SEC Info - Valley National Gases Inc

SEC Info℠

Home

Help

Please Sign In

Valley National Gases Inc – ‘S-8’ on 12/13/02

On: Friday, 12/13/02, at 4:23pm ET · Effective: 12/13/02 · Accession #: 950152-2-9299 · File #: 333-101840

  As Of                Filer                Filing    For·On·As Docs:Size              Issuer               Agent

12/13/02  Valley National Gases Inc         S-8        12/13/02    3:23K                                    Bowne BCL/FA

Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: S-8         Valley National Gases Incorporated Form S-8            9     42K 
 2: EX-5.1      EX-5.1 Opinion of Buchanan Ingersoll Prof Corpora      2±     8K 
 3: EX-23.1     EX-23.1 Consent of Independent Auditors                1      5K

S-8 — Valley National Gases Incorporated Form S-8
Document Table of Contents

Page	(sequential)	\|	(alphabetic)	Top
			Alternative Formats (Word, et al.) Calculation of Registration Fee Description of Securities Exemption From Registration Claimed Exhibits Incorporation of Documents by Reference Indemnification of Directors and Officers Interests of Named Experts and Counsel Undertakings
1	1st Page - Filing Submission
"	Calculation of Registration Fee
2	Item 3. Incorporation of Documents by Reference
"	Item 4. Description of Securities
"	Item 5. Interests of Named Experts and Counsel
"	Item 6. Indemnification of Directors and Officers
4	Item 7. Exemption From Registration Claimed
"	Item 8. Exhibits
5	Item 9. Undertakings

S-8 1st Page of 9 TOC ↑Top Previous Next ↓Bottom Just 1st
 
                                                 Registration No. 333-__________
 As filed with the Securities and Exchange Commission on December 13, 2002
================================================================================

 UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

--------------------

FORM S-8
REGISTRATION STATEMENT
 UNDER
THE SECURITIES ACT OF 1933

--------------------

VALLEY NATIONAL GASES INCORPORATED

(Exact name of registrant as specified in its charter)

      Pennsylvania                                    23-2888240
 (State or other jurisdiction                         (I.R.S. Employer
of incorporation or organization)                      Identification No.)

Valley National Gases Incorporated
67 43rd Street
 Wheeling, West Virginia 26003
(304) 234-4460
 (Address, including zip code,
of registrant's principal executive offices)

--------------------

VALLEY NATIONAL GASES INCORPORATED
1997 STOCK OPTION PLAN, AS AMENDED
(Full title of the plan)

--------------------

Robert D. Scherich
Valley National Gases Incorporated
67 43rd Street
 Wheeling, West Virginia 26003
(304) 234-4460

(Name, address and telephone number,
 including area code, of agent for service of process)

--------------------

Copy to:
 Amy E. Ayotte, Esq.
Dorsey & Whitney LLP
 50 South Sixth Street, Suite 1500
Minneapolis, Minnesota 55402
(612) 340-6323

--------------------

 CALCULATION OF REGISTRATION FEE

                                                        [Enlarge/Download Table]

                                                Proposed maximum    Proposed maximum                   
  Title of securities to be      Amount to     offering price per  aggregate offering      Amount of   
         registered          be registered(1)       share(2)            price(2)       registration fee
         ----------          ----------------       --------            --------       ----------------
                                                                                                       
Common Stock, $.001                                                                                    
par value per share               650,000            $5.974            $3,883,100            $358.00   

(1)   Pursuant to Rule 416(a) of the Securities Act of 1933, as amended, this   
    registration statement also covers any additional shares of Common Stock
      that may be offered or issued under the Valley National Gases Incorporated
  1997 Stock Option Plan, as amended, to prevent dilution resulting from
stock splits, stock dividends or similar transactions.              

(2)   Estimated solely for the purpose of calculating the registration fee in   
   accordance with Rule 457(h)(1) and Rule 457(c) of the Securities Act of
    1933, as amended. The proposed maximum aggregate offering price has been
     calculated as follows: options to purchase 403,000 shares of Common Stock
    have been granted with an approximate weighted average exercise price of
      $6.203 per share; and the proposed maximum aggregate offering price of the
     remaining 247,000 shares of Common Stock that are being registered herein
    is based upon the average of the high and low prices of the registrant's
Common Stock as reported on the Nasdaq Stock Market's consolidated  
reporting system on December 6, 2002.                               

================================================================================

S-8 2nd Page of 9 TOC 1st Previous Next ↓Bottom Just 2nd
 PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3.    INCORPORATION OF DOCUMENTS BY REFERENCE.                             

  The following documents, which have been filed with the Securities and
Exchange Commission (the "Commission") by Valley National Gases Incorporated    
(the "Company"), are incorporated by reference in this Registration Statement,  
as of their respective dates:                                                   

    (a)   the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 2002;                                          

   (b)   the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 2002;                                     

    (c)   the description of the Company's Common Stock, par value $.001 per
           share, as contained in Item 1 of the Registration Statement on Form
        8-A filed on January 17, 1997, including any amendment or report
        filed for the purpose of updating such description filed for the
purpose of updating such description.                   

    All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
and 15(d) of the Securities Exchange Act of 1934, as amended, subsequent to the 
date hereof 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 remaining unsold shall be deemed to be incorporated by reference 
herein and to be a part hereof from the respective dates of filing of such      
documents.                                                                      

   The audited financial statements as of and for the years ended June 30,
2000 and 2001 included in the Annual Report on Form 10-K incorporated herein by 
reference were audited by Arthur Andersen LLP. After reasonable efforts, the    
Company has not been able to obtain the consent of Arthur Andersen LLP to the   
incorporation by reference of its audit report dated July 31, 2001 into this    
Registration Statement. Accordingly, Arthur Andersen will not be liable to      
investors under Section 11(a) of the Securities Act or any other applicable laws
because it has not consented to being named as an expert in this Registration   
Statement, and therefore such lack of consent may limit the recovery by         
investors from Arthur Andersen LLP.                                             

ITEM 4.    DESCRIPTION OF SECURITIES.                                           

Not applicable.                                                     

ITEM 5.    INTERESTS OF NAMED EXPERTS AND COUNSEL.                              

Not applicable.                                                     

ITEM 6.    INDEMNIFICATION OF DIRECTORS AND OFFICERS.                           

     Pennsylvania statutory law regarding directors and officers insurance and
indemnification is embodied in Subchapter D (Sections 1741 through 1750) of the 
Pennsylvania Business Corporation Law of 1988, as amended (the "PBCL"). Section 
1741 (relating to third party actions) and 1742 (relating to derivative actions)
of the PBCL provide that, unless otherwise restricted by its bylaws, a business 
corporation shall have the power to indemnify any person who is made a party to 
a third-party or derivative action, respectively, by reason that such person is 
or was a representative of the corporation. The PBCL defines representative to  
mean a director, officer, employee or agent thereof (a "Representative"). The   
sections further state that the corporation is authorized to indemnify the      
Representative against expenses (including                                      

II-1

S-8 3rd Page of 9 TOC 1st Previous Next ↓Bottom Just 3rd
attorneys' fees), judgments, fines and amounts paid in settlement actually and  
reasonably incurred by him or her in connection with the action or proceeding.  
However, the Representative must have acted in good faith and with a reasonable 
belief that his or her actions were in the best interests, or not opposed to the
best interests of the corporation; and with respect to any criminal proceeding, 
the Representative must have had no reasonable cause to believe his or her      
conduct was unlawful.                                                           

Section 1743 of the PBCL provides mandatory indemnification for a   
Representative to the extent that he or she succeeds on the merits or otherwise 
in the defense of action or proceeding referred to in 1741 or 1742. The         
corporation must indemnify him or her to the extent of his or her actual and    
reasonable expenses (including attorney's fees) in connection with the claim or 
action.                                                                         

     Section 1746(a) states that the statutory rights of indemnification shall
not be deemed exclusive of any other rights to which a person might be entitled 
under any bylaw, agreement, or otherwise. However, 1746(b) forbids              
indemnification to be made in any case where the act or failure to act giving   
rise to the claim is determined by a court to be willful misconduct or          
recklessness. A corporation may not provide indemnification in the case of      
willful misconduct or recklessness.                                             

   The PBCL, in Section 1747, also authorizes corporations to purchase and
maintain insurance on behalf of a Representative, whether or not the corporation
would have the power to indemnify him or her. Such insurance is statutorily     
declared to be consistent with Pennsylvania's public policy.                    

Article Ten of the Company's Amended and Restated Articles of       
Incorporation provides that (i) the Company is required to indemnify its        
directors and officers to the fullest extent permitted by Pennsylvania law and  
that such indemnification shall continue after such person has ceased to be an  
officer or director thereof, and (ii) the Company may indemnify employees or    
agents of the Company to the fullest extent permitted by Pennsylvania law. The  
Company must undertake any required indemnification unless the officer or       
director has not met the applicable standard of conduct as set forth in or      
pursuant to Article Ten as determined (1) by a majority vote of a quorum        
consisting of directors not party to the proceeding, (2) in the written opinion 
of independent legal counsel if such a quorum is not available or if directed to
be obtained by a quorum of disinterested directors, or (3) by a majority vote of
the shareholders.                                                               

     Additionally, Article Ten provides that expenses incurred by a person who
is or was a director or officer of the Company in defending a civil or criminal 
action or proceeding shall be paid by the Company in advance of its final       
disposition if the Company receives an undertaking from the director or officer 
to repay any advanced amount if it is ultimately determined that he or she is   
not entitled to be indemnified pursuant to Article Ten.                         

   Further, Article 10 provides that other right(s) of indemnification may
exist as to any person seeking indemnification (whether under the Bylaws, any   
statute, agreement, vote of shareholders or disinterested directors or          
otherwise). The Company is also permitted to enter into agreements, without     
approval from its shareholders, with any director, officer, employee or agent   
that provide for indemnification the Company deems it to be appropriate (to the 
extent                                                                          

II-2

S-8 4th Page of 9 TOC 1st Previous Next ↓Bottom Just 4th
permitted by law), and it may purchase and maintain insurance for any director, 
officer, employee or agent of the Company (or of another entity at the request  
of the Company) against any liability arising in connection with such a         
relationship, even if the Company would not otherwise be authorized under       
Article 10 to provide such indemnification.                                     

     The Company's Bylaws, at Section 7.1, provide, in form and substance, for
indemnification that is the same as that which is provided under Article Ten.   

 The Company has also adopted in its Article Eleven of its Amended and
Restated Articles of Incorporation, and in Section 4.12 of its Bylaws, a        
provision limiting a director's personal liability for monetary damages for any 
action or omission unless (i) the director has breached or failed to perform his
or her duties under applicable law and (ii) the breach or failure to perform    
constitutes self-dealing, willful misconduct or recklessness. Further, Article  
Eleven anticipates that if Pennsylvania law is amended after February 25, 1997  
to reduce the personal liability of a director even further, than in (i) and    
(ii) Article Eleven will be effective to reduce a director's liability to that  
extent.                                                                         

      Insofar as indemnification for liabilities under the Securities Act may be
permitted to directors, officers or controlling persons of the Company pursuant 
to the Company's Articles, Bylaws and the PBCL, the Company has been informed   
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.                                                     

ITEM 7.    EXEMPTION FROM REGISTRATION CLAIMED.                                 

Not applicable.                                                     

ITEM 8.    EXHIBITS.                                                            

                                                                [Download Table]

EXHIBIT                                                                       
 NUMBER                     DESCRIPTION                                       
 ------                     -----------                                       
                                                                              
    4.1   Amended and Restated Articles of Incorporation (incorporated by     
          reference to Exhibit 4.1 to the Registration Statement on Form S-1, 
          File No. 333-19973).                                                

    4.2   Bylaws (incorporated by reference to Exhibit 4.2 to the Registration
          Statement on Form S-1, File No. 333-19973).                         

    5.1   Opinion of Buchanan Ingersoll Professional Corporation.             

    23.1  Consent of Ernst & Young LLP.                                       

    23.2  Consent of Arthur Andersen LLP (omitted pursuant to Rule 437(a)     

    23.3  Consent of Buchanan Ingersoll Professional Corporation (included in 
          exhibit 5.1).                                                       

    24.1  Power of Attorney (included on the signature page).                 

II-3

S-8 5th Page of 9 TOC 1st Previous Next ↓Bottom Just 5th
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 Registration Statement:    

                 (i) To include any prospectus required by Section 10(a)(3) of
      the Securities Act of 1933, as amended (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. Notwithstanding the foregoing,
        any increase or decrease in volume of securities offered (if the
            total dollar value of securities offered would not exceed that which
         was registered) and any deviation from the low or high end of the
        estimated maximum offering range may be reflected in the form of
           prospectus filed with the Commission pursuant to Rule 424(b) if, in
        the aggregate, the changes in volume and price represent no more
           than a 20% change in the maximum aggregate offering price set forth
       in the "Calculation of Registration Fee" table in the effective
Registration Statement; and                             

                 (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) above do not
apply if the information required to be included in a post-effective
     amendment by those paragraphs is contained in periodic reports filed with
      or furnished to the Commission by the registrant pursuant to Section 13 or
   Section 15(d) of the Exchange Act that are incorporated by reference 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.                                 

    (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.                            

II-4

S-8 6th Page of 9 TOC 1st Previous Next ↓Bottom Just 6th
(c) 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 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-5

S-8 7th Page of 9 TOC 1st Previous Next ↓Bottom Just 7th
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 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 Wheeling, State of West Virginia, on December 13,     
2002.                                                                           

                                     VALLEY NATIONAL GASES
                            INCORPORATED

                                          By    /s/ Michael L. Tyler
                                                   -----------------------------
                                                          Michael L. Tyler
                                                         Chief Executive Officer

Pursuant to the requirements of the Securities Act of 1933, this    
registration statement has been signed by the following persons in the          
capacities indicated on December 13, 2002.                                      

  Know all persons by these presents, that each director whose signature
appears below hereby constitutes and appoints Robert D. Scherich and Michael L. 
Tyler, and each of them, his or her true and lawful attorneys-in-fact and       
agents, each acting alone, with the powers of substitution and revocation, for  
him or her and in his or her name, place and stead, in any and all capacities,  
to sign this registration statement on Form S-8, and any and all amendments     
(including post-effective amendments) thereto, and to file the same, with all   
exhibits thereto and other documents in connection therewith, with the          
Securities and Exchange Commission, granting unto such attorneys-in-fact and    
agents, and each of them, full power and authority to do and perform each and   
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he or she might or could do in person,  
hereby ratifying and confirming all that such attorneys-in-fact and agents or   
any of them, or their substitute or substitutes, may lawfully do or cause to be 
done by virtue hereof.                                                          

                                                                [Download Table]
                                                                                
   /s/ Michael L. Tyler         Director and Chief Executive Officer            
------------------------------  (principal executive officer)                   
        Michael L. Tyler                                                        

   /s/ Robert D. Scherich       Chief Financial Officer                         
------------------------------  (principal financial officer and principal      
      Robert D. Scherich        accounting officer)                             

   /s/ John R. Bushwack         Executive Vice President, Secretary and Director
------------------------------                                                  
       John R. Bushwack                                                         

   /s/ Gary E. West             Chairman and Director                           
------------------------------                                                  
         Gary E. West                                                           

S-8 8th Page of 9 TOC 1st Previous Next ↓Bottom Just 8th
                                                                [Download Table]
                                                                
   /s/ William A. Indelicato          Vice Chairman and Director
------------------------------                                  
    William A. Indelicato                                       

   /s/ F. Walter Riebenack            Director                  
------------------------------                                  
     F. Walter Riebenack                                        

   /s/ James P. Hart                  Director                  
------------------------------                                  
       James P. Hart                                            

   /s/ Ben Exley, IV                  Director                  
------------------------------                                  
        Ben Exley, IV                                           

   /s/ August Maier                   Director                  
------------------------------                                  
        August Maier                                            

S-8 Last Page of 9 TOC 1st Previous Next ↓Bottom Just 9th
EXHIBIT INDEX TO
FORM S-8

VALLEY NATIONAL GASES INCORPORATED

                                                                [Download Table]

EXHIBIT                                                                      
 NUMBER                      DESCRIPTION                                     
 ------                      -----------                                     
                                                                             
   4.1   Amended and Restated Articles of Incorporation (incorporated by     
         reference to Exhibit 4.1 to the Registration Statement on Form S-1, 
         File No. 333-19973).                                                

   4.2   Bylaws (incorporated by reference to Exhibit 4.2 to the Registration
         Statement on Form S-1, File No. 333-19973).                         

   5.1   Opinion of Buchanan Ingersoll Professional Corporation.             

   23.1  Consent of Ernst & Young LLP.                                       

   23.2  Consent of Arthur Andersen LLP (omitted pursuant to Rule 437(a)     

   23.3  Consent of Buchanan Ingersoll Professional Corporation (included in 
         exhibit 5.1).                                                       

   24.1  Power of Attorney (included on the signature page).

S-8	1st Page of 9	TOC	↑Top	Previous	Next	↓Bottom	Just 1st

S-8	2nd Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 2nd

S-8	3rd Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 3rd

S-8	4th Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 4th

S-8	5th Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 5th

S-8	6th Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 6th

S-8	7th Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 7th

S-8	8th Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 8th

S-8	Last Page of 9	TOC	1st	Previous	Next	↓Bottom	Just 9th

Dates Referenced Herein and Documents Incorporated by Reference

		Referenced-On Page
This ‘S-8’ Filing	Date	First	Last	Other Filings

Filed on / Effective on:	12/13/02	1	7
	12/6/02	1
	9/30/02	2		10-Q
	6/30/02	2		10-K
	7/31/01	2
	6/30/01	2		10-K405
	6/30/00	2		10-K
	2/25/97	4
	1/17/97	2		8-A12G, S-1
				List all Filings

↑Top

Filing Submission 0000950152-02-009299 – Alternative Formats (Word / Rich Text, HTML, Plain Text, et al.)

Valley National Gases Inc – ‘S-8’ on 12/13/02

On: Friday, 12/13/02, at 4:23pm ET · Effective: 12/13/02 · Accession #: 950152-2-9299 · File #: 333-101840

Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8Filing Table of Contents

S-8 — Valley National Gases Incorporated Form S-8Document Table of Contents

Dates Referenced Herein and Documents Incorporated by Reference

Registration of Securities to be Offered to Employees Pursuant to an Employee Benefit Plan — Form S-8
Filing Table of Contents

S-8 — Valley National Gases Incorporated Form S-8
Document Table of Contents