REGISTRATION NO. 33-
___________________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
BIRMINGHAM UTILITIES, INC.
(Exact name of registrant as specified in its charter)
Connecticut 06-0878647
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
230 Beaver Street 06401
Ansonia, Connecticut (Zip Code)
(Address of Principal Executive Offices)
Birmingham Utilities, Inc.
Stock Option Plan for Non-Employee Directors
(Full Title of the Plan)
PAUL V. ERWIN
Treasurer
Birmingham Utilities, Inc.
230 Beaver Street
Ansonia, Connecticut 06401
(Name and address of agent for service)
(203) 735-1888
(telephone number,including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount to be Proposed Proposed Amount of
Securities Registered Maximum Maximum Registration
to be Aggregate Aggregate Fee
Registered Ofering Offering
Price Per Price*
Share*
________________________________________________________________________
Common Stock,
no par value 40,000 shares $11.00 $440,000 $151.72
_________________________________________________________________________
*Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933 based on the
average of high and low prices of the Common Stock reported on the NASDAQ
Small-Cap Market on July 12, 1995.
_________________________________________________________________________
This registration statement shall become effective in accordance with the
provisions of Section 8(a) of the Securities Act of 1933 and Rule 462
promulgated thereunder.
PART I
Information Required in the Section 10(a) Prospectus
The information required by Items 1 and 2 is not required to be filed
as part of this Registration Statement.
PART II
Information Required in the Registration Statement
Item 3. Incorporation of documents by reference.
The following documents filed by Birmingham Utilities, Inc. (the
"Company") with the Securities and Exchange Commission are incorporated by
reference in this Registration Statement:
(1) the latest annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Securities Exchange Act of 1934 (the
"Exchange Act"), or the latest prospectus filed pursuant to Rule
424(b) under the Securities Act of 1933 (the "Securities Act")
that contains audited financial statements for the Company's
latest fiscal year for which such statements have been filed;
(2) all other reports filed pursuant to Section 13(a) or 15(d) of the
Exchange Act since the end of the fiscal year covered by the
annual report or prospectus referred to in (1) above.
(3) the description of the Company's Common Stock, no par value per
share, contained in a registration statement filed under
Section 12 of the Exchange Act, including any amendment or report
filed for the purpose of updating such description.
In addition, all documents subsequently filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the
filing of a post-effective amendment which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in the
Registration Statement and to be a part thereof from the date of filing of
such documents.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers by the Registrant.
Pursuant to the statutes of the State of Connecticut, a director,
officer or employee of a corporation is entitled, under specified
circumstances, to indemnification by the corporation against reasonable
expenses, including attorney's fees, incurred by him in connection with the
defense of a civil or criminal proceeding to which he has been made, or
threatened to be made, a party by reason of the fact that he was a
director, officer or employee. In certain circumstances, indemnity is
provided against judgments, fines and amounts paid in settlement. In
general, indemnification is not available where the director, officer or
employee has been adjudged to have breached his duty to the corporation or
where he did not act in good faith. Specific court approval is required in
some cases. The foregoing statement is subject to the detailed provisions
of Section 33-320a of the Connecticut Stock Corporation Act. Article 9 of
the registrant's by-laws provides that its shareholders, directors,
officers and employees shall be indemnified to the extent allowed in
Section 33-320a of the Connecticut Stock Corporation Act. In addition, the
Company maintains an insurance policy providing coverage for certain
liabilities of directors and officers, including liabilities under the
federal securities laws.
Item 7. Exemption from Registriation Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement. Notwithstanding the
foregoing, any increase or decrease in 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) of the
Securities Act if, in the aggregate, the changes
in volume and price represent no more than a 20%
change in the maximum aggregate offering price set
forth in the "Calculation of Registration Fee"
table in the effective registration statement;
(iii) To include any material information with respect
to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3 or
Form S-8 and 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 15(d) of the Securities Exchange Act of 1934
that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability
under the Securities Act of 1933, each such post-
effective amendment shall be deemed to be a new
registration statement relating to the securities
offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide
offering thereof.
(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 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 the
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 and controlling
persons of the registrant pursuant to the foregoing provisions, or
otherwise, the registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
The Registrant. 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 Ansonia, State of
Connecticut, on the 25th day of July, 1995.
BIRMINGHAM UTILITIES, INC.
(Registrant)
By /s/ Aldore J. Rivers
Aldore J. Rivers
Its duly authorized President
By /s/ Paul V. Erwin
Paul V. Erwin
Its duly authorized Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Edward G. Brickett* Director July 25, 1995
Edward G. Brickett
/s/ David Silverstone* Director July 25, 1995
David Silverstone
/s/ James E. Cohen* Director July 25, 1995
James E. Cohen
/s/ Aldore J. Rivers* President July 25, 1995
Aldore J. Rivers and Director
/s/ Charles T. Seccombe* Director July 25, 1995
Charles T. Seccombe
/s/ Stephen P. Ahern* Director July 25, 1995
Stephen P. Ahern
/s/ Kenneth E Schaible* Director July 25, 1995
Kenneth E. Schaible
/s/ Betsy Henley-Cohn Chairwoman of the July 25, 1995
Betsy Henley-Cohn Board of Directors
*Aldore J. Rivers, by signing his/her name hereto, does sign this document
on behalf of the persons indicated above pursuant to powers of attorney
duly executed by such persons.
By /s/ Aldore J. Rivers
Aldore J. Rivers
Attorney-in-Fact
EXHIBIT INDEX
Exhibit
No.
_______
4.1 Certificate of Incorporation of Birmingham Utilities, Inc.
(incorporated by reference to Exhibit (3) of Birmingham
Utilities, Inc. Annual Report on Form 10-K for the period ending
December 31, 1994).
4.2 By-Laws of Birmingham Utilities, Inc. (incorporated by reference to
Exhibit (3) of Birmingham Utilities, Inc. Annual Report on Form
10-K for the period ending December 31, 1994).
4.3 Amended and Restated Mortgage Indenture by and between The
Ansonia Derby Water Company and The Connecticut National Bank as
Trustee, dated as of August 9, 1991 (incorporated herein by
reference to Exhibit (4)(i) of The Ansonia Derby Water Company's
Annual Report on Form 10-K for the period ending December 31, 1991).
4.4 Commercial Term and Revolving Loan Agreement by and between
Birmingham Utilities, Inc. and Fleet Bank, N.A., dated April 29,
1994 (incorporated herein by reference to Exhibit 10(1) of
Birmingham Utilities, Inc.'s Quarterly Report on Form 10-Q, as
amended, for the period ended June 30, 1994).
5 Opinion of Tyler Cooper & Alcorn, dated July 25, 1995, as to the
legality of the original issuance of Common Stock offered under
this Registration Statement.
23 Consent of Price Waterhouse, dated July 25, 1995.
23.1 Consent of Tyler Cooper & Alcorn (incorporated by reference to
Exhibit 5 of this Registration Statement).
24 Attorney authorizing the signing of the Registration Statement
and Amendments thereto on behalf of the Directors of Birmingham
Utilities, Inc.
99 Birmingham Utilities, Inc. Stock Option Plan for Non-Employee
Directors adopted by its Board of Directors on September 13, 1994.
EXHIBIT 5
July 25, 1995
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549-1004
Re: Birmingham Utilities, Inc. Stock Option Plan for Non-Employee
Directors/Registration Statement on Form S-3
Ladies and Gentlemen:
We have acted as counsel for Birmingham Utilities, Inc., a Connecticut
corporation (the "Company"), and in that capacity we have examined from time
to time such documents, corporate records and other instruments as we deem
necessary or appropriate to allow us to render the opinion which follows.
More particularly, we are familiar with the Registration Statement on Form
S-8, which the Company is filing to register shares of Birmingham Utilities,
Inc. Common Stock, No Par Value (the "Common Stock"), to be sold pursuant to
the provisions of the Birmingham Utilities, Inc. Stock Option Plan for
Non-Employee Directors (the "Plan"), under the Securities Act of 1933, as
amended. In rendering this opinion, we have assumed that there will be no
change in applicable law between the date of this opinion and the date of
issuance of the shares pursuant to such Registration Statement.
On the basis of our examination, we are of the opinion that, when issued
and sold in accordance with the terms of the Plan, the shares of Common Stock
to which such Registration Statement relates will be legally issued, fully
paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement referred to above and to the reference to us under
"Legal Opinions" in the Prospectus.
Very truly yours,
TYLER COOPER & ALCORN
By /s/ Robert J. Metzler, II
Robert J. Metzler, II, a Partner
RJM:ldm
EXHIBIT 23
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 24, 1995 which appears
on page 16 of the 1994 Annual Report on Form 10-K of Birmingham Utilities,
Inc. for th eyear ended December 31, 1994.
Price Waterhouse LLP
New York, New York
July 25, 1995
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned directors of Birmingham Utilities, Inc., hereby
severally constitute Aldore J. Rivers and Paul V. Erwin, and each of them
singly, our true and lawful attorneys with full power of substitution, to
sign for us and in our names in the capacities listed below, the Registration
Statement on Form S-8 filed herewith and any and all amendments to such
Registration Statement, and generally to do all such things in our names and
on our behalf in our capacities as directors to enable Birmingham Utilities,
Inc. to comply with the provisions of the Securities Act of 1933, as
amended, all requirements of the Securities and Exchange Commission, and all
requirements of any other applicable law or regulation, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or
either of them, to such Registration Statement and any and all amendments
thereto, including post-effective amendments.
Signatures Title Date
/s/ Betsy Henley-Cohn Director and Chairman of June 7, 1995
Betsy Henley-Cohn the Board
/s/ Stephen P. Ahern Director June 7, 1995
Stephen P. Ahern
/s/ Edward G. Brickett Director June 7, 1995
Edward G. Brickett
/s/ James E. Cohen Director June 7, 1995
James E. Cohen
/s/ Aldore J. Rivers Director June 7, 1995
Aldore J. Rivers
/s/ Kenneth E. Schaible Director June 7, 1995
Kenneth E. Schaible
/s/ Charles T. Seccombe Director June 7, 1995
Charles T. Seccombe
/s/ David Silverstone Director June 7, 1995
David Silverstone
EXHIBIT 99
BIRMINGHAM UTILITIES, INC.
STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
BIRMINGHAM UTILITIES, INC.
STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
1. Purpose.
The purpose of the Birmingham Utilities, Inc. Stock Option Plan for
Non-Employee Directors (the "Plan") is to promote the interests of Birmingham
Utilities, Inc. (the "Company") and its shareholders by encouraging
Non-Employee Directors of the Company to have a direct and personal stake
in the performance of the Company's Common Stock.
2. Definitions.
Unless the context clearly indicates otherwise, the following terms have
the meanings set forth below. Whenever applicable, the masculine pronoun
shall include the feminine pronoun and the singular shall include the plural.
"Board of Directors" or "Board" means the Board of Directors of the
Company.
"Business Day" shall mean any day except Saturday, Sunday or a legal
holiday in the State of Connecticut.
"Code" means the Internal Revenue Code of 1986, as amended, now in effect
or as amended from time to time and any successor provisions thereto.
"Committee" means the Personnel and Pension Committee of three or more
members appointed by the Board of Directors and selected from those
directors who are not employees of the Corporation, its parent or any
Subsidiary, as defined in Section 424(e) and (f) of the Code. The Board
may at any time and from time to time remove any member of the Committee,
with or without cause, appoint additional members to the Committee and
fill vacancies, however caused, in the Committee. A majority of the
members of the Committee shall constitute a quorum. All determinations of
the Committee shall be made by a majority of its members. Any decision or
determination of the Committee reduced to writing and signed by all of the
members of the Committee shall be fully as effective as if it had been
made at a meeting duly called and held.
"Common Stock" means the common stock, without par value, of the Company.
"Company" means Birmingham Utilities, Inc., a Connecticut corporation.
"Disability", as applied to a Grantee, shall have the meaning set forth in
Section 22(e)(3) of the Code.
"Fair Market Value" of a share of Common Stock on any particular date is
the average of the high and low sales price of a share of Common Stock on
the NASDAQ Small Cap Market (or any exchange on which the Common Stock is
then traded) as reported for that date by NASDAQ or, if no sales price is
reported for that date, the average bid quotation for the Common Stock on
that date as reported by NASDAQ; provided, however, that if no such sales
or quotation are reported by NASDAQ for such date, the Fair Market Value
of a share of Common Stock on such date shall be the average of the high
and low sales price or, if no sales price is reported for that date, the
average bid quotation as reported by NASDAQ for the first Business Day
immediately after such date on which such sales or quotation are reported.
"Grant Date", as used with respect to a particular Option, means the date
on which such Option is granted pursuant to the Plan.
"Grantee" means the Non-Employee Director to whom an Option is granted
pursuant to the Plan.
"Immediate family members" of a Grantee means the Grantee's children,
grandchildren and spouse.
"Option" means an option granted pursuant to the Plan to purchase shares
of Common Stock which shall be a non-qualified stock option not intended
to qualify as incentive stock options under Section 422 of the Code.
"Non-Employee Director" shall mean a member of the Board of Directors who
is not an employee of the Company or any Subsidiary.
"Plan" means the Birmingham Utilities, Inc. Stock Option Plan for
Non-Employee Directors as set forth herein and as amended from time to
time.
"Retirement", as applied to a Non-Employee Director, shall mean when a
Grantee ceases to serve as a member of the Board following attaining
sixty-five (65) years of age.
"Subsidiary" shall mean a "subsidiary corporation" of the Company as
defined in Section 425(f) of the Code.
"The 1934 Act" means the Securities Exchange Act of 1934, as amended, now
in effect or as amended from time to time and any successor provisions
thereto.
3. Administration.
(a) General. The Plan shall be administered by the Committee, which
shall have full power and authority, subject to the provisions of the Plan,
to supervise administration of the Plan and interpret the provisions of the
Plan and any Options granted hereunder. Any decision by the Committee shall
be final and binding on all parties. No member of the Committee shall be
liable for any determination, decision or action made in good faith with
respect to the Plan or any Options under the Plan. The Committee may
delegate any of such responsibilities to one or more agents and may retain
advisors to advise it. No Grantee shall participate in the decision of any
question relating exclusively to an Option granted to that Grantee.
(b) Rules and Interpretation. The Committee shall be vested with full
authority to make such rules and regulations as it deems necessary to
administer the Plan and to interpret and administer the provisions of the
Plan in a uniform manner. Any determination, decision or action of the
Committee in connection with the construction, interpretation,
administration or application of the Plan shall be final, conclusive and
binding on all parties. The Committee's administrative functions shall be
ministerial in nature in view of the Plan's explicit provisions, including
those related to eligibility for, timing, price and amount of Option grants.
4. Eligibility.
The persons eligible to receive Options under the Plan are the Non-
Employee Directors of the Company.
5. Effective Date of the Plan and Term of Option Period.
The Plan shall become effective upon its adoption by the Board of
Directors, provided, that no Option granted pursuant to the Plan shall be
exercised or will vest prior to (1) the approval of the Plan by the Company's
shareholders within twelve (12) months of its adoption by the Board, and (2)
the approval of the Plan by the Connecticut Department of Public Utility
Control. The term during which awards may be granted under the Plan shall
expire on the tenth anniversary of the adoption of the Plan by the Board of
Directors. Subject to the provisions of Article 12 hereof, the period during
which an Option granted under the Plan may be exercised shall expire on the
tenth anniversary of the Grant Date of the Option.
6. Shares Subject to the Plan.
The shares of Common Stock that may be delivered upon the exercise of
Options under the Plan shall be shares of the Company's authorized Common
Stock and may be unissued shares or reacquired shares, as the Board of
Directors may from time to time determine. Subject to adjustment as provided
in Article 13 hereof, the aggregate number of shares to be delivered under
the Plan shall not exceed 40,000 shares. If any shares are subject to an
Option which for any reason expires or terminates during the term of the
Plan prior to the issuance of such shares, the shares subject to but not
delivered under such Option shall be available for issuance under the Plan.
If, on any Grant Date, the aggregate number of shares of Common Stock subject
to Option grants on that date exceeds the remaining number of shares reserved
for issuance under the Plan, the number of Option shares awarded to each
Non-Employee Director to whom Options shall be granted on such date shall be
reduced pro rata so that the aggregate number of Option shares awarded to
such Non-Employee Directors equals the number of reserved shares of Common
Stock remaining under the Plan.
7. Options.
(a) Grant of Options. On September 13, 1994, each Non-Employee Director
of the Company shall be granted an Option, upon the terms and conditions
specified in the Plan, to purchase 2,500 shares of Common Stock plus a number
of shares of Common Stock determined by multiplying the number of whole years
of previous service as an Non-Employee Director of the Company by 1,250.
Commencing on August 1, 1995 and on each August 1st thereafter (or, if August
1st is not a Business Day, the first preceding Business Day) during the term
of the Plan, each Non-Employee Director of the Company shall automatically
be granted a stock option to purchase 1,250 shares of Common Stock upon the
terms and conditions specified in the Plan. Notwithstanding the foregoing
provisions of this paragraph, no Non-Employee Director shall receive Options
under the Plan to purchase more than an aggregate amount of 5,000 shares of
Common Stock.
(b) Terms of Options. Each Option granted under the Plan shall have the
following terms and conditions:
(i) Price. The exercise price per share of each Option shall equal
the greater of the Fair Market Value of a share of Common Stock
on the Grant Date or the par value per share of the Common
Stock, if any, on the date of exercise of such option;
(ii) Term. The term of each Option shall be for a period of ten (10)
years from the Grant Date unless terminated earlier in
accordance with the Plan;
(iii) Time of Exercise. Unless an Option is terminated or the time of
its exercisability is accelerated in accordance with the Plan,
each Option shall be exercisable only to the extent of one-half
of the number of shares of the Common Stock to which it relates
on or after the first anniversary of its Grant Date and shall be
exercisable to the extent of the remaining one-half of such
shares only on or after the second anniversary of the Grant
Date, so that the Options shall be exercisable in full only on
or after the second anniversary of the Grant Date.
(iv) Acceleration of Exercisability. Notwithstanding the schedule
provided in subparagraph (iii) hereof, an Option shall become
fully exercisable upon the occurrence of the Grantee's death or
withdrawal from the Board of Directors by reason of such
Non-Employee Director's Disability or Retirement; and
(v) Option Agreement. Each Option shall be evidenced by an Option
Agreement substantially in the form attached to this Plan as
Appendix A.
8. Exercise of Options.
(a) Each Option granted shall be exercisable in whole or in part at
any time, or from time to time, during the Option term as specified in the
Plan, provided that the election to exercise an Option shall be made in
accordance with applicable Federal laws and regulations. Each Option may be
exercised by delivery of a written notice to the Company stating the number
of shares to be exercised and accompanied by the payment of the Option
exercise price therefor in accordance with this Article. The Grantee shall
furnish the Company, prior to the delivery of any shares upon the exercise
of an Option, with such other documents and representations as the Company
may require, to assure compliance with applicable laws and regulations.
(b) No Option may at any time be exercised with respect to a fractional
share. In the event that shares are issued pursuant to the exercise of an
Option, no fractional shares shall be issued and cash equal to the Fair Market
Value of such fractional share on the date of the delivery of the exercise
notice shall be given in lieu of such fractional shares.
(c) No shares shall be delivered pursuant to the exercise of any Option,
in whole or in part, until qualified for delivery under such securities laws
and regulations as the Board of Directors may deem to be applicable thereto
and until payment in full of the Option price is received by the Company in
cash, by check or in shares of Common Stock as provided in Article 9 hereof.
Neither the holder of an Option nor such holder's legal representative,
legatee, or distributee shall be or be deemed to be a holder of any shares
subject to such Option unless and until a certificate or certificates
therefor is issued in his or her name or a person designated by him or her.
9. Stock as Form of Exercise Payment.
A Grantee who owns shares of Common Stock may elect to use the previously
acquired shares, valued at the Fair Market Value on the last Business Day
preceding the date of delivery of such shares, to pay all or part of the
exercise price of an Option, provided, however, that such form of payment
shall not be permitted unless at least one hundred shares of such previously
acquired shares are required and delivered for such purpose and the shares
delivered have been held by the Grantee for at least six months.
10. Withholding Taxes for Awards.
Each Grantee exercising an Option as a condition to such exercise shall
pay to the Company the amount, if any, required to be withheld from
distributions resulting from such exercise under applicable Federal and State
income tax laws ("Withholding Taxes"). Such Withholding Taxes shall be
payable as of the date income from the award is includable in the Grantee's
gross income for Federal income tax purposes (the "Tax Date"). The Grantee
may satisfy this requirement by remitting to the Company in cash or by check
the amount of such Withholding Taxes or a number of previously owned shares
of Common Stock having an aggregate Fair Market Value as of the last Business
Day preceding the Tax Date equal to the amount of such Withholding Taxes.
11. Transfer of Awards.
Options granted under the Plan may not be transferred except by will or
the laws of descent and distribution or pursuant to a qualified domestic
relations order, as defined in the Code, and, during the Grantee's lifetime,
may be exercised only by said Grantee or by said Grantee's guardian or legal
representative, provided, however, that if Rule 16b-3 under the 1934 Act is
amended to permit restricted or unrestricted transfers of derivative
securities granted under plans intended to qualify for the exemption
provided by such rule, then if permitted in accordance with such
transferability restrictions imposed by Rule 16b-3, if any, as so amended,
the Options heretofore and hereafter granted under the Plan shall be
transferrable without payment of consideration, to immediate family members
of the Grantee or to trusts or partnerships for such immediate family
members.
12. Death, Disability, Retirement and Termination of Director Status.
(a) An Option which has not theretofore expired shall terminate at the
time of the death of the Grantee or if the Grantee ceases to be a member of
the Board, and no shares may thereafter be delivered pursuant to such
Option, except that, subject to the condition that no Option may be
exercised in whole or in part after the tenth anniversary of its Grant Date:
(i) Upon the termination of Board membership of any such Grantee
due to Disability or Retirement, the Grantee may, within a
period of three years after the date of such termination,
purchase some or all of the shares covered by the Grantee's
Options which were exercisable immediately prior to such
termination; and
(ii) Upon the termination of Board membership of any such Grantee
due to any reason other than the Grantee's death, Disability
or Retirement, the Grantee may, within three months after
the date of such termination, purchase some or all of the
shares covered by the Grantee's Options which were exercisable
immediately prior to such termination,provided that,
notwithstanding the foregoing, the Options of a Grantee shall
automatically terminate as of the date his or her
directorship is terminated, if terminated on account of any
act of(a) fraud or intentional misrepresentation, or (b)
embezzlement, misappropriation or conversion of assets or
opportunities of the Company or any Subsidiary; and
(iii) Upon the death of any such Grantee while serving on the Board
or of any such disabled or retired Grantee within the above-
referenced period, the person or persons to whom the rights
under the Option are transferred by will or the laws of
descent and distribution may, within twelve months after the
date of the Grantee's death, exercise some or all of the
Grantee's Options which were exercisable on the date of
death by the Grantee.
13. Change of Ownership.
In the event of (a) a dissolution or liquidation of the Company, (b) a
merger or consolidation in which the Company is not the surviving corporation,
or (c) any other capital reorganization in which more than fifty percent (50%)
of the shares of the Company entitled to vote are exchanged, the Company shall
give to each Non-Employee Director, at the time of adoption of the plan for
liquidation, dissolution, merger, consolidation or reorganization, either (i)
a reasonable time thereafter within which to exercise the Option, prior to the
effectiveness of such liquidation, dissolution, merger, consolidation or
reorganization, at the end of which time the Option shall terminate, or (ii)
the right to exercise the Option (or a substitute Option) as to an equivalent
number of shares of stock of the corporation succeeding the Company or
acquiring its business by reason of such liquidation, dissolution, merger,
consolidation or reorganization.
14. Adjustment Upon Changes in Capitalization.
(a) Changes in Capitalization. If the number of shares of Common Stock
of the Company as a whole are increased, decreased or changed into, or
exchanged for, a different number or kind of shares or securities of the
Company, whether through merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, combination
of shares, exchange of shares, change in corporate structure or the like,
an appropriate and proportionate adjustment shall be made in the number and
kind of shares subject to this Plan, and in the number, kind, and per share
exercise price of shares of Common Stock subject to unexercised Options or
portions thereof granted prior to any such change. Any such adjustment in
an outstanding Option, however, shall be made without a change in the total
price applicable to the unexercised portion of the Option but with a
corresponding adjustment in the price for each share covered by the Option.
(b) Acquisition. Upon a reorganization, merger or consolidation in
which the Company is not the surviving corporation, or upon the sale of all
or substantially all of the property of the Company to another corporation,
provision shall be made in connection with such transaction for the assumption
of the Plan and the Options theretofore granted by the successor corporation.
Provision may, alternatively, be made for the substitution for such Options of
new options of the successor corporation or a parent or subsidiary thereof.
In any such case, appropriate adjustment as to the number and kind of shares
and the per share exercise prices shall be made. No fractional shares of
stock shall be issued under the Plan on account of any adjustment specified
above.
(c) Dissolution or Liquidation. Upon the dissolution or liquidation of
the Company, this Plan and the Options issued thereunder shall terminate.
15. Legal Restrictions.
The Company will not be obligated to issue shares of Common Stock or
make any payment if counsel to the Company determines that such issuance or
payment would violate any law or regulation of any governmental authority or
any agreement between the Company and any national securities exchange on
which the Common Stock is listed. In connection with any stock issuance or
transfer, the person acquiring the shares shall, if requested by the Company,
give assurances satisfactory to counsel to the Company regarding such
matters as the Company may deem desirable to assure compliance with all
legal requirements. The Company shall in no event be obliged to take any
action in order to cause the exercise of any award under the Plan.
16. No Rights as Shareholders.
No Grantee, and no beneficiary or other person claiming through a
Grantee, shall have any interest in any shares of Common Stock allocated for
the purposes of the Plan or subject to any award until such shares of Common
Stock shall have been transferred to the Grantee or such person.
Furthermore, the existence of awards under the Plan shall not affect: the
right or power of the Company or its stockholders to make adjustments,
recapitalizations, reorganizations or other changes in the Company's capital
structure; the dissolution or liquidation of the Company, or the sale or
transfer of any part of its assets or business; or any other corporate act,
whether of a similar character or otherwise.
17. Board Membership.
Nothing in the Plan or in any Option shall confer upon any Grantee any
right to continue as a director of the Company or interfere in any way with
the right of the Company's shareholders to remove a director at any time.
18. Choice of Law.
The validity, interpretation and administration of the Plan
and of any rules, regulations, determinations or decisions made thereunder,
and the rights of any and all persons having or claiming to have any interest
therein or thereunder, shall be determined exclusively in accordance with the
laws of the State of Connecticut.
19. Amendment and Discontinuance.
Subject to the limitation that the provisions of the Plan shall not be
amended more than once every six months other than to comport with changes in
the Code or regulations thereunder, the Board of Directors may alter, suspend,
or discontinue the Plan, but may not, without the approval of a majority of
the holders of the Common Stock, make any alteration or amendment thereof
which operates (a) to increase the total number of shares which may be
granted annually under the Plan, (b) to extend the term of the Plan or the
option periods provided in the Plan, (c) to decrease the option price
provided in the Plan, or otherwise materially increase the benefits accruing
to Grantees through awards under the Plan, or (d) to modify the eligibility
requirements for participation in the Plan.
Adopted by the Board of Directors at its meeting of September 13, 1994,
subject to approval of the Company's shareholders and the Connecticut
Department of Public Utility Control.
Attest:
Secretary
APPENDIX A
STOCK OPTION AGREEMENT
UNDER THE
BIRMINGHAM UTILITIES, INC. STOCK OPTION PLAN
FOR NON-EMPLOYEE DIRECTORS
Pursuant to Article 7 of the Birmingham Utilities, Inc. Stock Option Plan
for Non-Employee Directors (the "Plan"), Birmingham Utilities, Inc. (the
"Company"), this ____ day of _____________, 199__(the "Grant Date"), hereby
grants to ___________________________("Director") a non-qualified stock option
to purchase an aggregate of ____________ shares of the Common Stock of the
Company at $_____ per share, on the terms and conditions hereinafter set forth
and set forth in the Plan. This option will expire at the Company's close of
business on ______________, 19__, unless sooner terminated in accordance with
the terms of the Plan.
1. The Company hereby grants to Director a non-qualified stock option
(the "Option") to purchase on or before the expiration date indicated above,
at the purchase price stated above, the number of shares of the Company's
Common Stock set forth above. No option granted under the Plan shall be
exercised or will vest unless and until the Plan is approved by the Company's
shareholders and the Connecticut Department of Public Utility Control.
2. The term of this Option shall commence on the date of this Agreement
and shall terminate, unless sooner terminated by the terms of the Plan, at the
close of business on the day preceding the tenth anniversary of the date of
this Agreement as set forth above, if the Company is open for business on
such day, or the close of the Company's business on the next preceding day
that the Company is open for business. Unless the Option is terminated or
the time of its exercisability is accelerated in accordance with the Plan,
the Option shall be exercisable only to the extent of one-half of the number
of shares of the Common Stock to which it relates on or after the first
anniversary of its Grant Date set forth above and shall be exercisable to
the extent of the remaining one-half of such shares only on or after the
second anniversary of the Grant Date, so that the Option shall be
exercisable in full only on or after the second anniversary of the Grant
Date.
This Option shall become immediately exercisable under the circumstances
described in Section 7(b)(iv) of the Plan.
3. This Option may be exercised, in whole or in part, by written
notification delivered in person or by mail to the Secretary of the Company
at its offices at 230 Beaver Street, Ansonia, Connecticut. Such
notification shall specify the number of shares with respect to which the
Option is being exercised and shall be accompanied by payment for such
shares. The Secretary of the Company will provide Director with a form of
exercise notice upon request. The Option may not be exercised with respect
to a fractional share. Payment is to be made by check payable to the order
of the Company or by one of the alternative methods of payment described in
the Plan. No shares shall be sold or delivered hereunder until full payment
for such shares has been made and all checks delivered in payment therefor
have been collected. Director shall not have any rights of a shareholder
with respect to any Common Stock received upon exercise of the Option until
certificates for such Common Stock have been actually issued to Director
in accordance with the terms hereof.
4. The Company shall not be required to issue or deliver any
certificate or certificates for shares of its Common Stock purchased upon
the exercise of any part of this Option prior to (i) the admission of such
shares to listing on any stock exchange on which the stock may then be
listed, (ii) the completion of any registration or other qualification of
such shares under any applicable law, rule or regulation, (iii) the obtaining
of any consent or approval or other clearance from any governmental agency
which the Company determines to be necessary or advisable, and (iv) the
payment to the Company, upon its demand, of any amount requested by the
Company for the purpose of satisfying its liability, if any, to withhold
federal, state or local income or earnings tax or any other applicable tax
or assessment (plus interest or penalties thereon, if any, caused by a
delay in making such payment) incurred by reason of the exercise of this
Option or the transfer of such shares thereupon. The Option shall be
exercised and shares of the Company's Common Stock issued only upon
compliance with the Securities Act of 1933, as amended (the "Act"), and any
other applicable securities laws, and Director agrees to comply with any
requirements imposed by the Committee. Because Director is an "affiliate"
of the Company (as that term is defined in Rule 144 promulgated under the
Act, and which generally includes directors), by accepting this Agreement,
you agree that you will dispose of the stock acquired upon exercise of the
Option only in compliance with Rule 144 or in such other manner as will not
violate the Act and the rules and regulations promulgated thereunder, and
any other applicable securities law.
5. This Option is not transferrable by Director otherwise than by will
or by the laws of descent and distribution or pursuant to a qualified
domestic relations order, as defined in the Code, and is exercisable, during
Director's life, only by Director or by Director's guardian or legal
representative, unless and to the extent transferability becomes permitted
under the terms of the Plan. Any attempted assignment, transfer, pledge,
hypothecation or other disposition of the Option contrary to the provisions
hereof shall be null and void. This Option does not confer upon Director
any right with respect to continuation of Director's service as a director
of the Company or any of its subsidiaries, and will not interfere in any
way with the right of the Company's shareholders or the shareholders of any
of its Subsidiaries to terminate Director's service as a director.
6. Upon the termination of Director's service as a member of the Board
of Directors, the Director may exercise this Option, provided that it has
vested, to the full extent of the number of the shares of Common Stock
remaining under such Option, regardless of whether such Option was
previously exercisable, in accordance with the conditions of Article 12 of
the Plan.
7. This Option shall be irrevocable during the Option period and its
validity and construction shall be governed by the laws of the State of
Connecticut. The terms and conditions herein set forth are subject in all
respects to the terms and conditions of the Plan, which shall be controlling.
You agree to execute such other agreements, documents or assignments as may
be necessary or desirable to effect the purposes of this Agreement.
8. The grant of this Option shall be binding and effective only if
this Agreement is executed by or on behalf of the Company and by you and
a signed copy is returned to the Company.
9. All capitalized terms used in this Agreement which are not defined
herein shall have the meaning given to them in the Plan unless the context
clearly requires otherwise.
BIRMINGHAM UTILITIES, INC.
By__________________________________
Its
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I hereby acknowledge receipt of the Stock Option (the "Option") granted
on the date shown above, which has been issued to me under the terms and
conditions of Birmingham Utilities, Inc. Stock Option Plan for Non-Employee
Directors. I agree to conform to all of the terms and conditions of the
Option and the Plan.
Date: _______________ Your Signature: _________________________
