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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
CONTINENTAL NATURAL GAS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
OKLAHOMA 73-1198957
(STATE OR OTHER JURISDICTION OF INCORPORATION) (IRS EMPLOYER IDENTIFICATION NO.)
1437 S. BOULDER, SUITE 1250, TULSA, OKLAHOMA 74119
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
CONTINENTAL NATURAL GAS, INC.
1997 STOCK PLAN
(FULL TITLE OF THE PLAN)
GARRY D. SMITH
VICE PRESIDENT - CONTROLLER
1437 S. BOULDER, SUITE 1250
TULSA, OKLAHOMA 74119
(NAME AND ADDRESS OF AGENT FOR SERVICE)
OFFICE: (918) 582-4700 FAX: (918) 560-4900
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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TITLE OF SECURITIES AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TO BE REGISTERED REGISTERED OFFERING PRICE PER SHARE AGGREGATE OFFERING PRICE REGISTRATION FEE
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
COMMON STOCK, PAR VALUE
$0.01 PER SHARE 250,000 * $2,937,500 $891
</TABLE>
* ESTIMATED IN ACCORDANCE WITH RULE 457(C), SOLELY FOR THE PURPOSE OF
CALCULATING THE REGISTRATION FEE. NONE OF THE SHARES HAVE BEEN
AWARDED, AND THE SHARES ARE BEING REGISTERED BASED UPON THE AVERAGE OF
THE BID AND ASKED PRICE OF THE SHARES OF THAT CLASS ON THE NATIONAL
ASSOCIATION OF SECURITIES DEALERS AUTOMATED QUOTATION SYSTEM ON
DECEMBER 18, 1997, $11.75 PER SHARE ($2,937,500 IN THE AGGREGATE).
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
The document(s) containing the information specified in Part I of Form S-8 will
be sent or given to participants in the Continental Natural Gas, Inc. 1997 Stock
Plan (the "Plan") as specified by Rule 428(b)(1) promulgated by the Securities
and exchange Commission (the "Commission) under the Securities Act of 1933, as
amended (the "Securities Act").
Such document(s) are not being filed with the Commission, but constitute (along
with the documents incorporated by reference into the Registration Statement
pursuant to Item 3 Part II hereof) a prospectus (the "Prospectus") that meets
the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents previously or concurrently filed by Continental Natural
Gas, Inc. (the "Company" or the "Registrant") with the Commission are hereby
incorporated by reference in this Registration Statement:
(a) The Company's 424(b) Prospectus filed with the Commission pursuant to
the Securities Act on August 4, 1997;
(b) The Company's reports on Form 10-Q for the quarters ended June 30,
1997, and September 30, 1997, filed pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(c) All other reports filed by the Company pursuant to Section 13(a) or
15(d) of the Exchange Act since the filing of the Registration
Statement (including Current Report on Form 8-K filed with the
Commission on December 9, 1997);
(d) The description of the common stock, par value $0.01 per share, of the
Registrant contained in the Registrant's Registration Statement on
Form 8-A (File No. 0-22867) filed with the Commission on July 22,
1997, and all amendments or reports filed for the purpose of updating
such description.
All documents subsequently filed by the Registrant with the Commission
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, 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 incorporated by reference into this Registration Statement and
to be a part thereof from the date of the filing of such documents. Any
statement contained in the documents incorporated, or deemed to be incorporated,
by reference herein shall be deemed to be modified or superseded for purposes of
this Registration
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Statement and the Prospectus to the extent that a statement contained
herein or therein or in any other subsequently filed document which also is, or
is 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 and the Prospectus.
The Company shall furnish without charge to each person to whom the Prospectus
is delivered, on the written or oral requests of such person, a copy of any or
all of the documents incorporated by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference to
the information that is incorporated). Requests should be directed to Gerald R.
Shrader, Assistant Secretary, Continental Natural Gas, Inc., 1437 S. Boulder,
Suite 1250, Tulsa, Oklahoma 74119, telephone number (918) 582-4700.
All information appearing in this Registration Statement and the Prospectus is
qualified in its entirety by the detailed information, including financial
statements, appearing in the documents incorporated herein or therein by
reference.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Legal:
Gerald R. Shrader, the Registrant's Assistant Secretary and General
Counsel, has given the legal opinion on the validity of the securities being
registered herewith.
Independent Public Accountants:
The consolidated balance sheets of Continental Natural Gas, Inc. as of
December 31, 1996 and 1995, and the consolidated statements of operations,
shareholders' equity and cash flows for each of the three years in the period
ended December 31, 1996, incorporated by reference in this registration
statement, have been included herein in reliance on the report of Coopers &
Lybrand, L.L.P., independent accountants, given on the authority of that firm as
experts in auditing and accounting. With respect to the unaudited interim
financial information for the periods ended March 31, 1997 and 1996, June
30, 1997 and 1996, and September 30, 1997 and 1996, incorporated by reference in
this registration statement, the independent accountants have reported that they
have applied limited procedures in accordance with professional standards for a
review of such information. However, their separate report included in the
Company's Prospectus filed pursuant to Rule 424(b) for the quarter ended March
31, 1997, and their separate reports included in the Company's quarterly reports
on Form 10-Q for the quarters ended June 30, 1997 and September 30, 1997,
incorporated by reference herein, state that they did not audit and they do not
express an opinion on that interim financial information. Accordingly, the
degree of reliance on their reports on such information should be restricted in
light of the limited nature of the review procedures applied. The accountants
are not subject to the liability provisions of Section 11 of the Securities Act
of 1933 for their report on the
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unaudited interim financial information because that report is not a
"report" or a "part" of the registration statement prepared or certified by the
accountants within the meaning of Section 7 and 11 of the Act.
Item 6. Indemnification of Directors and Officer.
As permitted by the Oklahoma General Corporation Act (the "Oklahoma
Corporate Act"), the Company's Certificate of Incorporation eliminates the
personal liability of a director to the Company for monetary damages for breach
of fiduciary duty of care as a director. Liability is not eliminated for (i) any
breach of the director's duty of loyalty to the Company or its stockholders,
(ii) acts or omissions not in good faith or which involve intentional misconduct
or a knowing violation of law, (iii) unlawful payment of dividends or stock
purchases or redemption pursuant to Section 1053 of the Oklahoma Corporate Act,
or (iv) any transaction from which the director derived an improper personal
benefit.
Section 1031 of the Oklahoma Corporate Act permits an Oklahoma corporation
to indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was an
officer, director, employee or agent of such corporation, or is or was serving
at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including
attorneys' fees), judgments, fines, and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interests,
and, with respect to any criminal action or proceeding, had no reasonable cause
to believe that his conduct was unlawful. An Oklahoma corporation may indemnify
any persons who were or are parties, or are threatened to be made a party, to
any threatened, pending or completed action or suit by or in the right of the
corporation by reason of the fact that such person is or was a director,
officer, employees, or agent of such corporation, or enterprise. The indemnity
may include expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection with the defense or settlement of such
action or suit, provided such person acted in good faith and in a manner he
reasonably believed to be in or not opposed to the corporation's best interest
except that no indemnification is permitted without judicial approval if the
officer is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
The Company's Certificate of Incorporation and Bylaws provide for
indemnification of directors and officers of the Company and persons who serve
at the request of the Company as a director or officer of another corporation in
which the Company owns stock for all liabilities, expenses (including attorneys'
fees) and costs incurred in a legal proceeding in which he is a party by reason
of his having been an officer or director. The Bylaws, however, exclude
indemnification for matters in which the officer or director is adjudged to have
been guilty of gross negligence or willful misconduct.
These indemnification provisions may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
(including reimbursement of expenses
3
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incurred) arising under the Securities Act of 1933 as amended (the
"Securities Act"). In the opinion of the Securities and Exchange Commission,
indemnification for liabilities arising under the Securities Act is against
public policy and, therefore, unenforceable. Accordingly, these indemnification
provisions may not limit the liability of directors and executive officers under
the Securities Act.
The Company currently carries insurance insuring the directors and officers
of the Company against losses, which they or any of them shall become legally
obligated to pay, for any actual or alleged error or misstatement or misleading
statement or act or omission or neglect or breach of duty by the directors and
officers in the discharge of their duties, individually or collectively, or any
claim against them solely by reason of their being directors or officers, such
coverage being limited by the specific terms and provisions of the insurance
policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
<TABLE>
<CAPTION>
REGULATION REFERENCE TO PRIOR
FORM S-K FILING OR EXHIBIT NUMBER
EXHIBIT NO. ATTACHED HERETO
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<S> <C> <C>
4.1 Continental Natural Gas, Inc. 1997 Stock Plan (incorporated by reference as
Exhibit 10.4 to the Regi-
strant's Registration State-
ment on S-1 File No.
333-25719))
4.2 Amended and Restated Certificate of (incorporated by reference as
Incorporation of the Registrant Exhibit 3.1 to Registrant's
Registration Statement on
Form S-1 (File No.
333-25719))
4.3 Amended and Restated Bylaw of Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's
Registration Statement on
Form S-1 (File No.
333-25719))
5 Opinion of Gerald R. Shrader Attached as Exhibit 5
15 Letter Regarding Unaudited Interim Attached as Exhibit 15
Financial Information
23.1 Consent of Gerald R. Shrader Attached as Exhibit 23.1
</TABLE>
4
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<TABLE>
<CAPTION>
REGULATION REFERENCE TO PRIOR
FORM S-K FILING OR EXHIBIT NUMBER
EXHIBIT NO. ATTACHED HERETO
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<S> <C> <C>
23.2 Consent of Coopers & Lybrand, L.L.P., Attached as Exhibit 23.2
Certified Public Accountant
24 Power of Attorney Contained on Signature Page
</TABLE>
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period which offers or sales are
being made, a post-effective amendment to this
registration statement to include any additional or
changed material information on the plan of
distribution.
(2) That, for determining liability under the Securities
Act of 1993, each such post-effective amendment shall
be treated as a new registration statement of the
securities offered therein, and the offering of such
securities at that time shall be treated as the initial
bona fide offering thereof; and
(3) To file a post-effective amendment to remove from
registration any of the securities that remain unsold
at the termination of the offering.
(b) The undersigned Registrant hereby further 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 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.
(c) Insofar as indemnification for liabilities under the Securities
Act of 1993 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 liability (other than the payment by
the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant of expenses
incurred or paid by a director, officer or controlling person in
the successful defense or any action, suit or proceeding) is
asserted by such 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.
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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 requirements for filing on Form S-8 and the Registrant has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized in the City of Tulsa, State of Oklahoma, on December 22, 1997.
CONTINENTAL NATURAL GAS, INC.
By /s/ GARY C. ADAMS
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Gary C. Adams, President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Gary C. Adams and Garry D. Smith, or either of
them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and all other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents full power and authority to do and perform each and every act and thing
requisite and necessary to be done, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all said
attorneys-in-fact and agents or their substitutes or substitute may lawfully do
or cause to be done by virtue hereof.
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<PAGE> 8
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on December 22, 1997.
/s/ GARY C. ADAMS /s/ WILLIAM W. PRITCHARD
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Gary C. Adams, President and Director William W. Pritchard, Director
(Principal Executive Officer)
/s/ SCOTT C. LONGMORE /s/ WILLIAM H. BAUCH
- -------------------------------------------- ------------------------------
Scott C. Longmore William H. Bauch, Director
Vice President and Director
/s/ TERRY K. SPENCER
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Terry K. Spencer, Vice President and
Director (Chief Operating Officer)
/s/ GARRY D. SMITH
- --------------------------------------------
Garry D. Smith, Vice President
Treasurer, Secretary and Director
(Principal Financial and Accounting Officer)
7
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EXHIBIT INDEX
<TABLE>
<CAPTION>
REGULATION PAGE NUMBER IN
S-K EXHIBIT SEQUENTIALLY NUMBERED
NUMBER REGISTRATION STATEMENT
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<S> <C> <C>
4.1 Continental Natural Gas, Inc. 1997 Stock Plan (incorporated by reference to
Exhibit 10.4 to the Registrant's
Registration Statement on S-1 File No.
333-25719))
4.2 Amended and Restated Certificate of (incorporated by reference to
Incorporation of the Registrant Exhibit 3.1 to Registrant's
Registration Statement on
Form S-1 (File No. 333-25719))
4.3 Amended and Restated Bylaw of Registrant (incorporated by reference to
Exhibit 3.2 to Registrant's
Registration Statement on
Form S-1 (File No. 333-25719))
5 Opinion of Gerald R. Shrader Attached as Exhibit 5
15 Letter Regarding Unaudited Interim Attached as Exhibit 15
Financial Information
23.1 Consent of Gerald R. Shrader Attached as Exhibit 23.1
23.2 Consent of Coopers & Lybrand, L.L.P., Attached as Exhibit 23.2
Certified Public Accountant
24 Power of Attorney Contained on Signature Page
</TABLE>
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EXHIBIT 5
December 22, 1997
Board of Directors
Continental Natural Gas, Inc.
1437 S. Boulder, Suite 1250
Tulsa, Oklahoma 74119
Gentlemen:
I have acted as counsel to Continental Natural Gas, Inc. (the
"Corporation") in connection with the preparation and filing with the Securities
and Exchange Commission of a Registration Statement on Form S-8 under the
Securities Act of 1933 (the "Registration Statement") relating to 250,000
shares of the Corporation's Common Stock, par value $.01 per Share (the "Common
Stock"), to be offered pursuant to the 1997 Stock Plan of the Corporation (the
"Plan").
In this connection, I have reviewed originals or copies, certified or
otherwise identified to our satisfaction, of the Corporation's Amended and
Restated Articles of Incorporation, Amended and Restated Bylaws, resolutions of
its Board of Directors and such other documents and corporate records as deemed
appropriate for the purpose of giving this opinion.
Based upon the foregoing, it is my opinion that:
1. The shares of Common Stock being so registered have been duly
authorized under the Corporation's Amended and Restated Articles of
Incorporation.
2. The shares of Common Stock to be offered by the Corporation will be,
when and if issued, sold and paid for as contemplated by the Plan,
legally issued, fully paid and non-assessable shares of Common Stock
of the Corporation.
Sincerely,
Gerald R. Shrader
General Counsel
GRS/lg
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EXHIBIT 15
December 22, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: Continental Natural Gas, Inc.
Registration on Form S-8
We are aware that our report dated June 10, 1997 on our review of interim
financial information of Continental Natural Gas, Inc. for the period ended
March 31, 1997 included in the Company's Prospectus filed pursuant to Rule
424(b) is incorporated by reference in this Registration Statement on Form S-8.
Also, we are aware that our reports dated August 13, 1997 and November 11, 1997
on our reviews of interim financial information of Continental Natural Gas, Inc.
for the periods ended June 30, 1997, and September 30, 1997 included in the
Company's quarterly reports on Form 10-Q for the quarters then ended are
incorporated by reference in this Registration Statement on Form S-8. Pursuant
to Rule 436(c) under the Securities Act of 1933, these reports should not be
considered a part of the Registration Statement prepared or certified by us
within the meaning of Sections 7 and 11 of that Act.
COOPERS & LYBRAND, L.L.P.
<PAGE> 1
EXHIBIT 23.1
December 22, 1997
Board of Directors
Continental Natural Gas, Inc.
1437 S. Boulder, Suite 1250
Tulsa, Oklahoma 74119
Gentlemen:
I hereby consent to the inclusion of my opinion as Exhibit 5 of this
Registration Statement and the reference to such opinion in the Prospectus. In
giving this consent, I do not admit that I am within the category of Persons
whose consent is required under Section 7 of the Securities Act of 1933, as
amended, or the rules and regulations of the Securities and Exchange Commission
thereunder.
Sincerely,
Gerald R. Shrader
General Counsel
GRS/lg
<PAGE> 1
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement of
Continental Natural Gas, Inc. on Form S-8 (File No. _________) of our reports
dated March 21, 1997, on our audits of the consolidated financial statements and
financial statement schedule of Continental Natural Gas, Inc. as of December 31,
1996 and 1995, and for each of the three years in the period ended December 31,
1996, which reports are included in the Company's Prospectus filed pursuant to
Rule 424(b). We also consent to the reference to our firm under the caption
"Independent Public Accountants."
COOPERS & LYBRAND, L.L.P.
TULSA, OKLAHOMA
DECEMBER 22, 1997
