause.
(section 1007)
Limitation on merger, consolidation and sales of assets
We may not consolidate with or merge into any other entity or transfer or
lease substantially all of our properties and assets to any person unless:
o the successor is organized under the laws of the United States or a
state thereof;
o the successor assumes by supplemental indenture the obligations of its
predecessor (that is, all our obligations under the debt securities
and the indenture); and
o after giving effect to the transaction, there is no default under the
indenture.
The surviving transferee or lessee corporation will be our successor, and we
will be relieved of all obligations under the debt securities and the indenture.
(sections 801 and 802)
<PAGE>
Registration of transfer and exchange
All debt securities issued upon any registration of transfer or exchange
of debt securities will be valid obligations of ours, evidencing the same debt
and entitled to the same rights under the indenture as the debt securities
surrendered in the registration of transfer or exchange.
Registration of transfer
Holders of registered debt securities may present their securities for
registration of transfer at the office of one or more security registrars
designated and maintained by us. (section 305)
We will not be required to register the transfer of or exchange debt
securities under the following conditions:
o We will not be required to register the transfer of or exchange
any debt securities during a period of 15 days before any
selection of those debt securities to be redeemed.
o We will not be required to register the transfer of or exchange
any debt securities selected for redemption, in whole or in
part, except the unredeemed portion of any debt securities being
redeemed in part.
o We will not be required to register the transfer of or exchange
debt securities of any holder who has exercised an option to
require the repurchase of those debt securities prior to their
stated maturity date, except the portion not being repurchased.
(section 305)
Exchange
At your option, you may exchange your registered debt securities of any
series (except a global security, as set forth below) for an equal principal
amount of other registered debt securities of the same series having authorized
denominations upon surrender to our designated agent.
We may at any time exchange debt securities issued as one or more global
securities for an equal principal amount of debt securities of the same series
in definitive registered form. In this case we will deliver to the holders new
debt securities in definitive registered form in the same aggregate principal
amount as the global securities being exchanged.
The depositary of the global securities may also decide at any time to
surrender one or more global securities in exchange for debt securities of the
same series in definitive registered form, in which case we will deliver the new
debt securities in definitive form to the persons specified by the depositary,
in an aggregate principal amount equal to, and in exchange for, each person's
beneficial interest in the global securities. (section 305)
Notwithstanding the above, we will not be required to exchange any debt
securities if, as a result of the exchange, we would suffer adverse consequences
under any United States law or regulation. (section 305)
Global securities
If we decide to issue debt securities in the form of one or more global
securities, then we will register the global securities in the name of the
depositary for the global securities or the nominee of the depositary and the
<PAGE>
global securities will be delivered by the trustee to the depositary for credit
to the accounts of the holders of beneficial interests in the debt securities.
The prospectus supplement or term sheet will describe the specific terms
of the depositary arrangement for debt securities of a series that are issued in
global form. None of our company, the trustee, any paying agent or the security
registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in a global debt security or for maintaining, supervising or reviewing
any records relating to these beneficial ownership interests.
Defeasance of indenture
We can terminate all of our obligations under the indenture with respect
to the debt securities, other than the obligation to pay interest on and the
principal of the debt securities and certain other obligations, at any time by:
o depositing money or U.S. government obligations with the
trustee in an amount sufficient to pay the principal of and
interest on the debt securities to their maturity; and
o complying with certain other conditions, including delivery
to the trustee of an opinion of counsel to the effect that
holders of debt securities will not recognize income, gain
or loss for federal income tax purposes as a result of our
defeasance.
In addition, we can terminate all of our obligations under the indenture
with respect to the debt securities, including the obligation to pay interest on
and the principal of the debt securities, at any time by:
o depositing money or U.S. government obligations with the
trustee in an amount sufficient to pay the principal of and
interest on the debt securities to their maturity, and
o complying with certain other conditions, including delivery
to the trustee of an opinion of counsel stating that there
has been a ruling by the Internal Revenue Service, or a
change in the federal tax law since the date of the
indenture, to the effect that holders of debt securities
will not recognize income, gain or loss for federal income
tax purposes as a result of our defeasance.
(sections 402-404)
Payments of unclaimed moneys
Moneys deposited with the trustee or any paying agent for the payment of
principal of or premium and interest on any debenture that remains unclaimed for
two years will be repaid to us at our request, unless the law requires
otherwise. If this happens and you want to claim these moneys, you must look to
us and not to the trustee or paying agent. (section 409)
Events of default, notices, and waiver
Events of default
An "event of default" regarding any series of debt securities is any one
of the following events:
o default for 30 days in the payment of any interest
installment when due and payable;
<PAGE>
o default in the payment of principal or premium when due at
its stated maturity, by declaration, when called for
redemption or otherwise;
o default in the performance of any covenant in the debt
securities or in the indenture by us for 60 days after
notice to us by the trustee or by holders of 25% in
principal amount of the outstanding debt securities of that
series;
o acceleration of debt securities of another series or any
other indebtedness of ours for borrowed money, in an
aggregate principal amount exceeding $25 million under the
terms of the instrument or instruments under which the
indebtedness is issued or secured, if the acceleration is
not annulled within 30 days after written notice as provided
in the indenture;
o certain events of bankruptcy, insolvency and reorganization
involving us; and
o any other event of default of that series that is specified
in the prospectus supplement or term sheet.
(section 501)
A default regarding a single series of debt securities will not
necessarily constitute a default regarding any other series.
If an event of default for any series of debt securities occurs and is
continuing (other than an event of default involving the bankruptcy, insolvency
or reorganization of our company), either the trustee or the holders of 25% in
principal amount of the outstanding debt securities of that series may declare
the principal (or, in the case of (a) OID debt securities, a lesser amount as
provided in those OID debt securities or (b) indexed debt securities, an amount
determined by the terms of those indexed debt securities), of all the debt
securities of that series, together with any accrued interest on the debt
securities, to be immediately due and payable by notice in writing to us. If it
is the holders of debt securities who give notice of that declaration of
acceleration to us, then they must also give notice to the trustee. (section
502)
If an event of default occurs which involves the bankruptcy, insolvency or
reorganization of our company, as set forth above, then all unpaid principal
amounts (or, if the debt securities are (a) OID debt securities, then the
portion of the principal amount that is specified in those OID debt securities
or (b) indexed debt securities, an amount determined by the terms of those
indexed debt securities) and accrued interest on all debt securities of each
series will immediately become due and payable, without any action by the
trustee or any holder of debt securities. (section 502)
In order for holders of debt securities to initiate proceedings for a
remedy under the indenture, 25% in principal amount must first give notice to us
as provided above, must request that the trustee initiate a proceeding in its
own name and must offer the trustee a reasonable indemnity against costs and
liabilities. If the trustee still refuses for 60 days to initiate the
proceeding, and no inconsistent direction has been given to the trustee by
holders of a majority of the debt securities of the same series, the holders may
initiate a proceeding as long as they do not adversely affect the rights of any
other holders of that series. (section 507)
The holders of a majority in principal amount of the outstanding debt
securities of a series may rescind a declaration of acceleration if all events
of default, besides the failure to pay principal or interest due solely because
of the declaration of acceleration, have been cured or waived. (section 502)
If we default on the payment of any installment of interest and fail to
cure the default within 30 days, or if we default on the payment of principal
when it becomes due, then the trustee may require us to pay all amounts due
<PAGE>
to the trustee, with interest on the overdue principal or interest payments, in
addition to the expenses of collection. (section 503)
A judgment for money damages by courts in the United States, including a
money judgment based on an obligation expressed in a foreign currency, will
ordinarily be rendered only in U.S. dollars. New York statutory law provides
that a court shall render a judgment or decree in the foreign currency of the
underlying obligation and that the judgment or decree shall be converted into
U.S. dollars at the exchange rate prevailing on the date of entry of the
judgment or decree. The indenture requires us to pay additional amounts
necessary to protect holders if a court requires a conversion to be made on a
date other than a judgment date.
Notices
The trustee is required to give notice to holders of a series of debt
securities of a default, which remains uncured or has not been waived, that is
known to the trustee within 90 days after the default has occurred. In the event
of a default in the performance of any covenant in the debt securities or the
indenture which results under the indenture in notice to us by the trustee after
90 days, the trustee shall not give notice to the holders of debt securities
until 60 days after the giving of notice to us. The trustee may not withhold the
notice in the case of a default in the payment of principal of and premium or
interest on any of the debt securities. (section 602)
Waiver
The holders of a majority in principal amount of the outstanding debt
securities of a series may waive any past default or event of default except a
default in the payment of principal of or premium or interest on the debt
securities of that series or a default relating to a provision that cannot be
amended without the consent of each affected holder. (section 513)
Reports
We are required to file an officer's certificate with the trustee every
year confirming that we are complying with all conditions and covenants in the
indenture. (section 1005)
We must also file with the trustee copies of our annual reports and the
information and other documents which we may be required to file with the SEC
under Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as
amended. These documents must be filed with the trustee within 15 days after
they are required to be filed with the SEC. If we are not required to file the
information, documents or reports under either of these Sections, then we must
file with the trustee and the SEC, in accordance with the rules and regulations
of the SEC, the supplementary and periodic information, documents and reports
which may be required by Section 13 of the Exchange Act, in respect of a debt
security listed and registered on a national securities exchange, as may be
required by the rules and regulations of the SEC.
Within 30 days of filing the information, documents or reports referred to
above with the trustee, we must mail to the holders of the debt securities any
summaries of the information, documents or reports which are required to be sent
to the holders by the rules and regulations of the SEC. (section 704)
Rights and duties of the trustee
The holders of a majority in principal amount of outstanding debt
securities of any series may direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or exercising any trust or
other power conferred on the trustee. The trustee may decline to follow that
direction if it would involve the trustee in personal liability or would be
illegal. (section 512) During a default, the trustee is required to exercise
<PAGE>
the standard of care and skill that a prudent man would exercise under the
circumstances in the conduct of his own affairs. (section 601) The trustee is
not obligated to exercise any of its rights or powers under the indenture at the
request or direction of any of the holders of debt securities unless those
holders have offered to the trustee reasonable security or indemnity. (section
603)
The trustee is entitled, in the absence of bad faith on its part, to rely
on an officer's certificate before taking action under the indenture. (section
603)
Supplemental indentures
Supplemental indentures not requiring consent of holders
Without the consent of any holders of debt securities, we and the trustee
may supplement the indenture, among other things, to:
o pledge property to the trustee as security for the debt
securities;
o reflect that another entity has succeeded us and assumed the
covenants and obligations of us under the debt securities
and the indenture;
o cure any ambiguity or inconsistency in the indenture or in
the debt securities or make any other provisions necessary
or desirable, as long as the interests of the holders of the
debt securities are not adversely affected in any material
respect;
o issue and establish the form and terms of any series of debt
securities as provided in the indenture;
o add to our covenants further covenants for the benefit of
the holders of debt securities (and if the covenants are for
the benefit of less than all series of debt securities,
stating which series are entitled to benefit);
o add any additional event of default (and if the new event of
default applies to fewer than all series of debt securities,
stating to which series it applies);
o change the trustee or provide for an additional trustee;
o provide additional provisions for bearer debt securities so
long as the action does not adversely affect the interests
of holders of any debt securities in any material respect;
or
o modify the indenture in order to continue its qualification
under the Trust Indenture Act of 1939 or as may be necessary
or desirable in accordance with amendments to that Act.
(section 901)
Supplemental indentures requiring consent of holders
With the consent of the holders of at least a majority in principal amount
of the series of the debt securities that would be affected by a modification of
the indenture, the indenture permits us and the trustee to supplement the
indenture or modify in any way the terms of the indenture or the rights of the
holders of the debt securities. However, without the consent of each holder of
all of the debt securities affected by that modification, we and the trustee may
not:
<PAGE>
o reduce the principal of or premium on or change the stated
final maturity of any debt security;
o reduce the rate of or change the time for payment of
interest on any debt security (or, in the case of OID debt
securities, reduce the rate of accretion of the OID);
o change any of our obligations to pay additional amounts
under the indenture;
o reduce or alter the method of computation of any amount
payable upon redemption, repayment or purchase of any debt
security by us (or the time when the redemption, repayment
or purchase may be made);
o make the principal or interest on any debt security payable
in a currency other than that stated in the debt security or
change the place of payment;
o reduce the amount of principal due on an OID debt security
upon acceleration of maturity or provable in bankruptcy or
reduce the amount payable under the terms of an indexed debt
security upon acceleration of maturity or provable in
bankruptcy;
o impair any right of repayment or purchase at the option of
any holder of debt securities;
o modify the right of any holder of debt securities to receive
or sue for payment of the principal or interest on a debt
security that would be due and payable at the maturity
thereof or upon redemption; or
o reduce the principal amount of the outstanding debt
securities of any series required to supplement the
indenture or to waive any of its provisions.
(section 902)
A supplemental indenture which modifies or eliminates a provision intended
to benefit the holders of one series of debt securities will not affect the
rights under the indenture of holders of other series of debt securities.
<PAGE>
Redemption
The specific terms of any redemption of a series of debt securities will
be contained in the prospectus supplement or term sheet for that series.
Generally, we must send notice of redemption to the holders at least 30 days but
not more than 60 days prior to the redemption date. The notice will specify:
o the principal amount being redeemed;
o the redemption date;
o the redemption price;
o the place or places of payment;
o the CUSIP number of the debt securities being redeemed;
o whether the redemption is pursuant to a sinking fund;
o that on the redemption date, interest (or, in the case of
OID debt securities, original issue discount) will cease to
accrue; and
o if bearer debt securities are being redeemed, that those
bearer debt securities must be accompanied by all coupons
maturing after the redemption date or the amount of the
missing coupons will be deducted from the redemption price,
or indemnity must be furnished, and whether those bearer
debt securities may be exchanged for registered debt
securities not being redeemed.
(section 1104)
On or before any redemption date, we will deposit an amount of money with
the trustee or with a paying agent sufficient to pay the redemption price.
(section 1103)
If less than all the debt securities are being redeemed, the trustee shall
select the debt securities to be redeemed using a method it considers fair.
(section 1103) After the redemption date, holders of debt securities which were
redeemed will have no rights with respect to the debt securities except the
right to receive the redemption price and any unpaid interest to the redemption
date. (section 1106)
Concerning the Trustee
We have customary banking relationships with the trustee, The Chase
Manhattan Bank. Among other services, The Chase Manhattan Bank provides us with
cash management and credit services, including payroll account, lockbox, foreign
exchange and investment custody account services. The Chase Manhattan Bank also
serves or has served as administrative agent and trustee with respect to other
issuances of debt by us and our subsidiaries and is a member of a syndicate of
banks which is party to several credit facilities with us in a total amount of
$2 billion. In addition, Chase Securities Inc., an affiliate of The Chase
Manhattan Bank, acts as a placement agent for our commercial paper program.
<PAGE>
Governing Law
The laws of the State of New York govern the indenture and will govern the
debt securities. (section 112)
CERTAIN U.S. FEDERAL INCOME TAX CONSEQUENCES TO NON-U.S. PERSONS
The following is a summary of certain U.S. federal income tax
considerations for beneficial owners of the debt securities that are "non-U.S.
persons" under the Internal Revenue Code of 1986, as amended. Under the Internal
Revenue Code, a "non-U.S. person" means a person that is not any of the
following:
o a citizen or resident of the United States;
o a corporation or partnership created or organized in or
under the laws of the United States or any political
subdivision thereof;
o an estate the income of which is subject to U.S. federal
income taxation regardless of its source; or
o a trust which is either subject to the supervision of a
court within the United States and the control of one or
more U.S. persons or has a valid election in effect under
applicable U.S. Treasury regulations to be treated as a U.S.
person.
This summary is based on current law which is subject to change (perhaps
retroactively), is for general purposes only and should not be considered tax
advice. This summary does not represent a detailed description of the federal
income tax consequences to you in light of your particular circumstances. In
addition, it does not represent a detailed description of the U.S. federal
income tax consequences applicable to you if you are subject to special
treatment under the U.S. federal income tax laws (including if you are a
"controlled foreign corporation," "passive foreign investment company" or
"foreign personal holding company"). We cannot assure you that a change in law
will not alter significantly the tax considerations that we describe in this
summary.
You should consult your own tax advisor concerning the particular U.S.
federal income tax consequences to you of the ownership of the debt securities,
as well as the consequences to you arising under the laws of any other taxing
jurisdiction.
U.S. Federal Withholding Tax
The 30% U.S. federal withholding tax will not apply to any payment of
principal or interest (including original issue discount) on a particular series
of debt securities provided that:
o you do not actually (or constructively) own 10% or more of
the total combined voting power of all classes of our voting
stock within the meaning of the Internal Revenue Code and
the U.S. Treasury Regulations;
o you are not a controlled foreign corporation that is related
to us through stock ownership;
o you are not a bank whose receipt of interest on the debt
securities is described in the Internal Revenue Code; and
<PAGE>
o (a) you provide your name and address on an IRS Form W-8, and certify, under
penalty of perjury, that you are not a U.S. person or (b) a financial
institution holding the debt securities on your behalf certifies, under penalty
of perjury, that it has received an IRS Form W-8 from the beneficial owner and
provides us with a copy.
If you cannot satisfy the requirements described above, payments of
premium, and interest (including original issue discount) made to you will be
subject to the 30% U.S. federal withholding tax, unless you provide us with a
properly executed:
o IRS Form 1001 claiming an exemption from withholding under
the benefit of a tax treaty or
o IRS Form 4224 stating that interest paid on the debt
security is not subject to withholding tax because it is
effectively connected with your conduct of a trade or
business in the United States.
The 30% U.S. federal withholding tax will not apply to any gain or income
that you realize on the sale, exchange, retirement or other disposition of the
debt security.
U.S. Federal Estate Tax
Your estate will not be subject to U.S. federal estate tax on debt
securities of a series beneficially owned by you at the time of your death,
provided that:
o you do not own 10% or more of the total combined voting
power of all classes of our voting stock (within the meaning
of the Internal Revenue Code and the U.S. Treasury
Regulations) and
o interest on that debt security would not have been, if
received at the time of your death, effectively connected
with the conduct by you of a trade or business in the United
States.
U.S. Federal Income Tax
If you are engaged in a trade or business in the United States and
interest on the debt securities is effectively connected with the conduct of
that trade or business (although exempt from the 30% withholding tax), you will
be subject to U.S. federal income tax on that interest on a net income basis in
the same manner as if you were a U.S. person as defined under the Internal
Revenue Code. In addition, if you are a foreign corporation, you may be subject
to a branch profits tax equal to 30% (or lower applicable treaty rate) of your
earnings and profits for the taxable year, subject to adjustments that are
effectively connected with the conduct by you of a trade or business in the
United States. For this purpose, interest on debt securities will be included in
earnings and profits.
Any gain or income realized on the disposition of a debt security
generally will not be subject to U.S. federal income tax unless:
o that gain or income is effectively connected with the
conduct of a trade or business in the United States by you,
or
o you are an individual who is present in the United States
for 183 days or more in the taxable year of that
disposition, and certain other conditions are met.
<PAGE>
Information Reporting and Backup Withholding
In general, you will not be required to provide information reporting and
backup withholding regarding payments that we make to you provided that we do
not have actual knowledge that you are a U.S. person and we have received from
you the statement described above under "U.S. Federal Withholding Tax."
In addition, you will not be required to pay backup withholding and
provide information reporting regarding the proceeds of the sale of a debt
security within the United States or conducted through certain U.S.-related
financial intermediaries, if the payor receives the statement described above
and does not have actual knowledge that you are a U.S. person, as defined under
the Internal Revenue Code, or you otherwise establish an exemption.
U.S. Treasury Regulations were recently issued that generally modify the
information reporting and backup withholding rules applicable to certain
payments made after December 31, 2000. In general, the new U.S. Treasury
Regulations would not significantly alter the present rules discussed above,
except in certain special situations.
Any amounts withheld under the backup withholding rules will be allowed as
a refund or a credit against your U.S. federal income tax liability provided the
required information is furnished to the IRS.
PLAN OF DISTRIBUTION
We may sell the debt securities as follows:
o through underwriters or dealers; or
o through agents; or
o directly to purchasers.
The prospectus supplement or term sheet for each series of debt securities
will describe that offering, including:
o the name or names of any underwriters, dealers or agents;
o the purchase price and the proceeds to us from that sale;
o any underwriting discounts and other items constituting
underwriters' compensation;
o any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers; and
o any securities exchanges on which the debt securities of
that series may be listed.
Underwriters
Unless otherwise set forth in the prospectus supplement or term sheet, the
obligations of the underwriters to purchase debt securities will be subject to
certain conditions. The underwriters will be obligated to purchase all the debt
securities of a series if any are purchased.
The debt securities will be acquired by the underwriters for their own
account and may be resold by them
<PAGE>
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may be deemed to have received compensation
from us in the form of underwriting discounts or commissions and may also
receive commissions from the purchasers of debt securities for whom they may act
as agent. Underwriters may also sell debt securities to or through dealers.
These dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters and/or commissions from the purchasers for
whom they may act as agent. Any initial public offering price and any discounts
or concessions allowed or reallowed or paid to dealers may be changed from time
to time.
We may authorize underwriters to solicit offers by certain types of
institutions to purchase debt securities from us at the public offering price
stated in the prospectus supplement or term sheet required by delayed delivery
contracts providing for payment and delivery on a specified date in the future.
If we sell debt securities under these delayed delivery contracts, the
prospectus supplement or term sheet will state that as well as the conditions to
which these delayed delivery contracts will be subject and the commissions
payable for that solicitation.
Agents
We may also sell debt securities through agents designated by us from time
to time. We will name any agents involved in the offer or sale of the debt
securities and will list commissions payable by us to these agents in the
prospectus supplement or term sheet. These agents will be acting on a best
efforts basis to solicit purchases for the period of their appointment, unless
we state otherwise in the prospectus supplement or term sheet.
Direct sales
We may sell debt securities directly to purchasers. In this case, we will
not engage underwriters or agents in the offer and sale of debt securities.
Remarketing transactions
We may also sell debt securities that we have purchased, redeemed or
repaid through one or more remarketing firms acting as principals for their own
accounts or as our agents. The applicable prospectus supplement or term sheet
will identify any remarketing firms and describe the terms of our agreement with
them and their compensation. Remarketing firms may be deemed to be underwriters
of the debt securities under the Securities Act of 1933, as amended.
Indemnification
We may indemnify underwriters, dealers or agents who participate in the
distribution of debt securities against certain liabilities, including
liabilities under the Securities Act, and agree to contribute to payments which
these underwriters, dealers or agents may be required to make.
No assurance of liquidity
Each series of debt securities will be a new issue of securities with no
established trading market. Any underwriters that purchase debt securities from
us may make a market in these debt securities. The underwriters will not be
obligated, however, to make a market in the debt securities and may discontinue
market-making at any time without notice to holders of debt securities. We
cannot assure you that there will be liquidity in the trading
<PAGE>
market for any debt securities of any series.
LEGAL OPINIONS
The validity of the debt securities offered by us in this prospectus will
be passed upon for us by Steven L. Zelkowitz, Senior Vice President and General
Counsel of KeySpan Energy. Mr. Zelkowitz is the beneficial owner of or has the
option to acquire approximately 277,346 shares of our common stock. Certain
legal matters will be passed upon for any agents or underwriters by Simpson
Thacher & Bartlett, New York, New York, or other counsel identified in the
prospectus supplement or term sheet. Simpson Thacher & Bartlett also acts as
counsel for us from time to time.
EXPERTS
Arthur Andersen LLP, independent accountants, audited certain financial
statements for the nine months ended December 31, 1998 and the twelve months
ended December 31, 1999, and related schedules incorporated by reference in this
prospectus. These documents are incorporated by reference herein in reliance
upon the authority of Arthur Andersen LLP, as experts in accounting and auditing
in giving the reports.
Ernst & Young LLP, independent auditors, have audited the income statement
and statement of cash flows, and the related financial statement schedule of
Long Island Lighting Company for the twelve months ended March 31, 1998 included
in our Annual Report on Form 10-K, as amended, for the twelve months ended
December 31, 1999, as set forth in their report, which is incorporated by
reference in this prospectus. These financial statements and schedule are
incorporated by reference herein in reliance upon Ernst & Young LLP's report,
given upon their authority, as experts in accounting and auditing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The expenses in connection with the issuance and distribution of the debt
securities being registered, other than the underwriting discounts and
commissions, are as follows:
Securities and Exchange Commission Registration Fee $435,600
Legal Fees and Expenses $100,000
Accountants Fees and Expenses $50,000
Trustee Fees and Expenses $15,000
Rating Agency Fees $250,000
Printing and Delivery Expenses $75,000
Miscellaneous Expenses $5,000
--------------
Total* $930,600
==============
---------------------
* Estimated
Item 15. Indemnification of Directors and Officers.
The New York Business Corporation Law ("BCL"), Article 7, Sections 721-726
provide for the indemnification and advancement of expenses to officers and
directors. Section 721 provides that indemnification and advancement 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 the director personally gained a
financial profit or other advantage to which he or she was not legally entitled.
Section 722 of the BCL 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 amounts paid in settlement and reasonable expenses,
provided that the director or officer acted in good faith, for a purpose which
he or she 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 of the BCL 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 registrant has in effect
insurance policies providing both directors and officers liability coverage and
corporate reimbursement coverage.
II-1
<PAGE>
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
certificate of incorporation of the registrant contains provisions eliminating
the personal liability of directors to the extent permitted by New York law.
The registrant's certificate of incorporation provides generally that it
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 or criminal by reason of
the fact that such person is or was an officer or director against all expense,
liability and loss (including, but not limited to all attorneys' fees,
judgments, fines, pension plan taxes or penalties and amounts paid or to be paid
in settlement) reasonably incurred or suffered by such person in connection
therewith. The 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 16. List of Exhibits.
See Exhibit Index
Item 17. 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;
(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. 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 or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the 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 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, 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 Issuer pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
II-2
<PAGE>
(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 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 purposes of
determining any liability under the Securities Act of 1933, each filing of the
Issuer's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
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
of 1933 may be permitted to directors, officers and controlling persons of such
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 indemnification is
against public policy as expressed in such Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by such registrants of expenses incurred or paid by a director,
officer or controlling person of such registrants 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 of 1933 and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, KeySpan Corporation
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement amendment to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Brooklyn, State of New York, on the 14th day of
August, 2000.
KEYSPAN CORPORATION
Issuer of Securities
(Registrant)
By:/s/ Gerald Luterman
----------------------
Gerald Luterman
Chief Financial Officer and Senior Vice-President
(Principal Financial 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 and
on the dates indicated.
Signatures and Titles: Date:
* August 14, 2000
------------------------------------------------
Robert B. Catell
Chief Executive Officer and Director
(Principal Executive Officer)
/s/ Gerald Luterman August 14, 2000
------------------------------------------------
Gerald Luterman
Chief Financial Officer and Senior Vice-
President
(Principal Financial Officer)
/s/ Ronald Jendras August 14, 2000
------------------------------------------------
Ronald Jendras
Vice President, Controller and Chief
Accounting Officer
(Principal Accounting Officer)
* August 14, 2000
------------------------------------------------
II-4
<PAGE>
Lilyan H. Affinito
Director
* August 14, 2000
-----------------------------------------------
George Bugliarello
Director
* August 14, 2000
-----------------------------------------------
Howard R. Curd
Director
* August 14, 2000
-----------------------------------------------
Richard N. Daniel
Director
* August 14, 2000
-----------------------------------------------
Donald H. Elliott
Director
* August 14, 2000
-----------------------------------------------
Alan H. Fishman
Director
* August 14, 2000
-----------------------------------------------
James R. Jones
Director
* August 14, 2000
-----------------------------------------------
Stephen W. McKessy
Director
* August 14, 2000
-----------------------------------------------
II-5
<PAGE>
Edward D. Miller
Director
* August 14, 2000
----------------------------------------------
Basil A. Paterson
Director
* August 14, 2000
----------------------------------------------
James Q. Riordan
Director
* August 14, 2000
----------------------------------------------
Vincent Tese
Director
/s/ Ronald Jendras August 14, 2000
----------------------------------------------
Ronald Jendras, as Attorney-in-Fact
Vice President, Controller and Chief
Accounting Officer
---------------
* Such signature has been affixed pursuant to a power of attorney filed as an
exhibit hereto.
II-6
<PAGE>
EXHIBIT INDEX
Exhibit
Number Description of Exhibits
1** Form of Underwriting Agreement
2 Agreement and Plan of Merger, dated as of November 4, 1999,
by and among KeySpan Corporation, Eastern Enterprises and
ACJ Acquisition LLC (filed as Exhibit 2 to KeySpan's Current
Report on Form 8-K dated November 5, 1999 and incorporated
herein by reference)
4-a** Form of Indenture, dated as of August 1, 2000, between the
Registrant and The Chase Manhattan Bank, as trustee. The
form or forms of debt securities with respect to each
particular series of debt securities registered hereunder
will be filed as an exhibit to a Current Report on Form 8-K
and shall be deemed to be incorporated herein by reference.
5** Opinion of Steven L. Zelkowitz as to the legality of the
debt securities to be issued
12* Computation of ratio of earnings to fixed charges
23-a* Consent of Arthur Andersen, LLP, Independent Accountants
23-b* Consent of Ernst & Young, LLP, Independent Auditors
23-c** Consent of Steven L. Zelkowitz (contained in his Opinion
filed as Exhibit 5 hereto)
24-a* Powers of Attorney
24-b* Certified resolution of the Board of Directors of KeySpan
Energy authorizing signatures pursuant to power of attorney
25** Statement of Eligibility of The Chase Manhattan Bank on
Form T-1
------------------
* Filed herewith.
** To be filed by Amendment.
II-7
