AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 13, 1999
REGISTRATION NO. 333-__________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________________
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
__________
AQUARION COMPANY
(Exact name of registrant as specified in its charter)
DELAWARE 06-0885252
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
835 MAIN STREET
BRIDGEPORT, CONNECTICUT 06604-4995
(Address, including zip code, of Registrant's principal executive offices)
__________
Aquarion Company 1999 Stock Incentive Plan
(Full Title of the Plan)
__________
Janet M. Hansen
Executive Vice President, Chief Financial Officer and Treasurer
Aquarion Company
835 Main Street
Bridgeport, Connecticut 06604-4995
(203) 335-2333
(Name, address and telephone number, including area code, of agent for service)
__________
Copies to:
Jeffrey A. Clopeck, Esq.
Day, Berry & Howard LLP
260 Franklin Street
Boston, Massachusetts 02110-3179
__________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Title of Proposed Maximum Proposed Maximum Amount of
Securities Amount to Offering Price Aggregate Registration Fee
to be Registered to be Registered Per Share (3) Offering Price (3) Fee
<S> <C> <C> <C>
Common Stock, 750,000 shares (2) $36.78125 $27,585,937.50 $7,668.89
no par value (1)
</TABLE>
(1)This Registration Statement also pertains to Preferred Share Purchase Rights
("Rights") of the Registrant. Until the occurrence of certain prescribed
events, the Rights are not exercisable, will be evidenced by the certificates
for the Common Stock and will be transferred along with and only with the Common
Stock.
(2)In addition, pursuant to Rule 416(a), this Registration Statement also covers
such indeterminate number of additional shares of Common Stock and Rights as is
necessary to eliminate any dilutive effect of any future stock split, stock
dividend or similar
transaction.
(3)Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(c) and (h), based on the average of the high and low
sale prices of the Common Stock on December 10, 1999, as reported on the New
York Stock Exchange.
<PAGE>
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
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, 1998;
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1999, June 30 and September 30, 1999;
(c) All other reports filed pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
since the end of the fiscal year covered by the document referred to
in (a) above;
(d) The Company's Proxy Statement dated August 19, 1999, for its special
meeting of shareholders held on September 21, 1999;
(e) The description of the Company's Common Stock contained in the
Registration Statement on Form 8-A filed by the Company to register
its Common Stock pursuant to Section 12(b) of the Exchange Act,
including any amendments or reports filed for purposes of updating
such description; and
(f) The description of the Company's Preferred Share Purchase Rights
contained in the Registration Statement on Form 8-A filed by the
Company to register its Preferred Share Purchase Rights pursuant to
Section 12(b) of the Exchange Act, as amended by Amendment No. 1 to
the Form 8-A, including any further amendments or reports filed for
purposes of updating such description.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Exchange Act after the date of this Registration Statement and
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware.
Section 145 of the General Corporation Law of the State of Delaware (the "DGCL")
provides that a Delaware corporation may indemnify any person who is, or is
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation) by reason of the
fact that such person is or was a director, officer, employee or agent of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or enterprise.
The indemnity may include expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by such
person in connection with such action, suit or proceeding, provided such
person acted in good faith and in a manner he or she reasonably believed to be
in or not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful. A Delaware corporation may also indemnify any
person who is, or is threatened to be made, a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent
of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, provided
such person acted in good faith and in a manner he reasonably believed to be
in or not opposed to the corporation's best interests, except that no
indemnification is permitted without judicial approval if the officer,
director, employee or agent is adjudged to be liable to the corporation. In
addition, Section 145(c) of the DGCL provides that when an officer or director
is successful on the merits or otherwise in the defense of any action referred
to above, the corporation must indemnify him against the expenses which such
officer or director has actually and reasonably incurred.
The Company's Amended and Restated By-laws contain provisions requiring
indemnification of its officers and directors to the maximum extent permitted
by Delaware law and allowing such indemnification of its employees and agents
and persons serving at its request as a director, officer, employee or agent
of another entity.
Section 145(e) of the DGCL provides that expenses (including attorney's
fees) incurred by a director or officer in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
director or officer is not entitled to be indemnified by the corporation. The
Company's Amended and Restated By-laws provide that expenses incurred in
defending a civil or criminal action, suit or proceeding may be paid by the
Company in advance of the final disposition of such action, suit or proceeding
as authorized by the Company's Board of Directors, upon receipt of an
undertaking by or on behalf of the director, officer, employee or agent to
repay such amount unless it shall ultimately be determined that he or she is
entitled to be indemnified by the Company.
Section 102(b)(7) of the DGCL permits a corporation to provide in its
certificate of incorporation that a director of the corporation shall not be
personally liable to the corporation or its stockholders for monetary damages
for breach of fiduciary duties as a director, except for liability (i) for any
transaction from which the director derives an improper personal benefit, (ii)
for acts or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) for improper payment of dividends, stock
purchases or redemptions of shares, or (iv) for any breach of a director's duty
of loyalty to the company or its stockholders. The Company's Restated
Certificate of Incorporation includes such a provision.
The Company's Amended and Restated By-laws provide that the Board of
Directors, notwithstanding any interest of the directors in the action, may
authorize the Company to purchase and maintain insurance, in such amounts as
the Board of Directors deems appropriate, on behalf of any person who is or
was a director, officer, employee or agent of the Company or its subsidiaries,
or is or was serving at the request of the Company as a director, officer,
employee or agent of another enterprise, for liabilities incurred by him or
her in any such capacity or arising out of his or her status as such, whether
or not the Company shall have the power to indemnify such person against such
liability.
The Company maintains an insurance policy under which its directors and
officers are insured, within the limits and subject to the limitations of such
insurance policy, against certain liabilities which may be imposed in
connection with such persons' service as such directors or officers.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3(a) to the Company's Quarterly Report on Form
10-Q (File No. 1-8060) for the quarter ended March 31, 1998).
4.2 Amended and Restated By-laws of the Company (incorporated by reference
to Exhibit 3(b) to the Company's Quarterly Report on Form 10-Q (File
No. 1-8060) for the quarter ended March 31, 1998).
4.3 Rights Agreement, dated as of June 25, 1996, between the Company and
ChaseMellon Shareholder Services, L.L.C., which includes the Form of
Certificate of Designation of Series B Junior Participating Preferred
Stock as Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Shares of Preferred Stock as Exhibit C
(incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A (File No. 1-8060) dated June 26, 1996).
4.4 First Amendment to Rights Agreement, dated as of May 31, 1999, between
the Company and Chase Mellon Shareholders Services, L.L.C., as Rights
Agent (incorporated by reference to Exhibit 3 to the Company's Form
8-A/A, Amendment No. 1 to Registration Statement on Form 8-A, dated
June 16, 1999).
5 Opinion of Day, Berry & Howard LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Day, Berry & Howard LLP (included in the opinion filed as
Exhibit 5).
24 Power of Attorney.
99 Aquarion Company 1999 Stock Incentive Plan (incorporated by reference
to Exhibit A to the Company's Proxy Statement for its Annual Meeting
of Shareholders held on April 20, 1999).
_______________
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration
Statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933, as amended (the "Securities
Act");
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement; and
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this
Registration Statement or any material change to such
information set forth in this Registration Statement;
PROVIDED, HOWEVER, that the undertakings set forth in paragraphs
(i) and (ii) above do not apply if the information required to be
included in a post-effective amendment by those paragraphs is
contained in periodic reports filed by the Registrant pursuant to
Section 13 or Section 15(d) of the Exchange Act that are
incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which
remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for
purposes of determining any liability under the
Securities Act, each filing of the Registrant's annual
report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is incorporated by
reference in this Registration Statement shall be
deemed to be a new registration statement relating to the
securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or
controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for
indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is
asserted against the Registrant by such director, officer or
controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against
policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Aquarion Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Bridgeport, State of Connecticut, on this 10th day
of December, 1999.
AQUARION COMPANY
By: /s/ Janet M. Hansen
Janet M. Hansen
Executive Vice President,
Chief Financial Officer
and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities indicated
on this 10th day of December, 1999.
<TABLE>
<CAPTION>
<S> <C>
/s/Janet M. Hansen* Chairman of the Board of Directors and Director
George W. Edwards, Jr.
/s/Janet M. Hansen* President, Chief Executive Officer and Director
Richard K. Schmidt (Principal Executive Officer)
/s/Janet M. Hansen Executive Vice President, Chief Financial Officer
and Treasurer
Janet M. Hansen (Principal Financial and Accounting Officer)
/s/Janet M. Hansen* Director
Jack E. McGregor
/s/Janet M. Hansen* Director
Geoffrey Etherington
/s/Janet M. Hansen* Director
Janet D. Greenwood
/s/Janet M. Hansen* Director
Edgar G. Hotard
/s/Janet M. Hansen* Director
G. Jackson Ratcliffe
/s/Janet M. Hansen* Director
John A. Urquhart
</TABLE>
*By signing her name hereto, Janet M. Hansen signs this Registration Statement
as Executive Vice President, Chief Financial Officer and Treasurer of the
Registrant and on behalf of the persons indicated above pursuant to the power of
attorney duly executed by such persons and filed herewith.
(Janet M. Hansen, Attorney-in-Fact)
<PAGE>
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
4.1 Restated Certificate of Incorporation of the Company (incorporated by
reference to Exhibit 3(a) to the Company's Quarterly Report on Form
10-Q (File No. 1-8060) for the quarter ended March 31, 1998).
4.2 Amended and Restated By-laws of the Company (incorporated by reference
to Exhibit 3(b) to the Company's Quarterly Report on Form 10-Q (File
No. 1-8060) for the quarter ended March 31, 1998).
4.3 Rights Agreement, dated as of June 25, 1996, between the Company and
ChaseMellon Shareholder Services, L.L.C., which includes the Form of
Certificate of Designation of Series B Junior Participating Preferred
Stock as Exhibit A, the form of Right Certificate as Exhibit B and the
Summary of Rights to Purchase Shares of Preferred Stock as Exhibit C
(incorporated by reference to Exhibit 1 to the Company's Registration
Statement on Form 8-A (File No. 1-8060) dated June 26, 1996).
4.4 First Amendment to Rights Agreement, dated as of May 31, 1999, between
the Company and Chase Mellon Shareholders Services, L.L.C., as Rights
Agent (incorporated by reference to Exhibit 3 to the Company's Form
8-A/A, Amendment No. 1 to Registration Statement on Form 8-A, dated
June 16, 1999).
5 Opinion of Day, Berry & Howard LLP.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Day, Berry & Howard LLP (included in the opinion filed as
Exhibit 5).
24 Power of Attorney.
99 Aquarion Company 1999 Stock Incentive Plan (incorporated by reference
to Exhibit A to the Company's Proxy Statement for its Annual Meeting
of Shareholders held on April 20, 1999).
Exhibit 5
December 10, 1999
Aquarion Company
835 Main Street
Bridgeport, CT 06601-2353
Re: Aquarion Company 1999 Stock Incentive Plan
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 750,000
shares of its Common Stock, no par value (the "Shares"), and related
Preferred Share Purchase Rights (the "Rights"), in connection with the
Company's 1999 Stock Incentive Plan (the "Plan").
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, corporate 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 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:
<PAGE>
1. When the Registration Statement has become effective under the Act
and the Shares have been issued and delivered against payment therefor in
accordance with the applicable provisions of the Plan, the Shares issued
pursuant to the Plan will be duly authorized, validly issued, fully paid
and non-assessable.
2. Assuming that the Rights Agreement, dated as of June 25, 1996,
between the Company and ChaseMellon Shareholder Services, L.L.C.
("ChaseMellon"), and the First Amendment to Rights Agreement, dated as of
May 31, 1999, between the Company and ChaseMellon, have been duly
authorized, executed and delivered by ChaseMellon, when the Registration
Statement has become effective under the Act and the Shares have been
validly issued and delivered as contemplated in the preceding paragraph,
the Rights attributable to the Shares will be validly issued.
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 this Act, or the rules and regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
DAY BERRY & HOWARD LLP
By:/s/ Day, Berry & Howard LLP
Michael F. Halloran
MFH/beh
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report date January 27, 1999 except as to Note 18,
which is as of February 16, 1999 relating to the financial statements, which
appears in the 1998 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, 1998. We also consent to the incorporation by
reference of our report dated January 27, 1999 except as to Note 18, which is as
of February 16, 1999 relating to the financial statement schedules, which
appears in such Annual Report on Form 10-K.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
New York, NY
December 10, 1999
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each of the undersigned officers
and directors of Aquarion Company (the "Company") in their respective
capacities set forth below constitutes and appoints Richard K. Schmidt,
Janet M. Hansen and Larry L. Bingaman, and each of them his or her true and
lawful attorneys-in-fact and agents, with full power of substitution and
resubstitution, for him or her and in his or her name, place and stead, in
any and all capacities to do any and all acts and all things and to execute
any and all instruments which said attorney and agent may deem necessary or
desirable to enable the Company to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the Securities
and Exchange Commission thereunder in connection with the registration
under such Act of shares of Common Stock of the Company ("Common Stock"),
and related Preferred Share Purchase Rights ("Rights"), to be issued
pursuant to the Aquarion Company 1999 Stock Incentive Plan (the "Plan") to
the extent that any such registration may be required in the opinion of the
executive officers of the Company, upon the advice of counsel, including,
without limitation, the power and authority to sign the name of the
undersigned individual in the capacity indicated below opposite the name of
such individual to a Registration Statement on Form S-8 or any other Form,
relating to the registration of such Common Stock and Rights, to be filed
with the Securities and Exchange Commission with respect to said Common
Stock and Rights, to sign any and all amendments (including post-effective
amendments) and supplements to such Registration Statement, and to file the
same, with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorney-in-fact and agents, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary to be
done, as fully to all intents and purposes as he or she might or could do
in person, hereby ratifying and confirming all that said attorneys-in-fact
and agents, or either of them, or their substitutes, may lawfully do or
cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/George W. Edwards, Jr. Chairman of the Board of December 10, 1999
George W. Edwards, Jr. Directors and Director
Edwards,
/s/Richard K.Schmidt President, Chief Executive Officer
Richard K.Schmidt and Director December 10, 1999
/s/Janet M. Hansen Executive Vice President, Chief December 10, 1999
Janet M. Hansen Financial Officer and Treasurer
/s/Jack E. McGregor Director December 10, 1999
Jack E. McGregor
/s/Geoffrey Etherington Director December 10, 1999
Geoffrey Etherington
/s/Janet D. Greenwood Director December 10, 1999
Janet D. Greenwood
/s/Edgar G. Hotard Director December 10, 1999
Edgar G. Hotard
/s/G. Jackson Ratcliffe Director December 10, 1999
G. Jackson Ratcliffe
/s/John A. Urquhart Director December 10, 1999
John A. Urquhart
</TABLE>
