As filed with the Securities and Exchange Commission on May 2, 2003
Registration No. 333-
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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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UGI CORPORATION
(Exact name of registrant as specified in its charter)
PENNSYLVANIA 23-2668356
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
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460 NORTH GULPH ROAD
KING OF PRUSSIA, PA 19406
(Address, including zip code, of principal executive offices)
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UGI CORPORATION 2002 NON-QUALIFIED STOCK OPTION PLAN
(Full title of the plan)
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BRENDAN P. BOVAIRD, ESQ.
VICE PRESIDENT AND GENERAL COUNSEL
UGI CORPORATION
460 NORTH GULPH ROAD
KING OF PRUSSIA, PA 19406
(610) 337-1000
(Name, address, and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Proposed Proposed
maximum maximum
Title of securities to Amount to be offering price aggregate offering Amount of
be registered registered(1) per share(2) price registration fee
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Common stock,
without par value 750,000 shares $31.22 $23,415,000.00 $1,894.00
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(1) Pursuant to Rule 416(a) under the Securities Act of 1933, as amended
(the "Securities Act"), the number of shares being registered shall be
adjusted to include any additional shares which may become issuable as
a result of stock splits, stock dividends, or similar transactions in
accordance with the anti-dilution provisions of the plan.
(2) Calculated pursuant to Rule 457(c) and (h), based upon the average of
the reported high and low sales prices for the Common Stock as reported
on the New York Stock Exchange for April 28, 2003.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.
Omitted pursuant to Rule 428 and Form S-8.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
Omitted pursuant to Rule 428 and Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by UGI Corporation with the Commission
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are
hereby incorporated by reference and deemed to be a part of this registration
statement:
(a) Our annual report on Form 10-K for the fiscal year ended
September 30, 2002;
(b) Our quarterly report on Form 10-Q, as amended on April 14,
2003, for the fiscal quarter ended December 31, 2002;
(c) Our current reports on Form 8-K filed on November 1, 2002,
January 22, 2003 and February 26, 2003;
(d) The description of our Common Stock contained in our
registration statement on Form 8-B, dated March 23, 1992, as amended by
Amendment No. 1 to Form 8-B, dated April 10, 1992, and on Form 8-A, dated June
24, 1996, and any amendments or reports filed after the date hereof for the
purpose of updating such description; and
(e) All documents that we file pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Exchange Act, other than reports on Form 8-K furnished to
the Commission pursuant to items 9 or 12 of Form 8-K, after the date of
this registration statement and prior to the filing of a post-effective
amendment to this registration statement which indicates that all securities
offered hereby have been sold or which deregisters all securities then
remaining unsold.
If information in any document incorporated by reference conflicts with
information in this prospectus, you should rely on the most recent information.
If information in any document incorporated by reference conflicts with
information in another document incorporated by reference, you should rely on
the most recent document incorporated by reference.
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Our annual report on Form 10-K for the fiscal year ended September 30,
2002 contains our consolidated financial statements for fiscal year 2001 and
2000, which were audited by Arthur Andersen LLP ("Andersen"), and Andersen's
report dated November 16, 2001 ("Andersen's Report") with respect to those
consolidated financial statements. After making reasonable efforts, we have been
unable to obtain Andersen's consent to incorporate into this registration
statement Andersen's Report. Under these circumstances, Rule 437(a) under the
Securities Act permits us to file this registration statement without such
consent. The absence of such consent means that investors will not be able to
assert any claims they may have against Andersen under Section 11 of the
Securities Act relating to the consolidated financial statements covered by
Andersen's Report and incorporated by reference into this registration
statement.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The validity of the shares of Common Stock covered by this registration
statement will be passed upon for us by Brendan P. Bovaird, Vice President and
General Counsel of UGI Corporation. As of May 1, 2003, Mr. Bovaird held 34,524
shares of Common Stock, 31,500 performance-contingent phantom shares of Common
Stock and exercisable options to purchase 80,250 shares of Common Stock.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 1741 of the Pennsylvania Business Corporation Law of 1988
provides that a business corporation may indemnify directors and officers
against any threatened, pending or completed action or proceeding, provided that
the person in question acted in good faith and in a manner he or she 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
or her conduct was unlawful. Section 1742 provides, however, that a business
corporation may indemnify its directors and officers only against expenses
(including attorneys' fees) if the action or proceeding is by or in the right of
the corporation. In addition, Section 1742 states that indemnification shall not
be made if the person has been adjudged to be liable to the corporation unless
it is judicially determined that, despite the adjudication of liability but in
view of all of the circumstances of the case, the person is fairly and
reasonably entitled to indemnification for certain expenses. Section 1743
requires a corporation to indemnify its directors and officers against expenses
they may incur in defending actions against them in such capacities if they are
successful on the merits or otherwise in the defense of such actions.
Section 1713 of the Business Corporation Law permits the shareholders
to adopt a bylaw provision relieving a director (but not an officer) of personal
liability for monetary damages except where (i) the director has breached the
applicable standard of care, and (ii) such conduct constitutes self-dealing,
willful misconduct or recklessness. This section also provides that a director
may not be relieved of liability for the payment of taxes pursuant to any
federal, state or
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local law or of responsibility under a criminal statute. Section 4.01 of our
Bylaws limits the liability of any director to the fullest extent permitted by
Section 1713 of the Business Corporation Law.
Section 1746 of the Business Corporation Law grants a corporation broad
authority to indemnify its directors, officers and other agents for liabilities
and expenses incurred in such capacity, except in circumstances 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. Article VII of our
Bylaws provides for indemnification of directors, officers and other agents to
the extent otherwise permitted by Section 1741 of the Business Corporation Law
and pursuant to the authority of Section 1746 of the Business Corporation Law.
Article VII of our Bylaws provides, except as expressly prohibited by
law, an unconditional right to indemnification for expenses and any liability
paid or incurred by any of our directors or officers, or any other person
designated by the Board of Directors as an indemnified representative, in
connection with any actual or threatened claim, action, suit or proceeding
(including derivative suits) in which he or she may be involved by reason of
being or having been our director, officer, employee or agent, or at our
request, of another corporation, partnership, joint venture, trust, employee
benefit plan or other entity. The Bylaws specifically authorize indemnification
against both judgments and amounts paid in settlement of derivative suits.
Section 1742 of the Business Corporation Law only authorizes indemnification of
expenses incurred in defending a derivative action. Article VII of the Bylaws
also allows indemnification for punitive damages and liabilities incurred under
federal securities laws.
Unlike the provisions of Business Corporation Law Sections 1741 and
1742, Article VII does not require us to determine the availability of
indemnification by the procedures or the standard of conduct specified in
Sections 1741 and 1742 of the Business Corporation Law. A person who has
incurred an indemnifiable expense or liability has a right to be indemnified
independent of any procedures or determinations that otherwise would be
required, and that right is enforceable against us as long as indemnification is
not prohibited by law. To the extent indemnification is permitted only for a
portion of a liability, the Bylaw provisions require us to indemnify such
portion. If the indemnification provided for in Article VII is unavailable for
any reason in respect of any liability or portion thereof, the Bylaws require us
to make a contribution toward the liability. Indemnification rights under the
Bylaws do not depend upon the approval of any future Board of Directors.
Section 7.04 of our Bylaws authorizes us to further effect or secure
our indemnification obligations by entering into indemnification agreements,
maintaining insurance, creating a trust fund, granting a security interest in
its assets or property, establishing a letter of credit or using any other means
that may be available from time to time.
Section 5.01(c) of our Bylaws limits the personal liability of our
officers to us to the same extent that directors are relieved of such
liabilities pursuant to Section 4.01 of the Bylaws, with the exception that the
limitation of the liability of officers applies only to liabilities arising out
of
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derivative claims by shareholders asserting a right of ours and not to
liabilities arising out of third party claims.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The following is a list of all exhibits filed as a part of this
registration statement.
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Exhibit Number Description of Exhibits
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4.1 Amended and Restated Articles of Incorporation of UGI
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4.2 Bylaws of UGI, as amended on February 25, 2003
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Rights Agreement, as amended as of August 18, 2000, between UGI and Mellon
4.3 Bank, N.A., successor to Mellon Bank (East) N.A., as Rights Agent, and
Assumption Agreement dated April 7, 1992 incorporated by reference from
Exhibit 4.3 of our registration statement No. 333-49080
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5 Opinion of Brendan P. Bovaird, Vice President and General Counsel of UGI
Corporation
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23.1 Consent of PricewaterhouseCoopers LLP
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23.2 Consent of Brendan P. Bovaird (included in his opinion filed as Exhibit 5 to
this registration statement)
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24 Power of Attorney (included on signature page hereof)
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ITEM 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(a)(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;
(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
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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 SEC 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;
(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) of this section 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.
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 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.
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
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, UGI
Corporation 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 King of Prussia, Pennsylvania, on April 29, 2003.
UGI CORPORATION, a Pennsylvania
corporation
By: Lon R. Greenberg
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Lon R. Greenberg, its Chairman,
President and Chief Executive Officer
Each person whose signature appears below hereby appoints Lon R.
Greenberg, Brendan P. Bovaird and Anthony J. Mendicino, and each of them, as his
or her true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities, to sign any and all amendments (including
post-effective amendments) to this registration statement, and any registration
statements filed pursuant to General Instruction E to Form S-8 in respect of
this registration statement and any and all amendments (including post-effective
amendments) to any such registration statement, and to file the same, with all
exhibits thereto and all other documents in connection therewith, with the
Commission, granting unto said attorneys-in-fact and agents full power and
authority to perform each and every act and thing appropriate or necessary to be
done, as full and for all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or their substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
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 date indicated:
Signature Capacity in which Signed Date
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Lon R. Greenberg Chairman, President and Chief April 29, 2003
---------------------- Executive Officer (Principal
Lon R. Greenberg Executive Officer) and Director
Anthony J. Mendicino Senior Vice President--Finance April 29, 2003
---------------------- (Principal Financial Officer and
Anthony J. Mendicino Principal Accounting Officer)
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Stephen D. Ban Director April 29, 2003
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Stephen D. Ban
Thomas F. Donovan Director April 29, 2003
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Thomas F. Donovan
Richard C. Gozon Director April 29, 2003
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Richard C. Gozon
Ernest E. Jones Director April 29, 2003
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Ernest E. Jones
Director April , 2003
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Anne Pol
Marvin O. Schlanger Director April 29, 2003
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Marvin O. Schlanger
James W. Stratton Director April 29, 2003
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James W. Stratton
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EXHIBIT INDEX
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Exhibit Number Description of Exhibits
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4.1 Amended and Restated Articles of Incorporation of UGI
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4.2 Bylaws of UGI, as amended on February 25, 2003
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5 Opinion of Brendan P. Bovaird, Vice President and General
Counsel of UGI Corporation
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23.1 Consent of PricewaterhouseCoopers LLP
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23.2 Consent of Brendan P. Bovaird (included in his opinion filed as
Exhibit 5 to this registration statement)
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24 Power of Attorney (included on signature page hereof)
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