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As filed with the Securities and Exchange Commission on August 19, 1999
Registration No. 333-78285
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-4
ON
FORM S-8*
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
NSTAR
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(Exact name of Registrant as specified in its charter)
MASSACHUSETTS 04-3466300
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
800 BOYLSTON STREET, BOSTON, MASSACHUSETTS 02199
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 424-2000
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Stock Incentive Plan
Boston Edison Savings Plan
Boston Edison Negotiated Savings Plan for Office, Technical,
and Professional Employees
Boston Edison Negotiated Savings Plan for Production and
Maintenance Employees
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(Full title of the Plan)
DOUGLAS S. HORAN, ESQ.
NSTAR
800 BOYLSTON STREET
BOSTON, MASSACHUSETTS 02199
(617) 424-2000
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(Name, address and telephone number of agent for service)
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Please send copies of all communications to:
DAVID A. FINE, ESQ.
ROPES & GRAY
ONE INTERNATIONAL PLACE
BOSTON, MASSACHUSETTS 02110
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* See Explanatory Note following this cover page.
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Explanatory Note
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NSTAR (the "Registrant") hereby amends its Registration Statement on Form
S-4 (File No. 333-78285), effective May 14, 1999 (the "Form S-4"), by filing
this Post-Effective Amendment No. 2 to Form S-4 on Form S-8 (the "Registration
Statement") relating to a total of 3,171,604 Common Shares. 2,000,000 of these
Common Shares are issuable in connection with the Registrant's Stock Incentive
Plan, 622,186 are issuable in connection with the Boston Edison Savings Plan,
225,973 are issuable in connection with the Boston Edison Negotiated Savings
Plan for Office, Technical, and Professional Employees, and 323,445 are issuable
in connection with the Boston Edison Negotiated Savings Plan for Production and
Maintenance Employees (collectively, the "Plans").
Pursuant to an Agreement and Plan of Merger, dated as of December 5, 1998,
as amended and restated as of May 4, 1999 (the "Merger Agreement"), BEC Energy
and Commonwealth Energy System ("COM/Energy") will become wholly-owned
subsidiaries of the Registrant. Also pursuant to the Merger Agreement, BEC
Energy and the Registrant have taken or will take such actions as are necessary
such that BEC Energy Common Shares are no longer issuable under the Plans.
Instead, the Registrant's Common Shares will be issuable under the Plans in such
amounts and at such prices as adjusted pursuant to the Plan and the Merger
Agreement.
This Registration Statement relates only to the Registrant's 3,171,604
Common Shares registered on the Form S-4 that will not be issued in the Merger
and that are issuable with respect to the Plans.
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PART II
INFORMATION REQUIRED IN
THE REGISTRATION STATEMENT
Item 3. Incorporation of documents by reference.
The following documents, which have heretofore been filed by the Registrant
with the Securities and Exchange Commission pursuant to the Exchange Act
(Central Index Key No. 0001085871), are incorporated by reference herein and
shall be deemed to be a part hereof:
(i) The Joint Proxy Statement/Prospectus covering 65,000,000 Common
Shares of the Registrant, as filed with the Commission as part of the
Form S-4 on May 12, 1999.
(ii) Description of Common Shares included in the Registration Statement
on Form S-4 filed under the Securities Act, including any amendment
or report filed for the purpose of updating such description.
(iii) All documents subsequently filed by NSTAR or, where applicable, the
Plans, 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 have been sold or which
deregisters all securities then remaining unsold shall be deemed to
be incorporated herein by reference and shall be deemed a part hereof
from the date of filing of such documents.
The consolidated financial statements of BEC Energy included in BEC Energy's
Annual Report on Form 10-K/A for the year ended December 31, 1998, which is
incorporated by reference to the Joint Proxy Statement/Prospectus, have been
audited by PricewaterhouseCoopers LLP, independent accountants, as stated in its
report which is also included in the Annual Report. These consolidated financial
statements are incorporated by reference in this Registration Statement in
reliance upon the report given and upon the authority of PricewaterhouseCoopers
as experts in accounting and auditing.
The consolidated financial statements of COM/Energy included in COM/Energy's
Annual Report on Form 10-K for the year ended December 31, 1998, which is
incorporated by reference in the prospectus included in the Joint Proxy
Statement/Prospectus have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in giving
said reports.
Item 4. Description of Securities.
Not applicable.
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Item 5. Interests of Named Experts and Counsel.
Thomas G. Dignan, Jr., a partner of Ropes & Gray (counsel to the Company),
is a trustee of the Company.
Item 6. Indemnification of Trustees and Officers.
NSTAR's Declaration of Trust (the "Declaration of Trust") provides that, to
the extent legally permissible, each of NSTAR's Trustees and officers shall be
indemnified by NSTAR's trust estate against any loss, liability or expense,
including amounts paid in satisfaction of judgments, in compromise or as fines
and penalties, and counsel fees, imposed upon or reasonably incurred by such
person in connection with the defense or disposition of any action, suit or
other proceeding, whether civil or criminal, in which such person may be
involved or with which such person may be threatened, while in office or
thereafter, by reason of such person's being or having been such a Trustee or
officer, except with respect to any matter as to which such person shall have
been adjudicated in such action, suit or proceeding not to have acted in good
faith in the reasonable belief that his or her action was in the best interests
of NSTAR; provided, however, that as to any matter disposed of by a compromise
payment by such Trustee or officer, pursuant to a consent decree or otherwise,
no indemnification either for said payment or for any other expenses shall be
provided unless such compromise shall be approved as in the best interests of
NSTAR, after notice that it involves such indemnification, (i) by a
disinterested majority of the Trustees then in office, or (ii) by a majority of
the disinterested Trustees then in office, provided that there has been obtained
an opinion in writing of independent legal counsel to the effect that such
Trustee or officer appears to have acted in good faith in the reasonable belief
that his or her action was in the best interests of NSTAR, or (iii) by the vote,
at a meeting duly called and held, of the holders of a majority of the shares
outstanding and entitled to vote thereon, exclusive of any shares owned by any
interested Trustee or officer.
In discharging his or her duties, a Trustee or officer of NSTAR, when acting
in good faith, shall be fully protected in relying upon the books of account of
NSTAR or of another organization in which he or she serves as contemplated by
the indemnification provisions of the Declaration of Trust, reports made to
NSTAR or to such other organization by any of its officers or employees or by
counsel, accountants, appraisers or other experts or consultants selected with
reasonable care by the Trustees or similar governing body of such other
organization, or upon other records of NSTAR or of such other organization. The
rights of indemnification provided in the Declaration of Trust shall not be
exclusive of or affect any other rights to which any Trustee or officer may be
entitled and such rights shall inure to the benefit of his or her successors,
heirs, executors, administrators and other legal representatives. As used in
this provision, the terms "Trustee" and "officer" include persons who serve at
the request of NSTAR as directors, officers, or trustees of another organization
in which NSTAR has any direct or indirect interest as a shareholder, creditor or
otherwise.
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Expenses, including counsel fees, reasonably incurred by any Trustee or
officer with respect to the defense or disposition of any action, suit or
proceeding referred to in the indemnification provisions of the Declaration of
Trust may be advanced by NSTAR prior to the final disposition of such action,
suit or proceeding, upon receipt of an undertaking by or on behalf of the
recipient to repay such amount unless it is ultimately determined that he or she
is entitled to indemnification. Nothing contained in these provisions affects
any rights to indemnification to which NSTAR personnel other than Trustees and
officers may be entitled by contract or otherwise under law. No Trustee shall be
obligated to give any bond or other security for the performance of any of his
or her duties.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8.
(a) Exhibits: See "Exhibit Index"
(b) The registrant undertakes that, where applicable, it will submit or has
submitted the Plans or any amendments thereto to the Internal Revenue Service
("IRS") in a timely manner and has made or will make all changes required by the
IRS in order to qualify the plans under ERISA.
Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement; (i) to
include any prospectus required by Section 10(a)(3) of the Securities Act of
1933 (the "Securities Act'); (ii) to reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof), which, individually or in
the aggregate, represent a fundamental change in the information set forth
in the registration statement; and (iii) to include any material information
with respect to the plan of distribution not previously disclosed in the
registration statement or any material change to such information in the
registration statement; provided, however, that paragraphs (a)(l)(i) and
(ii) shall not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") that are incorporated
by reference in the registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the
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securities offered herein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities 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 trustees, 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 trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
4.1 NSTAR Declaration of Trust, dated April 20, 1999
(incorporated by reference to Exhibit Annex D to the Proxy
Statement/Prospectus in Part I of Registration Statement on
Form S-4 of NSTAR (No. 333-78285).
4.2 By-laws of NSTAR, dated April 20, 1999 (incorporated by
reference to Annex E to the Proxy Statement/Prospectus in
Part I of Registration Statement on Form S-4 of NSTAR (No.
333-78285)).
5.1 Opinion of Ropes & Gray.
15.1 PricewaterhouseCoopers LLP's Letter Re Unaudited Interim
Financial Information.
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Arthur Andersen LLP
23.3 Consent of Ropes & Gray (included in Opinion filed as
Exhibit 5.1).
24 Power of Attorney
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Post-Effective Amendment No. 2 to Form S-4 on Form S-8 to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Boston, Commonwealth of Massachusetts, on the 18th of August 1999.
NSTAR
BY: /s/ Thomas J. May
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TITLE: Chairman of the Board,
Chief Executive Officer,
Treasurer and Trustee
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Post-Effective Amendment No. 2 to Form S-4 on Form S-8 has been signed below by
the following persons in the capacities stated below on the 18th of August
1999.
/s/ Thomas J. May Chairman of the Board,
- ----------------- Chief Executive Officer,
THOMAS J. MAY Treasurer, and Trustee
/s/ Russell D. Wright President, Chief Operating Officer,
- --------------------- Clerk, and Trustee
RUSSELL D. WRIGHT
-8-
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Exhibit 5.1
Opinion of Ropes & Gray
August 17, 1999
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: NSTAR Amended Registration on Form S-8 to Form S-4
Ladies and Gentlemen:
We have acted as counsel to NSTAR (the "Registrant"), a Massachusetts
business trust, in connection with the Registrant's Post-Effective Amendment No.
2 (the "Registration Statement") on Form S-8 to the Form S-4 that was filed on
May 12, 1999 (File No. 333-78285). The Registration Statement is to be filed
with the Securities and Exchange Commission and relates to the registration
under the Securities Act of 1933, as amended, of 2,231,918 Common Shares, par
value $1.00 per share (the "Shares"), in connection with the Stock Incentive
Plan, the Boston Edison Savings Plan, the Boston Edison Negotiated Savings Plan
for Office, Technical, and Professional Employees, and the Boston Edison
Negotiated Savings Plan for Production and Maintenance Employees (collectively,
the "Plans").
We are familiar with the Registration Statement and the Plans, and we have
examined the Registrant's Declaration of Trust, dated April 20, 1999, and the
Registrant's By-Laws. We have also examined such other documents, instruments,
certificates and corporate records as we considered necessary for purposes of
this opinion, and have assumed that the signatures on all documents examined by
us are genuine.
Based on the foregoing, we are of the opinion that the Shares, when issued
in accordance with the Plans and the consideration therefore received by the
Registrant, will be authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Very truly yours,
/s/ Ropes & Gray
Ropes & Gray
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Exhibit 15.1
LETTER RE UNAUDITED INTERIM
FINANCIAL INFORMATION
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Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, DC 20549
Re: NSTAR Amended Registration on Form S-8 to Form S-4
We are aware that our report dated July 22, 1999 on our review of the
interim financial information of BEC Energy as of June 30, 1999 and for the
period then ended, included in the Company's quarterly report on Form 10-Q for
the quarter then ended, is incorporated by reference in this Registration
Statement. Pursuant to Rule 436(c) under the Securities Act of 1933 this report
should not be considered a part of the registration statement prepared or
certified by us within the meaning of Sections 7 and 11 of the Act.
/s/ PricewaterhouseCoopers LLP
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PRICEWATERHOUSECOOPERS LLP
August 17, 1999
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Exhibit 23.1
CONSENT OF PRICEWATERHOUSECOOPERS L.L.P.
We consent to the incorporation by reference in this Post-Effective
Amendment No. 2 on Form S-8 to the Form S-4 Registration Statement of NSTAR of
our report dated January 28, 1999 relating to the consolidated financial
statements and financial statement schedules, which appears in BEC Energy's
Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
PRICEWATERHOUSECOOPERS LLP
August 17, 1999
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Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement on Form S-8 of our report dated
February 18, 1999, included in Commonwealth Energy System's Annual Report on
Form 10-K for the year ended December 31, 1998, and all references to our Firm
included in this registration statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
August 16, 1999
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Exhibit 24
POWER OF ATTORNEY
We, the undersigned officers and trustees of NSTAR (the "Trust"), hereby
severally constitute Thomas J. May, Russell D. Wright, Douglas S. Horan, Michael
P. Sullivan, and each of them singly, our true and lawful attorneys, with full
power to them and each of them to sign for us, and in our names in the
capacities indicated below, any and all amendments (including post-effective
amendments) to the registration statement on Form S-8 of the Boston Edison
Company 1997 Stock Incentive Plan, Boston Edison Savings Plan, Boston Edison
Negotiated Savings Plan for Office, Technical, & Professional Employees, Boston
Edison, and the Negotiated Savings Plan for Production and Maintenance Employees
and generally to do all such things in our names and on our behalf in the
capacities indicated below to enable NSTAR to comply with the provisions of the
Securities Act of 1933, as amended, and all requirements of the Securities and
Exchange Commission, hereby ratifying and confirming our signatures as they may
be signed by our said attorneys to all amendments to said registration
statement.
Witness our hands and common seal on the respective dates set forth below.
/s/ Thomas J. May Chairman of the Board, August 18, 1999
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THOMAS J. MAY Chief Executive Officer, Treasurer
and Trustee
/s/ Russell D. Wright President, Chief Operating Officer, August 18, 1999
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RUSSELL D. WRIGHT Clerk, and Trustee
