As filed with the Securities and Exchange Commission on June 9, 1994
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PETROLEUM HEAT AND POWER CO., INC.
(Exact name of registrant as specified in charter)
Minnesota 06-1183025
(State or other (I.R.S. Employer
jurisdiction of Identification No.)
incorporation or
organization)
2187 Atlantic Street
Stamford, Connecticut 06902
(203) 325-5400
(Address, including zip code, and
telephone number, including area
code, of registrant's principal
executive offices)
--------------------
1994 Stock Option Plan
(Full Title of Plan)
---------------------
Irik P. Sevin, President
Petroleum Heat and Power Co., Inc.
2187 Atlantic Street
Stamford, Connecticut 06902
(203) 325-5400
(name and address, including zip code and telephone number,
including area code of agent for service)
---------------------
Copies to:
Alan Shapiro, Esq.
Phillips, Nizer, Benjamin, Krim & Ballon
31 West 52nd Street
New York, New York 10019-6167
(212) 977-9700
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate Amount of
Class of Securities Amount to be Price Per Offering Registra-
to be Registered Registered(1) Share Price tion Fee
Class A Common Stock,
$0.10 par value . . . 1,000,000 $7.156(2) $7,156,000(2) $2,468.00
(1) An indeterminate number of shares of Class A Common Stock are
registered hereunder, which may be issued as provided in the various
options, in the event provisions against dilution become operative.
No additional registration fee is included for these shares.
(2) The registration fee is based upon the average of the high and low
sales prices for the Class A Common Stock of $7.156 on June 6, 1994,
as prescribed by Rule 457(c).
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Petroleum
Heat and Power Co., Inc. (the "Registrant") with the Securities
and Exchange Commission (the "Commission"), are hereby
incorporated by reference in this Registration Statement:
1. Annual Report on Form 10-K for the fiscal year ended
December 31, 1993.
2. Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 1994.
3. The description of the Class A Common Stock contained
in the Registrant's Registration Statement on Form 8-A
filed pursuant to Section 12 of the Exchange Act, and
any amendment or report filed for the purpose of
updating such description.
All documents filed by the Registrant pursuant to Section
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934
subsequent to the date of the Registration Statement and 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 into this Registration Statement and to
be a part hereof from the respective dates of filing such
documents.
The Registrant will provide without charge to any Plan
participant, at the request of such person, a copy of any or all
of the foregoing documents incorporated herein by reference
(other than exhibits to such documents). Requests should be
directed to Audrey L. Sevin, Secretary, Petroleum Heat and Power
Co., Inc., 2187 Atlantic Street, Stamford, Connecticut 06902
(Tel. No. 203-325-5400).
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Names Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521 of the Minnesota Business Corporation Act
(the "MNCA") provides mandatory and exclusive standards for
indemnification, although the Articles of Incorporation or by-
laws of a corporation can specifically limit the statutory
indemnification. Minnesota law generally provides that a
corporation shall indemnify a person made or threatened to be
made a party to a proceeding by reason of such person's official
capacity as an officer, director or employee of the corporation,
against judgments, penalties, fines, including, without
limitation, excise taxes assessed against such person with
respect to an employee benefit plan, settlements, and reasonable
expenses, including attorney's fees and disbursements, incurred
by that person in connection with the proceeding, if such person
(a) has not been indemnified by another entity for the same
proceedings and in connection with the same acts or omission; (b)
acted in good faith; (c) received no improper personal benefit;
(d) in the case of a criminal proceeding, had no reason to
believe such person's conduct was unlawful; and (e) in connection
with the acts or omissions in question, the person reasonably
believed that such person's conduct was in the best interests of
the corporation (or, in the case of a question of improper
personal benefit, believed that the conduct was not opposed to
the best interests of the corporation; or in the case of an
employee benefit plan, believed that the conduct was in the best
interests of the participants or beneficiaries of the employee
benefit plan).
2
<PAGE>
Section 302A.521 of the MBCA further provides that if an
officer, director or employee is made or threatened to be made a
party to a proceeding in such person's official capacity, such
person is entitled, upon written request to the corporation, to
payment or reimbursement by the corporation of reasonable
expenses incurred by such person in advance of the final
disposition of the proceeding (a) upon receipt by the corporation
of a written confirmation by such person of such person's good
faith belief that the criteria for indemnification set forth
under Minnesota law have been satisfied, an undertaking by such
person to repay all amounts paid or reimbursed by the corporation
if it is ultimately determined that the criteria for
indemnification have not been satisfied, and (b) after a
determination that the facts then known to those making the
determination would not preclude indemnification under Minnesota
law.
Finally, Section 302A.521 of the MBCA provides that a
corporation's Articles of Incorporation or by-laws may prohibit
indemnification or advances or may impose conditions on such
indemnification or advance, as long as those conditions apply
equally to all persons or to all persons within a given class.
Registrant's Restated Articles of Incorporation, as amended,
contains the limitation of liability provision set forth below:
"ARTICLE VIII - A director of the corporation shall not
be personally liable to the corporation or its shareholders
for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its
shareholders, (ii) for acts or omissions not in good faith
or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 302A.559 of the
Minnesota Business Corporation Act or Section 80A.23 of the
Minnesota Securities Law, or (iv) for any transaction from
which the directors derived an improper personal benefit. If
the Minnesota Business Corporation Act is hereafter amended
to authorize any further limitation of the liability of a
director, then the liability of a director of the
corporation shall be eliminated or limited to the fullest
extent permitted by the Minnesota Business Corporation Act,
as amended. No amendment or repeal of this Article VIII
shall apply to or have any effect on the liability or
alleged liability of any director of the corporation for or
with respect to any acts or omissions of such director
occurring prior to such amendment or repeal."
Registrant's by-laws, as amended, contains the
indemnification provision set forth below:
"Section 8.01. The corporation shall indemnify all
officers and directors of the corporation, for such expenses
and liabilities, in such manner, under such circumstances,
and to such extent as permitted by Minnesota Statutes
Section 302A.521, as now enacted or hereafter amended.
Unless otherwise approved by the Board of Directors, the
corporation shall not indemnify or advance expenses to any
employee of the corporation who is not otherwise entitled to
indemnification pursuant to the prior sentence of this
Section 8.01."
Item 7. Exemption From Registration Claimed.
Not Applicable.
3
<PAGE>
Item 8. Exhibits.
Exhibit
Nos. Description of Exhibits
------- -----------------------
5.1* Opinion of Phillips, Nizer, Benjamin, Krim & Ballon
10.1+ 1994 Stock Option Plan
23.1* Consent of KPMG Peat Marwick
23.2* Consent of Ernst & Young
23.3* Consent of Phillips, Nizer, Benjamin, Krim & Ballon
(included in Exhibit 5.1)*
__________________
*Filed herewith.
+Incorporated by reference to Exhibit A to the Registrant's
Definitive Proxy Statement for its 1994 Annual Meeting of
Stockholders (File No. 2-88526).
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(i) 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
the Registration Statement or any material change to such
information in the Registration Statement.
(ii) 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.
(iii) 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.
2. The undersigned registrant hereby undertakes that, for
purposes 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, 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.
3. Insofar as indemnification for liabilities arising under
the Securities Act of 1933, as amended (the "Act") may be
permitted to directors, officers or 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 hereunder, 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.
4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for the 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 Stamford, State of Connecticut, on the
9th day of June, 1994.
PETROLEUM HEAT AND POWER CO., INC.
By /s/ Irik P. Sevin
----------------------------------
Irik P. Sevin
President, Chairman of the Board
Chief Executive Officer and Chief
Financial
and Accounting Officer
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 dates indicated:
Signature Title Date
--------- ----- ----
President, Chairman of the
Board, June 9, 1994
Chief Executive Officer,
/s/ Irik P. Sevin Financial
---------------------- and Accounting Officer and
Irik P. Sevin Director
/s/ Audrey L. Sevin
------------------------- Secretary and Director June 9, 1994
Audrey L. Sevin
/s/ Phillip E. Cohen
------------------------- Director June 9, 1994
Phillip E. Cohen
/s/ Thomas J. Edelman
------------------------- Director June 9, 1994
Thomas J. Edelman
------------------------- Director June __, 1994
Wolfgang Traber
---------------------- Director June __, 1994
Richard O'Connell
------------------------- Director June __, 1994
Max Warburg
5
June 9, 1994
Securities and Exchange Commission
Judiciary Plaza
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Petroleum Heat and Power Co., Inc.
Registration Statement on Form S-8
----------------------------------
Dear Sirs:
As special counsel to Petroleum Heat and Power Co.,
Inc., a Minnesota corporation (the "Company"), we have been
requested to render this opinion for filing as Exhibit 5.1 to the
Company's registration statement on Form S-8, which is being filed
with the Securities and Exchange Commission on or about June
9,1994 (the "Registration Statement").
The Registration Statement covers 1,000,000 shares (the
"Shares") of Class A Common Stock of the Company, which may be
sold by the Company upon the exercise of options to be granted
pursuant to the Company's 1994 Stock Option Plan (the "Plan")
filed as Exhibit 10.1 to the Registration Statement.
We have examined the Company's Articles of
Incorporation, as amended, the Company's By-Laws, as amended, the
Plan, and related minutes of action taken by the Board of
Directors of the Company. In the foregoing examination, we have
assumed the genuineness of all signatures, the authenticity of all
documents submitted to us as originals and the conformity to
originals of all documents submitted to us as certified or
reproduced copies of originals.
Based upon the foregoing, we are of the opinion that
when the Shares are sold in the manner and for the considerations
described in the Plan, the Shares will be validly issued, fully
paid and non-assessable.
<PAGE>
Securities and Exchange
Commission - 2 - June 9, 1994
We hereby consent to the filing of this opinion as
Exhibit 5.1 to the Registration Statement.
Very truly yours,
PHILLIPS, NIZER, BENJAMIN,
KRIM & BALLON
Exhibit 23.1
ACCOUNTANTS' CONSENT
The Stockholders and Board of Directors of
Petroleum Heat and Power Co., Inc.:
We consent to the use of our reports relating to the consolidated financial
statements and financial statements schedules of Petroleum Heat and Power Co.,
Inc. and to the consolidated financial statements of Star Gas Corporation
incorporated by reference herein.
/s/ KPMG Peat Marwick
-----------------------
KPMG Peat Marwick
New York, New York
June 9, 1994
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the use of our reports dated December 3, 1992 except for Notes 5
and 9, as to which the date is April 1, 1993, with respect to the consolidated
financial statements of Star Gas Corporation and subsidiaries included in
Petroleum Heat and Power Co., Inc.'s Annual Report on Form 10-K for the year
ended December 31, 1993 and Form S-8 Registration Statement for the registration
of 1,000,000 shares of Class A Common Stock.
ERNST & YOUNG
June 9, 1994
