As filed with the Securities Exchange Registration No.
Commission on May 1, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NATIONAL FUEL GAS COMPANY
(Exact Name of Registrant as Specified in Its Charter)
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New Jersey 13-1086010
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
10 Lafayette Square, Buffalo, New York 14203
(716) 857-7000
(Address of registrant's Principal Executive Offices)
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National Fuel Gas Company Tax-Deferred Savings Plan
(Full Title of the Plan)
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RONALD J. TANSKI
10 Lafayette Square
Buffalo, New York 14203
(716) 857-6981
(Name, Address and Telephone Number of Agent For Service)
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Copies to:
KYLE G. STORIE
10 Lafayette Square
Buffalo, New York 14203
(716) 857-7328
This Registration Statement on Form S-8 consists of 15 pages (including
exhibits). The index to exhibits is set forth on sequentially numbered Page 14.
C A L C U L A T I O N O F R E G I S T R A T I O N F E E
Proposed Proposed
Amount Maximum Maximum
Title of Each Class to be Offering Aggregate Amount of
of Securities to be Registered Price Per Offering Registration
Registered (1) (Shares)(2) Share (3) Price Fee
Common Stock 1,000,000 $35.125 $35,125,000 $12,111.10
(1) In addition, pursuant to Rule 416(c) under the Securities Act of 1933,
this registration statement also covers an indeterminable amount of
interests to be offered or sold pursuant to the employee benefit plan
described herein.
(2) In addition, pursuant to Rule 416(a) under the Securities Act of 1933,
this Registration Statement also covers such indeterminable number of
additional shares of Common Stock as may become deliverable as a result
of stock splits, stock dividends or similar transactions in accordance
with the provisions of the Plan.
(3) Determined on the basis of the average of the high and low sales prices
of the Common Stock reported on the New York Stock Exchange, quotations
for the last known sale on April 30, 1996, solely for the purposes of
calculating the registration fee, in accordance with Rule 457(c) under
the Securities Act of 1933.
E X P L A N A T O R Y N O T E
This Registration Statement on Form S-8 covers the registration of
1,000,000 shares of National Fuel Gas Company Common Stock that may be offered
or sold to certain employees of National and its subsidiaries pursuant to the
terms of the National Fuel Gas Company Tax-Deferred Savings Plan (the "Plan").
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by National Fuel Gas Company (the
"Company") and the Plan with the Securities and Exchange Commission pursuant to
the Securities Exchange Act of 1934 (the "Exchange Act") are incorporated by
reference in this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the yea
ended September 30, 1995;
(b) The Company's Quarterly Report on Form 10-Q for
the quarterly period ended December 31, 1995.
(c) The Plan's Form 11-K Annual Report pursuant to Section 15(d)
of the Securities Exchange Act of 1934 for the period ended December 31, 1994.
In addition, all documents filed by the Company or the Plan with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
after the date of this Registration Statement and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby have
been sold or which deregisters all securities then remaining unsold shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents; provided, however, that
the documents enumerated above or subsequently filed by the Company or the Plan
pursuant to Section 13 or 15(d) of the Exchange Act prior to the filing with the
Commission of the Company's most recent Annual Report on Form 10-K or the Plan's
most recent Annual Report on Form 11-K, as the case may be, shall not be
incorporated by reference in this registration statement or be a part hereof
from and after the date of filing of such Annual Report on Form 10-K or Annual
Report on Form 11-K, as the case may be.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute part of this Registration
Statement.
The financial statements of the Company included in the Company's Annual
Report on Form 10-K for the fiscal year ended September 30, 1995, have been
audited by Price Waterhouse LLP, independent auditors, as set forth in their
report included therein and incorporated herein by reference. Such financial
statements are, and audited financial statements to be included in subsequently
filed documents will be, incorporated herein by reference in reliance upon the
reports of Price Waterhouse LLP pertaining to such financial statements (to the
extent covered by consents filed with the Securities and Exchange Commission).
Item 4. Description of Securities
The following is a brief summary of certain of the terms and
provisions of the Company's Common Stock. This summary does not purport to be
complete and is qualified in its entirety by reference to the terms and
provisions of the Company's Restated Certificate of Incorporation, as amended
(Restated Certificate of Incorporation), and By-Laws, as amended, which are
filed as exhibits to the Registration Statement and incorporated herein by
reference. Reference is also made to the Company's Debenture Indenture, as
supplemented.
No shares of Preferred Stock are currently outstanding.
Dividend Rights
The holders of Common Stock are entitled to receive such
dividends as are declared by the Board of Directors, after payment of or
provision for full cumulative dividends and sinking funds, if any, for
outstanding Preferred Stock and subject to certain other limitations relating to
outstanding indebtedness and Preferred Stock of the Company. In general, these
limitations prohibit or restrict the amount of payment of cash dividends on, or
purchase or redemption of, Common Stock in the following situations: (1)
cumulative dividends on and amounts paid for purchase or redemption of Common
and Preferred Stock since December 31, 1967 exceed or would exceed consolidated
net income available for dividends for that same period plus $10 million plus
any additional amount authorized or approved, upon application of the Company,
by the Commission; (2) the sum of Common Stock capital and consolidated surplus
(as adjusted) is or would become less than the aggregate involuntary liquidating
value of outstanding Preferred Stock; or (3) Common Stock equity is or would
become less than 25% of total consolidated capitalization (as defined). Under
the most restrictive of these tests, $305,700,000 of consolidated retained
earnings at September 30, 1995, was free of such limitations.
Voting Rights and Classification of the Board of Directors
The holders of Common Stock are entitled to one vote per share.
Whenever dividends on all outstanding series of Preferred Stock are in default
in an amount equivalent to four full quarterly dividends, and thereafter until
such dividends are paid or declared and set aside for payment, the holders of
all shares of Preferred Stock voting as a class are entitled to elect additional
directors necessary to constitute a majority of the Board of Directors. The
affirmative vote of the majority of the votes cast by the holders of the Common
Stock is required for the merger or consolidation of the Company or for the sale
of substantially all of its assets. In addition, approval of the holders of a
majority of the outstanding shares of Preferred Stock, voting as a separate
class, is required for any such transaction unless the transaction is ordered,
exempted, approved or permitted by the Commission. The Board of Directors is
divided into three classes, each with, as nearly as possible, an equal number of
directors.
Liquidation Rights
Upon any dissolution, liquidation or winding up of the Company,
the holders of Common Stock are entitled to receive pro rata all of the
Company's assets and funds remaining after payment of or provision for creditors
and distribution of or provision for preferential amounts and unpaid accumulated
dividends to holders of Preferred Stock.
Preemptive Rights
Holders of Common Stock and Preferred Stock have no preemptive
right to purchase or subscribe for any shares of capital stock of the Company.
Business Combinations
The Company's Restated Certificate of Incorporation provides
that certain conditions must be met before the consummation of any merger or
other "Business Combination" by the Company or any of its subsidiaries with any
stockholder who is directly or indirectly the beneficial owner of 5% or more of
the Company's outstanding Common Stock (Substantial Stockholder) or with an
affiliate of any such stockholder (Affiliate). The term Substantial Stockholder
does not include the Company, any of its subsidiaries, or any Trustee holding
Common Stock of the Company for the benefit of the employees of the Company or
any of its subsidiaries pursuant to one or more employee benefit plans or
arrangements. The conditions, which are in addition to those otherwise required
by law, prescribe the minimum amount per share that must be paid to holders of
Common Stock and the form of consideration paid, and require that the holders of
Common Stock be furnished certain information about the Business Combination
prior to voting on it. Business Combination, as defined in the Restated
Certificate of Incorporation, generally means any of the following transactions:
a merger, consolidation or share exchange; a sale, lease, exchange or other
disposition of any assets in exchange for property having a fair market value of
more than $10 million, if determined to be a Business Combination by certain
directors of the Company in accordance with provisions of the Restated
Certificate of Incorporation; the issuance or transfer of securities in exchange
for property having a fair market value of more than $10 million, if determined
to be a Business Combination by certain directors of the Company in accordance
with provisions of the Restated Certificate of Incorporation; the adoption of a
plan of liquidation or dissolution of the Company; or any reclassification of
securities, recapitalization or reorganization that has the effect of increasing
the proportionate share of the outstanding shares of any class of securities of
the Company that is owned by any Substantial Stockholder or by any Affiliate of
a Substantial Stockholder. The approval of at least three-fourths of the entire
Board of Directors or, in the event that the Board of Directors consists of
directors elected by the holders of Preferred Stock, the approval of a majority
of the entire Board, is required to amend or repeal the classified board or
business combination provisions contained in the Restated Certificate of
Incorporation.
Listing
The Common Stock is, and will be, listed on the New York Stock
Exchange.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock is
Chemical Bank, New York, New York.
Item 5. Interests of Named Experts and Counsel.
To the best knowledge of the Registrant, no expert or counsel
named herein or in the Information Statement delivered pursuant to the
requirements of Part I of the Registration Statement has any substantial
interest, direct or indirect, in any matter connected with this Registration
Statement and the preparation and filing thereof.
Item 6. Indemnification of Officers and Directors.
Article Ninth of the Company's Restated Certificate of
Incorporation, as amended, provides as follows:
"No director or officer of this corporation shall be
personally liable to the corporation or any of its shareholders for monetary
damages for breach of any duty owed to the corporation or any of its
shareholders, except to the extent that such exemption from liability is not
permitted under the New Jersey Business Corporation Act, as the same exists or
may hereafter be amended, or under any revision thereof or successor statute
thereto."
Article II, Paragraph 8 of the By-Laws of the Company provides
as follows:
"A. The Corporation shall indemnify any person who was or is a
party or is threatened to be made a party to any pending, threatened or
completed civil, criminal, administrative or arbitrative action, suit
or proceeding, and any appeal therein and any inquiry or investigation
which could lead to such action, suit or proceeding ("Proceeding") by
reason of the fact that such person is or was a director or officer of
the Corporation, or, while a director or officer of the Corporation, is
or was serving at the request of the Corporation as a director,
officer, trustee, employee or agent of another foreign or domestic
corporation, or of any partnership, joint venture, sole proprietorship,
employee benefit plan, trust or other enterprise, whether or not for
profit, to the fullest extent permitted and in the manner provided by
the laws of the State of New Jersey.
B. Nothing in this paragraph 8 shall restrict or limit the
power of the Corporation to indemnify its employees, agents and other
persons, to advance expenses (including attorneys' fees) on their
behalf and to purchase and maintain insurance on behalf of any person
who is or was a director, officer, employee or agent of the Corporation
in connection with any Proceeding.
C. The indemnification provided by this paragraph 8 shall not
exclude any other rights to which a person seeking indemnification may
be entitled under the Certificate of Incorporation, By-Laws, agreement,
vote of shareholders or otherwise. The indemnification provided by this
paragraph 8 shall continue as to a person who has ceased to be a
director or officer, and shall extend to the estate or personal
representative of any deceased director or officer."
Section 14A:3-5 of the New Jersey Statutes (N.J.S.) Annotated provides:
INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES
(1) As used in this section,
(a) Corporate agent" means any person
who is or was a director, officer, employee or agent of the indemnifying
corporation or of any constituent corporation absorbed by the indemnifying
corporation in a consolidation or merger and any person who is or was a
director, officer, trustee, employee or agent of any other enterprise, serving
as such at the request of the indemnifying corporation, or of any such
constituent corporation, or the legal representative of any such director,
officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation, other than the
indemnifying corporation, and any partnership, joint venture, sole
proprietorship, trust or other enterprise, whether or not for profit, served by
a corporate agent;
(c) "Expenses" means reasonable costs,
disbursements and counsel fees;
(d) "Liabilities" means amounts paid
or incurred in satisfaction of settlements, judgments, fines and
penalties;
(e) "Proceeding" means any pending, threatened or completed civil, criminal,
administrative or arbitrative action, suit or proceeding, and any appeal therein
and any inquiry or investigation which could lead to such action, suit or
proceeding; and
(f) References to "other enterprises" include employee benefit plans; references
to "fines" include any excise taxes assessed on a person with respect to an
employee benefit plan; and references to "serving at the request of the
indemnifying corporation" include any service as a corporate agent which imposes
duties on, or involves services by, the corporate agent with respect to an
employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
corporation" as referred to in this section.
(2) Any corporation organized for any purpose under any general or special law
of this State shall have the power to indemnify a corporate agent against his
expenses and liabilities in connection with any proceeding involving the
corporate agent by reason of his being or having been such a corporate agent,
other than a proceeding by or in the right of the corporation, if
(a) such corporate agent 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
(b) with respect to any criminal proceeding, such corporate agent had no
reasonable cause to believe his conduct was unlawful.
This termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not of itself create a presumption that such corporate agent did not
meet the applicable standards of conduct set forth in paragraphs N.J.S.
14A:3-5(2)(a) and N.J.S.
14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any
general or special law of this State shall have the power to indemnify a
corporate agent against his expenses in connection with any proceeding by or in
the right of the corporation to procure a judgment in its favor which involves
the corporate agent by reason of his being or having been such corporate agent,
if he acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the corporation. However, in such proceeding no
indemnification shall be provided in respect of any claim, issue or matter as to
which such corporate agent shall have been adjudged to be liable to the
corporation, unless and only to the extent that the Superior Court or the court
in which such proceeding was brought shall determine upon application that
despite the adjudication of liability, but in view of all circumstances of the
case, such corporate agent is fairly and reasonably entitled to indemnity for
such expenses as the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or special law
of this State shall indemnify a corporate agent against expenses to the extent
that such corporate agent has been successful on the merits or otherwise in any
proceeding referred to in subsections N.J.S. 14A:3-5(2) and N.J.S. 14A:3-5(3) or
in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection N.J.S. 14A:3-5(2) and, unless ordered
by a court, under subsection N.J.S. 14A:3-5(3), may be made by the corporation
only as authorized in a specific case upon a determination that indemnification
is proper in the circumstances because the corporate agent met the applicable
standard of conduct set forth in subsection N.J.S. 14A:3-5(2) or subsection
N.J.S. 14A:3-5(3). Unless otherwise provided in the certificate of incorporation
or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a majority vote
of a quorum consisting of directors who were not parties to or otherwise
involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable and such quorum
of the board of directors or committee by a majority vote of the disinterested
directors so directs, by independent legal counsel, in a written opinion, such
counsel to be designated by the board of directors; or
(c) by the shareholders if the certificate of incorporation or bylaws or a
resolution of the board of directors or of the shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a proceeding may
be paid by the corporation in advance of the final disposition of the proceeding
as authorized by the board of directors upon receipt of an undertaking by or on
behalf of the corporate agent to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified as provided in this
section.
(7)(a) If a corporation upon application of a corporate agent has failed or
refused to provide indemnification as required under subsection N.J.S.
14A:3-5(4) or permitted under subsections N.J.S. 14A:3-5(2), N.J.S. 14A:3-5(3)
and N.J.S. 14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
(i) may award indemnification to the extent authorized under subsections N.J.S.
14A:3-5(2) and N.J.S. 14A:3-5(3) and shall award indemnification to the extent
required under subsection N.J.S. 14A:3-5(4), notwithstanding any contrary
determination which may have been made under subsection N.J.S. 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by, and subject to
the provisions of, subsection N.J.S. 14A:3-5(6), if the court shall find that
the corporate agent has by his pleadings or during the course of the proceeding
raised genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be incurred or
other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the application is for
indemnification arising out of a civil action, it shall set forth reasonable
cause for the failure to make application for such relief in the action or
proceeding in which the expenses were or are to be incurred or other amounts
were or are to be paid.
The application shall set forth the disposition of any previous
application for indemnification and shall be made in such manner and
form as may be required by the applicable rules of court or, in the
absence thereof, by direction of the court to which it is made. Such
application shall be upon notice to the corporation. The court may also
direct that notice shall be given at the expense of the corporation to
the shareholders and such other persons as it may designate in such
manner as it may require.
(8) The indemnification and advancement of expenses provided
by or granted pursuant to the other subsections of this section shall not
exclude any other rights, including the right to be indemnified against
liabilities and expenses incurred in proceedings by or in the right of the
corporation, to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise; provided
that no indemnification shall be made to or on behalf of a corporate agent if a
judgment or other final adjudication adverse to the corporate agent establishes
that his acts or omissions (a) were in breach of his duty of loyalty to the
corporation or its shareholders, as defined in subsection (3) of N.J.S. 14A:2-7,
(b) were not in good faith or involved a knowing violation of law or (c)
resulted in receipt by the corporate agent of an improper personal benefit.
(9) Any corporation organized for any purpose
under any general or special law of
this State shall have the power to purchase and maintain insurance on behalf of
any corporate agent against any expenses incurred in any proceeding and any
liabilities asserted against him by reason of his being or having been a
corporate agent, whether or not the corporation would have the power to
indemnify him against such expenses and liabilities under the provisions of this
section. The corporation may purchase such insurance from, or such insurance may
be reinsured in whole or in part by, an insurer owned by or otherwise affiliated
with the corporation, whether or not such insurer does business with other
insureds.
(10) The powers granted by this section may be exercised by the corporation,
notwithstanding the absence of any provision in its certificate of incorporation
or bylaws authorizing the exercise of such powers.
(11) Except as required by subsection N.J.S. 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and none
shall be ordered by a court, if such action would be inconsistent with a
provision of the certificate of incorporation, a bylaw, a resolution of the
board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause of
action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or reimburse
expenses incurred by a corporate agent in connection with the corporate agent's
appearance as a witness in a proceeding at a time when the corporate agent has
not been made a party to the proceeding.
Item 8. Exhibits.
Following is a list of all applicable exhibits filed with this
Registration Statement pursuant to the requirements of Item 601 of Regulation
S-K:
Exhibit
4.1 Restated Certificate of Incorporation of National Fuel Gas
Company, dated March 15, 1985 (Exhibit 10-00, Form 10-K for
fiscal year ended September 30, 1991 in File No. 1-3880).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of National Fuel Gas Company, dated March 9, 1987
(Exhibit 3.1 to Form 10-K for fiscal year ended September 30,
1995 in File No. 1-3880).
4.3 Certificate of Amendment of Restated Certificate of
Incorporation of National Fuel Gas Company, dated February 22,
1988 (Exhibit 3.2 to Form 10-K for fiscal year ended September
30, 1995 in File No. 1-3880).
4.4 Certificate of Amendment of Restated Certificate of
Incorporation, dated March 17, 1992 (Exhibit EX-3(a), Form 10-K
for fiscal year ended September 30, 1992 in File No. 1-3880).
4.5 National Fuel Gas Company By-Laws as amended through June 9,
1994 (Exhibit 3.1, Form 10-K for fiscal year ended September 30,
1994 in File No. 1-3880).
4.6 Indenture dated as of October 15, 1974, between the Company
and The Bank of New York (formerly Irving Trust Company)
(Exhibit 2(b) in File No. 2-51796)
4.7 Ninth Supplemental Indenture dated as of January 1, 1990, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
EX-4.4, Form 10-K for fiscal year ended September 30, 1992 in
File No. 1-3880)
4.8 Tenth Supplemental Indenture dated as of February 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
4(a), Form 8-K dated February 14, 1992 in File No. 1-3880)
4.9 Eleventh Supplemental Indenture dated as of May 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
4(b), Form 8-K dated February 14, 1992 in File No. 1-3880)
4.10 Twelfth Supplemental Indenture dated as of June 1, 1992, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
4(c), Form 8-K dated June 18, 1992 in File No. 1-3880)
4.11 Thirteenth Supplemental Indenture dated as of March 1, 1993, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
4(a)(14) in File No. 33-49401)
4.12 Fourteenth Supplemental Indenture dated as of July 1, 1993, to
Indenture dated as of October 15, 1974, between the Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit
4.1, Form 10-K for fiscal year ended September 30, 1993 in File
No. 1-3880)
5.1 Opinion of Counsel, Stryker, Tams & Dill.
5.2 Internal Revenue Service determination letter dated December
28, 1995 that the Plan is qualified under Section 401 of the
Internal Revenue Code.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Stryker, Tams & Dill (contained in Opinion at Exhibit
5.1).
24.1 Power of Attorney (included in signature page hereto).
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:
(i) To include any prospectus required by section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus (as defined in Part I of Form
S-8) any facts or events arising after the effective date of the
registration statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that clauses (1)(i) and (1)(ii) do not apply
to this registration statement on Form S-8 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.
The undersigned registrant hereby undertakes 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.
The Company has purchased and maintains insurance coverage under a policy
insuring directors and officers of the Company, which may include coverage for
liabilities arising under the Securities Act of 1933. 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 Item
6, 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.
POWER OF ATTORNEY
Each of the undersigned officers and directors of National Fuel Gas
Company hereby constitutes and appoints Philip C. Ackerman and Ronald J. Tanski,
and each of them severally, as his attorney-in-fact to sign in his name and on
his behalf, in any and all capacities stated below, and to file with the
Securities and Exchange Commission, any and all amendments, including
post-effective amendments, to this registration statement, and the registrant
hereby also appoints Philip C. Ackerman and Ronald J. Tanski, and each of them
severally, its attorney-in-fact with the authority to sign and file any such
amendments in its name and behalf.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the registrant certifies that it has reasonable grounds to believe that it
meets all 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 Buffalo, State of New York, on the 30th day of
April, 1996.
NATIONAL FUEL GAS COMPANY
By: /s/Bernard J. Kenned
Bernard J. Kennedy, Chairman of the Board,
President and Chief Executive Office
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
/s/Bernard J. Kennedy Chairman of the Board, President, 4/30/96
Bernard J. Kennedy Chief Executive Officer and Director
/s/Philip C. Ackerman Senior Vice President, Principal 4/30/96
Philip C. Ackerman Financial Officer and Director
/s/Joseph P. Pawlowski Treasurer and Principal
Joseph P. Pawlowski Accounting Officer 4/30/96
/s/Robert T. Brady Director 4/30/96
Robert T. Brady
/s/David N. Campbell Director 4/30/96
David N. Campbell
/s/William J. Hill Director 4/30/96
William J. Hill
/s/Luiz F. Kahl Director 4/30/96
Luiz F. Kahl
/s/Bernard S. Lee Director 4/30/96
Bernard S. Lee
/s/Eugene T. Mann Director 4/30/96
Eugene T. Mann
/s/Leonard Rochwarger Director 4/30/96
Leonard Rochwarger
/s/George H. Schofield Director 4/30/96
George H. Schofield
POWER OF ATTORNEY
The Plan hereby appoints Philip C. Ackerman and Ronald J. Tanski, and each of
them severally, as its attorney-in-fact to sign in its name and behalf and to
file with the Securities and Exchange Commission, any and all amendments,
including post-effective amendments, to this registration statement.
SIGNATURES
The Plan. Pursuant to the requirements of the Securities Act of 1933, the
National Fuel Gas Company Tax-Deferred Savings Plan Committee has duly caused
this registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Buffalo, State of New York, on April
30, 1996.
By: /s/Philip C. Ackerman
Philip C. Ackerman, a member of the
National Fuel Gas Company Tax-Deferred
Savings Plan Committee
INDEX TO EXHIBITS
If not filed herein,
Exhibit No. Description of Document incorporated by reference to
4.1 Restated Certificate of Incorporation Exhibit 10-00 to the Company's
Annual Report on Form 10-K for
fiscal year ended September 30,
1991.
4.2 Certificate of Amendment of Restated Exhibit 3.1 to the Company's
Certificate of Incorporation Annual Report on Form 10-K for
fiscal year ended September 30,
1995 in File No. 1-3880.
4.3 Certificate of Amendment of Restated Exhibit 3.2 to the Company's
Certificate of Incorporation Annual Report on Form 10-K for
fiscal year ended September 30,
1995 in File No. 1-3880.
4.4 Certificate of Amendment of Restated Exhibit EX-3(a) to the
Certificate of Incorporation Company's Annual Report on Form
10-K for fiscal year ended
September 30, 1992.
4.5 Company's By-Laws Exhibit 3.1 to the Company's
Annual Report on Form 10-K for
fiscal year ended
September 30, 1994.
4.6 Indenture dated as of October 15, 1974, Exhibit 2(b) in File No.
between the Company and The Bank of 2-51796.
New York (formerly Irving Trust Company)
4.7 Ninth Supplemental Indenture dated Exhibit EX-4.4, Form 10-K for
as of January 1, 1990, to Indenture fiscal year ended September 30,
dated as of October 15, 1974, between 1992 in File No. 1-3880.
the Company and The Bank of New York
(formerly Irving Trust Company)
4.8 Tenth Supplemental Indenture dated as of Exhibit 4(a), Form 8-K dated
February 1, 1992, to Indenture dated as February 14, 1992 in File No.
of October 15, 1974, between the Company 1-3880.
and The Bank of New York (formerly Irving
Trust Company)
4.9 Eleventh Supplemental Indenture dated as Exhibit 4(b), Form 8-K dated
of May 1, 1992, to Indenture dated as of February 14, 1992 in File No.
October 15, 1974, between the Company 1-3880.
and The Bank of New York (formerly Irving
Trust Company)
4.10 Twelfth Supplemental Indenture dated as Exhibit 4(c), Form 8-K dated
of June 1, 1992, to Indenture dated as June 18, 1992 in File No.
of October 15, 1974, between the Company 1-3880.
and The Bank of New York (formerly Irving
Trust Company)
4.11 Thirteenth Supplemental Indenture dated Exhibit 4(a)(14) in File No.
as of March 1, 1993, to Indenture 33-49401.
dated as of October 15, 1974,
between the Company and The Bank of
New York (formerly Irving Trust Company)
4.12 Fourteenth Supplemental Indenture dated as Exhibit 4.1, Form 10-K for
of July 1, 1993, to Indenture dated as of fiscal year ended September
October 15, 1974, between the Company and 30, 1993 in File No.
The Bank of New York (formerly Irving 1-3880.
Trust Company)
5.1 Opinion of Counsel, Filed herewith.
Stryker, Tams & Dill
5.2 Internal Revenue Service Filed herewith.
determination letter
23.1 Consent of Price Waterhouse LLP. Filed herewith.
23.2 Consent of Stryker, Tams & Dill Contained in Opinion at
Exhibit 5.1.
24.1 Power of Attorney Filed herewith.
(included in signature page hereto)
Exhibit 5.1
STRYKER, TAMS & DILL
TWO PENN PLAZA EAST
NEWARK, N.J. 07105
(201) 491-9500
May 1, 1996
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Ladies and Gentlemen:
With reference to the Registration Statement on Form S-8 to be filed on
or about the date hereof with the Securities and Exchange Commission by National
Fuel Gas Company ("Company") under the Securities Act of 1933, as amended
("Act"), pursuant to which the Company intends to register 1,000,000 shares of
its common stock, one dollar ($1.00) par value ("Stock"), for offer and sale in
connection with its Tax-Deferred Savings Plan ("Plan"), we are of the opinion
that:
1. The Company is a corporation duly incorporated and validly
existing under the laws of the State of New Jersey.
2. All action necessary to make the authorized but unissued Stock
legally issued, fully paid and non-assessable will have been taken when:
a. The Company shall have received an order approving its
Application-Declaration on Form U-1 pursuant to the Public Utility Holding
Company Act of 1935, as amended, relating to the authorized but unissued Stock,
and such order shall have become and remain effective;
b. A meeting or meetings of your Board of Directors and/or a
duly appointed and authorized committee thereof shall have taken all actions as
may be necessary to consummate the authorization of the proposed issuance and
sale of the Stock, including fixing or otherwise determining the consideration
to be received therefor; and
c. The Stock shall have been issued and delivered for the
consideration contemplated in the Registration Statement and certificates
therefor shall have been duly executed, countersigned, registered and delivered.
We hereby consent to the use of this opinion as an exhibit to your
Registration Statement and to the use of our name therein.
Very truly yours,
/s/Stryker, Tams & Dill
STRYKER, TAMS & DILL
Exhibit 5.2
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
DISTRICT DIRECTOR
G.P.O. BOX 1680
BROOKLYN, NY 11202
Employer Identification Number:
Date: December 28, 1995 13-1086010
File Folder Name:
163002423
NATIONAL FUEL GAS COMPANY Person to Contact:
KYLE G. STORIE WILLIAM DOLCE
C/O DIANNE BENNET, ESQ Contact Telephone Number:
1800 ONE M&T PLAZA (203) 258-2022
BUFFALO, NY 14203 Plan Name:
NATIONAL FUEL GAS CO TAX
DEFERRED SAVINGS PLAN
Plan Number: 009
Dear Applicant:
We have made a favorable determination on your plan, identified above,
based on the information supplied. Please keep this letter in your permanent
records.
Continued qualification of the plan under its present form will depend
on is effect in operation. (See section 1.401-1(b)(3) of the Income Tax
Regulations.) We will review the status of the plan in operation periodically.
The enclosed document explains the significance of this favorable
determination letter, points out some features that may affect the qualified
status of your employee retirement plan, and provides information on the
reporting requirements for your plan. It also describes some events that
automatically nullify it. It is very important that you read the publication.
This letter relates only to the status of your plan under the Internal
Revenue Code. It is not a determination regarding the effect of other federal or
local statutes.
This determination letter is applicable for the amendment(s) adopted on
December 30, 1994.
This plan satisfies the minimum coverage and nondiscrimination
requirements of sections 410(b) and 401(a)(4) of the Code because the plan
benefits only collectively bargained employees or employees treated as
collectively bargained employees.
This letter is issued under Rev. Proc. 93-39 and considers the
amendments required by the Tax Reform Act of 1986 except as otherwise
specified in this letter.
This letter may not be relied upon with respect to whether the plan
satisfies the qualification requirements as amended by the Uruguay Round
Agreements Act, Pub. L. 103-465.
We have sent a copy of this letter to your representative as indicated
in the power of attorney.
If you have questions concerning this matter, please contact the person
whose name and telephone number are shown above.
Sincerely yours,]
/s/Herbert J. Huff
Herbert J. Huff
District Director
Enclosures:
Publication 794
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated October 27, 1995 appearing on page 46
of National Fuel Gas Company's Annual Report on Form 10-K for the year ended
September 30, 1995.
/s/Price Waterhouse LLP
Buffalo, New York
April 30, 1996
