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REGISTRATION NO. 33-
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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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Aquarion Company
(Exact name of Registrant as specified in its charter)
Delaware 06-0852232
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
835 Main Street
Bridgeport, CT 06601
(Address, including zip code, of Registrant's principal executive office)
Aquarion Company Stock Incentive Plan
Aquarion Company Directors' Deferred Compensation Plan
Aquarion Company Long-Term Incentive Plan
(Full title of the Plans)
---------------
Janet M. Hansen
Senior Vice President, Chief Financial Officer and Treasurer
Aquarion Company
835 Main Street
Bridgeport, CT 06601
(203) 335-2333
(Name, address and telephone number, including area code, of agent for service)
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Copies to:
Joel S. Hoffman, Esq.
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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PROPOSED PROPOSED
TITLE OF MAXIMUM MAXIMUM AMOUNT OF
SECURITIES TO AMOUNT TO OFFERING PRICE AGGREGATE REGISTRATION
BE REGISTERED BE REGISTERED PER SHARE(2) OFFERING PRICE FEE(2)
- --------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock without par value 1,200,000 shares(1) $24.6875 $29,625,000 $10,215
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</TABLE>
(1) This Registration Statement also pertains to Series A Junior Participating
Preferred Stock 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) Estimated solely for calculating the registration fee and calculated
pursuant to Rule 457(c), based on the average of the high and low sale
prices of the Common Stock on April 28, 1994 as reported on the New York
Stock Exchange Composite Tape.
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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 by
Aquarion Company (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, 1993.
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.
The financial statements incorporated in this Prospectus by reference to the
Annual Report on Form 10-K of Aquarion Company for the year ended December 31,
1993, have been so incorporated in reliance on the report of Price Waterhouse,
independent accountants, given on the authority of said firm as experts in
auditing and accounting.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Restated Certificate of Incorporation includes provisions which
have the purpose of limiting the personal liability of its directors for
monetary damages for breach of their duty of care to the full extent permissible
under Delaware law.
The Delaware General Corporation Law authorizes a corporation's Board of
Directors to grant indemnity to officers and directors for certain liabilities,
including reimbursement of expenses incurred, arising under the Securities Act
of 1933, as amended (the "Securities Act"). Article VIII of the Company's By-
laws provides for indemnification of its officers, directors, employees and
other agents to the maximum extent permitted by Delaware law.
The Company has purchased directors' and officers' liability insurance
covering certain liabilities incurred by its directors in connection with the
performance of their duties.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable
ITEM 8. EXHIBITS.
4.1 Aquarion Company Stock Incentive Plan - incorporated by reference to
Exhibit A to the Company's Proxy Statement for its Annual Meeting held on
April 26, 1994
4.2 Aquarion Company Directors' Deferred Compensation Plan - incorporated by
reference to Exhibit B to the Company's Proxy Statement for its Annual
Meeting held on April 26, 1994
2
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4.3 Aquarion Company Long-Term Incentive Plan*
5 Opinion of Wiggin & Dana*
23.1 Consent of Price Waterhouse*
23.2 Consent of Wiggin & Dana (included in the opinion filed as Exhibit 5)*
24 Power of Attorney*
- ----------------
* Filed herewith
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;
(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;
(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.
(h) Insofar as indemnification for liabilities arising under the Securities
Act of 1933, as amended (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.
3
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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 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 Bridgeport, State of Connecticut, on this 4th, day of
May, 1994.
AQUARION COMPANY
By Janet M. Hansen
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Janet M. Hansen
Senior 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 4th day of May, 1994.
William S. Warner* CHAIRMAN OF THE BOARD OF DIRECTORS
- -------------------------------------- AND DIRECTOR
William S. Warner
Jack E. McGregor* PRESIDENT, CHIEF EXECUTIVE OFFICER
- -------------------------------------- AND DIRECTOR
Jack E. McGregor (PRINCIPAL EXECUTIVE OFFICER)
Janet Hansen* SENIOR VICE PRESIDENT, CHIEF
- -------------------------------------- FINANCIAL OFFICER AND TREASURER
Janet M. Hansen (PRINCIPAL FINANCIAL AND ACCOUNTING
OFFICER)
George W. Edwards, Jr.* DIRECTOR
- --------------------------------------
George W. Edwards, Jr.
Geoffrey Etherington* DIRECTOR
- --------------------------------------
Geoffrey Etherington
Norwick R.G. Goodspeed* DIRECTOR
- --------------------------------------
Norwick R.G. Goodspeed
4
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- -------------------------------------- DIRECTOR
Janet D. Greenwood
Donald M. Halsted, Jr.*
- -------------------------------------- DIRECTOR
Donald M. Halsted, Jr.
Eugene D. Jones*
- -------------------------------------- DIRECTOR
Eugene D. Jones
Larry L. Pflieger*
- -------------------------------------- DIRECTOR
Larry L. Pflieger
G. Jackson Ratcliffe*
- -------------------------------------- DIRECTOR
G. Jackson Ratcliffe
John A. Urquhart*
- -------------------------------------- DIRECTOR
John A. Urquhart
- -------------------------------
* By signing her name hereto, Janet M. Hansen signs this Registration Statement
as Senior 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.
Janet M. Hansen
------------------------------------------------
(Janet M. Hansen, Attorney-in-Fact)
5
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EXHIBIT INDEX
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT
4.1 Aquarion Company Stock Incentive Plan - incorporated by
reference
4.2 Aquarion Company Directors' Deferred Compensation Plan -
incorporated by reference
4.3 Aquarion Company Long-Term Incentive Plan
5 Opinion of Wiggin & Dana
23.1 Consent of Price Waterhouse
23.2 Consent of Wiggin & Dana (included in the opinion filed
as Exhibit 5)
24 Power of Attorney
6
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EXHIBIT 4.3
AQUARION COMPANY
LONG-TERM INCENTIVE PLAN, AS AMENDED
1. PURPOSE
The purpose of the Aquarion Company Long-Term Incentive Plan is to
attract and retain persons of ability as employees of Aquarion Company and its
subsidiaries, motivate and reward good performance, encourage such employees to
continue to exert their best efforts on behalf of the Company and its
subsidiaries and further opportunities for stock ownership by such employees in
order to increase their proprietary interest in Aquarion Company by providing
incentive awards to Key Employees (including officers and directors who are also
employees), whose responsibilities and decisions directly affect the performance
of the Company and its subsidiaries. Such incentive awards may consist of
common stock of Aquarion Company, or, in the discretion of the Committee, other
shares of stock of the Company convertible into such common stock, subject to
such restrictions as the Committee may determine or as provided herein,
performance units or stock appreciation rights payable in such stock or cash, or
incentive or non-qualified stock options to purchase such stock, or any
combination of the foregoing, as the Committee may determine.
2. DEFINITIONS
When used herein, the following terms shall have the following
meanings:
"Award" means an award granted to any Key Employee in accordance with
the provisions of the Plan in the form of Options, Rights, Restricted Stock
or Performance Units, or any combination of the foregoing.
"Award Agreement" means the written agreement evidencing each Award
granted to a Key Employee under the Plan.
"Beneficiary" means the beneficiary or beneficiaries designated
pursuant to Section 10 to receive the amount, if any, payable under the
Plan upon the death of a Key Employee.
"Board" means the Board of Directors of the Company.
"Code" means the Internal Revenue Code of 1954, as now in effect or as
hereafter amended. (All citations to sections of the Code are to such
sections as they may from time to time be amended or renumbered.)
"Committee" means the Compensation Committee of the Board.
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2
"Company" means Aquarion Company, and its successors and assigns.
"Fair Market Value" means, as of any date, the closing price for one
share of Stock on the New York Stock Exchange or, if no sales of Stock have
taken place on such date, the closing price on the most recent date on
which selling prices were quoted.
"Key Employee" means those employees (including any officer or
director who is also an employee) of any Participating Company who, in the
judgment of the Committee, are considered especially important to the
future of the Company.
"Option" means an option to purchase Stock, including Restricted Stock
if the Committee so determines, subject to the appropriate requirements
under Section 5 and awarded in accordance with the terms of the Plan and
may be an incentive stock option qualified under Section 422A of the Code
or a non-qualified stock option.
"Participating Company" means the Company or any subsidiary or other
affiliate of the Company; provided, however, for incentive stock options
only, "Participating Company" means the Company or any corporation which at
the time such option is granted-under the Plan qualifies as a subsidiary of
the Company under the definition of "subsidiary corporation" contained in
Section 425(f) of the Code.
"Performance Unit" means a performance unit subject to the
requirements of Section 6 and awarded in accordance with the terms of the
Plan.
"Plan" means the Aquarion Company Long-Term Incentive Plan, as the
same may be amended, administered or interpreted from time to time.
"Restricted Stock" means Stock delivered under the Plan subject to the
requirements of Section 7 and such other restrictions as the Committee
deems appropriate or desirable.
"Right" means a stock appreciation right subject to the appropriate
requirements under Section 5 and awarded in accordance with the terms of
the Plan.
"Stock" means the common stock (no par value) of the Company.
"Total Disability" means the complete and permanent inability of a Key
Employee to perform all of his or her duties under the terms of his or her
employment with any
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3
Participating Company, as determined by the Committee upon the basis of
such evidence, including independent medical reports and data, as the
Committee deems appropriate or necessary.
3. SHARES SUBJECT TO THE PLAN
The aggregate number of shares of Stock which may be awarded under the
Plan or subject to purchase by exercising an Option shall not exceed 525,000
shares. Such shares shall be made available either from authorized and unissued
shares or shares held by the Company in its treasury. The Committee may, in its
discretion, decide to award other shares issued by the Company that are
convertible into Stock or make such shares subject to purchase by an Option, in
which event the maximum number of shares of Stock into which such stock may be
converted shall be used in applying the aggregate share limit under this Section
3 and all provisions of the Plan relating to Stock shall apply with full force
and effect with respect to such convertible shares. If, for any reason, any
shares of Stock awarded or subject to purchase by exercising an Option under the
Plan are not delivered or are reacquired by the Company, for reasons including,
but not limited to, a forfeiture of Restricted Stock or termination, expiration
or a cancellation with the consent of a Key Employee of an Option, Right or a
Performance Unit, such shares of Stock shall again become available for award
under the Plan.
4. GRANT OF AWARDS AND AWARD AGREEMENTS
(a) Subject to the provisions of the Plan, the Committee shall (i)
determine and designate from time to time those Key Employees or groups of Key
Employees to whom Awards are to be granted; (ii) determine the form or forms of
Award to be granted to any Key Employee; (iii) determine the amount or number of
shares of Stock, including Restricted Stock if the Committee so determines,
subject to each award; (iv) determine the terms and conditions of each Award.
(b) Each Award granted under the Plan shall be evidenced by a written
Award Agreement, in a form approved by the Committee. Such agreement shall be
subject to and incorporate the express terms and conditions, if any, required
under the Plan or as required by the Committee for the form of Award granted and
to such other terms and conditions as the Committee may specify.
5. STOCK OPTIONS AND STOCK APPRECIATION RIGHTS
(a) With respect to Options and Rights, the Committee shall (i)
authorize the granting of incentive stock options, nonqualified stock options,
Rights or a combination of incentive stock options, nonqualified stock options
and Rights; (ii) determine the number of shares of Stock subject to each Option
or the number of shares of Stock that shall be used to determine the
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4
value of a Right; (iii) determine whether such Stock shall be Restricted Stock;
(iv) determine the time or times when and the manner in which each Option shall
be exercisable and the duration of the exercise period; and (v) determine
whether or not all or part of each Option may be cancelled by the exercise of a
Right; provided, however, that (A) no Option shall be granted after the
expiration of ten years from the effective date of the Plan and (B) the
aggregate Fair Market Value (determined as of the date an Option is granted) of
the Stock, disregarding any restrictions in the case of Restricted Stock, for
which any Key Employee may be granted incentive stock options under this Plan or
any other plans of any Participating Company in any calendar year shall not
exceed $100,000 plus the amount of "unused limit carryover" to such year as
determined under Section 422A(c)(4) of the Code.
(b) The exercise period for a non-qualified stock option shall be ten
years and one day from the date of grant, and the exercise period for an
incentive stock option or Right, including any extension which the Committee may
from time to time decide to grant, shall not exceed ten years from the date of
grant; provided, however, that, in the case of an incentive stock option granted
to a Key Employee who, at the time of grant, owns stock possessing more than 10
percent of the total combined voting power of all classes of stock of the
Company (a "Ten Percent Stockholder"), such period, including extensions, shall
not exceed five years from the date of grant.
(c) The Option or Right price per share shall be determined by the
Committee at the time any Option is granted and shall be not less than (i) the
Fair Market Value, or (ii) in the case of an Option granted to a Ten Percent
Stockholder, 110 percent of the Fair Market Value (but in neither event less
than the par value) of one share of Stock, disregarding any restrictions in the
case of Restricted Stock, on the date the Option is granted, as determined by
the Committee.
(d) No part of any Option or Right may be exercised until the Key
Employee who has been granted the Award shall have remained in the employ of a
Participating Company for such period after the date on which the Option or
Right is granted as the Committee may specify, if any, and the Committee may
further require exercisability in installments; provided, however, the period
during which an Option or Right is exercisable shall commence no earlier than
six months following the date the Option or Right is granted and no incentive
stock option may be exercised while there is outstanding any incentive stock
option which was previously granted to the same optionee by any Participating
Company. For this purpose, any incentive stock option shall be treated as
outstanding until such option is exercised in full or expires by reason of lapse
of time.
(e) Subject to Section 9(c), except as otherwise provided in the
Plan, the purchase price of the shares as to which an Option shall be exercised
shall be paid to the Company
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5
at the time of exercise either in cash or in such other consideration as the
Committee deems appropriate, including, Stock already owned by the optionee,
having a total fair market value, as determined by the Committee, equal to the
purchase price, or a combination of cash and such other consideration having a
total fair market value, as so determined, equal to the purchase price.
(f)(i) If a Key Employee who has been granted an Option or a Right
shall die (A) while an employee of any Participating Company or (B) within three
months after termination of his or her employment with all Participating
Companies because of his or her Total Disability, his or her Options or Rights
may be exercised, to the extent that the Key Employee shall have been entitled
to do so on the date of his or her death or such termination of employment, by
the person or persons to whom the Key Employee's rights under the Option or
Right pass by will, or if no such person has such right, by his or her executors
or administrators, at any time, or from time to time, within twelve months after
the date of the Key Employee's death or within such other period, and subject to
such terms and conditions as the Committee may specify, but not later than the
expiration date specified in Section 5(b) above. (ii) If the Key Employee's
employment by any Participating Company terminates because of his or her Total
Disability and such Key Employee has not died within the following three months,
he or she may exercise his or her Options or Rights, to the extent that he or
she shall have been entitled to do so at the date of the termination of his or
her employment, at any time, or from time to time, within twelve months after
the date of the termination of his or her employment or within such other
period, and subject to such terms and conditions as the Committee may specify,
but not later than the expiration date specified in Section 5(b) above. (iii) If
the Key Employee's employment terminates for any other reason, he or she may
exercise his or her Options or Rights, to the extent that he or she shall have
been entitled to do so at the date of the termination of his or her employment,
at any time, or from time to time, within three months after the date of the
termination of his or her employment or within such other period, and subject to
such terms and conditions as the Committee may specify, but not later than the
expiration date specified in Section 5(b) above.
(g) No Option or Right granted under the Plan shall be transferable
other than by will or by the laws of descent and distribution. During the
lifetime of the optionee, an Option shall be exercisable only by him or her.
(h) With respect to an incentive stock option, the Committee shall
specify such terms and provisions as the Committee may determine to be necessary
or determine in order to qualify such Option as an incentive stock option within
the meaning of Section 422A of the Code.
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6
(i) Upon exercise of a Right, the Key Employee shall be entitled,
subject to such terms and conditions the Committee may specify, to receive upon
exercise thereof all or a portion of the excess of (i) the Fair Market Value of
a specified number of shares of Stock, disregarding any restrictions in the case
of Restricted Stock, at the time of exercise, as determined by the Committee,
over (ii) a specified amount which shall not, subject to Section 5(j), be less
than the Fair Market Value of such specified number of shares of Stock,
disregarding any restrictions in the case of Restricted Stock, at the time the
Right is granted. Upon exercise of a Right, payment of such excess shall be
made as the Committee shall specify (A) in cash, (B) the issuance or transfer to
the Key Employee of whole shares of Stock, including Restricted Stock, with a
Fair Market Value, disregarding any restrictions in the case of Restricted
Stock, at such time equal to any such excess, or (C) a combination of cash and
shares of Stock with a combined fair market value at such time equal to any such
excess, all as determined by the Committee; provided, however, a fractional
share of Stock shall be paid in cash equal to the Fair Market Value of the
fractional share of Stock, disregarding any restrictions in the case of
Restricted Stock, at such time. If and to the extent a Right is payable in
Stock and the full amount of such value is not paid in Stock, then the shares of
Stock representing such portion of the value of the Right not paid in Stock
shall again become available for award under the Plan.
(j) If the Award granted to a Key Employee allows the Key Employee to
elect to cancel all or any portion of an unexercised Option by exercising a
related Right, then the Option price per share of Stock must be used as the
specified price in Section 5(i), to determine the value of the Right upon such
exercise, and, in the event of the exercise of such Right, the Company's
obligation in respect of such Option or such portion thereof will be discharged
by payment of the Right so exercised. In the event of such a cancellation, the
number of shares as to which such Option was cancelled shall become available
for use under the Plan less the number of shares received by the optionee upon
such cancellation. Any such Right shall be transferable only by will or by the
laws of descent and distribution. During the lifetime of the optionee, such
Right shall be exercisable only by him or her.
(k) No share of Stock acquired by an exercise of an incentive stock
option shall be transferable other than by will or by the laws of descent and
distribution within two years of the date such Option was granted or within one
year after the transfer of such share pursuant to such exercise.
6. PERFORMANCE UNITS
(a) The Committee shall determine a performance period (the
"Performance Period") of not less than two nor more than five years and shall
determine the performance objectives for
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7
Awards of Performance Units. Performance objectives may vary from Key Employee
to Key Employee and between groups of Key Employees and shall be based upon such
performance criteria or combination of factors as the Committee may deem
appropriate, including, but not limited to, minimum earnings per share or return
on equity. Performance Periods may overlap and Key Employees may participate
simultaneously with respect to Performance Units for which different Performance
Periods are prescribed.
(b) At the beginning of a Performance Period, the Committee shall
determine for each Key Employee or group of Key Employees eligible for
Performance Units with respect to that Award Period the range of dollar values,
if any, which may be fixed or may vary in accordance with criteria specified by
the Committee, which shall be paid to a Key Employee as an Award if the relevant
measure of Company performance for the Award Period is met.
(c) If during the course of a Performance Period there shall occur
significant events as determined by the Committee, including, but not limited
to, reorganizations of the Company or a change in control of the Company, which
the Committee expects to have a substantial effect on a performance objective
during such period, the Committee may revise such objective.
(d) If a Key Employee terminates service with all Participating
Companies during a Performance Period because of death, Total Disability,
retirement at age 65, or if at an earlier age, with the consent of the Company,
or upon a significant event, as determined by the Committee, that Key Employee
shall be entitled to an Award of a Performance Unit at the end of the
Performance Period based (i) upon the performance objectives satisfied at the
end of such period and (ii) prorated for the portion of the Performance Period
during which the Key Employee was employed by any Participating Company;
provided, however, the Committee may provide for an earlier payment in
settlement of such Performance Unit in such amount and under such terms and
conditions as the Committee deems appropriate or desirable with the consent of
the Key Employee. If a Key Employee terminates service with all Participating
Companies during a Performance Period for any other reason, then such Key
Employee shall not be entitled to any Award with respect to that Performance
Period unless the Committee shall otherwise determine.
(e) Each Performance Unit may be paid in whole shares of Stock,
including Restricted Stock (together with any cash representing fractional
shares of Stock), or cash, or a combination of Stock and cash either as a lump
sum payment or in annual installments, all as the Committee shall determine,
commencing as soon as practicable after the end of the relevant Performance
Period. If and to the extent a Performance Unit is payable in Stock and the
full amount of such value is not paid in
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8
Stock, then the shares of Stock representing the portion of the value of the
Performance Unit not paid in Stock shall again become available for award under
the Plan.
7. RESTRICTED STOCK
(a) Restricted Stock may be received by a Key Employee either as an
Award or as the result of an exercise of an Option or Right or as payment for a
Performance Unit. Restricted Stock shall be subject to a restriction period
(after which restrictions will lapse) which shall mean a period commencing on
the date the Award is granted and ending on such date as the Committee shall
determine (the "Restriction Period").
(b) Except as otherwise provided in this Section 7, no shares of
Restricted Stock received by a Key Employee shall be sold, exchanged,
transferred, pledged, hypothecated or otherwise disposed of during the
Restriction Period; provided, however, the Restriction Period for any Key
Employee shall be deemed to end and all restrictions on shares of Restricted
Stock shall lapse upon the Key Employee's death, Total Disability or retirement
after attaining age 65 or an earlier age with the consent of the Company, or
upon some significant event, as determined by the Committee, including, but not
limited to, a reorganization of the Company or a change in control.
(c) If a Key Employee terminates employment with all Participating
Companies for any reason before the expiration of the Restriction Period, all
shares of Restricted Stock still subject to restriction shall be forfeited by
the Key Employee and shall be reacquired by the Company, and, in the case of
Restricted Stock purchased through the exercise of an Option, the Company shall
refund the purchase price paid on the exercise of the Option. Upon such
forfeiture, such forfeited shares of Restricted Stock shall again become
available for award under the Plan.
(d) The Committee may require under such terms and conditions as it
deems appropriate or desirable that the certificates for Stock delivered under
the Plan may be held in custody by a bank or other institution, or that the
Company may itself hold such shares in custody until the Restriction Period
expires or until restrictions thereon otherwise lapse, and may require, as a
condition of any receipt of Restricted Stock that the Key Employee shall have
delivered a stock power endorsed in blank relating to the Restricted Stock.
(e) Nothing in this Section 7 shall preclude a Key Employee from
exchanging any shares of Restricted Stock subject to the restrictions contained
herein for any other shares of Stock that are similarly restricted.
<PAGE>
9
8. CERTIFICATES FOR AWARDS OF STOCK
(a) Subject to Section 7(d), each Key Employee entitled to receive
Stock under the Plan shall be issued a certificate for the shares of Stock. Such
certificate shall be registered in the name of the Key Employee, and shall bear
an appropriate legend reciting the terms, conditions and restrictions, if any,
applicable to such Award and shall be subject to appropriate stop-transfer
orders.
(b) The Company shall not be required to issue or deliver any
certificates for shares of Stock prior to (i) the listing of such shares on any
stock exchange on which the Stock may then be listed and (ii) the completion of
any registration or qualification of such shares under any federal or state law,
or any ruling or regulation of any government body which the Company shall, in
its sole discretion, determine to be necessary or advisable.
(c) All certificates for shares of Stock delivered under the Plan
shall also be subject to such stop-transfer orders and other restrictions as the
Committee may deem advisable under the rules, regulations, and other
requirements of the Securities and Exchange Commission, any stock exchange upon
which the Stock is then listed and any applicable federal or state securities
laws, and the Committee may cause a legend or legends to be placed on any such
certificates to make appropriate reference to such restrictions. The foregoing
provisions of this Section 8(c) shall not be effective if and to the extent that
the shares of Stock delivered under the Plan are covered by an effective and
current registration statement under the Securities Act of 1933, or if and so
long as the Committee determines that application of such provision is no longer
required or desirable. In making such determination, the Committee may rely
upon an opinion of counsel for the Company.
(d) Except for the restrictions on Restricted Stock under Sections
5(k) and 7, each Key Employee who receives an award of Stock, shall have all of
the rights of a shareholder with respect to such shares, including the right to
vote the shares and receive dividends and other distributions. No Key Employee
awarded an Option, a Right or Performance Unit payable in Stock, including
Restricted Stock, or selected by the Committee to participate during a
Performance Period for a Performance Unit payable in Stock, including Restricted
Stock, shall have any right as a shareholder with respect to any shares subject
to his or her Option, Right or Performance Unit prior to the date of issuance to
him or her of a certificate or certificates for such shares.
9. LOANS AND SUPPLEMENTAL CASH PAYMENTS
(a) The Committee may provide for supplemental cash payments or loans
to Key Employees at such time and in such
<PAGE>
10
manner as the Committee may determine in connection with Awards granted under
the Plan.
(b) Supplemental cash payments shall be subject to such terms and
conditions as the Committee may specify; provided, however, in no event shall
the amount of such payment exceed (i) in the case of an Option, the excess of
the Fair Market Value of the shares of Stock, disregarding any restrictions in
the case of Restricted Stock, purchased through the Option on the date of
exercise over the option price, or (ii) in the case of an Award of a Right,
Performance Unit, or Restricted Stock, the value of the shares of Stock and
other consideration issued in payment of such Award; and provided further, in
the case of an incentive stock option, no supplemental cash payment shall be
made if it would disqualify such option under Section 422A of the Code.
(c) In the case of loans, any such loan shall be evidenced by a
written loan agreement or other instrument in such form and shall contain such
terms and conditions, including without limitation, provisions for interest,
payment schedules, collateral, forgiveness, events of default or acceleration of
such loans or parts thereof, as the Committee shall specify; provided, however,
that in the case of an incentive stock option the interest rate set by the
Committee under such an arrangement shall be no lower than that required to
avoid the imputation of unstated interest under Section 483 of the Code and
provided, further, in the case of an incentive stock option that the Committee
shall specify no such term or condition that would result in such option failing
to qualify as an incentive stock option.
10. BENEFICIARY
(a) Each Key Employee shall file with the Committee a written
designation of one or more persons as the Beneficiary who shall be entitled to
receive the Award, if any, payable under the Plan upon his or her death. A Key
Employee may from time to time revoke or change his or her Beneficiary
designation without the consent of any prior Beneficiary by filing a new
designation with the Committee. The last such designation received by the
Committee shall be controlling; provided, however, that no designation, or
change or revocation thereof, shall be effective unless received by the
Committee prior to the Key Employee's death, and in no event shall it be
effective as of a date prior to such receipt.
(b) If no such Beneficiary designation is in effect at the time of a
Key Employee's death, or if no designated Beneficiary survives the Key Employee
or if such designation conflicts with law, the Key Employee's estate shall be
entitled to receive the Award, if any, payable under the Plan upon his or her
death. If the Committee is in doubt as to the right of any person to receive
such Award, the Company may retain such Award, without liability for any
interest thereon, until the Committee
<PAGE>
11
determines the rights thereto, or the Company may pay such Award into any court
of appropriate jurisdiction and such payment shall be a complete discharge of
the liability of the Company therefor.
11. ADMINISTRATION OF THE PLAN
(a) The Plan shall be administered by the Committee, as appointed by
the Board and serving at the Board's pleasure. Each member of the Committee
shall be both a member of the Board and a "disinterested person" within the
meaning of Rule 16b-3 under the Securities Exchange Act of 1934 or successor
rule or regulation. No member of the Committee shall be, or shall have been,
eligible to receive an Award under the Plan or any other plan maintained by any
Participating Company to acquire stock, stock options, stock appreciation rights
or restricted stock of any Participating Company at any time within the one year
immediately preceding the member's appointment to the Committee.
(b) All decisions, determinations or actions of the Committee made or
taken pursuant to grants of authority under the Plan shall be made or taken in
the sole discretion of the Committee and shall be final, conclusive and binding
on all persons for all purposes.
(c) The Committee shall have full power, discretion and authority to
interpret, construe and administer the Plan and any part thereof, and its
interpretations and constructions thereof and actions taken thereunder shall be,
except as otherwise determined by the Board, final, conclusive and binding on
all persons for all purposes.
(d) The Committee's decisions and determinations under the Plan need
not be uniform and may be made selectively among Key Employees, whether or not
such Key Employees are similarly situated.
(e) The Committee shall keep minutes of its actions under the Plan.
The act of a majority of the members present at a meeting duly called and held
shall be the act of the Committee. Any decision or determination reduced to
writing and signed by all members of the Committee shall be fully as effective
as if made by unanimous vote at a meeting duly called and held.
(f) The Committee may employ such legal counsel, including without
limitation independent legal counsel and counsel regularly employed by the
Company, consultants and agents as the Committee may deem appropriate for the
administration of the Plan and may rely upon any opinion received from any such
counsel or consultant and any computations received from any such consultant or
agent. All expenses incurred by the Committee in interpreting and administering
the Plan, including without limitation, meeting fees and expenses and
professional fees, shall be paid by the Company.
<PAGE>
12
(g) No member or former member of the Committee or the Board shall be
liable for any action or determination made in good faith with respect to the
Plan or any Award granted under it. Each member or former member of the
Committee or the Board shall be indemnified and held harmless by the Company
against all cost or expense (including counsel fees) or liability (including any
sum paid in settlement of a claim with the approval of the Board) arising out of
any act or omission to act in connection with the Plan unless arising out of
such member's or former member's own fraud or bad faith. Such indemnification
shall be in addition to any rights of indemnification the members or former
members may have as directors or under the by-laws of the Company.
12. AMENDMENT OR DISCONTINUANCE
The Board may, at any time, amend or terminate the Plan. The Plan may
also be amended by the Committee, provided that all such amendments shall be
reported to the Board. No amendment shall alter the group of persons eligible
to participate in the Plan or materially increase the benefits provided under
the Plan to the extent that stockholder approval would then be required pursuant
to Rule 16b-3 under the Securities Exchange Act of 1934 or successor rule or
regulation, and no amendment or termination shall retroactively impair the
rights of any person with respect to an Award.
13. ADJUSTMENTS IN EVENT OF CHANGE IN COMMON STOCK
In the event of any recapitalization, reclassification, split-up or
consolidation of shares of Stock, merger or consolidation of the Company or sale
by the Company of all or a portion of its assets, or any other major change in
the Company's overall cost of equity or of capital or allowable rate of return
on Stock equity, as prescribed by the appropriate governmental authority, or
other event which would distort the implementation of the Plan or the
realization of its objectives, the Committee may make such adjustments in the
Stock subject to Awards, including Stock subject to purchase by an Option, or
the terms, conditions or restrictions on Stock or Awards as the Committee deems
equitable.
14. MISCELLANEOUS
(a) Nothing in this Plan or any Award granted hereunder shall confer
upon any employee any right to continue in the employ of any Participating
Company or interfere in any way with the right of any Participating Company to
terminate his or her employment at any time. No Award payable under the Plan
shall be deemed salary or compensation for the purpose of computing benefits
under any employee benefit plan or other arrangement of any Participating
Company for the benefit of its employees unless the Company shall determine
otherwise. No Key Employee shall have any claim to an Award until it is
actually
<PAGE>
13
granted under the Plan. To the extent that any person acquires a right to
receive payments from the Company under this Plan, such right shall be no
greater than the right of an unsecured general creditor of the Company. All
payments to be made hereunder shall be paid from the general funds of the
Company and no special or separate fund shall be established and no segregation
of assets shall be made to assure payment of such amounts except as provided in
Section 7(d) with respect to Restricted Stock.
(b) Absence on leave approved by a duly constituted officer of the
Company shall not be considered interruption or termination of employment for
any purposes of the Plan; provided, however, that no Award may be granted to an
employee while he or she is absent on leave.
(c) If the Committee shall find that any person to whom any Award, or
portion thereof, is payable under the Plan is unable to care for his or her
affairs because of illness or accident, or is a minor, then any payment due him
or her (unless a prior claim therefor has been made by a duly appointed legal
representative) may, if the Committee so directs the Company, be paid to his or
her spouse, a child, a relative, an institution maintaining or having custody of
such person, or any other person deemed by the Committee to be a proper
recipient on behalf of such person otherwise entitled to payment. Any such
payment shall be a complete discharge of the liability of the Company therefor.
(d) The right of any Key Employee or other person to any Award
payable under the Plan may not be assigned, transferred, pledged or encumbered,
either voluntarily or by operation of law, except as provided in Section 10 with
respect to the designation of a Beneficiary or as may otherwise be required by
law. If, by reason of any attempted assignment, transfer, pledge, or
encumbrance or any bankruptcy or other event happening at any time, any amount
payable under the Plan would be made subject to the debts or liabilities of the
Key Employee or his or her Beneficiary or would otherwise devolve upon anyone
else and not be enjoyed by the Key Employee or his or her Beneficiary, then the
Committee may terminate such person's interest in any such payment and direct
that the same be held and applied to or for the benefit of the Key Employee, his
or her Beneficiary or any other persons deemed to be the natural objects of his
or her bounty, taking into account the expressed wishes of the Key Employee (or,
in the event of his or her death, those of his or her Beneficiary) in such
manner as the Committee may deem proper.
(e) Copies of the Plan and all amendments, administrative rules and
procedures and interpretations shall be made available to all Key Employees at
all reasonable time at the Company's headquarters.
<PAGE>
14
(f) The Committee may cause to be made, as a condition precedent to
the payment of any Award, or otherwise, appropriate arrangements with the Key
Employee or his or her Beneficiary, for the withholding of any Federal, state,
local or foreign taxes.
(g) The Plan and the grant of Awards shall be subject to all
applicable federal and state laws, rules, and regulations and to such approvals
by any government or regulatory agency as may be required.
(h) All elections, designations, requests, notices, instructions and
other communications from a Key Employee, Beneficiary or other person to the
Committee, required or permitted under the Plan, shall be in such form as is
prescribed from time to time by the Committee and shall be mailed by first class
mail or delivered to such location as shall be specified by the Committee.
(i) The terms of the Plan shall be binding upon the Company and its
successors and assigns.
(j) Captions preceding the sections hereof are inserted solely as a
matter of convenience and in no way define or limit the scope or intent of any
provision hereof.
15. EFFECTIVE DATE, TERM OF PLAN AND STOCKHOLDER APPROVAL
The effective date of the Plan shall be January 1, 1985, subject to
approval by a majority of the Company's stockholders at their 1985 Annual
Meeting. Notwithstanding anything in the Plan to the contrary, if the Plan
shall have been approved by the Board prior to such Annual Meeting, Key
Employees may be selected and Award criteria may be determined as provided
herein subject to such subsequent stockholder approval. No Awards shall be
granted under the Plan more than ten years after the date the Plan is adopted by
the Company.
<PAGE>
EXHIBIT 5
[LETTERHEAD OF WIGGIN & DANA]
May 3, 1994
Aquarion Company
835 Main Street
Bridgeport, Connecticut 06601-2353
Re: Aquarion Company Stock Incentive,
Directors' Deferred Compensation and
Long Term Incentive Plans
Registration Statement on Form S-8
------------------------------------
Ladies and Gentlemen:
We are counsel for Aquarion Company, a Delaware corporation (the
"Company"), and issue the following opinion in connection with a Registration
Statement on Form S-8 (the "Registration Statement"), to be filed by the Company
under the Securities Act of 1933, as amended (the "Act"), with respect to the
proposed offering by the Company of an additional 1,200,000 shares of its Common
Stock, no par value (stated value $1.00 per share) (the "Shares"), in connection
with the Company's Incentive Stock Plan, Directors' Deferred Compensation Plan
and Long Term Incentive Plan (the "Plans").
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of the Restated Certificate of Incorporation and By-laws of
the Company, each as amended and such other documents, coporate records,
certificates of public officials and instruments as we have considered necessary
or advisable for the purpose of this opinion. We have assumed the authenticity
of all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies. We have not independently
verified such information and assumptions.
We are members of the Bar of the State of Connecticut and we express no
opinion as to the law of any jurisdiction other
<PAGE>
Aquarion Company
May 3, 1994
Page 2
than the laws of the State of Connecticut and Delaware corporate law.
Subject to the foregoing and based on such examination and review, we
are of the opinion that:
1. The Company is a corporation organized and existing in good standing
under the laws of the State of Delaware.
2. When the Registration Statement has become effective under the Act
and the Shares have been delivered against payment therefor in accordance with
applicable provisions of the Plans, the Shares issued pursuant to the Plans will
be duly authorized, validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving the foregoing consent, we do not thereby
admit that we are in the category of persons whose consent is required under
Section 7 of the Act, or the rules and regulations of the Securities and
Exchange Commission thereunder.
Very truly yours,
Wiggin & Dana
By /s/ Anthony M. Macleod
--------------------------
Anthony M. Macleod
A Partner
Wiggin & Dana
<PAGE>
EXHIBIT 23.1
Consent of Independent Accountants
----------------------------------
To the Board of Directors
of Aquarion Company
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 and the related Prospectus of our report dated January 31,
1994, which appears on page 42 of the 1993 Annual Report to Shareholders of
Aquarion Company, which is incorporated by reference in Aquarion Company's
Annual Report on Form 10-K for the year ended December 31, 1993. We also consent
to the incorporation by reference of our report on the Financial Statement
Schedules, which appears on page 29 of such Annual Report on Form 10-K. We also
consent to the reference to us under the heading "Interests of Named Experts and
Counsel" in such Registration Statement.
PRICE WATERHOUSE
Stamford, Connecticut
May 3, 1994
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned, officers
and/or directors of Aquarion Company (the "Company"), a Delaware corporation
which proposes to file with the Securities and Exchange Commission a
Registration Statement pursuant to the provisions of the Securities Act of 1933,
as amended, with respect to the issue or transfer out of treasury of up to an
additional 1,200,000 shares of Common Stock, no par value, under the Company's
Stock Incentive Plan, Directors' Deferred Plan and Long-Term Incentive Plan,
under the terms and conditions to be set forth in such Registration Statement,
has made, constituted and appointed and by these presents does hereby make,
constitute and appoint JACK E. McGREGOR and JANET M. HANSEN and each of them,
his or her true and lawful attorney-in-fact and agent, for him or her and in his
or her name, place and stead, and in his or her office and capacity as
aforesaid, to sign and file said Registration Statement and any and all
amendments thereto and any and all other documents to be signed and filed with
the Securities and Exchange Commission in connection therewith, hereby granting
to said attorneys-in-fact and agents, and each of them full power and authority
to do and perform each and every act as fully, to all intents and purposes, as
he or she might or could do if personally present, hereby ratifying and
confirming in all respects all that said attorneys-in-fact and agents, or any of
them, their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Signature Title Date
--------- ----- ----
William S. Warner
- ------------------------------
William S. Warner Chairman of the April 26, 1994
Board of Directors
and Director
Jack E. McGregor
- ------------------------------
Jack E. McGregor President, Chief Executive April 26, 1994
Officer and Director
(Principal Executive
Officer)
- ------------------------------
Janet M. Hansen Senior Vice President and April 26, 1994
Chief Financial Officer
(Principal Financial and
Accounting Officer)
<PAGE>
George W. Edwards, Jr.
- --------------------------
George W. Edwards, Jr. Director April 26, 1994
Geoffrey Etherington
- --------------------------
Geoffrey Etherington Director April 26, 1994
Norwick R. G. Goodspeed
- --------------------------
Norwick R. G. Goodspeed Director April 26, 1994
- --------------------------
Janet D. Greenwood Director April 26, 1994
Donald M. Halsted, Jr.
- --------------------------
Donald M. Halsted, Jr. Director April 26, 1994
Eugene D. Jones
- --------------------------
Eugene D. Jones Director April 26, 1994
Larry L. Pflieger
- --------------------------
Larry L. Pflieger Director April 26, 1994
G. Jackson Ratcliffe
- --------------------------
G. Jackson Ratcliffe Director April 26, 1994
John A. Urquhart
- --------------------------
John A. Urquhart Director April 26, 1994
