FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 27, 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
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ARTESIAN RESOURCES
CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 51-0002090
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.)
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664 CHURCHMANS ROAD
NEWARK, DELAWARE 19702
(302) 453-6900
(ADDRESS, INCLUDING ZIP CODE, OF PRINCIPAL EXECUTIVE OFFICES)
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ARTESIAN RESOURCES CORPORATION
2005 EQUITY COMPENSATION PLAN
(FULL TITLE OF THE PLAN)
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DIAN C. TAYLOR
CHIEF EXECUTIVE OFFICER AND PRESIDENT
ARTESIAN RESOURCES CORPORATION
664 CHURCHMANS ROAD
NEWARK, DELAWARE 19702
(302) 453-6900
(NAME, ADDRESS AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
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COPY TO:
JOANNE R. SOSLOW, ESQ.
MORGAN, LEWIS & BOCKIUS LLP
1701 MARKET STREET
PHILADELPHIA, PA 19103
(215) 963-5000
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CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES NUMBER OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE SHARES TO BE OFFERING PRICE AGGREGATE REGISTRATION FEE
REGISTERED REGISTERED (1) PER SHARE OFFERING PRICE (3)
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Class A Non-Voting Common Stock, par value $1.00 500,000 $29.64 (2) $14,820,000 $1,744.31
per share
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(1) This registration statement covers shares of Class A Non-Voting Common
Stock of Artesian Resources Corporation that may be offered or sold
pursuant to the Artesian Resources Corporation 2005 Equity Compensation
Plan. This registration statement also relates to an indeterminate
number of shares of Class A Non-Voting Common Stock that may be issued
by reason of any stock split, stock dividend, spinoff, recapitalization
or any other similar transaction in accordance with Rule 416 under the
Securities Act of 1933, as amended (the "Securities Act"). In addition,
pursuant to Rule 416(c) under the Securities Act, this registration
statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the Artesian Resources Corporation 2005
Equity Compensation Plan.
(2) The price of $29.64 per share, which is the average of the high and low
prices of the Class A Non-Voting Common Stock reported by the Nasdaq
National Market on July 20, 2005, is set forth solely for the purpose
of calculating the filing fee pursuant to [Rule 457(c) and] Rule 457(h)
under the Securities Act.
(3) Calculated pursuant to Section 6(b) of the Securities Act as follows:
proposed maximum aggregate offering price multiplied by $.0001177.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The documents containing the information specified in this Part I of Form S-8
will be sent or given to participants as specified by Rule 428(b)(1) promulgated
under the Securities Act. Such documents need not be filed with the Securities
and Exchange Commission (the "Commission") either as part of this registration
statement or as prospectuses or prospectus supplements pursuant to Rule 424.
These documents and the documents incorporated by reference in this registration
statement pursuant to Item 3 of Part II of this Form S-8, taken together,
constitute a prospectus that meets the requirements of Section 10(a) of the
Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by Artesian Resources Corporation (the
"registrant") with the Commission are incorporated by reference into this
registration statement:
(1) The registrant's Annual Report on Form 10-K and amended Annual
Report on Form 10-K/A for the fiscal year ended December 31,
2004.
(2) The registrant's Quarterly Report on Form 10-Q for the fiscal
quarter ended March 31, 2005.
(3) The registrant's Current Reports on Form 8-K dated February 2,
2005 and April 5, 2005.
(4) The description of the registrant's shares of Class A
Non-Voting Common Stock, par value $1.00 per share, contained
in the registrant's registration statements on Form 10, as
amended (File No. 000-18516), filed with the Commission on
April 30, 1990 to register such securities under the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), including any amendments or reports filed for the
purpose of updating such description.
All reports and other documents subsequently filed by the registrant pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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 herein or in a document all or a portion of which is
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 that also is or is deemed to be incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this registration statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 102(b)(7) of the Delaware General Corporation Law permits a
corporation, in its certificate of incorporation, to limit or eliminate, subject
to certain statutory limitations, the liability of directors to the corporation
or its stockholders for monetary damages for breaches of fiduciary duty, except
for liability (a) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (b) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (c) for any
willful or negligent payment of an unlawful dividend, stock purchase or
redemption, or (d) for any transaction from which the director derived an
improper personal benefit.
Section 145 of the Delaware General Corporation Law states that a corporation
has the power to indemnify directors and officers under certain prescribed
circumstances and subject to certain limitations against certain costs and
expenses, including attorney's fees actually and reasonably incurred, in
connection with any action, suit or proceeding, whether civil, criminal,
administrative or investigative, to which any of them is a party by reason of
being a director or officer of the corporation if it is determined that the
director or officer acted in accordance with the applicable standard of conduct
set forth in such statutory provision.
Article Tenth of the registrant's Restated Certificate of Incorporation
provides that the personal liability of its directors is eliminated to the
fullest extent permitted by the Delaware General Corporation Law.
Article VIII of the registrant's Bylaws provides that the registrant shall
indemnify and hold harmless its directors and officers to the fullest extent
authorized by the Delaware General Corporation Law, as the same exists or may be
hereafter amended (but, in the case of any such amendment, only to the extent
that such amendment permits the registrant to provide broader indemnification
rights than such law permitted the registrant to provide prior to such
amendment). These provisions indemnify these persons against all expenses,
liabilities, and losses that are reasonably incurred or suffered in connection
with any action or proceeding described above. Further, the bylaws provide that
the registrant shall advance expenses to persons eligible for indemnification
upon delivery by any such person of an undertaking to repay all amounts advanced
if it shall ultimately be determined that this person is not entitled to be
indemnified. In addition, the registrant's bylaws authorize the registrant to
maintain insurance to protect the registrant and any of its directors or
officers against any expense, liability, or loss, whether or not the registrant
would have the power to indemnify any such person against such expense,
liability, or loss under the Delaware General Corporation Law.
The registrant has purchased a directors' and officers' indemnity insurance
policy as permitted by its Bylaws.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers or persons controlling the registrant
pursuant to the foregoing provisions, the registrant has been advised that in
the opinion of the Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
EXHIBIT DESCRIPTION
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4.1 Artesian Resources Corporation 2005 Equity Compensation Plan.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit 5.1).
24 Power of Attorney (included as part of the signature page).
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) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) to include any material information with respect to the
plan of distribution not previously disclosed in 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
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 Section 15(d) of the
Exchange Act 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.
(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
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.
(c) 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Newark, State of Delaware, on July 26, 2005.
ARTESIAN RESOURCES CORPORATION
By:
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Name: David B. Spacht
Title: Chief Financial Officer
and Treasurer
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Dian C. Taylor and David B. Spacht, 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) 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 said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in connection therewith,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents, or any of
them, or their or his substitutes or substitute, may lawfully do or cause to be
done by virtue hereof.
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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Chairman of the Board, Chief Executive July 25, 2005
------------------------------------ Officer, President and Director
Dian C. Taylor (Principal Executive Officer)
Vice President, Chief Financial Officer July 25, 2005
------------------------------------ and Treasurer (Principal Financial and
David B. Spacht Accounting Officer)
Director July 25, 2005
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Kenneth R. Biederman
Director July 25, 2005
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John R. Eisenbrey
Director July 25, 2005
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Norman H. Taylor, Jr.
Director July 25, 2005
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William C. Wyer
ARTESIAN RESOURCES CORPORATION
INDEX TO EXHIBITS
Exhibit Number Document
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4.1 Artesian Resources Corporation 2005 Equity Compensation Plan.
5.1 Opinion of Morgan, Lewis & Bockius LLP.
23.1 Consent of Independent Registered Public Accounting Firm.
23.2 Consent of Morgan, Lewis & Bockius LLP (included with
Exhibit 5.1).
24 Power of Attorney (included as part of the signature page).