<PAGE>
Registration No. 33-________
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
EQUITABLE RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 25-0464690
(State of Incorporation) (I.R.S. Employer
Identification No.)
420 Boulevard of the Allies
Pittsburgh, PA 15219
(412) 261-3000
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
ROBERT E. DALEY
Vice President and Treasurer
EQUITABLE RESOURCES, INC.
420 Boulevard of the Allies
Pittsburgh, PA 15219
(412) 553-5770
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
-----------------------
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement, as determined by
market conditions.
-----------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. []
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
-----------------------
The registrant hereby amends this registration statement on such date or dates
as may be necessary to delay its effective date until the registrant shall file
a further amendment which specifically states that this registration statement
shall thereafter become effective in accordance with Section 8.A of the
Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8.A,
may determine.
-----------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
============================================================================================================================
Title of each class of Proposed maximum Proposed maximum
securities to be Amount to be aggregate offering price aggregate offering price Amount of registration
registered registered per share (*) (*) fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Medium-Term Notes, $100,000,000 100% $100,000,000 $34,483
Series C
============================================================================================================================
</TABLE>
* Estimated solely for the purposes of determining the registration fee.
<PAGE>
PROSPECTUS
$100,000,000
Equitable Resources, Inc.
MEDIUM-TERM NOTES, SERIES C
----------------
Due Nine Months to Forty Years from Date of Issue
----------------
Equitable Resources, Inc. (the "Company") may offer from time to time up to
$100,000,000 aggregate principal amount of its Medium-Term Notes, Series C
("Notes"). Notes of this Series will be offered on a continuing basis, and the
interest rates, maturity dates, principal amounts and other terms of such Notes
may vary, even though offered or sold at or about the same time.
Each Note will bear interest at a fixed rate established by the Company
at the date of issue of such Note and set forth in the applicable Pricing
Supplement (as hereinafter defined); the interest rate may be zero in the case
of Original Issue Discount Notes (as hereinafter defined). Unless otherwise
specified in the applicable Pricing Supplement, interest on each Note will be
payable semiannually on each July 15 and January 15 and at maturity or upon any
earlier redemption.
Each Note will mature on a date established by the Company at the date of
issue of such Note, which date shall be between nine months and forty years from
the date of issue, and Notes may be redeemed prior to maturity at the option of
the Company or pursuant to a sinking fund, in each case as set forth in the
applicable Pricing Supplement.
Notes will be issued in fully registered form in denominations of
$100,000 or any amount in excess thereof which is an integral multiple of
$1,000. Each Note will be represented either by a Global Note (a "Book-Entry
Note") registered in the name of a nominee of The Depository Trust Company,
New York, New York (the "Depositary"), or by a certificate issued in
definitive or temporary form (a "Certificated Note"), as set forth in the
applicable Pricing Supplement. Beneficial interests in Global Notes
representing Book-Entry Notes will be shown on, and transfers thereof will be
effected only through, records maintained by the Depositary and its
participants. Book-Entry Notes will not be issuable as Certificated Notes
except under the circumstances described herein.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
----------------
<TABLE>
<CAPTION>
Price to Agent's Proceeds to
Public(1) (2) Commission (2) Company (2)(3)
------------- ------------------ ---------------------------
<S> <C> <C> <C>
Per Note.... 100.000% .125%-.875% 99.875%-99.125%
Total.......$100,000,000 $125,000-$875,000 $99,875,000-$99,125,000
- -----------------
</TABLE>
(1) Unless otherwise specified in the applicable Pricing Supplement, Notes
will be sold at 100% of their principal amount. If the Company issues any
Note at a discount from or at a premium over its principal amount, the
Price to Public of any such Note issued at a discount or premium will be
set forth in the applicable Pricing Supplement.
(2) The Company will pay a commission to an Agent for each Note sold through
such Agent ranging from .125% to .875% of the principal amount of such
Note, depending upon such Note's maturity. The Company may also sell
Notes to any Agent, as principal, at negotiated discounts, for resale to
investors. The Company may sell Notes on its own behalf at negotiated
prices directly to purchasers purchasing Notes for their own accounts.
(3) Before deducting expenses payable by the Company estimated at
$ 228,233.
----------------
Offers to purchase the Notes are being solicited from time to time by the
Company on its own behalf and on behalf of the Company by Morgan Stanley & Co.,
Incorporated and Lehman Brothers (each an "Agent" and collectively the
"Agents"). Each Agent has agreed to use reasonable efforts to solicit and
receive offers to purchase Notes upon terms acceptable to the Company at such
times and in such amounts as the Company shall from time to time specify. The
Company may also sell Notes to any Agent acting as principal for its own account
for resale to one or more investors or other purchasers at varying prices
related to prevailing market prices at the time of such resale or otherwise, as
determined by such Agent. No termination date for the offering of the Notes has
been established. Either the Company or any Agent may reject, in whole or in
part, any offer to purchase Notes. The Notes will not be listed on any
securities exchange, and there can be no assurance that the Notes offered hereby
will be sold or that there will be a secondary market for the Notes. See
"Offering Through the Company and Agents."
----------------
MORGAN STANLEY & CO. LEHMAN BROTHERS
Incorporated
May _____, 1994
<PAGE>
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained in this
Prospectus and any Pricing Supplement in connection with the offer contained
in this Prospectus, and if given or made, such information or representations
must not be relied upon as having been authorized by the Company or by any
Agent. Neither the delivery of this Prospectus and any Pricing Supplement nor
any sale made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the dates as
of which information is given in this Prospectus and any Pricing Supplement.
This Prospectus and any Pricing Supplement do not constitute an offer to sell
or a solicitation of an offer to buy securities by anyone in any jurisdiction
in which such offer or solicitation is not authorized or in which the person
making such offer or solicitation is not qualified to do so or to any person
to whom it is unlawful to make such offer or solicitation.
----------------
IN CONNECTION WITH THIS OFFERING, THE AGENTS MAY OVERALLOT OR EFFECT
TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE NOTES AT A
LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
----------------
TABLE OF CONTENTS
<TABLE>
<S> <C>
Available Information................................................. 2
Incorporation of Certain Documents by Reference....................... 3
The Company........................................................... 4
Use of Proceeds....................................................... 4
Ratio of Earnings to Fixed Charges.................................... 5
Description of Notes.................................................. 5
Certain United States Federal Income Tax Considerations............... 13
Offering Through the Company and Agents............................... 19
Legal Matters......................................................... 20
Experts............................................................... 20
</TABLE>
AVAILABLE INFORMATION
The Company, a Pennsylvania corporation, is subject to the informational
requirements of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and in accordance therewith files reports, proxy and information
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy and information statements and other
information can be inspected and copied at the Public Reference Room of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549
and at the
2.
<PAGE>
regional offices maintained by the Commission at 7 World Trade Center, 13th
Floor, New York, New York 10048 and Northwestern Atrium Center, 500 West Madison
Street, Suite 1400, Chicago, Illinois 60661. Copies of such materials can be
obtained at prescribed rates from the Public Reference Section of the Commission
at 450 Fifth Street, N.W., Washington, D.C. 20549. Documents filed by the
Company can also be inspected at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005, and at the offices of the Philadelphia
Stock Exchange, 1900 Market Street, Philadelphia, Pennsylvania 19103, on which
exchanges certain of the Company's securities are listed. In addition, reports,
proxy statements and other information concerning the Company can be inspected
at the offices of the Company at 420 Boulevard of the Allies, Pittsburgh,
Pennsylvania 15219.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
There are hereby incorporated by reference in this Prospectus the following
documents heretofore filed with the Securities and Exchange Commission pursuant
to the Exchange Act:
(a) the Company's Annual Report on Form 10-K for the year ended
December 31, 1993;
(b) the Company's definitive Proxy Statement dated April 12, 1994 in
connection with its Annual Meeting of Shareholders to be held on
May 27, 1994;
(c) the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1994; and
(d) the Company's Current Report on Form 8-K dated June 30, 1993
as amended by the Company's Amendment No. 1 to its Current
Report on Form 8-K/A dated June 30, 1993 and filed August 7,
1993.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering
of the Notes shall be deemed to be incorporated by reference into this
Prospectus from the dates of filing of such documents.
Upon written or oral request the Company will provide without charge to any
person to whom this Prospectus is delivered a copy of any or all information
incorporated by reference in this Prospectus (except exhibits to such
information, unless such exhibits are specifically incorporated by reference
herein). Such requests should be directed to Audrey C. Moeller, Vice President
and Corporate Secretary, Equitable Resources, Inc., 420 Boulevard of the Allies,
Pittsburgh, Pennsylvania 15219 (telephone number 412-553-5877).
3.
<PAGE>
THE COMPANY
Equitable Resources, Inc. is a diversified natural gas company actively
engaged in the exploration, development and production of natural gas and crude
oil; the storage, transportation, marketing and distribution of natural gas; and
the processing of natural gas liquids. The Company's operations balance the
higher growth potential of its Energy Resource segment with the stability of the
regulated businesses of its Utility Service segment. Energy Resources and
Utility Services each accounted for approximately 50 percent of Equitable's net
income in 1992, and approximately 52 percent and 48 percent, respectively, of
Equitable's net income in 1993 and 48 percent and 52 percent, respectively, for
the twelve months ended March 31, 1994.
Energy Resources explores for, develops and produces natural gas and oil in
the Appalachian region, the Rocky Mountain region of the United States and
Canada and the Gulf Coast region, and has oil exploration interests in Colombia,
South America. Energy Resources performs contract drilling and well maintenance
services in the Appalachian area and extracts and markets natural gas liquids in
Kentucky and Louisiana. Additionally, Energy Resources markets natural gas on a
nationwide basis and markets gas and services in the Gulf Coast region through
Louisiana Intrastate Gas Company LLC, which operates as a single source market
center.
Utility Services purchases, gathers, transports, stores and distributes
natural gas. This segment sells natural gas and provides transportation
services to approximately 265,000 customers (93 percent residential) in
southwestern Pennsylvania, northern West Virginia and eastern Kentucky. It also
sells natural gas and provides transmission and underground storage services to
customers in nine northeastern and mid-Atlantic states. In addition, Utility
Services operates gathering and transmission facilities near the Company's
producing properties in eastern Kentucky.
USE OF PROCEEDS
The Company will apply the proceeds from the sale of the Notes to retire
equivalent principal amounts of short-term debt incurred or to be incurred as
part of the Company's business operations. The Company typically incurs short-
term debt to finance acquisitions of businesses and capital expenditures and may
also incur short term debt for ordinary business purposes from time to time due
to, among other factors, the seasonality of its businesses.
4.
<PAGE>
RATIO OF EARNINGS TO FIXED CHARGES
The Company's ratio of earnings to fixed charges for each of the five
fiscal years 1989-1993 and for the twelve months ended March 31, 1994 is as
follows:
<TABLE>
<CAPTION>
Twelve Months
Year Ended December 31 Ended 3/31/94
- ------------------------------------------------ -------------
1989 1990 1991 1992 1993
---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C>
3.07x 3.36x 3.30x 2.86x 3.09x 3.15x
</TABLE>
Earnings used to compute the ratio of earnings to fixed charges represent
the aggregate of net income, income taxes and fixed charges. Income taxes
include current and deferred income taxes and amortization of deferred
investment tax credits. Fixed charges consist of interest, including
amortization of debt expense less premium, and one-third of all rental expenses.
Reference is made to Exhibit 12.1 to the Registration Statement of which this
Prospectus is a part for the detailed calculation of the above ratios.
DESCRIPTION OF NOTES
General
The Notes will all be part of a single series issued under an Indenture
dated as of April 1, 1983 (the "Basic Indenture") between the Company and
Bankers Trust Company, as Trustee (the "Trustee"), as amended by a 1991
Supplemental Indenture dated as of March 15, 1991 (the "Supplemental
Indenture"). The Basic Indenture provides for the issuance from time to time of
the Company's unsecured debentures, notes or other evidences of indebtedness
(the "Debt Securities"). The Basic Indenture does not limit the amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued from time to time in one or more series, which may be established by
or pursuant to one or more resolutions (a "Board Resolution") adopted by the
Company's Board of Directors or by a duly authorized committee appointed by the
Board.
The Notes may be issued from time to time up to the aggregate principal
amount of $100,000,000. The Notes will be unsecured and will rank pari passu
with all Debt Securities issued and to be issued under the Indenture, as well
as with all other unsecured debt of the Company. At the date of this
Prospectus $425 million aggregate principal amount ($420 million net of
original issue discount) of five series of previously issued Debt Securities
were outstanding under the Indenture.
5.
<PAGE>
The terms of particular issues of the Notes may be established either by a
Board Resolution or by an addendum (executed by a named officer) to a Board
Resolution establishing the series of Notes and specifically authorizing such
officer to establish such terms. The Basic Indenture, Supplemental Indenture,
any Board Resolutions and any such addenda are referred to herein collectively
as the "Indenture."
The Basic Indenture was filed as Exhibit 4.1 to the Company's Registration
Statement on Form S-3 (Registration No. 2-80575) filed April 24, 1986, and the
Supplemental Indenture was filed as Exhibit 4.3 to the Company's Registration
Statement on Form S-3 (Registration No. 33-39505) filed March 22, 1991. The
Board Resolutions and the form of Board Resolution and accompanying addenda
for the Notes are filed as Exhibit 4.4 to the Registration Statement of which
this Prospectus is a part.
The following summaries of certain provisions of the Indenture do not
purport to be complete and are subject to, and are qualified in their entirety
by reference to, all provisions of the Indenture, including the definition
therein of certain terms. Wherever particular provisions of or defined terms
used in the Indenture are referred to, such provisions or defined terms are
incorporated herein by reference. Section numbers are those in the Basic
Indenture. Capitalized terms used under this heading are used as defined in the
Indenture unless otherwise defined in this Prospectus or the context indicates
otherwise.
Terms of the Notes; Pricing Supplements
The particular terms of each issue of Notes will be described in a pricing
supplement (a "Pricing Supplement") to this Prospectus, including (1) the
principal amount; (2) the date or dates on which such Notes will mature; (3) the
rate or rates at which such Notes will bear interest and the date or dates from
which such interest will accrue; (4) the dates on which such interest will be
payable and the Regular Record Dates applicable to such Interest Payment Dates
(as such terms are defined below); (5) any mandatory or optional sinking fund or
analogous provisions; and (6) the date, if any, after which, and the price or
prices at which, such series may be redeemed at the option of the Company. The
Pricing Supplement will specify the purchase price ("Issue Price") and any other
terms of the sale of each Note being sold pursuant thereto. The terms and
conditions set forth under "Description of Notes" will apply to each Note unless
otherwise specified in the applicable Pricing Supplement and in such Note.
The Notes will be offered on a continuing basis. The Company may from time
to time accept offers to purchase Notes, which offers, even though made and
accepted at or about the same time, may differ as to principal amount, interest
rate, maturity date, mandatory and optional redemption provisions and purchase
price, all as set forth in the applicable Pricing Supplements.
Each Note will be issued initially as either a Book-Entry Note or a
Certificated Note. Except as set forth below under "Book-Entry Notes," Book-
Entry Notes will not be issuable as Certificated Notes. Except as otherwise
provided in the applicable Pricing Supplement, Notes
6.
<PAGE>
will be issued only in fully registered form in denominations of $100,000 or any
amount in excess thereof which is an integral multiple of $1,000.
The Notes may be presented for payment of principal and interest, transfer
of the Notes will be registrable and the Notes will be exchangeable at the
agency maintained by the Company in New York City for such purpose, except that
Book-Entry Notes will be exchangeable only in the manner and to the extent set
forth under "Book-Entry Notes" below. On the date hereof, such agency for the
payment, transfer and exchange of the Notes (the "Paying Agent") is the Trustee.
When used in this Prospectus, the following terms shall have the meanings
indicated below:
"Business Day" means any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which banking institutions are authorized or required
by law or regulation to close in New York City.
An "Interest Payment Date" with respect to any Note means, unless otherwise
specified in the applicable Pricing Supplement, each July 15 and January 15.
The "Record Date" with respect to any Interest Payment Date means, unless
otherwise specified in the applicable Pricing Supplement, the July 1 and
January 1 preceding such Interest Payment Date, whether or not such date is a
Business Day.
Interest and Principal Payments
Each Note will bear interest from the date of issuance at the rate per
annum stated on the face thereof, and in the applicable Pricing Supplement,
until the principal thereof is paid or made available for payment. Such
interest will be computed on the basis of a 360-day year of twelve 30-day
months. Unless otherwise specified in the applicable Pricing Supplement,
payments of interest will be made semiannually on each July 15 and January 15
and at maturity or upon any earlier redemption.
If any Interest Payment Date would fall on a day that is not a Business
Day, the interest payment will be postponed to the next day that is a Business
Day, and no interest on such payment will accrue for the period from and after
the Interest Payment Date. If the maturity date or date of earlier redemption
of any note would fall on a day that is not a Business Day, the payment of
interest and principal (and premium, if any) may be made on the next
succeeding Business Day, and no interest on such payment will accrue for the
period from and after the maturity or redemption date.
Interest payments will include accrued interest from the date of issue or
from the last date in respect of which interest has been paid or duly provided
for, to, but excluding, the Interest Payment Date or the date of maturity or
earlier redemption, as the case may be.
7.
<PAGE>
Interest will be payable to the person in whose name the Note is registered
at the close of business on the applicable Record Date; provided, however, that
the interest payable at maturity or upon earlier redemption on a date which is
not an Interest Payment Date will be payable to the person to whom principal is
payable. The initial interest payment on a Note will be made on the first
Interest Payment Date falling after the date the Note is issued; provided,
however, that payment of interest on a Note issued less than 15 calendar days
before an Interest Payment Date will be paid on the next succeeding Interest
Payment Date to the holder of record on the Record Date with respect to such
succeeding Interest Payment Date.
Payments of interest, other than interest payable at maturity or earlier
redemption, will be made by check mailed to the address of the person entitled
thereto as shown on the Security Register. Payments of principal, premium, if
any, and interest upon maturity or earlier redemption will be made in
immediately available funds against presentation and surrender of the Note.
Notwithstanding the foregoing, (a) the Depositary, as holder of Book-Entry
Notes, will be entitled to receive payments of interest by wire transfer of
immediately available funds and (b) a holder of $10,000,000 or more in aggregate
principal amount of Certificated Notes having the same Interest Payment Date
will be entitled to receive payments of interest by wire transfer of immediately
available funds upon written request to the Paying Agent not later than 15
calendar days prior to the applicable Interest Payment Date.
Certain Notes may be considered to be issued with original issue discount
("Discount Notes"), which generally must be included in income for federal
income tax purposes at a constant rate. See "Certain Federal Income Tax
Considerations - Original Issue Discount -Discount Notes" below. Special
considerations applicable to any such Discount Notes will be set forth in the
applicable Pricing Supplement.
Book-Entry Notes
Book-Entry Notes will be represented by a Global Note issued by the Company
to and deposited with the Depositary and registered in the name of a nominee of
the Depositary. Certificated Notes will not be exchangeable for Book-Entry
Notes and, except under the circumstances described below, Book-Entry Notes will
not be exchangeable for Certificated Notes or otherwise issuable as Certificated
Notes.
The Company expects that, upon its issuance of a Global Note, the
Depositary will credit, on its book-entry registration and transfer system,
the respective principal amounts of the Notes represented by such Global Note
to the accounts of persons that have accounts with the Depositary
("participants"). The accounts to be credited will be designated by the Agent
participating in the sale of such Notes. Ownership of beneficial interests in
a Global Note will be limited to participants or persons that may hold
interests through participants. Ownership of such beneficial interests will be
shown on, and the transfer of that ownership will be effected only through,
records maintained by the Depositary (with respect to interests of
participants) or by participants or persons that hold through participants
(with respect to interest of persons other than participants).
8.
<PAGE>
So long as the Depositary's nominee is the registered owner of a Global
Note, such nominee will be considered to be the sole owner or holder of the
Notes represented by such Global Note for all purposes of the Indenture. Except
as set forth below, owners of beneficial interest in a Global Note will not be
entitled to have the Notes represented by such Global Note registered in their
names, will not receive or be entitled to receive physical delivery of such
Notes in definitive form, and will not be considered to be the owners or holders
thereof under the Indenture.
Payments of principal, premium, if any, and interest on Notes represented
by a Global Note registered in the name of the Depositary's nominee will be
made to the Depositary's nominee as the registered owner of such Global Note.
None of the Company, the Trustee or any paying agent for such Notes will have
any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in such Global
Note or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interest.
The Company expects that the Depositary, upon receipt of any payment of
principal, premium or interest, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of the Global Notes deposited with it as shown on the
records of the Depositary. The Company also expects that payments by
participants to owners of beneficial interests in a Global Note held through
such participants will be the responsibility of such participants and will be
governed by standing instructions and customary practices as is now the case
with the securities held for the accounts of customers registered in "street
names."
If the Depositary is at any time unwilling or unable to continue to act as
Depositary, and a successor depositary is not appointed by the Company within 90
days, the Company will issue Certificated Notes in definitive form in exchange
for the Global Note or Notes previously deposited with the Depositary. In
addition, the Company may at any time in its sole discretion determine not to
have the Notes represented by one or more Global Notes and, in such event, will
issue Certificated Notes in definitive form in exchange for such Global Note or
Notes.
Redemption Prior to Maturity
The applicable Pricing Supplement will indicate either that the Notes may
not be redeemed prior to maturity or will state the terms on which the Notes may
be redeemed, in whole or in part, at the option of the Company or pursuant to
the terms of any mandatory sinking fund. Notice of redemption will be provided
by mailing a notice of such redemption to each holder by first class mail,
postage prepaid, at least 30 days and not more than 60 days prior to the date
fixed for redemption to the respective address of each holder as that address
appears upon the Security Register. If a Note is redeemed in part only, a new
Note or Notes for the unredeemed portion thereof shall be issued to the holder
thereof upon the cancellation thereof. In case of a partial redemption of a
Book-Entry Note, the Depositary's practice is to determine by lot the interest
of each participant in the portion of such Note being redeemed.
9.
<PAGE>
Repurchase
The Company may purchase Notes at any price in the open market or
otherwise. Notes so purchased by the Company may, at the discretion of the
Company, be held or resold or surrendered to the Trustee for cancellation.
Restrictive Covenants
The Supplemental Indenture referred to above eliminated from the Indenture
certain restrictive covenants imposing limitations on liens and on additional
Funded Debt, provided that the elimination of such covenants shall become
effective only when there are no Debt Securities Outstanding of any series
created prior to the execution of the Supplemental Indenture.
Event Risk
The Indenture does not contain any generally applicable covenant or
provision designed to require the Company to redeem the Debt Securities in
response to a highly leveraged buy-out transaction or other significant change
to the Company's capital structure or debt to equity ratio. Accordingly,
holders of the Debt Securities are not protected against a possible decline in
the market value of the Debt Securities as a result of such transaction or
change.
The Indenture does, however, contain a covenant limiting the incurrence or
guaranteeing of Funded Debt, or the sale of capital stock by a Subsidiary.
However, this limitation (i) is in effect only so long as there remain
outstanding those series of Debt Securities created prior to the execution of
the Supplemental Indenture, and (ii) could be waived or amended with the consent
of the Holders of 66 2/3% in principal amount of all such previously created
series, taken in the aggregate. (See "Modification and Waiver" below.) The
five such previously created series of Debt Securities mature in 1996, 1999,
2013, and from 1998 through 2021 and from 1995 through 2023, respectively. The
series maturing in 2013 first becomes subject to redemption at the option of the
Company on April 15, 1998. None of the remaining series are subject to optional
redemption.
Under the aforesaid limitation, the Company will not, and will not permit
any Subsidiary to, create, incur, assume or guarantee any Funded Debt, and will
not permit any Subsidiary to sell any capital stock (other than to the Company
or to a wholly-owned Subsidiary), unless, after giving effect thereto and to the
application of the proceeds thereof, the sum of Consolidated Funded Debt and the
aggregate Minority Interests in Capital Stock of all Subsidiaries does not
exceed an amount obtained by multiplying Consolidated Net Worth by a fraction,
the denominator of which is the sum of the Net Cost of all Consolidated Utility
Property and Consolidated Non-utility Property owned by the Company and its
Subsidiaries, and the numerator of which is the sum of 150% of the net Cost of
all Consolidated Utility Property and 66 2/3% of the Net Cost of all
Consolidated Non-utility Property. (See (S) 1005).
10.
<PAGE>
Events of Default
The following are Events of Default under the Indenture with respect to
Debt Securities of any series: (a) failure to pay principal of or premium on
any Debt Securities of that series when due; (b) failure to pay any interest
on any Debt Securities of that series when due, continued for 30 days; (c)
failure to deposit any sinking fund payment when due, with respect to any Debt
Securities of that series; (d) failure to perform any other covenant of the
Company in the Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Debt Securities other than that series),
continued for 60 days after written notice as provided in the Indenture; (e) a
default or defaults with respect to indebtedness for money borrowed by the
Company which shall in the aggregate have resulted at any one time in more
than $5,000,000 principal amount of such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have
become due and payable, unless such acceleration or accelerations are
rescinded or annulled within 10 days after written notice as provided in the
Indenture; (f) certain events in bankruptcy, insolvency or reorganization; and
(g) any other Event of Default provided with respect to Debt Securities of
that series. (See (S) 501.) If an Event of Default with respect to any series
of Outstanding Debt Securities occurs and is continuing, either the Trustee or
the Holders of at least 25% in principal amount of the Outstanding Debt
Securities of that series may declare the principal amount of all Debt
Securities of that series to be due and payable immediately. At any time after
a declaration of acceleration with respect to Debt Securities of any series
has been made, but before a judgment or decree based on acceleration has been
obtained, the Holders of a majority in principal amount of the Outstanding
Debt Securities of that series may, under certain circumstances, rescind and
annul such acceleration. (See (S) 502.)
The Indenture provides that the Trustee will be under no obligation,
subject to the duty of the Trustee during default to act with the required
standard of care, to exercise any of its rights or powers under the Indenture
at the request or direction of any of the Holders, unless such Holders shall
have offered to the Trustee such reasonable indemnity as it may require. (See
(S) 603.) Subject to such provisions for indemnification of the Trustee, the
Holders of a majority in principal amount of the Outstanding Debt Securities
of any series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debt Securities of that series. (See (S) 512.)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (See (S) 1009.)
Consolidation, Merger and Sale of Assets
The Company may consolidate or merge with or into, or transfer or lease its
assets substantially as an entirety to, any corporation, provided that the
corporation formed by such
11.
<PAGE>
consolidation or into which the Company is merged or which acquires or leases
the assets of the Company substantially as an entirety assumes the Company's
obligations on the outstanding Debt Securities and under the Indenture and that,
after giving effect to any such transaction, there shall not exist any mortgage
or other lien on or security interest in the property of such corporation,
including any subsidiaries thereof, which would violate the Limitation on Liens
covenant in the Indenture applicable to Debt Securities outstanding as of the
date of the Supplemental Indenture, and such corporation shall not have
outstanding any Funded Debt, or any subsidiary thereof any Funded Debt or
Minority Interests in Capital Stock, which would violate the Limitation upon
Additional Funded Debt covenant in the Indenture applicable to Debt Securities
outstanding as of the date of the Supplemental Indenture.
Modification and Waiver
With the consent of the Holders of 66 2/3% in principal amount of the
outstanding Debt Securities of all series affected thereby, taken in the
aggregate without regard to separate series of Outstanding Debt Securities, the
Company and the Trustee may enter into one or more indentures supplemental to
the Indenture for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of the Indenture with respect to
Debt Securities of such series affected or of modifying in any manner the rights
of the Holders of Debt Securities of such series affected, provided that no such
amendment or modification may, without the consent of the Holder of each
outstanding Debt Security affected thereby, (a) change the stated maturity date
of the principal of, or any installment of principal of or interest on, any Debt
Security, (b) reduce the principal amount of, or premium or interest on, any
Debt Security, (c) change the place or currency of payment of principal of, or
premium or interest on, any Debt Security, (d) impair the right to institute
suit for the enforcement of any payment on or with respect to any Debt Security,
or (e) reduce the percentage in principal amount of outstanding Debt Securities
of any series, the consent of whose Holders is required for modification or (f)
amend the Indenture or waive compliance with certain provisions of the Indenture
or waive certain defaults. (See (S) 902.)
The Holders of 66 2/3% in principal amount of the outstanding Debt
Securities of any series may on behalf of the Holders of all Debt Securities of
that series waive, insofar as that series is concerned, compliance by the
Company with certain restrictive provisions of the Indenture. (See (S) 1010.)
The Holders of a majority in principal amount of the outstanding Debt Securities
of any series may on behalf of the Holders of all Debt Securities of that series
waive any past default under the Indenture with respect to that series, except a
default in the payment of the principal of, or premium or interest on, any Debt
Security of that series or in respect of a provision which under the Indenture
cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security of that series affected. (See (S) 513.)
Extinguishment Of Debt
The Company may extinguish its indebtedness on the Notes by irrevocably
placing sufficient cash or other essential risk-free monetary assets (including
direct obligations of the
12.
<PAGE>
United States government, obligations guaranteed by the United States government
and/or certain securities backed by United States government obligations as
collateral under an arrangement by which the interest and principal payments on
the collateral generally flow immediately through to the holder of the security)
with the Trustee solely for satisfying such indebtedness. Upon such deposit
with the Trustee, and given that the possibility that the Company will be
required to make further payments is remote, the Company is considered to have
extinguished the indebtedness on the Notes for financial reporting purposes.
Generally accepted accounting principles (as currently pronounced and
interpreted) would allow the Company to remove such indebtedness from its
balance sheet, subject to certain footnote disclosures.
Such extinguishment of indebtedness on the Notes would give rise to the
recognition of gain or loss by the Company in the year of extinguishment. Gain
or loss would be calculated by subtracting the net carrying amount of the Notes
(i.e. the amount due at maturity, adjusted for unamortized premium discount and
costs associated with issuing the Notes) on the date of extinguishment, from the
reacquisition price paid by the Company to the Holder(s), including all costs
associated with the extinguishment.
Should the gain or loss recognized by the Company with respect to the
extinguishment represent a material amount, such gain or loss will be reported
as an extraordinary item (net of income tax effect) on the Company's financial
statements.
Prospective investors are urged to consult their tax advisors as to the
specific tax consequences of such debt extinguishment.
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
The following summary of the principal United States federal income tax
considerations of ownership and disposition of the Notes has been furnished by
Doepken Keevican Weiss & Medved, counsel to the Company. This summary is based
on the Internal Revenue Code of 1986, as amended to the date hereof (the
"Code"), and existing and proposed Treasury regulations, revenue rulings,
revenue procedures and judicial decisions. This summary deals only with Notes
held as capital assets within the meaning of Section 1221 of the Code and which
are purchased for cash. It does not discuss all of the tax considerations that
may be relevant to a holder in light of his particular circumstances or to
holders subject to special rules, such as persons other than Holders, as defined
below, tax-exempt entities, life insurance companies, dealers in securities or
foreign currencies, persons holding Notes as a hedge against currency risks,
persons who have hedged the interest rate risks of ownership of a Note, persons
who have acquired the Notes in transactions (other than purchases for cash) in
which gain is not recognized for federal income tax purposes or Holders whose
functional currency (as defined in Section 985 of the Code) is not the United
States dollar. Persons considering the purchase of Notes should consult with
their own tax advisors with regard to the application of the federal income tax
laws to their particular situations as well as any tax consequences arising
under the laws of any state, local or foreign tax jurisdiction.
13.
<PAGE>
As used herein, the term "Holder" means a beneficial owner of a Note that
is, for federal income tax purposes, (i) a citizen or resident of the United
States, (ii) a corporation, partnership or other entity created or organized in
or under the laws of the United States or of any political subdivision thereof,
or (iii) an estate or trust the income of which is subject to federal income
taxation regardless of its source.
Interest Paid On Notes and Discount Notes
Interest actually received by, credited to or constructively received by a
Holder pursuant to a Note, other than a Discount Note, generally constitutes
gross income which is fully taxable to the Holder. The taxable year in which
the Holder includes interest in gross income is determined by, among other
things, the method of accounting of the Holder (e.g. cash receipts and
disbursements or accrual methods).
With respect to a Discount Note, the aforementioned gross income inclusion
rules are applicable to Qualified Stated Interest (as defined herein) on such
Discount Note. Any amounts received by the Holder which do not constitute
Qualified Stated Interest will not be includible in gross income as interest
income even if such amounts are characterized as interest by the Company.
Original Issue Discount - Discount Notes
The following discussion is a summary of the principal federal income tax
consequences of the ownership and disposition of Discount Notes by Holders and
is based upon the Code and Final Treasury Regulations ("Final Regulations")
relating to original issue discount ("OID"). The Final Regulations are
effective for debt instruments issued on or after April 4, 1994.
Under the Final Regulations, a Note which has an "issue price" that is less
than its "stated redemption price at maturity" will generally be considered to
have been issued bearing OID for federal income tax purposes, unless such
difference is less than a specified de minimis amount (defined generally as
1/4 of one percent of the stated redemption price at maturity times the number
of complete years from the date of issue to the date of maturity). If a
substantial amount of the Notes in an issue are sold for money, the issue
price of each Note in the issue generally is the first price at which a
substantial amount of the Notes is sold to the public. For this purpose, the
public does not include persons or organizations acting as brokers,
underwriters, bond houses or wholesalers. Such issue price will not change
even if a portion of such similar Notes is subsequently sold at a different
price. If an issue consists of a single Note sold for money, the issue price
of the Note is the amount of cash paid for the Note. The stated redemption
price at maturity of a Note is the total of all payments required to be made
under the Note other than payments of Qualified Stated Interest. The term
Qualified Stated Interest is defined as stated interest that is
unconditionally payable in cash or in property (other than debt instruments of
the Company) or that will be constructively received by a Holder under Section
451 of the Code, at least annually at a single fixed rate that appropriately
takes into account the length of the interval between payments.
In the case of a Note or Discount Note with a term that is not more than
one (1) year from the date of issue, no payments of interest are treated as
Qualified Stated Interest payments.
14.
<PAGE>
Holders of Discount Notes are required to include Qualified Stated Interest
payments in income at the time they are received or accrued, in accordance with
the Holder's method of accounting. In addition, a Holder of a Discount Note
will be required to include OID in income periodically over the term of a
Discount Note without regard to when the cash or other payments attributable to
such income are received. In general, a Holder must include in gross income for
federal income tax purposes the sum of the daily portions of OID with respect to
the Discount Note for each day during the taxable year on which such Holder
holds the Discount Note ("Accrued OID"). The daily portion is determined by
allocating to each day of any accrual period within a taxable year a pro rata
portion of the OID allocable to such accrual period. The amount of such OID is
equal to the adjusted issue price of the Discount Note at the beginning of the
accrual period multiplied by the yield to maturity of the Discount Note. For
purposes of computing OID, the Company will use six-month accrual periods that
end on the day in the calendar year corresponding to the maturity date of the
Discount Notes and the date six months prior to such maturity date, with the
exception of an initial short accrual period. The adjusted issue price of a
Discount Note at the beginning of any accrual period is the issue price of the
Discount Note increased by the Accrued OID for all prior accrual periods and
decreased by any cash payments on the Discount Notes (other than payments of
Qualified Stated Interest, if any.) Under these rules, Holders will generally
include in gross income increasingly greater amounts of OID in each successive
accrual period. Each payment made under a Discount Note (except for payments
of Qualified Stated Interest, if any, and certain early redemption payments
discussed below) will be treated first as payment of OID (which was previously
includable in income) to the extent of OID that has accrued as of the date of
payment and has not been allotted to prior payments, and second as a payment
of principal (which is not includable in income).
The Company expects that it will report its interest deductions, and
prepare information returns, with respect to Discount Notes in accordance with
the Final Regulations. Any Certificated Note that is issued as a Discount Note
will bear a legend stating (i) the total amount of OID, (ii) the issue date of
the Note, (iii) the yield to maturity of the Note and the method used to
determine the yield to maturity if there is a short accrual period and (iv) in
the case of a Discount Note which has a short interest accrual period, the
amount of OID allocable to such short period.
Optional Redemption
As set forth in the Basic Indenture, certain of the Discount Notes may be
redeemable prior to maturity (a "Redeemable Discount Note") at the option of the
Company (a "Call Option"). Under the Final Regulations, the Company will
exercise the Call Option if, by utilizing the date of exercise of the Call
Option as the maturity date and the redemption price payable on exercise of
the Call Option (the "Redemption Price") as the stated redemption price at
maturity, the yield on the Redeemable Discount Notes would be lower than such
yield would be if the Call Option were not exercised.
15.
<PAGE>
If it is presumed that the Company will exercise the Call Option on a given
date (the "Presumed Exercise Date"), the Redeemable Discount Notes would bear
OID in an amount equal to the excess of the Redemption Price over their issue
price. For purposes of calculating the current inclusion of such OID, the
yield on the Redeemable Discount Notes would be computed on their issue date
by treating the Presumed Exercise Date as the maturity date of the Redeemable
Discount Notes and the Redemption Price as their stated redemption price at
maturity. If it was presumed that the Company would exercise the Call Option,
but the Company did not in fact exercise the Call Option on the Presumed
Exercise Date, the Redeemable Discount Notes would be treated, for certain
purposes, as if the Call Option had been exercised and new debt instruments
had been issued on the Presumed Exercise Date for an amount of cash equal to
the Redemption Price. These new debt instruments would also be subject to the
OID Rules with the amount of OID, if any, determined as of the Presumed
Exercise Date in the manner described above.
Market Discount
If a Holder purchases a Note (other than a Discount Note) for an amount
that is less than its stated redemption price at maturity or, in the case of a
Discount Note, its "revised issue price", the amount of the difference will be
treated as "market discount" for federal income tax purposes, unless such
difference is less than a specified de minimis amount (defined as 1/4 of one
percent of the stated redemption price at maturity times the number of
complete years to maturity after acquisition). The "revised issue price" of a
Discount Note generally equals its issue price, plus the aggregate amount of
OID includible (without regard to any reduction for amortized acquisition
premium, as discussed below) in the gross income of all previous holders of
the Discount Note, less any cash payments (other than Qualified Stated
Interest) made to all previous holders on such Discount Note. It should be
noted that although the reduction for previous cash payments is generally
consistent with provisions of the Code and the Final Regulations governing
OID, technical corrections may be necessary to correct what appears to be an
erroneous omission of the reduction for previous cash payments from the
definition of revised issue price under the Code.
Under the market discount rules of the Code, a Holder will be required to
treat any partial principal payment (or, in the case of a Discount Note, any
payment that does not constitute Qualified Stated Interest) on, or any gain
realized on the sale, exchange, retirement or other disposition of, a Note as
ordinary income to the extent of the lesser of (i) the amount of such payment or
realized gain or (ii) the market discount which has not previously been included
in income and is treated as having accrued on such Note at the time of such
payment or disposition. If such Note is disposed of in an otherwise nontaxable
transaction (other than certain nonrecognition transactions to be excluded under
yet-to-be released regulations pursuant to section 1276(d) of the Code), such as
by gift, the amount of gain realized on such disposition for purposes of the
market discount rules will be determined as if such Holder had sold the Note at
its then fair market value. Market discount will be considered to accrue ratably
during the period from the date of acquisition to the maturity date of the Note,
unless the Holder elects to accrue on the basis of semiannual compounding.
16.
<PAGE>
A Holder may be required to defer the deduction of all or a portion of the
interest paid or accrued on any indebtedness incurred or maintained to purchase
or carry a Note with market discount until the maturity of the Note or its
earlier disposition in a taxable transaction. A Holder may elect to include
market discount in income currently as it accrues (on either a ratable or
semiannual compounding basis), in which case the rules described above regarding
the treatment as ordinary income of gain upon the disposition of the Note and
upon the receipt of certain cash payments and regarding the deferral of interest
deductions will not apply.
Acquisition at a Premium
A Holder who purchases a Discount Note for an amount that is greater than
its adjusted issue price will be considered to have purchased such Note at an
"acquisition premium" within the meaning of the Code. Under the acquisition
premium rules of the Code, the amount of OID which such Holder must include in
gross income with respect to such Note for any taxable year will be reduced (but
not below zero) by the portion of such acquisition premium properly allocable to
such year.
If a Holder purchases a Note for an amount that is greater than its stated
redemption price at maturity, such Holder will be considered to have purchased
such Note with "amortizable bond premium" equal in amount to such excess and may
elect (in accordance with applicable Code provisions) to amortize such premium,
using a constant yield method over the remaining term of the Note and to offset
interest otherwise required to be included in income in respect of such Note
during any taxable year by the amortized amount of such excess for such taxable
year. However, if such Note may be optionally redeemed after the Holder acquires
it at a price in excess of its stated redemption price at maturity, special
rules would apply which could result in a deferral of the amortization of some
bond premium until later in the term of such Note.
Sale, Exchange or Retirement of the Notes - Gain or Loss
Upon the sale, exchange or retirement of a Note, a Holder will recognize
taxable gain or loss equal to the difference between the amount realized on the
sale, exchange or retirement and such Holder's adjusted tax basis in the Note.
A Holder's adjusted tax basis in a Note generally will equal the cost of the
Note to such Holder, increased by the amounts of any Market Discount and OID
previously included in income by the Holder with respect to such Note and
reduced by any amortized bond premium and any principal payments received by the
Holder and, in the case of a Discount Note, by the amounts of any other payments
that do not constitute Qualified Stated Interest.
Gain or loss recognized on the sale, exchange or retirement of a Note will
be capital gain or loss (except to the extent of any accrued Market Discount
which the Holder has not previously included in income), and will generally be
long-term capital gain or loss if at the time of sale, exchange or retirement
the Note has been held for more than one year. Although for corporations
capital gains are currently taxed at the same rates as taxable income, the
distinction between capital gain or loss and ordinary income or loss is relevant
for purposes of, among
17.
<PAGE>
other things, limitations on the deductibility of capital losses. For
individuals, estates and trusts, net capital gain, that is, the excess of net
long-term capital gain over net short-term capital loss, will be subject to a
maximum tax rate of 28 percent. The excess of net short-term capital gain over
net long-term capital loss will be taxed at the rates applicable to ordinary
income, that is up to a maximum tax rate of 39.6 percent. For noncorporate
taxpayers, losses from the sale or exchange of capital assets, whether short-
term or long-term, may offset capital gains and up to $3,000 of ordinary income
in any one taxable year. Any unused net capital loss for a taxable year is
available as a carryover to offset capital gains and ordinary income in
subsequent taxable years, subject to certain limitations and adjustments.
Short-Term Notes
A Note, or Discount Note, which has a fixed maturity date of no more than
one (1) year after the date of issue is considered a short-term note ("Short-
Term Note"). On the sale or exchange of such Short-Term Note, any gain
realized is treated as ordinary income to the Holder to the extent of the
Holder's ratable share of OID, based on the number of days the Note is held by
the Holder. However, at the election of the Holder, which election is deemed
irrevocable, the Holder may accrue OID by using a constant interest rate
method.
The aforementioned Short-Term Note rules do not apply to certain Short-Term
Notes governed under Section 1281 of the Code, which Section applies to Short-
Term Notes held by a Holder using the accrual method of accounting, held by a
bank, held primarily for sale to customers in the ordinary course of a Holder's
trade or business, or held by a common trust fund or regulated investment
company, among others. Prospective investors who may fall into such categories
are urged to consult their tax advisors as to the specific tax consequences of
the purchase of Short-Term Notes.
Backup Withholding
A Holder may be subject, under certain circumstances, to backup withholding
at a 31% rate with respect to payments received with respect to the Notes. This
withholding generally applies only if the Holder (i) fails to furnish his or her
social security or other taxpayer identification number ("TIN"), (ii) furnishes
an incorrect TIN, (iii) is notified by the Internal Revenue Service (the
"Service") that he or she has failed to properly report payments of interest and
dividends and the Service has notified the Company that he or she is subject to
backup withholding, or (iv) fails, under certain circumstances, to provide a
certified statement, signed under penalty of perjury, that the TIN provided is
his or her correct number and that he or she is not subject to backup
withholding. Any amount withheld from a payment to a Holder, under the backup
withholding rules is allowable as a credit against such Holder's federal income
tax liability, provided that the required information is furnished to the
Service. Certain Holders (including, among others, corporations and tax exempt
organizations) are not subject to backup withholding. Holders should consult
their tax advisors as to their qualifications for exemption from backup
withholding and the procedure for obtaining such an exemption.
18.
<PAGE>
THE UNITED STATES FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE IS INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A HOLDER'S
PARTICULAR SITUATION. HOLDERS SHOULD CONSULT THEIR OWN TAX ADVISORS WITH
RESPECT TO THE TAX CONSEQUENCES TO THEM OF THE OWNERSHIP AND DISPOSITION OF THE
NOTES, INCLUDING THE TAX CONSEQUENCES UNDER THE STATE, LOCAL, FOREIGN AND OTHER
TAX LAWS AND JURISDICTIONS AND THE POSSIBLE EFFECTS OF CHANGES IN UNITED STATES
OR SUCH OTHER TAX LAWS.
OFFERING THROUGH THE COMPANY AND AGENTS
The Notes are being offered on a continuing basis by the Company through
its own direct efforts and through the Agents, who have agreed to use reasonable
efforts to solicit offers to purchase the Notes. The Company will have the
sole right to accept offers to purchase Notes and may reject, in whole or in
part, any offer to purchase Notes. Each Agent will also have the right to
reject, in whole or in part, any offer to purchase Notes solicited by it.
Payment of the purchase price of the Notes will be required to be made in
immediately available funds. The Company will pay each Agent, in connection
with each sale of Notes resulting from a solicitation made or an offer to
purchase received by such Agent, a commission ranging from .125% (in the case
of Notes maturing in less than twelve months) to .875% (in the case of Notes
maturing in 30 years or more) of the principal amount of Notes sold, depending
upon the maturity of such Notes. The Company may solicit offers and receive
offers directly from purchasers to purchase Notes and any direct sales made by
the Company resulting therefrom will not give rise to any such commissions;
provided that such purchasers are purchasing the Notes for their own accounts
and without the use of any intermediary other than an Agent (who would be
entitled to such commissions).
The Company may sell Notes to any Agent acting as principal for its own
account, at prices to be agreed upon at the time of sale, for resale to
investors or other purchasers at varying prices related to prevailing market
prices at the time of such resale or otherwise, as determined by such Agent.
In addition, an Agent may offer Notes it has purchased as principal to
other dealers. An Agent may sell Notes to any dealer at a discount and, unless
otherwise specified in the applicable Pricing Supplement, such discount
allowed to any dealer will not be in excess of 66 2/3 % of the discount to be
received by such Agent from the Company. After any initial public offering of
Notes to be resold to investors and other purchasers at a fixed public
offering price, the public offering price, concession and discount may be
changed.
Each Agent may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, as amended (the "Securities Act"). The Company and each
Agent have agreed to indemnify each other against certain liabilities, including
liabilities under the Securities Act, or to contribute to payments made in
respect thereof. The Company has also agreed to reimburse the Agents for certain
expenses.
No Note will have an established trading market when it is issued. The
Company does not intend to apply for the listing of the Notes on a national
securities exchange, but has been
19.
<PAGE>
advised by the Agents that the Agents intend to make a market in the Notes, as
permitted by applicable laws and regulations. The Agents are not obligated to do
so, however, and the Agents may discontinue making a market at any time without
notice. There can be no assurance that there will be a secondary market for the
Notes or that any particular amount of Notes will be issued.
The Agents do not intend to make sales of Notes to accounts over which they
exercise discretionary authority.
LEGAL MATTERS
Legal matters in connection with the Notes will be passed upon for the
Company by Augustine A. Mazzei, Jr., Esq., employed by the Company as its Senior
Vice President and General Counsel, and by Doepken Keevican Weiss & Medved,
Professional Corporation, Pittsburgh, Pennsylvania, counsel to the Company. On
April 30, 1994, Mr. Mazzei beneficially owned 15,348 shares of the Company's
common stock and held stock options to purchase an additional 8,700 shares of
such stock.
Certain legal matters relating to the Notes will be passed upon for the
Agents by Kirkpatrick & Lockhart, Pittsburgh, Pennsylvania, counsel to the
Agents.
EXPERTS
The consolidated financial statements of the Company and its subsidiaries
appearing in the Company's Annual Report on Form 10-K for the year ended
December 31, 1993 have been audited by Ernst & Young, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given upon the authority of such firm as
experts in auditing and accounting.
20.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated expenses of the Company in connection with the issuance and
distribution of the Notes, other than underwriting discounts and commissions,
are as follows:
<TABLE>
<S> <C>
Securities and Exchange Commission
registration fee...................... $ 34,483
Rating agency fees..................... 43,000
Trustee's fees, including counsel and
authentication fees and expenses...... 10,000
Accounting fees and expenses........... 35,000
Legal fees and expenses................ 60,000
Blue Sky fees and expenses............. 15,000
Printing expense....................... 20,000
Other.................................. 10,750
--------
Total Expenses........................ $228,233
========
</TABLE>
Item 15. Indemnification of Directors and Officers.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law (the
"PBCL") provide that a business corporation shall have the power to indemnify
any person who was or is a party, or is threatened to be made a party, to any
proceeding, whether civil, criminal, administrative or investigative, by reason
of the fact that such person is or was a director, officer, employee or agent of
the corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by such person in connection with
such proceeding, if such person 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. In the case of an action by or in
the right of the corporation, such indemnification is limited to expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action, except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person has been adjudged to be liable to the corporation unless, and
only to the extent that, a court determines upon application that, despite the
adjudication of liability but in view of all the circumstances, such person is
fairly and reasonably entitled to indemnity for the expenses that the court
deems proper.
PBCL Section 1744 provides that, unless ordered by a court, any indemnification
referred to above shall be made by the corporation only as authorized in the
specific case upon a determination that indemnification is proper in the
circumstances because the indemnitee has met the applicable standard of conduct.
Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a majority vote
of a quorum of disinterested directors so directs, by independent legal counsel
in a written opinion; or
II-1
<PAGE>
(3) by the shareholders.
Notwithstanding the above, PBCL Section 1743 provides that to the extent that a
director, officer, employee or agent of a business corporation is successful on
the merits or otherwise in defense of any proceeding referred to above, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
PBCL Section 1745 provides that expenses (including attorneys' fees) incurred
by an officer, director, employee or agent of a business corporation in
defending any such proceeding may be paid by the corporation in advance of the
final disposition of the proceeding upon receipt of an undertaking to repay the
amount advanced if it is ultimately determined that the indemnitee is not
entitled to be indemnified by the corporation.
PBCL Section 1746 provides that the indemnification and advancement of expenses
provided by, or granted pursuant to, the foregoing provisions is not exclusive
of any other rights to which a person seeking indemnification may be entitled
under any bylaw, agreement, vote of shareholders or disinterested directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or directors or otherwise by any action taken or any
failure to take any action whether or not the corporation would have the power
to indemnify the person under any other provision of law and whether or not the
indemnified liability arises or arose from any action by or in the right of the
corporation, provided, however, that no indemnification may be made in any case
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 IV of the By-Laws of the Registrant provides that the Directors,
officers, agents and employees of the Registrant shall be indemnified as of
right to the fullest extent now or hereafter not prohibited by law in connection
with any actual or threatened action, suit or proceeding, civil, criminal,
administrative, investigative or other (whether brought by or in the right of
the Registrant or otherwise) arising out of their service to the Registrant or
to another enterprise at the request of the Registrant.
PBCL Section 1747 permits a Pennsylvania business corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the
corporation as a director, officer, employee or agent of another corporation or
other enterprise, against any liability asserted against such person and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify the person
against such liability under the provisions described above.
Article IV of the By-Laws of the Registrant provides that the Registrant may
purchase and maintain insurance to protect itself and any Director, officer,
agent or employee entitled to indemnification under Article IV against any
liability asserted against such person and incurred by such person in respect of
the service of such person to the Registrant, whether or not the Registrant
would have the power to indemnify such person against such liability by law or
under the provisions of Article IV.
The Registrant maintains directors' and officers' liability insurance covering
its Directors and officers with respect to liabilities, including liabilities
under the Securities Act of 1933, as amended, which they may incur in connection
with their serving as such. Under this insurance, the Registrant may receive
reimbursement for amounts as to which the Directors and officers are indemnified
by the Registrant under the foregoing By-Law indemnification provision. Such
insurance also provides certain additional coverage for the Directors and
officers against certain liabilities even though such liabilities may not be
covered by the foregoing By-Law indemnification provision.
II-2
<PAGE>
As permitted by PBCL Section 1713, the Articles and By-Laws of the Registrant
provide that no Director shall be personally liable for monetary damages for any
action taken, or failure to take any action, unless such Director's breach of
duty or failure to perform constituted self-dealing, willful misconduct or
recklessness. The PBCL states that this exculpation from liability does not
apply to the responsibility or liability of a Director pursuant to any criminal
statute or the liability of a Director for the payment of taxes pursuant to
Federal, state or local law. It may also not apply to liabilities imposed upon
directors by the Federal securities laws. PBCL Section 1715(d) creates a
presumption, subject to exceptions, that a Director acted in the best interests
of the corporation. PBCL Section 1712, in defining the standard of care a
Director owes to the corporation, provides that a Director stands in a fiduciary
relation to the corporation and must perform his duties as a Director or as a
member of any committee of the Board in good faith, in a manner he reasonably
believes to be in the best interests of the corporation and with such care,
including reasonable inquiry, skill and diligence, as a person of ordinary
prudence would use under similar circumstances.
In June, 1987, the Registrant entered into a separate Indemnity Agreement with
each of its then Directors and officers. These Indemnity Agreements provide a
contractual right to indemnification against expenses and liabilities (subject
to certain limitations and exceptions) and a contractual right to advancement of
expenses, and contain additional provisions regarding the determination of
entitlement, settlement of proceedings, insurance, rights of contribution, and
other matters.
Item 16. Exhibits.
Description (Filed herewith except as
Number otherwise indicated.)
- ------ --------------------------------------
1.1 -- Form of Distribution Agreement.
4.1 -- Indenture dated as of April 1, 1983 providing for issuance of Debt
Securities. Filed as Exhibit 4.1 to the Registrant's Registration
Statement on Form S-3 filed April 24, 1986 (Registration No. 2-80575).
4.2 -- Instrument of Resignation, Appointment and Acceptance dated as of
February 1, 1985 effecting the resignation of Pittsburgh National
Bank and the succession of Bankers Trust Company as Trustee under the
above Indenture. Filed as Exhibit 4.01(b) to the Registrant's Annual
Report on Form 10-K for 1993, (Commission File No. 1-3551).
4.3 -- 1991 Supplemental Indenture dated as of March 15, 1991. Filed as
Exhibit 4.3 to the Registrant's Registration Statement on Form S-3
filed August 21, 1991 (Registration Number 33-39505).
4.4 -- Board Resolutions; form of Resolutions of the Ad Hoc Finance Committee
and form of accompanying Addenda establishing the terms of the Series
C issue of the Notes; form of the Notes (preliminary).
5.1 -- Opinion and consent of Augustine A. Mazzei, Jr., Esq.
12.1 -- Computation of Ratio of Earnings to Fixed Charges.
23.1 -- Consent of Ernst & Young.
23.2 -- Consent of Augustine A. Mazzei, Jr., Esq., is contained in his Opinion
filed as Exhibit 5.1.
II-3
<PAGE>
23.3 -- Consent of Doepken Keevican Weiss & Medved, Professional Corporation.
24.1 -- Power of Attorney is set forth on page II-6 of the Registration
Statement.
25.1 -- Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trustee Company, as Trustee.
Item 17. Undertakings
The 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;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this Registration Statement; and
(iii) 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;
Provided, however, that paragraphs (1)(i) and (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 by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in this 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.
(4) 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 15(d) of the Securities Exchange Act of
1934 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.
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 provisions described under Item 15 above (other
than pursuant to the policy of directors and officers liability insurance), 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 liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in
II-4
<PAGE>
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 Act and will be governed by the final adjudication of
such issue.
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-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, Commonwealth of Pennsylvania, on
May 18, 1994.
EQUITABLE RESOURCES, INC.
(Registrant)
By:/s/ Donald I. Moritz
-------------------------------
Donald I. Moritz
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints DONALD I. MORITZ, ROBERT E. DALEY and
AUGUSTINE A. MAZZEI, JR., and each of them, his or her true and lawful
attorneys-in-fact and agents, with full power of substitution and revocation,
for him or her and in his or her name, place and stead, in any and all
capacities, to sign any and all amendments to this Registration Statement, and
to file the same with all exhibits thereto, and other documents in connection
therewith, with the Securities and Exchange Commission, granting unto said
attorneys-in-fact and agents, and each of them, 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 or she might or could do in person,
hereby ratifying and confirming all that said attorneys-in-fact and agents, or
any of them, or their or his substitute, 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 indicated on May 18, 1994:
Signature Title
--------- -----
/s/ Donald I. Moritz
- ------------------------------- Chairman and Chief Executive
Donald I. Moritz Officer and Director
/s/ Frederick H. Abrew
- ------------------------------- President, Chief Operating Officer
Frederick H. Abrew and Director
II-5
<PAGE>
/s/ Clifford L. Alexander, Jr.
- ------------------------------- Director
Clifford L. Alexander, Jr.
/s/ Merle E. Gilliand
- ------------------------------- Director
Merle E. Gilliand
/s/ E. Lawrence Keyes, Jr.
- ------------------------------- Director
E. Lawrence Keyes, Jr.
/s/ Thomas A. McConomy
- ------------------------------- Director
Thomas A. McConomy
/s/ Malcolm M. Prine
- ------------------------------- Director
Malcolm M. Prine
/s/ Daniel M. Rooney
- ------------------------------- Director
Daniel M. Rooney
/s/ David S. Shapira
- ------------------------------- Director
David S. Shapira
/s/ Barbara B. Sullivan
- ------------------------------- Director
Barbara Boyle Sullivan
/s/ Robert E. Daley
- ------------------------------- Vice President and Treasurer
Robert E. Daley (Principal Financial Officer)
/s/ Joseph L. Giebel
- ------------------------------- Vice President-Accounting and
Joseph L. Giebel Administration (Principal
Accounting Officer)
II-6
<PAGE>
EXHIBIT INDEX
Description (Filed herewith except as otherwise indicated.)
-----------------------------------------------------------
<TABLE>
<CAPTION>
Number Page No.
- ------ --------
<S> <C> <C>
1.1 -- Form of Distribution Agreement (preliminary).....
4.1 -- Indenture dated as of April 1, 1983
providing for issuance of Debt Securities.
Filed as Exhibit 4.1 to the Registrant's
Registration Statement on Form S-3
filed April 24, 1986
(Registration Number 2-80575).................... N/A
4.2 -- Instrument of Resignation, Appointment
and Acceptance dated as of February 1,
1985 effecting the resignation of
Pittsburgh National Bank and the
succession of Bankers Trust Company
as Trustee under the Indenture. Filed
as Exhibit 4.01(b) to the Registrant's
Annual Report on Form 10-K for 1993,
(Commission File No. 1-3551)..................... N/A
4.3 -- 1991 Supplemental Indenture dated as of
March 15, 1991. Filed as Exhibit 4.3
to the Registrant's Registration Statement on
Form S-3 filed August 21, 1991
(Registration Number 33-39505)................... N/A
4.4 -- Board Resolutions; form of Resolutions of the Ad
Hoc Finance Committee and form of accompanying
Addenda establishing the terms of Series C of
the Notes; form of the Notes (preliminary).......
5.1 -- Opinion and consent of Augustine A.
Mazzei, Jr., Esq. ...............................
12.1 -- Computation of Ratio of Earnings to Fixed
Charges..........................................
23.1 -- Consent of Ernst & Young.........................
</TABLE>
II-7
<PAGE>
<TABLE>
<S> <C> <C>
23.2 -- Consent of Augustine A. Mazzei, Jr.,
Esq., is contained in his Opinion
filed as Exhibit 5.1 ............................
23.3 -- Consent of Doepken Keevican Weiss & Medved,
Professional Corporation
24.1 -- Power of Attorney is set forth on page
II-6 of the Registration Statement............... N/A
25.1 -- Form T-1 Statement of Eligibility and
Qualification under the Trust Indenture
Act of 1939 of Bankers Trust Company,
as Trustee.......................................
</TABLE>
II-8
<PAGE>
Exhibit 1.1
EQUITABLE RESOURCES, INC.
$100,000,000
Medium-Term Notes, Series C
Due from Nine Months to 40 Years from Date of Issue
DISTRIBUTION AGREEMENT
May __, 1994
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
Lehman Brothers Inc
Three World Financial Center
New York, New York 10285
Dear Sirs:
Equitable Resources, Inc., a Pennsylvania corporation (the "Company"),
confirms its agreement with each of you with respect to the issue and sale from
time to time by the Company of up to $100,000,000 aggregate principal amount of
its Medium-Term Notes, Series C, due from nine months to 40 years from date of
issue (the "Notes"). The Notes will be issued under a Trust Indenture dated as
of April 1, 1983 (the "Basic Indenture") between the Company and Bankers Trust
Company, as Trustee (the "Trustee"), as amended by the 1991 Supplemental
Indenture dated as of March 15, 1991 (the "Supplemental Indenture"), and as
heretofore supplemented and to be supplemented by Board Resolutions (as defined
in the Basic Indenture) (said Basic Indenture as so amended and supplemented,
being herein called the "Indenture"), and will have the maturities, interest
rates, redemption provisions, if any, and other terms as set forth in
supplements to the Basic Prospectus referred to below.
The Company hereby appoints Morgan Stanley & Co. Incorporated ("Morgan
Stanley") and Lehman Brothers Inc. (including Lehman Special Securities Inc.,
"Lehman"; and with Morgan Stanley and Lehman also being individually an "Agent"
and collectively the "Agents") as its exclusive agents, subject to Section 12
and the next to last sentence of this paragraph, for the purpose of soliciting
and receiving offers to purchase Notes from the Company by others and, on the
basis of the representations and warranties herein contained, but subject to the
terms and conditions herein set forth, each Agent agrees to use reasonable
efforts to solicit and receive offers to purchase Notes upon terms acceptable to
the Company at such times and in such amounts as the Company shall from time to
time specify. In addition, any Agent may also purchase Notes as principal and,
if requested by such Agent, the Company will enter into a Terms Agreement
relating to such sale (a "Terms Agreement") in accordance with the provisions of
Section 2(b). It is understood and agreed that the Company may from time to
time for its own account solicit offers and receive offers directly from
purchasers to purchase Notes and any direct sales made by the Company resulting
therefrom its own efforts shall not give rise to any
-1-
<PAGE>
commissions pursuant to Section 2(a), provided that such purchasers are
purchasing the Notes for their own accounts and without the use of any
intermediary other than an agent (who would be entitled to such commissions).
In no event shall the Company appoint or use additional agents for the
purposes of soliciting and receiving offers to purchase its Notes except
pursuant to Section 12 hereof.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Notes. Such registration statement, including the exhibits thereto, as amended
at the Commencement Date (as hereinafter defined), is hereinafter referred to as
the "Registration Statement." The Company proposes to file with the Commission
from time to time, pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "Securities Act"), supplements to the prospectus included in the
Registration Statement that will describe certain terms of the Notes. The
prospectus in the form in which it appears in the Registration Statement is
hereinafter referred to as the "Basic Prospectus." The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement or supplements
(each a "Prospectus Supplement") relating to Notes, as filed with, or
transmitted for filing to, the Commission pursuant to Rule 424. As used herein,
the terms "Basic Prospectus" and "Prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement,"
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). All such
documents incorporated by reference in the Prospectus are referred to herein as
the "Incorporated Documents."
1. Representations and Warranties. The Company represents and
------------------------------
warrants to and agrees with each Agent as of the Commencement Date, as of each
date on which an Agent solicits offers to purchase Notes, as of each date on
which the Company accepts an offer to purchase Notes (including any purchase by
an Agent as principal, pursuant to a Terms Agreement or otherwise), as of each
date the Company issues and delivers Notes and as of each date the Registration
Statement or the Basic Prospectus is amended or supplemented, as follows (it
being understood that such representations, warranties and agreements shall be
deemed to relate to the Registration Statement, the Basic Prospectus and the
Prospectus, each as amended or supplemented to each such date):
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) each part of
the Registration Statement, when such part became effective, did not contain,
and each such part, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus comply, and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of the
Commission thereunder, and (iv) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except that (1) the representations and warranties set forth in this
Section 1(b) do not apply (A) to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to an Agent
furnished to the Company in writing by such Agent expressly for use therein or
(B) to that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification (Form T-l) under the Trust Indenture Act of 1939,
as amended (the "Trust Indenture Act"), of the Trustee, and (2) the
representations and warranties set forth in clauses (iii) and (iv) above, when
made as of the Commencement Date or as of any date on which an Agent solicits
offers to purchase
-2-
<PAGE>
Notes or on which the Company accepts an offer to purchase Notes, shall be
deemed not to cover information concerning an offering of particular Notes to
the extent such information will be set forth in a supplement to the Basic
Prospectus.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is duly qualified to
transact business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(d) Each subsidiary of the Company (except for one inactive
subsidiary) has been duly incorporated, is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to the
extent that the failure to be so qualified or be in good standing would not have
a material adverse effect on the Company and its subsidiaries, taken as a whole.
(e) This Agreement has been, and any applicable Terms Agreement when
delivered will have been, duly authorized, executed and delivered by the
Company.
(f) The Indenture has been duly qualified under the Trust Indenture
Act and has been duly authorized, executed and delivered by the Company and is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except as (i) the enforceability thereof may be limited by bankruptcy,
insolvency or similar laws affecting creditors' rights generally and (ii) rights
of acceleration and the availability of equitable remedies may be limited by
equitable principles of general applicability. The Indenture (including any
amendments and supplements thereto) conforms with all requirements of the Trust
Indenture Act and the applicable rules and regulations promulgated thereunder by
the Commission.
(g) The Notes have been duly authorized and, when executed and
authenticated in accordance with the Indenture and delivered to and duly paid
for by the purchasers thereof, will be entitled to the benefits of the Indenture
and will be valid and binding obligations of the Company, enforceable in
accordance with their respective terms except as (i) the enforceability thereof
may be limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability. The Notes, when executed and authenticated in accordance with
the Indenture and delivered to and duly paid for by the purchasers thereof, will
rank pari passu with all Securities (as defined in the Indenture) issued and to
---- -----
be issued under the Indenture and all other unsecured debt of the Company which
is not expressly subordinated.
(h) The execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the Notes, the
Indenture and any applicable Terms Agreement will not contravene any provision
of applicable law or the articles of incorporation or by-laws of the Company or
any agreement or other instrument binding upon the Company or any of its
subsidiaries that is material to the Company and its subsidiaries, taken as a
whole, or any judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or any A-subsidiary of the Company,
and no consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the Company of
its obligations under
-3-
<PAGE>
this Agreement, the Notes, the Indenture and any applicable Terms Agreement,
except such as may be required by the securities or Blue Sky laws of the various
states in connection with the offer and sale of the Notes and by the
Pennsylvania Public Utility Commission and the Kentucky Public Service
Commission in connection with the issuance and sale of the Notes. All required
regulatory approvals (excluding approvals required by state securities or Blue
Sky laws as to which no representation is made) have been obtained in connection
with the authorization, issuance and sale of the Notes.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company and its subsidiaries, taken as a whole, from that set forth in the
Prospectus.
(j) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or to
which any of the properties of the Company or any of its subsidiaries is subject
that are required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations, contracts or
other documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement that
are not described or filed as required.
(k) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(l) The Company and the offering of the Notes contemplated hereby
meet all eligibility requirements, including without limitation the "Registrant
Requirements" and the "Transaction Requirement," respectively, as provided in
the rules and regulations of the Commission, for use of a Registration Statement
on Form S-3 under the Securities Act.
(m) Except as disclosed in the Prospectus, the Company and its
subsidiaries have complied with and are not in violation of any federal, state
or local law, regulation, permit, provision or ordinance relating to the
protection of the environment ("Environmental Laws"), except for such violations
or non-compliance which would not have a material adverse effect on, or cause
material changes to, the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries, taken as a
whole; and the Company and its subsidiaries are not aware of any administrative
or judicial action being contemplated by governmental authorities relating to
Environmental Laws and neither the Company nor its subsidiaries are subject to
any consent decree or compliance or administrative order issued pursuant to, or
are the subject of any pending investigation or litigation under, applicable
Environmental Laws except for such actions, decrees, orders or investigations
which do not and would not have a material adverse effect on, or cause material
changes to, the condition (financial or otherwise) earnings, business affairs or
business prospects of the Company and its subsidiaries, taken as a whole.
Neither the Company nor any subsidiary is a party to a governmental proceeding
arising under any Environmental Law which involves potential monetary sanctions,
exclusive of interest and costs, of $100,000 or more.
2. Solicitations as Agent; Purchases as Principal.
-----------------------------------------------
(a) Solicitations as Agent. In connection with an Agent's actions as
----------------------
agent hereunder, such Agent agrees to use reasonable efforts to solicit offers
to purchase Notes upon the terms and conditions set forth in the Prospectus as
then amended or supplemented.
The Company reserves the right, in its sole discretion, to instruct
the Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase Notes. Upon
-4-
<PAGE>
receipt of at least one business day's prior notice from the Company, the Agents
will forthwith suspend solicitations of offers to purchase Notes from the
Company until such time as the Company has advised the Agents that such
solicitation may be resumed. While such solicitation is suspended, the Company
shall not be required to deliver any certificates, opinions or letters in
accordance with Sections 5(a), 5(b) and 5(c); provided, however, that if the
-------- -------
Registration Statement or Prospectus is amended or supplemented during the
period of suspension (other than by an amendment or supplement providing solely
for a change in the interest rates, redemption provisions, amortization
schedules or maturities offered on the Notes or for a change the Agents deem to
be immaterial), no Agent shall be required to resume soliciting offers to
purchase Notes until the Company has delivered such certificates, opinions and
letters described in Sections 5(a), 5(b) and 5(c) as such Agent may reasonably
request.
The Company agrees to pay to each Agent, as consideration for the sale
of each Note resulting from a solicitation made or an offer to purchase received
by such Agent, a commission, which the Agent may deduct from the proceeds of the
sale of the Notes as set forth in the Settlement Procedures contained in the
Administrative Procedures (as hereinafter defined), equal to the percentage set
forth below of the purchase price of such Note:
Term Commission Rate
---- ---------------
From 9 months to less than 12 months .125%
From 12 months to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .700%
From 20 years to less than 30 years .750%
From 30 years and beyond .875%
Each Agent shall communicate to the Company, orally or in writing,
each offer to purchase Notes received by such Agent as agent that in its
judgment should be considered by the Company. The Company shall have the sole
right to accept offers to purchase Notes and may reject any offer in whole or in
part. Each Agent shall have the right to reject any offer to purchase Notes
that it considers to be unacceptable, and any such rejection shall not be deemed
a breach of its agreements contained herein. The procedural details relating to
the issue and delivery of Notes sold by the Agents as agents and the payment
therefor shall be as set forth in the Administrative Procedures.
(b) Purchases as Principal. Each sale of Notes to an Agent as
----------------------
principal shall be made in accordance with the terms of this Agreement and, if
requested by such Agent, the Company will enter into a Terms Agreement that will
provide for the sale of such Notes to and the purchase thereof by such Agent. A
Terms Agreement may be an oral or a written agreement. An oral agreement will
subsequently be confirmed in writing. A written Terms Agreement may be
substantially in the form of Exhibit A hereto or may take the form of an
---------
exchange of any form of written telecommunication between such Agent and the
Company.
An Agent's commitment to purchase Notes as principal, whether pursuant
to a Terms Agreement or otherwise, shall be deemed to have been made on the
basis of the representations and
-5-
<PAGE>
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Each agreement by an Agent to purchase Notes as
principal (whether or not set forth in a Terms Agreement) shall specify the
principal amount of Notes to be purchased by such Agent pursuant thereto, the
maturity date of such Notes, the price to be paid to the Company for such Notes,
the interest rate borne by such Notes and any other terms of such Notes. Each
such agreement shall also specify any requirements for officers' certificates,
opinions of counsel and letters from the independent public accountants of the
Company pursuant to Section 4 hereof. A Terms Agreement may also specify
certain provisions relating to the re-offering of such Notes by such Agent.
Each Terms Agreement shall specify the time and place of delivery of
and payment for such Notes. Unless otherwise specified in a Terms Agreement,
the procedural details relating to the issue and delivery of Notes purchased by
an Agent as principal and the payment therefor shall be as set forth in the
Administrative Procedures. Each date of delivery of and payment for Notes to be
purchased by an Agent as principal, whether pursuant to a Terms Agreement or
otherwise, is referred to herein as a "Settlement Date."
(c) Administrative Procedures. The Agents and the Company agree to
-------------------------
perform the respective duties and obligations specifically provided to be
performed in the Medium-Term Notes Administrative Procedures (attached hereto as
Exhibit B) (the "Administrative Procedures"), as amended from time to time. The
- ---------
Administrative Procedures may be amended only by written agreement of the
Company and the Agents.
(d) Delivery. The documents required to be delivered by Section 4 of
--------
this Agreement as a condition precedent to the Agents' obligations to begin
soliciting offers to purchase Notes as agents of the Company shall be delivered
at the office of Kirkpatrick & Lockhart, counsel for the Agents, not later than
10:00 a.m., Pittsburgh time, on the date hereof, or at such other time and/or
place as the Agents and the Company may agree upon in writing, but in no event
later than the day prior to the earlier of (i) the date on which the Agents
begin soliciting offers to purchase Notes and (ii) the first date on which the
Company accepts any offer by an Agent to purchase Notes as principal. The date
of delivery of such documents is referred to herein as the "Commencement Date."
(e) Obligations Several. The Company acknowledges that the
-------------------
obligations of the Agents under this Agreement are several and not joint.
3. Agreements. The Company agrees with each Agent that:
----------
(a) Prior to the termination of the offering of the Notes pursuant to
this Agreement or any Terms Agreement, the Company will not file any Prospectus
Supplement relating to the Notes or any amendment to the Registration Statement
unless the Company has previously furnished to the Agents copies thereof for
their review and will not file any such proposed supplement or amendment to
which the Agents reasonably object; provided, however, that (i) the foregoing
-------- -------
requirement shall not apply to any of the Company's periodic filings with the
Commission required to be filed pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act, copies of which filings the Company will cause to be delivered
to the Agents promptly after being transmitted for filing with the Commission,
and (ii) any Prospectus Supplement that merely sets forth the terms or a
description of particular Notes shall be reviewed and approved only by the Agent
or Agents soliciting offers for such Notes. Subject to the foregoing sentence,
the Company will promptly cause each Prospectus Supplement to be filed with or
transmitted for filing to the Commission in accordance with Rule 424(b) under
the Securities Act. The Company will promptly advise the Agents (i) of the
filing of any amendment or supplement to the Basic Prospectus (except that
notice of the filing of an amendment or supplement to the Basic Prospectus that
merely sets forth the terms or a description of particular Notes shall be given
only to the Agent or Agents soliciting offers for
-6-
<PAGE>
such Notes), (ii) of the filing and effectiveness of any amendment to the
Registration Statement, (iii) of any request by the Commission for any amendment
to the Registration Statement or any amendment or supplement to the Basic
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose,
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or notice of
suspension of qualification and, if issued, to obtain as soon as possible the
withdrawal thereof. If the Basic Prospectus is amended or supplemented as a
result of the filing under the Exchange Act of any document incorporated by
reference in the Prospectus, no Agent shall be obligated to solicit offers to
purchase Notes so long as it is not reasonably satisfied with such document.
(b) If, at any time when a prospectus relating to the Notes is
required to be delivered under the Securities Act, any event occurs or condition
exists as a result of which the Prospectus, as then amended or supplemented,
would include an untrue statement of a material fact, or omit to state any
material fact necessary to make the statements therein, in light of the
circumstances when the Prospectus, as then amended or supplemented, would be
delivered to a purchaser, not misleading, or if, in the opinion of the Agents or
in the opinion of the Company, it is necessary at any time to amend or
supplement the Prospectus, as then amended or supplemented, to comply with
applicable law, the Company will immediately notify the Agents by telephone
(with confirmation in writing) to suspend solicitation of offers to purchase
Notes and, if so notified by the Company, the Agents shall forthwith suspend
such solicitation and cease using the Prospectus, as then amended or
supplemented. If the Company shall decide to amend or supplement the
Registration Statement or Prospectus, as then amended or supplemented, it shall
so advise the Agents promptly by telephone (with confirmation in writing) and,
at its expense, shall prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or Prospectus, as then
amended or supplemented, satisfactory in all respects to the Agents, that will
correct such statement or omission or effect such compliance and will supply
such amended or supplemented Prospectus to the Agents in such quantities as they
may reasonably request. If any documents, certificates, opinions and letters
furnished to the Agents pursuant to paragraph (f) below and Sections 5(a), 5(b)
and 5(c) in connection with the preparation and filing of such amendment or
supplement are satisfactory in all respects to the Agents, upon the filing with
the Commission of such amendment or supplement to the Prospectus or upon the
effectiveness of an amendment to the Registration Statement, the Agents will
resume the solicitation of offers to purchase Notes hereunder. Notwithstanding
any other provision of this Section 3(b), until the distribution of any Notes an
Agent may own as principal has been completed or prior to the settlement of any
purchase of Notes for which the Company shall have theretofore accepted an
offer, if any event described above in this paragraph (b) occurs, the Company
will, at its own expense, forthwith prepare and cause to be filed promptly with
the Commission an amendment or supplement to the Registration Statement or
Prospectus, as then amended or supplemented, reasonably satisfactory in all
respects to such Agent, will supply such amended or supplemented Prospectus to
such Agent in such quantities as it may reasonably request and shall furnish to
such Agent pursuant to paragraph (f) below and Sections 5(a), 5(b) and 5(c) such
documents, certificates, opinions and letters as it may reasonably request in
connection with the preparation and filing of such amendment or supplement.
(c) The Company will make generally available to its security holders
and to the Agents as soon as practicable earning statements that satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the Commission thereunder covering twelve month periods beginning in each
case not later than three months after the "effective date" (as defined in Rule
158 under the Securities Act) of the Registration Statement with respect to each
sale of Notes.
-7-
<PAGE>
(d) The Company will furnish to each Agent, without charge, a signed
copy of the Registration Statement, including exhibits and all amendments
thereto, and as many copies of the Prospectus, any documents incorporated by
reference therein and any supplements and amendments thereto as such Agent may
reasonably request.
(e) The Company will endeavor to qualify the Notes for offer and sale
under the securities or Blue Sky laws of such jurisdictions as the Agents shall
reasonably request and to maintain such qualifications for as long as the Agents
shall reasonably request.
(f) During the term of this Agreement, the Company shall furnish to
the Agents such relevant documents and certificates of officers of the Company
relating to the business, operations and affairs of the Company, the
Registration Statement, the Basic Prospectus, any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Administrative
Procedures, any Terms Agreement and the performance by the Company of its
obligations hereunder or thereunder as the Agents may from time to time
reasonably request.
(g) During the term of this Agreement, the Company shall notify the
Agents promptly in writing of any downgrading, or of its receipt of any notice
of any intended or potential downgrading or of any review for possible change
that does not indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally recognized
statistical rating organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act.
(h) The Company will, whether or not any sale of Notes is
consummated, pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including: (i) the preparation
and filing of the Registration Statement and the Prospectus and all amendments
and supplements thereto, (ii) the preparation, issuance and delivery of the
Notes, (iii) the fees and disbursements of the Company's counsel and accountants
and of the Trustee and its counsel, (iv) the qualification of the Notes under
securities or Blue Sky laws in accordance with the provisions of Section 3(e),
including filing fees and the fees and disbursements of counsel for the Agents
in connection therewith and in connection with the preparation of any Blue Sky
or Legal Investment Memoranda, (v) the printing and delivery to the Agents in
quantities as hereinabove stated of copies of the Registration Statement and all
amendments thereto and of the Basic Prospectus and any amendments or supplements
thereto, (vi) the printing and delivery to the Agents of copies of the Indenture
and any Blue Sky or Legal Investment Memoranda, (vii) any fees charged by rating
agencies for the rating of the Notes, (viii) the fees and expenses, if any,
incurred with respect to any filing with the National Association of Securities
Dealers, Inc., and (ix) the fees and disbursements of Kirkpatrick & Lockhart,
counsel for the Agents incurred in connection with the offering and sale of the
Notes, including any opinions to be rendered by such counsel hereunder.
(i) Between the date of any agreement by an Agent to purchase Notes
as principal and the Settlement Date with respect to such agreement, the Company
will not, without such Agent's prior consent, offer, sell, contract to sell or
otherwise dispose of any debt securities of the Company substantially similar to
such Notes (other than (i) the Notes that are to be sold pursuant to such
agreement, (ii) Notes previously agreed to be sold by the Company and (iii)
commercial paper issued in the ordinary course of business), except as may
otherwise be provided in such agreement.
(j) For a period of not less than one year following the last sale of
a Note, the Company will furnish to the Agents, promptly after the same is
filed, copies of all public reports or releases and all reports and financial
statements filed by the Company with the Commission pursuant to the Exchange Act
or any rule and regulation thereunder.
-8-
<PAGE>
4. Conditions of the Obligations of the Agents. Each Agent's
-------------------------------------------
obligation to solicit offers to purchase Notes as agent of the Company, each
Agent's obligation to purchase Notes as principal pursuant to any Terms
Agreement or otherwise and the obligation of any other purchaser to purchase
Notes will be subject to the accuracy of the representations and warranties on
the part of the Company herein, to the accuracy of the statements of the
Company's officers made in each certificate furnished pursuant to the provisions
hereof and to the performance and observance by the Company of all covenants and
agreements herein contained on its part to be performed and observed (in the
case of an Agent's obligation to solicit offers to purchase Notes, at the time
of such solicitation, and, in the case of an Agent's or any other purchaser's
obligation to purchase Notes, at the time the Company accepts the offer to
purchase such Notes and at the time of purchase) and (in each case) to the
following additional conditions precedent when and as specified:
(a) Prior to such solicitation or purchase, as the case may be:
(i) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations, of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus, as
amended or supplemented at the time of such solicitation or at the time
such offer to purchase was made, that, in the reasonable judgment of the
relevant Agent, is material and adverse and that makes it, in the
reasonable judgment of such Agent, impracticable to market the Notes on the
terms and in the manner contemplated by the Prospectus, as so amended or
supplemented;
(ii) there shall not have occurred any (A) suspension or material
limitation of trading generally on or by, as the case may be, the New York
Stock Exchange, the American Stock Exchange, the Philadelphia Stock
Exchange or the National Association of Securities Dealers, Inc., (B)
suspension of trading of any securities of the Company on any exchange or
in any over-the-counter market, (C) declaration of a general moratorium on
commercial banking activities in New York by either Federal or New York
State authorities or (D) any outbreak or escalation of hostilities or war
or any change in financial markets or any calamity or crisis that, in the
judgment of the relevant Agent, is material and adverse and, in the case of
any of the events described in clauses (ii) (A) through (D), such event,
singly or together with any other such event, makes it, in the judgment of
such Agent, impracticable to market the Notes on the terms and in the
manner contemplated by the Prospectus, as amended or supplemented at the
time of such solicitation or at the time such offer to purchase was made;
(iii) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by
any "nationally recognized statistical rating organization," as such term
is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(iv) no stop order or other order suspending the effectiveness of the
Registration Statement or any part thereof nor any order directed to any
Incorporated Document or any order suspending the qualification of the
Notes for offering or sale in any jurisdiction shall have been issued and
no stop order proceeding or other proceeding for any such purpose shall
have been initiated or threatened by the Commission or any state or other
regulatory body;
(A) except, in each case described in paragraph (i), (ii)(B) or (iii) above, as
disclosed to the relevant Agent in writing by the Company prior to such
solicitation or, in the case of a purchase of Notes, as disclosed in writing to
the relevant Agent before the offer to purchase such Notes was made, or (B)
unless in each case described in (ii) above, the relevant event shall have
occurred and been known to the
-9-
<PAGE>
relevant Agent before such solicitation or, in the case of a purchase of Notes,
before the offer to purchase such Notes was made.
(b) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the relevant Agents shall have received:
(i) The opinion, dated as of such date, of Augustine A. Mazzei, Jr.,
Senior Vice President and General Counsel for the Company, to the effect
that:
(A) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction
of its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus,
as then amended or supplemented, and is duly qualified to transact
business and is in good standing in each jurisdiction in which the
conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on the Company and its Subsidiaries (as defined in
subparagraph (B) below), taken as a whole;
(B) Kentucky West Virginia Gas Company, Equitable Gas-Energy
Company, Equitable Resources Energy Company, Equitrans, Inc., Nora
Transmission, Inc., Equitable Resources Marketing Company, Andex
Energy, Inc., Hershey Oil Corporation, Louisiana Intrastate Gas
Company, LIG, Inc., LIG Liquids Company, LLC, LIG Chemical Company,
Tuscaloosa Pipeline Company, ERI Realty, Inc., EQT Capital
Corporation, Equitable Resources (Canada) Ltd., ET Storage Company,
EREC Capital Corporation, Equitable Argentina, Equitable Storage
Company and Equitable Pipeline Company are the only active
subsidiaries of the Company (each a "Subsidiary" and collectively, the
"Subsidiaries"), and each Subsidiary has been duly incorporated, is
validly existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus, as then amended or supplemented, and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(C) each of this Agreement and any applicable Terms Agreement
has been duly authorized, executed and delivered by the Company;
(D) the Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized, executed and delivered by
the Company and is a valid and binding agreement of the Company,
enforceable in accordance with its terms except as (i) the
enforceability thereof may be limited by bankruptcy, insolvency or
similar laws affecting creditors' rights generally and (ii) rights of
acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability;
-10-
<PAGE>
(E) the Notes have been duly authorized and, if executed and
authenticated in accordance with the Indenture and delivered to and
duly paid for by the purchasers thereof on the date of such opinion,
would be entitled to the benefits of the Indenture and would be valid
and binding obligations of the Company, enforceable in accordance with
their respective terms except as (i) the enforceability thereof may be
limited by bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration and the availability
of equitable remedies may be limited by equitable principles of
general applicability;
(F) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Notes, the Indenture and any applicable Terms Agreement will not
contravene any provision of the articles of incorporation or by-laws
of the Company or, to the best of such counsel's knowledge, any
provision of applicable law or any agreement or other instrument
binding upon the Company or any of its subsidiaries that is material
to the Company and its subsidiaries, taken as a whole, or, to the best
of such counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization or
order of or qualification with any governmental body or agency is
required for the performance by the Company of its obligations under
this Agreement, the Notes, the Indenture and any applicable Terms
Agreement, except such as may be required by the securities or Blue
Sky laws of the various states in connection with the offer and sale
of the Notes and by the Pennsylvania Public Utility Commission and the
Kentucky Public Service Commission in connection with the issuance and
sale of the Notes;
(G) the statements (1) in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes" and "Offering
Through the Company and Agents", (2) in the Registration Statement
under "Item 15 -Indemnification of Directors and Officers", (3) in
"Item 3 - Legal Proceedings" of the Company's most recent annual
report on Form 10-K incorporated by reference in the Prospectus, and
(4) in "Item 1 - Legal Proceedings" of Part II of the Company's
quarterly reports on Form 10-Q, if any, filed since such annual
report, in each case insofar as such statements constitute summaries
of the legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the matters
referred to therein;
(H) after due inquiry, such counsel does not know of any legal
or governmental proceeding pending or threatened to which the Company
or any of its subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries is subject that
are required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, and are not so described
or of any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus, as then amended or supplemented, or to be filed as
exhibits to such Registration Statement that are not described or
filed as required;
(I) such counsel (1) is of the opinion that each document, if
any,
-11-
<PAGE>
filed pursuant to the Exchange Act and incorporated by reference in
the Prospectus, as then amended or supplemented (except for financial
statements and schedules or other financial or statistical data
included therein as to which such counsel need not express any
opinion), complied when so filed as to form in all material respects
with the Exchange Act and the applicable rules and regulations of the
Commission thereunder, (2) believes that (except for financial
statements and schedules or other financial or statistical data as to
which such counsel need not express any belief and except for that
part of the Registration Statement that constitutes the Form T-1
heretofore referred to) each part of the Registration Statement, as
then amended, if applicable, when such part became effective did not,
and, except for changes in factual matters disclosed in amendments or
supplements (as such terms are defined in the third paragraph of this
Distribution Agreement), as of the date such opinion is delivered,
does not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (3) is of the opinion that
the Registration Statement and Prospectus, as then amended or
supplemented, if applicable (except for financial statements and
schedules or other financial or statistical data included therein as
to which such counsel need not express any opinion), comply as to form
in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder, and (4) believes
that (except for financial statements and schedules or other financial
or statistical data as to which such counsel need not express any
belief) the Prospectus, as then amended or supplemented, if
applicable, as of the date such opinion is delivered does not contain
any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided
--------
that in the case of an opinion delivered on the Commencement Date or
pursuant to Section 5(b), the opinion and belief set forth in clauses
(3) and (4) above shall be deemed not to cover information concerning
an offering of particular Notes to the extent such information will be
set forth in a supplement to the Basic Prospectus; and
(J) all necessary regulatory approvals (excluding approvals
required by state securities or Blue Sky laws as to which no opinion
is expressed) have been obtained in connection with the authorization,
issuance and sale of the Notes.
(ii) The opinion, dated as of such date of Doepken Keevican Weiss &
Medved, independent counsel for the Company, covering the matters in
subparagraphs (C), (D), (E), (F) and (G) (with respect to statements in the
Prospectus, as then amended or supplemented, under the captions
"Description of Notes" and "Offering Through the Company and Agents") and
clauses (2), (3) and (4) of subparagraph (I) in paragraph (b)(i) above and
to the further effect (1) that the Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws of the
Commonwealth of Pennsylvania, with corporate power and authority to own its
properties and conduct its business as described in the Prospectus, and (2)
such counsel is of the opinion ascribed to it in the Prospectus Supplement,
as then amended or supplemented under the caption "Certain Federal Income
Tax Consequences."
(iii) The opinion, dated as of such date, of Kirkpatrick & Lockhart,
counsel for the Agents, covering the matters in subparagraphs (C), (D), (E)
and (G) (with respect to statements in the Prospectus, as then amended or
supplemented, under the captions "Description of Notes"
-12-
<PAGE>
and "Offering Through the Company and Agents") and clauses (2), (3) and (4)
of subparagraph (I) in paragraph (b)(i) above.
With respect to clauses (2), (3) and (4) of subparagraph (I) of
paragraph (b)(i) above, Doepken Keevican Weiss & Medved may state that their
opinion and belief are based upon their participation in the preparation of the
Registration Statement and Prospectus and any amendments or supplements thereto
and documents incorporated therein by reference and review and discussion of the
contents thereof, but are without independent check or verification, except as
specified. With respect to clauses (2), (3) and (4) of subparagraph (I) of
paragraph (b)(i) above, Kirkpatrick & Lockhart may state that their opinion and
belief are based upon their participation in the preparation of the Registration
Statement and Prospectus and any amendments or supplements thereto (but not
including documents incorporated therein by reference) and review and discussion
of the contents thereof (including documents incorporated therein by reference),
but are without independent check or verification, except as specified.
(c) On the Commencement Date and, if called for by any agreement by
an Agent to purchase Notes as principal, on the corresponding Settlement Date,
the relevant Agents shall have received a certificate, dated such Commencement
Date or Settlement Date, as the case may be, signed by an executive officer of
the Company to the effect set forth in subparagraphs (a)(iii) and (a)(iv) above
and to the effect that (A) there has not occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise, or in
the earnings, business or operations, of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus, as then amended or
supplemented, that is material and adverse, and (B) the representations and
warranties of the Company contained herein are true and correct as of such date
and that the Company has complied with all of the agreements and satisfied all
of the conditions on its part to be performed or satisfied on or before such
date.
The officer signing and delivering such certificate may rely upon the
best of his knowledge as to proceedings threatened.
(d) Subject to receipt by Ernst & Young, the Company's independent
public accountants, on the Commencement Date of written opinion of Kirkpatrick &
Lockhart, counsel to the Agents, to the effect that such Agents have a due
diligence defense under Section 11 of the Securities Act or a representation
letter of the Agents with respect to their due diligence review process, either
being as set forth in Statement on Auditing Standards No. 72 (February 1993), on
the Commencement Date and, if called for by any agreement by an Agent to
purchase Notes as principal, on the corresponding Settlement Date, Ernst & Young
shall have furnished to the relevant Agents a letter or letters, dated as of the
Commencement Date or such Settlement Date, as the case may be, confirming that
they are independent public accountants within the meaning of the Securities Act
and the applicable published Rules and Regulations thereunder and stating to the
effect that:
(A) in their opinion the financial statements examined by them
and incorporated by reference in the Prospectus comply as to form in
all material respects with the applicable accounting requirements of
the Securities Act and the Exchange Act and the related published
Rules and Regulations;
(B) on the basis of a reading of the latest available quarterly
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that: (1) the summary of financial information
in the Prospectus has not been fairly summarized from the audited
financial statements incorporated by reference in the Prospectus; (2)
-13-
<PAGE>
the unaudited financial statements included in the Prospectus do not
comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the related
published Rules and Regulations or are not in conformity with
generally accepted accounting principles applied on a basis
substantially consistent with that of the audited financial statements
in the Prospectus; (3) at the date of the latest available monthly
balance sheet read by such accountants and at a subsequent specified
date not more than five days prior to the date of this Agreement,
there was any change in the capital stock or any increase in short-
term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
monthly balance sheet read by such accountants and at a subsequent
specified date not more than five days prior to the date of this
Agreement, there was any increase in consolidated net current
liabilities or any decrease in consolidated net assets, as compared
with amounts shown on the latest balance sheet included in the
Prospectus; or (4) for the period from the closing date of the latest
income statement included or incorporated by reference in the
Prospectus to the closing date of the latest available monthly income
statement read by such accountants and to a subsequent specified date
not more than five days prior to the date of this Agreement, there
were any decreases, as compared with the corresponding period of the
previous year, in consolidated operating revenues, operating income or
in the total or per share amounts of earnings applicable to common
stock except in all cases set forth in clauses (3) and (4) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(C) they have compared the dollar amounts (or percentages
derived from such dollar amounts) and other financial information
specified by you which appear in the Basic Prospectus under the
captions "The Company," "Ratio of Earnings to Fixed Charges" and
"Description of Notes" and which appear in the Registration Statement
as Exhibit 12.1 - Ratio of Earnings to Fixed Charges and such other
matters which are included in the Company's most recent annual report
on Form 10-K, any quarterly report on Form 10-Q and other Exchange Act
report incorporated by reference in the Prospectus or which may appear
in any Prospectus Supplement under captions reasonably designated by
the relevant Agent (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation)
with the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter; and
(D) they have read the unaudited pro forma financial information
incorporated by reference into the Prospectus and on the basis of such
reading and other specified readings of financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that the
unaudited pro forma financial information of the Company giving effect
to the acquisition of Louisiana Intrastate Gas Corporation at June 30,
1993 contained in the Company's Form 8-K, as amended, do not
-14-
<PAGE>
comply as to form in all material respects with the applicable
requirements of Rule 11-2 of Regulation S-X of the Commission or the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements.
(e) On the Commencement Date and on each Settlement Date, the Company
shall have furnished to the relevant Agents such appropriate further
information, certificates and documents as they may reasonably request.
5. Additional Agreements of the Company. (a) Each time the
------------------------------------
Registration Statement or Prospectus is amended or supplemented (other than by
an amendment or supplement specifying solely, or providing solely for a change
in, the interest rates, redemption provisions, amortization schedules or
maturities offered on the Notes or for a change the Agents deem to be
immaterial) including by filing with the Commission any Incorporated Document,
the Company will deliver or cause to be delivered forthwith to each Agent a
certificate signed by an executive officer of the Company, dated the date of
such amendment or supplement, as the case may be, in form reasonably
satisfactory to the Agents, of the same tenor as the certificate referred to in
Section 4(c) relating to the Registration Statement or the Prospectus as amended
or supplemented to the time of delivery of such certificate.
(b) Each time the Company furnishes a certificate pursuant to Section
5(a), the Company will furnish or cause to be furnished forthwith to each Agent,
unless otherwise agreed by such Agent, a written opinion of each of Augustine A.
Mazzei, Jr., Senior Vice President and General Counsel, and Doepken Keevican
Weiss & Medved, independent counsel for the Company. Any such opinions shall be
dated the date of such amendment or supplement, as the case may be, shall be in
a form satisfactory to the Agents and shall be of the same tenor as the opinions
referred to in Sections 4(b)(i) and 4(b)(ii), respectively, but modified to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion. In lieu of such opinions,
each counsel last furnishing such an opinion to an Agent may furnish to each
Agent a letter to the effect that such Agent may rely on such last opinion to
the same extent as though it were dated the date of such letter (except that
statements in such last opinion will be deemed to relate to the Registration
Statement and the Prospectus as amended or supplemented to the time of delivery
of such letter).
(c) Each time the Registration Statement or the Prospectus is amended
or supplemented to set forth amended or supplemental financial information or
such amended or supplemental information is incorporated by reference in the
Prospectus, the Company shall cause its independent public accountants forthwith
to furnish each Agent, unless otherwise agreed to by such Agent, with a letter,
dated the date of such amendment or supplement, as the case may be, in form
satisfactory to such Agent, of the same tenor as the letter referred to in
Section 4(d), with regard to the amended or supplemental financial information
included or incorporated by reference in the Registration Statement or the
Prospectus as amended or supplemented to the date of such letter.
6. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless each Agent and each person, if any, who controls
such Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in any
amendment thereof or the Prospectus (as amended or supplemented if the Company
shall have made any amendments or supplements thereto, including by way of any
Incorporated Documents), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages or liabilities are caused by any such untrue statement or
-15-
<PAGE>
omission or alleged untrue statement or omission based upon information relating
to such Agent furnished to the Company in writing by such Agent expressly for
use therein. Expenses shall be reimbursed as incurred.
(b) Each Agent agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement and each person, if any, who controls the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to such Agent, but
only with reference to information relating to such Agent furnished to the
Company in writing by such Agent expressly for use in the Registration Statement
or the Prospectus or any amendments or supplements thereto. Expenses shall be
reimbursed as incurred.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either paragraph (a) or (b) above, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing, and the
indemnifying party, upon request of the indemnified party, (i) shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and (ii) shall pay the fees and disbursements of such counsel related
to such proceeding. In any such proceeding, any indemnified party shall have
the right to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel) for
all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by
Morgan Stanley or, if Morgan Stanley is not an indemnified party and is not
reasonably likely to become an indemnified party, by the Agents that are
indemnified parties, in the case of parties indemnified pursuant to paragraph
(a) above, and by the Company, in the case of parties indemnified pursuant to
paragraph (b) above. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity is or could have
been sought hereunder by such indemnified party, unless such settlement includes
an unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) If the indemnification provided for in paragraph (a) or (b) of
this Section 6 is unavailable to an indemnified party or insufficient in respect
of any losses, claims, damages or liabilities referred to therein in connection
with any offering of Notes, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and each
Agent on the other hand from the offering of such Notes or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and each Agent on the other hand in connection with the statements or
omissions that resulted in such losses,
-16-
<PAGE>
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and each Agent on the other hand in connection with the offering of such Notes
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of such Notes (before deducting expenses) received by
the Company bear to the total discounts and commissions received by each Agent
in respect thereof. The relative fault of the Company on the one hand and of
each Agent on the other hand shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or by such Agent and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Each Agent's obligation to contribute pursuant to this
Section 6 shall be several (in the proportion that the principal amount of the
Notes the sale of which by or through such Agent gave rise to such losses,
claims, damages or liabilities bears to the aggregate principal amount of the
Notes the sale of which by or through any Agent gave rise to such losses,
claims, damages or liabilities) and not joint.
(e) The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in this Section 6 shall
be deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 6, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
referred to in paragraph (d) above that were offered and sold to the public
through such Agent exceeds the amount of any damages that such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section 6 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
7. Position of the Agents. In acting under this Agreement and in
----------------------
connection with the sale of any Notes by the Company (other than Notes sold to
an Agent as principal), each Agent is acting solely as agent of the Company and
does not assume any obligation towards or relationship of agency or trust with
any purchaser of Notes. An Agent shall make reasonable efforts to assist the
Company in obtaining performance by each purchaser whose offer to purchase Notes
has been solicited by such Agent and accepted by the Company, but such Agent
shall not have any liability to the Company in the event any such purchase is
not consummated for any reason. If the Company shall default in its obligations
to deliver Notes to a purchaser whose offer it has accepted, the Company shall
hold the relevant Agent harmless against any loss, claim, damage or liability
arising from or as a result of such default and shall, in particular, pay to
such Agent the commission it would have received had such sale been consummated.
8. Termination. This Agreement may be terminated at any time by the
-----------
Company or, as to any Agent, by the Company or such Agent upon the giving of
written notice of such termination to the other parties hereto, but without
prejudice to any rights, obligations or liabilities of any party hereto accrued
or incurred prior to such termination. The termination of this Agreement shall
not require termination of any agreement by an Agent to purchase Notes as
principal, and the termination of any such agreement shall not require
termination of this Agreement. If this Agreement is terminated, the provisions
of the third paragraph of Section 2(a), Section 2(e), the last sentence of
Section 3(b) and Sections 3(c), 3(h), 3(j), 6, 7, 9, 11 and 14 shall survive;
provided that if at the time of termination an offer to purchase Notes
- --------
(including any offer to purchase Notes made by an Agent as principal) has been
accepted by the Company but the time of delivery to the purchaser or its agent
of such Notes has not occurred, the provisions of Sections 2(b), 2(c), 3(a),
3(e), 3(f), 3(g), 3(i), 4 and 5 shall also survive until such delivery has been
made.
-17-
<PAGE>
9. Representations and Indemnities to Survive. The respective
------------------------------------------
indemnity and contribution agreements, representations, warranties and other
statements of the Company and its officers and of the Agents set forth in or
made pursuant to this Agreement or any agreement by an Agent to purchase Notes
as principal will remain in full force and effect, regardless of any termination
of this Agreement or any such agreement, any investigation made by or on behalf
of an Agent or the Company or any of the officers, directors or controlling
persons referred to in Section 6, and delivery of and payment for the Notes.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and if sent to Morgan Stanley, will be mailed,
delivered or telefaxed and confirmed to Morgan Stanley at 1251 Avenue of the
Americas, New York, New York 10020, Attention: Manager, Credit Department
(telefax number: 212-703-4575), with a copy to 1221 Avenue of the Americas, New
York, New York 10020, Attention: Managing Director, Debt Syndicate (telefax
number: 212-764-7490), or if sent to Lehman, will be mailed, delivered or
telefaxed and confirmed to Lehman at Three World Financial Center, New York, New
York 10285, Attention: Medium-Term Note Department, 9th Floor (telefax number:
212-528-7035), or, if sent to the Company, will be mailed, delivered or
telefaxed and confirmed to the Company at 420 Boulevard of the Allies,
Pittsburgh, Pennsylvania 15219, Attention: Robert E. Daley, Vice President and
Treasurer (telefax number: 412-553-5875).
11. Successors. This Agreement and any Terms Agreement will inure to
----------
the benefit of and be binding upon the parties hereto and their respective
successors and the officers, directors and controlling persons referred to in
Section 6 and the purchasers of Notes (but only to the extent expressly provided
in Section 4), and no other person will have any right or obligation hereunder.
12. Amendments. This Agreement may be amended or supplemented if,
----------
but only if, such amendment or supplement is in writing and is signed by the
Company and each Agent; provided, however that the Company may from time to
---------
time, without the consent of any Agent, amend this Agreement to add as a party
hereto one or more additional firms registered under the Exchange Act, whereupon
each such firm shall become an Agent hereunder on the same terms and conditions
----
(including without limitation those terms relating to applicable commission as
set forth in Section 2(a)) as the other Agents that are parties hereto. The
Agents shall sign any amendment or supplement giving effect to the addition of
any such firm as an Agent under this Agreement.
13. Counterparts. This Agreement may be signed in any number of
------------
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the internal laws of the Commonwealth of Pennsylvania.
15. Headings. The headings of the sections of this Agreement have
--------
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
-18-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
EQUITABLE RESOURCES, INC.
By__________________________________
Title: Vice President and Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
MORGAN STANLEY & CO. INCORPORATED
By _________________________________
Title:
LEHMAN BROTHERS INC.
By _________________________________
Title:
Exhibit A - Form of Terms Agreement
- ---------
Exhibit B - Administrative Procedures
- ---------
-19-
<PAGE>
Exhibit A
---------
EQUITABLE RESOURCES, INC.
MEDIUM-TERM NOTES, SERIES C
TERMS AGREEMENT
__________________, 19__
EQUITABLE RESOURCES, INC.
420 Boulevard of the Allies
Pittsburgh, Pennsylvania 15219
Attention: Robert E. Daley, Vice President and Treasurer
Re: Distribution Agreement dated May __, 1994
(the "Distribution Agreement")
-------------------------------------------
We agree to purchase your Medium-Term Notes, Series C, having the
following terms:
[We agree to purchase, severally and not jointly, the principal amount
of Notes set forth below opposite our names:
Principal Amount
Name of Notes
---- ----------------
Morgan Stanley & Co. Incorporated
[Insert syndicate list]
Total . . . . $ ]*
================
The Notes shall have the following terms:
- ----------------------
* Delete if the transaction will not be syndicated.
A-1
<PAGE>
Principal amount: Interest Rate:
Purchase price: Applicability of modified
payment upon acceleration:
Price to public:
Settlement date
and time: If yes, state issue price:
Place of
delivery:
Maturity date:
Initial accrual
period OID:
Total amount
of OID:
Original yield
to maturity:
Optional redemption
date(s):
Initial redemption
percentage:
Annual redemption
percentage
decrease:
Sinking Fund or other
mandatory redemption
provisions:
Other terms:
A-2
<PAGE>
The provisions of Sections 1, 2(b) and 2(c) and 3 through 6, 9, 10, 11
and 14 of the Distribution Agreement and the related definitions are
incorporated by reference herein and shall be deemed to have the same force and
effect as if set forth in full herein.
[If on the Settlement Date any one or more of the Agents shall fail or
refuse to purchase Notes that it has or they have agreed to purchase on such
date, and the aggregate amount of Notes which such defaulting Agent or Agents
agreed but failed or refused to purchase is not more than one-tenth of the
aggregate amount of the Notes to be purchased on such date, the other Agents
shall be obligated severally in the proportions that the amount of Notes set
forth opposite their respective names above bears to the aggregate amount of
Notes set forth opposite the names of all such non-defaulting Agents, or in such
other proportions as _________ may specify, to purchase the Notes which such
defaulting Agent or Agents agreed but failed or refused to purchase on such
date; provided that in no event shall the amount of Notes that any Agent has
--------
agreed to purchase pursuant to this Agreement be increased pursuant to this
paragraph by an amount in excess of one-ninth of such amount of Notes without
the written consent of such Agent. If on the Settlement Date any Agent or
Agents shall fail or refuse to purchase Notes and the aggregate amount of Notes
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Notes to be purchased on such date, and arrangements
satisfactory to __________ and the Company for the purchase of such Notes are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Agent or the Company. In
any such case either _________ or the Company shall have the right to postpone
the Settlement Date but in no event for longer than seven days, in order that
the required changes, if any, in the Registration Statement and in the
Prospectus or in any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Agent from
liability in respect of any default of such Agent under this Agreement.]*
This Agreement is subject to termination on the terms incorporated by
reference herein. If this Agreement is so terminated, the provisions of
Sections 3(h), 6, 9, 11 and 14 of the Distribution Agreement shall survive for
the purposes of this Agreement.
- ------------------------------
* Delete if the transaction will not be syndicated.
A-3
<PAGE>
The following information, opinions, certificates, letters and
documents referred to in Section 4 of the Distribution Agreement will be
required: _____________________
[NAME OF RELEVANT AGENT(S)]
By __________________________________
Title:
Accepted:
EQUITABLE RESOURCES, INC.
By _________________________________
Title: Vice President and Treasurer
A-4
<PAGE>
Exhibit B
---------
EQUITABLE RESOURCES, INC.
MEDIUM-TERM NOTES, SERIES C, ADMINISTRATIVE PROCEDURES
____________________________
Explained below are the administrative procedures and specific terms
of the offering of Medium-Term Notes, Series C (the "Notes") on a continuous
basis by Equitable Resources, Inc. (the "Company") pursuant to the Distribution
Agreement, dated as of May __, 1994 (the "Distribution Agreement"), between the
Company and Morgan Stanley & Co. Incorporated ("Morgan Stanley"), Lehman
Brothers Inc. ("Lehman"). (Lehman and Morgan Stanley are also individually
referred to as an "Agent" and collectively as the "Agents".) In the
Distribution Agreement, each Agent has agreed to use its reasonable efforts to
solicit purchases of the Notes. Each Agent, as principal, may purchase Notes
for its own account and if requested by the Agent, the Company and the Agent
will enter into a Terms Agreement, as contemplated by the Distribution
Agreement. Terms defined in the Distribution Agreement are used herein as
therein defined.
The Notes will be issued pursuant to the provisions of the Indenture.
The Trustee (hereinafter sometimes "Bankers Trust") is the Registrar, the
Authenticating Agent and the Paying Agent for the Notes and will perform the
duties specified herein and in the Indenture. Notes will bear interest at a
fixed rate (the "Fixed Rate Notes"), which may be zero in the case of certain
original issue discount notes (the "OID Notes"). The Notes will be issued in
U.S. dollars (the "Specified Currency"). Each Note will be represented by
either a Global Security (as defined below) delivered to Bankers Trust, as agent
for the Depository Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate delivered to the holder
thereof or a person designated by such holder (a "Certificated Note"). Except
in limited circumstances, an owner of a Book-Entry Note will not be entitled to
receive a Certificated Note.
Book-Entry Notes will be issued in accordance with the administrative
procedures set forth in Part I hereof as they may subsequently be amended as the
result of changes in DTC's operating procedures, and Certificated Notes will be
issued in accordance with the administrative procedures set forth in Part II
hereof. Unless otherwise defined herein, terms defined in the Indenture or the
Notes shall be used herein as therein defined.
PART I: ADMINISTRATIVE PROCEEDS FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry Notes for
eligibility in the book-entry system maintained by DTC, Bankers Trust will
perform the custodial, document control and administrative functions described
below, in accordance with its respective obligations under a Letter of
Representations from the Company and Bankers Trust to DTC, dated as of the date
hereof (the "Letter of Representations"), and a Certificate Agreement between
Bankers Trust and DTC, dated as of October 21, 1988, and as amended to date, and
its obligations as participant in DTC, including DTC's Same-Day Funds Settlement
System ("SDFS").
<PAGE>
Issuance: On any date of settlement (as defined under "Settlement"
below) for one or more Book-Entry Notes, the Company
will issue a single global security in fully registered
form without coupons (a "Global Security") representing
up to $100,000,000 principal amount of all such Notes
that have the same Maturity Date, redemption
provisions, Interest Payment Dates, Interest Period,
Original Issue Date, original issue discount provisions
(if any), Interest Rate and any other relevant terms
(collectively "Terms"). Each Global Security will be
dated and issued as of the date of its authentication
by Bankers Trust. No Global Security will represent
any Certificated Note.
Identification Numbers: The Company has arranged with the CUSIP Service Bureau
of Standard & Poor's Corporation (the "CUSIP Service
Bureau") for the reservation of a series of CUSIP
numbers (including tranche numbers) for the Notes, each
of which series consists of approximately 900 CUSIP
numbers and relates to Global Securities representing
the Book-Entry Notes. The Company has obtained from
the CUSIP Service Bureau a written list of such series
of reserved CUSIP numbers and has delivered to Bankers
Trust and DTC such written list of 900 CUSIP numbers.
Bankers Trust will assign CUSIP numbers to Global
Securities as described below under Settlement
Procedure "B". DTC will notify the CUSIP Service
Bureau periodically of the CUSIP numbers that
Bankers Trust has assigned to Global Securities. At any
time when fewer than 100 of the reserved CUSIP numbers
of such series remain unassigned to Global Securities,
Bankers Trust shall so advise the Company and, if it
deems necessary, the Company will reserve additional
CUSIP numbers for assignment to Global Securities
representing Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company shall deliver a
list of such additional CUSIP numbers to Bankers Trust
and DTC.
Registration: Each Global Security will be registered in the name of
Cede & Co., as nominee for DTC, on the Security Register
maintained under the Indenture. The beneficial owner
of a Book-Entry Note (or one or more indirect
participants in DTC designated by such owner) will
designate one or more participants in DTC (with respect
to such Note, the "Participants") to act as agent or
agents for such owner in connection with the book-entry
system maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such Participants, a credit
balance with respect to such Note in the account of
such Participants. The ownership interest of such
beneficial owner in such Note will be recorded through
the records of such Participants or through the
separate records of such Participants in one or more
indirect participants in DTC.
Transfers: Transfers of a Book-Entry Note will be accompanied by
book entries made by DTC and, in turn, by Participants
(and in certain cases, one or more indirect
participants in DTC) acting on behalf of beneficial
transferors and transferees of such Note.
B-2
<PAGE>
Exchanges: Bankers Trust may deliver to DTC and the CUSIP Service
Bureau at any time a written notice of consolidation
specifying (i) the CUSIP numbers of two or more outstanding
Global Securities that represent Book-Entry Notes having the
same Terms and for which interest has been paid to the same
date, (ii) a date, occurring at least thirty days after such
written notice is delivered and at least thirty days before
the next Interest Payment Date for such Book-Entry Notes, on
which such Global Securities shall be exchanged for a single
replacement Global Security and (iii) a new CUSIP number to
be assigned to such replacement Global Security. Upon
receipt of such a notice, DTC will send to its Participants
(including Bankers Trust) a written notice to the effect
that such exchange will occur on such date. Prior to the
specified exchange date, Bankers Trust will deliver to the
CUSIP Service Bureau a written notice setting forth such
exchange date and the new CUSIP number and stating that, as
of such exchange date, the CUSIP numbers of the Global
Securities to be exchanged will no longer be valid. On the
specified exchange date, Bankers Trust will exchange such
Global Securities for a new single Global Security bearing
the new CUSIP number, and the CUSIP numbers of the exchanged
Global Securities will, in accordance with CUSIP Service
Bureau procedures, be canceled and not immediately
reassigned.
Maturities: Each Book-Entry Note will mature on a date from nine months
through 40 years from the settlement date for such Note.
Notice of Bankers Trust will give notice to DTC prior to each
Redemption Dates: Redemption Date (as specified in the Note), if any, at the
time and in the manner set forth in the Letter of
Representations.
Denominations: Book-Entry Notes will be issued in principal amounts of
$100,000 or any amount in excess thereof that is an integral
multiple of $1,000. Global Securities will be denominated
in principal amounts not in excess of $100,000,000.
Interest: General. Each payment of interest on a Book-Entry Note will
-------
include interest accrued to but excluding the Interest
Payment Date. Interest payable at the maturity or upon
redemption of a Book-Entry Note will be payable to the
person to whom the principal of such Note is payable.
Standard & Poor's Corporation will use the information
received in the pending deposit message described under
Settlement Procedure "C" below in order to include the
amount of any interest payable and certain other information
regarding the related Global Security in the appropriate
weekly bond report published by Standard & Poor's
Corporation.
Record Dates. The Record Date with respect to a January 15
------------
Interest Payment Date and a July 15 Interest Payment Date
shall be the immediately preceding January 1 and July 1,
respectively, and with respect to any other Interest Payment
Date the date fifteen calendar days immediately preceding
such Interest Payment Date, in any event, whether or not
such day is a Business Day.
B-3
<PAGE>
Interest Payment Dates. Except as otherwise provided in an
----------------------
applicable Pricing Supplement, interest payments on Book-
Entry Notes will be made semiannually on January 15 and
July 15 of each year and at maturity; provided, however,
-------- -------
that in the case of a Book-Entry Note issued between a
Record Date and an Interest Payment Date, the first
interest payment will be made on the Interest Payment Date
following the next succeeding Record Date.
Notice of Interest Payment and Record Dates. On the first
-------------------------------------------
Business Day of January and July of each year, Bankers Trust
will deliver to the Company and DTC a written list of Record
Dates and Interest Payment Dates that will occur with
respect to Book-Entry Notes during the six-month period
beginning on such first Business Day.
Calculation of Interest on Book-Entry Notes (including interest for
Interest: partial periods) will be calculated on the basis of a year
of twelve thirty-day months.
Payments of Payments of Interest. Promptly after each Record Date,
Principal and --------------------
Interest: Bankers Trust will deliver to the Company and DTC a
written notice specifying by the CUSIP number the amount
of interest to be paid on each Global Security on the
following Interest Payment Date (other than an Interest
Payment Date coinciding with maturity) and the total of
such amounts. DTC will confirm the amount payable on each
such Global Security on such Interest Payment Date by
reference to the daily bond reports published by Standard
& Poor's Corporation. The Company will pay to Bankers
Trust, as paying agent, the total amount of interest due
on such Interest Payment Date (other than at maturity),
and Bankers Trust will pay such amount to DTC at the times
and in the manner set forth below under "Manner of
Payment." If any Interest Payment Date is not a Business
Day, the payment due on such day shall be made on the next
succeeding Business Day and no interest shall accrue on
such payment for the period from and after such Interest
Payment Date.
Payments at Maturity or Upon Redemption. On or about the
---------------------------------------
first Business Day of each month, Bankers Trust will deliver
to the Company and DTC a written list of principal and
interest to be paid on each Global Security maturing either
at maturity or on a redemption date in the following month.
The Company and DTC will confirm the amounts of such
principal and interest payments with respect to each such
Global Security on or about the fifth Business Day preceding
the Maturity Date or redemption date of such Global
Security. The Company will pay to Bankers Trust, as the
paying agent, the amount of principal due on such Global
Security, together with interest due at such Maturity Date
or redemption date.
Bankers Trust will pay such amounts to DTC at the times and
in the manner set forth below under "Manner of Payment." If
any Maturity Date or redemption date of Global Security
representing Book-Entry Notes is not a Business Day, the
payment due on such day shall be made on the next succeeding
Business Day and no interest shall accrue on such
B-4
<PAGE>
payment for the period from and after such Maturity Date or
redemption date. Promptly after payment to DTC of the
principal and interest due on the Maturity Date or
redemption date of such Global Security, Bankers Trust will
cancel such Global Security in accordance with the terms of
the Indenture and deliver it to the Company with a
certificate of cancellation. Upon a partial redemption,
Bankers Trust will issue and authenticate a new Global
Security in aggregate principal amount equal to the
unredeemed portion.
Manner of Payment. The total amount of any principal and
-----------------
interest due on Global Securities on any Interest Payment
Date or at maturity or upon redemption shall be paid by the
Company to Bankers Trust in funds available for immediate
use by Bankers Trust as of 9:30 A.M. (New York City time) on
such date. The Company will make such payment on such
Global Securities by instructing Bankers Trust to withdraw
funds from an account maintained by the Company at Bankers
Trust. The Company will confirm such instructions in
writing to Bankers Trust. Prior to 10 A.M. (New York City
time) on each Maturity Date or redemption date or as soon as
possible thereafter, Bankers Trust will pay by separate wire
transfer (using Fedwire message entry instructions in a form
previously specified by DTC) to an account at the Federal
Reserve Bank of New York previously specified by DTC, in
funds available for immediate use by DTC, each payment of
interest or principal (together with interest thereon) due
on Global Securities on any Maturity Date or redemption
date. On each Interest Payment Date, interest payments
shall be made to DTC in same day funds in accordance with
existing arrangements between Bankers Trust and DTC.
Thereafter on each such date, DTC will pay, in accordance
with its SDFS operating procedures then in effect, such
amounts in funds available for immediate use to the
respective Participants in whose names the Book-Entry Notes
represented by such Global Securities are recorded in the
book-entry system maintained by DTC. Neither the Company
nor Bankers Trust shall have any responsibility or liability
for the payment by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes required under
-----------------
applicable law to be withheld from any interest payment on a
Book-Entry Note will be determined and withheld by the
Participant, indirect participant in DTC or other person
responsible for forwarding payments directly to the
beneficial owner of such Note.
Preparation of If any order to purchase a Book-Entry Note is accepted
Pricing by or on behalf of the Company, the Company will prepare
Supplement: a pricing supplement (a "Pricing Supplement") reflecting
the terms of such Note and will arrange to file 10 copies of
such Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Securities Act and will deliver such number of copies of
such Pricing Supplement to the relevant Agent as the Agent
shall request by the close of business on the following
Business Day. The Agent will cause such Pricing Supplement
to be delivered to the purchaser of the Note.
B-5
<PAGE>
In each instance that a Pricing Supplement is prepared, the
Agent will affix the Pricing Supplement to Prospectuses
prior to its use in connection with the Notes to which it
applies. Outdated Pricing Supplements, and the Prospectuses
to which they are attached (other than those retained for
files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
payment for a Book-Entry Note and the authentication and
issuance of the Global Security representing such Note shall
constitute "settlement" with respect to such Note. All
orders accepted by the Company will be settled on the fifth
Business Day pursuant to the timetable for settlement set
forth below unless the Company and the purchaser agree to
settlement on another day which shall be no earlier than the
next Business Day.
Settlement Settlement Procedures with regard to each Book-Entry Note
Procedures: sold by the Company to or through an Agent (except pursuant
to a Terms Agreement) shall be as follows:
A. The Agent will advise the Company by telephone that
such Note is a Book-Entry Note and of the following
settlement information:
1. Principal Amount.
2. Maturity Date.
3. Interest Rate.
4. Interest Payment Dates.
5. Any optional or mandatory redemption provisions.
6. Settlement Date.
7. Price.
8. Agent's commission, if any, determined as provided
in the Distribution Agreement.
9. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration.
10. Any other applicable terms.
B-6
<PAGE>
B. The Company will advise Bankers Trust by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above. Bankers Trust will
then assign a CUSIP number to the Global Security
representing such Note and will notify the Company and
the Agent of such CUSIP number by telephone as soon as
practicable.
C. Bankers Trust will enter a pending deposit message
through DTC's Participant Terminal System, providing
the following settlement information to DTC, the Agent
and Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure
"A".
2. The Initial Interest Payment Date for such Note,
the number of days by which such date succeeds the
related DTC Record Date (which shall be the Record
Date as defined in the Note) and amount of
interest payable on such Initial Interest Payment
Date.
3. The CUSIP number of the Global Security
representing such Note.
4. Whether such Global Security will represent any
other Book-Entry Note (to the extent known at such
time).
D. Bankers Trust will complete and authenticate the Global
Security representing such Note.
E. DTC will credit such Note to Bankers Trust's
participant account at DTC.
F. Bankers Trust will enter an SDFS deliver order through
DTC's Participant Terminal System instructing DTC to
(i) debit such Note to Bankers Trust's participant
account and credit such Note to the Agent's participant
account and (ii) debit the Agent's settlement account
and credit Bankers Trust's settlement account for an
amount equal to the price of such Note less the Agent's
commission, if any. The entry of such a deliver order
shall constitute a representation and warranty by
Bankers Trust to DTC that (a) the Global Security
representing such Book-Entry Note has been issued and
authenticated and (b) Bankers Trust is holding such
Global Security pursuant to the Certificate Agreement
between Bankers Trust and DTC.
B-7
<PAGE>
G. Unless the Agent purchased such Note as principal, the
Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to
debit such Note to the Agent's participant account and
credit such Note to the participant accounts of the
Participants with respect to such Note and (ii) to
debit the settlement accounts of such Participants and
credit the settlement account of the Agent for an
amount equal to the purchase price of such Note.
H. Transfers of funds in accordance with SDFS deliver
orders described in Settlement Procedures "F" and "G"
will be settled in accordance with SDFS operating
procedures in effect on the settlement date.
I. Bankers Trust will credit to the account of the Company
maintained at Bankers Trust, New York, New York, in
funds available for immediate use in the amount
transferred to Bankers Trust in accordance with
Settlement Procedure "F".
J. Unless the Agent purchased such Note as principal, the
Agent will confirm the purchase of such Note to the
purchaser either by transmitting to the Participants
with respect to such Note a confirmation order or
orders through DTC's institutional delivery system or
by mailing a written confirmation to such purchaser.
Concurrently therewith, the Agent shall deliver a
Prospectus to the purchaser.
K. Monthly, Bankers Trust will send to the Company a
statement setting forth the principal amount of Notes
outstanding as of that date under the Indenture and
setting forth a brief description of any sales of which
the Company has advised Bankers Trust but which have
not yet been settled.
Settlement For sales by the Company of Book-Entry Notes to or
Procedure: through the Agent (except pursuant to a Terms Agreement)
Timetable: for settlement on the first Business Day after the sale
date, Settlement Procedures "A" through "J" set forth above
shall be completed as soon as possible but not later than
the respective times (New York City time) set forth below:
Settlement
Procedure Time
--------- ----
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 9:00 A.M. on settlement date
E 10:00 A.M. on settlement date
F-G 2:00 P.M. on settlement date
H 4:45 P.M. on settlement date
I-J 5:00 P.M. on settlement date
B-8
<PAGE>
If a sale is to be settled more than one Business Day after
the sale date, Settlement Procedures "A", "B" and "C" shall
be completed as soon as practicable but no later than 11:00
A.M., 12 Noon and 2:00 P.M., respectively, on the first
Business Day after the sale date, Settlement Procedure "H"
is subject to extension in accordance with any extension of
Fedwire closing deadlines and in the other events specified
in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Note is rescheduled or
canceled, Bankers Trust, after receiving notice from the
Company or the Agent, will deliver to DTC, through DTC's
Participant Terminal System, a cancellation message to such
effect by no later than 2:00 P.M. on the Business Day
immediately preceding the scheduled settlement date.
Failure to Settle: If Bankers Trust fails to enter an SDFS deliver order with
respect to a Book-Entry Note pursuant to Settlement
Procedure "F", Bankers Trust may deliver to DTC, through
DTC's Participant Terminal System, as soon as practicable a
withdrawal message instructing DTC to debit such Note to
Bankers Trust's participant account, provided that Bankers
Trust's participant account contains a principal amount of
the Global Security representing such Note that is at least
equal to the principal amount to be debited. If a
withdrawal message is processed with respect to all the
Book-Entry Notes represented by a Global Security, Bankers
Trust will mark such Global Security "canceled," make
appropriate entries in Bankers Trust's records and send such
canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with
CUSIP Service Bureau procedures, be canceled and not
immediately reassigned. If a withdrawal message is
processed with respect to one or more, but not all, of the
Book-Entry Notes represented by a Global Security, Bankers
Trust will exchange such Global Security for two Global
Securities, one of which shall represent such Book-Entry
Note or Notes and shall be canceled immediately after
issuance and the other of which shall represent the
remaining Book-Entry Notes previously represented by the
surrendered Global Security and shall bear the CUSIP number
of the surrendered Global Security.
If the purchase price for any Book-Entry Note is not timely
paid to the Participants with respect to such Note by the
beneficial purchaser thereof (or a person, including an
indirect participant in DTC, acting on behalf of such
purchaser), such Participants and, in turn, the Agent may
enter SDFS deliver orders through DTC's Participant Terminal
System reversing the orders entered pursuant to Settlement
Procedures "F" and "G", respectively. Thereafter, Bankers
Trust will deliver the withdrawal message and take the
related actions described in the preceding paragraph.
B-9
<PAGE>
Notwithstanding the foregoing, upon any failure to settle
with respect to a Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating procedures then in
effect.
In the event of a failure to settle with respect to one or
more, but not all, of the Book-Entry Notes to have been
represented by a Global Security, Bankers Trust will
provide, in accordance with Settlement Procedures "D" and
"F", for the authentication and issuance of a Global
Security representing the Book-Entry Notes to be represented
by such Global Security and will make appropriate entries in
its records.
B-10
<PAGE>
PART II: ADMINISTRATIVE PROCEDURES FOR CERTIFICATED NOTES
Bankers Trust will serve as Security Registrar in connection with the
Certificated Notes.
Issuance: Each Certificated Note will be dated and issued as of the
date of its authentication by Bankers Trust.
Registration: Certificated Notes will be issued only in fully registered
form without coupons.
Transfers and A Certificated Note may be presented for transfer or
Exchanges: exchange at the corporate trust office of Bankers Trust.
Certificated Notes will be exchangeable for other
Certificated Notes having identical terms but different
denominations without service charge. Certificated Notes
will not be exchangeable for Book-Entry Notes.
Maturities: Each Certificated Note will mature on a date from nine
months through 40 years from the settlement date for such
Note.
Denominations: The denomination of any Certificated Note will be a minimum
of $100,000 or any amount in excess thereof that is an
integral multiple of $1,000.
Interest: General. Interest on each Certificated Note will accrue
-------
from the Original Issue Date of such Note for the first
interest period and from the most recent date to which
interest has been paid for all subsequent interest periods.
Each payment of interest on a Certificated Note will include
interest accrued to but excluding the Interest Payment Date,
except that at maturity or earlier redemption, the interest
payable will include interest accrued to, but excluding, the
Maturity Date or the date of redemption, as the case may be.
Record Dates. The Record Date with respect to a January 15
------------
Interest Payment Date and a July 15 Interest Payment Date
shall be the immediately preceding January 1 and July 1
respectively, and with respect to any other Interest Payment
Date the date fifteen calendar days immediately preceding
such Interest Payment Date, in any event, whether or not
such day is a Business Day.
Interest Payment Dates. Unless otherwise specified pursuant
----------------------
to Settlement Procedure "A" below, interest payments on
Certificated Notes will be made semiannually on January 15
and July 15 of each year and at maturity; provided, however,
-------- -------
that in the case of Notes issued between a Record Date and
an Interest Payment Date, the first interest payment will be
made on the Interest Payment Date following the next
succeeding Record Date.
Calculation of Interest on Certificated Notes (including interest for
Interest: partial periods) will be calculated on the basis of a year
of twelve thirty-day months.
B-11
<PAGE>
Payments of Bankers Trust will pay the principal amount of each
Principal Certificated Note at maturity or upon redemption upon
and Interest: presentation and surrender of such Note to Bankers Trust.
Such payment, together with payment of interest due at
maturity or upon redemption of such Note, will be made in
funds available for immediate use by Bankers Trust and in
turn by the holder of such Note. Certificated Notes
presented to Bankers Trust at maturity or upon redemption
for payment will be canceled by Bankers Trust and
delivered to the Company with a certificate of
cancellation. Upon a partial redemption, new Certificated
Notes will be authenticated by Bankers Trust and delivered
to the holder in aggregate principal amount equal to the
unredeemed portion. All interest payments on a
Certificated Note (other than interest due at maturity or
upon redemption) will be made by check drawn on Bankers
Trust (or another person appointed by Bankers Trust) and
mailed by Bankers Trust to the person entitled thereto as
provided in such Note and the Indenture; provided,
--------
however, that the holder of $10,000,000 or more of Notes
-------
having the same Interest Payment Date will be entitled to
receive payment by wire transfer of immediately available
funds upon written request to Bankers Trust not later than
15 calendar days prior to the applicable Interest Payment
Date. Following each Record Date, Bankers Trust will
furnish the Company with a list of interest payments to be
made on the following Interest Payment Date for each
Certificated Note and in total for all Certificated Notes.
Interest at maturity or upon redemption will be payable to
the person to whom the payment of principal is payable.
Bankers Trust will provide monthly to the Company lists of
principal and interest to be paid on Certificated Notes
maturing or to be redeemed in the next month. Bankers
Trust will be responsible for withholding taxes on
interest paid on Certificated Notes as required by
applicable law.
If any Interest Payment Date or the Maturity Date or
redemption date of a Fixed-Rate Certificated Note is not a
Business Day, the payment due on such day shall be made on
the next succeeding Business Day and no interest shall
accrue on such payment for the period from and after such
Interest Payment Date, Maturity Date or redemption date, as
the case may be.
Preparation of If any order to purchase a Certificated Note is accepted by
Pricing or on behalf of the Company, the Company will prepare a
Supplement: pricing supplement (a "Pricing Supplement") reflecting the
terms of such Note and will arrange to file 10 copies of
such Pricing Supplement with the Commission in accordance
with the applicable paragraph of Rule 424(b) under the
Securities Act and will deliver the number of copies of such
Pricing Supplement to the Agent as the Agent shall request
by the close of business on the following Business Day. The
Agent will cause such Pricing Supplement to be delivered to
the purchaser of the Note concurrently with Settlement
Procedure "E" below.
In each instance that a Pricing Supplement is prepared, the
Agent will affix the Pricing Supplement to Prospectuses
prior to its use in connection with the Notes to which it
applies. Outdated Pricing
B-12
<PAGE>
Supplements, and the Prospectuses to which they are attached
(other than those retained for files), will be destroyed.
Settlement: The receipt by the Company of immediately available funds in
exchange for an authenticated Certificated Note delivered to
the Agent and the Agent's delivery of such Note against
receipt of immediately available funds shall constitute
"settlement" with respect to such Note. All orders accepted
by the Company will be settled on or before the fifth
Business Day next succeeding the date of acceptance pursuant
to the timetable for settlement set forth below, unless the
Company and the purchaser agree to settlement on another
date.
Settlement Settlement Procedures with regard to each Certificated
Procedures: Note sold by the Company to or through an Agent (except
pursuant to a Terms Agreement) shall be as follows:
A. The Agent will advise the Company by telephone that
such Note is a Certificated Note and of the following
settlement information:
1. Name in which such Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and address for
payment of principal and interest.
3. Taxpayer identification number of the Registered
Owner (if available).
4. Principal Amount.
5. Maturity Date.
6. Interest Rate.
7. Interest Payment Dates.
8. Any optional or mandatory redemption provisions.
9. Settlement Date.
10. Price.
11. Agent's commission, if any, determined as provided
in the Distribution Agreement between the Company
and the Agent.
B-13
<PAGE>
12. Whether the Note is an OID Note, and if it is an
OID Note, the total amount of OID, the yield to
maturity, the initial accrual period OID and the
applicability of Modified Payment upon
Acceleration.
13. Any other applicable terms.
B. The Company will advise Bankers Trust by telephone or
electronic transmission (confirmed in writing at any
time on the same date) of the information set forth in
Settlement Procedure "A" above.
C. The Company will have delivered to Bankers Trust a
preprinted four-ply packet for such Note, which packet
will contain the following documents in forms, that
have been approved by the Company, the Agent and
Bankers Trust:
1. Note with customer confirmation.
2. Stub One - For Bankers Trust.
3. Stub Two - For Agent.
4. Stub Three - For the Company.
D. Bankers Trust will complete such Note and authenticate
such Note and deliver it (with the confirmation) and
Stubs One and Two to the Agent as provided in the
following paragraph, and the Agent will acknowledge
receipt of the Note by stamping or otherwise marking
Stub One and returning it to Bankers Trust. Such
delivery will be made only against such acknowledgment
of receipt and evidence that instructions have been
given by the Agent for payment to the account of the
Company at Bankers Trust, New York, New York, in funds
available for immediate use, of an amount equal to the
price of such Note less the Agent's commission, if any.
In the event that the instructions given by the Agent
for payment to the account of the Company are revoked,
the Company will as promptly as possible wire transfer
to the account of the Agent an amount of immediately
available funds equal to the amount of such payment
made.
Bankers Trust shall deliver the Note and Stubs One and
Two to the Agent as follows:
(1) If the Agent is Morgan Stanley, to:
The account of Morgan Stanley & Co. Incorporated
Bank of New York
One Wall Street, 4th Floor
New York, New York 10015,
Attention: Dealers Clearance Department
B-14
<PAGE>
(2) If the Agent is Lehman, to:
Lehman Brothers Inc.
Three World Financial Center
New York, New York 10285
Attention: Medium-Term Note Department,
9th Floor
E. Unless the Agent purchased such Note as principal, the
Agent will deliver such Note (with confirmation) to the
customer against payment in immediately payable funds.
The Agent will obtain the acknowledgment of receipt of
such Note by retaining Stub Two.
F. Bankers Trust will send Stub Three to the Company by
first-class mail. Periodically, Bankers Trust will
also send to the Company a statement setting forth the
principal amount of the Notes Outstanding as of that
date under the Indenture and setting forth a brief
description of any sales of which the Company has
advised Bankers Trust but which have not yet been
settled.
Settlement For sales by the Company of Certificated Notes to or
Procedures through the Agent (except pursuant to a Terms Agreement)
Timetable: Settlement Procedures "A" through "F" set forth above
shall be completed on or before the respective times (New
York City time) set forth below:
Settlement
Procedure Time
---------- ----
A 2:00 P.M. on day before settlement date
B 3:00 P.M. on day before settlement date
C-D 2:15 P.M. on settlement date
E 3:00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to Settle: If a purchaser fails to accept delivery of and make payment
for any Certificated Note, the Agent will notify the Company
and Bankers Trust by telephone and return such Note to
Bankers Trust. Upon receipt of such notice, the Company
will immediately wire transfer to the account of the Agent
an amount equal to the amount previously credited to the
Company in respect of such Note. Such wire transfer will be
made on the settlement date, if possible, and in any event
not later than the Business Day following the settlement
date. If the failure shall have occurred for any reason
other than a default by the Agent in the performance of its
obligations hereunder and under the Distribution Agreement,
then the Company will reimburse the Agent or Bankers Trust,
as appropriate, on an equitable basis for its loss of the
use of the funds during the period when they were credited
to the account of the Company. Immediately upon receipt of
the Certificated Note in respect of which such failure
occurred, Bankers Trust will mark such Note "canceled," make
appropriate entries in Bankers Trust's records and send such
Note to the Company.
B-15
<PAGE>
EXCERPT FROM THE MINUTES OF A MEETING OF THE BOARD OF DIRECTORS OF EQUITABLE
RESOURCES, INC. HELD MAY 21, 1993
EXHIBIT 4.4
RESOLVED, That this Board hereby authorizes and approves a financing
program involving the issue and sale from time to time by the Company of debt
securities (including convertible debt securities) to be issued under the
Indenture dated as of April 1, 1983 (the "Indenture"), as supplemented, between
the Company and Bankers Trust Company, as Trustee, and equity securities
(including common stock, preferred stock and convertible preferred stock); the
debt securities and the equity securities hereinafter to be called individually
and in the aggregate the "Securities"; the aggregate principal amount of the
Securities not to exceed $200,000,000;
RESOLVED FURTHER, That the President and the Vice President and Treasurer
and other proper officers of the Company be, and hereby they are, authorized,
empowered and directed for and on behalf of the Company to cause a Registration
Statement on Form S-3 pertaining to the issuance and sale of the Securities, in
such form as such officers may approve, their approval to be evidenced
conclusively by their execution of the same, to be executed and filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended;
RESOLVED FURTHER, That Robert E. Daley, Vice President and Treasurer of the
Company, be, and hereby he is, designated to act on behalf of the Company as its
agent for service in respect of matters concerning such Registration Statement,
with the powers enumerated in Rule 478 of the Rules and Regulations of the
Securities and Exchange Commission under the Securities Act of 1933, as amended;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized, empowered and directed for and on behalf of the Company to
prepare or
<PAGE>
cause to be prepared and executed under the corporate seal of the Company if
necessary or advisable, and to cause to be filed at any time and from time to
time, any and all amendments to said Registration Statement, including post-
effective amendments, and other documents to be filed with the Securities and
Exchange Commission as they may deem necessary or advisable, such amendments and
other documents to be in such form as the officers executing the same may
approve, their approval to be evidenced conclusively by such execution, and to
take any and all further action and to file such prospectus and any supplements
thereto and other documents with the Securities and Exchange Commission as they
may deem necessary or advisable, in order to make such filing effective and to
effectuate the issuance and sale from time to time of Securities; and the
execution by such officers of any such paper or document or the doing by any of
them of any acts in connection with the foregoing matters shall conclusively
establish their authority therefor from the Company and the approval and
ratification by the Company of the papers and documents so executed and the
actions so taken;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized, empowered and directed to execute and file on behalf of
the Company Securities Certificates with the Pennsylvania Public Utility
Commission and Applications for Authority to Issue and Sell Securities with the
Kentucky Public Service Commission, relating to the Securities, and to execute
and file with the Pennsylvania Public Utility Commission and the Kentucky Public
Service Commission and all other regulatory authorities such amendments or
additional applications, agreements and other documents, or amendments to the
same, and to take any and all such further actions, as such officers may deem
necessary or advisable in
2.
<PAGE>
order to make all filings with all such regulatory authorities effective and to
authorize the issuance and sale of the Securities;
RESOLVED FURTHER, That the Ad Hoc Finance Committee consisting of Merle E.
Gilliand, E. Lawrence Keyes, Jr., Malcolm M. Prine and Donald I. Moritz, with
two members thereof constituting a quorum, shall be, and hereby it is,
authorized and empowered, in the name, place and stead of the Board of Directors
of the Company, to authorize at any time or times deemed appropriate one or more
issues and sales of Securities by the Company and, in connection with any such
issue, to determine, approve or appoint, as the case may be (i) the titles of
the Securities; (ii) the aggregate principal amount and denominations; (iii) the
maturity or maturities; (iv) the price to be received by the Company in any
public or private offering of the Securities (which may be at a discount from
the principal amount of any such Securities at their maturity); (v) the rate or
rates at which the Securities will bear interest, if any, and the date from
which such interest will accrue; (vi) the rate or rates at which the Securities
will pay dividends, if any, and the date or dates on which such dividends will
be payable; (vii) the terms upon which Securities may be convertible into other
Securities of the Company; (viii) any mandatory or optional sinking fund or
analogous provisions; (ix) the date, if any, after which, and the price or
prices at which, any Securities may be redeemed at the option of the Company;
(x) if applicable, the terms and conditions upon which any Securities may be
payable prior to final maturity at the option of the holder thereof or
otherwise; (xi) if applicable, the terms and conditions upon which the entire
indebtedness on any series of the Securities may be discharged by the deposit of
cash and/or certain government obligations with the Trustee for the holders of
the Securities; (xii) the restrictive covenants, if any, to be imposed upon the
Company relating
3.
<PAGE>
to any Securities; (xiii) any authenticating or paying agents, transfer agents
or registrars (collectively, the "Fiduciaries"); (xiv) the terms and conditions
of the issuance and sale of the Securities, including the price at which any
Securities may be sold by the Company and the plans for distribution of the
Securities, and the compensation to be paid any underwriters or agents for sale
in connection with such distribution; (xv) if applicable, the specific portions
of the Company's existing indebtedness to be refinanced from the proceeds of any
sale of the Securities; and (xvi) such other terms, conditions and provisions as
the Finance Committee shall deem appropriate;
RESOLVED, That, in addition to those powers granted to the Ad Hoc Finance
Committee of the Board of Directors of this Company, the Committee is hereby
authorized and empowered to appoint Robert E. Daley as agent to act in its name,
place and stead to determine the terms of the Securities to be issued by the
Company and the terms of their sale, subject to any conditions set by the
Finance Committee.
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized and directed to take any and all actions which they may
deem necessary or advisable to effect the issuance of one or more series of
Securities under the Indenture and otherwise carry out the terms and provisions
of the Indenture;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
each of them is, authorized, in the name and on behalf of the Company, to
execute and deliver such other agreements, documents, certificates and
instruments as may be required by any Fiduciary in connection with the Indenture
or as may be necessary or appropriate in connection with the issuance and sale
of the Securities;
4.
<PAGE>
RESOLVED FURTHER, That any Fiduciary be, and hereby it is, authorized to
rely and act upon, and shall be fully protected in so relying and acting upon,
any instructions received by it and signed by any officer of the Company or by
counsel for the Company, and to rely and act upon, and shall be fully protected
in so relying and acting upon, any Debenture, assignment, power of attorney,
certificate, order, instruction, notice or other instrument or paper believed by
it to be genuine and duly authorized and properly executed, that the Company may
reimburse any such Fiduciary for all expenses incurred by it in the performance
of its duties; that the Company may indemnify and hold harmless each Fiduciary
from and against any and all claims, suits, damages, losses, expenses (including
reasonable counsel fees) and liabilities which may be incurred by it or to which
it may be subjected by reason of, or in connection with, its appointment and
duties excepting only such as shall result from its own negligence or bad faith;
and that the proper officers of the Company be, and each of them hereby is,
authorized, in the name and on behalf of the Company, to execute and deliver a
written order to the appropriate Fiduciary directing such Fiduciary that the
Securities have been properly executed by the Company and to authenticate them
in such principal amount as shall have been determined by the Finance Committee,
to deliver such Securities to, or upon the order of the Company, and thereafter
to authenticate and deliver such other Securities as may be necessary upon
registration or transfer of, in exchange for, or in lieu of, any outstanding
Securities, all in accordance with the terms of the Indenture; when appropriate;
RESOLVED FURTHER, That the President and the Secretary of the Company be,
and hereby each of them is, authorized, empowered and directed to execute, by
manual or facsimile signature, the Securities in the aggregate principal amount
to be determined, when
5.
<PAGE>
appropriate, as provided in the Indenture and in definitive registered form, and
to execute, by manual or facsimile signature, from time to time such additional
Securities as may be necessary to effect transfers of the Securities and
exchanges of the Securities for Securities of other denominations, and the
President or any Vice President or the Treasurer or any Assistant Treasurer of
the Company be, and hereby each of them is, authorized, empowered and directed
to deliver from time to time the Securities, executed in the manner and in the
principal amount as aforesaid, to the Trustee for authentication and delivery
upon the written order of the Company signed by such officer, all as provided in
the Indenture and further authorized by the Finance Committee,
RESOLVED FURTHER, That the Finance Committee shall be, and hereby it is,
authorized and empowered to select underwriters, purchasers or agents for sale
of the Securities and to approve forms of underwriting agreements, purchase
agreements or agency agreements relating to the sale and distribution of the
Securities and providing for the terms and conditions of sales of series of
Securities, and the proper officers of the Company be, and hereby they are,
authorized, empowered and directed, on behalf of the Company and under its
corporate seal if necessary or advisable, to execute and deliver from time to
time one or more such agreements in such form as the Finance Committee or the
officers executing the same may approve, such approval to be evidenced
conclusively by the execution thereof;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized, in the name and on behalf of the Company and under its
corporate seal if necessary or advisable, to make application to such securities
exchange as the Finance Committee shall deem necessary or appropriate for the
listing thereon of Securities and that each
6.
<PAGE>
such officer, or such other person as such officer may designate in writing, is
authorized to appear before any official or officials or before any body of any
such exchange, and to execute and deliver any and all papers and agreements,
specifically including, without limitation, indemnity agreements for the benefit
of any such exchange relating to the use of facsimile signatures, and to do any
and all things which may be necessary to effect such listing and to do any and
all things which otherwise may be necessary to effect registration of the
Securities under Section 12 of the Securities Exchange Act of 1934, as amended;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized, empowered and directed to make applications in such states
as they shall deem necessary or advisable to qualify or register (or obtain an
exemption from qualification or registration) for offer or sale of all or such
part of the Securities, and to license the Company as a broker or dealer and to
take on behalf of the Company any and all actions, as they may deem necessary or
advisable in order to comply with the Blue Sky or securities laws of any state
of the United States of America and in connection therewith to execute and file
requisite papers and documents, including but not limited to applications,
reports, surety bonds, irrevocable consents and appointments of attorneys for
service of process, and to take any and all further action which they may deem
necessary or advisable in order to maintain any such registration or
qualification (or exemption) for so long as they deem necessary or as required
by law or by any underwriters of the Securities, and the execution by such
officers of any such paper or document or the doing by them of any action in
connection with the foregoing matters shall conclusively establish their
authority from the Company for the papers and documents so executed and the
action so taken;
7.
<PAGE>
RESOLVED FURTHER, That if in any state in which action is taken to qualify
or register any Securities or to license the Company as a broker or dealer a
prescribed form of resolution or resolutions relating to such licensing,
qualification or registration, or to any application, report, surety bond,
appointment or other instrument in connection therewith, is required, each such
resolution shall be deemed to have been, and hereby is, adopted by this Board of
Directors, and the Secretary or any Assistant Secretary of the Company is hereby
authorized, empowered and directed to certify the adoption of any such
resolution as though the same were presented at this meeting and adopted hereby,
all such resolutions to be inserted in the minute book of the Company as part of
the minutes of the Company;
RESOLVED FURTHER, That the proper officers of the Company be, and hereby
they are, authorized, empowered and directed to take any and all such further
action for and on behalf of the Company and to execute, for and on behalf of the
Company and under its corporate seal if necessary or advisable, and to deliver
any and all agreements, certificates, applications or other instruments as the
Finance Committee or such officers may deem necessary or advisable in order to
effect and confirm the authorization, issuance and sale of the Securities and to
implement the foregoing resolutions and the transactions contemplated thereby;
and
RESOLVED FURTHER, That whenever used in the foregoing resolutions, the term
"proper officers" shall mean the President or any Vice President of the Company.
8.
<PAGE>
EXCERPT FROM THE MINUTES OF A MEETING OF THE BOARD OF DIRECTORS
OF EQUITABLE RESOURCES, INC. HELD MARCH 18, 1994
---------------------------------------------------------------
RESOLVED, That this Board hereby authorizes and approves a financing
program involving the issue and sale from time to time by the Company of up to
$100 million aggregate principal amount of debt securities to be issued under
the Indenture dated as of April 1, 1983 (the "Indenture"), as supplemented,
between the Company and Bankers Trust Company, as Trustee.
RESOLVED FURTHER, That the President and the Vice President and
Treasurer and other proper officers of the Company be, and hereby they are,
authorized, empowered and directed for and on behalf of the Company to cause a
Registration Statement on Form S-3 pertaining to the issuance and sale of the
debt securities, in such form as such officers may approve, their approval to be
evidenced conclusively by their execution of the same, to be executed and filed
with the Securities and Exchange Commission under the Securities Act of 1933, as
amended.
RESOLVED FURTHER, That Robert E. Daley, Vice President and Treasurer
of the Company, be, and hereby he is, designated to act on behalf of the Company
as its agent for service in respect of matters concerning such Registration
Statement, with the powers enumerated in Rule 478 of the Rules and Regulations
of the Securities and Exchange Commission under the Securities Act of 1933, as
amended.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized, empowered and directed for and on behalf of the
Company to prepare or cause to be prepared and executed under the corporate seal
of the Company if necessary or advisable, and to cause to be filed at any time
and from time to time, any and all amendments to said Registration Statement,
including post-effective amendments, and other documents to be filed with the
Securities and Exchange Commission as they may deem necessary or advisable, such
amendments and other documents to be in such form as the officers executing the
same may approve, their approval to be evidenced conclusively by such execution,
and to take any and all further action and to file such prospectus and any
supplements thereto and other documents with the Securities and Exchange
Commission as they may deem necessary or advisable, in order to make such filing
effective and to effectuate the issuance and sale from time to time of debt
securities; and the execution by such officers of any such paper or document or
the doing by any of them of any acts in connection with the foregoing matters
shall conclusively establish their authority therefor from the Company and the
approval and ratification by the Company of the papers and documents so executed
and the actions so taken.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized, empowered and directed to
1
<PAGE>
execute and file on behalf of the Company an application for extension of a
Securities Certificate previously filed with the Pennsylvania Public Utility
Commission relating to the debt securities, and to execute and file with the
Pennsylvania Public Utility Commission and the Kentucky Public Service
Commission and all other regulatory authorities such amendments or additional
applications, agreements and other documents, or amendments to the same, and to
take any and all such further actions, as such officers may deem necessary or
advisable in order to make all filings with all such regulatory authorities
effective and to authorize the issuance and sale of the debt securities.
RESOLVED FURTHER, That this Board does hereby establish an Ad Hoc
Finance Committee of the Board, said Committee to consist of the following
members: Merle E. Gilliand, E. Lawrence Keyes, Jr., Malcolm M. Prine and Donald
I. Moritz, with two members thereof constituting a quorum.
RESOLVED FURTHER, That the Ad Hoc Finance Committee shall be, and
hereby it is, authorized and empowered, in the name, place and stead of the
Board of Directors of the Company, to authorize at any time or times deemed
appropriate one or more issues and sales of debt securities by the Company and,
in connection with any such issue, to determine, approve or appoint, as the case
may be (i) the titles of the debt securities; (ii) the aggregate principal
amount and denominations; (iii) the maturity or maturities; (iv) the price to be
received by the Company in any public or private offering of the debt securities
(which may be at a discount from the principal amount of any such debt
securities at their maturity); (v) the rate or rates at which the debt
securities will bear interest, if any, and the date from which such interest
will accrue; (vi) any mandatory or optional sinking fund or analogous
provisions; (vii) the date, if any, after which, and the price or prices at
which, any debt securities may be redeemed at the option of the Company; (viii)
if applicable, the terms and conditions upon which any debt securities may be
payable prior to final maturity at the option of the holder thereof or
otherwise; (ix) if applicable, the terms and conditions upon which the entire
indebtedness on any series of the debt securities may be discharged by the
deposit of cash and/or certain government obligations with the Trustee for the
holders of the debt securities; (x) the restrictive covenants, if any, to be
imposed upon the Company relating to any debt securities; (xi) any
authenticating or paying agents, transfer agents or registrars (collectively,
the "Fiduciaries"); (xii) the terms and conditions of the issuance and sale of
the debt securities, including the price at which any debt securities may be
sold by the Company and the plans for distribution of the debt securities, and
the compensation to be paid any underwriters or agents for sale in connection
with such distribution; (xiii) if applicable, the specific portions of the
Company's existing indebtedness to be refinanced from the proceeds of any sale
of the debt securities; and (xiv) such other terms, conditions and provisions as
the Finance Committee shall deem appropriate.
2
<PAGE>
RESOLVED FURTHER, That, in addition to those powers granted to the Ad
Hoc Finance Committee of the Board of Directors of this Company, the Committee
is hereby authorized and empowered to appoint Robert E. Daley as agent to act in
its name, place and stead to determine the terms of the debt securities to be
issued by the Company and the terms of their sale, subject to any conditions set
by the Finance Committee.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized and directed to take any and all actions which they
may deem necessary or advisable to effect the issuance of one or more series of
debt securities under the Indenture and otherwise carry out the terms and
provisions of the Indenture.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby each of them is, authorized, in the name and on behalf of the Company, to
execute and deliver such other agreements, documents, certificates and
instruments as may be required by any Fiduciary in connection with the Indenture
or as may be necessary or appropriate in connection with the issuance and sale
of the debt securities.
RESOLVED FURTHER, That any Fiduciary be, and hereby it is, authorized
to rely and act upon, and shall be fully protected in so relying and acting
upon, any instructions received by it and signed by any officer of the Company
or by counsel for the Company, and to rely and act upon, and shall be fully
protected in so relying and acting upon, any Debenture, assignment, power of
attorney, certificate, order, instruction, notice or other instrument or paper
believed by it to be genuine and duly authorized and properly executed; that the
Company may reimburse any such Fiduciary for all expenses incurred by it in the
performance of its duties; that the Company may indemnify and hold harmless each
Fiduciary from and against any and all claims, suits, damages, losses, expenses
(including reasonable counsel fees) and liabilities which may be incurred by it
or to which it may be subjected by reason of, or in connection with, its
appointment and duties excepting only such as shall result from its own
negligence or bad faith; and that the proper officers of the Company be, and
each of them hereby is, authorized, in the name and on behalf of the Company, to
execute and deliver a written order to the appropriate Fiduciary directing such
Fiduciary when debt securities have been properly executed by the Company to
authenticate them in such principal amount as shall have been determined by the
Finance Committee, to deliver such debt securities to, or upon the order of the
Company, and thereafter to authenticate and deliver such other debt securities
as may be necessary upon registration or transfer of, in exchange for, or in
lieu of, any outstanding debt securities, all in accordance with the terms of
the Indenture.
RESOLVED FURTHER, That the President and the Secretary of the Company
be, and hereby each of them is, authorized, empowered and directed to execute,
by manual or facsimile signature, the debt
3
<PAGE>
securities in the aggregate principal amount to be determined as provided in the
Indenture and in definitive registered form, and to execute, by manual or
facsimile signature, from time to time such additional debt securities as may be
necessary to effect transfers of the debt securities and exchanges of the debt
securities for debt securities of other denominations, and the President or any
Vice President or the Treasurer or any Assistant Treasurer of the Company be,
and hereby each of them is, authorized, empowered and directed to deliver from
time to time the debt securities, executed in the manner and in the principal
amount as aforesaid, to the Trustee for authentication and delivery upon the
written order of the Company signed by such officer, all as provided in the
Indenture and further authorized by the Finance Committee.
RESOLVED FURTHER, That the proper officers of the Company shall be,
and hereby they are, authorized and empowered to select underwriters, purchasers
or agents for sale of the debt securities and to approve forms of underwriting
agreements, purchase agreements or agency agreements relating to the sale and
distribution of the debt securities and providing for the terms and conditions
of sales of series of debt securities, subject to the ratification of the
Finance Committee and the proper officers of the Company be, and hereby they
are, authorized, empowered and directed, on behalf of the Company and under its
corporate seal if necessary or advisable, to execute and deliver from time to
time one or more such agreements in such form as the Finance Committee or the
officers executing the same may approve, such approval to be evidenced
conclusively by the execution thereof.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized, in the name and on behalf of the Company and under
its corporate seal if necessary or advisable, to make application to such
securities exchange as the Finance Committee shall deem necessary or appropriate
for the listing thereon of debt securities and that each such officer is author-
ized to appear before any official or officials or before any body of any such
exchange, and to execute and deliver any and all papers and agreements,
specifically including, without limitation, indemnity agreements for the benefit
of any such exchange relating to the use of facsimile signatures, and to do any
and all things which may be necessary to effect such listing and to do any and
all things which otherwise may be necessary to effect registration of the debt
securities under Section 12 of the Securities Exchange Act of 1934, as amended.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized, empowered and directed to make applications in such
states as they shall deem necessary or advisable to qualify or register (or
obtain an exemption from qualification or registration) for offer or sale of all
or such part of the debt securities, and to license the Company as a broker or
dealer and to take on behalf of the Company any and all actions, as they may
deem necessary or advisable in order to comply with the Blue Sky or securities
laws of any state of the United States of
4
<PAGE>
America and in connection therewith to execute and file requisite papers and
documents, including but not limited to applications, reports, surety bonds,
irrevocable consents and appointments of attorneys for service of process, and
to take any and all further action which they may deem necessary or advisable in
order to maintain any such registration or qualification (or exemption) for so
long as they deem necessary or as required by law or by any underwriters of the
debt securities, and the execution by such officers of any such paper or
document or the doing by them of any action in connection with the foregoing
matters shall conclusively establish their authority from the Company for the
papers and documents so executed and the action so taken.
RESOLVED FURTHER, That if in any state in which action is taken to
qualify or register any debt securities or to license the Company as a broker or
dealer a prescribed form of resolution or resolutions relating to such
licensing, qualification or registration, or to any application, report, surety
bond, appointment or other instrument in connection therewith, is required, each
such resolution shall be deemed to have been, and hereby is, adopted by this
Board of Directors, and the Secretary or any Assistant Secretary of the Company
is hereby authorized, empowered and directed to certify the adoption of any such
resolution as though the same were presented at this meeting and adopted hereby,
all such resolutions to be inserted in the minute book of the Company as part of
the minutes of the Company.
RESOLVED FURTHER, That the proper officers of the Company be, and
hereby they are, authorized, empowered and directed to take any and all such
further action for and on behalf of the Company and to execute, for and on
behalf of the Company and under its corporate seal if necessary or advisable,
and to deliver any and all agreements, certificates, applications or other
instruments as the Finance Committee or such officers may deem necessary or
advisable in order to effect and confirm the authorization, issuance and sale of
the debt securities and to implement the foregoing resolutions and the
transactions contemplated thereby.
RESOLVED FURTHER, That whenever used in the foregoing resolutions, the
term "proper officers" shall mean the President or any Vice President of the
Company.
5
<PAGE>
EQUITABLE RESOURCES, INC.
BOARD RESOLUTION
Resolution of the Ad Hoc Finance Committee,
a duly authorized Committee
appointed by the Board of Directors,
Establishing Certain Terms and Provisions
of an Additional Series of Debt Securities
to be Issued under the Indenture
dated as of April 1, 1983, as amended,
to Bankers Trust Company, as Successor Trustee
----------------------------------------------
RESOLVED, that, in accordance with Section 301 of the Indenture dated as of
April 1, 1983 (the "Original Indenture") from Equitable Resources, Inc. (the
"Company") to Bankers Trust Company, as trustee (the "Trustee"), as amended by
the 1991 Supplemental Indenture dated as of March 15, 1991 (the Original
Indenture as so amended, the "Indenture"), and as authorized by those certain
resolutions of the Board of Directors of the Company dated May 21, 1994, there
is hereby established for authentication and delivery by the Trustee an
additional series of Securities of the Company (such series being referred to
herein as the "Notes") to be issued from time to time under the Indenture,
having the following terms and provisions in addition to the terms and
provisions established by the Indenture, and to be in substantially the form
annexed to this Board Resolution:
1. Title. The title of the Notes shall be "Medium-Term Notes, Series C".
-----
2. Principal Amount. The aggregate principal amount of Notes which may be
----------------
authenticated and delivered (except for Notes authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other Notes
pursuant to Section 304, 305, 306, 906 or 1107 of the Indenture) shall be
limited to $100,000,000. Notes may be issued at any time or from time to time
in such principal amounts as shall be specified in one or more Addenda hereto
(individually an "Addendum" and collectively "Addenda") which may be executed at
any time or from time to time by the President, the Executive Vice President or
the Vice President and Treasurer of the Company. Each Addendum shall be in
substantially the form annexed to this Board Resolution and shall be deemed to
have been, and hereby is, adopted by this Committee, and may be certified by the
Secretary or Assistant Secretary of the Company as a part of this Board
Resolution. For purposes of each issue of Notes established pursuant to any
Addendum, all references in Sections 304, 305, 306, 906 and 1107 of the
Indenture to the Securities of any "series" shall be deemed to be references
solely to the issue of Notes so established.
3. Maturity. The principal of the Notes shall be payable on such date as
--------
shall be nine months to 40 years from the date of issue, as shall be specified
in any applicable Addendum.
<PAGE>
4.1. Interest Rate. The Notes shall bear interest at such fixed rate per
-------------
annum as shall be specified in any applicable Addendum, in each case until the
principal thereof is paid or made available for payment and (to the extent that
the payment of such interest shall be legally enforceable) at the same rate per
annum on any overdue principal and premium and on any overdue installment of
interest.
4.2. Interest Accrual. Interest on the Notes shall accrue from the date
----------------
of the original issue of such Notes or from the most recent Interest Payment
Date (as specified in Section 4.3 below) to which interest has been paid or duly
provided for.
4.3. Interest Payment Dates. Unless otherwise specified in any applicable
----------------------
Addendum, the Interest Payment Dates on which interest on the Notes shall be
paid or duly provided for shall be semiannually on July 15 and January 15 in
each year, commencing on such date as shall be specified in any applicable
Addendum.
4.4. Regular Record Dates. Unless otherwise specified in any applicable
--------------------
Addendum, the Regular Record Dates for the interest on the Notes so payable on
any Interest Payment Date (as specified in Section 4.3 above) shall be the
July 1 and January 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date.
5. Place of Payment. Principal of, and premium, if any, on, and interest
----------------
payable upon maturity or earlier redemption of, the Notes shall be payable at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, the City of New York, New York (the "Paying Agent"). Interest on
the Notes, other than interest payable at maturity or earlier redemption, shall
be payable by check mailed to the registered address of the holder of record on
the Regular Record Date for such interest payment. Unless otherwise designated
by the Company in a written notice to the Trustee, the office or agency in the
Borough of Manhattan for the above purpose shall be the Corporate Trust Office
of the Trustee. Notwithstanding the foregoing, (a) interest on any Note held in
the name of a nominee of the Depositary (as defined in Section 13.2 below) shall
be payable by wire transfer of immediately available funds and (b) interest on
any Certificated Note (as defined in Section 13.2 below) held by a holder of
$10,000,000 or more in aggregate principal amount of Certificated Notes having
the same Interest Payment Dates shall be entitled to receive payments of
interest by wire transfer of immediately available funds upon written request to
the Paying Agent not later than 15 calendar days prior to the applicable
Interest Payment Date.
6. Redemption. The Notes may be subject to redemption prior to Maturity
----------
at the option of the Company, as a whole at any time or in part from time to
time, otherwise than through operation of a sinking fund, at such Redemption
Prices (expressed as percentages of the principal amount) prevailing during such
periods of time as shall be specified in any applicable Addendum, in each case
together with accrued interest to the Redemption Date.
7. Sinking Fund. The Notes may be entitled to the benefit of a sinking
------------
fund requiring payments by the Company to the Trustee at such times, in amounts
sufficient to
2.
<PAGE>
redeem such principal amount of the Notes at such sinking fund redemption price,
with such right of the Company to increase such payments or to deliver Notes or
to apply Notes previously delivered in satisfaction of such sinking fund
requirements, and with such credit to the Company for previously increased
sinking fund payments, in each case as shall be specified in any applicable
Addendum.
8. Denominations. Unless otherwise specified in any applicable Addendum,
-------------
the Notes shall be issuable in denominations of $100,000 or any amount in excess
thereof which is an integral multiple of $1,000.
9. Convertibility. The Notes shall not be convertible into shares of
--------------
capital stock or other securities of the Company.
10. Repayment. Except as provided in Sections 7 and 11 hereof, the
---------
Company shall have no obligation to repay the Notes (at the option of Holders or
otherwise) prior to the Maturity of the Notes (as specified in Section 3 above).
11. Acceleration. The entire principal amount of the Notes (and not a
------------
portion thereof) shall be payable upon declaration of acceleration of the
Maturity of any Note pursuant to Section 502 of the Indenture.
12. Section 403 of Indenture. Section 403 of the Indenture shall apply to
------------------------
the Notes.
13.1. Additional Covenants. No additional covenants shall be applicable
--------------------
in respect of the Notes.
13.2. Notes Issuable as Global Securities. Each Note will be represented
-----------------------------------
(i) either by a "Global Note" registered in the name of a nominee of, and
deposited with, The Depository Trust Company, New York, New York, as Depositary
(the "Depositary"), and representing "Book-Entry Notes", (ii) or by a
certificate issued in definitive or temporary form (a "Certificated Note"), in
each case as specified in the applicable Addendum. Certificated Notes will not
be exchangeable for Book-Entry Notes and, except under the circumstances
described below, Book-Entry Notes will not be exchangeable for Certificated
Notes and will not otherwise be issuable as Certificated Notes.
So long as the Depositary's nominee is the registered owner of a Global
Note, such nominee will be considered to be the sole owner or Holder of the
Notes represented by such Global Note for all purposes of the Indenture. Except
as set forth below, owners of beneficial interests in a Global Note will not be
entitled to have the Notes represented by such Global Note registered in their
names, will not receive or be entitled to receive physical delivery of such
Notes in definitive form, and will not be considered to be the owners or Holders
thereof under the Indenture.
3.
<PAGE>
If the Depositary is at any time unwilling or unable to continue to act as
Depositary, and a successor depositary is not appointed by the Company within 90
days, the Company will issue Certificated Notes in definitive form in exchange
for the Global Note or Notes previously deposited with the Depositary. In
addition, the Company may at any time in its sole discretion determine not to
have the Notes represented by one or more Global Notes and, in such event, will
issue Certificated Notes in definitive form in exchange for such Global Note or
Notes.
13.3. Other Provisions. The Notes shall have no other terms than as set
----------------
forth in this Board Resolution (including any Addenda) and the Indenture or as
may be set forth in any indenture or indentures supplemental to the Indenture.
13.4. Indemnification. The Company agrees to indemnify the Trustee for,
---------------
and to hold it harmless against, any loss, liability or expense incurred without
negligence or bad faith on part, arising out of or in connection with the
acceptance or administration of the duties set forth in those certain
Administrative Procedures, which comprise a part of that certain Distribution
Agreement, to be dated on or about June ___, 1994, between the Company and the
Agents named therein (the "Administrative Procedures"), relating to the Notes,
as though such Administrative Procedures were set forth in the Indenture.
Capitalized terms used in this Board Resolution have the meanings set forth
in the Indenture unless otherwise indicated or the context otherwise requires.
_____________________
I, the undersigned, Secretary of the Company, DO HEREBY CERTIFY that the
foregoing is a true and correct copy of a resolution duly adopted by the Ad Hoc
Finance Committee, a duly authorized Committee appointed by the Board of
Directors of the Company, at a meeting of said Committee duly called and held on
June ___, 1994, at which a quorum was present and acting throughout, which
resolution has not been revoked, modified, amended or rescinded and is in full
force and effect on the date hereof.
WITNESS my hand and the seal of the Company this _______ day of
____________________, ______.
_____________________________________
Secretary
[CORPORATE SEAL]
4.
<PAGE>
EQUITABLE RESOURCES, INC.
ADDENDUM NO. _____ TO BOARD RESOLUTION
Establishing Certain Terms and Provisions
of an Issue of Medium-Term Notes, Series C
Pursuant to the Board Resolution
Adopted by the Ad Hoc Finance Committee June ___, 1994
------------------------------------------------------
RESOLVED, that, as contemplated by the Board Resolution adopted by the
Ad Hoc Finance Committee June ___, 1994, there is hereby established for
authentication and delivery by the Trustee an issue of the Medium-Term Notes,
Series C of the Company having the following terms and provisions in addition to
the terms and provisions established by the Indenture and the aforesaid Board
Resolution:
1. Principal Amount. $[ ].
----------------
2. Maturity Date. [ ].
-------------
3.1. Interest Rate. [ ]% per annum.
-------------
3.2. Interest Payment Dates. [ ] and [ ],
----------------------
commencing [ ].
[4. Redemption. The Notes of this issue shall not be subject to
----------
either mandatory or optional redemption prior to their stated maturity.]
[4. Redemption. The Company may, at its option, redeem the Notes of
----------
this issue, [on or after [ ]], as a whole at any time or in
part from time to time[, otherwise than through operation of the sinking fund,]
at the Redemption Prices (expressed as percentages of the principal amount) set
forth in the table below, in each case together with accrued interest to the
Redemption Date:
<TABLE>
<CAPTION>
[If Redeemed If Redeemed
During the During the
Twelve-Month Twelve-Month
Period Beginning Redemption Period Beginning Redemption
[ ], Price [ ], Price
- ---------------- ---------- ---------------- ----------
<S> <C> <C> <C>
% %
</TABLE>
5.
<PAGE>
[For purposes of this Section 4[, and for purposes of Section 5
below,] all references in Article 11 of the Indenture to the Securities of any
"series" shall be deemed to be references solely to the Notes of this issue.]
[5. Sinking Fund. The Company shall pay to the Trustee, on or before
------------
[ ] in each of the years [ ] through [ ], inclusive, an
amount sufficient to redeem [not less than] $[ ] principal amount
of the Notes of this issue, as a [mandatory] sinking fund, at the sinking fund
redemption price of 100% of the principal amount[, and the Company may, at its
option, also pay to the Trustee on or before such date in each of such years an
amount sufficient to redeem not more than an additional $[ ]
principal amount of such Notes at such sinking fund redemption price. The right
to make such additional optional sinking fund payment shall not be cumulative.]
[The cash amount of any [mandatory] sinking fund payment shall be subject to
reduction by delivery of any Notes of this issue at the principal amount thereof
or by the application as a credit of any such Notes previously received as
provided in Section 1202 of the Indenture.] Each cash sinking fund payment shall
be applied to the redemption of Notes of this issue as provided in Section 1203
of the Indenture.]
[6. Notes Issuable as Global Securities. The Notes of this issue
-----------------------------------
shall be issuable only as Global Notes, except under the circumstances described
in the Board Resolution.]
[6. Notes Issuable as Certificated Securities. The Notes of this
-----------------------------------------
issue shall be issuable only as Certificated Notes.]
7. Price to the Public (Issue Price). _____________________________
---------------------------------
Capitalized terms used in this Addendum to Board Resolution have the
meanings set forth in the Board Resolution unless otherwise indicated or the
context otherwise requires.
_____________________
In response to certain provisions of the Orders of the Pennsylvania
Public Utility Commission and the Kentucky Public Service Commission, it is
noted that the interest rate set forth above represents a premium of
___________ basis points over the corresponding Treasury rate.
WITNESS the due execution hereof this _____ day of
____________________, _____.
_____________________________________
[President, Executive Vice President
or Vice President and Treasurer]
6.
<PAGE>
EQUITABLE RESOURCES, INC.
Medium-Term Note, Series C
[ ]% Issue Due [ ]
No._____ CUSIP No. ____________
$[ ]
[To be included in Book-Entry Notes: Unless this Note is presented by
an authorized representative of The Depository Trust Company (55 Water Street,
New York, New York) to the issuer or its agent for registration of transfer,
exchange or payment, and any Note issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest herein.]
EQUITABLE RESOURCES, INC., a corporation duly organized and existing
under the laws of the Commonwealth of Pennsylvania (herein called the
"Company"), for value received, hereby promises to pay to [ ],
or registered assigns, the principal sum of [ ] DOLLARS on
[ ], and to pay interest thereon from [ ] or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on [ ] and [ ] in each year,
commencing [ ], at the rate of [ ]% per annum, until the
principal hereof is paid or made available for payment and (to the extent that
the payment of such interest shall be legally enforceable) at the same rate
per annum on any overdue principal and premium and on any overdue instalment
of interest. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will, as provided in the Indenture
hereinafter referred to, be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the [ ]
or [ ] (whether or not a Business Day), as the case may be,
next preceding such Interest Payment Date. Any such interest not so punctually
paid or duly provided for will forthwith cease to be payable to the Holder on
such Regular Record Date and may either be paid to the Person in whose name
this Note (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Notes of this series not less than 10 days prior to such Special Record
Date, or be paid at any time in any other lawful manner not inconsistent with
the requirements of any securities exchange on which the Notes of this series
may be listed, and upon such notice as may be required by such exchange, all
as more fully provided in said Indenture.
7.
<PAGE>
Payment of the principal of (and premium, if any, on), and interest
payable upon maturity or earlier redemption of, this Note will be made at the
office or agency of the Company maintained for that purpose in the Borough of
Manhattan, the City of New York, New York, in such coin or currency of the
United States of America as at the time of payment is legal tender for payment
of public and private debts, and payment of interest, other than interest
payable at maturity or earlier redemption, will be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register, provided, however, that if the Holder hereof is any nominee
of Depository Trust Company, as Depositary (or any successor Depositary),
interest hereon shall be payable by wire transfer of immediately available
funds, and if the Holder hereof is the Holder of $10,000,000 or more in
aggregate principal amount of Notes of this series having the same Interest
Payment Date as this Note, interest hereon shall be payable by wire transfer of
immediately available funds upon written request to the Paying Agent not later
than 15 calendar days prior to the applicable Interest Payment Date.
This Note is one of a duly authorized issue of a series of securities
of the Company (herein called the "Securities"), issued and to be issued in one
or more series under an Indenture, dated as of April 1, 1983, as amended by a
1991 Supplemental Indenture dated as of March 15, 1991, (herein called the
"Indenture," which term includes the terms and provisions of particular series
of Securities established pursuant to any Board Resolutions or other indentures
supplemental to the Indenture), between the Company and Bankers Trust Company,
as successor Trustee (herein called the "Trustee," which term includes any
subsequent successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered. This Note
is one of the issue specified above of a series of the Securities designated as
the Medium-Term Notes, Series C limited in aggregate principal amount to
$100,000,000.
The Medium-Term Notes, Series C will be issued initially as either
Book-Entry Notes or Certificated Notes. Except as otherwise provided in the
Indenture, Book-Entry Notes will not be issuable as Certificated Notes.
[The Notes of this issue are not subject to redemption prior to
their stated maturity.]
[The Notes of this issue are subject to redemption upon not less than
30 days' notice by mail, [(1) on [ ] in any year commencing with the
year [ ] and ending with the year [ ] through operation of the
sinking fund for this issue at a Redemption Price equal to 100% of the principal
amount, and (2)] at any time [on or after [ ]], as a
8.
<PAGE>
whole or in part, at the election of the Company, at the following Redemption
Prices (expressed as percentages of the principal amount):
<TABLE>
<CAPTION>
[If Redeemed If Redeemed
During the Twelve- During the Twelve-
Month Period Month Period
Beginning Redemption Beginning Redemption
[ ], Price [ ], Price
- ------------------- ---------- ------------------ ----------
<S> <C> <C> <C>
</TABLE>
[, together in the case of any such redemption [(whether through operation of
the sinking fund or otherwise)] with accrued interest to the Redemption Date[,
but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holders of such Notes, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[The sinking fund for this issue provides for the redemption on or
before [ ] in each year beginning with the year [ ] and ending
with the year [ ] of [not less than] $[ ] [("mandatory
sinking fund") and not more than $[ ] aggregate principal amount]
of Notes of this issue. [Notes of this issue acquired or redeemed by the
Company otherwise than through [mandatory] sinking fund payments may be credited
against subsequent [mandatory] sinking fund payments otherwise required to be
made.]
[In the event of redemption of this Note in part only, a new Note or
Notes of this issue for the unredeemed portion hereof will be issued in the name
of the Holder hereof upon the cancellation hereof.]
If an Event of Default with respect to the Medium-Term Notes, Series C
shall occur and be continuing, the principal of the Medium-Term Notes, Series C
may be declared due and payable in the manner and with the effect provided in
the Indenture.
With certain exceptions as therein provided, the Indenture provides
that, with the consent of the Holders of 66-2/3% in principal amount of the
Outstanding Securities of all series affected thereby, taken in the aggregate
without regard to separate series of Outstanding Securities, the Company and the
Trustee may enter into indentures supplemental to the Indenture for the purpose
of adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture with respect to Securities of such series affected
or of modifying in any manner the rights of the Holders of Securities of such
series affected. The Indenture also contains provisions, with certain
exceptions as therein provided, permitting the Holders of specified percentages
in principal amount of the Securities of each series at the time Outstanding,
9.
<PAGE>
on behalf of the Holders of all Securities of such series, to waive, insofar as
such series is concerned, compliance by the Company with certain provisions of
the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Note shall be
conclusive and binding upon such Holder and upon all future Holders of this Note
and of any Note issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest (if any) on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register, upon surrender of this Note for registration of transfer at the office
or agency of the Company maintained for the purpose of payment of the principal
of (and premium, if any) and interest (if any) on this Note in the Borough of
Manhattan, the City of New York, New York, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes of this issue, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
Except as otherwise provided in the Indenture, the Medium-Term Notes,
Series C are issuable only in registered form without coupons in denominations
of $100,000 and any amount in excess thereof which is an integral multiple of
$1,000. As provided in the Indenture, and subject to certain limitations
therein set forth, Notes of this issue are exchangeable for a like aggregate
principal amount of Notes of this issue of a different authorized denomination,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
This Note shall be governed by and construed in accordance with the
laws of the Commonwealth of Pennsylvania.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
10.
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in its corporate name by its President or one of its Vice Presidents
and has caused its corporate seal to be affixed hereunto or imprinted hereon and
attested by the facsimile signature of its Secretary or one of its Assistant
Secretaries.
EQUITABLE RESOURCES, INC.
By___________________________________
President
[Corporate Seal]
Attest:
_________________________________
Secretary
11.
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Successor Trustee
Dated:____________________ By___________________________________
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS,
INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such Note on the books of the
Company, with full power of substitution in the premises.
Dated:____________________
NOTICE: The signature of this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
12.
<PAGE>
Exhibit 5.1
May 18, 1994
Equitable Resources, Inc.
420 Boulevard of the Allies
Pittsburgh, PA 15219
Gentlemen:
I am Senior Vice President and General Counsel of Equitable Resources,
Inc., a Pennsylvania corporation (the "Company"), and I have acted in such
capacity in connection with the registration with the Securities and Exchange
Commission (the "SEC") by the Company of $100,000,000 principal amount of the
Company's Medium-Term Notes, Series C (the "Notes") pursuant to the provisions
of Rule 415 under the Securities Act of 1933, as amended (the "Act"), and the
proposed issuance and sale by the Company of the Notes pursuant to such
registration. In connection with the registration and proposed issuance and
sale of the Notes, I have examined, among other things:
1. The Restated Articles of the Company as amended to date;
2. A copy of the indenture dated as of April 1, 1983 between the
Company and Bankers Trust Company, Trustee, as amended by the
1991 Supplemental Indenture dated as of March 15, 1991, and the
Board Resolutions and form of Resolutions of the Ad Hoc Finance
Committee and accompanying addenda which will establish the
particular terms of each issue of the Notes (the aforesaid
Indenture, Supplemental Indenture, Board Resolutions, Resolutions
of the Ad Hoc Committee and addenda being referred to herein
collectively as the "Indenture");
3. The Registration Statement on Form S-3 (the "Registration
Statement"), including the Prospectus which is a part thereof
(the "Prospectus"), relating to the Notes, as filed with the SEC;
4. The form filed as an Exhibit to the Registration Statement of the
Distribution Agreement to be entered into between the Company and
the Agents for the sale of the Notes (the "Distribution
Agreement");
5. The Securities Certificate of the Company filed with the
Pennsylvania Public Utility Commission (the "Securities
Certificate") and the
<PAGE>
Equitable Resources, Inc.
May 18, 1994
Page 2
Application of the Company regarding the Notes filed with the
Kentucky Public Service Commission (the "Application"); and
6. The Order dated August 5, 1993 of the Pennsylvania Public Utility
Commission registering the Securities Certificate and the Order
dated August 3, 1993 of the Kentucky Public Service Commission
granting the authorization applied for in the Application.
I understand that, prior to the issue and delivery of any issue of the
Notes, the following events will have occurred:
(i) The Registration Statement will have become effective under the
Act; and
(ii) The Board of Directors of the Company or the Ad Hoc Finance
Committee of the Board will adopt resolutions establishing the
Notes as a series of Debt Securities under the Indenture, and
terms of particular issues of the Notes will be established
either by that same or other resolutions or by an addendum
thereto as contemplated thereby, and the Company will have
entered into the Distribution Agreement or other appropriate
agreement providing for the terms and conditions of the sale of
the Notes.
Based upon the foregoing, and upon an examination of such other
documents and questions of law as I have considered necessary to examine in
order to enable me to render this opinion, and based on the assumption that the
steps outlined in the preceding paragraph are carried out, I am pleased to
advise you that in my opinion:
The Notes, when duly executed, authenticated and delivered pursuant to
the Indenture, will be valid and binding obligations of the Company
enforceable in accordance with their terms, except as such
enforceability may be limited by bankruptcy, insolvency or other laws
affecting creditors' rights generally, and except that I express no
opinion as to the enforceability of the obligations of the Company
under the Notes by judicial orders granting specific performance
thereof, or granting injunctive relief or any other equitable remedy
in connection therewith.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the use of my name in the Prospectus in connection
with the matters referred to under the caption "Legal Matters".
Very truly yours,
/s/ Augustine A. Mazzei, Jr.
----------------------------
Augustine A. Mazzei, Jr.
Senior Vice-President and
General Counsel
<PAGE>
EQUITABLE RESOURCES, INC. AND SUBSIDIARIES Exhibit 12.1
RATIO OF EARNINGS TO FIXED CHARGES
FOR THE LAST FIVE FISCAL YEARS
AND THE TWELVE MONTHS ENDED MARCH 31, 1994
------------------------------------------
(Thousands)
<TABLE>
<CAPTION>
Twelve Months
Ended
1989 1990 1991 1992 1993 March 31, 1994
-------- -------- -------- -------- -------- --------------
<S> <C> <C> <C> <C> <C> <C>
Consolidated net income $ 50,874 $ 58,949 $ 64,168 $ 60,026 $ 73,455 $ 79,019
------- ------- ------- ------- ------- -------
Add:
Federal and state income taxes 17,530 19,149 20,786 19,908 21,393 20,634
Investment tax credit amortization (1,195) (715) (850) (1,138) (1,373) (1,432)
Fixed charges 30,585 30,308 34,729 40,522 42,006 43,049
------- ------- ------- ------- ------- -------
46,920 48,742 54,665 59,292 62,026 62,251
------- ------- ------- ------- ------- -------
Earnings before fixed charges
and income taxes $ 97,794 $107,691 $118,833 $119,318 $135,481 $141,270
======= ======= ======= ======= ======= =======
Fixed charges:
Interest on long-term debt:
Debentures and medium-
term notes $ 20,992 $ 20,554 $ 22,351 $ 29,174 $ 31,356 $ 31,823
First mortgage bonds 2,129 1,871 1,759 1,389 330 -
Amortization of original issue
discount and debt expense,
less premium 1,102 1,143 1,208 1,336 1,475 1,503
------- ------ ------- ------- ------- -------
Subtotal 24,223 23,568 25,318 31,899 33,161 33,326
Other interest 4,024 4,405 6,627 5,512 5,567 6,336
Allowance for borrowed funds
used during construction 1,218 1,701 1,263 1,267 1,841 1,836
One-third of rent expense which
is a representative interest
rate for existing leases 2,338 2,335 2,784 3,111 3,278 3,387
------- ------- ------- ------- ------- -------
Total fixed charges $ 31,803 $ 32,009 $ 35,992 $ 41,789 $ 43,847 $ 44,885
======= ======= ======= ======= ======= =======
Ratio of earnings to fixed
charges 3.07 3.36 3.30 2.86 3.09 3.15
======= ======= ======= ======= ======= =======
</TABLE>
<PAGE>
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Equitable
Resources, Inc. for the registration of $100,000,000 of Medium Term Notes,
Series C and to the incorporation by reference therein of our report dated
February 22, 1994, with respect to the consolidated financial statements and
schedules of Equitable Resources, Inc. included in its Annual Report (Form
10-K) for the year ended December 31, 1993, filed with the Securities and
Exchange Commission.
Ernst & Young
Pittsburgh, Pennsylvania
May 13, 1994
<PAGE>
Exhibit 23.3
CONSENT OF COUNSEL
------------------
We consent to the reference to our Firm under the captions "Certain United
States Federal Income Tax Consequences" and "Legal Matters" in the Registration
Statement (Form S-3) and related Prospectus of Equitable Resources, Inc. for the
registration under the Securities Act of 1933 of $100 million of its Medium-Term
Notes, Series C.
DOEPKEN KEEVICAN WEISS & MEDVED
PROFESSIONAL CORPORATION
<PAGE>
EXHIBIT 25.1
- -----------------------------------------------------------------------------
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION UNDER THE TRUST INDENTURE ACT
OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT
TO SECTION 305(b)(2) ___________
------------------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation (I.R.S. Employer
if not a U.S. national bank) Identification n.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
---------------------------------
EQUITABLE RESOURCES, INC.
(Exact name of obligor as specified in the charter)
PENNSYLVANIA 25-0464690
(State or other jurisdiction of (I.R.S. employer
Incorporation or organization) Identification no.)
420 BOULEVARD OF THE ALLIES
PITTSBURG, PENNSYLVANIA 15219
(Address of principal executive offices) (Zip Code)
------------------------------
MEDIUM TERM NOTES, SERIES C
(Title of the indenture securities)
- ------------------------------------------------------------------------------
<PAGE>
-2-
Item 1. General Information.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority
to which it is subject.
Name Address
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such
affiliation.
None.
Item 3.-15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of
Amendment of the Organization Certificate of
Bankers Trust Company dated June 23, 1992 -
Incorporated herein by reference to Exhibit 1 filed
with Form T-1 Statement, Registration No. 33-48267.
Exhibit 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T- 1 Statement, Registration No. 33-21047.
Exhibit 3 - Authorization of the Trustee to exercise corporate
trust powers - Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement,
Registration No. 33-21047.
Exhibit 4 - Existing By-Laws of Bankers Trust Company, dated as
amended on September 21, 1993. - Incorporated
herein by reference to Exhibit 4 filed with Form T-
1 Statement, Registration No. 33-52359.
<PAGE>
-3-
Exhibit 5 - Not applicable.
Exhibit 6 - Consent of Bankers Trust Company required by
Section 321(b) of the Act. - Incorporated herein by
reference to Exhibit 4 filed with Form T-1
Statement, Registration No. 22-18864.
Exhibit 7 - A copy of the latest report of condition of Bankers
Trust Company dated as of December 31, 1993 -
Incorporated herein by reference to Form T-1
Statement, Registration No. 33-76710.
Exhibit 8 - Not Applicable
Exhibit 9 - Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
trustee, Bankers Trust Company, a corporation organized and existing under the
laws of the State of New York, has duly caused this statement of eligibility to
be signed on its behalf by the undersigned, thereunto duly authorized, all in
The City of New York, and State of New York, on the 16th day of May, 1994.
BANKERS TRUST COMPANY
By:/s/ Shikha Dombek
-------------------------------
Shikha Dombek
Assistant Secretary
