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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CH ENERGY GROUP, INC.
(Exact name of Company as specified in its charter)
NEW YORK 14-1804460
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
284 South Avenue
Poughkeepsie, New York 12601-4879
(Address of principal executive offices)
CH ENERGY GROUP, INC.
DIRECTORS AND EXECUTIVES DEFERRED COMPENSATION PLAN
(Full title of plan)
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LINCOLN E. BLEVEANS
CORPORATE SECRETARY
CH ENERGY GROUP, INC.
284 SOUTH AVENUE
POUGHKEEPSIE, NEW YORK 12601-4879
(845) 452-2000
(Name and address of agent for service)
Copies to:
JOHN E. GOULD, ESQ.
THOMPSON HINE LLP
ONE CHASE MANHATTAN PLAZA
NEW YORK, NEW YORK 10005-1401
(212) 344-5680
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of securities Amount to be Proposed Proposed Amount of
to be registered registered maximum offer maximum registration fee
price per unit aggregate offering
price
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Deferred $22,750,000(1) N/A $22,750,000(1) $1,840.48(2)
Compensation
Obligations(1)
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(1) The Deferred Compensation Obligations are unsecured obligations of CH
Energy Group, Inc. to pay deferred compensation in the future in
accordance with the terms of the CH Energy Group, Inc. Directors and
Executives Deferred Compensation Plan.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h).
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 CH Energy Group, Inc. Directors and Executives
Deferred Compensation Plan described herein.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
This Registration Statement on Form S-8 is being filed by CH Energy Group,
Inc. (the "Registrant" or the "Corporation") with the Securities and Exchange
Commission ("SEC") for the purpose of registering under the Securities Act of
1933, as amended (the "Securities Act"), (i) deferred compensation obligations
of the Corporation, which are fully described in the CH Energy Group, Inc.
Directors and Executives Deferred Compensation Plan, as amended, filed as
Exhibit 10(iii)26 hereto (the "Plan") and (ii) an indeterminate amount of
interests to be offered or sold pursuant to the Plan.
The document(s) containing the information concerning the Plan specified
in Part I of the instructions to Registration Statement on Form S-8 have been or
will be sent or given to the Participants in the Plan, as specified by Rule
424(b)(1) under the Securities Act. In accordance with the Note to Part I of the
instructions to Registration Statement on Form S-8, such documents are not filed
with the SEC either as part of this Registration Statement or as a prospectus or
prospectus supplement pursuant to Rule 424 under the Securities Act. These
documents and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II hereof, 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 CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Corporation with the SEC pursuant to
the Securities and Exchange Act of 1934 ("Exchange Act"), are hereby
incorporated by reference into this Registration Statement:
1. The Corporation's Annual Report on Form 10-K for the year ended
December 31, 2002.
2. The Corporation's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 2003 and June 30, 2003.
3. The Corporation's Current Reports on Form 8-K filed February 3, 2003,
April 23, 2003, June 25, 2003, July 22, 2003, September 2, 2003 and October 22,
2003.
In addition to the foregoing, all documents subsequently filed by the
Corporation 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 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 the filing of
such documents. Any statement contained herein or in a document incorporated or
deemed to be 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 subsequently filed document which is also incorporated or 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
The obligations of the Corporation registered hereunder (the
"Obligations") are unsecured general obligations of the Company to pay the value
of deferred compensation accounts in accordance with the terms and conditions of
the Plan. The Obligations registered hereby are fully described in the CH Energy
Group, Inc. Directors and Executives Deferred Compensation Plan, as amended,
filed as Exhibit 10(iii)26 hereto. The filing of this Registration Statement on
Form S-8 is not, and should not be construed as, an admission that the
Obligations constitute securities as defined by any applicable federal, state or
local law, or that registration of the Obligations is required under any such
law.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL
The legality of the Corporation's Obligations will be passed upon for the
Corporation by Thompson Hine LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Sections 721 through 726 of the Business Corporation Law of the State of
New York ("BCL") provide for indemnification of the Corporation's officers and
directors under certain conditions and subject to specific limitations. The BCL
permits New York corporations to supplement the statutory indemnification with
additional "non-statutory" indemnification for directors and officers meeting a
specified standard of conduct and to advance to officers and directors
litigation expenses under certain circumstances. As permitted by the BCL,
Article VI of the Corporation's By-Laws provides for indemnification of, and
advancement of litigation expenses incurred by, directors and officers of the
Corporation.
The Corporation has also obtained insurance providing for indemnification
of directors and officers against certain expenses and liabilities, subject to
certain retention and co-insurance provisions. In addition, the Corporation has
entered into agreements with the officers and directors of the Corporation
providing for indemnification for the liability of officers and directors of the
Corporation in excess of losses indemnified under the Corporation's By-Laws,
said insurance policies and/or the BCL plus $1,000.
Such indemnification agreements do not cover acts committed in bad faith or acts
which were the result of active and deliberate dishonesty or judgments rendered
pursuant to Section 16(b) of the Exchange Act.
Furthermore, Article 6 of the Restated Certificate of Incorporation of the
Corporation limits, with certain exceptions, the personal liability of a
director of the Corporation to the Corporation or its shareholders for damage
for any breach of duty in such capacity to the fullest extent permitted by the
BCL.
ITEM 8. LIST OF EXHIBITS
See Exhibit Index.
ITEM 9. UNDERTAKINGS
A. UNDERTAKING TO UPDATE ANNUALLY
The Corporation hereby undertakes:
(1) to file, during any period in which offers or sales are being made of
the securities registered hereby, 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 this 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 this 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 SEC pursuant to Rule 424(b) 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
effective registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in this Registration Statement or any
material change to such information in this Registration Statement; provided,
however, that the undertakings set forth in paragraphs (i) and (ii) do not apply
if this 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 SEC
by the Corporation pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in this Registration Statement;
(2) 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; and
(3) 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.
B. INCORPORATING SUBSEQUENT EXCHANGE ACT DOCUMENTS BY REFERENCE
The Corporation hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the Corporation'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 this 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. INDEMNIFICATION
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Corporation pursuant to the provisions of the Corporation's By- Laws, the BCL or
otherwise, the Corporation has been advised that in the opinion of the SEC such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Corporation of expenses
incurred or paid by a director, officer or controlling person of the Corporation
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 Corporation 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 Securities Act and will be governed by
the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Corporation 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 Poughkeepsie, State of New York, on the 29th day
of October, 2003.
CH ENERGY GROUP, INC.
By: /s/ PAUL J. GANCI
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Chairman of the Board
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated on October 29, 2003.
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Signature Title Date
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(a) Principal Executive
Officer: Chairman of the Board October 29, 2003
/s/ PAUL J. GANCI
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(Paul J. Ganci)
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(b) Principal Financial Chief Financial Officer October 29, 2003
Officer:
/s/ CHRISTOPHER M. CAPONE
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(Christopher M. Capone)
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(c) Principal Accounting Vice President - October 29, 2003
Officer: Accounting and Controller
/s/ DONNA S. DOYLE
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(Donna S. Doyle)
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(d) A majority of Directors:
Heinz K. Fridrich*; Edward F.X. Gallagher*; Paul J. Ganci*; Stanley J.
Grubel*; E. Michael Kruse, Steven M. Fetter, Steven V. Lant, Directors
By: /s/ PAUL J. GANCI October 29, 2003
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(Paul J. Ganci)
* Paul J. Ganci, by signing his name hereto, does thereby sign this document
for himself and on behalf of the persons named above after whose printed
name an asterisk appears, pursuant to powers of attorney duly executed by
such persons and filed with the SEC as Exhibit 24 hereof.
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EXHIBIT INDEX
Following is the list of Exhibits, as required by Item 601 of Regulation
S-K, filed as part of this Registration Statement on Form S-8:
Exhibit No.
Regulation S-K
Item 601
Designation Exhibit Description
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3(a) Restated Certificate of Incorporation of CH Energy Group, Inc.
under Section 807 of the Business Corporation Law*
3(b) By-laws of CH Energy Group, Inc.**
5 Opinion of Thompson Hine LLP with respect to the legality of
the Obligations registered hereunder.
10(iii)26 CH Energy Group, Inc. Directors and Executives Deferred
Compensation Plan.
23(a) Consent of PricewaterhouseCoopers LLP
23(b) Consent of Thompson Hine LLP (included in the opinion filed as
Exhibit No. 5)
24 Powers of Attorney of Directors and Officers
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* Incorporated herein by reference to the Annual Report, on Form 10-K, of CH
Energy Group, Inc. for the fiscal year ended December 31, 2002.
** Incorporated herein by reference to the Quarterly Report, on Form 10-Q, of
CH Energy Group, Inc. for the quarterly period ended June 30, 2003.