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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CASCADE NATURAL GAS CORPORATION
(Exact name of registrant as specified in its charter)
Washington 91-0599090
(State of Incorporation) (I.R.S. Employer Identification No.)
222 Fairview Avenue North
Seattle, Washington 98109
(Address, including zip code, of principal executive offices)
CASCADE NATURAL GAS CORPORATION
1998 STOCK INCENTIVE PLAN
(Full title of the plan)
J.D. WESSLING
Vice President -- Finance
Cascade Natural Gas Corporation
222 Fairview Avenue North
Seattle, Washington 98109
(206) 624-3900
(Name, address, including zip code, 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
Amount to be Offering Price Aggregate Amount of
Title of Securities to be Registered Registered Per Share Offering Price Registration Fee
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<S> <C> <C> <C> <C>
Common Stock, $1 par value, (including 150,000 shares (2) $2,695,500 (2) $750
Preferred Stock Purchase Rights)
and options and other stock-based awards
relating thereto (1)
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(1) Each share of Common Stock being registered herender includes one Preferred
Stock Purchase Right exercisable on the terms and conditions specified therein.
Prior to the occurrence of certain events, the Preferred Stock Purchase Rights
will not be evidenced separately from the Common Stock; value attributable to
such rights, if any, is reflected in the market price of the Common Stock.
(2) Pursuant to Rule 457(h), the aggregate offering price is based on $17.97,
the average of the high and low per share sales prices of the Common Stock on
the New York Stock Exchange Composite Transactions on September 29, 1999.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed by the registrant with the
Securities and Exchange Commission are incorporated by reference in this
registration statement:
(a) The registrant's annual report on Form 10-K for the year
ended September 30, 1998;
(b) The registrant's quarterly reports on Form 10-Q for the
quarters ended December 31, 1998, March 31, 1999, and June 30, 1999; and
(c) The description of the registrant's common stock and related
preferred stock purchase rights included as Exhibit 99 to the registrant's
current report on Form 8-K filed July 19, 1996.
All documents filed by the registrant subsequent to those listed
above pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange
Act of 1934, as amended, 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.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Indemnification
Section 23B.08.310 of the Revised Code of Washington ("RCW"), a
part of the Washington Business Corporation Act (the "Act"), provides that any
director of a corporation against whom a claim shall be asserted under or
pursuant to said section for the making of any distribution contrary to the
provisions of the Act or any other restrictions contained in the corporation's
articles of incorporation, and who shall be held liable thereon, shall be
entitled to a pro rata contribution from the shareholders who accepted or
received such distribution, knowing the same to have been made in violation of
the Act. Said section also provides that any such director shall be entitled to
contribution from the other directors who voted for or assented to any such
action upon which a claim is asserted under said section.
Under RCW Sections 23B.08.510 to 23B.08.570 of the Act, a person
who is made a party to a proceeding because such person is or was an officer or
director of a corporation (an
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"Indemnitee") shall be indemnified by the corporation (unless the corporation's
articles of incorporation provide otherwise) against reasonable expenses
incurred by the Indemnitee in connection with the proceeding if the Indemnitee
is wholly successful, on the merits or otherwise, or if ordered by a court of
competent jurisdiction. In addition, under said sections a corporation is
permitted to indemnify an Indemnitee against liability incurred in a proceeding
if (i) the Indemnitee's conduct was in good faith, (ii) in a manner he or she
reasonably believed was in the corporation's best interests or at least not
opposed to the corporation's best interests, (iii) the Indemnitee had no
reasonable cause to believe his or her conduct was unlawful if the proceeding
was a criminal proceeding, (iv) the Indemnitee was not adjudged liable to the
corporation if the proceeding was by or in the right of the corporation, and (v)
the Indemnitee was not adjudged liable on the basis that he or she improperly
received a personal benefit. Indemnification in connection with a proceeding by
or in the right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
Article XVI, as amended, of the Restated Bylaws of the registrant
provides as follows:
"Sec. 1. Each person who was or is made a party or is threatened
to be made a party to or is involved (including, without
limitation, as a witness) in any actual or threatened action,
suit or proceeding, whether civil, criminal, administrative or
investigative, formal or informal, by reason of the fact that he
or she is or was a director or officer of the corporation or,
being or having been such a director or officer, he or she is or
was serving at the request of the corporation as a director,
officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise, including
service with respect to employee benefit plans, whether the basis
of such proceeding is alleged action in an official capacity as a
director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent or in any
other capacity, shall be indemnified and held harmless by the
corporation to the full extent permitted by applicable law as
then in effect, against all expense, liability and loss
(including, without limitation, attorneys' fees, judgments,
fines, ERISA excise taxes or penalties and amounts to be paid in
settlement) actually or reasonably incurred or suffered by such
person in connection therewith. Such indemnification shall
continue as to a person who has ceased to be a director, officer,
employee or agent and shall inure to the benefit of his or her
heirs, executors and administrators; provided, however, that no
indemnification shall be provided under this Article to any such
person to the extent that such indemnification would not be
consistent with the Washington Business Corporation Act or other
applicable law as then in effect; provided further, however, that
except as provided in Sec. 2 of this Article with respect to
proceedings seeking to enforce rights to indemnification, this
corporation shall indemnify any such person seeking
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indemnification in connection with a proceeding (or part thereof)
initiated by such person only if such proceeding (or part
thereof) was authorized by the Board of Directors of this
corporation. The right to indemnification conferred in this
Article shall be a contract right and shall include the right to
be paid by the corporation the expense incurred in defending any
such proceeding in advance of its final disposition; provided,
however, that the payment of such expenses in advance of the
final disposition of a proceeding shall be made to or on behalf
of a director or officer only upon delivery to the corporation of
an undertaking, by or on behalf of such director or officer, to
repay all amounts so advanced if it shall ultimately be
determined that such director or officer is not entitled to be
indemnified under this Section or otherwise.
"Sec. 2. If a claim under Sec. 1 of this Article is not paid in
full by this corporation within sixty days after a written claim
has been received by this corporation (except in the case of a
claim for expenses incurred in defending a proceeding in advance
of its final disposition, in which case the applicable period
shall be twenty days), the claimant may at any time thereafter
bring suit against the corporation to recover the unpaid amount
of the claim and, to the extent successful in whole or in part,
the claimant shall be entitled to be paid also the expense of
prosecuting such claim. The claimant shall be presumed to be
entitled to indemnification hereunder upon submission of a
written claim (and, in an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition, where the required undertaking has been
tendered to this corporation), and thereafter this corporation
shall have the burden of proof to overcome the presumption that
the claimant is not so entitled. It shall be a defense to any
such action (other than an action brought to enforce a claim for
expenses incurred in defending any proceeding in advance of its
final disposition where the required undertaking, if any is
required, has been tendered to this corporation) that the
claimant has not met the standards of conduct which make it
permissible hereunder or under the Washington Business
Corporation Act for this corporation to indemnify the claimant
for the amount claimed, but the burden of proving such defense
shall be on this corporation. Neither the failure of this
corporation (including its Board of Directors, independent
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legal counsel, or its shareholders) to have made a determination
prior to the commencement of such action that indemnification of
or reimbursement or advancement of expenses to the claimant is
proper in the circumstances because he or she has met the
applicable standard of conduct set forth herein or in the
Washington Business Corporation Act nor an actual determination
by this corporation (including its Board of Directors,
independent legal counsel, or its shareholders) that the claimant
is not entitled to indemnification or to the reimbursement or
advancement of expenses shall be a defense to the action or
create a presumption that the claimant is not so entitled.
"Sec. 3. The right to indemnification and the payment of expenses
incurred in defending a proceeding in advance of its final
disposition conferred in this Article shall not be exclusive of
any other right which any person may have or hereafter acquire
under any statute, provision of the Articles of Incorporation,
bylaws, agreement, vote of shareholders or disinterested
directors or otherwise.
"Sec. 4. The corporation may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of
the corporation or another corporation, partnership, joint
venture, trust or other enterprise against any expense, liability
or loss, whether or not the corporation would have the power to
indemnify such person against such expense, liability or loss
under the Washington Business Corporation Act. The corporation
may enter into contracts with any director or officer of the
corporation in furtherance of the provisions of this Article and
may create a trust fund, grant a security interest or use other
means (including, without limitation, a letter of credit) to
ensure the payment of such amounts as may be necessary to effect
indemnification as provided in this Article.
"Sec. 5. The corporation may, by action of its Board of Directors
from time to time, provide indemnification and pay expenses in
advance of the final disposition of a proceeding to employees and
agents of the corporation with the same scope and effect as the
provisions of this Article with respect to the indemnification
and advancement of expenses of directors and officers of the
corporation or pursuant to rights granted pursuant to, or
provided by, the Washington Business Corporation Act or
otherwise."
Insurance
The registrant also has a Directors and Officers Liability
insurance policy insuring, among other matters, the liability of the registrant
to its officers and directors under the indemnity provisions described above and
insuring its officers and directors against liability incurred in their
capacities as officers and directors.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
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ITEM 8. EXHIBITS.
The Index to Exhibits listing the exhibits required by Item 601
of Registration S-K is located on page II-10.
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 ("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;
(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) 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 Securities Exchange Act of 1934 ("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 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to 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.
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(h) 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 provisions described in Item 6 above, 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. The
undertaking of the registrant in the preceding sentence does not apply to
insurance against liability arising under the Securities Act.
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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 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 Seattle, Washington, as of the 1st day of October,
1999.
CASCADE NATURAL GAS CORPORATION
(Registrant)
By /s/ J.D. Wessling
J.D. Wessling
Senior Vice President - Finance and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities as of the 1st day of October, 1999.
PRINCIPAL EXECUTIVE OFFICER:
/s/ W. Brian Matsuyama Chairman of the Board, Chief Executive
W. Brian Matsuyama Officer, President, and Director
PRINCIPAL FINANCIAL OFFICER:
/s/ J.D. Wessling Sr. Vice President - Finance, Chief
J.D. Wessling Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
/s/ James E. Haug Controller, Chief Accounting Officer
James E. Haug
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A MAJORITY OF THE BOARD OF DIRECTORS:
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Carl Burnham, Jr.
/s/ Melvin C. Clapp Director
Melvin C. Clapp
/s/ Thomas E. Cronin Director
Thomas E. Cronin
/s/ David A. Ederer Director
David A. Ederer
/s/ Howard L. Hubbard Director
Howard L. Hubbard
/s/ Larry L. Pinnt Director
Larry L. Pinnt
/s/ Brooks G. Ragen Director
Brooks G. Ragen
/s/ Mary A. Williams Director
Mary A. Williams
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INDEX TO EXHIBITS
Exhibit No. Item Description
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4.1 Articles V, IX, and XII of the Restated Articles of
Incorporation of the registrant, as amended, incorporated by
reference to Exhibit 3.1 to the registrant's current report on
Form 8-K filed July 19, 1996.
4.2 Articles III, IX, X, and XI of the Restated Bylaws of the
registrant, as amended, incorporated by reference to Exhibit
3.2 to the registrant's current report on Form 8-K filed July
19, 1996.
4.3 Rights Agreement dated as of March 19, 1993, between the
registrant and Harris Trust and Savings Bank, incorporated by
reference to Exhibit 2 to the registrant's registration
statement on Form 8-A dated April 21, 1993.
4.4 First Amendment to Rights Agreement dated June 15, 1993,
between the registrant and The Bank of New York, incorporated
by reference to Exhibit 4 to the registrant's quarterly report
on Form 10-Q for the quarter ended June 30, 1993.
5 Opinion of Miller Nash LLP.
23.1 Consent of Deloitte & Touche LLP.
23.2 Consent of Miller Nash LLP. Included in Exhibit 5.
Other exhibits listed in Item 601 to Regulation S-K are not applicable.
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EXHIBIT 5
MILLER NASH LLP
ATTORNEYS AT LAW
4400 TWO UNION SQUARE
601 UNION STREET
SEATTLE, WASHINGTON 98101-2352
TELEPHONE (206) 622-8484
FACSIMILE (206) 622-7485
October 1, 1999
Board of Directors
Cascade Natural Gas Corporation
222 Fairview Avenue North
Seattle, Washington 98198
Subject: Cascade Natural Gas Corporation
Ladies and Gentlemen:
Reference is made to the Registration Statement on Form S-8
("Registration Statement"), to be filed by Cascade Natural Gas Corporation, a
Washington corporation ("Company"), with the Securities and Exchange Commission
for the purpose of registering under the Securities Act of 1933, as amended,
150,000 shares of the Company's common stock, $1.00 par value (the "Common
Stock"), to be issued under the Company's 1998 Stock Incentive Plan (the
"Plan"), together with options and other stock-based awards relating thereto.
As counsel for the Company, we are familiar with the actions
taken by the board of directors and shareholders of the Company with respect to
the authorization for issuance of the Common Stock pursuant to the Plan. We have
examined originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, certificates of public officials, and
other documents as we have deemed necessary or relevant as a basis for the
opinion set forth herein.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly
existing under the laws of the state of Washington with corporate power
and authority under such laws to issue the Common Stock.
2. The Plan has been duly adopted and approved by all necessary
corporate action and, when options or other stock-based awards relating
to the 150,000 shares of Common Stock referred to above are granted in
accordance with the Plan, such options and awards have or will have been
legally issued.
3. The 150,000 shares of Common Stock referred to above have been
duly authorized and reserved for issuance.
4. When such shares are issued and sold by the Company upon
exercise of options or other stock-based awards duly granted under the
Plan while the Registration Statement is effective, and payment for such
shares to the extent and in the manner required by the Plan is received
by the Company, such shares will be legally issued, fully paid and
nonassessable.
We consent to the use of this opinion in the Registration
Statement and in any amendments thereto.
Very truly yours,
MILLER NASH LLP
By /s/ John L. West
John L. West
EXHIBIT 23.1
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Cascade Natural Gas Corporation on Form S-8 of our reports dated November 6,
1998, appearing in the Annual Report on Form 10-K of Cascade Natural Gas
Corporation for the year ended September 30, 1998.
DELOITTE & TOUCHE LLP
Seattle, Washington
October 4, 1999
