-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Ep/3VJmDnIy80ZuUPq1Ze0QTovKR5hi+0lqYUb+IW17tAgX36PbAhCPV6NL5Vyte yG8WIDw/FuQ4czVzYk6l2Q== 0000203248-99-000023.txt : 19991101 0000203248-99-000023.hdr.sgml : 19991101 ACCESSION NUMBER: 0000203248-99-000023 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19991029 EFFECTIVENESS DATE: 19991029 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SOUTHERN UNION CO CENTRAL INDEX KEY: 0000203248 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 750571592 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-89971 FILM NUMBER: 99737577 BUSINESS ADDRESS: STREET 1: 504 LAVACA ST 8TH FL CITY: AUSTIN STATE: TX ZIP: 78701 BUSINESS PHONE: 5124775852 S-8 1 ================================================================= As filed with the Securities and Exchange Commission on October 29, 1999 Registration No. 33-______ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT under THE SECURITIES ACT OF 1933 SOUTHERN UNION COMPANY (Exact Name of Registrant as Specified in Its Charter) Delaware 75-0571592 (State or Other Jurisdiction (I.R.S. Employer of Incorporation or Organization) Identification No.) -------------------- SOUTHERN UNION COMPANY 1992 LONG-TERM STOCK INCENTIVE PLAN (Full Title of the Plan) With a copy to: Dennis K. Morgan, Esq. Stephen A. Bouchard, Esq. Senior Vice President - FLEISCHMAN AND WALSH, L.L.P. Legal and Secretary 1400 Sixteenth Street, N. W. SOUTHERN UNION COMPANY Suite 600 504 Lavaca Street, Suite 800 Washington, DC 20036 Austin, Texas 78701 (202) 939-7900 (512) 477-5852 (Name, Address and Telephone Number, Including Area Code of Agent for Service) --------------------- CALCULATION OF REGISTRATION FEE ================================================================= Proposed Proposed Maximum Maximum Amount Offering Aggregate Amount of Title of to be Price Per Offering Registration Securities to Registered Share Price Fee be Registered (1)(2) (3) (3) (2)(3) - ----------------------------------------------------------------- Common Stock, par value $1.00 3,000,000 per share shares $20.09375 $60,281,250 $16,758.19 - -------------------- (1) Pursuant to Rule 416 under the Securities Act of 1933, as amended (the "Securities Act"), this Registration Statement also covers, in addition to the number of shares of common stock stated above, a number of shares which by reason of certain events specified in the Plan may become subject to the Plan. (2) Pursuant to Rule 429 under the Securities Act and General Instruction E to Form S-8, the prospectus which forms a part of this Registration Statement also relates to 3,653,345 shares, as adjusted for common stock dividends, under the Registrant's 1992 Long-Term Stock Incentive Plan that were previously registered under Registration Statements 333- 08994 and 33-61558 and for which filing fees were previously paid. (3) Estimated in accordance with Rule 457(c) under the Securities Act, solely for the purpose of calculating the registration fee and based upon the average of the high and low sales prices for shares of the Registrant's Common Stock on the New York Stock Exchange on October 27, 1999 of $20.09375 per share. PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS The document(s) containing the information specified in Part I of Form S-8 will be sent or given to participants in the Southern Union Company 1992 Long -Term Stock Incentive Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities and Exchange Commission (the "Commission") under the Securities Act. Such document(s) (along with the documents incorporated by reference into the Registration Statement pursuant to Item 3 of Part II hereof) constitute a prospectus that meets the require- ments of Section 10(a) of the Securities Act. PART II INFORMATION REQUIRED IN REGISTRATION STATEMENT Item 3. Incorporation of Certain Documents by Reference. - ------ ----------------------------------------------- The following documents previously or concurrently filed by Southern Union Company (the "Company") with the Commission are hereby incorporated by reference in this Registration Statement: (a) the Company's Annual Report on Form 10-K for the fiscal year ended June 30, 1999 filed pursuant to Rule 13a-1 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"); (b) the Company's current Report on Form 8-K filed on October 8, 1999, pursuant to Rule 13a-1 of the Exchange Act; (c) the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1999 filed pursuant to Rule 13a-1 of the Exchange Act; (d) all other reports filed by the Company pursuant to Section 13(a) or 15(d) of the Exchange Act since the end of the fiscal year covered by the Annual Report referred to above; (e) the Company's definitive Proxy Statement for its Annual Meeting of Stockholders on October 19, 1999; and (f) the description of the common stock, par value $1.00 per share, of the Registrant (the "Common Stock") contained in the Registrant's Registration Statement on Form S-3 (File No. 333-10585) filed with the Commission on August 22, 1996 and all amendments or reports filed for the purpose of updating such description. All documents subsequently filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14, or 15(d) of the Exchange Act, 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 incorporated by reference into this Registration State- ment and to be a part thereof from the date of the filing of such documents. Any statement contained in the documents incorpo- rated, or deemed to be incorporated, by reference herein or therein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or therein or in any other subsequently filed document which also is, or is deemed to be, incorporated by reference herein or therein modifies or supersedes such state- ment. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement. The Company shall furnish without charge to each person to whom the Prospectus is delivered, on the written or oral request of such person, a copy of any or all of the documents incorporated by reference, other than exhibits to such documents (unless such exhibits are specifically incorporated by reference to the infor- mation that is incorporated). Requests should be directed to George E. Yankowski, Treasurer and Director of Investor Rela- tions, Southern Union Company, 504 Lavaca Street, Eighth Floor, Suite 800, Austin, Texas 78701, telephone number (512) 477-5852. All information appearing in this Registration Statement is qualified in its entirety by the detailed information, including financial statements, appearing in the documents incorporated herein or therein by reference. Item 4. Description of Securities. - ------ ------------------------- Not Applicable. Item 5. Interests of Named Experts and Counsel. - ------ -------------------------------------- The validity of the shares of Common Stock being offered has been passed upon for the Company by Fleischman and Walsh, L.L.P., Washington, D.C. Aaron I. Fleischman, Senior Partner of Fleischman and Walsh, L.L.P., is a director of the Company. Mr. Fleischman, Fleischman and Walsh, L.L.P., and other attorneys in that firm beneficially own shares of Common Stock that, in the aggregate, represent less than two percent (2%) of the shares of Common Stock outstanding. Item 6. Indemnification of Directors and Officers. - ------ ----------------------------------------- Section 145 of the General Corporation Law of Delaware empowers a corporation to indemnify its directors and officers, subject to certain limitations. The Company's Bylaws require the Company to indemnify their respective directors and officers to the fullest extent permitted by law. Article TWELFTH of the Restated Certificate of Incorporation of Southern Union eliminates personal liability of directors to the fullest extent permitted by Delaware law. Section 145 of the Delaware General Corporation Law provides that a Delaware corpo- ration may indemnify any person against expenses, fines and set- tlements actually and reasonably incurred by any such person in connection with a threatened, pending or completed action, suit or proceeding in which he is involved by reason of the fact that he is or was a director, officer, employee or agent of such cor- poration, provided that (i) he acted in good faith and in a man- ner he reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any crimi- nal action or proceeding, he had no reasonable cause to believe his conduct was unlawful. If the action or suit is by or in the name of the corporation, the corporation may indemnify any such person against expenses actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably be- lieved to be in or not opposed to the best interests of the cor- poration, except that no indemnification may be made in respect to any claim, issue or matter as to which such person shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the corporation, unless and only to the extent that the Delaware Court of Chancery or the court in which the action or suit is brought determines upon application that, despite the adjudication of liability but in the light of the circumstances of the case, such person is fairly and reason- ably entitled to indemnity for such expense as the court deems proper. The directors and officers of Southern Union are covered by insurance policies indemnifying against certain liabilities, including certain liabilities arising under the Securities Act, which might be incurred by them in such capacities and against which they cannot be indemnified by Southern Union. Southern Union has entered into an Indemnification Agreement with each member of its Board of Directors. The Indemnification Agreement provides the Directors with the contractual right to indemnifica- tion for any acts taken in their capacity as a director of Southern Union to the fullest extent permitted under Delaware law. Any agents, dealers or underwriters who execute any of the agree- ments filed as Exhibit 1 to this registration statement will agree to indemnify Southern Union's directors and their officers who signed the registration statement against certain liabilities that may arise under the Securities Act with respect to informa- tion furnished to Southern Union by or on behalf of any such indemnifying party. Item 7. Exemption from Registration Claimed. - ------ ----------------------------------- Not Applicable. Item 8. Exhibits. - ------ -------- Regula- Reference to tion S-K Prior Filing or Exhibit Exhibit Number Number Document Attached Hereto - -------- ---------------------------------------- --------------- 4 Southern Union Company 1992 Long-Term Stock Incentive Plan, as amended (Filed as Exhibit 10(l) to Southern Union's Annual Report on Form 10-K for the Year ended June 30, 1998 and incorporated herein by reference.) 5 Opinion of Fleischman and Walsh, L.L.P. Attached as Exhibit 5 23-A Consent of Independent Accountants, Attached as PricewaterhouseCoopers LLP Exhibit 23-A 23-B Consent of Independent Accountants, Attached as PricewaterhouseCoopers LLP Exhibit 23-B 23-C Consent of Independent Public Attached as Accountants, Arthur Andersen LLP Exhibit 23-C 23-D Consent of Fleischman and Walsh, L.L.P. Contained in their opinion of counsel filed as Exhibit 5.1 24 Power of Attorney Attached as Exhibit 24 Item 9. Undertakings. - ------ ------------ (a) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this regis- tration 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 state- ment. (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 regis- tration 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 regis- tered 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 of 1933, 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. (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, unenforce- able. 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 con- trolling 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. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that is has reasonable grounds to believe that it meets the requirements for filing on Form S-8 and the Registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly autho- rized, in the City of Austin, State of Texas on October 29, 1999. SOUTHERN UNION COMPANY By: RONALD J. ENDRES Ronald J. Endres Executive Vice President and Chief Financial Officer (Duly Authorized Representative) Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons on behalf of the Registrant and in the capacities indicated on October 29, 1999. Signature/Name Title - -------------------- ---------------------------------------- GEORGE L. LINDEMANN* Chief Executive Officer and Director PETER H. KELLEY* Director JOHN E. BRENNAN* Director FRANK W. DENIUS* Director AARON I. FLEISCHMAN* Director ADAM M. LINDEMANN* Director ROGER J. PEARSON* Director GEORGE ROUNTREE, III* Director DAN K. WASSONG* Director KURT A. GITTER, M.D.* Director RONALD J. ENDRES Executive Vice President and - ---------------- Chief Financial Officer Ronald J. Endres DAVID J. KVAPIL Senior Vice President and - --------------- Corporate Controller David J. Kvapil (Principal Accounting Officer) *By: DAVID J. KVAPIL ----------------- David J. Kvapil Attorney-in-fact EX-5 2 EXHIBIT 5 FLEISCHMAN AND WALSH, L.L.P. 1400 Sixteenth Street, NW Sixth Floor Washington, DC 20036 (202) 939-7900 October 29, 1999 Southern Union Company 504 Lavaca Street, Suite 800 Austin, Texas 78701 Gentlemen: As counsel to Southern Union Company, a Delaware corporation (the "Company"), we have reviewed the Registration Statement on Form S-8 (the "Registration Statement") to be filed under the Securities Act of 1933, as amended, to register an additional 3,000,000 shares of the Company's common stock, par value $1.00 per share ("Shares"), to be issued by the Company pursuant to its 1992 Long-Term Stock Incentive Plan, as amended (the "Plan"). We have examined the originals or copies of such corporate records, documents, certificates and other instruments as we, in our judgment, considered necessary or appropriate to enable us to render the opinion below. Based on the foregoing, it is our opinion that, the Shares, when issued and delivered as contemplated by the Registration State- ment and the Plan, will be validly issued, fully paid and non-assessable, and will not be subject to preemptive or other rights to subscribe for or purchase common stock of the Company. We hereby consent to the filing of this opinion as an Exhibit to the Registration Statement. Very truly yours, FLEISCHMAN AND WALSH, L.L.P. EX-23.A 3 EXHIBIT 23-A CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated August 12, 1999, except for Note XVI as to which the date is September 3, 1999, relating to the consolidated financial statements, which appears in Southern Union Company's 1999 Annual Report to Shareholders, which is incorporated by reference in its Annual Report on Form 10-K for the year ended June 30, 1999. PRICEWATERHOUSECOOPERS LLP -------------------------- PricewaterhouseCoopers LLP Austin, Texas October 29, 1999 EX-23.B 4 EXHIBIT 23-B CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 17, 1999 relating to the financial statements and financial statement schedules, which appears in Pennsylvania Enterprises, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1998. PRICEWATERHOUSECOOPERS LLP -------------------------- PricewaterhouseCoopers LLP Philadelphia, Pennsylvania October 29, 1999 EX-23.C 5 EXHIBIT 23-C 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, 1998 and to all references to our Firm included in this Registration Statement. It should be noted that we have not audited any financial statements of the company subsequent to December 31, 1996 or performed any audit procedures subsequent to the date of our report. ARTHUR ANDERSEN LLP ------------------- Arthur Andersen LLP New York, New York October 29, 1999 EX-24 6 EXHIBIT 24 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS that each person whose signature appears below constitutes and appoints Peter H. Kelley, Ronald J. Endres, Dennis K. Morgan and David J. Kvapil, acting individually or together, as such person's true and lawful attorney(s)-in-fact and agent(s), with full power of substitution and revocation, to act in any capacity for such person and in such person's name, place and stead in executing the Registration Statement on Form S-8 and any amendments thereto, and filing said Registration Statement, together with all exhibits thereto and any other documents connected therewith, with the Securities and Exchange Commission for the purpose of registering the additional shares of Southern Union common stock to be eligible for grant under the Southern Union Company 1992 Long-Term Stock Incentive Plan. Dated: August 9, 1999 JOHN E. BRENNAN GEORGE L. LINDEMANN - --------------- ------------------- John E. Brennan George L. Lindemann FRANK W. DENIUS ROGER J. PEARSON - --------------- ---------------- Frank W. Denius Roger J. Pearson AARON I. FLEISCHMAN GEORGE ROUNTREE, III - ------------------- -------------------- Aaron I. Fleischman George Rountree, III PETER H. KELLEY DAN K. WASSONG - --------------- -------------- Peter H. Kelley Dan K. Wassong ADAM M. LINDEMANN KURT A. GITTER, M.D. - ----------------- -------------------- Adam M. Lindemann Kurt A. Gitter -----END PRIVACY-ENHANCED MESSAGE-----