-----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, WoSJ2y/lrV0zTNFyXZZciqmoRuFePDPIMfm7i0q95ieTJjSnP10NsGcG6zA6NFF/ et5G9dTLeCp+jiTtannY9w== 0000950155-97-000012.txt : 19970321 0000950155-97-000012.hdr.sgml : 19970321 ACCESSION NUMBER: 0000950155-97-000012 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19970320 EFFECTIVENESS DATE: 19970320 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: PENNSYLVANIA ENTERPRISES INC CENTRAL INDEX KEY: 0000077231 STANDARD INDUSTRIAL CLASSIFICATION: NATURAL GAS DISTRIBUTION [4924] IRS NUMBER: 135605391 STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-23645 FILM NUMBER: 97559743 BUSINESS ADDRESS: STREET 1: 39 PUBLIC SQ STREET 2: WILKES BARRE CENTER CITY: WILKES BARRE STATE: PA ZIP: 18711-0601 BUSINESS PHONE: 7178298843 MAIL ADDRESS: STREET 1: 39 PUBLIC SQUARE CITY: WILKES BARRE STATE: PA ZIP: 18711-0601 S-8 1 FORM S-8 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)
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 - -------------------------------------------------------------------------------- Common Stock, no par 190,600 shares $19,8165 $3,777,025 $1,144.55 value, stated value $5 per share - --------------------------------------------------------------------------------
- ---------- * 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. 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 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. 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. 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. 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. (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. 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:
Signature Title Date --------- ----- ---- (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) /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.)
INDEX TO EXHIBITS
Exhibit Sequentially Number Description Numbered Page 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
EX-4.1 2 RESTATED ARTICLES OF INCORPORATION 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) 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 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. 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. 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.) Attest: /s/ Robert Anthony - ---------------------------- (SIGNATURE) Secretary - ---------------------------- (TITLE: SECRETARY, ASSISTANT SECRETARY, ETC.) (CORPORATE SEAL) 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 - -------------------------------------------------------------------------------- (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. 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. 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: (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. (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." 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 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 ------------------------------ 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]" 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. 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 -------------------------- 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 EX-5.1 3 OPINION OF MOSES & GELSO, L.L.P. 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 EX-23.2 4 CONSENT OF ARTHUR ANDERSON 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 -----END PRIVACY-ENHANCED MESSAGE-----