Registration No. 333-
------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------
DQE, INC.
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 25-1598483
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
CHERRINGTON CORPORATE CENTER, SUITE 100
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA 15108-3189 15279
(Address of principal executive offices) (Zip Code)
DQE, INC. LONG-TERM INCENTIVE PLAN
(Full title of the plan)
DAVID D. MARSHALL
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
CHERRINGTON CORPORATE CENTER, SUITE 100
500 CHERRINGTON PARKWAY
CORAOPOLIS, PENNSYLVANIA 15108-3189
(Name and address of agent for service)
(412) 393-6000
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
================================================================================
TITLE OF PROPOSED PROPOSED AMOUNT OF
SECURITIES AMOUNT TO BE MAXIMUM MAXIMUM REGISTRATION
TO BE REGISTERED REGISTERED OFFERING PRICE AGGREGATE FEE
PER SHARE OFFERING PRICE
================================================================================
Common Stock (no par 3,000,000 $35.35 (1) $106,050,000 $27,997.20
value)
================================================================================
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(h). The fee is calculated on the basis of the average of
the high and low prices for the Registrant's Common Stock reported on the New
York Stock Exchange on December 10, 1999.
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Registration Statement is being filed to register an additional
3,000,000 shares of Common Stock, no par value (the "Common Stock"), of DQE,
Inc. (the "Registrant") as a result of an increase in the number of shares of
Common Stock issuable under the DQE, Inc. Long-Term Incentive Plan. The earlier
Registration Statements on Form S-8 filed by the Registrant with the Commission
on June 27, 1989 (filed as Post-Effective Amendment No. 1-A to the Registrant's
Registration Statement on Form S-4 (File No. 33-27196)), February 26, 1991
(filed as Post-Effective Amendment No. 2-A to the Registrant's Registration
Statement on Form S-4 (File No. 33-27196)), and July 23, 1993 (File No.
33-66488) pertaining to the Plan are hereby incorporated by reference. This
incorporation by reference is made pursuant to General Instruction E of Form S-8
regarding the registration of additional securities of the same class as other
securities for which there has been filed a Registration Statement on Form S-8
relating to the same employee benefit plan.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the Registrant with the Securities and
Exchange Commission (the "Commission") pursuant to the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), are incorporated by reference
into this Registration Statement: (i) the Registrant's Annual Report on Form
10-K for the year ended December 31, 1998, (ii) the Registrant's Quarterly
Reports on Form 10-Q for the quarters ended March 31, 1999, June 30, 1999
and September 30, 1999, (iii) the Registrant's Current Reports on Form 8-K
dated March 19, 1999, March 26, 1999, July 29, 1999 and September 29, 1999
and (iv) the description of the Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A, as the same may be amended.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act after
the date of this Registration Statement, but prior to the filing of a
post-effective amendment to this Registration Statement which indicates that
all securities offered by this Registration Statement have been sold or
which deregisters all such securities then remaining unsold, shall be deemed
to be incorporated by reference into this Registration Statement. Each
document incorporated by reference into this Registration Statement shall be
deemed to be a part of this Registration Statement from the date of filing
of such document with the Commission until the information contained therein
is superseded or updated by any subsequently filed document which is
incorporated by reference into this Registration Statement or by any
document which constitutes part of the prospectus relating to the DQE, Inc.
Long-Term Incentive Plan meeting the requirements of Section 10(a) of the
Securities Act of 1933, as amended (the "Securities Act").
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Stock to which this Registration Statement
relates has been passed upon for the Registrant by David R. High, Associate
and General Counsel of the Registrant. Mr. High is paid a salary by the
Registrant and participates in the benefit plans of the Registrant and its
subsidiaries, including the Plan to which this Registration Statement
relates.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Under the Restated Articles of the Registrant, to the fullest extent that
the laws of the Commonwealth of Pennsylvania, as now or as hereafter
amended, permit elimination or limitation of the liability of directors, no
director of the Registrant shall be personally liable for monetary damages
for any action taken, or any failure to take action, as a director.
Under the By-Laws of the Registrant, the directors and officers of the
Registrant are each entitled to be indemnified against reasonable expenses,
including attorneys' fees, and any liability paid or incurred by them in
connection with any actual or threatened claim, action, suit or other
proceeding by reason of their being or having been a director or officer of
the Registrant, or serving or having served at the request of the Registrant
as a representative of another corporation, partnership, joint venture,
trust, employee benefit plan or other entity, except as prohibited by law.
Section 1746(b) of the Pennsylvania Business Corporation Law prohibits
indemnification 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.
II - 1
<PAGE>
The Registrant maintains director and officer liability insurance covering
the directors and officers of the Registrant and all its subsidiaries with
respect to certain liabilities which may be incurred in connection with
their service to the Registrant or any of its subsidiaries, including
liabilities arising under the Securities Act. This insurance provides
reimbursement to the Registrant and its subsidiaries up to policy limits for
amounts paid to directors and officers pursuant to the indemnification
provisions summarized above.
ITEM 8. EXHIBITS.
The following exhibits are filed herewith or incorporated by reference as
part of this Registration Statement:
EXHIBIT NO. DESCRIPTION
----------- -----------
4.1 Articles of Incorporation, as amended (incorporated by
reference to Exhibits 3.1 and 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1989, Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1992, Exhibit 3.4
to the Registrant's Annual Report on Form 10-K for the fiscal
year ended December 31, 1994 and Exhibit 3.5 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (File No. 1-10290)).
4.2 By-Laws, as amended through June 29, 1999 (incorporated by
reference to Exhibit 3.1 to the Registrant's Quarterly Report
on Form 10-Q for the quarter ended June 30, 1999 (File No.
1-10290)).
5.1 Opinion of David R. High, Associate General Counsel of the
Registrant, as to the legality of the shares being registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of David R. High, Associate General Counsel of the
Registrant (included in the Opinion filed as Exhibit 5.1).
24.1 Power of Attorney (set forth on the signature page of this
Registration Statement).
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers of 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;
(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;
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II - 2
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act 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.
* * *
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or
otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
II - 3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing 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 Pittsburgh, Commonwealth of Pennsylvania, on this
30th day of November, 1999.
DQE, INC.
By: /s/ DAVID D. MARSHALL
-----------------------------------
David D. Marshall
Chairman, President and
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Victor A. Roque his true and lawful
attorney-in-fact and agent, with full power of substitution and
resubstitution, for him and in his name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement,
and to file the same with all exhibits thereto, and other documentation in
connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent full power and authority to do and
perform each and every act and thing requisite and necessary to be done in
and about the premises, as fully to all intents and purposes as he might or
could do in person, hereby ratifying and confirming all that said
attorney-in-fact and agent, or his substitute or substitute, may lawfully do
or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement and the foregoing Power of Attorney have been signed by the
following persons in the capacities and on the date(s) indicated:
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ David D. Marshall Chairman, President and November 30, 1999
----------------------- Chief Executive Officer
David D. Marshall
/s/ Gary L. Schwass Executive Vice President November 30, 1999
----------------------- and Chief Financial Officer
Gary L. Schwass (Principal Financial
Officer)
/s/ James E. Wilson Controller (Principal November 30, 1999
----------------------- Accounting Officer)
James E. Wilson
/s/ Daniel Berg Director November 30, 1999
-----------------------
Daniel Berg
/s/ Robert P. Bozzone Director November 30, 1999
-----------------------
Robert P. Bozzone
II - 4
<PAGE>
SIGNATURE CAPACITY DATE
--------- -------- ----
/s/ Doreen E. Boyce Director November 30, 1999
-----------------------
Doreen E. Boyce
/s/ Sigo Falk Director November 30, 1999
-----------------------
Sigo Falk
/s/ William H. Knoell Director November 30, 1999
-----------------------
William H. Knoell
/s/ Thomas J. Murrin Director November 30, 1999
-----------------------
Thomas J. Murrin
/s/ Eric W. Springer Director November 30, 1999
-----------------------
Eric W. Springer
II - 5
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
4.1 Articles of Incorporation, as amended (incorporated by
reference to Exhibits 3.1 and 3.2 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December 31,
1989, Exhibit 3.3 to the Registrant's Annual Report on Form
10-K for the fiscal year ended December 31, 1992, Exhibit
3.4 to the Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1994 and Exhibit 3.5 to the
Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 1995 (File No. 1-10290)).
4.2 By-Laws, as amended through June 29, 1999 (incorporated
by reference to Exhibit 3.1 to the Registrant's Quarterly
Report on Form 10-Q for the quarter ended June 30, 1999
(File No. 1-10290)).
5.1 Opinion of David R. High, Associate General Counsel of
the Registrant, as to the legality of the shares being
registered.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of David R. High, Associate General Counsel of
the Registrant (included in the Opinion filed as Exhibit
5.1).
24.1 Power of Attorney (set forth on the signature page of
this Registration Statement).
II - 6
Exhibit 5.1
December 13, 1999
DQE, Inc.
Cherrington Corporate Center, Suite 100
500 Cherrington Parkway
Coraopolis, Pennsylvania 15108-3189
Ladies and Gentlemen:
I am Associate General Counsel of DQE, Inc., a Pennsylvania corporation
(the "Registrant") and I have acted as counsel to the Registrant in connection
with the Registrant's Registration Statement on Form S-8 (the "Registration
Statement"). The Registration Statement is to be filed with the Securities and
Exchange Commission and relates to the registration under the Securities Act of
1933, as amended, of an aggregate of 3,000,000 shares (the "Shares") of the
Registrant's Common Stock, no par value, in connection with the DQE, Inc.
Long-Term Incentive Plan (the "Plan").
I am familiar with the Registration Statement and the Plan, and I have
examined the Registrant's Articles of Incorporation, as amended to date, and the
Registrant's By-Laws, as amended through June 29, 1999. I have also examined
such other public and corporate documents, certificates, instruments and
corporate records, and such questions of law, as I have deemed necessary or
appropriate for the purpose of this opinion.
Based on the foregoing, I am of the opinion that the Shares, when issued
in accordance with the Plan, will be duly authorized, validly issued, fully paid
and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement.
Yours truly,
/s/ David R. High
Exhibit 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
DQE, Inc. on Form S-8 of our report dated January 26, 1999, appearing in and
incorporated by reference in the Annual Report on Form 10-K of DQE, Inc. for the
year ended December 31, 1998.
/s/ Deloitte & Touche LLP
DELOITTE & TOUCHE LLP
Pittsburgh, Pennsylvania
December 14, 1999
