Registration No. 333-__________
As filed with the Securities and Exchange Commission on May 26, 2000
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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D&E COMMUNICATIONS, INC.
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(Exact name of registrant as specified in its charter)
Pennsylvania 23-2837108
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(State or jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
124 East Main Street, P.O. Box 458
Ephrata, Pennsylvania 17522-0458
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(Address of principal executive offices) (Zip Code)
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D&E COMMUNICATIONS, INC.
2000 EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
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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
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Copies of communications to:
Vincent C. Deluzio, Esquire
Stephen W. Johnson, Esquire
Buchanan Ingersoll Professional Corporation
301 Grant Street, One Oxford Centre, 21st Floor
Pittsburgh, PA 15219-1410
(412) 562-8800
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum Aggregate
Title of Securities To Be Amount To Be Offering Price Per Offering Price(2) Amount of
Registered Registered(1) Share(2) Registration Fee(3)
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<S> <C> <C> <C> <C>
Common Stock (par value 300,000 Shares $20.1875 $6,056,250 $1,598.85
$0.16 per share)
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</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 16, 2000,
which is the last day the common stock traded prior to the filing of
this registration statement.
(3) Calculated pursuant to Section 6(b) of the Securities Act of 1933, as
amended.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
This Registration Statement relates to the D&E Communications, Inc. 2000
Employee Stock Purchase Plan (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 Company hereby incorporates by reference into this Registration
Statement the documents listed in (a) through (c) below:
(a) The latest annual report of the Company filed on Form 10-K for the
fiscal year ended December 31, 1999;
(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; 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.
The Company also incorporates by reference, 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 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
<PAGE>
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 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.
<PAGE>
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:
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Exhibit Number Description Method of Filing
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<S> <C> <C>
4.1 2000 Employee Stock Purchase Plan Incorporated herein by reference from the
Company's Definitive Proxy Statement filed
on March 23, 2000 (File Number 576234)
5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith.
23.2 Consent of Buchanan Ingersoll Professional Corporation See Exhibit 5.1 hereof.
24.1 Power of Attorney Included as part of signature pages hereof
</TABLE>
<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
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 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
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 foregoing provisions 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 26th
day of May, 2000.
D&E COMMUNICATIONS, INC.
By: /s/ Anne B. Sweigart
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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 and on the date indicated.
Date: May 26, 2000 By: /s/ Anne B. Sweigart
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Anne B. Sweigart
President, Chairman of the
Board, and Chief Executive
Officer
Date: May 26, 2000 By: /s/ Robert M. Lauman
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Robert M. Lauman
Executive Vice President and
Chief Operating Officer
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Thomas E. Morell
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Thomas E. Morell
Vice President, Chief Financial
Officer and Treasurer
(Chief Accounting Officer)
<PAGE>
Date: May 26, 2000 By: /s/ W. Garth Sprecher
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W. Garth Sprecher
Vice President and Secretary
Member of the Board of Directors
Date: May 26, 2000 By: /s/ John Amos
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John Amos
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Thomas H. Bamford
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Thomas H. Bamford
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Paul W. Brubaker
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Paul W. Brubaker
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Ronald E. Frisbie
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Ronald E. Frisbie
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Robert A. Kinsley
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Robert A. Kinsley
Member of the Board of Directors
Date: May 26, 2000 By: /s/ G. William Ruhl
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G. William Ruhl
Senior Vice President,
Member of the Board of Directors
Date: May 26, 2000 By: /s/ Steven B. Silverman
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Steven B. Silverman
Member of the Board of Directors
Date: May 26, 2000 By: /s/ D. Mark Thomas
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D. Mark Thomas
Member of the Board of Directors
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
Number Description Method of Filing
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<S> <C> <C>
4.1 2000 Employee Stock Purchase Plan Incorporated herein by reference from the
Company's Definitive Proxy Statement filed on
March 23, 2000 (File Number 576234)
5.1 Opinion of Buchanan Ingersoll Professional Corporation Filed herewith.
23.1 Consent of PricewaterhouseCoopers LLP Filed herewith.
23.2 Consent of Buchanan Ingersoll Professional Corporation See Exhibit 5.1 hereof.
24.1 Power of Attorney Included as part of signature pages hereof
</TABLE>
Exhibit 5.1
May 26, 2000
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 300,000 shares of common stock, par value $0.16 per share of D&E (the
"Common Stock") reserved for issuance pursuant to the D&E Communications, Inc.
2000 Employee Stock Purchase Plan (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-8 with respect to the Plan (the
"Registration Statement"), filed by D&E with the Commission pursuant to the
Securities Act;
3. 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
4. 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
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our reports dated March 3, 2000 relating to the
consolidated financial statements of D&E Communications, Inc. and the financial
statements of D&E/Omnipoint Wireless Joint Venture, L.P., which appear in D&E
Communications, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1999.
/s/ PricewaterhouseCoopers LLP
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Philadelphia, Pennsylvania
May 24, 2000
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 29, 2000 relating to the
consolidated financial statements of Eurotel L.L.C., which appears in D&E
Communications, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1999.
/s/ PricewaterhouseCoopers LLP
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Omaha, Nebraska
May 24, 2000
