As filed with the Securities and Exchange Commission on August 27, 2002
Registration No. 333-31280
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIW LIMITED
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(Exact name of registrant as specified in its charter)
CONNECTICUT 04-3617838
- ------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
230 BEAVER STREET
ANSONIA, CT 06401
(203) 735-1888
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(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
BIRMINGHAM UTILITIES, INC. 1998 STOCK INCENTIVE PLAN
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(Full title of the plan)
JOHN S. TOMAC
PRESIDENT AND TREASURER
BIW LIMITED
230 BEAVER STREET
ANSONIA, CONNECTICUT 06401
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(Name and address of agent for service)
(203) 735-1888
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(Telephone number, including area code, of agent for service)
Copies of all communications, including all communications
to the agent for service, should be sent to:
MICHAEL GRUNDEI, ESQ.
WIGGIN & DANA LLP
400 ATLANTIC STREET
STAMFORD, CT 06901
(203) 363-7600
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INTRODUCTORY NOTE
Effective June 28, 2002, pursuant to the Agreement and Plan of Merger
and Share Exchange between Birmingham Utilities, Inc., BIW Limited, and
Birmingham Mergings, Inc. ("Mergings"), Birmingham Utilities, Inc. consummated
the creation of a new holding company structure by merging with and into
Mergings, and thereupon became a wholly-owned subsidiary of BIW Limited. All
outstanding shares of common stock of Birmingham Utilities, Inc. were exchanged
on a one-for-one basis for shares of common stock, no par value, of BIW Limited.
Pursuant to Rule 414(d) under the Securities Act of 1933, as amended
(the "Securities Act"), BIW Limited, a Connecticut corporation, as successor
issuer to Birmingham Utilities, Inc., a Connecticut corporation, hereby adopts
this registration statement, as amended, for all purposes under the Securities
Act and Securities Exchange Act of 1934, as amended.
PART I
ITEM 1. PLAN INFORMATION.
Not required to be filed with this registration statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION
Not required to be filed with this registration statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission (the "Commission") by BIW Limited (the "Registrant" or the
"Corporation") or Birmingham Utilities, Inc., as the case may be, pursuant to
the Securities Exchange Act of 1934, as amended (the "1934 Act"), are
incorporated by reference herein:
(a) The Annual Report on Form 10-K/A Amendment No. 3 of Birmingham
Utilities, Inc. for its fiscal year ended December 31, 2001, filed with the
Commission on May 20, 2002;
(b) The Quarterly Report on Form 10-Q of Birmingham Utilities, Inc. for
its fiscal quarter ended March 31, 2002, filed with the Commission on May 9,
2002;
(c) The Quarterly Report on Form 10-Q of BIW Limited for its fiscal
quarter ended June 30, 2002, filed with the Commission on August 14, 2002; and
(d) The description of BIW Limited Common Stock, no par value,
contained in the Proxy Statement and Prospectus included in Amendment No. 2 to
the Form S-4 (Registration No. 333-84508) of BIW Limited, declared effective by
the Commission on May 20, 2002.
In addition to the foregoing, all documents subsequently filed by the
Registrant pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act,
prior to the filing of a post-effective amendment indicating that all of the
securities offered hereunder have been sold or deregistering all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be part hereof from the date of filing of such
documents. Any statement contained in a document incorporated by reference in
this Registration Statement 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 subsequently filed document that is also incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
The Registrant will provide, without charge to each person, including
any beneficial owner, to whom this document is delivered, upon written or oral
request of such person, a copy of any or all of the documents incorporated
herein by reference (other than exhibits, unless such exhibits specifically are
incorporated by reference into such documents or this document). Requests for
such documents should be submitted in writing, addressed to the office of the
Corporate Secretary, BIW Limited, 230 Beaver Street, Ansonia, Connecticut 06401.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
None.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 33-772 of the Connecticut Business Corporation Act (the "CBCA")
provides that a corporation must indemnify a director who was wholly successful,
on the merits or otherwise, in the defense of any proceeding to which he was a
party because he was a director of the corporation against reasonable expenses
incurred by him in connection with the proceeding. In addition, Section 33-771
of the CBCA permits Connecticut corporations to indemnify an individual who is a
party to a proceeding because he is a director against liability incurred in the
proceeding if: (A) he conducted himself in good faith; (B) he reasonably
believed (i) in the case of conduct in his official capacity, that his conduct
was in the best interests of the corporation: and (ii) in all other cases, that
his conduct was at least not opposed to the best interests of the corporation;
and (C) in the case of any criminal proceeding, he had no reasonable cause to
believe his conduct was unlawful. Section 33-776 of the CBCA provides that a
Connecticut corporation may indemnify an officer, employee or agent of the
corporation who is a party to a proceeding because he is an officer, employee or
agent of the corporation to the same extent that a director may be indemnified
under Section 33-771 of the CBCA, as described above. An officer, employee or
agent of a Connecticut corporation who is not a director is entitled to
mandatory indemnification under Section 33-772 to the same extent to which a
director may be entitled to indemnification under such Section, as described
above.
Section 6 of the Registrant's certificate of incorporation provides in
pertinent part that no person who is or was a director of the Corporation shall
be personally liable to the Corporation or its stockholders for monetary damages
for breach of duty as a director in an amount that exceeds the compensation
received by the director for serving the Corporation during the year of the
violation, if such breach did not (A) involve a knowing and culpable violation
of law by the director, (B) enable the director or an associate, as defined in
Section 33-840 of the CBCA to receive an improper personal economic gain, (C)
show a lack of good faith and a conscious disregard for the duty of the director
to the Corporation under circumstances in which the director was aware that his
or her conduct or omission created an unjustifiable risk of serious injury to
the Corporation, (D) constitute a sustained and unexcused pattern of inattention
that amounted to an abdication of the director's duty to the Corporation, or (E)
create liability under Section 33-757 of the CBCA.
Section 7 of the Registrant's certificate of incorporation provides in
pertinent part that the Corporation shall be obligated to indemnify a director
for liability, as defined in subdivision (5) of Section 33-770 of the CBCA to
any person for any action taken, or any failure to take any action, as a
director, except liability that (a) involved a knowing and culpable violation of
law by the director, (b) enabled the director or an associate, as defined in
Section 33-840 of the Connecticut General Statutes to receive an improper
personal gain, (c) showed a lack of good faith and a conscious disregard for the
duty of the director to the Corporation under circumstances in which the
director was aware that his conduct or omission crated an unjustifiable risk of
serious injury to the Corporation, (d) constituted a sustained and unexcused
pattern of inattention that amounted to an abdication of the director's duty to
the Corporation or (e) created liability under Section 33-757 of the CBCA.
Section 33-777 of the CBCA provides that a Connecticut corporation may
purchase and maintain insurance on behalf of an individual who is a director,
officer, employee or agent of the corporation or who, while a director, officer,
employee or agent of the corporation, serves at the corporation's request as a
director, officer, partner, trustee, employee or agent of another domestic or
foreign corporation, partnership, joint venture, trust, employee benefit plan or
other entity, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee or agent,
whether or not the corporation would have power to indemnify against the same
liability.
The Registrant's excess liability insurance policy indemnifies its
directors, officers and employees for any and all sums that they shall be
legally obligated to pay and shall pay or by final judgment be adjudged to pay
as damages, judgments, settlements and costs, charges and expenses arising from
any claim or claims that may be made, and for which the registrant has not
provided reimbursement, by reason of such director or officer or
employee's being or having been a director, officer or employee of the
registrant or of another corporation for which he or she is serving or has
served at the request of the registrant as a director, officer or employee.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
No. Description
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4.1 Certificate of Incorporation of BIW Limited (incorporated by reference
to Exhibit C to the Proxy Statement and Prospectus included in
Amendment No. 2 to the Registrant's Form S-4 (Registration No.
333-84508)).
4.2 Bylaws of BIW Limited (incorporated by reference to Exhibit D to the
Proxy Statement and Prospectus included in Amendment No. 2 to the
Registrant's Form S-4 (Registration No. 333-84508)).
4.3 Birmingham Utilities, Inc. 1998 Stock Incentive Plan adopted by its
Board of Directors on December 9, 1998 (previously filed as Exhibit
(10.8) of Birmingham Utilities, Inc.'s Annual Report on Form 10-K for
the period ended December 31, 1999).
5.1 Opinion of Counsel (previously filed).
23.1 Consent of Dworken, Hillman, LaMorte & Sterczala, P.C.
23.2 Consent of Counsel (previously filed).
24.1 Power of Attorney (included on the signature page hereof).
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 the 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 such 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 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 that 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 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.
(h) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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
Post-Effective Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in Ansonia, Connecticut on
the 26th day of August, 2002.
BIW LIMITED
By: /s/ John S. Tomac
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Name: John S. Tomac
Title: President
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints John S. Tomac and Betsy Henley-Cohn and
each of them his or her true and lawful attorneys-in-fact and agents, each
acting alone, with full power of substitution and resubstitution, for him or her
and in his or her name, place and stead, in any and all capacities, to sign any
or all amendments to this Registration Statement, including post-effective
amendments, and to file the same, with all exhibits thereto, and all documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite and necessary
to be done in and about the premises, as fully to all intents and purposes as he
or she might or could do in person, and hereby ratifies and confirms all that
said attorneys-in-fact and agents, each acting alone, or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities held on the
dates indicated.
SIGNATURE TITLE DATE
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/s/ Betsy Henley-Cohn Chief Executive Officer and August 7, 2002
- ------------------------- Director (principal executive
Betsy Henley-Cohn officer)
/s/ John S. Tomac President, Treasurer and August 6, 2002
- ------------------------- Director (principal financial
John S. Tomac and accounting officer)
/s/ Michael J. Adanti Director August 8, 2002
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Michael J. Adanti
/s/ Mary Jane Burt Director August 8, 2002
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Mary Jane Burt
SIGNATURE TITLE DATE
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/s/ James E. Cohen Director August 15, 2002
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James E. Cohen
/s/ Alvaro da Silva Director August 19, 2002
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Alvaro da Silva
/s/ Themis Klarides Director August 14, 2002
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Themis Klarides
/s/ Aldore J. Rivers, Jr. Director August 26, 2002
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Aldore J. Rivers, Jr.
/s/ B. Lance Sauerteig Director August 16, 2002
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B. Lance Sauerteig
/s/ Kenneth E. Schaible Director August 8, 2002
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Kenneth E. Schaible
INDEX TO EXHIBITS
Exhibit
No. Description
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4.1 Certificate of Incorporation of BIW Limited (incorporated by reference
to Exhibit C to the Proxy Statement and Prospectus included in
Amendment No. 2 to the Registrant's Form S-4 (Registration No.
333-84508)).
4.2 Bylaws of BIW Limited (incorporated by reference to Exhibit D to the
Proxy Statement and Prospectus included in Amendment No. 2 to the
Registrant's Form S-4 (Registration No. 333-84508)).
4.3 Birmingham Utilities, Inc. 1998 Stock Incentive Plan adopted by its
Board of Directors on December 9, 1998 (previously filed as Exhibit
(10.8) of Birmingham Utilities, Inc.'s Annual Report on Form 10-K for
the period ended December 31, 1999).
5.1 Opinion of Counsel (previously filed).
23.1 Consent of Dworken, Hillman, LaMorte & Sterczala, P.C.
23.2 Consent of Counsel (previously filed).
24.1 Power of Attorney (included on the signature page hereof).