S-8 1 jul1604_s8.htm jul1604_s8

 

As filed with the Securities and Exchange Commission on July 16, 2004
Registration No. 333-_____

SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

FORM S-8

     REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

Commonwealth Telephone Enterprises, Inc.
(Exact Name of Registrant as specified in its charter)

Pennsylvania 23-2093008
(State or other jurisdiction of
incorporation or organization) 		(I.R.S. Employer
Identification No.)

     100 CTE Drive
Dallas, Pennsylvania 18612-9774
(Address including zip code of Principal Executive Offices)

Commonwealth Builder 401(k) Plan
(Full title of the plan)

Ray B. Ostroski, Esq.
Senior Vice President,
General Counsel and Corporate Secretary
Commonwealth Telephone Enterprises, Inc.
100 CTE Drive
Dallas, Pennsylvania 18612-9774
(570) 631-2700
(Name, address and telephone number, including area code, of agent for service)

Copy to:

     Barbara Nims, Esq.
Davis Polk & Wardwell
450 Lexington Avenue
New York, New York 10017
212-450-4000


CALCULATION OF REGISTRATION FEE
   Title of Securities to be Registered Amount to be
Registered(1)(2)		 Proposed Maximum
Offering Price Per
Share (3)		 Proposed Maximum
Aggregate
Offering Price (3)		 Amount of
Registration Fee
Common Stock, par value $1.00 per share (“Common Stock”)(1)(2) 400,000 $44.20 $17,680,000 $2,240.06
(1) Plus an indeterminate number of additional shares which may be offered or issued to prevent dilution from stock splits, stock dividends or similar transactions.
(2) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Commonwealth Builder 401(k) Plan.
(3) Estimated solely for the purpose of determining the registration fee pursuant to paragraphs (c) and (h) of Rule 457 under the Securities Act of 1933, on the basis of the high and low sales prices of the Company’s Common Stock as reported by NASDAQ on July 9, 2004.




PART I

     The information specified in Item 1 and Item 2 of Part I of the Registration Statement is omitted from this filing in accordance with the provisions of Rule 428 under the Securities Act of 1933, as amended (the “1933 Act”) and the introductory note to Part I of the Registration Statement. The documents containing the information specified in Part I will be delivered to the participants in the plan covered by this Registration Statement as required by Rule 428(b)(1).

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE

     The following documents filed with the Securities and Exchange Commission (the “Commission”) by Commonwealth Telephone Enterprises, Inc. (the “Company”) pursuant to the Securities Exchange Act of 1934, as amended (the “1934 Act”), are incorporated herein by reference.

      (1) The Company’s Annual Report on Form 10-K for the year ended December 31, 2003.

      (2) All reports filed pursuant to Section 13(a) or 15(d) of the 1934 Act since December 31, 2003.

      (3) The description of the Company’s Common Stock, each contained in the Company’s registration statement on Form 8-A, dated September 25, 1998.

     All documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the 1934 Act, 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 herein and to be a part hereof from the date of filing of such documents.

     Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed document which also is incorporated or deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

ITEM 4. DESCRIPTION OF SECURITIES

      Not applicable.

ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL

     Raymond B. Ostroski, Esq., has given his opinion about certain legal matters affecting the shares of the Company’s Common Stock registered under this Registration Statement. Mr. Ostroski is Senior Vice President, General Counsel and Corporate Secretary of the Registrant and beneficially owns, or has the right to acquire, a number of shares of the Company’s Common Stock which represents less than 1% of the total outstanding Common Stock of the Company.

ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS

     Section 1741 of the Business Corporation Law of the Commonwealth of Pennsylvania (“BCLCP”) provides that, in addition to the mandatory indemnification provided in Section 1743 of the BCLCP, a corporation may indemnify a director or officer who was or is a party or is threatened to be made a party to any action or proceeding, whether civil criminal, administrative or investigative, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with the action or proceeding, provided 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.

     Section 1742 of the BCLCP provides that a corporation may indemnify a director or officer made, or threatened to be made, a party to any derivative action, against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of the action, provided 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.

     In addition, Article V of the Bylaws of the Registrant provides that, except as prohibited by law, no director (or former director) shall be liable to the Registrant corporation or its shareholders for monetary damages for or resulting from any act, omission or failure to act by reason of the fact that he is or was a director. In addition, the indemnification does not apply to (i) any breach of duty or failure to perform a duty that constitutes self-dealing, willful misconduct or recklessness, or (ii) any criminal responsibility or liability or the payment of taxes pursuant to local, state or federal law.

     The Bylaws specify that any person (and the heirs, executors or administrators of such person) who was or is a party or is threatened to be made a party to, or is involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such person is or was a director or officer of the Registrant (or serving at the request of the Registrant) shall be indemnified and held harmless to the fullest extent permitted by Pennsylvania law. Such person shall be entitled to be paid in advance of the final disposition of such proceedings to the fullest extent authorized by Pennsylvania Law. Other individuals serving as employees or agents of the Registrant, or serving as such at another corporation, partnership, limited liability company, joint venture, trust, or other enterprise at the request of the Registrant, may be indemnified by action of the Board of Directors of the Registrant to the extent and to the effect it determines appropriate and authorized by Pennsylvania law.

ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED

      Not applicable.

ITEM 8. EXHIBITS

4.1   Amended and Restated Articles of Incorporation (filed with the Corporation Bureau of the Pennsylvania Department of State on September 3, 2003 and incorporated herein by reference to Exhibit 3.12 to the Company’s Form S-1 Registration Statement, Registration No. 333-10325, as filed with the Securities and Exchange Commission on November 7, 2003).*
     
4.2   Amended and Restated Bylaws of the Company (incorporated herein by reference to Exhibit 3.1 of the Company’s Form 8-K, File Number 0-11053, filed with the Securities and Exchange Commission on December 3, 2003).*
     
4.3   Commonwealth Builder 401(k) Plan.
     
5.1   Opinion of Raymond B. Ostroski, Esq. as to the legality of the Common Stock being registered pursuant hereto.
     
5.2   Letter dated July 13, 2004 from Milliman USA, Inc. regarding qualification of the plan under Section 401 of the Internal Revenue Code of 1986, as amended.
     
23.1   Consent of PricewaterhouseCoopers LLP.
     
23.2   Consent of Raymond B. Ostroski, Esq. (included in his opinion filed as Exhibit 5.1).
     
24.1   Power of Attorney for Frank M. Henry.
     
24.2   Power of Attorney for Richard R. Jaros.
     
24.3   Power of Attorney for Daniel E. Knowles.






24.4 Power of Attorney for David C. McCourt.
   
24.5 Power of Attorney for David C. Mitchell.
   
24.6 Power of Attorney for Eugene Roth.
   
24.7 Power of Attorney for John J. Whyte.

____________________
* Incorporated by reference.

ITEM 9. REQUIRED UNDERTAKINGS

      (a) The undersigned Company hereby undertakes:

     (1) 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 this Registration Statement or any material change to such information in this Registration Statement.

     (2) That, for the purpose of determining any liability under the 1933 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 company hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in this 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 1933 Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the company of expenses incurred or paid by a director, officer or controlling person of the Company 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 Company 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 1933 Act and will be governed by the final adjudication of such issue.





SIGNATURES

     Pursuant to the requirements of the 1933 Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, Commonwealth of Pennsylvania, on the 14th day of July, 2004.

By: /s/ Michael J. Mahoney
 
Name: Michael J. Mahoney
Title: President and Chief Executive Officer

     Pursuant to the requirements of the 1933 Act, the trustees (or other persons who administer the Commonwealth Builder 401(k) Plan (the “Plan”)) have duly caused this Registration Statement to be signed on behalf of the Plan by the undersigned, thereunto duly authorized, in the City of Dallas, Commonwealth of Pennsylvania, on the 14th day of July, 2004.

By: /s/ F. Andrew Logue
 
Name: F. Andrew Logue
Title: Vice President of Human Resources




     Pursuant to the requirements of the 1933 Act, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.

Signature Title Date  
       
/s/ Michael J. Mahoney President and Chief Executive July 14, 2004  
Officer    
Michael J. Mahoney      
       
/s/ Donald P. Cawley Executive Vice President and Chief July 14, 2004  
Accounting Officer    
Donald P. Cawley      
       
Director    
Walter Scott, Jr.      
       
       
Director    
James Q. Crowe      
       
       
* Director July 16, 2004  
     
Frank M. Henry      
       
       
  * Director July 16, 2004  
     
Richard R. Jaros      
       
       
* Director July 16, 2004  
     
Daniel E. Knowles      
       
       
* Director July 16, 2004  
     
David C. McCourt      
       
       
* Director July 16, 2004  
     
David C. Mitchell      
       
* Director July 16, 2004  
     
Eugene Roth      
       
       
* Director July 16, 2004  
     
John J. Whyte      
       
*By: /s/ Michael J. Mahoney
 
  Name:  Michael J. Mahoney
  Title:    Attorney-in-Fact

Date: July 16, 2004





EXHIBIT INDEX

4.1   Amended and Restated Articles of Incorporation (filed with the Corporation Bureau of the Pennsylvania Department of State on September 3, 2003 and incorporated herein by reference to Exhibit 3.12 to the Company’s Form S-1 Registration Statement, Registration No. 333-10325, as filed with the Securities and Exchange Commission on November 7, 2003).*
     
4.2   Amended and Restated Bylaws of the Company (incorporated herein by reference to Exhibit 3.1 of the Company’s Form 8-K, File Number 0-11053, filed with the Securities and Exchange Commission on December 3, 2003).*
     
4.3   Commonwealth Builder 401(k) Plan.
     
5.1   Opinion of Raymond B. Ostroski, Esq. as to the legality of the Common Stock being registered pursuant hereto.
     
5.2   Letter dated July 13, 2004 from Milliman USA, Inc. regarding qualification of the plan under Section 401 of the Internal Revenue Code of 1986, as amended.
     
23.1   Consent of PricewaterhouseCoopers LLP.
     
23.2   Consent of Raymond B. Ostroski, Esq. (included in his opinion filed as Exhibit 5.1).
     
24.1   Power of Attorney for Frank M. Henry.
     
24.2   Power of Attorney for Richard R. Jaros.
     
24.3   Power of Attorney for Daniel E. Knowles.
     
24.4   Power of Attorney for David C. McCourt.
     
24.5   Power of Attorney for David C. Mitchell.
     
24.6   Power of Attorney for Eugene Roth.
     
24.7   Power of Attorney for John J. Whyte.

____________________
* Incorporated by reference.