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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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ENERGYSOUTH, INC.
(Exact name of registrant as specified in its charter)
(successor to MOBILE GAS SERVICE CORPORATION)
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ALABAMA 58-2358943
(State of Incorporation) (I.R.S. Employer Identification No.)
2828 Dauphin Street
Mobile, Alabama 36606
(334) 450-4774
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
AMENDED AND RESTATED STOCK OPTION PLAN OF
ENERGYSOUTH, INC.
(formerly Mobile Gas Service Corporation
1992 Stock Option Plan)
(full title of the Plan)
JOHN S. DAVIS
President
2828 Dauphin Street
Mobile, Alabama 36606
Telephone: (334) 450-4774
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
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Copies of all communications to:
E. B. PEEBLES III
Armbrecht, Jackson, DeMouy,
Crowe, Holmes & Reeves, L.L.C.
1300 Riverview Plaza
Mobile, Alabama 36602
(334) 432-6751
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==========================================================================================================
Title of each class Proposed maximum Proposed maximum Amount of
of securities to Amount to be offering price aggregate offering registration
be registered registered(1) per share(2) price(2) fee(2)
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par 125,000 shares $21.00 $2,625,000 $795.45
value
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</TABLE>
(1) Represents additional shares of Common Stock issuable pursuant to the
Amended and Restated Stock Option Plan of EnergySouth, Inc. (the "Plan") by
virtue of an amendment to the Plan increasing the number of shares issuable
thereunder from 225,000 to 350,000. See EXPLANATORY NOTE below. Also
includes an indeterminable number of shares that might become issuable
pursuant to antidulution adjustment provisions of the Plan.
(2) Estimated solely for the purpose of calculating the registration fee; in
accordance with Rule 457(c), calculated on the basis of average of high and
low prices for shares of common stock, $.01 par value per share, of
EnergySouth, Inc. on the NASDAQ National Market on February 19, 1999.
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Exhibit Index Page 10
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EXPLANATORY NOTE
Mobile Gas Service Corporation ("Mobile Gas") previously registered 150,000
shares of common stock of Mobile Gas ("Mobile Gas Common Stock") issuable
pursuant to the Mobile Gas Service Corporation 1992 Stock Option Plan ("the
Plan"), and filing fees of $1,154.30 were paid with respect to same, on the
Registration Statement on Form S-8 (No. 33-66474) of Mobile Gas. EnergySouth,
Inc. ("Registrant") is the successor issuer to Mobile Gas pursuant to the
Agreement and Plan of Merger referenced as Exhibit 99.1 hereto (the "Merger
Agreement") and, pursuant to Rule 414(d) under the Securities Act of 1933, as
amended (the "Act"), hereby expressly adopts Mobile Gas's Registration
Statement on Form S-8 (No. 33-66474) as Registrant's own registration statement
for all purposes of the Act and the Securities Exchange Act of 1934, as
amended. The contents of Registration Statement No. 33-66474 are incorporated
herein by reference. Pursuant to the Merger Agreement, (a) on February 2, 1998
each two shares of Mobile Gas Common Stock then outstanding were converted into
three shares of common stock, $.01 par value per share, of the Registrant
("Common Stock"), (b) the Plan was amended to utilize Common Stock instead of
Mobile Gas Common Stock and pursuant to the antidilution provisions of the Plan
the number of shares issuable pursuant to the Plan were correspondingly
adjusted from 150,000 shares of Mobile Gas Common Stock to 225,000 shares of
Common Stock, and (c) the Plan was assumed by the Registrant. Of such 225,000
shares of Common Stock, 67,500 shares remained available for option grants
prior to January 29, 1999, 1,850 shares had been issued upon exercise of
options, and 155,650 shares were subject to options not yet exercised. On
January 29, 1999, stockholders of the Registrant approved an amendment of the
Plan to increase the number of shares of Common Stock issuable thereunder by
125,000 shares, to 350,000 shares. The 125,000 shares registered hereunder are
in addition to the 225,000 shares of Common Stock into which said 150,000
shares of previously-registered Mobile Gas Common Stock were converted as a
result of the Merger.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3: INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission are incorporated herein by reference and made a part hereof:
(a) the Registrant's latest Annual Report on Form 10-K for the fiscal
year ended September 30, 1998.
(b) All other reports filed by the Registrant pursuant to Section 13(a)
or 15(d) of the Securities and Exchange Act of 1934 ("Exchange Act") since
September 30, 1998.
(c) the Registrant's definitive proxy statement filed pursuant to
Section 14 of the Exchange Act in connection with the Registrant's January 29,
1999 annual meeting of shareholders.
(d) the description of the Registrant's $.01 par value common stock
contained in a registration statement filed under Section 12 of the Exchange
Act, including any amendment or reports filed for the purpose of updating such
description.
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the filing of a
post-effective amendment which indicates what all securities offered hereby have
been sold or which deregisters all securities offered hereby then unsold, shall
be deemed to be incorporated by reference herein and to be a part hereof from
the date of filing of such documents.
ITEM 4: DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5: INTEREST OF NAMED EXPERTS AND COUNSEL
Certain legal matters with respect to the Plan and in connection with
the issuance of Common Stock pursuant thereto have been passed upon for the
Registrant by Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C. Members
of such law firm who participated in the representation of the Registrant and
their spouses beneficially owned 17,337 shares of Common Stock as of January 31,
1999.
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ITEM 6: INDEMNIFICATION OF DIRECTORS AND OFFICERS.
(a)
Sections 10-2B-8.51 et seq. of the Alabama Code provide that the
Registrant may indemnify a director or officer as follows:
Section 10-2B-8.51. Authority to indemnify.
(a) Except as provided in subsection (d), a corporation may indemnify
an individual made a party to a proceeding because he or she is or was
a director against liability incurred in the proceeding if:
(1) The individual conducted himself or herself in good faith;
and
(2) The individual reasonably believed:
(i) In the case of conduct in his or her official capacity
with the corporation, that the conduct was in its best
interests; and
(ii) In all other cases, that the conduct was at least not
opposed to its best interests; and
(3) In the case of any criminal proceeding, the individual had no
reasonable cause to believe his or her conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for a
purpose he or she reasonably believed to be in the interests of the
participants in, and beneficiaries of the plan is conduct that
satisfies the requirement of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its equivalent is not,
of itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding charging improper
personal benefit to the director, whether or not involving action
in his or her official capacity, in which the director was
adjudged liable on the basis that personal benefit was improperly
received by him or her.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation is limited to
reasonable expenses incurred in connection with the proceeding.
Section 10-2B-8.52. Mandatory indemnification.
A corporation shall indemnify a director who was successful, on the
merits or otherwise,
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in the defense of any proceeding, or of any claim, issue or matter in
such proceeding, here he or she was a party because he or she is or was
a director of the corporation, against reasonable expenses incurred in
connection therewith, notwithstanding that he or she was not successful
on any other claim, issue or matter in any such proceeding.
Section 10-2B-8.55. Determination and authorization of indemnification.
(a) A corporation may not indemnify a director under Section 10-2B-8.51
unless authorized in the specific case after a determination has been
made that indemnification of the director is permissible in the
circumstances because the director has met the standard of conduct set
forth in Section 10-2B-8.51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the
proceeding;
(2) If a quorum cannot be obtained under subdivision (1), by
majority vote of a committee duly designated by the board of
directors (in which designation directors who are parties may
participate) consisting solely of two or more directors not at
the time parties to the proceeding;
(3) By special legal counsel;
(i) Selected by the board of directors or its committee in
the manner prescribed in subdivision (1) or (2); or
(ii) If a quorum of the board of directors cannot be
obtained under subdivision (1) and a committee cannot be
designated under subdivision (2), selected by majority vote
of the full board of directors (in which selection directors
who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the
proceeding may not be voted on the determination. A majority of
the shares that are entitled to vote on the transaction by virtue
of not being owned by or under the control of such directors
constitutes a quorum for the purpose of taking action under this
section.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall
be made by those entitled under subsection (b)(3) to select counsel.
Section 10-2B-8.56. Indemnification of officers, employees, and agents.
(a) An officer of a corporation who is not a director is entitled to
mandatory indemnification under Section 10-2B-8.52, and is entitled to
apply for court-ordered
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indemnification under Section 10-2B-8.54, in each case to the same
extent as a director.
(b) A corporation may indemnify and may advance expenses under Division
E of this article to an officer, employee, or agent of the corporation
who is not a director to the same extent as to a director.
(b)
The Company's by-laws contain provisions for indemnification of
directors and officers of the company as follows:
ARTICLE VIII
INDEMNIFICATION AND RELATED MATTERS
Each person who is or was a director or officer of the Corporation and
who was or is a party or was or is threatened to be made a party to any
threatened, pending or completed claim, action, suit or proceeding,
whether civil, criminal, administrative or investigative, including
appeals, by reason of the fact that he is or was a director or officer
of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee, agent or trustee of
another corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise, shall be indemnified by the
Corporation as a matter of right against any and all expenses
(including attorneys' fees) actually and reasonably incurred by him and
against any and all claims, judgments , fines, penalties, liabilities
and amounts paid in settlement actually incurred by him in defense of
such claim, action, suit or proceeding, including appeals, to the full
extent permitted by applicable law. The indemnification provided by
this Section shall inure to the benefit of the heirs, executors and
administrators of such person. Expenses (including attorneys' fees)
incurred by a director or officer of the Corporation with respect to
the defense of any such claim, action, suit or proceeding may be
advanced by the Corporation prior to the final disposition of such
claim, action suit or proceeding, as authorized by the Board of
Directors in the specific case, upon receipt of an undertaking by or on
behalf of such director or officer to repay such amount if and to the
extent it shall be ultimately determined that he is not entitled to be
indemnified by the Corporation as authorized under this Article or
applicable law; provided, however, that the advancement of such
expenses shall not be deemed to be indemnification unless and until it
shall ultimately be determined that such person is entitled to be
indemnified by the Corporation.
The Corporation shall make such reports to its Stockholders regarding
indemnification or advancement of expenses as may be required by law.
The Corporation may purchase and maintain insurance at the expense of
the Corporation on behalf of any person who is or was a director,
officer, employee or agent of the Corporation or any person who is or
was serving at the request of the Corporation as a director (or the
equivalent), officer,
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employee, agent or trustee of another corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise, against any
liability or expense (including attorneys' fees) asserted against him
and incurred by him in any such capacity, or arising out of his status
as such, whether or not the Corporation would have the power to
indemnify him against such liability or expense under this Section or
otherwise.
The foregoing rights shall not be exclusive of any other rights to
which such director or officer may otherwise be entitled and shall be
available whether or not the director or officer continues to be a
director or officer at the time of incurring any such expenses and
liabilities.
If any word, clause or provision of the Bylaws or any indemnification
made under Article VIII hereof shall for any reason be determined to be
invalid, the provisions of the Bylaws shall not otherwise be affected
thereby but shall remain in full force and effect.
(c)
The Plan provides that members of the Committee will not be personally
liable for any action, determination or interpretation made in good faith with
respect to the Plan, and will be fully protected by the Company in respect to
any such action, determination or interpretation.
(d)
The Registrant has entered into indemnification agreements with
directors and certain officers of the Registrant which provide certain
contractual rights to indemnification in addition to the indemnification
provisions of Alabama law and the Registrant's by-laws.
ITEM 7: EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8: EXHIBITS.
The exhibits to the Registration Statement are listed in the Exhibit
Index elsewhere herein.
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
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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; (iii) to include
any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or 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
information required to be included in the post-effective amendment to
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 15(d) of the Exchange
Act 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.
(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 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 persons of the
Registrant in the successful defense of any action, suit or proceedings) 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 to 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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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 Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized in the City of Mobile, State of Alabama, on February 19, 1999.
ENERGYSOUTH, INC.
Registrant
By: /s/ Charles P. Huffman
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Charles P. Huffman
Chief Financial Officer
and Treasurer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints John S. Davis, Charles P. Huffman and G. Edgar Downing,
and each of them, his true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, and to make any and all state securities law
or blue sky filings, 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 or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents or any of them, or their
or his substitute or 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 on behalf of the Registrant
in the capacities and on the dates indicated:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ John S. Davis Director, President and Chief February 19, 1999
- --------------------------------------- Executive Officer (Principal
John S. Davis Executive Officer)
/s/ Charles P. Huffman Vice President, Chief Financial February 19, 1999
- --------------------------------------- Officer and Treasurer (Principal
Charles P. Huffman Financial and Accounting Officer)
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ William J. Hearin Director, Chairman February 19, 1999
- ---------------------------------------
William J. Hearin
/s/ Joseph G. Hollis, Jr. Director February 19, 1999
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Joseph G. Hollis, Jr.
/s/ Walter L. Hovell Director February 19, 1999
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Walter L. Hovell
/s/ John . Hope Director February 19, 1999
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John C. Hope
/s/ Gaylord C. Lyon Director February 19, 1999
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Gaylord C. Lyon
/s/ G. Montgomery Mitchell Director February 19, 1999
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G. Montgomery Mitchell
/s/ S. Felton Mitchell, Jr. Director February 19, 1999
- ---------------------------------------
S. Felton Mitchell, Jr.
/s/ F. B. Muhlfeld Director February 19, 1999
- ---------------------------------------
F. B. Muhlfeld
/s/ E. B. Peebles, Jr. Director February 19, 1999
- ---------------------------------------
E. B. Peebles, Jr.
/s/ Thomas B. Van Antwerp Director February 19, 1999
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Thomas B. Van Antwerp
</TABLE>
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EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description
- ------- -----------
<S> <C>
5 Opinion of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves,
L.L.C. with respect to legality of securities registered
23.1 Consent of Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves,
L.L.C. (included in Exhibit 5)
23.2 Independent Auditors' Consent.
24 Power of Attorney (included with signature page in Part II of
this registration statement)
99.1 Agreement and Plan of Merger (incorporated by reference to
Exhibit 2.1 to Registrant's Registration Statement on Form S-4
(No. 333-42057))
99.2 Amended and Restated Stock Option Plan of EnergySouth, Inc., as
amended (incorporated by reference to Exhibit 10(r)-1 to
Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998).
</TABLE>
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EXHIBIT 5
Opinion of Armbrecht, Jackson, DeMouy Crowe, Holmes & Reeves, L.L.C.
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February 19, 1999
ENERGYSOUTH, INC.
2828 Dauphin Street
Mobile, Alabama 36606
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8 (Registration No.
333- ) of EnergySouth, Inc. (the "Company"), filed by the Company as
successor to Mobile Gas Service Corporation ("Mobile Gas") following the
reorganization of Mobile Gas into a holding company structure ("the
Reorganization") in which Mobile Gas became a wholly-owned subsidiary of the
Company by virtue of the conversion of each two outstanding shares of common
stock of Mobile Gas into three shares of common stock, $.01 par value per share,
of the Company ("Common Stock"). We have acted as your counsel with respect to
corporate proceedings in connection with the assumption by the Company of the
Mobile Gas Service Corporation 1992 Stock Option Plan (the "Plan") and the
amendment of the Plan to provide for issuance of additional shares of Common
Stock thereunder.
On the basis of such examination of such corporate records, certificates and
other documents as we have considered necessary or appropriate for purposes of
this opinion, we advise you that upon the due authorization and execution of the
Common Stock by the Company and the receipt of payment for the Common Stock in
accordance with the provisions of the Plan, then, in our opinion, the Common
Stock will have been validly issued and will be fully paid and nonassessable.
We hereby consent to the filing of this opinion with the Securities and Exchange
Commission as an exhibit to the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Act.
Very truly yours,
Armbrecht, Jackson, DeMouy, Crowe, Holmes & Reeves, L.L.C.
By /s/ E. B. Peebles III
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E. B. Peebles III
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EXHIBIT 23.2
Independent Auditors' Consent
We consent to the incorporation by reference in this Registration Statement No.
333- of EnergySouth, Inc., successor to Mobile Gas Service Corporation, on
Form S-8 of our report dated November 6, 1998, appearing in the Annual Report on
Form 10-K of EnergySouth, Inc. for the year ended September 30, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Atlanta, Georgia
February 19, 1999
