<PAGE>
As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-----------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PETROLEUM HEAT AND POWER CO., INC.
(Exact name of registrant as specified in charter)
Minnesota 06-1183025
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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)
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1997 Stock Bonus Plan
(Full Title of Plan)
-----------------
Irik P. Sevin
Chairman and Chief Executive Officer
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 LLP
666 Fifth Avenue
New York, New York 10103
(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 $2.75(2) $2,750,000(2) $948.20
(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 bid
prices for the Class A Common Stock of $2.75 on June 24, 1997, as
prescribed by Rule 457(c).
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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, as amended, for the fiscal year ended
December 31, 1996.
2. Quarterly Report on Form 10-Q, as amended, for the fiscal quarter
ended March 31, 1997.
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).
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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.
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<PAGE>
Item 8. Exhibits.
Exhibit
Nos. Description of Exhibits
- ------- -----------------------
5.1* Opinion of Phillips Nizer Benjamin Krim & Ballon LLP
10.1* 1997 Stock Bonus Plan and forms of Bonus Shares Agreements
23.1* Consent of KPMG Peat Marwick LLP
23.3* Consent of Phillips Nizer Benjamin Krim & Ballon LLP (included in
Exhibit 5.1)*
__________________
*Filed herewith.
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.
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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 25th day of June, 1997.
PETROLEUM HEAT AND POWER CO., INC.
/s/ Irik P. Sevin
By
--------------------------------------
Irik P. Sevin
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
- --------- ----- ----
/s/ Irik P. Sevin Chairman of the Board, June 25, 1997
- ---------------------- Chief Executive Officer, Financial
Irik P. Sevin and Accounting Officer and Director
/s/ Audrey L. Sevin Secretary and Director June 25, 1997
- ----------------------
Audrey L. Sevin
Director June __, 1997
- ----------------------
Phillip E. Cohen
- ---------------------- Director June __, 1997
Thomas J. Edelman
/s/ Wolfgang Traber
- ---------------------- Director June 25, 1997
Wolfgang Traber
/s/ Richard O'Connell
- ---------------------- Director June 25, 1997
Richard O'Connell
- ---------------------- Director June __, 1997
Stephen Russell
/s/ Paul Biddelman
- ---------------------- Director June 25, 1997
Paul Biddelman
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<PAGE>
Exhibit 5.1
June 27, 1997
Securities and Exchange Commission
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 (the "Registration
Statement").
The Registration Statement covers 1,000,000 shares (the "Shares") of
Class A Common Stock, which may be issued by the Company pursuant to the
Company's 1997 Stock Bonus 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:
1. The Plan and the Shares have been duly authorized by all
requisite corporate action on the part of the Company.
2. When the Shares are issued in the manner described in the Plan,
the Shares will be validly issued, fully paid and non-assessable.
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 LLP
<PAGE>
Exhibit 10.1
PETROLEUM HEAT AND POWER COMPANY, INC.
EMPLOYEE STOCK BONUS PLAN
This EMPLOYEE STOCK BONUS PLAN (the "Plan") provides for the grant
of bonuses (each a "Bonus") consisting of shares of Class A common stock,
$.10 par value (the "Common Stock"), of Petroleum Heat and Power Co., Inc., a
Minnesota corporation (the "Company"), subject to the terms and conditions
provided below.
1. PURPOSES. The purposes of this Plan are to reward such
employees (including directors who are employees) and consultants of the
Company as the Plan Administrator shall select in accordance with Section 3
for their services to the Company to enable such persons to acquire a greater
proprietary interest in the Company, thereby strengthening their incentive to
achieve the objectives of the shareholders of the Company, and to serve as an
aid and inducement in the hiring of new employees.
2. ADMINISTRATION. This Plan shall be administered by the Board
of Directors of the Company (the "Board") or by a committee designated by the
Board and composed of two (2) or more members of the Board who are
Non-Employee Directors (within the meaning of Rule 16b-3 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) which committee (the
"Committee") may be an executive, compensation or other committee, including
a separate committee especially created for this purpose. Unless otherwise
specified by the Board in the resolutions creating or empowering the
Committee: (i) the members of any such Committee shall serve at the pleasure
of the Board, (ii) a majority of the members of the Committee shall
constitute a quorum, (iii) all actions of the Committee shall be taken by a
majority of the members present, and (iv) any action may be taken by a
written instrument signed by all of the members of the Committee and any
action so taken shall be fully effective as if it had been taken at a
meeting. The Board, or any such Committee, is referred to herein as the
"Plan Administrator;" provided, that the term "Plan Administrator" when used
in any provision of this Plan other than Sections 2 and 11 shall also be
deemed to refer to any executive officer who has been authorized, as provided
below, to grant Bonuses to Non-Insiders.
Subject to the provisions of this Plan, and with a view to effecting
its purpose, the Plan Administrator shall have sole authority, in its absolute
discretion, to (a) construe and interpret this Plan; (b) define the terms used
in this Plan; (c) prescribe, amend and rescind rules and regulations relating to
this Plan; (d) correct any defect, supply any omission or reconcile any
inconsistency in this Plan; (e) determine the individuals to whom Bonuses shall
be granted under this Plan and whether the Bonus shall be a Restricted Bonus or
an Unrestricted Bonus; (f) determine
<PAGE>
the time or times at which Bonuses shall be granted under this Plan; (g)
determine the number of shares of Common Stock covered by each Bonus; (h)
determine all other terms and conditions of Bonuses; and (i) make all other
determinations necessary or advisable for the administration of this Plan.
All decisions, determinations and interpretations made by the Plan
Administrator shall be binding and conclusive on all participants in this
Plan and on their legal representatives, heirs and beneficiaries.
The Board or the Committee may delegate to one or more executive
officers of the Company the authority to grant Bonuses under this Plan to
employees of the Company who, on the Date of Grant, are not subject to
Section 16(b) of the Exchange Act ("Non-Insiders"), and in connection
therewith the authority to determine the number of shares of Common Stock
covered by such Bonus and all other terms and conditions of such Bonuses.
Unless expressly approved in advance by the Board or the Committee, such
delegation of authority shall not include the authority to alter the terms of
outstanding Bonuses.
3. ELIGIBILITY. Bonuses may be granted to any individual who, at
the time the Bonus is granted, is an employee of or consultant to the Company
or any Related Corporation, including employees who are directors of the
Company or any Related Corporation (but not including directors who are not
also employees of the Company or any Related Corporation) (collectively
"Employees"). No more than 1,000,000 shares of Common Stock (subject to
adjustment in the event of a stock dividend, stock split, recapitalization,
reorganization or similar event) may be subject to outstanding grants at any
one time. During each calendar year of the term of the Plan, no person shall
be eligible to receive Bonuses covering more than 100,000 shares of Common
Stock (subject to adjustment in the event of a stock split, stock dividend,
recapitalization, reorganization or similar event). Any person to whom a
Bonus is granted under this Plan is referred to as a "Grantee". Shares of
Common Stock granted to a Grantee pursuant to a Bonus are referred to herein
as "Bonus Shares." A "Related Corporation" shall mean any corporation
controlling, controlled by or under common control with the Company.
4. TERMS AND CONDITIONS OF BONUSES.
(a) Grant of Bonus. The Plan Administrator may grant to a
Grantee (i) Bonus Shares subject to the restrictions stated in Section 4(c)
(each such grant a "Restricted Bonus" and such shares "Restricted Bonus
Shares") or (ii) Bonus Shares which are not subject to the restrictions
stated in Section 4(c) (each such grant an "Unrestricted Bonus" and such
shares "Unrestricted Bonus Shares"). The Grantee shall pay no consideration
for Restricted Bonus Shares or Unrestricted Bonus Shares.
2
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(b) Bonus Agreement. As soon as practicable after the date
the Bonus is awarded (the "Date of Grant"), the Company and the Grantee shall
enter into a written agreement (a "Bonus Agreement") identifying the Date of
Grant, and specifying the terms and conditions of the Bonus. Any Bonus under
this Plan shall be governed by the terms of the Plan and the applicable Bonus
Agreement.
(c) Restricted Bonus Shares.
(i) Restrictions. Subject to the provisions of the Plan
and the Bonus Agreement, during the period (the "Restriction Period"), if
any, set by the Plan Administrator at the Date of Grant, commencing with, and
not exceeding ten (10) years from, the Date of Grant, the Grantee shall not
be permitted to sell, assign, transfer, pledge or otherwise encumber
Restricted Bonus Shares. Within these limits, the Plan Administrator may
provide for the lapse of such restrictions in installments and may accelerate
or waive such restrictions, in whole or in part, based on service,
performance or such other factors or criteria as the Plan Administrator may
determine.
(ii) Dividends on Restricted Bonus Shares. Unless
otherwise determined by the Plan Administrator, with respect to dividends on
Restricted Bonus Shares, dividends payable in cash shall be paid to the
Grantee and dividends payable in Common Stock shall be paid in the form of
Restricted Bonus Shares. The payment of share dividends in additional
Restricted Bonus Shares shall only be permissible if sufficient shares of
Common Stock are available under Section 3 for such payment.
(iii) Termination. Except to the extent otherwise provided
in the Bonus Agreement and pursuant to Section 4(c)(i), in the event the Grantee
ceases to be, for any reason, an Employee (such event a "Termination") during
the Restriction Period, all Restricted Bonus Shares then subject to restriction
shall be forfeited by the Grantee.
(iv) Escrow and Voting of Restricted Bonus Shares. At the
time of the Grant, the Plan Administrator shall determine whether Restricted
Bonus Shares shall be issued prior to the lapse of all restrictions, in which
event such Restricted Bonus Shares shall be issued as soon as practicable
following the Date of Grant, but subject to the provisions of this Section
4(c)(iv) or whether issuance of Restricted Bonus Shares shall be delayed until
the lapse of all such restrictions. As to Restricted Bonus Shares to be issued
prior to the lapse of restrictions, as soon as practicable following the Date of
Grant, the appropriate officers of the Company shall prepare, issue and deliver
certificate(s) representing Restricted Bonus Shares to the Chief Financial
Officer or General Counsel of the Company (the "Administrative Executive") to be
held by such person in accordance with this subsection (iv).
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Any grant of Restricted Bonus Shares under this Plan shall be made
conditioned on the Grantee's delivery to the Administrative Executive of
stock power(s) duly transferring ownership of the Restricted Bonus Shares to
the Company. The Administrative Executive shall deliver the share
certificate(s) and stock power(s) to the Grantee only following the receipt
of written certification from the Plan Administrator that the Restricted
Period relating to the Restricted Bonus Shares has expired. Pending the
delivery of share certificates representing Restricted Bonus Shares to the
Grantee as provided in this Section 4(c)(iv) or the forfeiture of such shares
as provided in Section 4(c)(iii), the Grantee shall be entitled to vote such
shares and to receive dividends with respect thereto. As to Restricted Bonus
Shares the issuance of which shall be delayed until the lapse of all
restrictions with respect thereto, the Grantee shall have no right to receive
dividends with respect to, or to vote, such Restricted Bonus Shares until the
lapse of all such restrictions or the acceleration or waiving of such
restrictions by the Plan Administrator.
(d) Performance Goals. Any Bonus may be granted either alone
or in addition to other Bonuses granted under the Plan. The Plan
Administrator may condition the grant of any Bonus upon the attainment of
specified performance goals or such other factors or criteria, including
continued employment or consulting, as the Plan Administrator shall
determine. Performance objectives may vary from Grantee to Grantee and among
groups of Grantees and shall be based upon such Company subsidiary, group or
division factors or criteria as the Plan Administrator may deem appropriate,
including, but not limited to, earnings per share or return on equity. The
other provisions of Bonuses also need not be the same with respect to each
recipient. Unless specified otherwise in the Plan or by the Plan
Administrator, the date of grant of a Bonus shall be the date of action by
the Plan Administrator to grant the Bonus.
(e) Right of Repurchase. At the option of the Plan
Administrator, Bonus Shares issued under this Plan may be subject to a right
of repurchase in favor of the Company upon Termination of the Grantee. The
terms and conditions of such right of repurchase, if any, shall be set forth
in the Bonus Agreement.
(f) Securities Regulation and Tax Withholding.
(i) Bonus Shares shall not be issued with respect to a
Bonus unless the grant of such Bonus and the issuance and delivery of such Bonus
Shares shall comply with all relevant provisions of law, including, without
limitation, any applicable state securities laws, the Securities Act of 1933, as
amended, the Exchange Act, the rules and regulations thereunder and the
requirements of any stock exchange or quotation system upon which the Common
Stock may then be listed or quoted, and such issuance shall be further subject
to the approval of counsel for the Company
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with respect to such compliance, including the availability of an exemption
from registration for the issuance of such Bonus Shares. The inability of
the Company to obtain from any regulatory body the authority deemed by the
Company to be necessary for the lawful issuance of any Bonus Shares under
this Plan, or the unavailability of an exemption from registration for the
issuance of any Bonus Shares under this Plan, shall relieve the Company of
any liability with respect to the non-issuance of such Bonus Shares.
As a condition to the issuance of Bonus Shares, the Plan
Administrator may require the Grantee to represent and warrant in writing at
the time of such issuance that such Bonus Shares are being acquired only for
investment and without any then-present intention to sell or distribute such
Bonus Shares. At the option of the Plan Administrator, a stop-transfer order
against such Bonus Shares may be placed on the stock books and records of the
Company, and a legend indicating that the Bonus Shares may not be pledged,
sold or otherwise transferred, unless an opinion of counsel is provided
stating that such transfer is not in violation of any applicable law or
regulation, may be stamped on the certificates representing such Bonus Shares
in order to assure an exemption from registration. The Plan Administrator
also may require such other documentation as may from time to time be
necessary to comply with federal and state securities laws. THE COMPANY HAS
NO OBLIGATION TO UNDERTAKE REGISTRATION OF BONUS SHARES.
(ii) The Grantee shall pay to the Company by certified or
cashier's check, promptly upon grant of a Bonus or, if later, the date that
the amount of such obligations becomes determinable (in either case, the "Tax
Date"), all applicable federal, state, local and foreign withholding taxes
that the Plan Administrator, in its discretion, determines result upon grant
of a Bonus, lapse of restrictions on transfer of Restricted Bonus Shares,
transfer or other disposition of Bonus Shares or otherwise relate to a Bonus
or Bonus Shares. Upon approval of the Plan Administrator, a Grantee may
satisfy such obligation by complying with one or more of the following
alternatives selected by the Plan Administrator:
(A) by delivering to the Company shares of Common
Stock previously held by such Grantee or by the Company withholding Bonus
Shares otherwise issuable pursuant to the Bonus, which have a fair market
value at the Tax Date (as determined by the Plan Administrator) equal to the
tax obligation to be paid by the Grantee on such Tax Date; provided, that if
the Grantee is subject to Section 16(b) of the Exchange Act (an "Insider") or
if beneficial ownership of Bonus Shares is attributable to an Insider
pursuant to the regulations under Section 16 of the Exchange Act, the Grantee
will have executed, by a date not later than six (6) months prior to the Tax
Date, an irrevocable election to satisfy its obligations under this Section
4(f)(ii) by having the Company
5
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withholding shares of Common Stock otherwise deliverable pursuant to the
Bonus;
(B) by executing appropriate loan documents approved
by the Plan Administrator by which the Grantee borrows funds from the Company
to pay the withholding taxes due under this Section 4(f)(ii), with such
repayment terms as the Plan Administrator shall select; or
(C) by complying with any other payment mechanism
approved by the Plan Administrator from time to time.
(iii) The issuance, transfer or delivery of certificates
representing Bonus Shares may be delayed, at the discretion of the Plan
Administrator, until the Plan Administrator is satisfied that the applicable
requirements of the federal and state securities laws and the withholding
provisions of the Internal Revenue Code of 1986, as amended (or any successor
thereto) have been met.
(g) Adjustment of Bonuses; Waivers. The Plan Administrator
may adjust the restrictions, performance goals and measurements applicable to
Bonuses (i) to take into account changes in law and accounting and tax rules;
(ii) to make such adjustments as the Plan Administrator deems necessary or
appropriate to reflect the inclusion or exclusion of the impact of
extraordinary or unusual items, events or circumstances ln order to avoid
windfalls or hardships; and (iii) to make such adjustments as the Plan
Administrator deems necessary or appropriate to reflect any material changes
in business conditions. In the event of hardship or other special
circumstances of a Grantee and otherwise in its discretion, the Plan
Administrator may waive in whole or in part any or all restrictions,
conditions, vesting or forfeiture with respect to any Bonus granted to such
Grantee.
(h) Non-Competition. The Plan Administrator, in addition to
any other requirement it may impose, may condition any discretionary
adjustment or waiver pursuant to Section 4(g) upon a Grantee's agreement to
(i) not engage in any business or activity competitive with any business or
activity conducted by the Company and (ii) be available for consultation at
the request of the Company's management, on such terms and conditions as the
Plan Administrator may determine.
(i) Rights as Shareholder. A Grantee shall have no rights as
a shareholder with respect to any Bonus Shares until the issuance (as
evidenced by the appropriate entry on the books of the Company or a duly
authorized transfer agent) of a certificate representing the Bonus Shares.
Subject to Section 4(c)(ii), no adjustment shall be made for dividends or
other rights for which the record date is prior to the date the certificate
is issued.
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(j) Beneficiary Designation. The Plan Administrator, in its
discretion, may establish procedures for a Grantee to designate a beneficiary
to whom any Bonus Shares issuable or amounts payable in the event of the
Grantee's death are to be issued or paid.
(k) Transfer Limitation on Stock. In addition to any other
transfer restrictions which may be imposed under the Plan or any Bonus
Agreement, a Grantee who is an Insider may not sell or otherwise transfer, in
whole or in part, any Bonus Shares prior to the six-month anniversary of the
issuance of such Bonus Shares, unless the Plan Administrator determines that
the foregoing provisions are not necessary to make the transaction exempt
from Section 16(b) of the Exchange Act pursuant to Rule 16b-3.
5. EFFECTIVE DATE; TERM. This Plan shall be effective as of April
5, 1997. Bonuses may be granted by the Plan Administrator from time to time
thereafter until April 4, 2002 or until this Plan is terminated by the Board
in its sole discretion. Termination of this Plan shall not terminate any
bonus granted prior to such termination.
6. NO OBLIGATIONS TO ACCEPT BONUS SHARES. The grant of an Bonus
shall impose no obligation upon the Grantee to receive Bonus Shares.
7. NO RIGHT TO BONUSES OR TO EMPLOYMENT. Whether or not any
Bonuses are to be granted under this Plan shall be exclusively within the
discretion of the Plan Administrator, and nothing contained in this Plan
shall be construed as giving any person any right to participate under this
Plan. The grant of a Bonus shall ln no way constitute any form of agreement
or understanding binding on the Company or any Related Corporation, express
or implied, that the Company or any Related Corporation will employ or
contract with a Grantee for any length of time, nor shall it interfere in any
way with the Company's or, where applicable, a Related Corporation's right to
terminate a Grantee's employment at any time, which right is hereby reserved.
8. RULE 16b3-3. With respect to Insiders, transactions under this
Plan are intended to comply with the applicable conditions of Rule 16b-3. To
the extent any provision of this Plan or action by the Plan Administrator
fails to so comply, it shall be adjusted to comply with Rule 16b-3 to the
extent permitted by law and deemed advisable by the Plan Administrator. It
shall be the responsibility of Insiders and not of the Company or the Plan
Administrator, to comply with the requirements of Section 16 of the Exchange
Act; and neither the Company nor the Plan Administrator shall be liable if
this Plan or any transaction under this Plan fails to comply with the
applicable conditions of Rule 16b-3, or if any Insider incurs any lability
under Section 16 of the Exchange Act.
7
<PAGE>
9. INDEMNIFICATION OF PLAN ADMINISTRATOR. In addition to all
other rights of indemnification they may have as members of the Board,
members of the Plan Administrator shall be indemnified by the Company for all
reasonable expenses and liabilities of any type or nature, including
attorneys' fees, incurred in connection with any action, suit or proceeding
to which they or any of them are a party by reason of, or in connection with,
this Plan or any Bonus granted under this Plan, and against all amounts paid
by them in settlement thereof (provided that such settlement is approved by
independent legal counsel selected by the Company), except to the extent that
such expenses relate to matters for which it is adjudged that such Plan
Administrator member is liable for willful misconduct; provided, that within
fifteen (15) days after the institution of any such action, suit or
proceeding, the Plan Administrator member involved therein shall, in writing,
notify the Company of such action, suit or proceeding, so that the Company
may have the opportunity to make appropriate arrangements to prosecute or
defend the same.
10. AMENDMENT OF PLAN. The Plan Administrator may, at any time,
modify, amend or terminate this Plan or modify or amend Bonuses granted under
this Plan, including, without limitation, such modifications or amendments as
are necessary to maintain compliance with applicable statutes, rules or
regulations; provided, that, except to the extent otherwise provided in
Section 4(g), no amendment shall be made with respect to an outstanding Bonus
which has the effect of reducing the benefits afforded to the Grantee
thereof. The Plan Administrator may condition the effectiveness of any such
amendment on the receipt of shareholder approval at such time and in such
manner as the Plan Administrator may consider necessary for the Company to
comply with or to avail the Company and/or the Grantees of the benefits of
any securities, tax, market listing or other administrative or regulatory
requirement. Without limiting the generality of the foregoing, the Plan
Administrator may modify grants to persons who are eligible to receive
Bonuses under this Plan who are foreign nationals or employed outside the
United States to recognize differences in local law, tax policy or custom.
11. UNFUNDED STATUS OF PLAN. The Plan shall constitute an
"unfunded" plan for incentive compensation. The Plan Administrator may
authorize the creation of trusts or arrangements to meet the obligations
created under the Plan to deliver Stock or make payments; provided, that
unless the Plan Administrator otherwise determines, the existence of such
trusts or other arrangements shall be consistent with the "unfunded" status
of the Plan.
8
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
BONUS SHARES AGREEMENT
(RESTRICTED BONUS SHARES)
THIS AGREEMENT, made as of this _____ day of _________, 1997 by
PETROLEUM HEAT AND POWER CO., INC., a Minnesota Corporation (hereinafter called
the "Company"), with _______________________________________________
(hereinafter call the "Grantee"):
The Company has adopted a 1997 Stock Bonus Plan (the "Plan"). Said
Plan, as it may hereafter be amended and continued, is incorporated herein by
reference and made part of this Agreement. Capitalized terms which are used
herein without definition shall have the meanings ascribed to them in the
Plan.
The Plan Administrator, which is charged with the administration of
the Plan pursuant to Section 2 thereof, has determined that it would be to
the advantage and interest of the Company to grant the Bonus Shares provided
for herein to the Grantee as an inducement to remain in the service of the
Company or one of its subsidiaries, and as an incentive for increased efforts
during such service.
NOW, THEREFORE, pursuant to the Plan, the Company with the approval
of the Plan Administrator hereby grants to the Grantee as of the date hereof
(subject to the restrictions set forth herein) _______ shares of Class A
Common Stock of the Company, par value $0.10 per share (the "Restricted Bonus
Shares"), upon the following terms and conditions:
1. Restriction Period. The Grantee shall not be permitted to
sell, assign, transfer, pledge or otherwise encumber (collectively, the
"Restrictions") Restricted Bonus Shares prior to three years from the date of
grant (the "Restriction Period"). Upon the expiration of the Restriction
Period, the Restrictions on the Restricted Bonus Shares shall lapse and
thereafter such Shares shall be deemed to be fully vested Bonus Shares.
2. Termination. In the event the Grantee ceases to be, for any
reason, an Employee (such event a "Termination") during the Restriction
Period, all Restricted Bonus Shares then subject to Restrictions shall be
forfeited by the Grantee.
3. Status of Restricted Bonus Shares. The Company shall not issue
stock certificates for the Restricted Bonus Shares until the lapse of all
Restrictions thereon. The Company shall deliver the share certificate(s) to
the Grantee only following the receipt of written certification from the Plan
Administrator that the Restriction Period relating to the Restricted Bonus
Shares has expired. The Grantee shall have no right to receive dividends or
<PAGE>
other distributions with respect to, to vote, or to otherwise exercise any
ownership rights with respect to such Restricted Bonus Shares until the lapse
of all such Restrictions or the acceleration or waiving of such Restrictions
by the Plan Administrator.
4. Securities Regulation and Tax Withholding.
(i) Bonus Shares shall not be issued with respect to a Bonus
unless the grant of such Bonus and the issuance and delivery of such Bonus
Shares shall comply with all relevant provisions of law, including, without
limitation, any applicable state securities laws, the Securities Act of 1933,
as amended, the Exchange Act, the rules and regulations thereunder and the
requirements of any stock exchange or quotation system upon which the Common
Stock may then be listed or quoted, and such issuance shall be further
subject to the approval of counsel for the Company with respect to such
compliance, including the availability of an exemption from registration for
the issuance of such Bonus Shares. The inability of the Company to obtain
from any regulatory body the authority deemed by the Company to be necessary
for the lawful issuance of any Bonus Shares under this Plan, or the
unavailability of an exemption from registration for the issuance of any
Bonus Shares under this Plan, shall relieve the Company of any liability with
respect to the non-issuance of such Bonus Shares.
(ii) The Grantee shall pay to the Company by certified or
cashier's check, promptly upon grant of a Bonus or, if later, the date that
the amount of such obligations becomes determinable (in either case, the "Tax
Date"), all applicable federal, state, local and foreign withholding taxes
that the Plan Administrator, in its discretion, determines result upon grant
of a Bonus, lapse of Restrictions on transfer of Restricted Bonus Shares,
transfer or other disposition of Bonus Shares or otherwise relate to a Bonus
or Bonus Shares. Upon approval of the Plan Administrator, a Grantee may
satisfy such obligation by complying with one or more of the following
alternatives selected by the Plan Administrator:
(A) by delivering to the Company shares of Common Stock
previously held by such Grantee or by the Company withholding Bonus Shares
otherwise issuable pursuant to the Bonus, which have a fair market value at
the Tax Date (as determined by the Plan Administrator) equal to the tax
obligation to be paid by the Grantee on such Tax Date; provided, that if the
Grantee is subject to Section 16(b) of the Exchange Act (an "Insider") or if
beneficial ownership of Bonus Shares is attributable to an Insider pursuant
to the regulations under Section 16 of the Exchange Act, the Grantee will
have executed, by a date not later than six (6) months prior to the Tax Date,
an irrevocable election to satisfy its obligations under this Section by
having the Company withholding shares of Common Stock otherwise deliverable
pursuant to the Bonus; or
2
<PAGE>
(B) by complying with any other payment mechanism
approved by the Plan Administrator from time to time.
(iii) The issuance, transfer or delivery of certificates
representing Bonus Shares may be delayed, at the discretion of the Plan
Administrator, until the Plan Administrator is satisfied that the applicable
requirements of the federal and state securities laws and the withholding
provisions of the Internal Revenue Code of 1986, as amended (or any successor
thereto) have been met.
5. Rights as Shareholder. A Grantee shall have no rights as a
shareholder with respect to any Bonus Shares until the issuance (as evidenced
by the appropriate entry on the books of the Company or a duly authorized
transfer agent) of a certificate representing the Bonus Shares. No
adjustment shall be made for dividends or other rights for which the record
date is prior to the date the certificate is issued.
6. Invalid Transfers. In the event of any attempt by the Grantee
to transfer, assign, pledge, hypothecate or otherwise dispose of any
Restricted Bonus Shares or of any right hereunder, except as provided for
herein, or in the event of the levy or any attachment, execution or similar
process upon the rights or interest hereby conferred, the Company may
terminate this Grant by notice to the Grantee and it shall thereupon become
null and void.
7. Notices. Any notice to the Company provided for in this
Agreement shall be addressed to the Company in care of its Secretary, 2187
Atlantic Street, Stamford, Connecticut 06902 and any notice to the Grantee
shall be addressed to him at his address now on file with the Company, or to
such other address as either may last have designated to the other by notice
as provided herein. Any notice so addressed shall be deemed to be given on
the second business day after mailing, by registered or certified mail, at a
post office or branch post office within the United States.
8. Controversies. In the event that any question or controversy
shall arise with respect to the nature, scope or extent of any one or more
rights conferred by this Grant, the determination by the Plan Administrator
(as constituted at the time
3
<PAGE>
of such determination) of the rights of the Grantee shall be conclusive,
final and binding upon the Grantee and upon any other person who shall assert
any right pursuant to this Grant.
9. Merger. Any provision to the contrary notwithstanding, all
restrictions shall lapse and all Restricted Bonus Shares shall vest and be
immediately issued to the Grantee at such time as the shareholders of the
Company approve (i) any transaction involving the merger or consolidation of
the Company with or into any other corporation except if this Company is the
surviving corporation or (ii) the sale of all or substantially all of the
assets of the Company in a single transaction or a related series of
transactions.
PETROLEUM HEAT AND POWER CO.,
INC.
By:_______________________________
Name:
Title:
ACCEPTED AND AGREED
________________________
Grantee
4
<PAGE>
PETROLEUM HEAT AND POWER CO., INC.
BONUS SHARES AGREEMENT
(UNRESTRICTED BONUS SHARES)
THIS AGREEMENT, made as of this _____ day of _________, 1997 by
PETROLEUM HEAT AND POWER CO., INC., a Minnesota Corporation (hereinafter called
the "Company"), with __________________________________________ (hereinafter
call the "Grantee"):
The Company has adopted a 1997 Stock Bonus Plan (the "Plan"). Said
Plan, as it may hereafter be amended and continued, is incorporated herein by
reference and made part of this Agreement. Capitalized terms which are used
herein without definition shall have the meanings ascribed to them in the
Plan.
The Plan Administrator, which is charged with the administration of
the Plan pursuant to Section 2 thereof, has determined that it would be to
the advantage and interest of the Company to grant the Bonus Shares provided
for herein to the Grantee as an inducement to remain in the service of the
Company or one of its subsidiaries, and as an incentive for increased efforts
during such service.
NOW, THEREFORE, pursuant to the Plan, the Company with the approval
of the Plan Administrator hereby grants to the Grantee as of the date hereof
_______ shares of Class A Common Stock of the Company, par value $0.10 per
share (the "Bonus Shares"), upon the following terms and conditions:
1. Issuance of Bonus Shares. Subject to Section 2 below, the
Chief Financial Officer or General Counsel for the Company (the
"Administrative Executive") shall deliver share certificate(s) representing
the Bonus Shares to the Grantee promptly following the date of Grant.
2. Securities Regulation and Tax Withholding.
(i) Bonus Shares shall not be issued with respect to a Bonus
unless the grant of such Bonus and the issuance and delivery of such Bonus
Shares shall comply with all relevant provisions of law, including, without
limitation, any applicable state securities laws, the Securities Act of 1933,
as amended, the Exchange Act, the rules and regulations thereunder and the
requirements of any stock exchange or quotation system upon which the Common
Stock may then be listed or quoted, and such issuance shall be further
subject to the approval of counsel for the Company with respect to such
compliance, including the availability of an exemption from registration for
the issuance of such Bonus Shares. The inability of the Company to obtain
from any regulatory body the authority deemed by the Company to be necessary
for the lawful
<PAGE>
issuance of any Bonus Shares under this Plan, or the unavailability of an
exemption from registration for the issuance of any Bonus Shares under this
Plan, shall relieve the Company of any liability with respect to the
non-issuance of such Bonus Shares.
(ii) The Grantee shall pay to the Company by certified or
cashier's check, promptly upon grant of a Bonus or, if later, the date that
the amount of such obligations becomes determinable (in either case, the "Tax
Date"), all applicable federal, state, local and foreign withholding taxes
that the Plan Administrator, in its discretion, determines result upon grant
of a Bonus, lapse of Restrictions on transfer of Restricted Bonus Shares,
transfer or other disposition of Bonus Shares or otherwise relate to a Bonus
or Bonus Shares. Upon approval of the Plan Administrator, a Grantee may
satisfy such obligation by complying with one or more of the following
alternatives selected by the Plan Administrator:
(A) by delivering to the Company shares of Common Stock
previously held by such Grantee or by the Company withholding Bonus Shares
otherwise issuable pursuant to the Bonus, which have a fair market value at
the Tax Date (as determined by the Plan Administrator) equal to the tax
obligation to be paid by the Grantee on such Tax Date; provided, that if the
Grantee is subject to Section 16(b) of the Exchange Act (an "Insider") or if
beneficial ownership of Bonus Shares is attributable to an Insider pursuant
to the regulations under Section 16 of the Exchange Act, the Grantee will
have executed, by a date not later than six (6) months prior to the Tax Date,
an irrevocable election to satisfy its obligations under this Section by
having the Company withholding shares of Common Stock otherwise deliverable
pursuant to the Bonus; or
(B) by complying with any other payment mechanism
approved by the Plan Administrator from time to time.
(iii) The issuance, transfer or delivery of certificates
representing Bonus Shares may be delayed, at the discretion of the Plan
Administrator, until the Plan Administrator is satisfied that the applicable
requirements of the federal and state securities laws and the withholding
provisions of the Internal Revenue Code of 1986, as amended (or any successor
thereto) have been met.
3. Rights as Shareholder. A Grantee shall have no rights as a
shareholder with respect to any Bonus Shares until the issuance (as evidenced
by the appropriate entry on the books of the Company or a duly authorized
transfer agent) of a certificate representing the Bonus Shares. No
adjustment shall be made for dividends or other rights for which the record
date is prior to the date the certificate is issued.
2
<PAGE>
4. Notices. Any notice to the Company provided for in this
Agreement shall be addressed to the Company in care of its Secretary, 2187
Atlantic Street, Stamford, Connecticut 06902 and any notice to the Grantee
shall be addressed to him at his address now on file with the Company, or to
such other address as either may last have designated to the other by notice
as provided herein. Any notice so addressed shall be deemed to be given on
the second business day after mailing, by registered or certified mail, at a
post office or branch post office within the United States.
5. Controversies. In the event that any question or controversy
shall arise with respect to the nature, scope or extent of any one or more
rights conferred by this Grant, the determination by the Plan Administrator
(as constituted at the time of such determination) of the rights of the
Grantee shall be conclusive, final and binding upon the Grantee and upon any
other person who shall assert any right pursuant to this Grant.
PETROLEUM HEAT AND POWER CO.,
INC.
By:_____________________________
Name:
Title:
ACCEPTED AND AGREED
________________________
Grantee
3
<PAGE>
Exhibit 23.1
------------
To the Board of Directors
of Petroleum Heat and Power Co., Inc.
We consent to incorporation by reference in the registration statement on form
S-8 of Petroleum heat and Power Co., Inc. and subsidiaries of our report dated
March 3, 1997, relating to the consolidated balance sheets of Petroleum heat and
power Co.,Inc. and subsidiaries as of December 31, 1995 and 1996, and the
related consolidated statements of operations, stockholders' equity (deficiency)
and cash flows for each of the years in the three-year period ended December 31,
1996, and the related schedule, which report appears in the December 31, 1996,
annual report on Form 10-K, as amended, of Petroleum Heat and Power Co., Inc.
/s/ KPMG Peat Marwick LLP
Stamford, CT
June 27, 1997
