As filed with the Securities and Exchange Commission on January 15, 1997
Registration No. 33-
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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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CONSUMERS WATER COMPANY
(Exact name of registrant as specified in charter)
MAINE 01-0049450
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(State or other jurisdiction (IRS Employer
or incorporation or organization) Identification No.)
Three Canal Plaza
Portland, Maine 04101
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(Address of principal executive offices and Zip Code)
(207) 773-6438
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(Registrant's telephone number, including area code)
Consumers Water Company Employees 401(k) Savings Plan and Trust
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(Full Title of Plan)
BRIAN R. MULLANY, Secretary and Clerk
Consumers Water Company
Three Canal Plaza
Portland, Maine 04101
(Name and Address of agent for service)
Copies to:
Keith C. Jones, Esq.
Drummond Woodsum & MacMahon
245 Commercial Street
Portland, Maine 04101
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum Amount
Title of each class Amount offering aggregate of
of securities to be price offering registration
to be registered Registered per unit* price* fee*
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Common Shares (par
value $1.00) . . . 250,000 shares $17.75 $4,437,500 $ 1,344.70
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*Estimated for the purpose of calculating the registration fee only and
not as a representation of the actual offering price. Pursuant to Rule
457(c) the registration fee has been calculated on the basis of $17.75
per share, which equals the average of the high and low prices of the
common shares of the Company on January 13, 1997 as reported on the NASDAQ
Stock Market.
PURSUANT TO RULE 416(C) UNDER THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT ALSO COVERS AN INDETERMINATE AMOUNT OF
INTERESTS TO BE OFFERED OR SOLD PURSUANT TO THE EMPLOYEE BENEFIT
PLAN DESCRIBED HEREIN.
PURSUANT TO RULE 429, THE PROSPECTUS INCLUDED IN THIS REGISTRATION
STATEMENT WILL SERVE AS AN UPDATED PROSPECTUS FOR REGISTRATION
STATEMENTS NO. 33-20994 AND NO. 33-57618.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
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The following documents and information heretofore filed
with the Commission (File No. 0-493) are incorporated by
reference in this registration statement.
1. Consumers Water Company's Annual Report on Form
10-K for the year ended December 31, 1995, filed pursuant to
the Securities Exchange Act of 1934.
2. Consumers Water Company's Quarterly Reports on Form
10-Q for the quarters ended March 31, 1996, June 30, 1996 and
September 30, 1996, filed pursuant to the 1934 Act.
3. The Annual Report of the Consumers Water Company
Employees 401(k) Savings Plan and Trust (the "Plan") on Form
11-K for the year ended December 31, 1995, filed pursuant to
the 1934 Act.
4. The description of the common shares which is
contained in the Registration Statement on Form 10 filed
under the 1934 Act, including any amendment or report filed
for the purpose of updating such description under the 1934 Act.
All reports and other documents filed by Consumers Water
Company (the "Company") and the Plan pursuant to Sections 13(a),
13(c), 14 and 15(d) of the 1934 Act after the date of this
registration statement and 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 by reference in this registration
statement and to be a part hereof from the date of filing of such
reports and documents.
Item 6. Indemnification of Directors and Officers.
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Section 719 of the Maine Business Corporation Act provides
in its entirety as follows:
Section 719. Indemnification of officers, directors, employees
and agents; insurance
1. A corporation shall have power to indemnify or,
if so provided in the bylaws, shall in all cases indemnify, any
person 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, by reason
of the fact that that person is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, trustee, partner, fiduciary,
employee or agent of another corporation, partnership, joint venture,
trust, pension or other employee benefit plan or other enterprise,
against expenses, including attorneys' fees, judgments, fines and
amounts paid in settlement actually and reasonably incurred by that
person in connection with such action, suit or proceeding; provided
that no indemnification may be provided for any person with respect
to any matter as to which that person shall have been finally
adjudicated:
A. Not to have acted honestly or in the reasonable
belief that that person's action was in or not opposed to the best
interests of the corporation or its shareholders or, in the case of
a person serving as a fiduciary of an employee benefit plan or trust,
in or not opposed to the best interests of that plan or trust, or its
participants or beneficiaries; or
B. With respect to any criminal action or proceeding,
to have had reasonable cause to believe that that person's conduct was
unlawful.
The termination of any action, suit or proceeding by judgment,
order or conviction adverse to that person, or by settlement or plea
of nolo contendere or its equivalent, shall not of itself create a
presumption that that person did not act honestly or in the reasonable
belief that that person's action was in or not opposed to the best
interests of the corporation or its shareholders or, in the case of a
person serving as a fiduciary of an employee benefit plan or trust, in
or not opposed to the best interests of that plan or trust or its
participants or beneficiaries and, with respect to any criminal action
or proceeding, had reasonable cause to believe that that person's
conduct was unlawful.
1-A. Notwithstanding any provision of subsection 1, a
corporation shall not have the power to indemnify any person with
respect to any claim, issue or matter asserted by or in the right of
the corporation as to which that person is finally adjudicated to be
liable to the corporation unless the court in which the action, suit
or proceeding was brought shall determine that, in view of all the
circumstances of the case, that person is fairly and reasonably
entitled to indemnity for such amounts as the court shall deem
reasonable.
2. Any provision of subsection 1, 1-A, or 3 to the
contrary notwithstanding, to the extent that a director, officer,
employee or agent of a corporation has been successful on the merits
or otherwise in defense of any action, suit or proceeding referred
to in subsection 1 or 1-A, or in defense of any claim, issue or matter
therein, that director, officer, employee or agent shall be indemnified
against expenses, including attorneys' fees, actually and reasonably
incurred by that director, officer, employee or agent in connection
therewith. The right to indemnification granted by this subsection
may be enforced by a separate action against the corporation, if an
order for indemnification is not entered by a court in the action,
suit or proceeding wherein that director, officer, employee or agent
was successful on the merits or otherwise.
3. Any indemnification under subsection 1, unless
ordered by a court or required by the bylaws, shall be made by the
corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee
or agent is proper in the circumstances and in the best interests of
the corporation. That determination shall be made by the board of
directors by a majority vote of a quorum consisting of directors who
were not parties to that action, suit or proceeding, or if such a
quorum is not obtainable, or even if obtainable, if a quorum of
disinterested directors so directs, by independent legal counsel
in a written opinion, or by the shareholders. Such a determination
once made may not be revoked and, upon the making of that
determination, the director, officer, employee or agent may enforce
the indemnification against the corporation by a separate action
notwithstanding any attempted or actual subsequent action by the
board of directors.
4. Expenses incurred in defending a civil, criminal,
administrative or investigative action, suit or proceeding may be
authorized and paid by the corporation in advance of the final
disposition of that action, suit or proceeding upon a determination
made in accordance with the procedure established in subsection 3
that, based solely on the facts then known to those making the
determination and without further investigation, the person seeking
indemnification satisfied the standard of conduct prescribed by
subsection 1, or if so provided in the bylaws, these expenses shall
in all cases be authorized and paid by the corporation in advance
of the final disposition of that action, suit or proceeding upon
receipt by the corporation of:
A. A written undertaking by or on behalf of the
officer, director, employee or agent to repay that amount if that
person is finally adjudicated:
(1) Not to have acted honestly or in the
reasonable belief that that person's action was in or not opposed
to the best interests of the corporation or its shareholders or, in
the case of a person serving as a fiduciary of an employee benefit
plan or trust, in or not opposed to the best interests of such plan
or trust or its participants or beneficiaries;
(2) With respect to any criminal action or
proceeding, to have had reasonable cause to believe that the
person's conduct was unlawful; or
(3) With respect to any claim, issue or matter
asserted in any action, suit or proceeding brought by or in the
right of the corporation, to be liable to the corporation, unless
the court in which that action, suit or proceeding was brought
permits indemnification in accordance with subsection 2; and
B. A written affirmation by the officer, director,
employee or agent that the person has met the standard of conduct
necessary for indemnification by the corporation as authorized in
this section.
The undertaking required by paragraph A shall be an unlimited
general obligation of the person seeking the advance, but need not
be secured and may be accepted without reference to financial ability
to make the repayment.
5. The indemnification and entitlement to advances
of expenses provided by this section shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under
any bylaw, agreement, vote of stockholders or disinterested directors
or otherwise, both as to action in that person's official capacity
and as to action in another capacity while holding such office,
and shall continue as to a person who has ceased to be a director,
officer, employee, agent, trustee, partner or fiduciary and shall
inure to the benefit of the heirs, executors and administrators of
such a person. A right to indemnification required by the bylaws
may be enforced by a separate action against the corporation, if
an order for indemnification has not been entered by a court in any
action, suit or proceeding in respect to which indemnification is
sought.
6. A corporation shall have power to purchase and
maintain insurance on behalf of any person who is or was a director,
officer, employee or agent of the corporation, or is or was serving
at the request of the corporation as a director, officer, trustee,
partner, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust, pension or other employee benefit
plan or other enterprise against any liability asserted against that
person and incurred by that person in any such capacity, or arising
out of that person's status as such, whether or not the corporation
would have the power to indemnify that person against such liability
under this section.
7. For purposes of this section, references to the
"corporation" shall include, in addition to the surviving corporation
or new corporation, any participating corporation in a consolidation
or merger.
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Article XIV of the Company's Bylaws, which provides for the
indemnification of directors, officers and employees, is incorporated
herein by reference to pages 4 through 6 of Exhibit 3.2 to Consumers
Water Company's Annual Report on Form 10-K for the year ended December
31, 1993.
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The Company has entered into an Indemnification Agreement with
each person who is a current member of the board of directors or a
current executive officer of the Company, pursuant to which the
Company agrees to hold harmless and indemnify such person to the
full extent authorized or permitted by Maine law. The form of
Indemnification Agreement entered into with each such person is
incorporated by reference to Exhibit 10.8 to Consumers Water
Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1994.
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The Company has purchased and maintains insurance on behalf
of any person who is or was a director or officer against any loss
arising from any claim asserted against him and incurred by him
in any such capacity, subject to certain exclusions.
Item 18. Exhibits
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The following Exhibits are submitted in response to this item:
4.1 Conformed Copy of Restated Articles of Incorporation
of Consumers Water Company, as amended, incorporated by
reference to Exhibit 4.1.6 to Consumers Water Company's
Registration Statement on Form S-2, Registration No.
33-41113, filed with the Securities and Exchange
Commission on June 11, 1991.
4.2 Bylaws of Consumers Water Company, as amended March
2, 1994, incorporated by reference to Exhibit 3.2 to
Consumers Water Company's Annual Report on Form 10-K
for the year ended December 31, 1993.
4.3 Conformed Copy of the Consumers Water Company Employees
401(k) Savings Plan and Trust, as amended, is submitted
herewith as Exhibit 4.3
5.1 Opinion of Drummond Woodsum & MacMahon as to legality
of the shares registered is submitted herewith as
Exhibit 5.1.
5.2 Conformed Copy of determination letter from Internal
Revenue Service as to qualification of the Consumers
Water Company 401(k) Plan and Trust, dated May 3, 1995,
is submitted herewith as Exhibit 5.2.
23.1 The Consent of Arthur Andersen LLP, Consumers Water
Company's auditors, is submitted herewith as Exhibit
23.1.
23.2 The Consent of Drummond Woodsum & MacMahon, counsel
to the Company, is included in their opinion submitted
herewith as Exhibit 5.1.
24 Powers of attorney are included as part of the
signature page.
Item 19. Undertakings
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(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 the 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 the prospectus filed with the
Commission pursuant to Rule 424(b) (Section 230.424(b) of this chapter) if,
in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate 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 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.
(4) If the registrant is a foreign private issuer,
to file a post-effective amendment to the registration statement
to include any financial statements required by Rule 3-19 of
Regulation S-X at the start of any delayed offering or throughout
a continuous offering. Financial statements and information
otherwise required by Section 10(a)(3) of the Act need not be
furnished, provided that the registrant includes in the prospectus,
by means of a post-effective amendment, financial statements
required pursuant to this paragraph (a)(4) and other information
necessary to ensure that all other information in the prospectus is
at least as current as the date of those financial statements.
Notwithstanding the foregoing, with respect to registration
statements on Form F-3, a post-effective amendment need not be
filed to include financial statements and information required
by Section 10(3)(a) of the Act or Rule 3-19 or Regulation S-X
if such financial statements and information are contained in
periodic reports filed with or furnished to the 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 Form F-3.
(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) 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 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 Act and will be governed
by the final adjudication of such issue.
SIGNATURES
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THE COMPANY. Pursuant to the requirements of the Securities Act of
1933, Consumers Water Company 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
Portland and State of Maine on the 15th day of January, 1997.
Consumers Water Company
(as issuer and employer)
By:/s/ Peter L. Haynes
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Peter L. Haynes
President
POWER OF ATTORNEY
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We, the undersigned, officers and directors of Consumers
Water Company, hereby authorize and direct Peter L. Haynes, Keith
C. Jones, or either of them acting singly, as Attorney-in-Fact, to
execute in the name and on behalf of each of the undersigned persons,
and in the respective capacities indicated below, any amendment or
amendments to this Registration Statement of Consumers Water Company
under the Securities Act of 1933, as amended, and to file the same,
with all exhibits thereto, and other documents in connection therewith,
with the Securities and Exchange Commission.
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
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/s/ Peter L. Haynes President and Director 1/15/97
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Peter L. Haynes (Principal Executive
Officer)
/s/ John F. Isacke Senior Vice President 1/15/97
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John F. Isacke (Principal Financial
Officer)
/s/ Gary E. Wardwell Controller 1/15/97
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Gary E. Wardwell (Principal Accounting
Officer)
/s/ David R. Hastings, II Director 1/15/97
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David R. Hastings, II
/s/ Jack S. Ketchum Director 1/15/97
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Jack S. Ketchum
/s/ John E. Menario Director 1/15/97
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John E. Menario
/s/ John E. Palmer, Jr. Director 1/15/97
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John E. Palmer, Jr.
/s/ Jane E. Newman Director 1/15/97
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Jane E. Newman
/s/ Elaine D. Rosen Director 1/15/97
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Elaine D. Rosen
/s/ William B. Russell Director 1/15/97
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William B. Russell
/s/ John H. Schiavi Director 1/15/97
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John H. Schiavi
THE PLAN. Pursuant to the requirements of the Securities Act
of 1933, the trustees (or other persons who administer the Plan)
have duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City
of Portland, State of Maine on the 15th day of January, 1997.
Consumers Water Company
Employees 401(k)
Savings Plan and Trust
By /s/ William B. Russell
--------------------------
William B. Russell, Chairman
Consumers Water Company
Retirement Committee
EXHIBIT INDEX
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Exhibit
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4.1 Conformed Copy of Restated Articles of
Incorporation of Consumers Water Company, as
amended, incorporated by reference to Exhibit
4.1.6 to Consumers Water Company's Registration
Statement on Form S-2, Registration No. 33-
41113, filed with the Securities and Exchange
Commission on June 11, 1991.
4.2 Bylaws of Consumers Water Company, as amended
March 2, 1994, incorporated by reference to
Exhibit 3.2 to Consumers Water Company's Annual
Report on Form 10-K for the year ended December
31, 1993.
4.3 Conformed Copy of the Consumers Water Company
Employees 401(k) Savings Plan and Trust, as
amended, is submitted herewith as Exhibit 4.3
5.1 Opinion of Drummond Woodsum & MacMahon as to
legality of the shares registered is submitted
herewith as Exhibit 5.1.
5.2 Conformed Copy of determination letter from
Internal Revenue Service as to qualification of
the Consumers Water Company 401(k) Plan and
Trust, dated May 3, 1995, is submitted herewith
as Exhibit 5.2.
23.1 The Consent of Arthur Andersen LLP, Consumers
Water Company's auditors, is submitted herewith
as Exhibit 23.1.
23.2 The Consent of Drummond Woodsum & MacMahon,
counsel to the Company, is included in their
opinion submitted herewith as Exhibit 5.1.
24 Powers of attorney are included as part of the
signature page.