As filed with the Securities and Exchange Commission on April 29, 2004.
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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UNITIL CORPORATION
(Exact name of registrant as specified in its charter)
New Hampshire 02-0381573
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
6 Liberty Lane West, Hampton, New Hampshire 03842-1720
(Address of principal executive offices, including zip code)
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UNITIL CORPORATION
2003 RESTRICTED STOCK PLAN
(Full title of the plan)
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Mark H. Collin
Senior Vice President,
Chief Financial Officer & Treasurer
Unitil Corporation
6 Liberty Lane West
Hampton, New Hampshire 03842-1720
(603) 772-0775
(Name, address, and telephone number, including area code, of agent for service)
Copies to:
David S. Balabon, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P.
260 Franklin Street
Boston, Massachusetts 02110
(617) 748-6800
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CALCULATION OF REGISTRATION FEE
===============================================================================================
Title of Proposed maximum Proposed maximum
securities Amount to be offering price aggregate offering Amount of
to be registered registered\1 per share\2 price\2 registration fee
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Common Stock, 177,500 $27.35 $4,854,625 $615.08
no par value shares
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1/In addition, pursuant to Rule 416(a) under the Securities Act of 1933, this
registration statement also covers any additional securities to be offered or
issued in connection with a stock split, stock dividend or similar transaction.
2/Determined on the basis of the average of the high and low sale price of the
common stock as reported on the American Stock Exchange on April 22, 2004,
solely for the purpose of calculating the registration fee pursuant to Rule
457(h) under the Securities Act of 1933.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
We incorporate by reference in this registration statement the following
documents we have filed with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934, as amended:
(1) Unitil's Annual Report on Form 10-K for the fiscal year ended December
31, 2003 filed on February 27, 2004.
(2) Unitil's Quarterly Report on Form 10-Q for the quarter ended March 31,
2004 filed on April 28, 2004.
(3) Unitil's Registration Statement on Form 8-A filed on February 8, 1985.
All documents that we subsequently file pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act, other than any information we furnish, rather
than file, with the Securities and Exchange Commission pursuant to certain items
of Form 8-K, 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 this registration statement and to be a part hereof from the date
of filing of 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 5. Interests of Named Experts and Counsel.
Paul K. Connolly, a member of the firm of LeBoeuf, Lamb, Greene & MacRae,
L.L.P., which is rendering an opinion on the validity of the securities being
registered hereunder, owns approximately 3,257 shares of common stock as of the
date of this registration statement, including shares that may be acquired
within 60 days pursuant to the exercise of stock options. Mr. Connolly is a
participant in our dividend reinvestment plan and, as such, acquires additional
shares of our common stock at regular intervals.
Item 6. Indemnification of Directors and Officers.
The Company is organized under the laws of the State of New Hampshire. The
New Hampshire Business Corporation Act (the "NHBCA") provides that a corporation
may indemnify an individual made a party to a proceeding because he is or was a
director against liability incurred in the proceeding if: (1) he conducted
himself in good faith; and (2) he reasonably
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believed (i) in the case of conduct in his official capacity with the
corporation, that his conduct was in its best interests; and (ii) in all other
cases, that his conduct was at least not opposed to its best interests; and (3)
in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful. A corporation may pay for or reimburse the reasonable
expenses incurred by a director who is a party to a proceeding in advance of the
final disposition of the proceeding if: (1) the director furnishes the
corporation a written affirmation of his good faith belief that he has met the
standard of conduct described in the preceding sentence; and (2) the director
furnishes the corporation an undertaking, executed personally or on his behalf,
to repay the advance if it is ultimately determined that he did not meet the
standard of conduct; and (3) a determination is made that the facts then known
to those making the determination would not preclude indemnification. Unless a
corporation's articles of incorporation provide otherwise, the corporation may
indemnify and advance expenses to an officer, employee or agent of the
corporation who is not a director to the same extent as to a director. A
corporation may not indemnify a director (x) in connection with a proceeding by
or in the right of the corporation in which the director was adjudged liable to
the corporation; or (y) in connection with any other proceeding charging
improper personal benefit to him, whether or not involving action in his
official capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him. Unless limited by its articles of
incorporation, a corporation shall indemnify a director or officer who was
wholly successful, on the merits or otherwise, in the defense of any proceeding
to which he was a party because he is or was a director or officer of the
corporation against reasonable expenses incurred by him in connection with the
proceeding. A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee or agent of the
corporation, is or was serving at the request of the corporation as a director,
officer, partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan, or other
enterprise, against liability asserted against or incurred by him in that
capacity or arising from his status as a director, officer, employee, or agent,
whether or not the corporation would have power to indemnify him against the
same liability under the NHBCA.
Article X of the Company's By-Laws provides that the Company shall
indemnify any person who was or is a party or is threatened to be made a party,
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason of the person's
having served as, or by reason of the person's alleged acts or omissions while
serving as a director, officer, employee or agent of the Company, or while
serving at the request of the Company as a director, officer, employee or agent
of another corporation, partnership, joint venture, trust or other enterprise,
against expenses, including attorney's fees, judgments, fines and amounts paid
in settlement or otherwise actually and reasonably incurred by him in connection
with the action, suit or proceeding, if the person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful, said indemnification to be
to the full extent permitted by law under the circumstances, including, without
limitation, by all applicable provisions of the NHBCA. Any indemnification under
Article X shall be made by the Company with respect to Directors or other
persons after a determination that the person to be indemnified has met the
standards of conduct set forth in the NHBCA, such determination to be made by
the Board of Directors, by majority
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vote of a quorum, or by other persons authorized to make such a determination
under the NHBCA.
The right of indemnification arising under Article X was adopted for the
purpose of inducing persons to serve and to continue to serve the Company
without concern that their service may expose them to personal financial harm.
It is to be broadly construed, applied and implemented in light of that purpose.
It is not to be exclusive of any other right to which any such person is
entitled under any agreement, vote of the stockholders or the Board of
Directors, statute, or as a matter of law, or otherwise, nor is it to be
construed to limit or confine in any respect the power of the Board of Directors
to grant indemnity pursuant to any applicable statutes or laws of the State of
New Hampshire. The provisions of Article X are separable, and, if any provision
or portion thereof is for any reason held inapplicable, illegal or ineffective,
such holding will not affect any other right of indemnification existing under
Article X or otherwise. As used in Article X, the term "person" includes heirs,
executors, administrators or other legal representatives. As used in Article X,
the terms "Director" and "officer" include persons elected or appointed as
officers by the Board of Directors, persons elected as Directors by the
stockholders or by the Board of Directors, and persons who serve by vote or at
the request of the Company as directors, officers or trustees of another
organization in which the Company has any direct or indirect interest as a
shareholder, creditor or otherwise.
Article X of the Company's By-Laws also allows the Company to purchase and
maintain insurance on behalf of any person who was or is a Director, officer or
employee of the Company or any of its subsidiaries, or who was or is serving at
the request of the Company as a fiduciary of any employee benefit plan of the
Company or any subsidiary, against any liability asserted against, and incurred
by, such person in any such capacity, or arising out of such person's status as
such, whether or not the Company would have the power to indemnify such person
against such liability under the provisions of the NHBCA. The obligation to
indemnify and reimburse such person under the Company's By-Laws, if applicable,
will be reduced by the amount of any such insurance proceeds paid to such
person, or the representatives or successors of such person.
The Company maintains liability insurance protecting it, as well as its
directors and officers, against liability by reason of their being or having
been directors or officers.
Item 8. Exhibits.
Exhibit No. Description of Exhibit
----------- ----------------------
4(a) Articles of Incorporation of the Company, as amended
(filed as Exhibit 3.1 to the Company's Registration
Statement on Form S-14, No. 2-93769, and incorporated
herein by reference).
4(b) Articles of Amendment to the Articles of Incorporation
of the Company (filed as Exhibit 3.2 to the Company's
Annual Report on Form 10-K for the fiscal year ended
December 31, 1991, and incorporated herein by
reference).
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4(c) By-Laws of the Company (filed as Exhibit 4.4 to the
Company's Registration Statement on Form S-8, No.
333-73327, and incorporated herein by reference).
4(d) Unitil Corporation 2003 Restricted Stock Plan (filed as
Exhibit 10.16 to the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 2002, and
incorporated herein by reference).
4(e) Form of Restricted Stock Agreement.
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P.,
counsel to the Company.
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P.
(contained in opinion filed as Exhibit 5).
23(b) Consent of Grant Thornton LLP, independent public
accountants.
24 Power of Attorney (see signature pages).
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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 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 a 20 percent 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 (1)(i) and (1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 and 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 that remain unsold at the termination of
the offering.
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(4) That, for purposes 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,
where applicable, 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 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 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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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Mark H. Collin and Robert G.
Schoenberger, and each of them individually, his or her true and lawful
attorney-in-fact and agent 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 sign any and all amendments (including post-effective amendments)
of and supplements to this 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 each such attorney-in-fact and
agent, or his substitutes, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, to all intents and purposes and as fully as he or she might or could
do in person, hereby ratifying and confirming all that each such
attorney-in-fact and agent, or his substitutes, may lawfully do or cause to be
done by virtue hereof.
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 Town of Hampton, the State of New Hampshire, on this
31st day of March, 2004.
UNITIL CORPORATION
/s/ Mark H. Collin
---------------------------
Mark Collin
Senior Vice President,
Chief Financial Officer and
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Signature Title Date
--------- ----- ----
/s/ Mark H. Collin Senior Vice President, Chief
-------------------------- Financial Officer and March 31, 2004
Mark H. Collin Treasurer
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/s/ Robert G. Schoenberger Chairman of the Board, Chief
-------------------------- Executive Officer and March 31, 2004
Robert G. Schoenberger President
/s/ Laurence M. Brock Vice President and Controller March 31, 2004
--------------------------
Laurence M. Brock
/s/ David P. Brownell Director March 31, 2004
--------------------------
David P. Brownell
/s/ Michael J. Dalton Director March 31, 2004
--------------------------
Michael J. Dalton
/s/ Albert H. Elfner, III Director March 31, 2004
--------------------------
Albert H. Elfner, III
/s/ Ross B. George Director March 31, 2004
--------------------------
Ross B. George
/s/ Edward F. Godfrey Director March 31, 2004
--------------------------
Edward F. Godfrey
/s/ Michael B. Green Director March 31, 2004
--------------------------
Michael B. Green
/s/ Eben S. Moulton Director March 31, 2004
--------------------------
Eben S. Moulton
/s/ M. Brian O'Shaughnessy Director March 31, 2004
--------------------------
M. Brian O'Shaughnessy
/s/ Charles H. Tenney III Director March 31, 2004
--------------------------
Charles H. Tenney III
/s/ Sarah P. Voll Director March 31, 2004
--------------------------
Dr. Sarah P. Voll
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EXHIBIT INDEX
Exhibit
No. Description of Exhibit
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4(a) Articles of Incorporation of the Company, as amended (filed as Exhibit
3.1 to the Company's Registration Statement on Form S-14, No. 2-93769,
and incorporated herein by reference).
4(b) Articles of Amendment to the Articles of Incorporation of the Company
(filed as Exhibit 3.2 to the Company's Annual Report on Form 10-K for
the fiscal year ended December 31, 1991, and incorporated herein by
reference).
4(c) By-Laws of the Company (filed as Exhibit 4.4 to the Company's
Registration Statement on Form S-8, No. 333-73327, and incorporated
herein by reference).
4(d) Unitil Corporation 2003 Restricted Stock Plan (filed as Exhibit 10.16
to the Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2002, and incorporated herein by reference).
4(e) Form of Restricted Stock Agreement.
5 Opinion of LeBoeuf, Lamb, Greene & MacRae, L.L.P., counsel to the
Company.
23(a) Consent of LeBoeuf, Lamb, Greene & MacRae, L.L.P. (contained in
opinion filed as Exhibit 5 hereto).
23(b) Consent of Grant Thornton LLP, independent public accountants.
24 Power of Attorney (see signature pages).
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