As filed with the Securities and Exchange Commission
on February 3, 1994
Registration No.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
EQUITABLE RESOURCES, INC.
(Exact name of registrant as specified in its charter)
Pennsylvania 25-0464690
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
420 Boulevard of the Allies
Pittsburgh, Pennsylvania 15219
(Address of Principal Executive Office) (Zip Code)
1994 Equitable Resources, Inc.
Non-Employee Directors' Stock Incentive Plan
(Full title of the Plan)
Donald I. Moritz, Chairman and Chief Executive Officer
420 Boulevard of the Allies, Pittsburgh, Pennsylvania 15219
(Name and address of agent for service)
Telephone number, including area code,
of agent for service: (412) 553-5700
CALCULATION OF REGISTRATION FEE
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
Common Stock 80,000 37.6875* $3,015,000 $1,040
(No Par Value) shares
* Estimated solely for the purpose of calculating the
registration fee; computed on the basis of the price at
which securities of the same class were sold on January 31,
1994, pursuant to Rule 457(h).
<PAGE>
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. DOCUMENTS INCORPORATED BY REFERENCE
The following documents filed with the Securities and
Exchange Commission are incorporated in this Registration
Statement by reference:
(1) The Annual Report on Form 10-K for the year ended
December 31, 1992.
(2) Proxy Statement for the Company's Annual Meeting of
Shareholders held May 21, 1993.
(3) Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1993, June 30, 1993 and September 30, 1993.
(4) Form 8-K dated June 30, 1993, as amended by Form 8-K/A
No. 1 filed August 7, 1993.
(5) Description of the Company's Common Stock set forth in
the Prospectus contained in the Company's Registration
Statement on Form S-3, Registration No. 33-49905, filed
August 4, 1993, and Pre-Effective Amendment to said
Registration Statement filed August 25, 1993.
All documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934 after the date hereof and prior to the
termination of this offering shall be deemed to be incorporated
by reference herein and to be a part hereof from the date of the
filing of such documents. Any statement contained in a document
incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein or in
any other subsequently filed document which also is incorporated
or deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Prospectus.
Item 5. LEGAL MATTERS
Certain legal matters in connection with the sale of
the shares of Common Stock offered hereby 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. On
January 31, 1994, Mr. Mazzei beneficially owned 15,347 shares of
the Company's Common Stock and held options to purchase an
additional 8,700 shares of Common Stock.
EXPERTS
The consolidated financial statements of the Company
appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1992, 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 accounting and auditing.
Item 6. 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 persons
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
(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.
As permitted by PBCL Section 1713, the Articles and the
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 8. EXHIBITS
Number Description
4.1 Restated Articles of Incorporation of
Equitable Resources, Inc., filed herewith.
5.1 Opinion of Augustine A. Mazzei, Jr. as to
the legality of the Equitable Common Stock
covered by this Registration Statement,
filed herewith.
23.1 Consent of Ernst & Young, independent
auditors, filed herewith.
23.2 Consent of Augustine A. Mazzei, Jr. to the
use of the Opinion referred to under 5.1
above (such consent to be contained in
such Opinion).
Item 9. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(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 section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to
section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the 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-8 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 February
3, 1994.
EQUITABLE RESOURCES, INC.
(Registrant)
By 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 or her 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 February 3, 1994:
Signature Title
/s/DONALD I. MORITZ Chairman and Chief Executive
-------------------------------- Officer and Director
Donald I. Moritz
/s/FREDERICK H. ABREW President and Chief Operating
--------------------------------- Officer and Director
Frederick H. Abrew
/s/ROBERT E. DALEY Vice President and Treasurer
----------------------------------- (Chief Financial Officer)
Robert E. Daley
/s/JOSEPH L. GIEBEL Vice President-Accounting and
----------------------------------- Administration (Chief
Joseph L. Giebel Accounting Officer)
__________________________________ Director
Clifford L. Alexander, Jr.
__________________________________ 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 BOYLE SULLIVAN Director
-----------------------------------
Barbara Boyle Sullivan
Exhibit 4 .1
RESTATED ARTICLES OF EQUITABLE RESOURCES, INC.
(As Amended Through May 27, 1993)
The following is a Composite Copy of the Articles of
Equitable Resources, Inc., as restated effective August 7, 1981,
and as amended effective June 23, 1982, January 13, 1984, October
1, 1984, June 12, 1987, and May 27, 1993.
First: The name of the Company is EQUITABLE RESOURCES, INC.
Second: The location and post office address of its current
registered office in the Commonwealth of Pennsylvania is 420
Boulevard of the Allies, City of Pittsburgh, 15219, County of
Allegheny.
Third: The purposes for which the Company is incorporated under
the Business Corporation Law of the Commonwealth of Pennsylvania
are to engage in, and to do any lawful act concerning, any or all
lawful business for which corporations may be incorporated under
said Business Corporation Law, including but not limited to:
A. the supply of heat, light and power to the public
by any means;
B. the production, purchase, generation, manufacture,
transmission, transportation, storage, distribution and
supplying of natural or artificial gas, steam or air
conditioning, electricity, or any combination thereof to or
for the public; and
C. manufacturing, processing, owning, using and
dealing in personal property of every class and description,
engaging in research and development, the furnishing of
services, and acquiring, owning, using and disposing of real
property of every nature whatsoever.
Fourth: The term of the Company's existence shall be perpetual.
Fifth: The aggregate number of shares which the Company shall
have authority to issue shall be:
(a) 3,000,000 shares of Preferred Stock, without par
value; and
(b) 80,000,000 shares of Common Stock, without par
value.
The designations, preferences, qualifications, limitations,
restrictions, and the special or relative rights in respect of
the Preferred Stock and of the Common Stock of the Company, and a
statement of the authority hereby vested in the Board of
Directors of the Company to fix and determine the designations,
preferences, qualifications, limitations, restrictions, and
special or relative rights in respect of all series of the
Preferred Stock shall be as follows:
Division A THE PREFERRED STOCK
1.1 Preferred Stock. The Preferred Stock may be divided into
and issued in series. The Board of Directors is hereby expressly
authorized, at any time or from time to time, to divide any or
all of the shares of the Preferred Stock into series, and in the
resolution or resolutions establishing a particular series,
before issuance of any of the shares thereof, to fix and
determine the designation and the relative rights and preferences
of the series so established, to the fullest extent now or
hereafter permitted by the laws of the Commonwealth of
Pennsylvania, including, but not limited to, the variations
between different series in the following respects:
(a) the distinctive serial designation of such series;
(b) the annual dividend rate for such series, and the
date or dates from which dividends shall commence to accrue;
(c) the redemption price or prices, if any, for shares of
such series and the terms and conditions on which such shares
may be redeemed;
(d) the provisions for a sinking, purchase or similar
fund, if any, for the redemption or purchase of shares of such
series;
(e) the preferential amount or amounts payable upon
shares of such series in the event of the voluntary or
involuntary liquidation of the Company;
(f) the voting rights, if any, of shares of such series;
(g) the terms and conditions, if any, upon which shares
of such series may be converted and the class or classes or
series of securities of the Company into which such shares may
be converted;
(h) the relative seniority, parity or junior rank of such
series with respect to other series of Preferred Stock then or
thereafter to be issued; and
(i) such other terms, limitations and relative rights and
preferences, if any, of shares of such series as the Board of
Directors may, at the time of such resolutions, lawfully fix
and determine under the laws of the Commonwealth of
Pennsylvania.
Division B PROVISIONS APPLICABLE TO BOTH THE
PREFERRED STOCK AND THE COMMON STOCK
2.1 Voting Rights. Except as provided in this Section 2.1,
the holders of the Common Stock shall have exclusive voting
rights for the election of Directors and for all other purposes
and shall be entitled to one vote for each share held.
The holders of the Preferred Stock shall have no voting rights
except as may be provided with respect to any particular series
of the Preferred Stock by the Board of Directors pursuant to
Subdivision 1.1 of Division A hereof. On any matter on which the
holders of the Preferred Stock shall be entitled to vote, they
shall be entitled to vote as established by the Board of
Directors pursuant to Subdivision 1.1 of Division A hereof.
In all elections for Directors, every stockholder entitled to
vote shall have the right, in person or by proxy, to multiply the
number of votes to which such stockholder may be entitled by the
number of Directors for the election of whom he is entitled to
vote at such meeting, and such stockholder may cast the whole
number of such votes for one candidate or may distribute them
among any two or more can-didates. The candidates receiving the
highest number of votes up to the number of Directors to be
elected shall be elected. The foregoing provisions of this
paragraph shall not be changed with respect to any class of stock
unless the holders of record of not less than two-thirds of the
number of shares of such class of stock then outstanding shall
consent thereto in writing or by voting therefor in person or by
proxy at the meeting of stockholders at which any such change is
considered.
2.2 Pre-emptive Rights. Upon any issue for money or other
consideration of any stock of the Company that may be authorized
from time to time, no holder of stock, irrespective of the kind
of such stock, shall have any pre-emptive or other right to
subscribe for, purchase, or receive any proportionate or other
share of the stock so issued, but the Board of Directors may
dispose of all or any portion of such stock as and when it may
determine, free of any such rights, whether by offering the same
to stock-holders or by sale or other disposition as said Board
may deem advisable; provided, however, that if the Board of
Directors shall determine to offer any new or additional shares
of Common Stock, or any security convertible into Common Stock,
for money, other than (i) by a public offering of all of such
shares or offering of all of such shares to or through
underwriters or investment bankers who shall have agreed promptly
to make a public offering of such shares, or (ii) pursuant to any
employee compensation, incentive or other benefit program adopted
by the Board of Directors, the same shall first be offered pro
rata to the holders of the then outstanding shares of Common
Stock of the Company at a price not less favorable than the price
at which the Board of Directors issues and disposes of such stock
or securities to other than such holders of Common Stock before
deducting reasonable commissions or compensation that may be paid
by the Company in connection with the sale of any such stock and
securities; and provided, further, that the time within which
such pre-emptive rights shall be exercised may be limited by the
Board of Directors to such time as the said Board may deem
proper, not less, however, than ten days after mailing of notice
that such stock rights are available and may be exercised. The
foregoing provisions of this Subdivision 2.2 shall not be changed
unless the holders of record of not less than two-thirds of the
number of shares of the Common Stock then outstanding shall
consent thereto in writing or by voting therefor in person or by
proxy at the meeting of stockholders at which any such change is
considered.
2.3 Amendments to By-Laws. The Board of Directors may make,
amend and repeal the By-Laws with respect to those matters which
are not, by statute, reserved exclusively to the shareholders,
subject always to the power of the shareholders to change such
action as provided herein. No By-Law may be made, amended or
repealed by the shareholders unless such action is approved by
the affirmative vote of the holders of not less than 80% of the
voting power of the then outstanding shares of capital stock of
the Company entitled to vote in an annual election of directors,
voting together as a single class, unless such action has been
previously approved by a two-thirds vote of the whole Board of
Directors, in which event (unless otherwise expressly provided in
the Articles or the By-Laws) the affirmative vote of not less
than a majority of the votes which all shareholders are entitled
to cast thereon shall be required.
2.4 Amendments to Articles. Subject to the voting rights
given to any particular series of the Preferred Stock by the
Board of Directors pursuant to Subdivision 1.1 of Division A
hereof, and except as may be specifically provided to the
contrary in any other provision in the Articles with respect to
amendment or repeal of such provision, the affirmative vote of
the holders of not less than 80% of the voting power of the then
outstanding shares of capital stock of the Company entitled to
vote in an annual election of directors, voting together as a
single class, shall be required to amend the Articles of the
Company or repeal any provision thereof, unless such action has
been previously approved by a two-thirds vote of the whole Board
of Directors, in which event (unless otherwise expressly provided
in the Articles) the affirmative vote of not less than a majority
of the votes which all shareholders are entitled to cast thereon
shall be required.
2.5 General. The Company may issue and dispose of any of its
authorized shares for such consideration as may be fixed by the
Board of Directors subject to the laws then applicable and to the
provisions of Subdivision 2.2 of this Division B.
Division C BOARD OF DIRECTORS;
CLASSIFICATION; REMOVAL; VACANCIES
3.1 The business and affairs of the Company shall be managed
by a Board of Directors comprised as follows:
(a) The Board of Directors shall consist of not less than
5 nor more than 12 persons, the exact number to be fixed from
time to time by the Board of Directors pursuant to a
resolution adopted by a majority vote of the directors then in
office.
(b) Directors of the Company shall be classified with
respect to the time for which they shall severally hold office
by dividing them into three classes: Class 1; Class 2; and
Class 3, as nearly equal in number as possible. At the
special meeting of shareholders at which the amendment adding
this Division C shall be adopted, the then current directors
shall be assigned to the three classes in accordance with
resolutions adopted by the Board of Directors. Class 1
directors shall not be elected at such special meeting but
shall continue to hold office until the annual meeting of
shareholders in 1984. Class 2 directors shall be elected by
shareholders at such special meeting to extended terms of
office, to serve until the annual meeting in 1985. Class 3
directors shall be elected by share-holders at such special
meeting to extended terms of office, to serve until the annual
meeting in 1986. Each class of directors to be elected at
such special meeting shall be elected in a separate election.
At each succeeding annual meeting of shareholders, the class
of directors then being elected shall be elected to hold
office for a term of three years. Each director shall hold
office for the term for which elected and until his or her
successor shall have been elected and qualified.
(c) Any director, any class of directors or the entire
Board of Directors may be removed from office by shareholder
vote at any time, without assigning any cause, but only if
shareholders entitled to cast at least 80% of the votes which
all shareholders would be entitled to cast at an annual
election of directors or of such class of directors shall vote
in favor of such removal; provided, however, that no
individual director shall be removed without cause (unless the
entire Board of Directors or any class of directors be
removed) in case the votes cast against such removal would be
sufficient, if voted cumulatively for such director, to elect
him or her to the class of directors of which he or she is a
member.
(d) Vacancies in the Board of Directors, including
vacancies resulting from an increase in the number of
directors, shall be filled only by a majority vote of the
remaining directors then in office, though less than a quorum,
except that vacancies resulting from removal from office by a
vote of the shareholders may be filled by the shareholders at
the same meeting at which such removal occurs. All directors
elected to fill vacancies shall hold office for a term
expiring at the annual meeting of shareholders at which the
term of the class to which they have been elected expires. No
decrease in the number of directors constituting the Board of
Directors shall shorten the term of any incumbent director.
(e) Whenever the holders of any class or series of
preferred stock shall have the right, voting separately as a
class, to elect one or more directors of the Company, none of
the foregoing pro-visions of this Section 3.1 shall apply with
respect to the director or directors elected by such holders
of preferred stock.
3.2 Notwithstanding any other provisions of law, the Articles
or the By-Laws of the Company, the affirmative vote of the
holders of not less than 80% of the voting power of the then
outstanding shares of capital stock of the Company entitled to
vote in an annual election of directors, voting together as a
single class, shall be required to amend, alter, change or
repeal, or adopt any provision inconsistent with, this Division
C, unless such action has been previously approved by a two-
thirds vote of the whole Board of Directors.
3.3 No Director shall be personally liable for monetary
damages as such (except to the extent otherwise provided by law)
for any action taken, or any failure to take any action, unless
such Director has breached or failed to perform the duties of his
or her office under Title 42, Chapter 83, Subchapter F of the
Pennsylvania Consolidated Statutes (or any successor statute
relating to Directors' standard of care and justifiable
reliance); and the breach or failure to perform constitutes self-
dealing, willful misconduct or recklessness.
If the Pennsylvania Consolidated Statutes are amended after
May 22, 1987, the date this section received shareholder
approval, to further eliminate or limit the personal liability of
Directors, then a Director shall not be liable, in addition to
the circumstances set forth in this section, to the fullest
extent permitted by the Pennsylvania Consolidated Statutes, as so
amended.
The provisions of this section shall not apply to any actions
filed prior to January 27, 1987 nor to any breach of performance
of duty, or any failure of performance of duty, by any Director
occurring prior to January 27, 1987.
Division D PROCEDURES RELATING
TO CERTAIN BUSINESS COMBINATIONS
4.1 Votes Required; Exceptions.
(a)The affirmative vote of the holders of not less than
80% of the voting power of the then outstanding shares of
capital stock of the Company entitled to vote in an annual
election of directors (the "Voting Stock"), voting together as
a single class, shall be required for the approval or
authorization of any "Business Combination" (as hereinafter
defined) involving a "Related Person" (as hereinafter
defined); provided, however, that the 80% voting requirement
shall not be applicable if:
(1) The "Continuing Directors" (as hereinafter
defined) of the Company by a two-thirds vote have
expressly approved such Business Combination either in
advance of or subsequent to such Related Person's having
become a Related Person; or
(2) both the following conditions are satisfied:
(A) the aggregate amount of the cash and the "Fair
Market Value" (as hereinafter defined) of the property,
securities and "Other Consideration" (as hereinafter
defined) to be received per share by holders of capital
stock of the Company in the Business Combination, other
than the Related Person, is not less than the "Highest
Equivalent Price" (as hereinafter defined) of such
shares of capital stock; and
(B) a proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as
amended, whether or not the Company is then subject to
such requirements, shall have been mailed to all
shareholders of the Company. The proxy or information
statement shall contain at the front thereof, in a
prominent place, the position of the Continuing
Directors as to the advisability (or inadvisability) of
the Business Combination and, if deemed advisable by a
majority of the Continuing Directors, the opinion of an
investment banking firm selected by the Continuing
Directors as to the fairness of the terms of the
Business Combination, from the point of view of the
holders of the outstanding shares of capital stock of
the Company other than any Related Person.
(b) Such 80% vote shall in any such instance be required
notwithstanding the fact that no vote may be required or that
a lesser percentage may be specified by law or in any
agreement with any national securities exchange or otherwise.
4.2 Definitions. For purposes of this Division D:
(a) A "Person" shall mean any individual, partnership,
corporation or other entity. As used herein, the pronouns
"which" and "it" in relation to Persons which are individuals
shall be construed to mean "who" or "whom", "he" or "she", and
"him" or "her", as appropriate.
(b) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on November 10, 1983 (the
term "registrant" in said Rule 12b-2 meaning in this case the
Company).
(c) The term "Beneficial Owner" (and variations thereof)
shall have the meaning ascribed to such term in Rule 13d-3 of
the General Rules and Regulations under the Securities
Exchange Act of 1934, as in effect on November 10, 1983;
provided, however, that notwithstanding any provision of Rule
13d-3 to the contrary, an entity shall be deemed to be the
Beneficial Owner of any share of capital stock of the Company
that such entity has the right to acquire at any time pursuant
to any agreement, or upon exercise of conversion rights,
warrants or options, or otherwise.
(d) The term "Voting Stock" shall have the meaning set
forth at the beginning of Section 4.1(a) of this Division D.
(e) The term "Subsidiary" of any Person shall mean any
corporation of which a majority of the capital stock entitled
to vote for the election of directors is Beneficially Owned by
such Person directly or indirectly though other Subsidiaries
of such Person.
(f) The term "Substantial Part" of the assets of any
person shall mean more than 10% of the Fair Market Value, as
determined by a two-thirds vote of the Continuing Directors,
of the total consolidated assets of such Person and its
Subsidiaries as of the end of its most recent fiscal year
ended prior to the time the determination is being made.
(g) The term "Other Consideration" shall include, without
limitation, shares of Common Stock or other capital stock of
the Company retained by the holders of such shares in the
event of a Business Combination in which the Company is the
surviving corporation.
(h) The term "Continuing Director" shall mean a director
of the Company who is unaffiliated with any Related Person and
either (1) was a director of the Company immediately prior to
the time the Related Person involved in a Business Combination
became a Related Person or (2) is a successor to a Continuing
Director and is recommended to succeed a continuing Director
by a majority of the then Continuing Directors. Where this
Division D contains provisions for a determination,
recommendation or approval by the Continuing Directors, if
there is at any particular relevant time no Continuing
Director in office, then such provision shall be deemed to be
satisfied if the Board, by a two-thirds vote of the whole
Board of Directors, makes or gives such determination,
recommendation or approval.
(i) The term "Business Combination" shall mean
(1) any merger, consolidation or share exchange of
the Company or a Subsidiary of the Company with a Related
Person, in each case without regard to which entity is the
surviving entity;
(2) any sale, lease, exchange, transfer or other
disposition, including without limitation a mortgage or
any other security device, of all or any Substantial Part
of the assets of the Company (including without limitation
any voting securities of a Subsidiary of the Company) or a
Subsidiary of the Company to or with a Related Person
(whether in one transaction or series of transactions), or
of all or any Substantial Part of the assets of a Related
Person to the Company or a Subsidiary of the Company;
(3) the issuance, transfer or delivery of any
securities of the Company or a Subsidiary of the Company
by the Company or any of its Subsidiaries to a Related
Person, or of any securities of a Related Person to the
Company or a Subsidiary of the Company (other than an
issuance or transfer of securities which is effected on a
pro rata basis to all shareholders of the Company or of
the Related Person, as the case may be);
(4) any recapitalization, reorganization or
reclassification of securities (including any reverse
stock split) or other transaction that would have the
effect, directly or indirectly, of increasing the voting
power of a Related Person;
(5) the adoption of any plan or proposal for the
liquidation or dissolution of the Company proposed by or
on behalf of a Related Person; or
(6) any agreement, plan, contract or other
arrangement providing for any of the transactions
described in this definition of Business Combination.
(j) The term "Related Person" at any particular time shall
mean any Person if such Person, its Affiliates, its
Associates, and all Persons of which it is an Affiliate or
Associate Beneficially Own in the aggregate 10% or more of the
outstanding Voting Stock of the Company, and any Affiliate or
Associate of any such Person, and any Person of which such
Person is an Affiliate or Associate. With respect to any
particular Business Combination, the term "Related Person"
means the Related Person involved in such Business
Combination, any Affiliate or Associate of such Related
Person, and any Person of which such Related Person is an
Affiliate or Associate. Where in this Division D any reference
is made to a transaction involving, or ownership of securities
by, a Related Person, it shall mean and include one or more
transactions involving different Persons all included within
the definition of "Related Person", or ownership of securities
by any or all of such Persons. Each Person who is an
Affiliate or Associate of a Related Person shall be deemed to
have become a Related Person at the earliest time any of such
Persons becomes a Related Person.
(k) The term "highest Equivalent Price" with respect to
shares of capital stock of the Company of any class or series
shall mean the following:
(1) with respect to shares of Common Stock, the
highest price that can be determined to have been paid at
any time by a Related Person for any shares of Common
Stock; and
(2) with respect to any class or series of shares of
capital stock other than Common Stock, the higher of the
following:
(A) if any shares of such class or series are
Beneficially Owned by a Related Person, the highest
price that can be determined to have been paid at any
time by a Related Person for such shares; or
(B) the amount determined by the Continuing
Directors, on whatever basis they believe is
appropriate, to be the per share price equivalent of
the highest price that can be determined to have been
paid at any time by a Related Person for any shares of
any other class or series of capital stock of the
Company.
In determining the Highest Equivalent Price, all purchases by
a Related Person shall be taken into account regardless of
whether the shares were purchased before or after the Related
Person became a Related Person. Also, the Highest Equivalent
Price shall include any brokerage commissions, transfer taxes,
soliciting dealers' fees and other expenses paid by the
Related Person with respect to the shares of capital stock of
the Company acquired by the Related Person. In the case of
any Business Combination with a Related Person, the Continuing
Directors by a two-thirds vote shall determine the Highest
Equivalent Price for each class and series of capital stock of
the Company.
(l) The term "Fair Market Value" shall mean (1) in the
case of stock, the highest closing sale price during the
30-day period immediately preceding the date in question of a
share of such stock on the New York Stock Exchange's
consolidated transaction reporting system, or, if such stock
is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange
Act of 1934 on which such stock is listed, or, if such stock
is not listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during the
30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotation
System or any system then in use, or if no such quotations are
available, the fair market value on the date in question of a
share of such stock as determined by the Continuing Directors;
and (2) in the case of property other than stock or cash, the
fair market value of such property on the date in question as
determined by a two-thirds vote of the Continuing Directors.
4.3 Miscellaneous.
(a) The Continuing Directors, by a two-thirds vote, are
authorized to determine for purposes of this Division D on
the basis of information known to them after reasonable
inquiry: (1) whether a Person is a Related Person, (2) the
number of shares of Voting Stock Beneficially Owned by any
Person, (3)whether a Person is an Affiliate or Associate of
another, (4)whether certain assets constitute a Substantial
Part of the assets of any Person, (5) the amounts of prices
paid, market prices, and other factors relative to fixing
the Highest Equivalent Price of shares of capital stock of
the Company and (6) the Fair Market Value of property,
securities and Other Consideration received in a Business
Combination. Any such determination made in good faith
shall be binding and conclusive on all parties.
(b) Nothing contained in this Division D shall be
construed to relieve any Related Person from any fiduciary
obligation imposed by law.
(c) The fact that any Business Combination complies
with the conditions set forth in Subsection (a)(2) ofSection
4.1 of this Division D shall not be construed to impose any
fiduciary duty, obligation or responsibility on the Board of
Directors, or any member thereof, to approve such Business
Combination or recommend its adoption or approval to the
shareholders of the Company, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the
Board of Directors, or any member thereof, with respect to
evaluations of or actions and responses taken with respect
to such Business Combination.
(d) Notwithstanding any other provisions of law, the
Articles or the By-Laws of the Company, the affirmative vote
of the holders of not less than 80% of the voting power of
the Voting Stock of the Company, voting together as a single
class, shall be required to amend, alter, change or repeal,
or adoptany provision inconsistent with, this Division D.
Sixth: Henceforth, these Articles of the Company shall not
include any prior documents.
Exhibit 5.1
February 3, 1994
Equitable Resources, Inc.
420 Boulevard of the Allies
Pittsburgh, PA 15219
Gentlemen:
I am the Senior Vice President and General Counsel to
Equitable Resources, Inc., a Pennsylvania corporation (the
"Company"), and I have acted in such capacity in connection with
the Registration Statement on Form S-8 being filed with the
Securities and Exchange Commission (the "Registration Statement")
for the purpose of registering under the Securities Act of 1933,
as amended, 80,000 shares of Common Stock, no par value, which
may be issued upon the exercise of stock options and the grant of
restricted stock under the 1994 Equitable Resources, Inc.
Non-Employee Directors' Stock Incentive Plan (the "Plan"). In
such connection, I have examined the originals, or copies thereof
identified to my satisfaction, of such corporate records of the
Company and such other documents, records, opinions and papers as
I have deemed necessary or appropriate in order to give the
opinions hereinafter set forth.
I understand that, prior to my sale or distribution of
Common Stock under the Plan, the Registration Statement will have
become effective under the Securities Act of 1933, the Company's
shareholders will have approved the implementation of the Plan
and the Pennsylvania Public Utility Commission and the Kentucky
Public Service Commission shall have issued orders approving the
Company's issuance of the Common Stock under the Plan.
Based on the foregoing, I advised you that in my opinion:
1. The Company has been duly organized and is a validly
existing corporation under the laws of the Commonwealth of
Pennsylvania;
2. The 80,000 shares of Common Stock which are being
registered and which have been authorized for issuance in
accordance with the Plan, are, or will be, when sold in
accordance with the provisions of the Plan, legally issued, fully
paid and non-assessable.
I hereby consent to the filing of my opinion as Exhibit 5.1
to the Registration Statement.
Very truly yours,
/s/ AUGUSTINE A. MAZZEI, JR.
-------------------------------
Augustine A. Mazzei, Jr.
Senior Vice President and
General Counsel
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-8) pertaining to
the 1994 Equitable Resources, Inc. Non-Employee Directors' Stock
Incentive Plan and to the incorporation by reference therein of
our report dated February 23, 1993, 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, 1992, filed with the Securities and
Exchange Commission.
Ernst & Young
Pittsburgh, Pennsylvania
February 2, 1994
