As filed with the Securities and
Exchange Commission on September 18, 1998
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
__________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
___________________
Aquarion Company
(Exact name of registrant as specified in its charter)
Delaware 06-0885252
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
835 Main Street
Bridgeport, Connecticut 06604-4995
(Address, including zip code, of Registrant's principal executive offices)
________________________
Aquarion Company Stock Incentive Plan
(Full Title of the Plan)
________________________
Janet M. Hansen
Executive Vice President, Chief Financial Officer and Treasurer
Aquarion Company
835 Main Street
Bridgeport, Connecticut 06604-4995
(203) 335-2333
(Name, address and telephone number, including area code, of agent for service)
________________________
Copies to:
Martin L. Budd, Esq.
Day, Berry & Howard LLP
One Canterbury Green
Stamford, Connecticut 06901-2047
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CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Maximum
Securities to to be Maximum Aggregate Amount of
be Registered Registered Per Share (3) Offering Price(3) Registration Fee
-------------- ---------- ------------- ----------------- ----------------
Common Stock, no par
value (1) 300,000 shares (2) $33.53125 $10,059,375 $2,967.52
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(1) This Registration Statement also pertains to Preferred Share Purchase
Rights ("Rights") of the Registrant. Until the occurrence of certain
prescribed events, the Rights are not exercisable, will be evidenced by
the certificates for the Common Stock and will be transferred along with
and only with the Common Stock.
(2) In addition, pursuant to Rule 416(a), this Registration Statement also
covers such indeterminate number of addditional shares of Common Stock
and Rights as is necessary to eliminate any dilutive effect of any
future stock split, stock dividend or similar transaction.
(3) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h), based on the average of the high
and low sale prices of the Common Stock on September 16, 1998, as
reported on the New York Stock Exchange Composite Tape.
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PART II
Information Required in the Registration Statement
Pursuant to General Instruction E to Form S-8, the contents of the
Registration Statement on Form S-8, File No. 33-53473, filed by Aquarion
Company (the "Company"), are hereby incorporated herein by reference and made
a part hereof, except to the extent that such contents are modified or
superseded hereby.
Item 3. Incorporation of Documents By Reference
The following documents filed with the Securities and Exchange Commission
by the Company are hereby incorporated in this Registration Statement by
reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarters ended March 31, 1998 and June 30, 1998;
(c) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed by the Company to
register its Common Stock pursuant to Section 12(b) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
including any amendments or reports filed for purposes of updating
such description; and
(d) The description of the Company's Preferred Share Purchase Rights
contained in the Registration Statement on Form 8-A filed by the
Company to register its Preferred Share Purchase Rights pursuant
to Section 12(b) of the Exchange Act, including any amendments or
reports filed for purposes of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange 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 such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
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 Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL") provides that a Delaware corporation may indemnify any person who is,
or is threatened to be made, a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of such corporation) by
reason of the fact that such 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, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by such person in connection with such action, suit or proceeding,
provided such person acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the corporation's best interests and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe that his or her conduct was unlawful. A Delaware corporation may also
indemnify any person who is, or is threatened to be made, a party to any
threatened,
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pending or completed action or suit by or in the right of the corporation to
procure a judgment in its favor by reason of the fact that such person is or
was a director, officer, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include
expenses (including attorneys' fees) actually and reasonably incurred by such
person in connection with the defense or settlement of such action or suit,
provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests, except
that no indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the corporation. In
addition, Section 145(c) of the DGCL provides that when an officer or director
is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses which such
officer or director has actually and reasonably incurred.
The Company's Amended and Restated By-laws contain provisions requiring
indemnification of its officers and directors to the maximum extent permitted
by Delaware law and allowing such indemnification of its employees and agents
and persons serving at its request as a director, officer, employee or agent
of another entity.
Section 145(e) of the DGCL provides that expenses (including attorney's
fees) incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding 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 such
director or officer is not entitled to be indemnified by the corporation. The
Company s Amended and Restated By-laws provide that expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
Company in advance of the final disposition of such action, suit or proceeding
as authorized by the Company s Board of Directors, upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he or she is
entitled to be indemnified by the Company.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for improper payment of dividends, stock
purchases or redemptions of shares, or (iv) for any breach of a director's
duty of loyalty to the company or its stockholders. The Company's Restated
Certificate of Incorporation includes such a provision.
The Company's Amended and Restated By-laws provide that the Board of
Directors, notwithstanding any interest of the directors in the action, may
authorize the Company to purchase and maintain insurance, in such amounts as
the Board of Directors deems appropriate, on behalf of any person who is or
was a director, officer, employee or agent of the Company or its subsidiaries,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another enterprise, for liabilities incurred by him or
her in any such capacity or arising out of his or her status as such, whether
or not the Company shall have the power to indemnify such person against such
liability.
The Company maintains an insurance policy under which its directors and
officers are insured, within the limits and subject to the limitations of such
insurance policy, against certain liabilities which may be imposed in
connection with such persons' service as such directors or officers.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Restated Certificate of Incorporation of the Company (incorporated
by reference to Exhibit 3(a) to the Company's Quarterly Report on
Form 10-Q (File No. 1-8060) for the quarter ended March 31, 1998).
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3(b) to the Company's Quarterly Report on
Form 10-Q (File No. 1-8060) for the quarter ended March 31, 1998).
4.3 Rights Agreement, dated as of June 25, 1996, between the Company
and ChaseMellon Shareholder Services, L.L.C., which includes the
Form of Certificate of Designation of Series B Junior
Participating Preferred Stock
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as Exhibit A, the form of Right Certificate as Exhibit B and the Summary of
Rights to Purchase Shares of Preferred Stock as Exhibit C (incorporated by
reference to Exhibit 1 to the Company's Registration Statement on Form 8-A
(File No. 1-8060) dated June 26, 1996).
5 Opinion of Day, Berry & Howard LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Day, Berry & Howard LLP (included in the opinion filed
as Exhibit 5).
24 Power of Attorney.
99 Aquarion Company Stock Incentive Plan.
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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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events
arising after the effective date of this 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 this 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 20 percent
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 this
Registration Statement or any material change to such information
set forth in this Registration Statement;
provided, however, that the undertakings set forth in paragraphs (i) and
(ii) above do 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 or Section 15(d)
of the Exchange Act that are incorporated by reference in this
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 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, each filing of the
Registrant s annual report pursuant to Section 13(a) or Section 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 this Registration Statement shall be deemed to be
a new registration statement relating to the securities offered herein, and
the offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
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(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or 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 against the Registrant 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 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, Aquarion Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements of 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 Bridgeport, State of Connecticut, on this 18th day
of September, 1998.
AQUARION COMPANY
By: /s/JANET M. HANSEN
-------------------------------
Janet M. Hansen
Executive Vice President,
Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on this 18th day of September, 1998.
*
- ------------------------------ Chairman of the Board of Directors and
George W. Edwards, Jr. Director
*
- ------------------------------ President, Chief Executive Officer and
Richard K. Schmidt Director
(Principal Executive Officer)
/s/JANET M. HANSEN
- ------------------------------ Executive Vice President, Chief Financial
Janet M. Hansen Officer and Treasurer
(Principal Financial and Accounting
Officer)
*
- ------------------------------ Director
Jack E. McGregor
*
- ------------------------------ Director
Geoffrey Etherington
*
- ------------------------------ Director
Janet D. Greenwood
*
- ------------------------------ Director
Donald M. Halsted, Jr.
*
- ------------------------------ Director
Edgar G. Hotard
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*
- ------------------------------ Director
G. Jackson Ratcliffe
*
- ------------------------------ Director
John A. Urquhart
* By signing her name hereto, Janet M. Hansen signs this Registration
Statement as Executive Vice President, Chief Financial Officer and
Treasurer of the Registrant and on behalf of the persons indicated above
pursuant to the power of attorney duly executed by such persons and
filed herewith.
/s/JANET M. HANSEN
------------------------------
(Janet M. Hansen, Attorney-in-Fact)
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
4.1 Restated Certificate of Incorporation of the Company
(incorporated by reference to Exhibit 3(a) to the Company's
Quarterly Report on Form 10-Q (File No. 1-8060) for the quarter
ended March 31, 1998).
4.2 Amended and Restated By-laws of the Company (incorporated by
reference to Exhibit 3(b) to the Company's Quarterly Report on
Form 10-Q (File No. 1-8060) for the quarter ended March 31,
1998).
4.3 Rights Agreement, dated as of June 25, 1996, between the
Company and ChaseMellon Shareholder Services, L.L.C., which
includes the Form of Certificate of Designation of Series B
Junior Participating Preferred Stock as Exhibit A, the form of
Right Certificate as Exhibit B and the Summary of Rights to
Purchase Shares of Preferred Stock as Exhibit C (incorporated
by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A (File No. 1-8060) dated June 26, 1996).
5 Opinion of Day, Berry & Howard LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Day, Berry & Howard LLP (included in the opinion
filed as Exhibit 5).
24 Power of Attorney.
99 Aquarion Company Stock Incentive Plan.