<PAGE>
Registration No. 333-__________
As filed with the Securities and Exchange Commission on May 27, 1999
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
___________________________________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
___________________________________
D&E COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-2837108
(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
124 East Main Street, P.O. Box 458 17522-0458
Ephrata, Pennsylvania (Zip Code)
(Address of principal executive offices)
___________________________________
1999 LONG-TERM INCENTIVE PLAN OF
D&E COMMUNICATIONS, INC.
(Full title of the plan)
____________________________________
<TABLE>
<S> <C>
Anne B. Sweigart, Chairman, Thomas E. Morell
President and Chief Executive Officer Vice President, Chief Financial Officer
D&E Communications, Inc. and Treasurer
Brossman Business Complex D&E Communications, Inc.
124 East Main Street Brossman Business Complex
Ephrata, Pennsylvania 17522 124 East Main Street
(717) 733-4101 Ephrata, Pennsylvania 17522
(717) 733-4101
</TABLE>
____________________________________
Copies of communications to:
Vincent C. Deluzio, Esquire
James O. Perry, Esquire
Buchanan Ingersoll Professional Corporation
301 Grant Street, One Oxford Centre, 21st Floor
Pittsburgh, PA 15219-1410
(412) 562-8800
____________________________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount To Be Offering Price Per Aggregate Offering Registration
To Be Registered Registered(1) Share(2) Price(2) Fee(3)
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock (par value 525,000 Shares $21.6875 $11,385,937.50 $3,165.29
$0.16 per share)
================================================================================================================
</TABLE>
(1) The provisions of Rule 416 of the Securities Act of 1933, as amended shall
apply to the number of shares registered on this Registration Statement and
shall automatically increase or decrease as a result of stock splits, stock
dividends or similar transactions.
(2) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) of the Securities Act of 1933, as amended. In accordance
with Rule 457(h) of the Securities Act of 1933, as amended, such price is
the average of the high and low sale prices for the Common Stock as quoted
on the Nasdaq National Market on May 21, 1999.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
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<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the 1999 Long-Term Incentive Plan of
D&E Communications, Inc. (the "Plan"). D&E Communications, Inc. ("D&E"), a
Pennsylvania corporation, is sometimes referred to herein as the "Company" or
the "Registrant."
Item 3. Incorporation of Documents by Reference
The Registrant hereby incorporates herein by reference into this
Registration Statement the documents listed in (a) through (c) below. The
Registrant also incorporates all documents subsequently filed by it with the
Securities and Exchange Commission (the "Commission") pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"):
(a) The latest annual report of the Company filed on Form 10-K for the
fiscal year ended December 31, 1998;
(b) All other reports, if any, filed pursuant to Section 13(a) or 15(d) of
the Exchange Act since the end of the fiscal year covered by the annual report
referred to in (a) above including, but not limited to, the Company's quarterly
report filed on Form 10-Q for the period ended March 31, 1999, and
(c) The description of the capital stock of the Company, par value $0.16
per share, as set forth in the Company's Form 8-K/A filed with the Commission on
June 4, 1997.
All documents subsequently filed by the Company with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to
the filing of a post-effective amendment to this Registration Statement, which
indicate 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.
Item 4. Description of Securities
Not Applicable.
Item 5. Interests of Named Experts and Counsel
Not Applicable.
Item 6. Indemnification of Directors and Officers
Subchapter D of Chapter 17 of the Pennsylvania Business Corporation Law of
1988, as amended (the "PBCL") provides in general that a corporation may
indemnify any person, including its directors, officers and employees, who was
or is a party or is threatened to be made a party to any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative or
investigative (including actions by or in the right of the corporation) by
reason of the fact that he or she is or was a representative of or serving at
the request of the corporation, against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by him or her in connection with the action or proceeding if he or she is
determined by the board of directors, or in
<PAGE>
certain circumstances by independent legal counsel to the shareholders, to have
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 reason to believe his conduct was unlawful. In the
case of actions by or in the right of the corporation, indemnification is not
permitted in respect of any claim, issue or matter as to which the person has
been adjudged to be liable to the corporation except to the extent a court
determines that the person is fairly and reasonably entitled to indemnification.
In any case, to the extent that the person has been successful on the merits or
otherwise in defense of any claim, issue or matter, he or she shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by him or her in connection therewith. Subchapter D of Chapter 17 of
the PBCL also provides that the indemnification permitted or required thereby is
not exclusive of any other rights to which a person seeking indemnification may
be entitled.
As permitted by the PBCL, D&E's Articles of Incorporation (the "Articles")
provide that D&E shall indemnify and hold harmless to the full extent not
prohibited by law, as the same exists or may hereafter be amended, interpreted
or implemented (but, in the case of any amendment, only to the extent that such
amendment permits D&E to provide broader indemnification rights than D&E is
permitted to provide prior to such amendment), each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in (as a
witness or otherwise) any threatened, pending or completed claim, action, suit,
or proceeding, whether civil, criminal, administrative, investigative or other
and whether or not by or in the right of the corporation or otherwise
(hereinafter, a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the heir, executor, or administrator, is or was a director
or officer of D&E or is or was serving at the request of D&E as a director,
officer, employee, fiduciary, trustee or other representative of another
corporation or of a partnership, joint venture, trust or other enterprise
(including without limitation service with respect to employee benefit plans),
or where the basis of such proceeding is any alleged action or failure to take
any action by any such of the foregoing persons while acting in an official
capacity as a director or officer of D&E or in any other capacity on behalf of
D&E while such person is or was serving as a director or officer of D&E, against
all expenses, liability and loss, including but not limited to attorneys' fees,
judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid
in settlement whether with or without court approval, actually incurred or paid
by such person in connection therewith. Such indemnification includes the right
to be paid by D&E the expenses incurred in defending any such proceeding (or
part thereof) or in enforcing his or her indemnification rights under the
Articles in advance of the final disposition thereof promptly after receipt by
D&E of a request therefor stating in reasonable detail the expenses incurred,
subject to certain conditions to the extent required by law. Persons who are
not directors or officers of D&E may be similarly indemnified in respect of
service to D&E, or to another such entity at the request of D&E, to the extent
the Board of Directors designates. Under the PBCL, indemnification pursuant to
this provision of the Articles is not permitted in any case in which 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. There may be
other circumstances where indemnification may not be permitted as a matter of
public policy.
The Articles also provide that to the fullest extent that the laws of the
Commonwealth of Pennsylvania, as now in effect or as hereafter amended, permit
elimination or limitation of the liability of directors, no director of D&E
shall be personally liable for monetary damages as such for any action taken, or
any failure to take any action, as a director. Under Section 1713 of the PBCL,
the personal liability of a director may not be eliminated or limited if: (1)
the director has breached or failed to perform the duties of his office under
Subchapter B of Chapter 17 of the PBCL (relating to the fiduciary duties of
directors); and (2) the breach or failure to perform constitutes self-dealing,
willful misconduct
<PAGE>
or recklessness. Furthermore, this limitation on the personal liability of
directors of D&E does not apply to: (1) the responsibility or liability of a
director pursuant to any criminal statute; or (2) the liability of a director
for the payment of taxes pursuant to local, state or federal law.
The Articles also provide that D&E may purchase and maintain insurance on
behalf of any person who is or was a director or officer or representative of
D&E, or is or was serving at the request of D&E as a representative of another
corporation, partnership, joint venture, trust or other enterprise, against any
liability asserted against such person or incurred by such person in any such
capacity, or arising out of his or her status as such, whether or not D&E has
the power to indemnify such person against such liability under the laws of this
or any other state. D&E may create a fund, of any nature, which may, but need
not be, under the control of a trustee, or otherwise secure or insure in any
manner its indemnification obligations arising under the Articles or otherwise.
D&E and its subsidiaries also carry insurance for their officers and
directors against certain liabilities which they might incur as directors or
officers of D&E or of any other organization which they serve at D&E's request,
including certain liabilities under the Securities Act of 1933, as amended (the
"Securities Act").
Insofar as indemnification by D&E for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of D&E pursuant to the foregoing provisions, D&E has been informed 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
The following is a complete list of exhibits filed as part of this
Registration Statement, which are incorporated herein by reference:
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
<C> <S> <C>
4.1 1999 Long-Term Incentive Plan of D&E Incorporated herein by reference from
Communications, Inc. the Company's Definitive Proxy
Statement filed on March 23, 1999
(File Number 000-20709)
5.1 Opinion of Buchanan Ingersoll Filed herewith.
Professional Corporation.
23.1 Consent of Buchanan Ingersoll See Exhibit 5.1 hereof.
Professional Corporation.
23.2 Consent of PricewaterhouseCoopers LLP Filed herewith.
</TABLE>
<PAGE>
- --------------------------------
Item 9. Undertakings
(a) The undersigned company hereby undertakes:
(1) To file during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement
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;
(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) The undersigned company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the company'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) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described in Item 6 of this Registration
Statement, or otherwise, 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. 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 Securities
Act and will be governed by the final adjudication of such issue.
<PAGE>
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 Ephrata, Commonwealth of Pennsylvania, on the 27th
day of May, 1999.
D&E COMMUNICATIONS, INC.
By: /s/ Anne B. Sweigart
-----------------------------
Anne B. Sweigart
President, Chief Executive Officer and
Chairman of the Board
KNOW ALL MEN BY THESE PRESENTS that each person whose signature appears
below constitutes and appoints Anne B. Sweigart and W. Garth Sprecher, and each
of them, such person's true and lawful attorneys-in-fact and agents, with full
power of substitution and revocation, for such person and in such person's name,
place and stead, in 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, as fully to all intents and purposes as such
person 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 substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on May 27, 1999.
Date: May 27, 1999 By: /s/ Anne B. Sweigart
---------------------------- -------------------------------
Anne B. Sweigart
President, Chairman of the
Board, and Chief Executive
Officer
Date: May 27, 1999 By: /s/ Robert M. Lauman
----------------------------- -------------------------------
Robert M. Lauman
Executive Vice President and
Chief Operating Officer
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Thomas E. Morell
------------------------------ --------------------------------
Thomas E. Morell
Vice President, Chief Financial
Officer and Treasurer
(Chief Accounting Officer)
<PAGE>
Date: May 27, 1999 By: /s/ W. Garth Sprecher
------------------------------ --------------------------------
W. Garth Sprecher
Vice President and Secretary
Member of the Board of Directors
Date: May 27, 1999 By: /s/ John Amos
------------------------------ --------------------------------
John Amos
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Thomas H. Bamford
------------------------------ --------------------------------
Thomas H. Bamford
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Paul W. Brubaker
------------------------------ --------------------------------
Paul W. Brubaker
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Ronald E. Frisbie
------------------------------ --------------------------------
Ronald E. Frisbie
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Robert A. Kinsley
------------------------------ --------------------------------
Robert A. Kinsley
Member of the Board of Directors
Date: May 27, 1999 By: /s/ G. William Ruhl
------------------------------ --------------------------------
G. William Ruhl
Senior Vice President,
Member of the Board of Directors
Date: May 27, 1999 By: /s/ Steven B. Silverman
------------------------------ --------------------------------
Steven B. Silverman
Member of the Board of Directors
Date: May 27, 1999 By: /s/ D. Mark Thomas
------------------------------ --------------------------------
D. Mark Thomas
Member of the Board of Directors
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
<C> <S> <C>
4.1 1999 Long-Term Incentive Plan of D&E Incorporated herein by reference from
Communications, Inc. the Company's Definitive Proxy
Statement filed on March 23, 1999
(File Number 000-20709)
5.1 Opinion of Buchanan Ingersoll Filed herewith.
Professional Corporation.
23.1 Consent of Buchanan Ingersoll See Exhibit 5.1 hereof.
Professional Corporation.
23.2 Consent of PricewaterhouseCoopers LLP Filed herewith.
</TABLE>
<PAGE>
[Letterhead of
Buchanan Ingersoll
------------------
PROFESSIONAL CORPORATION
Attorneys]
MAY 27, 1999
D&E Communications, Inc.
Brossman Business Complex
124 East Main Street
Ephrata, PA 17522
Ladies and Gentlemen:
We have acted as counsel to D&E Communications, Inc., a Pennsylvania
corporation ("D&E") (sometimes referred to as the "Company"), in connection with
the registration under the Securities Act of 1933, as amended (the "Securities
Act"), of 525,000 shares of common stock, par value $0.16 per share of D&E (the
"Common Stock") reserved for issuance pursuant to the 1999 Long-Term Incentive
Plan of D&E Communications, Inc. (the "Plan"). In such capacity, we have
examined the following:
1. The Bylaws, as amended, and the Articles of Incorporation, as
amended, of the Company;
2. The Registration Statement on Form S-4, as amended (the "S-4"),
with respect to the Restructuring (as therein defined), filed by D&E with the
Securities and Exchange Commission (the "Commission") pursuant to the Securities
Act;
3. The Registration Statement on Form S-8 with respect to the Plan
(the "Registration Statement"), filed by D&E with the Commission pursuant to the
Securities Act;
4. Proceedings of the Board of Directors of the Company relating to
the adoption of the Plan, and the authorization, execution and filing of the
Registration Statement; and
5. Such other documents, certificates, records, statutes and decisions
as we considered necessary to express the opinion contained herein.
Based upon the foregoing, we are of the opinion that when the
Registration Statement shall have been declared effective by the order of the
Securities and Exchange Commission and when the Common Stock has been duly
issued and delivered pursuant to the terms of the Plan, such shares of Common
Stock will be validly issued, fully paid and nonassessable.
We hereby consent to be named in the Registration Statement, and in
the Prospectus which constitutes a part thereof, as counsel which has passed
upon the legality of the shares of D&E Common Stock to be issued pursuant to the
Plan. We further consent to the filing of a copy of this opinion as an exhibit
to the Registration Statement.
BUCHANAN INGERSOLL
PROFESSIONAL CORPORATION
By: /s/ Stephen W. Johnson
-----------------------
Stephen W. Johnson
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of D&E Communications, Inc. (the "Company") of our report
dated February 26, 1999 relating to the financial statements appearing in the
Company's Annual Report on Form 10-K for the year ended December 31, 1998.
/s/ PricewaterhouseCoopers LLP
2400 Eleven Penn Center
Philadelphia, Pennsylvania
May 26, 1999
