<PAGE> 1
As filed with the Securities and Exchange Commission on March 31, 1997
Registration No. 333-
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S E C U R I T I E S A N D E X C H A N G E C O M M I S S I O N
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BAYCORP HOLDINGS, LTD.
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(Exact name of registrant as specified in its charter)
DELAWARE 02-0488443
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
COCHECO FALLS MILLWORKS, SUITE 201, 100 MAIN STREET, DOVER, NEW HAMPSHIRE 03820
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(Address of principal executive offices) (Zip Code)
1996 STOCK OPTION PLAN
------------------------
(Full title of the Plan)
JOHN A. TILLINGHAST, PRESIDENT
BAYCORP HOLDINGS, LTD.
COCHECO FALLS MILLWORKS
SUITE 201
100 MAIN STREET
DOVER, NEW HAMPSHIRE 03820
(603) 742--3388
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
COPIES TO:
DAVID E. REDLICK, ESQUIRE
HALE AND DORR LLP
60 STATE STREET
BOSTON, MASSACHUSETTS 02109
(617) 526-6000
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed
Title of Each Class of Amount Maximum Proposed Amount of
Securities to be to be Offering Price Maximum Aggregate Registration
Registered Registered Per Share Offering Price Fee
======================================================================================================
<S> <C> <C> <C> <C>
Common Stock
$.01 par value 225,000 $8.13 (1) $1,829,250 (1) $ 554
- ------------------------------------------------------------------------------------------------------
200,000 $8.00 (2) 1,600,000 485
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75,000 $8.50 (2) 637,500 193
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20,000 $8.00 (2) 160,000 48
------------------------------------------------------------------------
20,000 $8.25 (2) 165,000 50
------------------------------------------------------------------------
20,000 $9.00 (2) 180,000 55
------------------------------------------------------------------------
20,000 $8.25 (2) 165,000 50
------------------------------------------------------------------------
20,000 $8.00 (2) 160,000 48
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TOTAL: 600,000 $1,483
======================================================================================================
<FN>
(1) Price estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c) and (h) under the Securities Act of 1933, as amended,
and based upon the average of the high and low price of the Registrant's Common
Stock on March 24, 1997 as reported by the American Stock Exchange.
(2) All such shares are issuable upon exercise of outstanding options with fixed
exercise prices. Pursuant to Rule 457 (h)(1) under the Securities Act of 1933,
the aggregate offering price and the fee have been computed upon the basis of
the price at which the options may be exercised.
</TABLE>
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PART I. INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
----------------
The information required by Part I is included in documents sent or given
to participants in the 1996 Stock Option Plan of BayCorp Holdings, Ltd., a
Delaware corporation (the "Registrant"), pursuant to Rule 428(b)(1) of the
Securities Act of 1933, as amended (the "Securities Act").
Item 2. Registrant Information and Employee Plan
----------------------------------------
Not applicable.
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Certain Documents by Reference.
-----------------------------------------------
The Registrant is subject to the informational and reporting requirements
of Sections 13(a), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and in accordance therewith files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). The following documents, which are on file with the
Commission, are incorporated in this Registration Statement by reference:
(a) The Registrant's latest annual report filed pursuant to Section
13(a) or 15(d) of the Exchange Act or the latest prospectus filed pursuant
to Rule 424(b) under the Securities Act that contains audited financial
statements for the Registrant's latest fiscal year for which such
statements have been filed.
(b) All other reports filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the
registrant document referred to in (a) above.
(c) The description of the Registrant's Common Stock, par value $.01
per share ("Common Stock"), contained in a registration statement filed
under the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference herein and to be part hereof from the
date of the 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 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 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.
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Not applicable.
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Item 5. Interests of Named Experts and Counsel.
--------------------------------------
Not applicable.
Item 6. Indemnification of Directors and Officers.
-----------------------------------------
Article EIGHTH of the Registrant's Certificate of Incorporation provides
that no director of the Registrant shall be personally liable for any monetary
damages for any breach of fiduciary duty as a director, except to the extent
that the Delaware General Corporation law prohibits the elimination or
limitation of liability of Director for breach of fiduciary duty.
Article NINTH of the Registrant's Certificate of Incorporation provides
that a director or officer of the Registrant (a) shall be indemnified by the
Registrant against all expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement incurred in connection with any litigation or
other legal proceeding (other than an action by or in the right of the
Registrant) brought against him by virtue of his position as a director or
officer of the Registrant 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, and, with respect to any criminal action or proceeding, has no
reasonable cause to believe his conduct was unlawful and (b) shall be
indemnified by the Registrant against all expenses (including attorneys' fees)
and amounts paid in settlement incurred in connection with any action by or in
the right of the Registrant brought against him by virtue of his position as a
director or officer of the Registrant 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, except that no indemnification shall be made with respect to any
matter as to which such person shall have been adjudged to be liable to the
Registrant, unless a court determines that, despite such adjudication but in
view of all of the circumstances, he is entitled to indemnification of such
expenses. Notwithstanding the foregoing, to the extent that a director or
officer has been successful, on the merits or otherwise, including, without
limitation, the dismissal of an action without prejudice, he is required to be
indemnified by the Registrant against all expenses (including attorneys' fees)
incurred in connection therewith. Expenses shall be advanced to a Director or
officer at his request, provided that he undertakes to repay the amount advanced
if it is ultimately determined that he is not entitled to indemnification for
such expenses.
Indemnification is required to be made unless the Registrant determines
that the applicable standard of conduct required for indemnification has not
been met. In the event of a determination by the Registrant that the director or
officer did not meet the applicable standard of conduct required for
indemnification, or if the Registrant fails to make an indemnification payment
within 60 days after such payment is claimed by such person, such person is
permitted to petition the court to make an independent determination as to
whether such person is entitled to indemnification. As a condition precedent to
the right of indemnification, the director or officer must give the Registrant
notice of the action for which indemnity is sought and the Registrant has the
right to participate in such action or assume the defense thereof.
Article NINTH of the Registrant's Certificate of Incorporation further
provides that the indemnification provided therein is not exclusive, and
provides that in the event that the Delaware General Corporation Law is amended
to expand the indemnification permitted to Directors or officers the Registrant
must indemnify those persons to the full extent permitted by such law as so
amended.
Section 145 of the Delaware General Corporation Law provides that a
corporation has the power to indemnify a director, officer, employee or agent of
the corporation and certain other persons serving at the request of the
corporation in related capacities against amounts paid and expenses incurred in
connection with an action or proceeding to which he is or is threatened to be
made a party by reason of such position, if such person shall have acted in good
faith and in a manner he reasonably believed to be in or not opposed to the best
interests of the corporation, and, in any criminal proceeding, if such person
had no reasonable cause to believe his conduct was unlawful; provided that, in
the case of actions brought by or in the right of the
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corporation no indemnification shall be made with respect to any matter as to
which such person shall have been adjudged to be liable to the corporation
unless and only to the extent that the adjudicating court determines that such
indemnification is proper under the circumstances.
Item 7. Exemption From Registration Claimed.
-----------------------------------
Not applicable.
Item 8. Exhibits.
--------
The Exhibit Index immediately preceding the exhibits is incorporated
herein by reference.
Item 9. Undertakings.
------------
1. The Registrant hereby undertakes:
(a) 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;
(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; 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 in this
Registration Statement;
provided, however, that paragraphs (i) and (ii) of this section 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 Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in the Registration
Statement.
(b) 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.
(c) 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.
2. The 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 therein, and the offering of such
securities at that time shall be deemed to be in the initial bona fide offering
thereof.
3. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to
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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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<PAGE> 7
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Dover, New Hampshire, on March 31, 1997.
BAYCORP HOLDINGS, LTD.
By: /s/ John A. Tillinghast
-------------------------------
John A. Tillinghast
President, Treasurer and Chief Executive
Officer
POWER OF ATTORNEY
We, the undersigned officers and directors of BayCorp Holdings, Ltd.,
hereby severally constitute and appoint Frank W. Getman Jr. and Mark N.
Polebaum, and each of them singly, our true and lawful attorneys with full power
to them, to sign for us and in our names, in the capacities indicated below, the
Registration Statement filed herewith, and any and all amendments to said
Registration Statement and generally to do all such things in our names and
behalf in our capacities as officers and directors to enable BayCorp Holdings,
Ltd. to comply with the Securities Act of 1933, and all requirements of the
Securities and Exchange Commission, hereby ratifying and confirming our
signatures as they may be signed by our said attorneys, or any of them, to said
registration statement and any and all amendments thereto.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ John A. Tillinghast President, Treasurer, Chief Executive March 31, 1997
- -------------------------- Officer and Director
John A. Tillinghast (Principal Executive Officer and
Principal Financial Officer)
/s/ Andrew J. Kurtz Director March 31, 1997
- --------------------------
Andrew J. Kurtz
/s/ Kenneth A. Buckfire Director March 31, 1997
- --------------------------
Kenneth A. Buckfire
/s/ Charles A. Leeds Director March 31, 1997
- --------------------------
Charles A. Leeds
/s/ Frank W. Getman Jr. Chief Operating Officer March 31, 1997
- -------------------------- and Secretary
Frank W. Getman Jr. (Principal Accounting
Officer)
</TABLE>
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<PAGE> 8
INDEX TO EXHIBITS
Exhibit
Number Exhibit
- ------- -------
4.1(1) Certificate of Incorporation of the
Registrant
4.2(1) By-Laws of the Registrant
4.3 Specimen Stock Certificate of Common Stock
of the Registrant
5.1 Opinion of Hale and Dorr LLP, counsel to the
Registrant
23.1 Consent of Hale and Dorr LLP (included in
Exhibit 5.1)
23.2 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included on the
signature page of this Registration
Statement)
- --------
1 Previously filed with the Commission as an Exhibit to the Registrant's
Registration Statement on Form S-4, as amended, File No. 333-3362, which was
originally filed with the Commission on April 11, 1997 and is incorporated
herein by reference.
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<PAGE> 1
<TABLE>
<S> <C>
[STOCK CERTIFICATE] EXHIBIT 4.3
-----------
INCORPORATED UNDER THE LAWS OF
THE STATE OF DELAWARE
[SEAL] BAYCORP HOLDINGS, LTD. [SEAL]
THIS CERTIFICATE IS TRANSFERABLE COMMON STOCK
IN BOSTON, MA OR NEW YORK, NY $.01 PAR VALUE
SEE REVERSE FOR CERTAIN DEFINITIONS
- ----------------------------------------------------------------------------------------------------------------------------
THIS CERTIFIES THAT CUSIP 072728 10 8
is the owner of
- ----------------------------------------------------------------------------------------------------------------------------
FULLY PAID AND NON-ASSESSABLE SHARES $.01 PAR VALUE, OF THE COMMON STOCK OF
BayCorp Holdings, Ltd. transferable only upon the books of the Corporation in person or by attorney upon surrender of this
certificate duly endorsed or assigned. This certificate and the shares represented hereby are issued under and subject to the
laws of the State of Delaware and to the Certificate of Incorporation and By-laws of the Corporation as from time to time
amended.
This certificate is not valid until countersigned and registered by the Transfer Agent and Registrar.
IN WITNESS WHEREOF, BayCorp Holdings, Ltd. has caused its facsimile corporate seal and the facsimile signatures
of its duly authorized officers to be hereunto affixed.
Dated:
/s/ John A. Tillinghast [CORPORATE SEAL] /s/ John A. Tillinghast
Treasurer President
[SET VERTICALLY IN RIGHT LOWER CORNER OF CERTIFICATE:]
COUNTERSIGNED AND REGISTERED
STATE STREET BANK AND TRUST COMPANY
(BOSTON) TRANSFER AGENT
AND REGISTRAR
BY
AUTHORIZED SIGNATURE
</TABLE>
[AMERICAN BANKNOTE STAMP]
<TABLE>
<S> <C>
- ---------------------------------------------- -----------------------------------------------------------
AMERICAN BANKNOTE COMPANY PRODUCTION COORDINATOR DEE FERTIG 215-830-2197
680 BLAIR MILL ROAD PROOF OF JULY 23, 1996
HORSHAM, PA 19044 BAYCORP HOLDINGS
215-857-3480 H 45392FC
- ---------------------------------------------- -----------------------------------------------------------
SALESPERSON: DAN BURNS - 617-449-3500 Opr. /s NEW
/home/seibert/inprogress/home11/baycorp45392 /net/banknote/home11/B
- ---------------------------------------------- -----------------------------------------------------------
</TABLE>
<PAGE> 2
BAYCORP HOLDINGS, LTD.
<TABLE>
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - _______ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act ____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
For value received ____________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- ---------------------------------------------------------------------- Shares
of the common stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
- ----------------------------------------------------------------------Attorney
to transfer the said stock on the books of the within-named Corporation
with full power of substitution in the premises.
Dated, ______________________________
____________________________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON THE
FACE OF THE CERTIFICATE IN EVERY PARTICULAR
WITHOUT ALTERATION OR ENLARGEMENT OR ANY
CHANGE WHATEVER.
SIGNATURE(S) GUARANTEED: ____________________________________________
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN
ELIGIBLE GUARANTOR INSTITUTION (BANKS,
STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS
AND CREDIT UNIONS WITH MEMBERSHIP IN AN
APPROVED SIGNATURE GUARANTEE MEDALLION
PROGRAM), PURSUANT TO S.E.C. RULE 17Ad-15.
Pursuant to Section 151 of the Delaware General Corporation Law, BayCorp
Holdings, Ltd. (the "Company") will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional, or other special rights of each class of stock or
series thereof and the qualifications, limitations, or restrictions of such
preferences and/or rights.
[AMERICAN BANKNOTE STAMP]
<TABLE>
<S> <C>
- ---------------------------------------------- -----------------------------------------------------------
AMERICAN BANKNOTE COMPANY PRODUCTION COORDINATOR DEE FERTIG 215-830-2197
680 BLAIR MILL ROAD PROOF OF JULY 23, 1996
HORSHAM, PA 19044 BAYCORP HOLDINGS
215-857-3480 H 45392BK
- ---------------------------------------------- -----------------------------------------------------------
SALESPERSON: DAN BURNS - 617-449-3500 Opr. /s NEW
/home/seibert/inprogress/home11/baycorp45392 /net/banknote/home11/B
- ---------------------------------------------- -----------------------------------------------------------
</TABLE>
<PAGE> 1
Exhibit 5.1
-----------
[Letterhead of Hale and Dorr LLP appears here]
March 31, 1997
BayCorp Holdings, Ltd.
Cocheo Falls Millworks
100 Main Street
Dover, NH 03820
Ladies and Gentlemen:
We have assisted in the preparation of a Registration Statement on Form
S-8 (the "Registration Statement"), to be filed with the Securities and Exchange
Commission, relating to 600,000 shares of Common Stock, $.01 par value per share
(the "Shares"), of BayCorp Holdings, Ltd., a Delaware corporation (the
"Company"), issuable under the Company's 1996 Stock Option Plan (the "Plan").
We have examined the Certificate of Incorporation and the By-Laws of the
Company, and all amendments thereto, the Registration Statement and originals,
or copies certified to our satisfaction, of such records of meetings, written
actions in lieu of meetings, or resolutions adopted at meetings, of the
directors and stockholders of the Company, and such other documents and
instruments as in our judgment are necessary or appropriate to enable us to
render the opinions expressed below.
In examination of the foregoing documents, we have assumed the genuineness
of all signatures and the authenticity of all documents submitted to us as
originals, the conformity to original documents of all documents submitted to us
as certified, facsimile or photostatic copies, and the authenticity of the
originals of such latter documents.
Based upon and subject to the foregoing, we are of the opinion that the
Shares have been duly and validly authorized for issuance under the Plan and the
Shares, when issued against payment therefor in accordance with the terms of the
Plan, will be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion with the Securities and
Exchange Commission as an exhibit to the Registration Statement.
Very truly yours,
HALE AND DORR LLP
<PAGE> 1
Exhibit 23.2
------------
CONSENT OF INDEPENDENT ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Registration Statement on Form S-8 of our reports dated
January 24, 1997 included in BayCorp Holdings, Ltd. Form 10-K for the year ended
December 31, 1996 and to all references to our firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Boston, Massachusetts
March 28, 1997
