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As filed with the Securities and Exchange Commission on March 26, 1997
Registration No. 333-__________
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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
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(Address of registrant's principal executive offices)
Pennsylvania Enterprises, Inc. Stock Incentive 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 18711-0601 One Battery Park Plaza
(717) 829-8812 New York, New York 10004
(Name and address and telephone number
of agent for service)
<TABLE>
<CAPTION>
Calculation of Registration Fee
- ------------------------------- --------------------- --------------------- -------------------- --------------------
Proposed Proposed
maximum maximum
Title of Shares Amount offering price aggregate offering Amount of
to be registered* to be registered per unit** price** registration fee
- ------------------------------- --------------------- --------------------- -------------------- --------------------
<S> <C> <C> <C>
Common Stock, no par value, 460,000 shares $22.53125 $10,364,375 $3,140.72
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").
** For purposes of computing the filing fee, the proposed maximum offering
price has been computed in accordance with Rule 457(c) of the Securities
Act of 1933, 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 24,
1997.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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
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.
<PAGE>
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.
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<S> <C>
4-1 Restated Articles of Incorporation of the Company, as amended -- filed as
Exhibit 4-1 to the Company's Registration Statement No. 333-23653.
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.
</TABLE>
<PAGE>
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
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.
<PAGE>
(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 26th 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 26, 1997
--------------------- Executive Officer and
(Thomas F. Karam) Director
(ii) Principal Financial and Accounting Officer:
/s/ John F. Kell, Jr. Vice President, March 26, 1997
------------------------ Financial Services
(John F. Kell, Jr.)
(iii) A Majority of the Board of Directors:
/s/ Kenneth L. Pollock Chairman of the March 26, 1997
------------------------ Board of Directors
(Kenneth L. Pollock)
/s/ William D. Davis Vice Chairman of the March 26, 1997
------------------------ Board of Directors
(William D. Davis)
/s/ Robert J. Keating Director March 26, 1997
------------------------
(Robert J. Keating)
<PAGE>
/s/ James A. Ross Director March 26, 1997
------------------------
(James A. Ross)
/s/ John D. McCarthy Director March 26, 1997
------------------------
(John D. McCarthy)
/s/ Ronald W. Simms Director March 26, 1997
------------------------
(Ronald W. Simms)
/s/ Kenneth M. Pollock Director March 26, 1997
------------------------
(Kenneth M. Pollock)
/s/ Paul R. Freeman Director March 26, 1997
------------------------
(Paul R. Freeman)
/s/ John D. McCarthy, Jr. Director March 26, 1997
--------------------------
(John D. McCarthy, Jr.)
/s/ Richard A. Rose, Jr. Director March 26, 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 -- filed as Exhibit 4-1 to the
Company's Registration Statement No. 333-23653.
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>
LAW OFFICES OF
MOSES & GELSO, L.L.P.
120 S. FRANKLIN STREET
WILKES-BARRE, PA 18701-1188
March 26, 1997
Pennsylvania Enterprises, Inc.
One PEI Center
Wilkes-Barre, Pennsylvania 18711-0601
Re: Pennsylvania Enterprises, Inc.
460,000 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 460,000 shares of Common Stock, no par value, stated value $5 per
share (the "Shares") pursuant to the Pennsylvania Enterprises Inc. Stock
Incentive Plan.
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:
<PAGE>
(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 26, 1997
