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. 1998 Stock Incentive Plan
(Full Title of the Plan)
JOHN S. TOMAC
President and 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
<TABLE>
<C> <S> <S> <S> <S>
Title of Proposed Proposed
Securities Amount Maximum Aggregate Maximum Aggregate Amount of
to be to be Offering Offering registration
Registered Registered Price per Share* Price* fee
Common Stock,
no par value 60,000 shares $17.50 $1,050,000 $277.20
</TABLE>
*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 February 25, 2000.
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.
PAGE 2
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 Section13(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.
PAGE 3
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 incorporated in Connecticut prior
to January 1, 1999, as was the Company, 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 Sections 33-770
through 33-779 of the Connecticut Business 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 the Connecticut Business 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 Registration Claimed.
Not applicable.
Item 8. Exhibits.
See Exhibit Index.
Item 9. Undertakings.
(1) The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement: (i)
To include any prospectus required by Section 10(a)(3) of the
Securities Act; (ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set
forth in the registration statement. 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
PAGE 4
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 Exchange Act that are incorporated by
reference in the registration statement.
(b) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(c) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(2) The 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.
3) 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.
PAGE 5
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 24th day of February, 2000.
BIRMINGHAM UTILITIES, INC.
(Registrant)
By /s/ John S. Tomac
John S. Tomac
Its duly authorized President 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 and on the dates indicated.
SIGNATURES TITLE DATE
/s/ Edward G. Brickett* Director February 24, 2000
Edward G. Brickett
/s/ David Silverstone* Director February 24, 2000
David Silverstone
/s/ James E. Cohen* Director February 24, 2000
James E. Cohen
/s/ Aldore J. Rivers* Director February 24, 2000
Aldore J. Rivers
/s/ Stephen P. Ahern* Director February 24, 2000
Stephen P. Ahern
/s/ Kenneth E Schaible* Director February 24, 2000
Kenneth E. Schaible
/s/ Betsy Henley-Cohn* Chairwoman of the February 24, 2000
Betsy Henley-Cohn Board of Directors
and Director
PAGE 6
/s/ Alvaro da Silva* Director February 24, 2000
Alvaro da Silva
/s/ B. Lance Sauerteig* Director February 24, 2000
B. Lance Sauerteig
/s/ John S. Tomac President,
John S. Tomac Treasurer February 24, 2000
and Director
*John S. Tomac, 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/ John S. Tomac
John S. Tomac
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 by reference to Exhibit 4(i) of the
Annual Report on Form 10-K of Birmingham Utilities, Inc. for the period
ended December 31, 1997).
4.4 Commercial Term and Revolving Loan Agreement by and between
Birmingham Utilities, Inc. and Fleet Bank, N.A., dated April 29, 1994,
as amended (incorporated by reference to Exhibit 4(ii) of the Annual
Report on Form 10-K of Birmingham Utilities, Inc. for the period
ended December 31, 1998).
PAGE 7
4.5 Birmingham Utilities, Inc. Dividend Reinvestment Plan, adopted
by its Board of Directors on September 13, 1994 (incorporated herein
by reference to Exhibit 4 (iii) of Birmingham Utilities, Inc.'s
Annual Report on Form 10-K for the period ended December 31, 1994).
5 Opinion of Tyler Cooper & Alcorn, dated February 24, 2000, as
to the legality of the original issuance of Common Stock offered
under this Registration Statement (filed herewith).
23 Consent of Dworken, Hillman, LaMorte & Sterczala, P.C. January 19,
2000 (filed herewith).
23.1 Consent of Tyler Cooper & Alcorn (incorporated by reference to
Exhibit 5 of this Registration Statement).
24 Power of Attorney authorizing the signing of the Registration
Statement and Amendments thereto on behalf of the Directors of
Birmingham Utilities, Inc (filed herewith).
EXHIBIT 5
Opinion of Counsel
February 24, 2000
Securities and Exchange Commission
Division of Corporate Finance
450 Fifth Street, N.W.
Judiciary Plaza
Washington, D.C. 20549-1004
Re: Birmingham Utilities, Inc. 1998 Stock Incentive
Plan/Registration Statement on Form S-8
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. 1998 Stock Incentive Plan
(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.
PAGE 8
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, LLP
By /s/ Robert J. Metzler, II
Robert J. Metzler, II, a Partner
PAGE 9
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 3, 1999
which appears on page 12 of the 1998 Birmingham Utilities, Inc. Annual
Report to Shareholders and which was also incorporated by
reference into the Annual Report on Form 10-K of Birmingham Utilities,
Inc. for the year ended December 31, 1998, as part of Item 14 thereof.
/s/ Dworken, Hillman, LaMorte & Sterczala, P.C.
Bridgeport, Connecticut
January 19, 2000
PAGE 10
EXHIBIT 24
POWER OF ATTORNEY
We, the undersigned directors of Birmingham Utilities, Inc.,
hereby severally constitute John S. Tomac and James E. Cohen, 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/ Edward G. Brickett Director January, 2000
Edward G. Brickett
/s/ David Silverstone Director January, 2000
David Silverstone
/s/ James E. Cohen Director January, 2000
James E. Cohen
/s/ Aldore J. Rivers Director January, 2000
Aldore J. Rivers
/s/ Stephen P. Ahern Director January, 2000
Stephen P. Ahern
/s/ Kenneth E Schaible Director January, 2000
Kenneth E. Schaible
/s/ Betsy Henley-Cohn Director January, 2000
Betsy Henley-Cohn
/s/ Alvaro da Silva Director January, 2000
Alvaro da Silva
/s/ B. Lance Sauerteig Director January, 2000
B. Lance Sauerteig
/s/ John S. Tomac Director January, 2000
John S. Tomac
