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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 1, 2000
REGISTRATION NO. 333-31390
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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CONSOLIDATED EDISON, INC.
(Exact name of Registrant as specified in its charter)
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DELAWARE 4931 51-0394156
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
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4 Irving Place
New York, New York 10003
(212) 460-4600
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
------------------------------
JOHN D. MCMAHON, ESQ.
Senior Vice President and General Counsel
Consolidated Edison, Inc.
4 Irving Place
New York, New York 10003
(212) 460-4757
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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COPIES TO:
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GEORGE W. BILICIC, JR., CHERYL W. GRISE, ESQ. STEVEN H. DAVIS, ESQ.
ESQ. Senior Vice President, LeBoeuf, Lamb, Greene &
Cravath, Swaine & Moore Secretary and MacRae, L.L.P.
Worldwide Plaza, 825 Eighth General Counsel 125 West 55th Street
Avenue Northeast Utilities New York, New York 10019
New York, New York 10019 107 Selden Street (212) 424-8000
(212) 474-1000 Berlin, Connecticut 06037
(860) 665-3639
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Approximate date of commencement of proposed sale of the securities to the
public: As soon as practicable after the effective time of this Registration
Statement and the effective time of the merger referred to herein.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) 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 this Form is a post-effective amendment filed pursuant to Rule 462(d)
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. / /
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT 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 OF 1933 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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PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Delaware law permits a corporation to adopt a provision in its certificate
of incorporation eliminating or limiting the personal liability of a director,
but not an officer in his or her capacity as such, to the corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except that such provision shall not limit the liability of a director for
(1) any breach of the director's duty of loyalty to the corporation or its
shareholders, (2) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) liability under
section 174 of the Delaware General Corporation Law for unlawful payment of
dividends or stock purchases or redemptions, or (4) any transaction from which
the director derived an improper personal benefit. The New Con Edison
certificate of incorporation provides that no director of New Con Edison shall
be personally liable to New Con Edison or its stockholders for monetary damages
for breach of fiduciary duty as a director, except to the extent such an
exemption from liability or limitation thereof is not permitted under the
Delaware General Corporation Law.
Under Delaware law, a corporation may indemnify any person made a party or
threatened to be made a party to any type of proceeding, other than action by or
in the right of the corporation, because he or she is or was an officer,
director, employee or agent of the corporation or was serving at the request of
the corporation as an officer, director, employee or agent of another
corporation or entity against expenses, judgments, fines and amounts paid in
settlement actually and reasonably incurred in connection with such proceeding:
(1) if he or she acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation; or (2) in the
case of a criminal proceeding, he or she had no reasonable cause to believe that
his or her conduct was unlawful. A corporation may indemnify any person made a
party or threatened to be made a party to any threatened, pending or completed
action or suit brought by or in the right of the corporation because he or she
was an officer, director, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation or other entity, against expenses actually and
reasonably incurred in connection with such action or suit if he or she acted in
good faith and in a manner he or she reasonably believed to be in or not opposed
to the best interests of the corporation, provided that such indemnification
will be denied if the person is found liable to the corporation unless, in such
a case, the court determines the person is entitled to indemnification for such
expenses in any event. A corporation must indemnify a present or former director
or officer who successfully defends himself or herself in a proceeding to which
he or she was a party because he or she was a director or officer of the
corporation against expenses actually and reasonably incurred by him or her.
Expenses incurred by an officer or director, or any employees or agents as
deemed appropriate by the board of directors, in defending civil or criminal
proceedings may be paid by the corporation in advance of the final disposition
of such proceedings upon receipt of an undertaking by or on behalf of such
director or officer to repay such amount if it shall ultimately be determined
that he or she is not entitled to be indemnified by the corporation. The
Delaware law regarding indemnification and expense advancement is not exclusive
of any other rights which may be granted by the New Con Edison certificate of
incorporation or by-laws, a vote of shareholders or disinterested directors,
agreement or otherwise.
Under the Delaware General Corporation Law, termination of any proceeding by
conviction or upon a plea of nolo contendere or its equivalent shall not, of
itself, create a presumption that such person is prohibited from being
indemnified.
The New Con Edison by-laws provide for the indemnification and advancement
of expenses to the fullest extent permitted by law of any person made, or
threatened to be made, a party to an action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or
II-1
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she is or was a director, officer, employee or agent of New Con Edison or serves
or served any other enterprise at the request of New Con Edison. However, New
Con Edison will not indemnify a director or officer who commences any
proceeding, unless the commencement of that proceeding is approved by a majority
vote of the disinterested directors.
After the merger, New Con Edison has agreed to indemnify each present and
former director and officer, when acting in said capacity, of Con Edison,
Northeast or any of their subsidiaries, against all costs or expenses,
judgments, fines, losses, claims, damages or liabilities in connection with any
claim, action, suit, proceeding or investigation brought within six years of the
closing of the merger for acts or omissions, existing or occurring before the
merger, to the fullest extent permitted under applicable law.
For a period of six years after the merger, New Con Edison has agreed to
maintain a policy of directors' and officers' liability insurance for acts and
omissions occurring before the merger with coverage in an amount and scope at
least as favorable as Con Edison's and Northeast's existing directors' and
officers' liability insurance coverage. If such liability insurance is not
available at all, New Con Edison must obtain the most advantageous directors'
and officers' liability insurance obtainable.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) See Exhibit Index.
(b) Not Applicable.
(c) Opinion of Salomon Smith Barney Inc. (included as Annex B to this joint
proxy statement/ prospectus which is a part of this registration
statement).
Opinion of Morgan Stanley & Co. Incorporated (included as Annex C to
this joint proxy statement/prospectus which is a part of this registration
statement).
Opinion of SG Barr Devlin, a division of SG Cowen Securities Corporation
(included as Annex D to this joint proxy statement/prospectus which is a
part of this registration statement).
ITEM 22. 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 the information in the
registration statement.
(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
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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 registrant'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) (1) The undersigned registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through
use of a prospectus which is a part of this registration statement, by
any person or party who is deemed to be an underwriter within the meaning
of Rule 145(c), the issuer undertakes that such reoffering prospectus
will contain the information called for by the applicable registration
form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other
items of the applicable form.
(2) The registrant undertakes that every prospectus (i) that is filed
pursuant to paragraph (c)(1) immediately preceding, or (ii) that
purports to meet the requirements of Section 10(a)(3) of the
Securities Act of 1933 and is used in connection with an offering of
securities subject to Rule 415, will be filed a part of an amendment
to the registration statement and will not be used until such
amendment is effective, and that, for purposes 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.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection
with the securities being registered, the registrant will, unless in the
opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as expressed
in the Securities Act of 1933 and will be governed by the final
adjudication of such issue.
(e) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus
pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business
day of receipt of such request, and to send the incorporated documents by
first class mail or other equally prompt means. This includes information
contained in documents filed subsequent to the effective date of the
registration statement through the date of responding to the request.
(f) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and
the company being acquired involved therein, that was not the subject of
and included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, New Con Edison
has duly caused this amended registration statement to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on March 1, 2000.
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CONSOLIDATED EDISON, INC.
By: /s/ JOAN S. FREILICH
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Name: Joan S. Freilich
Title: Chairman of the Board of
Directors,
Chief Executive Officer,
President and Director
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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SIGNATURE TITLE DATE
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/s/ JOAN S. FREILICH Chairman of the Board of Directors, Chief March 1, 2000
---------------------------- Executive Officer, President and Director
Joan S. Freilich
/s/ JOHN D. MCMAHON Secretary and Director March 1, 2000
----------------------------
John D. McMahon
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II-4
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EXHIBIT INDEX
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EXHIBIT
NUMBER DESCRIPTION
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2.1 Amended and Restated Agreement and Plan of Merger dated as
of October 13, 1999, amended and restated as of January 11,
2000, among Consolidated Edison, Inc., Northeast Utilities,
Consolidated Edison, Inc., originally incorporated as CWB
Holdings, Inc. and N Acquisition LLC (included as Annex A to
the joint proxy statement/prospectus which is a part of this
registration statement).*
3.1 Form of Certificate of Incorporation of Consolidated Edison,
Inc. to be in effect as of the effective time of the merger
(included as Exhibit A to Annex A to the joint proxy
statement/ prospectus which is a part of this registration
statement).*
3.2 Form of By-laws of Consolidated Edison, Inc. to be in effect
as of the effective time of the merger (included as
Exhibit B to Annex A to the joint proxy
statement/prospectus which is a part of this registration
statement).*
4.1 Specimen certificate of Consolidated Edison, Inc. common
stock, par value $.10 per share.*
5.1 Opinion of Cravath, Swaine & Moore, regarding the legality
of the securities being registered.
8.1 Opinion of Cravath, Swaine & Moore as to tax matters.*
8.2 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P. as to tax
matters.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of Arthur Andersen LLP.*
23.3 Consent of Cravath, Swaine & Moore (included in Exhibits 5.1
and 8.1).*
23.4 Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (included
in Exhibit 8.2).*
23.5 Consent of Salomon Smith Barney Inc.*
23.6 Consent of Morgan Stanley & Co. Incorporated.*
23.7 Consent of SG Barr Devlin Division of SG Cowen Securities
Corporation.*
24.1 Power of Attorney (included on the signature page of this
registration statement).*
99.1 Form of Proxy Card of Con Edison.*
99.2 Form of Proxy Card of Northeast.*
99.3 Opinion of Salomon Smith Barney Inc. (included as Annex B to
the joint proxy statement/ prospectus which is a part of
this registration statement).*
99.4 Opinion of Morgan Stanley & Co. Incorporated (included as
Annex C to the joint proxy statement/prospectus which is a
part of this registration statement).*
99.5 Opinion of SG Barr Devlin, a division of SG Cowen Securities
Corporation (included as Annex D to the joint proxy
statement/prospectus which is a part of this registration
statement).*
99.6 Consent of Eugene R. McGrath.*
99.7 Consent of Michael G. Morris.*
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* Previously filed
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Exhibit 5.1
[Letterhead of]
CRAVATH, SWAINE & MOORE
[New York Office]
February 29, 2000
Dear Ladies and Gentlemen:
We have acted as counsel for Consolidated Edison, Inc., a
Delaware corporation (the "Company"), in connection with the registration by the
Company of shares of its Common Stock, par value $0.10 per share (the "Shares"),
pursuant to a Registration Statement on Form S-4 (the "Registration Statement"),
to which this opinion is being filed as an exhibit. The Shares are proposed to
be issued pursuant to the Amended and Restated Agreement and Plan of Merger,
dated as of October 13, 1999, and amended and restated as of January 11, 2000,
among Consolidated Edison, Inc., Northeast Utilities, Consolidated Edison, Inc.
(originally incorporated as CWB Holdings, Inc.) and N Acquisition LLC (the
"Merger Agreement").
As counsel for the Company, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for the purposes of this opinion, including: (a) the Restated
Certificate of Incorporation of the Company; (b) the By-laws of the Company; (c)
the Merger Agreement; (d) various corporate records and proceedings relating to
the organization of the Company and the issuance by the Company of the Shares;
(e) various resolutions of the Company relating to the organization of the
Company and the issuance by the Company of the Shares; and (f) a specimen
certificate representing the Shares.
Based upon the foregoing, we are of opinion that the Shares
have been duly and validly authorized, and
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2
when issued in the manner referred to in the Merger Agreement, will be validly
issued, fully paid and nonassessable.
We hereby consent to the use of this opinion as an exhibit to
the Registration Statement and to the reference to this opinion under the
heading "Legal Matters" in the Joint Proxy Statement/Prospectus included
therein.
Very truly yours,
CRAVATH, SWAINE & MOORE
Consolidated Edison, Inc.
4 Irving Place
New York, New York 10003
