As filed with the Securities and Exchange Commission on June 22, 2005
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AQUA AMERICA, INC.
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(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-1702594
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(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or organization)
762 W. LANCASTER AVENUE
BRYN MAWR, PA 19010-3489
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(Address of Principal Executive Offices) (Zip Code)
AQUA AMERICA, INC. 2005 EXECUTIVE DEFERRAL PLAN
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(Full title of the plan)
ROY H. STAHL
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
AQUA AMERICA, INC.
762 W. LANCASTER AVENUE
BRYN MAWR, PA 19010-3489
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(Name and address of agent for service)
(610) 527-8000
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(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Amount to be Proposed Maximum Proposed Maximum Amount of
Title of Securities to be Registered Registered Offering Price per Share Aggregate Offering Price(2) Registration Fee
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Deferred Compensation Obligations (1) $10,000,000 100% $10,000,000 $1,177
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(1) The deferred compensation obligations (the "Obligations") under the Aqua
America, Inc. 2005 Executive Deferral Plan are unsecured general obligations
of Aqua America, Inc. to pay deferred compensation in accordance with the
terms of the Aqua America Inc. 2005 Executive Deferral Plan.
(2) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(h) under the Securities Act.
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 (the "Commission") by Aqua America, Inc. (the "Registrant") are
incorporated by reference into this Registration Statement:
(a) The Registrant's annual report on Form 10-K for fiscal year
ended December 31, 2004, filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act; and
(b) All other reports filed with the Commission pursuant to
Section 13(a) or 15(d) of the Exchange Act since December 31,
2004.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the filing of this Registration Statement
and prior to the filing of a post-effective amendment that indicates that all
securities offered have been sold or that 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 the filing of
such reports and documents. Any statement contained in a document incorporated
by reference herein shall be modified or superseded for purposes of this
Registration Statement if it is modified or superseded by a statement in a
document which is also incorporated in this Registration Statement. Any
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
Under the Aqua America, Inc. 2005 Executive Deferral Plan (the "Plan"),
any individual employed by the Registrant as an officer, senior manager or other
highly compensated employee, on a regular, full-time basis may participate in
the Plan if designated by a committee appointed by the Registrant's board of
directors.
Prior to the beginning of any calendar year or within 30 days after
first becoming eligible to participate in the Plan, eligible employees may
participate in the Plan by making an irrevocable election to have the Registrant
credit to his or her account (through payroll reduction) an amount equal to a
whole percentage or dollar amount of his or her bonus and/or base salary to be
earned for the upcoming calendar year. The committee, who administers the Plan,
may set a minimum and maximum amount that may be deferred under the Plan, and
may change the limits from time to time.
When an eligible employee elects to defer any portion of his or her
bonus and/or base salary, the Registrant will create and maintain an account
that will be credited with the elected contribution at the time such amount
would otherwise have been paid plus deemed earnings. The Registrant will also
credit to the account for each calendar year an amount equal to the excess of
the contribution that would have been made under the Aqua America, Inc. Thrift
Plan on the employee's behalf if it were not for the limitations imposed by the
Internal Revenue Code (the "Code") over the amount actually contributed by the
Registrant to the Thrift Plan on the participant's behalf.
A participant's benefit under the Plan will be distributed in a lump
sum payment, or, if at least $25,000 is credited to such employee's account, in
12 annual installments (with deemed earnings continuing to be credited to the
remaining balance for each subsequent calendar year) payable as soon as
practicable following the completion of the valuation of such account for the
last day of the month in which such employee separates from employment, as
previously elected by the participant. If the participant is a key employee,
however, his or her benefit may not be distributed earlier than the first day of
the seventh month following the date of the participant's separation from
employment.
If no election is made by the participant, his or her benefit will be
distributed in a lump sum payment as soon as practicable after the first day of
the year following he date the participant separates from employment. If the
participant dies before his benefit is due, the balance of his or her account
will be distributed to the participant's beneficiary in a lump sum payment as
soon as practicable following the completion of the valuation of the
participant's account. If the participant dies after installment payments have
begun, the beneficiary will continue to receive the remaining installments due
following the participant's death.
The board may, but is not required to, authorize the establishment of a
trust to serve as a funding vehicle for the benefits that eligible employees are
entitled to receive under the Plan. In any event, the Registrant's obligations
under the Plan will constitute a general, unsecured obligation, payable solely
out of the Registrant's general assets, and participants in the Plan will have
no right to any of the Registrant's specific assets. It is the Registrant's
intention that the Plan be unfunded for tax purposes and for purposes of Title I
of the Employee Retirement Income Security Act of 1974, as amended.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
Roy H. Stahl, Executive Vice President, General Counsel and Corporate
Secretary of the Registrant has given his opinion about certain legal matters
regarding the Obligations registered under this Registration Statement. Mr.
Stahl is eligible to participate in the Aqua America, Inc. 2005 Executive
Deferral Plan.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of
1988, as amended (the "BCL"), provide that, unless otherwise restricted in its
bylaws, a business corporation may indemnify directors and officers against
liabilities they may incur as such, provided that the particular person acted in
good faith and in a manner he or she reasonably believed to be in, or not
opposed to, the best interests of the corporation, and, with respect to any
criminal proceeding, had no reasonable cause to believe his or her conduct was
unlawful. In general, the power to indemnify under these sections does not exist
in the case of actions against a director or officer by or in the right of the
corporation if the person otherwise entitled to indemnification shall have been
adjudged to be liable to the corporation unless it is judicially determined
that, despite the adjudication of liability but in view of all the circumstances
of the case, the person is fairly and reasonably entitled to indemnification for
specified expenses. Section 1743 of the BCL requires a business corporation to
indemnify directors and officers against expenses they may incur in defending
actions against them in such capacities if they are successful on the merits or
otherwise in the defense of such actions.
Section 1713 of the BCL permits the shareholders to adopt a bylaw
provision relieving a director (but not an officer) of personal liability for
monetary damages except where (i) the director has breached the applicable
standard of care, and (ii) such conduct constitutes self-dealing, willful
misconduct or recklessness. This Section also provides that a director may not
be relieved of liability for the payment of taxes pursuant to any federal, state
or local law or of liability or responsibility under a criminal statute. Section
4.01 of the Registrant's bylaws limits the liability of any director of the
Registrant to the fullest extent permitted by Section 1713 of the BCL.
Section 1746 of the BCL grants a corporation broad authority to
indemnify its directors, officers and other agents for liabilities and expenses
incurred in such capacity, except in circumstances where the act or failure to
act giving rise to the claim for indemnification is determined by a court to
have constituted willful misconduct or recklessness. Article VII of the
Registrant's bylaws provides indemnification of directors, officers and other
agents of the Registrant broader than the indemnification permitted by Section
1741 of the BCL and pursuant to the authority of Section 1746 of the BCL.
Article VII of the bylaws provides, except as expressly prohibited by
law, an unconditional right to indemnification for expenses and any liability
paid or incurred by any director or officer of the Registrant, or any other
person designated by the board of directors as an indemnified representative, in
connection with any actual or threatened claim, action, suit or proceeding
(including derivative suits) in which he or she may be involved by reason of
being or having been a director, officer, employee or agent of the Registrant
or, at the request of the Registrant, of another corporation, partnership, joint
venture, trust, employee benefit plan or other entity. The bylaws specifically
authorize indemnification against both judgments and amounts paid in settlement
of derivative suits, unlike Section 1742 of the BCL which authorizes
indemnification only of expenses incurred in defending and in settlement of a
derivative action. In addition, Article VII of the bylaws also allows
indemnification for punitive damages and liabilities incurred under the federal
securities laws.
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Unlike the provisions of BCL Sections 1741 and 1742, Article VII does
not require the Registrant to determine the availability of indemnification by
the procedures or the standard of conduct specified in Sections 1741 or 1742 of
the BCL. A person who has incurred an indemnifiable expense or liability has a
right to be indemnified independent of any procedures or determinations that
would otherwise be required, and that right is enforceable against the
Registrant as long as indemnification is not prohibited by law. To the extent
indemnification is permitted only for a portion of a liability, the bylaw
provisions require the Registrant to indemnify such portion. If the
indemnification provided for in Article VII is unavailable for any reason in
respect of any liability or portion thereof, the bylaws require the Registrant
to make a contribution toward the liability. Indemnification rights under the
bylaws do not depend upon the approval of any future board of directors.
Section 7.04 of the Registrant's bylaws also authorizes the Registrant
to further effect or secure its indemnification obligations by entering into
indemnification agreements, maintaining insurance, creating a trust fund,
granting a security interest in its assets or property, establishing a letter of
credit, or using any other means that may be available from time to time.
Section 1747 of the BCL also enables a business corporation to purchase and
maintain insurance on behalf of a person who is or was serving as a
representative of the corporation or is or was serving at the request of the
corporation as a representative of another entity against any liability asserted
against that representative in his capacity as such, whether or not the
corporation would have the power to indemnify him against that liability under
the BCL.
The Registrant maintains, on behalf of its directors and officers,
insurance protection against certain liabilities arising out of the discharge of
their duties, as well as insurance covering the Registrant for indemnification
payments made to its directors and officers for certain liabilities. The
premiums for such insurance are paid by the Registrant.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
Exhibit Number Exhibit
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5.1 Opinion of Roy H. Stahl.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Roy H. Stahl is contained in Exhibit 5.
24 Powers of Attorney (included on signature pages).
99.1 Aqua America, Inc. 2005 Executive Deferral Plan.
ITEM 9. UNDERTAKINGS
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 low to 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
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(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 subparagraphs (1)(i) and (1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those subparagraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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 that remain unsold at the
termination of the offering.
The undersigned Registrant hereby undertakes that, for the
purpose of determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or Section
15(d) of the Securities Exchange Act of 1934 (and each filing of an employee
benefit plan's annual report pursuant to Section 15(d) of the Securities
Exchange Act of 1934) 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
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 Bryn Mawr, State of Pennsylvania, on May 19,
2005.
AQUA AMERICA, INC.
By: /s/ Nicholas DeBenedictis
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Nicholas DeBenedictis
Chairman and Chief Executive Officer
POWER OF ATTORNEY
Each person in so signing below also makes, constitutes and appoints
Roy H. Stahl, Executive Vice President, and David P. Smeltzer, Senior Vice
President, and each of them acting alone, his or her true and lawful
attorney-in-fact, with full power of substitution, to execute and cause to be
filed with the Securities and Exchange Commission pursuant to the requirements
of the Securities Act of 1933, as amended, any and all amendments and
post-effective amendments to this Registration Statement with exhibits thereto
and other documents in connection therewith, and hereby ratifies and confirms
all that said attorney-in-fact or his substitute or substitutes may do or cause
to be done by virtue hereof. This Power of Attorney may be signed in several
counterparts.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed below by the following persons in
the capacities and on the dates indicated.
SIGNATURE TITLE DATE
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/s/ Nicholas DeBenedictis Director, Chairman and Chief Executive May 19, 2005
-------------------------- (Principal Executive Officer)
Nicholas DeBenedictis
/s/ David P. Smeltzer Senior Vice President - Finance and Chief May 19, 2005
-------------------------- Financial Officer (Principal Financial and
David P. Smeltzer Accounting Officer)
/s/ Robert Rubin Principal Accounting Officer May 19, 2005
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Robert Rubin
/s/ Mary C. Carroll Director May 19, 2005
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Mary C. Carroll
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SIGNATURE TITLE DATE
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/s/ Richard H. Glanton Director May 19, 2005
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Richard H. Glanton, Esq.
Director May __, 2005
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William P. Hankowsky
/s/ John F. McCaughan Director May 19, 2005
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John F. McCaughan
/s/ John E. Menario Director May 19, 2005
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John E. Menario
/s/ Richard L. Smoot Director May 19, 2005
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Richard L. Smoot
/s/ Constantine Papadakis Director May 19, 2005
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Constantine Papadakis
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EXHIBIT INDEX
Exhibit Number Exhibit
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5.1 Opinion and consent of Roy H. Stahl.*
23.1 Consent of PricewaterhouseCoopers LLP.*
23.2 Consent of Roy H. Stahl (included in Exhibit 5.1).*
24.1 Powers of Attorney (included on signature pages).*
99.1 Aqua America, Inc. 2005 Executive Deferral Plan.*
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* filed herewith
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