As filed with the Securities and Exchange Commission on June 27, 1997
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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PETROLEUM HEAT AND POWER CO., INC.
(Exact name of registrant as specified in charter)
Minnesota 06-1183025
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2187 Atlantic Street
Stamford, Connecticut 06902
(203) 325-5400
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
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1997 Stock Bonus Plan
(Full Title of Plan)
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Irik P. Sevin
Chairman and Chief Executive Officer
Petroleum Heat and Power Co., Inc.
2187 Atlantic Street
Stamford, Connecticut 06902
(203) 325-5400
(name and address, including zip code and telephone number,
including area code of agent for service)
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Copies to:
Alan Shapiro, Esq.
Phillips Nizer Benjamin Krim & Ballon LLP
666 Fifth Avenue
New York, New York 10103
(212) 977-9700
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Offering Aggregate Amount of
Class of Securities Amount to be Price Per Offering Registra-
to be Registered Registered(1) Share Price tion Fee
Class A Common Stock,
$0.10 par value.........1,000,000 $2.75(2) $2,750,000(2) $948.20
(1) An indeterminate number of shares of Class A Common Stock are registered
hereunder, which may be issued as provided in the various options, in the
event provisions against dilution become operative. No additional
registration fee is included for these shares.
(2) The registration fee is based upon the average of the high and low bid
prices for the Class A Common Stock of $2.75 on June 24, 1997, as
prescribed by Rule 457(c).
PART II
Item 3. Incorporation of Documents by Reference.
The following documents which have been filed by Petroleum Heat and
Power Co., Inc. (the "Registrant") with the Securities and Exchange
Commission (the "Commission"), are hereby incorporated by reference in this
Registration Statement:
1. Annual Report on Form 10-K, as amended, for the fiscal year ended
December 31, 1996.
2. Quarterly Report on Form 10-Q, as amended, for the fiscal quarter
ended March 31, 1997.
3. The description of the Class A Common Stock contained in the
Registrant's Registration Statement on Form 8-A filed pursuant to
Section 12 of the Exchange Act, and any amendment or report filed
for the purpose of updating such description.
All documents filed by the Registrant pursuant to Section 13(a),
13(c), 14 and 15(d) of the Securities Exchange Act of 1934 subsequent to the
date of the Registration Statement and prior to the filing of a post-effective
amendment, which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference into this Registration Statement and to be a part
hereof from the respective dates of filing such documents.
The Registrant will provide without charge to any Plan participant, at
the request of such person, a copy of any or all of the foregoing documents
incorporated herein by reference (other than exhibits to such documents).
Requests should be directed to Audrey L. Sevin, Secretary, Petroleum Heat and
Power Co., Inc., 2187 Atlantic Street, Stamford, Connecticut 06902 (Tel. No.
203-325-5400).
Item 4. Description of Securities.
Not Applicable.
Item 5. Interests of Names Experts and Counsel.
Not Applicable.
Item 6. Indemnification of Directors and Officers.
Section 302A.521 of the Minnesota Business Corporation Act (the
"MNCA") provides mandatory and exclusive standards for indemnification,
although the Articles of Incorporation or by-laws of a corporation can
specifically limit the statutory indemnification. Minnesota law generally
provides that a corporation shall indemnify a person made or threatened to be
made a party to a proceeding by reason of such person's official capacity as
an officer, director or employee of the corporation, against judgments,
penalties, fines, including, without limitation, excise taxes assessed
against such person with respect to an employee benefit plan, settlements,
and reasonable expenses, including attorney's fees and disbursements,
incurred by that person in connection with the proceeding, if such person (a)
has not been indemnified by another entity for the same proceedings and in
connection with the same acts or omission; (b) acted in good faith; (c)
received no improper personal benefit; (d) in the case of a criminal
proceeding, had no reason to believe such person's conduct was unlawful; and
(e) in connection with the acts or omissions in question, the person
reasonably believed that such person's conduct was in the best interests of
the corporation (or, in the case of a question of improper personal benefit,
believed that the conduct was not opposed to the best interests of the
corporation; or in the case of an employee benefit plan, believed that the
conduct was in the best interests of the participants or beneficiaries of the
employee benefit plan).
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Section 302A.521 of the MBCA further provides that if an officer,
director or employee is made or threatened to be made a party to a proceeding
in such person's official capacity, such person is entitled, upon written
request to the corporation, to payment or reimbursement by the corporation of
reasonable expenses incurred by such person in advance of the final
disposition of the proceeding (a) upon receipt by the corporation of a
written confirmation by such person of such person's good faith belief that
the criteria for indemnification set forth under Minnesota law have been
satisfied, an undertaking by such person to repay all amounts paid or
reimbursed by the corporation if it is ultimately determined that the
criteria for indemnification have not been satisfied, and (b) after a
determination that the facts then known to those making the determination
would not preclude indemnification under Minnesota law.
Finally, Section 302A.521 of the MBCA provides that a corporation's
Articles of Incorporation or by-laws may prohibit indemnification or advances
or may impose conditions on such indemnification or advance, as long as those
conditions apply equally to all persons or to all persons within a given
class.
Registrant's Restated Articles of Incorporation, as amended,
contains the limitation of liability provision set forth below:
"ARTICLE VIII - A director of the corporation shall not be
personally liable to the corporation or its shareholders for monetary
damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the director's duty of loyalty to the
corporation or its shareholders, (ii) for acts or omissions not in
good faith or which involve intentional misconduct or a knowing
violation of law, (iii) under Section 302A.559 of the Minnesota
Business Corporation Act or Section 80A.23 of the Minnesota Securities
Law, or (iv) for any transaction from which the directors derived an
improper personal benefit. If the Minnesota Business Corporation Act
is hereafter amended to authorize any further limitation of the
liability of a director, then the liability of a director of the
corporation shall be eliminated or limited to the fullest extent
permitted by the Minnesota Business Corporation Act, as amended. No
amendment or repeal of this Article VIII shall apply to or have any
effect on the liability or alleged liability of any director of the
corporation for or with respect to any acts or omissions of such
director occurring prior to such amendment or repeal."
Registrant's by-laws, as amended, contains the indemnification
provision set forth below:
"Section 8.01. The corporation shall indemnify all officers and
directors of the corporation, for such expenses and liabilities, in
such manner, under such circumstances, and to such extent as permitted
by Minnesota Statutes Section 302A.521, as now enacted or hereafter
amended. Unless otherwise approved by the Board of Directors, the
corporation shall not indemnify or advance expenses to any employee of
the corporation who is not otherwise entitled to indemnification
pursuant to the prior sentence of this Section 8.01."
Item 7. Exemption From Registration Claimed.
Not Applicable.
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Item 8. Exhibits.
Exhibit
Nos. Description of Exhibits
- ------- -----------------------
5.1* Opinion of Phillips Nizer Benjamin Krim & Ballon LLP
10.1* 1997 Stock Bonus Plan and forms of Bonus Shares Agreements
23.1* Consent of KPMG Peat Marwick LLP
23.3* Consent of Phillips Nizer Benjamin Krim & Ballon LLP (included in
Exhibit 5.1)*
__________________
*Filed herewith.
Item 9. Undertakings.
1. The undersigned Registrant hereby undertakes:
(i) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration 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 Statement.
(ii) 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.
(iii) 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.
2. 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 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.
3. Insofar as indemnification for liabilities arising under the
Securities Act of 1933, as amended (the "Act") may be permitted to directors,
officers or 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 hereunder, 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.
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SIGNATURES
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 the 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 Stamford, State of Connecticut, on
the 25th day of June, 1997.
PETROLEUM HEAT AND POWER CO., INC.
/s/ Irik P. Sevin
By
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Irik P. Sevin
Chairman of the Board
Chief Executive Officer and Chief Financial
and Accounting Officer
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
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/s/ Irik P. Sevin Chairman of the Board, June 25, 1997
- ---------------------- Chief Executive Officer, Financial
Irik P. Sevin and Accounting Officer and Director
/s/ Audrey L. Sevin Secretary and Director June 25, 1997
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Audrey L. Sevin
Director June __, 1997
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Phillip E. Cohen
- ---------------------- Director June __, 1997
Thomas J. Edelman
/s/ Wolfgang Traber
- ---------------------- Director June 25, 1997
Wolfgang Traber
/s/ Richard O'Connell
- ---------------------- Director June 25, 1997
Richard O'Connell
- ---------------------- Director June __, 1997
Stephen Russell
/s/ Paul Biddelman
- ---------------------- Director June 25, 1997
Paul Biddelman
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