As filed with the Securities and Exchange Commission on May 24, 2002
Registration No. 333-____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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Constellation Energy Group, Inc.
(Exact Name of Registrant as Specified in its Charter)
Maryland 52-1964611
(State of Incorporation) (I.R.S. Employer Identification No.)
250 W. Pratt Street
Baltimore, Maryland 21201
(Address of Principal Executive Offices) (Zip Code)
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Constellation Energy Group, Inc. Executive Long-Term Incentive Plan
and
Constellation Energy Group, Inc. 2002 Senior Management Long-Term Incentive Plan
(Full Title of the Plans)
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E. Follin Smith
Sr. Vice President
250 W. Pratt Street
Baltimore, Maryland 21201
(Name and Address of Agent for Service)
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410-783-3013
(Telephone Number, including Area Code, of Agent for Service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of securities Amount to maximum offering maximum aggregate Amount of
to be registered be registered(1) price per share(2) offering price(2) registration fee
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Common Stock 13,000,000 Shares $30.18 $392,275,000 $36,089.30
(without par value)(1)
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(1)Pursuant to Rule 416, there is also being registered an indeterminate amount
of additional shares of Common Stock as may become issuable as result of stock
splits, stock dividends or similar transactions. (2) Estimated pursuant to Rule
457(c) and (h) solely for purposes of calculating the amount of the registration
fee, based on average of the high and low price per share Constellation Energy
Group, Inc. Common Stock without par value on May 22, 2002, as reported on New
York Stock Exchange.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I will be
sent or given to each person eligible to participate in the Constellation Energy
Group, Inc. Executive Long-Term Incentive Plan and Constellation Energy Group,
Inc. 2002 Senior Management Long-Term Incentive Plan, ("Plans"), as specified by
Rule 428(b)(1) under the Securities Act of 1933 (the "Securities Act"). In
accordance with the instructions to Part I of Form S-8, such documents will not
be filed with the Commission under Part I of this Registration Statement or any
Prospectus filed pursuant to Rule 424 under the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. 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, as amended, prior to
the filing of a post-effective amendment which indicates that all securities
offered have been sold or which deregisters all securities remaining unsold. o
Annual Report on Form 10-K for the year ended December 31, 2001; o Quarterly
Report on Form 10-Q for the quarter ended March 31, 2002; o Current Reports on
Form 8-K dated January 30, 2002, January 31, 2002 and March 19, 2002; o The
description of the Common Stock, contained under the caption "Proposal No. 1,
Approval of the Share
Exchange and Formation of the Holding Company -- Capital Stock" in the
Proxy Statement and Prospectus contained in Constellation Energy's Registration
Statement on Form S-4 (Reg. No. 33-64799).
Any statement contained in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded to the
extent that a statement contained in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such prior statement. Any such statement so modified or superseded
shall not be deemed to constitute a part of this Registration Statement, except
as so modified or superseded.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement which is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers.
The following description of indemnification allowed under Maryland
statutory law is a summary rather than a complete description. Reference is made
to Section 2-418 of the Corporations and Associations Article of the Maryland
Annotated Code, which is incorporated herein by reference, and the following
summary is qualified in its entirety by such reference.
By a Maryland statute, a Maryland corporation may indemnify any
director who was or is a party or is threatened to be made a party to any
threatened, pending, or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative ("Proceeding") by reason of the fact
that he is a present or former director of the corporation and any person who,
while a director of the corporation, is or was serving at the request of the
corporation as a director, officer, partner, trustee, employee, or agent of
another corporation, partnership, joint venture, trust, other enterprise, or
employee benefit plan ("Director"). Such indemnification may be against
judgments, penalties, fines, settlements and reasonable expenses actually
incurred by him in connection with the Proceeding unless it is proven that (a)
the act or omission of the Director was material to the cause of action
adjudicated in the Proceeding and (i) was committed in bad faith, or (ii) was
the result of active and deliberate dishonesty; or (b) the Director actually
received an improper personal benefit in money, property, or services; or (c) in
the case of any criminal action or proceeding, the Director had reasonable cause
to believe his act or omission was unlawful. However, the
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corporation may not indemnify any Director in connection with a Proceeding by or
in the right of the corporation if the Director has been adjudged to be liable
to the corporation. A Director or officer who has been successful in the defense
of any Proceeding described above shall be indemnified against reasonable
expenses incurred in connection with the Proceeding. The corporation may not
indemnify a Director in respect of any Proceeding charging improper personal
benefits to the Director in which the Director was adjudged to be liable on the
basis that personal benefit was improperly received.
Notwithstanding the above provisions, a court of appropriate
jurisdiction, upon application of the Director may order indemnification if it
determines that in view of all the relevant circumstances, the Director or
officer is fairly and reasonably entitled to indemnification; however,
indemnification with respect to any Proceeding by or in the right of the
corporation or in which liability was adjudged on the basis that personal
benefit was improperly received shall be limited to expenses. A corporation may
advance reasonable expenses to a Director under certain circumstances, including
a written undertaking by or on behalf of such Director to repay the amount if it
shall ultimately be determined that the standard of conduct necessary for
indemnification by the corporation has not been met.
A corporation may indemnify and advance expenses to an officer of the
corporation to the same extent that it may indemnify Directors under the
statute.
The indemnification and advancement of expenses provided or authorized
by this statute may not be deemed exclusive of any other rights, by
indemnification or otherwise, to which a Director or officer may be entitled
under the charter, by-laws, a resolution of shareholders or directors, an
agreement or otherwise.
A corporation may purchase and maintain insurance on behalf of any
person who is or was a Director or officer, whether or not the corporation would
have the power to indemnify a Director or officer against liability under the
provision of this section of Maryland law. Further, a corporation may provide
similar protection, including a trust fund, letter of credit or surety bond, not
inconsistent with the statute.
Article Eight from the Company's Charter reads follows:
"(a) (i) The Corporation shall indemnify
(A) its Directors and Officers, whether serving
the Corporation or at its request any other entity, to the
full extent required or permitted by the general laws of the
State of Maryland, now or hereafter in force, including the
advance of expenses, under the procedures and to the full
extent permitted by law, and
(B) other employees and agents, to such extent as
shall be authorized by the Board of Directors or the
Corporation's by-laws and be permitted by law.
(ii) The foregoing rights of indemnification shall not
be exclusive of any other rights to which those seeking
indemnification may be entitled.
(iii) The Board of Directors may take such action as is
necessary to carry out these indemnification provisions and is
expressly empowered to adopt, approve and amend from time to
time such by-laws, resolutions or contracts implementing such
provisions or such further indemnification arrangements as may
be permitted by law. No amendment of the Charter of the
Corporation or repeal of any of its provisions shall limit or
eliminate the right to indemnification provided hereunder with
respect to any act or omission occurring prior to such
amendment or repeal.
(b) To the fullest extent permitted by Maryland statutory or
decisional law, as amended or interpreted, no Director or
Officer of this Corporation shall be personally liable to the
Corporation or its stockholders for money damages. No
amendment of the Charter of the Corporation or repeal of any
of its provisions shall limit or eliminate the limitation on
liability provided to Directors and Officers hereunder with
respect to any act or omission occurring prior to such
amendment or repeal."
Article V of the Company's By-Laws reads as follows:
"The Corporation shall indemnify all Directors,
Officers and employees to the fullest extent permitted by the
general laws of the State of Maryland and shall provide
indemnification expenses in advance to the extent permitted
thereby. The Corporation will follow the procedures required
by applicable law in determining persons eligible for
indemnification and in making indemnification payments and
advances.
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The indemnification and advance of expenses provided
by the Charter and these by-laws shall not be deemed exclusive
of any other rights to which a person seeking indemnification
or advance of expenses may be entitled under any law (common
or statutory), or any agreement, vote of stockholders or
disinterested Directors or other provision that is consistent
with law, both as to action in his or her official capacity
and as to action in another capacity while holding office or
while employed or acting as agent for the corporation, shall
continue in respect of all events occurring while a person was
a Director or Officer after such person has ceased to be a
Director or Officer, and shall inure to the benefits of the
estate, heirs, executors and administrators of such person.
All rights to indemnification and advance of expenses under
the Charter of the Corporation and hereunder shall be deemed
to be a contract between the Corporation and each Director or
Officer of the Corporation who serves or served in such
capacity at any time while this by-law is in effect. Nothing
herein shall prevent the amendment of this by-law, provided
that no such amendment shall diminish the rights of any person
hereunder with respect to events occurring or claims made
before its adoption or as to claims made after its adoption in
respect of events occurring before its adoption. Any repeal or
modification of this by-law shall not in any way diminish any
rights to indemnification or advance of expenses of such
Director or Officer or the obligations of the Corporation
arising hereunder with respect to events occurring, or claims
made, while this by-law or any provision hereof is in force."
The Directors and officers of the Registrant are covered by insurance
indemnifying them against certain liabilities which might be incurred by them in
their capacities as such, including certain liabilities arising under the
Securities Act of 1933. The premium for this insurance is paid by the
Registrant.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits.
Exhibit
Number Description
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4.1 - Articles of Amendment and Restatement of the Charter of Constellation Energy Group,
Inc. as of April 30, 1999. (Designated as Exhibit No. 99.2 in Form 8-K dated April 30,
1999, File No. 1-1910.)
4.2 - Articles Supplementary to the Charter of Constellation Energy Group, Inc., as of July
19, 1999. (Designated as Exhibit No. 3(a) in Form 10-Q dated August 13, 1999, File
Nos. 1-12869 and 1-1910.)
4.3 - Certificate of Correction to the Charter of Constellation Energy Group, Inc., as of
September 13, 1999. (Designated as Exhibit No. 3(a) to the Annual Report on Form 10-K
for the year ended December 31, 1999, File Nos. 1-12869 and 1-1910.)
4.4 - Articles Supplementary to the Charter of Constellation Energy Group, Inc. as of
November 20, 2001.
4.5 - Bylaws of Constellation Energy Group, Inc., as amended to February 25, 2002.
4.6 - Indenture between Constellation Energy Group, Inc. and the Bank of New York, Trustee,
dated as of March 24, 1999. (Designated as Exhibit No. 4(a) in Form S-3 dated March
29, 1999, File No. 333-75217.)
*4.7 - Constellation Energy Group, Inc. Executive Long-Term Incentive Plan.
*4.8 - Constellation Energy Group, Inc. 2002 Senior Management Long-Term Incentive Plan.
*5.1 - Opinion of Registrant's Counsel as to legality of the shares of Common Stock being registered.
*23.1 - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
*23.2 - Consent of Registrant's Counsel (included in Exhibit 5.1).
*24.1 - Power of Attorney.
* Filed herewith
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Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(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;
(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 Registrant pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference
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 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 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 directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission, such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the Registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
Constellation Energy Group, Inc., the Registrant, certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Baltimore,
State of Maryland on the 24th day of May, 2002.
CONSTELLATION ENERGY GROUP, INC.
(Registrant)
By: /s/ E. Follin Smith
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E. Follin Smith, Sr. Vice President
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.
Signature Title Date
-------------------- ------------------------ ------------
Principal executive
officer and director:
* Mayo A. Shattuck, III Chief Executive Officer, May 24, 2002
President and Director
Principal financial
and accounting officer:
/s/ E. Follin Smith Sr. Vice President May 24, 2002
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E. Follin Smith
Directors:
* James T. Brady
* Frank P. Bramble, Sr.
* Beverly B. Byron
* Edward A. Crooke
* James R. Curtiss
* Roger W. Gale
* Freeman A. Hrabowski, III
* Edward J. Kelly, III
* Nancy Lampton
* Charles R. Larson
* Robert J. Lawless
* Christian H. Poindexter
* Michael D. Sullivan
* By: /s/ E. Follin Smith May 24, 2002
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E. Follin Smith, Attorney-in-Fact
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Exhibit Index
Exhibit
Number Description
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4.1 - Articles of Amendment and Restatement of the Charter of Constellation Energy Group,
Inc. as of April 30, 1999. (Designated as Exhibit No. 99.2 in Form 8-K dated April 30,
1999, File No. 1-1910.)
4.2 - Articles Supplementary to the Charter of Constellation Energy Group, Inc., as of July
19, 1999. (Designated as Exhibit No. 3(a) in Form 10-Q dated August 13, 1999, File
Nos. 1-12869 and 1-1910.)
4.3 - Certificate of Correction to the Charter of Constellation Energy Group, Inc., as of
September 13, 1999. (Designated as Exhibit No. 3(a) to the Annual Report on Form 10-K
for the year ended December 31, 1999, File Nos. 1-12869 and 1-1910.)
4.4 - Articles Supplementary to the Charter of Constellation Energy Group, Inc. as of
November 20, 2001.
4.5 - Bylaws of Constellation Energy Group, Inc., as amended to February 25, 2002.
4.6 - Indenture between Constellation Energy Group, Inc. and the Bank of New York, Trustee,
dated as of March 24, 1999. (Designated as Exhibit No. 4(a) in Form S-3 dated March
29, 1999, File No. 333-75217.)
4.7 - Constellation Energy Group, Inc. Executive Long-Term Incentive Plan.
4.8 - Constellation Energy Group, Inc. 2002 Senior Management Long-Term Incentive Plan.
5.1 - Opinion of Registrant's Counsel as to legality of the shares of Common Stock being
registered.
23.1 - Consent of PricewaterhouseCoopers LLP, Independent Accountants.
23.2 - Consent of Registrant's Counsel (included in Exhibit 5.1).
24.1 - Power of Attorney.
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