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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Public Service Enterprise Group Incorporated
(Exact name of Registrant as specified in its charter)
New Jersey 22-2625848
(State of Incorporation) (I.R.S. Employer Identification No.)
80 Park Plaza
P.O. Box 1171
Newark, NJ 07101-1171
(Address, including zip code, of
Registrant's principal executive offices)
Public Service Enterprise Group Incorporated
2004 Long-Term Incentive Plan
(Full title of plan)
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Thomas M. O'Flynn or James T. Foran, Esq.
Executive Vice President Associate General Counsel
and Chief Financial Officer
80 Park Plaza
P.O. Box 1171
Newark, NJ 07101-1171
(973) 430-7000
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title Amount Proposed Proposed Amount of
Of Each to be Maximum Maximum Registration
Class of Registered Offering Aggregate Fee
Securities Price Offering
to be Per Unit(1) Price(1)
Registered
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Common Stock
Without
Par value 15,000,000 $40.90 $613,500,000 $77,730.45
Shares
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(1) Estimated in accordance with Rule 457(h) under the Securities Act of 1933
solely for the purpose of determining the registration fee based on the average
of the high and low prices on October 29, 2004 for Common Stock without par
value of Public Service Enterprise Group Incorporated, as reported in the
consolidated reporting system.
PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
*Item 1. Plan Information
*Item 2. Registrant Information and Employee Plan Annual Information.
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* The information required by Part I of Form S-8 to be contained in the Section
10(a) prospectus is omitted from this registration statement in accordance with
Rule 428 under the Securities Act of 1933 and the note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by Registrant with the Securities
and Exchange Commission, and are already incorporated by reference in this
registration statement:
(a) Registrant's Annual Report on Form 10-K for the year ended December
31, 2003;
(b) Registrant's Quarterly Reports on Form 10-Q for the Quarters ended
March 31, 2004, June 30, 2004 and September 30, 2004;
(c) Registrant's Current Reports on Form 8-K, dated February 2, 2004,
April 30, 2004, July 30, 2004 and October 22, 2004; and
(d) Registrant's Current Report on Form 8-K, dated January 17, 1990,
containing a description of Registrant's Common Stock without par
value.
All documents filed by Registrant pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Securities Exchange Act of 1934 on or after the date of this registration
statement and prior to the filing of a post-effective amendment to this
registration statement which indicates that all securities offered pursuant to
this registration statement have been sold or which deregisters all such
securities then remaining unsold shall be deemed to be incorporated by reference
in this registration statement and to be a part hereof from the date of filing
of such documents. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be deemed to be modified or
superceded for purposes of this registration statement to the extent that a
statement herein or in any subsequently filed document which also is, or is
deemed to be, incorporated by reference herein modifies or supercedes such
statement. Any such statement so modified or superceded shall not be deemed,
except as so modified or superceded, to constitute a part of this registration
statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
James T. Foran, Esq., Associate General Counsel of Public Service
Enterprise Group Incorporated (PSEG), has given his opinion, which is included
as Exhibit 5 to this registration statement, as to whether the original issuance
securities (i.e., shares of Common Stock of Registrant covered by this
registration statement) will be legally issued, fully paid and non-assessable.
Mr. Foran is an officer of Registrant and is eligible to participate in the
Public Service Enterprise Group Incorporated 2004 Long-Term Incentive Plan (the
"LTIP").
Item 6. Indemnification of Directors and Officers.
Under Section 14A:3-5 of the New Jersey Business Corporation Act, the
Registrant:
(1) has the power to indemnify each of its directors and officers (as
well as its employees and agents) against expenses and liabilities
in connection with any proceeding involving him by reason of his
being or having been such director or officer other than a
proceeding by or in the right of the Registrant, if (a) such
director or officer acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Registrant, and (b) with respect to any criminal proceeding,
such director or officer had no reasonable cause to believe his
conduct was unlawful:
(2) has power to indemnify each of its directors and officers against
expenses in connection with any proceeding by or in the right of the
Registrant to procure a judgment in its favor which involves such
director or officer by reason of his being or having been such
director or officer, if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of
the Registrant; however, in such proceeding no indemnification be
provided in respect to any claim, issue or matter as to which such
director or officer shall have been adjudged to be liable to the
Registrant, unless and only to the extent that the court determines
that the director or officer is fairly and reasonably entitled to
indemnity for such expenses as the court shall deem proper;
(3) must indemnify each of its directors and officers against expenses
to the extent that he has been successful on the merits or otherwise
in any proceeding referred to in (1) and (2) above or in defense of
any claim, issue or matter therein; and
(4) has power to purchase and maintain insurance on behalf of a director
or officer against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having
been a director or officer, whether or not the Registrant would have
the power to indemnify him against such expenses and liabilities
under the statute.
As used in the statute, "expenses" means reasonable costs, disbursements
and counsel fees, "liabilities" means amounts paid or incurred in
satisfaction of settlements, judgments, fines and penalties, and
"proceeding" means any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal
therein and any inquiry or investigation which could lead to such action,
suit or proceeding.
Indemnification be awarded by a court under (1) or (2) as well as under
(3) above, notwithstanding a prior determination by the Registrant that
the director or officer has not met the applicable standard of conduct.
Indemnification under the statute does not exclude any other rights to
which a director or officer be entitled under a certificate of
incorporation, by-law, or otherwise.
Article 8, Section 1 of the Registrant's Certificate of Amendment of
Certificate of Incorporation provides as follows:
1. Indemnification:
The corporation shall indemnify to the full extent from time
to time permitted by law any person made, or threatened to be
made, a party to any pending, threatened or completed civil,
criminal, administrative or arbitrative action, suit, or
proceeding and any appeal therein (and any inquiry or
investigation which could lead to such action, suit or
proceeding) by reason of the fact that he is or was a
director, officer or employee of the corporation or serves or
served any other enterprise as a director, officer or employee
at the request of the corporation. Such right or
indemnification shall inure to the benefit of the legal
representative of any such person.
Article 8, Section 2 of the Registrant's Certificate of Amendment of
Certificate of Incorporation provides as follows:
2. Limitation of Liability:
To the full extent from time to time permitted by law,
directors and officers of the corporation shall not be
personally liable to the corporation or its shareholders for
damages for breach of any duty owed to the corporation or its
shareholders. No amendment or repeal of this provision shall
adversely affect any right or protection of a director or
officer of the corporation existing at the time of such
amendment or repeal.
The Registrant's directors and officers are insured under the
policies of insurance, within the limits and subject to the
limitations of the policies, against claims made against them
for acts in the discharge of their duties, and the Registrant
is insured to the extent that it is required or permitted by
law to indemnify the directors and officers for such loss. The
premiums for such insurance are paid by the Registrant.
Item 7. Exemption from Registrant Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
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.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that 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 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; 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 (1) (i) and (1) (ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or furnished
to the Commission by 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; 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 undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of 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 this registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all 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 Newark and State of New Jersey on the 29th day of
October 2004.
Public Service Enterprise Group Incorporated
By: /s/ Thomas M. O'Flynn
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Thomas M. O'Flynn
Executive Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following person in the capacity
and on the date indicated.
Signature Capacity Date
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/s/ Thomas M. O'Flynn Principal Financial Officer October 29, 2004
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Thomas M. O'Flynn
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has also been signed by Thomas M. O'Flynn, Attorney-in-Fact, on behalf
of the following persons in the capacities indicated on October 29, 2004.
Name Capacity
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E. James Ferland Principal Executive Officer
Patricia A. Rado Principal Accounting Officer and
Director
Caroline Dorsa Director
Ernest H. Drew Director
Albert R. Gamper, Jr. Director
Conrad K. Harper Director
William V. Hickey Director
Shirley Ann Jackson Director
Thomas A. Renyi Director
Richard J. Swift Director
By: /s/ Thomas M. O'Flynn
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Thomas M. O'Flynn
Attorney-In-Fact
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4a Registrant's Certificate of Incorporation
(incorporated by reference to Exhibit 3a in
registration statement of Public Service
Enterprise Group Incorporated, No. 33-2935, filed
January 28, 1986).
4b Registrant's By- Laws (incorporated by reference
to Exhibit 4.3 in the registration statement of
Public Service Enterprise Group Incorporated, No.
333-86372, filed April 16, 2002).
4c Certificate of Amendment of Registrant's
Certificate of Incorporation (incorporated by
reference to Exhibit 3(c) in the Annual Report on
Form 10-K for the year ended December 31, 1987 of
Public Service Enterprise Group Incorporated filed
April 11, 1988, File No. 001-9120).
4d The 2004 Long-Term Incentive Plan (incorporated by
reference to Exhibit 3(c) in the Annual Report on
Form 10-K for the year ended December 31, 2003 of
Public Service Enterprise Group Incorporated filed
February 25, 2004, File No. 001-9120).
5 Opinion and Consent of James T. Foran, Esq.
15 Not Applicable.
23.1 Consent of Independent Registered Public
Accounting Firm.
23.2 Consent of James T. Foran, Esq.
(included as part of Exhibit 5).
24 Power of Attorney.