As filed with the Securities and Exchange Commission on March 20, 1997
Registration No. 333-__________*
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
------------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PENNSYLVANIA ENTERPRISES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 23-1920170
--------------------------------- ------------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
One PEI Center
Wilkes-Barre, Pennsylvania 18711-0601
---------------------------------------
(Address of registrant's principal
executive offices)
1992 Stock Option Plan
----------------------
(Full title of the Plan)
Thomas J. Ward, Secretary Copy to:
Pennsylvania Enterprises, Inc. Garett J. Albert, Esq.
One PEI Center Hughes Hubbard & Reed LLP
Wilkes-Barre, Pennsylvania One Battery Park Plaza
18711-0601 New York, New York 10004
(717) 829-8812
(Name and address and telephone number
of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
- --------------------------------------------------------------------------------
Proposed
Proposed maximum
Amount maximum aggregate Amount of
Title of Shares to be offering price offering registration
to be registered registered per unit** price** fee
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par 190,600 shares $19,8165 $3,777,025 $1,144.55
value, stated value
$5 per share
- --------------------------------------------------------------------------------
</TABLE>
- ----------
* On March 20, 1997, the Registrant effected a two-for-one stock split with
respect to its Common Stock, no par value, stated value $10 per share
("Prior Common Stock"). Through March 19, 1997, a total of 24,400 shares of
Prior Common Stock had been issued under the Plan. The Registrant has on
file with the Securities and Exchange Commission Registration Statement No.
33-62892 which relates to the issuance of 200,000 shares of the
Registrant's Prior Common Stock under the Registrant's 1992 Stock Option
Plan and Registration Statement No. 333-12827, which relates to the
issuance of 15,000 shares of the Registrant's Prior Common Stock under the
Registrant's 1992 Stock Option Plan. Pursuant to Rule 429 under the
Securities Act of 1933, as amended, the documents that are deemed to
constitute the prospectus under this Registration Statement will also be
used in connection with securities covered by such earlier registration
statement.
** Calculated with respect to 190,200 of the shares of Common Stock for which
options have been issued pursuant to Rule 457(h)(1) of the Securities Act
of 1933, as amended, based on the prices at which the options with respect
to these shares may be exercised and calculated with respect to 400 of the
shares of Common Stock for which options have not been issued pursuant to
Rule 457(c) of the Securities Act of 1993, as amended, based on the average
of the high and low prices for Prior Common Stock reported on the New York
Stock Exchange on March 14, 1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATMENT
Item 3. Incorporation of Documents by Reference
---------------------------------------
Pennsylvania Enterprises, Inc., ("the Company") hereby incorporates
by reference in this Registration Statement the following documents and
information heretofore filed with the Commission under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") (File No.
0-7812):
(a) The Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996; and
(b) The description of the Company's Common Stock contained in the
Company's registration statements on Form 8-A therefor filed under Section
12 of the Exchange Act, including any amendment or report filed for the
purpose of updating such description.
All documents filed by the Company pursuant to Section 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates 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 respective dates 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
-----------------------------------------
Sections 1741 through 1750 of Subchapter D of Chapter 17 of the PBCL
contain, among other things, provisions for mandatory and discretionary
indemnification of a corporation's directors, officers and other personnel.
Under Section 1741, unless otherwise limited by its by-laws, a
corporation has the power to indemnify directors and officers under certain
prescribed circumstances against expenses (including attorney's fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation), to which any of them is a party or
<PAGE>
threatened to be made a party by reason of his being a representative, director
or officer of the corporation or serving at the request of the corporation as a
representative of another domestic or foreign corporation for profit or
not-for-profit, partnership, joint venture, trust or other enterprise, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation and, with respect to any
criminal proceeding, had no reasonable cause to believe his conduct was
unlawful. The termination of any action or proceeding by judgment, order,
settlement or conviction or upon a plea of nolo contendere or its equivalent
does not of itself create a presumption that the person did not act in good
faith and in a manner that he reasonably believed to be in, or not opposed to,
the best interests of the corporation and, with respect to any criminal
proceeding, had reasonable cause to believe that his conduct was unlawful.
Section 1742 provides for indemnification with respect to derivative
and corporate actions similar to that provided by Section 1741. However,
indemnification is not provided under Section 1742 with respect to any claim,
issue or matter as to which a director or officer has been adjudged to be liable
to the corporation unless and only to the extent that the proper court
determines upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, a director or officer is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
Section 1743 provides that indemnification against expenses is
mandatory to the extent that the director or officer has been successful on the
merits or otherwise in defense of any such action or proceeding referred to in
Section 1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of
directors and officers is proper because the director or officer met the
applicable standard of conduct, and such determination will be made by the board
of directors by a majority vote of a quorum of directors not parties to the
action or proceeding; if a quorum is not obtainable or if obtainable and a
majority of disinterested directors so directs, by independent legal counsel or
by the shareholders.
Section 1745 provides that expenses incurred by a director or
officer in defending any action or proceeding referred to in the Subchapter may
be paid by the corporation in advance of the final disposition of such action or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the corporation.
Section 1746 provides generally that except in any case where 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, the
indemnification and advancement of expenses provided by the Subchapter shall not
be deemed exclusive of any other rights to which a director or officer seeking
indemnification or advancement of expenses may be entitled under any by-law,
agreement, vote of shareholders or disinterested directors or otherwise, both as
to action in his official capacity and as to action in another capacity while
holding that office.
Section 1747 also grants a corporation the power to purchase and
maintain insurance on behalf of any director or officer against any liability
<PAGE>
incurred by him in his capacity as officer or director, whether or not the
corporation would have the power to indemnify him against the liability under
this Subchapter of the PBCL.
Sections 1748 and 1749 apply the indemnification and advancement of
expenses provisions contained in the Subchapter to successor corporations
resulting from consolidation, merger or division and to service as a
representative of such corporations or of employee benefit plans.
Section 1750 provides that the indemnification and advancement of
expenses granted pursuant to this Subchapter, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
representative of the corporation and shall inure to the benefit of the heirs
and personal representatives of that person.
Article II, Section 15 of the Company's By-Laws, provides that to
the fullest extent that the PBCL permits elimination or limitation of the
liability of directors, no director shall be personally liable for monetary
damages as such for any action taken, or any failure to take any action, as a
director.
Article VII, Section 1 of the Company's By-Laws provides that the
Company shall indemnify its directors and officers to the fullest extent
permitted by the PBCL. Persons who are not directors or officers of the Company
may be similarly indemnified in respect of service to the Company or to another
such entity at the request of the Company to the extent the Board of Directors
at any time designates such person as being entitled to the benefits of such
indemnity.
The Company has purchased director and officer liability insurance
for its directors and officers.
Item 7. Exemption from Registration Claimed
-----------------------------------
Not applicable.
Item 8. Exhibits
--------
The following exhibits are filed herewith or incorporated by
reference. The reference numbers correspond to the numbered paragraphs of Item
601 of Regulation S-K.
<TABLE>
<S> <C>
4-1 Restated Articles of Incorporation of the Company, as amended.
4-2 By-Laws of the Company, as amended and restated -- filed as Exhibit
3-2 to the Company's Annual Report on Form 10-K for 1994, File No.
0-7812.
4-3 Rights Agreement dated as of April 26, 1995 between the Company and
Chemical Bank, as Rights Agent -- filed as Exhibit 4-1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended March
31, 1995, File No. 0-7812.
5-1 Opinion of Moses & Gelso, L.L.P. as to the legality of the securities
being registered.
<PAGE>
23-1 Consent of Moses & Gelso, L.L.P. (included in Exhibit 5-1).
23-2 Consent of Arthur Andersen LLP
</TABLE>
Item 9. Undertakings
------------
(a) The 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:
(i) To include any prospectus required by section 10(a)(3)
of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
in the information set forth in the Registration Statement;
(iii) 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;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the Registration Statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement.
(2) 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.
(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 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.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 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 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, 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.
<PAGE>
SIGNATURES
The Registrant. 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 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 Wilkes-Barre, Commonwealth of Pennsylvania, on
the 20th day of March, 1997.
PENNSYLVANIA ENTERPRISES, INC.
By: /s/ John F. Kell, Jr.
----------------------------------
(John F. Kell, Jr.) Vice
President, Financial Services
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:
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
(i) Principal Executive Officer:
/s/ Thomas F. Karam President, Chief March 20, 1997
------------------------- Executive Officer and
(Thomas F. Karam) Director
(ii) Principal Financial and Accounting Officer:
/s/ John F. Kell, Jr. Vice President, March 20, 1997
------------------------- Financial Services
(John F. Kell, Jr.)
(iii) A Majority of the Board of Directors:
/s/ Kenneth L. Pollock Chairman of the March 20, 1997
------------------------- Board of Directors
(Kenneth L. Pollock)
/s/ William D. Davis Vice Chairman of the March 20, 1997
------------------------- Board of Directors
(William D. Davis)
/s/ Robert J. Keating Director March 20, 1997
-------------------------
(Robert J. Keating)
<PAGE>
/s/ James A. Ross Director March 20, 1997
-------------------------
(James A. Ross)
/s/ John D. McCarthy Director March 20, 1997
-------------------------
(John D. McCarthy)
/s/ Ronald W. Simms Director March 20, 1997
-------------------------
(Ronald W. Simms)
/s/ Kenneth M. Pollock Director March 20, 1997
-------------------------
(Kenneth M. Pollock)
/s/ Paul R. Freeman Director March 20, 1997
-------------------------
(Paul R. Freeman)
/s/ John D. McCarthy, Jr. Director March 20, 1997
-------------------------
(John D. McCarthy, Jr.)
/s/ Richard A. Rose, Jr. Director March 20, 1997
-------------------------
(Richard A. Rose, Jr.)
</TABLE>
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Sequentially
Number Description Numbered Page
<S> <C> <C>
4-1 Restated Articles of Incorporation of the
Company, as amended.
4-2 By-Laws of the Company, as amended and
restated -- filed as Exhibit 3-2 of the
Company's Annual Report on Form 10-K for
1994, File No. 0-7812.
4-3 Rights Agreement dated as of April 26, 1995
between the Company and Chemical Bank, as
Rights Agent -- filed as Exhibit 4-1 to the
Company's Quarterly Report on Form 10-Q for
the quarter ended March 31, 1995, File No.
0-7812.
5-1 Opinion of Moses & Gelso, L.L.P. as to the
legality of the securities being registered
23-1 Consent of Moses & Gelso, L.L.P. (included
in Exhibit 5-1)
23-2 Consent of Arthur Andersen LLP
</TABLE>
3-1-74.22 1306
----
Articles Commonwealth of Pennsylvania
of Department of State
Amendment Corporation Bureau
- --------------------------------------------------------------------------------
In compliance with the requirements of Article VIII of the Business
Corporation Law approved the 5th day of May, 1933, P.L. 364, as amended, the
applicant desiring to amend its Articles hereby certifies, under its corporate
seal that:
1. The name of the corporation is:
Pennsylvania Enterprises, Inc.
- --------------------------------------------------------------------------------
2. The location of its registered office is:
30 North Franklin Street, Wilkes-Barre, Pennsylvania 18711
- --------------------------------------------------------------------------------
3. The corporation was formed under the Act of: May 5, 1933, P.L. 364,
as amended
4. Its date of incorporation is: February 6, 1974
5. (Strike out (a) or (b) below, whichever is not applicable)
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxxxxxxxxxxxxxxxxxxxx
xxxxxxx
xxxxxxxxxxxxxxxxx
(b) The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of the shareholders:
(a) The total number of shares outstanding was: 3
(b) The number of shares entitled to vote was:* 3
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendment was:** 3
(b) The number of shares voted against the amendment was:** 0
* If the shares of any class were entitled to vote as a class, the number of
shares of each class so entitled and the number of shares of all other
classes entitled to vote should be set forth.
** If the shares of any class were entitled to vote as a class, the number of
shares of such class and the number of shares of all other classes voted
for and against such amendment respectively should be set forth.
NOTE:If the effect of the amendment is to increase the authorized capital stock
of the corporation, excise tax at the rate of 1/5 of 1% on the amount of
increase will be due and payable with the filing of the amendment.
NOTE:Filing fee - $30.00 (in addition to any amount of excise tax due and owing)
<PAGE>
3-1-74.22 1307
----
8. The amendment adopted by the shareholders, set forth in full, follows:
RESOLVED, that the Articles of Incorporation be amended and restated
to read in their entirety as they appear in Schedule I attached hereto.
IN TESTIMONY WHEREOF, the applicant has caused these Articles of Amendment
to be signed by its President or Vice President and its corporate seal, duly
attested by its Secretary or Treasurer, to be hereunto affixed this 31st day of
May , 1974.
PENNSYLVANIA ENTERPRISES, INC.
---------------------------------
(SIGNATURE)
/s/ David F. Hansen
---------------------------------
(PRESIDENT, XXXXXXXXXX)
Attest:
Original Signed
---------------------
(Secretary, XXXXXXXX)
(CORPORATE)
( SEAL )
Approved and filed in the Department of State on the 7th day of June A.D. 1974.
Original Signed
----------------------------
Secretary of the Corporation
<PAGE>
3-1-74.22 1308
----
SCHEDULE I
RESTATED ARTICLES OF INCORPORATION
OF
PENNSYLVANIA ENTERPRISES, INC.
1. The name of the corporation is Pennsylvania Enterprises, Inc.
2. The location and post office address of the registered office of the
corporation in this Commonwealth is 30 North Franklin Street, Wilkes-Barre,
Pennsylvania 18711.
3. The corporation is incorporated under the Business Corporation Law of
the Commonwealth of Pennsylvania for the following purpose or purposes:
To acquire, purchase, sell, trade, hypothecate, pledge, deal in and
hold its own securities and securities of other corporations;
To purchase, hold, own, take over, maintain, develop, sell, convey,
lease, mortgage, exchange, improve and deal in real and personal property
or any interest therein;
The corporation which is incorporated under the provisions of the
Business Corporation Law shall have unlimited power to engage in and to do
any lawful act concerning any and all lawful business for which
corporations may be incorporated under the provisions of the Business
Corporation Law.
4. The term for which the corporation is to exist is perpetual.
5. The aggregate number of shares which the corporation shall have
authority to issue is 5,000,000 shares of Common Stock without nominal or par
value, with a stated value of $10.00 per share.
6. Each holder of shares of the Common Stock has, upon the authorization of
the sale for a consideration in cash to be received by the corporation of any
Common Stock or of any bonds, debentures, notes or other securities convertible
by their terms into Common Stock, or to which shall be attached or appertain any
warrant or warrants, or other instrument or instruments, which shall confer upon
the holder or owner the right to subscribe for or purchase from the corporation
any shares of its Common Stock, the right to purchase, pro rata, such unissued
Common Stock, or convertible securities, warrants or other instruments as above
set forth at the price, upon the terms and under such rules and regulations as
may be fixed by the Board of Directors of the corporation.
7. Every record holder of outstanding shares of the Common Stock shall, at
all meetings of stockholders of the corporation, have one vote for each share of
the Common Stock held by him, except as may otherwise be provided by law.
<PAGE>
8. In all elections for directors each stockholder may cast the whole
number of his votes for one candidate or distribute them upon two or more
candidates, as he may prefer.
9. The corporation reserves the right to increase or decrease its
authorized capital stock, or any class or series thereof, or to reclassify the
same, and to amend, alter, change or repeal any provision contained in these
Articles, or in any amendment thereto, in the manner now or hereafter prescribed
by law, but subject to such conditions and limitations as are above prescribed,
and all rights conferred upon stockholders in these Articles, or in any
amendment thereto, are granted subject to this reservation.
10. Subject to the provisions of Section 6 hereof, the corporation may from
time to time issue and dispose of its shares of Common Stock without nominal or
par value, for such consideration payable in money, property or otherwise, and
upon such terms and in such manner, or as dividends payable therein, as may be
fixed or determined from time to time by the Board of Directors, and authority
is hereby granted to the Board of Directors so to fix and determine such
consideration, terms and manner.
11. The Board of Directors, by a majority vote of its members, shall have
the power to make, alter, amend, and repeal the by-laws of the corporation not
inconsistent with its Articles or with law, subject always to the power of the
shareholders to change such action.
<PAGE>
3-1-75:15 766
------------------------
(Line for Numbering)
APPLICANTS ACC'T NO. Filed this 15th day of May , 1975
DSCB. BCL-307 (Rev. 8-72) Commonwealth of Pennsylvania
Department of State
Filing Fee: $40
AS-2 /s/ C. DeLares Tucker
Statement of Secretary of the Commonwealth jlw
Change of Registered (Box for Certification)
Office-Domestic
Business Corporation
COMMONWEALTH OF PENNSYLVANIA
DEPARTMENT OF STATE
CORPORATION BUREAU
In compliance with the requirements of section 307 of the Business
Corporation Law, act of May 5, 1933 (P. L. 364) (15 P.S. ss. 1307) the
undersigned corporation, desiring to effect a change in registered office, does
hereby certify that:
1. The name of the corporation is:
Pennsylvania Enterprises, Inc.
- --------------------------------------------------------------------------------
2. The address of its present registered office in this Commonwealth is
(the Department of State is hereby authorized to correct the following statement
to conform to the records of the Department):
30 North Franklin Street
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Wilkes-Barre Pennsylvania 18711
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The address to which the registered office in this Commonwealth is to be
changed is:
Wilkes-Barre Center 39 Public Square
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Wilkes-Barre Luzerne County Pennsylvania 18711
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
4. Such change was authorized by resolution duly adopted by at least a
majority of the members of the board of directors of the corporation.
IN TESTIMONY WHEREOF, the undersigned corporation has caused this statement
to be signed by a duly authorized officer, and its corporate seal, duly attested
by another such officer, to be hereunto affixed, this 1st day of May , 1975.
Pennsylvania Enterprises, Inc.
---------------------------------------------
(NAME OF CORPORATION)
By: /s/ David F. Hansen
---------------------------------------
(SIGNATURE)
President
----------------------------------------
(TITLE: PRESIDENT, VICE PRESIDENT, ETC.)
<PAGE>
Attest:
/s/ Robert Anthony
- ----------------------------
(SIGNATURE)
Secretary
- ----------------------------
(TITLE: SECRETARY, ASSISTANT
SECRETARY, ETC.)
(CORPORATE SEAL)
<PAGE>
85471013
-----------------
APPLICANTS ACC'T NO. Filed this ________ day of ______
DSCB BCL-806 (Rev. 8-72) JUN 26 1985 , A.D. 19__
Commonwealth of Pennsylvania
Filing Fee: $40 Department of State
AS-2
Secretary of the Commonwealth
Articles of COMMONWEALTH OF PENNSYLVANIA
Amendment DEPARTMENT OF STATE
Domestic CORPORATION BUREAU
Business Corporation
In compliance with the requirements of section 806 of the Business
Corporation Law, act of May 5, 1933 (P. L. 364) (15 P.S. ss. 1806), the
undersigned corporation, desiring to amend its Articles, does hereby certify
that:
1. The name of the corporation is:
Pennsylvania Enterprises, Inc.
- --------------------------------------------------------------------------------
2. The location of its registered office in this Commonwealth is (the
Department of State is hereby authorized to correct the following statement to
conform to the records of the Department):
Wilkes-Barre Center 39 Public Square
- --------------------------------------------------------------------------------
(NUMBER) (STREET)
Wilkes-Barre, Luzerne County Pennsylvania 18711
- --------------------------------------------------------------------------------
(CITY) (ZIP CODE)
3. The statute by or under which it was incorporated is:
Act of May 5, 1933 P. L. 364 as amended
- --------------------------------------------------------------------------------
4. The date of its incorporation is: February 6, 1974
-----------------------------------------
5. (Check, and if appropriate, complete one of the following):
[x] The meeting of the shareholders of the corporation at which the
amendment was adopted was held at the time and place and pursuant to the kind
and period of notice herein stated.
Time: The 5th day of June , 1985.
--- ---- --
Place: Saint Mary's Center, 320 Mifflin Avenue, Scranton, Pennsylvania.
-------------------------------------------------------------------
Kind and period of notice Written notice together with proxy statement
------------------------------------------------
mailed on May 3, 1985 to all shareholders of record on April 16, 1985.
- --------------------------------------------------------------------------------
[ ] The amendment was adopted by a consent in writing, setting forth the
action so taken, signed by all of the shareholders entitled to vote thereon and
filed with the Secretary of the corporation.
6. At the time of the action of shareholders:
(a) The total number of shares outstanding was:
2,655,341 shares, Common
- --------------------------------------------------------------------------------
<PAGE>
(b) The number of shares entitled to vote was:
2,655,341 shares, Common
- --------------------------------------------------------------------------------
7. In the action taken by the shareholders:
(a) The number of shares voted in favor of the amendments were:
2,108,480 shares in favor of adding Section 12 and amending Section 9
- --------------------------------------------------------------------------------
and 2,052,589 shares in favor of amending Section 8.
--------------
(b) The number of shares voted against the amendments were:
55,467 shares against adding Section 12 and amending Section 9 and
- --------------------------------------------------------------------------------
104,263 shares against amending Section 8.
--------------
8. The amendments adopted by the shareholders, set forth in full, are as
follows:
See Attachment.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer and its
corporate seal, duly attested by another such officer, to be hereunto affixed
this day of June 21 , 1985.
----------- --
Pennsylvania Enterprises, Inc.
----------------------------------------
(NAME OF CORPORATION)
By: /s/ J. Glenn Gooch
----------------------------------------
(SIGNATURE)
President
----------------------------------------
(TITLE: PRESIDENT, VICE PRESIDENT, ETC.)
Attest:
/s/ Robert Anthony
- -----------------------------
(SIGNATURE)
Secretary
- -----------------------------
(TITLE: SECRETARY, ASSISTANT
SECRETARY, ETC.)
(CORPORATE SEAL)
INSTRUCTIONS FOR COMPLETION OF FORM:
A. Any necessary copies of Form DSCB:17.2 (Consent to Appropriation of
Name) or Form DSCB:17.3 (Consent to Use of Similar Name) shall
accompany Articles of Amendment effecting a change of name.
<PAGE>
B. Any necessary governmental approvals shall accompany this form.
C. Where action is taken by partial written consent pursuant to the
Articles, the second alternate of Paragraph 5 should be modified
accordingly.
D. If the shares of any class were entitled to vote as a class, the
number of shares of each class so entitled and the number of shares of
all other classes entitled to vote should be set forth in Paragraph
6(b).
E. If the shares of any class were entitled to vote as a class, the
number of shares of such class and the number of shares of all other
classes voted for and against such amendment respectively should be
set forth in Paragraphs 7(a) and 7(b).
F. BCL ss.807 (15 P. S. ss.1807) requires that the corporation shall
advertise its intention to file or the filing of Articles of
Amendment. Proofs of publication of such advertising should not be
delivered to the Department, but should be filed with the minutes of
the corporation.
<PAGE>
PENNSYLVANIA ENTERPRISES, INC.
Articles of Amendment
Attachment
8. The amendments adopted by the shareholders, set forth in full, are as
follows:
A new Section 12 shall be added which reads in its entirety as follows:
"12. In addition to any affirmative vote required by law or these
Articles, the affirmative vote of the holders of a majority of the
outstanding shares of "Voting Stock" (as hereinafter defined) held by
shareholders other than "Related Persons" (as hereinafter defined)
shall be required for the approval or authorization of any "Business
Combination" (as hereinafter defined) or of any series of transactions
which, if taken together, would constitute a Business Combination of
the corporation or any subsidiary with any Related Person; provided,
however, that a majority vote of shareholders other than Related
Persons shall not be required if:
(1) The "Continuing Directors" of the corporation (as hereinafter
defined) by a majority vote (a) have expressly approved in advance the
acquisition of Voting Stock of the corporation that caused the Related
Person to become a Related Person, or (b) have approved the Business
Combination; or
(2) The Business Combination is a merger or consolidation and the
cash or fair market value of the property, securities or other
consideration to be received per share by holders of Common Stock of
the corporation in the Business Combination is not less than the
highest per share price (with appropriate adjustments for
recapitalizations and for stock splits, stock dividends and like
distributions) paid by the Related Person in acquiring any of its
holdings of the corporation's Common Stock either in or subsequent to
the transaction or series of transactions in which the Related Person
became a Related Person.
Such affirmative vote shall be required notwithstanding the fact
that no vote may be required, or that a lesser percentage may be
specified, by law or in any applicable agreement with any national
securities exchange or otherwise.
For the purposes of this Section 12:
<PAGE>
(a) The term "Business Combination" shall mean (i) any merger or
consolidation of the corporation or a subsidiary with or into a
Related Person, (ii) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or any other
security device, of all or any "Substantial Part" (as hereinafter
defined) of the assets either of the corporation (including without
limitation any voting securities of a subsidiary) or of a subsidiary,
to a Related Person, (iii) any merger or consolidation of a Related
Person with or into the corporation or a subsidiary of the
corporation, (iv) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or other security
device, of all or any Substantial Part of the assets of a Related
Person to the corporation or a subsidiary of the corporation, (v) the
issuance or transfer of any securities of the corporation or a
subsidiary of the corporation to a Related Person other than the
issuance on a pro rata basis to all holders of shares of the same
class pursuant to a stock split or stock dividend, or a distribution
of warrants or rights, (vi) any reclassification of securities
(including a reverse stock split) or recapitalization that would have
the effect of increasing the voting power of a Related Person, (vii)
the adoption of any plan or proposal for the liquidation or
dissolution of the corporation proposed by or on behalf of any Related
Person, and (viii) any agreement, contract or other arrangement
providing for any of the transactions described in this definition of
Business Combination.
(b) The term "Related Person" shall mean and include any
individual, corporation, partnership or other person or entity, other
than any trustee or fiduciary when acting in such capacity with
respect to any employee benefit plan or trust of the corporation or
any of its wholly-owned subsidiaries, which, together with its
"Affiliates" and "Associates" (as defined on March 27, 1985 in Rule
12b-2 under the Securities Exchange Act of 1934), "Beneficially Owns"
(as defined on March 27, 1985 in Rules 13d-3 and 13d-5 under the
Securities Exchange Act of 1934) in the aggregate 10 percent or more
of the outstanding Voting Stock of the corporation, any Affiliate or
Associate of any such individual, corporation, partnership or other
person or entity, and any assignee of any of the foregoing. For
purposes of determining shareholders whose votes shall be excluded
pursuant to the first paragraph of this Section 12, the term "Related
Person" (i) shall include any shareholder acting jointly or in concert
with a Related Person in connection with a Business Combination and
any Shareholder who will be treated differently than other
shareholders in any Business Combination (other than a shareholder who
is entitled to the rights of a dissenting shareholder under applicable
law), (ii) but shall exclude a Related Person who (x) is not the
Related Person who is a party to the Business combination being voted
upon, and (y) is not a shareholder described in clause (i) of this
sentence.
(c) The term "Substantial Part" shall mean more than 30 percent
of the fair market value as determined by a majority of the Continuing
Directors of the total consolidated assets of the corporation in
question and its subsidiaries taken as a whole, as of the end of its
most recent fiscal year ending prior to the time the determination is
being made.
<PAGE>
(d) Without limitation, any shares of Voting Stock of the
corporation that any Related Person has the right to acquire pursuant
to any agreement, or upon exercise of conversion rights, warrants or
options, or otherwise, shall be deemed beneficially owned by the
Related Person.
(e) For the purposes of section (2) of this Section 12, the term
"other consideration to be received" shall include, without
limitation, Common Stock of the corporation retained by its existing
public stockholders in the event of a Business Combination in which
the corporation is the surviving corporation.
(f) The term "Voting Stock" shall mean all outstanding shares of
capital stock of the corporation or another corporation entitled to
vote generally in the election of directors; and each reference to a
proportion of shares of Voting Stock shall refer to such proportion of
the votes entitled to be cast by such shares.
(g) The term "Continuing Director" shall mean a director who
either (i) was a member of the Board of Directors of the corporation
immediately prior to the time that the Related Person involved in a
Business Combination became a Related Person or (ii) was designated
(before his or her initial election as director) as a Continuing
Director by a majority of the then Continuing Directors.
Notwithstanding any other provision in these Articles, this
Section 12 may not be repealed or amended in any respect, and no
provision inconsistent with this Section 12 may be adopted, unless
such action is approved by the affirmative vote of the holders of a
majority of the outstanding shares of Voting Stock held by
shareholders other than Related Persons."
Section 9 is amended to read in its entirety as follows:
"9. The corporation reserves the right to increase or decrease
its authorized capital stock, or any class or series thereof, or to
reclassify the same, and to amend, alter, change or repeal any
provision contained in these Articles, or in any amendment thereto, in
the manner now or hereafter prescribed by law, subject to such
conditions and limitations as are prescribed in these Articles, and
all rights conferred upon stockholders in these Articles, or in any
amendment thereto, are granted subject to this reservation."
Section 8 is amended to read in its entirety as follows:
"8. The holders of shares of stock entitled to vote in the
election of directors of the corporation shall not be entitled to
cumulate votes for the purposes of such election."
<PAGE>
Microfilm Number Filed with the Department of State on Jun 10, 1992
---------- ------------
Entry Number 272891 Original Signed
---------- -----------------------------
Secretary of the Commonwealth
ARTICLES OF AMENDMENT - DOMESTIC BUSINESS CORPORATION
DSCB: 15-1915 (Rev. 90)
In compliance with the requirements of 15 Pa.C.S. ss. 1915 (relating to
articles of amendment), the undersigned business corporation, desiring to amend
its Articles, hereby states that:
1. The name of the corporation is: Pennsylvania Enterprises, Inc.
--------------------------------------------
- --------------------------------------------------------------------------------
2. The (a) address of this corporation's current registered office in this
Commonwealth or (b) name of its commercial registered office provider and the
county of venue is (the Department is hereby authorized to correct the
following information to conform to the records of the Department):
(a) Wilkes-Barre Center, 39 Public Square, Wilkes-Barre, PA 18711 Luzerne
-------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:---------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider, the
county in (b) shall be deemed the county in which the corporation is located
for venue and official publication purposes.
3. The statute by or under which it was incorporated is:
Act of May 5, 1933 P.L. 364 as amended
- --------------------------------------------------------------------------------
4. The date of its incorporation is: February 6, 1974
-----------------------------------------
5. (Check, and if appropriate complete, one of the following):
X The amendment shall be effective upon filing these Articles of
---- Amendment in the Department of State.
---- The amendment shall be effective on: ------------------- at ------------
Date Hour
<PAGE>
6. (Check one of the following):
x The amendment was adopted by the shareholders (or members) pursuant
----- to 15 Pa.C.S. ss. 1914(a) and (b).
---- The amendment was adopted by the board of directors pursuant to 15
Pa.C.S. ss. 1914(c).
7. (Check, and if appropriate complete, one of the following):
---- The amendment adopted by the corporation, set forth in full, is as
follows:
X The amendment adopted by the corporation as set forth in full in
---- Exhibit A attached hereto and made a part hereof
8. (Check if the amendment restates the Articles):
---- The restated Articles of Incorporation supersede the original Articles
and all amendments thereto.
IN TESTIMONY WHEREOF, the undersigned corporation has caused these
Articles of Amendment to be signed by a duly authorized officer thereof this
10th day of June , 19 92 .
Pennsylvania Enterprises, Inc.
-------------------------------------
BY: /s/ John F. Kell, Jr.
--------------------------------
(Signature)
TITLE: Vice President and Controller
------------------------------
<PAGE>
EXHIBIT A
Section 5 of the Restated Articles of Incorporation is amended to
read in its entirety as follows:
"5. The aggregate number of shares which the corporation shall have
authority to issue is 15,000,000 shares of Common Stock without
nominal or par value, with a stated value of $10.00 per share."
Section 6 of the Restated Articles of Incorporation is deleted in
its entirety and replaced with:
"[Reserved]"
<PAGE>
Microfilm Number___________ Filed with the Department of State on________
Entity Number______________ __________________________________
Secretary of the Commonwealth
STATEMENT OF CHANGE OF REGISTERED OFFICE
DSCB:15-1507/4144/5507/6144/8506 (Rev 90)
Indicate type of entity (check one):
X Domestic Business Corporation (15 Pa.C.S.ss.1507)
- ---
- --- Foreign Nonprofit Corporation (15 Pa.C.S.ss.6144)
- --- Foreign Business Corporation (15 Pa.C.S.ss.4144)
- --- Domestic Limited Partnership(15 Pa.C.S.ss.8506)
- --- Domestic Nonprofit Corporation (15 Pa.C.S.ss.5507)
In compliance with the requirements of the applicable provisions of 15
Pa.C.S. (relating to corporations and unincorporated associations) the
undersigned corporation or limited partnership, desiring to effect a change of
registered office, hereby states that:
1. The name of the corporation or limited partnership is: Pennsylvania
Enterprises, Inc.
2. The (a) address of this corporation's or limited partnership's current
registered office in this Commonwealth or (b) name of its commercial
registered office provider and the county of venue is: (the Department is
hereby authorized to correct the following information to conform to the
records of the Department):
(a) Wilkes-Barre Center, 39 Public Square, Wilkes-Barre,
--------------------------------------------------------------
Number and Street City
PA 18711 Luzerne
------------------------------------------
State Zip County
(b) c/o:-------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation or a limited partnership represented by a commercial
registered office provider, the county in (b) shall be deemed the county in
which the corporation or limited partnership is located for venue and official
publication purposes.
3. (Complete part (a) or (b)):
(a) The address to which the registered office of the corporation or
limited partnership in this Commonwealth is to be changed is:
One PEI Center Wilkes-Barre PA 18111-0601 Luzerne
----------------------------------------------------------------------
Number and Street City State Zip County
(b) The registered office of the corporation or limited partnership shall
be provided by:
c/o:------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation or a limited partnership represented by a commercial
registered office provider, the county in (b) shall be deemed the county in
which the corporation or limited partnership is located for venue and official
publication purposes.
<PAGE>
4. (Strike out if a limited partnership): Such change was authorized by the
Board of Directors of the corporation.
IN TESTIMONY WHEREOF, the undersigned corporation or limited partnership
has caused this statement to be signed by a duly authorized officer thereof this
10th day of March, 1997.
Pennsylvania Enterprises, Inc.
BY: /s/ Thomas J. Ward
---------------------------
(Signature)
TITLE: Secretary
--------------------------
<PAGE>
ARTICLES OF AMENDMENT
OF
RESTATED ARTICLES OF INCORPORATION
OF
PENNSYLVANIA ENTERPRISES, INC.
-------------------------------------
FIRST: The name of the corporation is Pennsylvania Enterprises, Inc. (the
"Corporation"), with its registered office at One PEI Center, Wilkes-Barre,
Pennsylvania 18711-0601.
SECOND: The Corporation was incorporated under the laws of the Commonwealth
of Pennsylvania on February 6, 1974.
THIRD: This amendment is to become effective at 5:00 p.m., March 20, 1997.
FOURTH: Pursuant to Section 1914(c) of the Business Corporation Law, this
amendment was adopted by unanimous vote of the Board of Directors at a meeting
held February 19, 1997.
FIFTH: Section 5 of the Company's Restated Articles of Incorporation shall
be amended to read in full as follows: "5. The aggregate number of shares which
the corporation shall have authority to issue is 30,000,000 shares of Common
Stock without nominal or par value, with a stated value of $5.00 per share."
SIXTH: These Articles of Amendment amend the Company's Restated Articles of
Incorporation. Such restated articles supersede the original articles of
incorporation and all amendments thereto.
IN WITNESS WHEREOF, Pennsylvania Enterprises, Inc. has caused this
Certificate to be signed and attested by its duly authorized officers, this 19th
day of March, 1997.
By /s/ Thomas F. Karam
----------------------------
Name: Thomas F. Karam
Title: President and CEO
ATTEST:
/s/ Thomas J. Ward
- -------------------------
Name: Thomas J. Ward
Title: Secretary
LAW OFFICES OF
MOSES & GELSO, L.L.P.
120 S. FRANKLIN STREET
WILKES-BARRE, PA 18701-1188
March 20, 1997
Pennsylvania Enterprises, Inc.
One PEI Center
Wilkes-Barre, Pennsylvania 18711-0601
Re: Pennsylvania Enterprises, Inc.
190,600 Shares of Common Stock
------------------------------
Dear Ladies and Gentlemen:
We have acted as special counsel for Pennsylvania Enterprises, Inc.,
a Pennsylvania corporation (the "Company") for the purpose of rendering this
opinion in connection with the filing by the Company with the Securities and
Exchange Commission of a Registration Statement on Form S-8 (the "Registration
Statement") under the Securities Act of 1933 (the "Act") relating to the sale by
the Company of 190,600 shares of Common Stock, no par value, stated value $5 per
share (the "Shares") pursuant to the Company's 1992 Stock Option.
As such special counsel, we have examined such corporate records,
certificates and other documents as we have considered necessary for the
purposes of this opinion. In such examination, we have assumed the genuineness
of all signatures, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as copies and the authenticity of the originals of such latter documents.
As to any facts material to our opinion, we have, when such facts were not
independently established, relied upon the aforesaid records, certificates and
documents.
We are members of the Bar of the Commonwealth of Pennsylvania and we
express no opinion as to the laws of any other jurisdiction other than the laws
of the United States of America to the extent specifically referred to herein.
Upon the basis of the foregoing examination and subject to the
limitations contained herein we are of the opinion that:
(a) when the Registration Statement has become effective under the
Act, no further authorization, consent or approval by any regulatory authority
will be required for the valid issuance and sale of the Shares (except under the
so-called "blue sky" or securities laws of the several states of which we do not
express any opinion); and
(b) the Shares are duly authorized and, when issued and paid for in
the manner set forth in the Registration Statement, will have been validly
issued and fully paid and non-assessable by the Company.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ JOHN P. MOSES
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 19, 1997
included in Pennsylvania Enterprises, Inc.'s Form 10-K for the year ended
December 31,1996 and to all references to our Firm included in this Registration
Statement.
/s/ ARTHUR ANDERSEN LLP
New York, New York
March 20, 1997
