As filed with the Securities and Exchange Commission on August 5, 2003
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_________
PHILADELPHIA SUBURBAN CORPORATION
(Exact name of issuer as specified in its charter)
Pennsylvania 23-1702594
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation of organization)
762 W. Lancaster Avenue
Bryn Mawr, PA 19010-3489
(Address of principal executive offices)
Philadelphia Suburban Corporation 401(k) and Profit Sharing Plan
(Full title of the plan)
ROY H. STAHL
EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND CORPORATE SECRETARY
762 W. Lancaster Avenue
Bryn Mawr, PA 19010-3489
(Name and address of agent for service)
(610) 527-8000
(Telephone number, including area code, of agent for service)
_________
Copies to:
STEPHEN A. JANNETTA
RICHARD A. SILFEN
Morgan, Lewis & Bockius LLP
1701 Market Street
Philadelphia, PA 19103-2921
(215) 963-5000
CALCULATION OF REGISTRATION FEE
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Title of securities Number of Proposed maximum Proposed maximum
to be shares to be offering price aggregate Amount of
registered registered (1) per share (2) offering price (2) registration fee (3)
------------------------------ ------------------ ----------------------- ---------------------- ---------------------
Common Stock, $.50 par value 120,000 $23.21 $2,785,200 $225.32
============================== ================== ======================= ====================== =====================
(1) This registration statement covers shares of Common Stock of
Philadelphia Suburban Corporation, which may be offered or sold
pursuant to the Philadelphia Suburban Corporation 401(k) and Profit
Sharing Plan (the "Plan"). In addition, pursuant to Rule 416(c) under
the Securities Act of 1933, this registration statement also covers an
indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. Pursuant to Rule 457(h)(2), no
separate registration fee is required with respect to the interests in
the plan. This registration statement also relates to an indeterminate
number of shares of Common Stock that may be issued upon stock splits,
stock dividends or similar transactions in accordance with Rule 416.
(2) Estimated pursuant to paragraphs (c) and (h) of Rule 457 solely for the
purpose of calculating the registration fee, based upon the average of
the reported high and low sales prices of shares of Common Stock on
July 29, 2003, as reported on the New York Stock Exchange.
(3) The proposed maximum offering price multiplied by $80.90 per million.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) Annual Report on Form 10-K, filed with the Commission on March 27,
2003, for the fiscal year ended December 31, 2002;
(b) Quarterly Report on Form 10-Q, filed with the Commission on May 7,
2003 for the fiscal quarter ended March 31, 2003;
(c) Current Reports on Form 8-K, filed with the Commission on January
14, 2003 and May 14, 2003; and
(d) The description of the Common Stock of the Registrant set forth in
the Registration Statement on Form 8-A filed with the Commission, including any
amendments or reports filed for the purpose of updating such description.
All reports and other documents filed by the Registrant pursuant to
Sections 13(a) and 15(d) of the Securities Exchange Act of 1934, after the date
of this registration statement and prior to the filing of a post-effective
amendment that indicates that all securities offered hereby have been sold or
that deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference herein and to be part hereof from the date of filing
of such documents.
Any statement contained in a document incorporated by reference herein
shall be deemed to be modified or superseded for purposes hereof to the extent
that a statement contained herein (or in any other subsequently filed document
that is also 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 hereof.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law of
1988, as amended (the "PBCL"), 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 PBCL 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 PBCL 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 PBCL.
Section 1746 of the PBCL 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 PBCL and pursuant to the authority of Section 1746 of the PBCL.
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 PBCL 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.
Unlike the provisions of PBCL 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 PBCL. 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 PBCL 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 PBCL.
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.
The following is a list of exhibits filed as part of this Registration
Statement.
Exhibit
Number Exhibit
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23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included as part of the signature page of this
Registration Statement).
99.1 Philadelphia Suburban Corporation 401(k) and Profit Sharing Plan.
In accordance with Item 8 of Form S-8, this Registration Statement does
not include Exhibit 5 - Opinion regarding Legality,
as:
1. The Registrant undertakes that the Plan and any amendments thereto
have been or will be submitted to the Internal Revenue Service (the "IRS") in a
timely manner and all changes required by the IRS in order to qualify the Plan
under Section 401 of the Internal Revenue Code have been or will be made.
2. Shares issued under the Plan are purchased on the open market.
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
(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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant 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 Bryn Mawr, Pennsylvania on August 5, 2003.
PHILADELPHIA SUBURBAN CORPORATION
By: Nicholas DeBenedictis
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Nicholas DeBenedictis
Chairman and Chief Executive Officer
Each person in so signing below 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 any and all amendments and post-effective
amendments to this Registration Statement, and to file the same, with the
Securities and Exchange Commission, granting unto said attorney-in-fact 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, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact, or their substitute or substitutes,
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
--------- ----- ----
Nicholas DeBenedictis Director, Chairman and Chief Executive August 5, 2003
--------------------- (Principal Executive Officer)
Nicholas DeBenedictis
David P. Smeltzer Senior Vice President--Finance and Chief August 5, 2003
----------------- Financial Officer (Principal Financial
David P. Smeltzer and Accounting Officer)
Mary C. Carroll Director August 5, 2003
---------------
Mary C. Carroll
G. Fred DiBona, Jr. Director August 5, 2003
-------------------
G. Fred DiBona, Jr.
Richard H. Glanton, Esq. Director August 5, 2003
------------------------
Richard H. Glanton, Esq.
Alan R. Hirsig Director August 5, 2003
--------------
Alan R. Hirsig
John F. McCaughan Director August 5, 2003
-----------------
John F. McCaughan
John E. Menario Director August 5, 2003
---------------
John E. Menario
Richard L. Smoot Director August 5, 2003
----------------
Richard L. Smoot
PHILADELPHIA SUBURBAN CORPORATION
INDEX TO EXHIBITS
Exhibit Number Document
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23.1 Consent of PricewaterhouseCoopers LLP.
24.1 Powers of Attorney (included as part of the signature page
of this Registration Statement).
99.1 Philadelphia Suburban Corporation 401(k) and Profit
Sharing Plan.