REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
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 (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
10 Lafayette Square
Buffalo, New York 14203
(716) 857-7000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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PHILIP C. ACKERMAN ROBERT J. REGER
SENIOR VICE PRESIDENT REID & PRIEST LLP
10 Lafayette Square 40 West 57th Street
Buffalo, New York 14203 New York, New York 10019
(716) 857-7000 (212) 603-2204
(NAMES, ADDRESSES, INCLUDING ZIP CODES, AND TELEPHONE NUMBERS,
INCLUDING AREA CODES, OF AGENTS FOR SERVICE)
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It is respectfully requested that the Commission send
copies of all orders, notices and communications to:
TODD W. ECKLAND, ESQ.
WINTHROP, STIMSON, PUTNAM & ROBERTS
One Battery Park Plaza
New York, New York 10004
(212) 858-1440
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From
time to time after this Registration Statement becomes effective as
determined by market conditions and other factors.
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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]
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act of 1933, please
check the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering. [ ]
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If this Form is a post-effective amendment filed pursuant to Rule
462(b) under the Securities Act of 1933, check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
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Title Proposed
of each maximum Proposed
class of aggregate maximum
securities Amount price aggregate Amount of
to be to be per offering registration
registered registered unit(1) price(1) fee(2)
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Debt Securities..... $480,000,000 $ 100% $480,000,000 $165,518
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(1) Estimated solely for the purpose of calculating the registration
fee.
(2) Pursuant to Rule 429 under the Securities Act of 1933, the
prospectus filed as part of this Registration Statement will
be used as a combined prospectus in connection with this
Registration Statement and Registration Statement File No.
33-49401. The aggregate principal amount of Debt Securities
carried forward from Registration Statement File No. 33-49401
is $20,000,000. The amount of the filing fee associated with
such Debt Securities that was previously paid with Registration
Statement File No. 33-49401 was $6,250.
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.
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<PAGE>
PROSPECTUS
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Subject To Completion Dated May 15, 1996
$500,000,000
National Fuel Gas Company
DEBT SECURITIES
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National Fuel Gas Company (Company) intends to offer from
time to time debt securities consisting of one or more series of
its Debentures and/or its Medium-Term Notes (New Debt Securities)
aggregating up to $500,000,000 in principal amount, in each case
on terms to be determined when the agreement to sell is made.
For each issue of the New Debt Securities for which this
Prospectus is being delivered (Offered Debt Securities), there
will be an accompanying Prospectus Supplement (Prospectus
Supplement) that will set forth the aggregate principal amount of
New Debt Securities to be sold, the purchase price or prices,
maturity or maturities, rate or rates and/or the method of
determination of such rate or rates and time of payment of
interest and any redemption terms or other specific terms of the
New Debt Securities.
The New Debt Securities may be sold directly by the Company
or through agents designated from time to time or through
underwriters or dealers. Offers to purchase New Debt Securities
may be solicited, on a best efforts basis, from time to time by
the agents on behalf of the Company. The names of any agents of
the Company or any dealers or underwriters involved in the sale
of the New Debt Securities in respect of which this Prospectus is
being delivered, any applicable commissions or discounts and the
proceeds to the Company with respect to such New Debt Securities
will be set forth in the Prospectus Supplements. See "Plan of
Distribution" for possible indemnification or contribution
arrangements for agents, underwriters and dealers.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR BY ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
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The date of this Prospectus is , 1996.
Information contained herein is subject to completion or
amendment. A registration statement relating to these securities
has been filed with the Securities and Exchange Commission.
These securities may not be sold nor may offers to buy be
accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell
or the solicitation of an offer to buy nor shall there be any
sale of these securities in any jurisdiction in which such offer,
solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (Exchange Act),
and in accordance therewith files reports and other information
with the Securities and Exchange Commission (Commission). Such
reports, proxy statements and other information filed by the
Company with the Commission may be inspected and copied at the
public reference facilities maintained by the Commission at 450
Fifth Street, N.W., Judiciary Plaza, Washington, D.C., and at the
following Regional Offices of the Commission: New York Regional
Office, 7 World Trade Center, 13th Floor, New York, New York; and
Chicago Regional Office, 500 West Madison Street, Suite 1400,
Chicago, Illinois. Copies of such material can also be obtained
from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Judiciary Plaza, Washington, D.C. 20549 at
prescribed rates. Such reports, proxy statements and other
information can also be inspected at the offices of the New York
Stock Exchange, Inc., 20 Broad Street, New York, New York, on
which certain of the Company's securities are listed.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the
Commission are incorporated herein by reference:
1. Annual Report on Form 10-K for the year ended September
30, 1995.
2. Quarterly Reports on Form 10-Q for the quarters ended
December 31, 1995 and March 31, 1996.
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 New Debt Securities shall
be deemed to be incorporated by reference in this Prospectus 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 pursuant to Section 13 or 15(d)
of the Exchange Act prior to the filing of the Company's most
recent Annual Report on Form 10-K with the Commission shall not
be incorporated by reference in this Prospectus or be a part
hereof from and after such filing of such Annual Report on Form
10-K.
Any statement contained herein or 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 is deemed to be incorporated by
reference herein or in the Prospectus Supplement 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.
The Company undertakes to provide without charge to each
person, including any beneficial owner, to whom a copy of this
Prospectus has been delivered, on the written or oral request of
any such person, a copy of any or all of the documents referred
to above which have been or may be incorporated in this
Prospectus by reference, other than exhibits to such documents
(unless such exhibits are specifically incorporated by reference
into such documents). Requests for such copies should be
directed to: Curtis W. Lee, Esq., General Manager Finance,
National Fuel Gas Company, 10 Lafayette Square, Buffalo, New York
14203, telephone (716) 857-7812. The information relating to the
Company contained in this Prospectus or the Prospectus Supplement
does not purport to be comprehensive and should be read together
with the information contained in any or all documents which have
been or may be incorporated in this Prospectus by reference.
No person has been authorized to give any information or to
make any representation not contained in this Prospectus or the
Prospectus Supplement, and, if given or made, such information or
representation must not be relied upon as having been authorized.
Neither this Prospectus nor the Prospectus Supplement constitutes
an offer to sell or a solicitation of an offer to buy any of the
securities offered hereby in any jurisdiction to any person to
whom it is unlawful to make such offer in such jurisdiction.
Neither the delivery of this Prospectus or the Prospectus
Supplement nor any sale made hereunder shall, under any
circumstances, create any implication that the information
contained herein or therein is correct as of any time subsequent
to the date of such information.
THE COMPANY
The Company, a registered holding company under the Public
Utility Holding Company Act of 1935, as amended, was organized
under the laws of New Jersey in 1902. The mailing address of the
Company is 10 Lafayette Square, Buffalo, New York 14203 and its
telephone number is (716) 857-7000. The Company is engaged in
the business of owning and holding all of the securities of
National Fuel Gas Distribution Corporation, National Fuel Gas
Supply Corporation, Seneca Resources Corporation (Seneca), Leidy
Hub, Inc., Highland Land & Minerals, Inc., Data-Track Account
Services, Inc., Horizon Energy Development, Inc., National Fuel
Resources, Inc. and Utility Constructors, Inc.
The Company and its subsidiaries comprise an integrated
natural gas operation consisting of three major business
segments: Utility Operation, which sells natural gas and
provides natural gas transportation services through a local
distribution system located in western New York and northwestern
Pennsylvania; Pipeline and Storage, which is engaged in the
storage and transportation of natural gas; and Exploration and
Production, which is engaged in the exploration for, and purchase
of, natural gas and oil reserves in the Gulf Coast of Texas and
Louisiana, in California and in the Appalachian region of the
United States. In addition to these three major business
segments, the Company and its subsidiaries also engage in the
marketing and brokering of natural gas, the performance of energy
management services for utilities and end-users, the providing of
various natural gas hub services, the investment in foreign and
domestic energy projects, the marketing of timber and the
operating of a sawmill and kiln operations.
USE OF PROCEEDS
Except as may otherwise be set forth in the Prospectus
Supplement, the proceeds from the sale of the New Debt Securities
may be used to reduce short-term indebtedness, to redeem or
discharge higher cost indebtedness, to finance a portion of the
System's capital expenditures, for corporate development
purposes, including, without limitation, acquisitions made by or
on behalf of the Company or its subsidiaries, and for other
general corporate purposes.
RATIO OF EARNINGS TO FIXED CHARGES
The ratio of earnings to fixed charges for each of the years
ended September 30, 1991-1995 and for the twelve months ended
March 31, 1996 were 2.05, 2.46, 3.05, 3.52, 3.06 and 3.33,
respectively.
DESCRIPTION OF THE NEW DEBT SECURITIES AND THE INDENTURE
The New Debt Securities will be issued under an indenture
dated as of October 15, 1974, as supplemented by supplemental
indentures thereto (Indenture), between the Company and The Bank
of New York (formerly Irving Trust Company), as Trustee
(Trustee).
Reference is made to the Prospectus Supplement for the
following terms (among others) of the Offered Debt Securities:
(i) the designation, series and aggregate principal amount of the
Offered Debt Securities; (ii) the percentage or percentages of
the principal amount at which the Offered Debt Securities will be
issued; (iii) the date or dates on which the Offered Debt
Securities will mature; (iv) the rate or rates (which may be
either fixed or variable), and/or the method of determination of
such rate or rates, per annum at which the Offered Debt
Securities will bear interest; (v) the times at which such
interest will be payable; (vi) the denominations in which the
Offered Debt Securities are authorized to be issued; and (vii)
redemption terms or other specific terms of the Offered Debt
Securities.
Principal of, and premium, if any, and interest on, the
Offered Debt Securities will be payable in New York City at the
office or agency of the Company, which will initially be the
principal office of the Trustee.
The Indenture permits the issue thereunder of one or more
additional series of debentures, subject to compliance with the
requirements and limitations set forth in the Indenture and any
indenture supplemental thereto. The term "Debentures" used under
this section entitled "Description of the New Debt Securities and
the Indenture" refers to all series of Debentures and/or Medium-
Term Notes issued or issuable under the Indenture.
The following statements are only an outline of the
Indenture and are in all respects subject to the provisions of
the Indenture. The particular provisions of the Indenture
referred to below are incorporated herein by reference, and this
description is qualified in its entirety thereby.
NEGATIVE PLEDGE COVENANT. The Debentures are not secured by
any lien, but the Indenture provides that, so long as any of the
Debentures are outstanding, the Company will not subject any
property to any lien to secure any indebtedness without
simultaneously securing the Debentures equally and ratably,
except that such restrictions shall not apply to (a) liens which
do not exceed 60% of the purchase price of property acquired by
the Company, which liens may be either (i) incurred by the
Company pursuant to its acquisition of such property or (ii)
previously existing on the property at the time of its
acquisition by the Company, and, in either case, which shall
include all extensions, renewals or refundings of such liens, or
(b) the pledge of assets as security for contested tax
assessments, as security for deposits with public bodies to
entitle the Company to maintain self-insurance or to transact its
business, or as security for a stay or discharge in the course of
legal proceedings. (Indenture, Sec. 6.03.)
RESTRICTION ON DISTRIBUTIONS. The Company covenants that,
so long as any of the Debentures are outstanding, it will not pay
any dividend or make any other distribution upon its capital
stock or purchase any of its capital stock if the aggregate
amount of all such dividends, distributions, and purchases
subsequent to December 31, 1967 would exceed the consolidated net
income of the Company and its subsidiaries available for
dividends, determined as provided in the Indenture, since such
date, plus $10,000,000, plus such additional amount as shall be
authorized or approved, upon application by the Company, by the
Commission, except that stock dividends and the acquisition of
capital stock in exchange for or out of the proceeds of the issue
of other capital stock are not restricted. (Indenture, Sec.
6.07.) Under these provisions as of March 31, 1996, $363,490,000
was available to pay dividends on capital stock.
RESTRICTIONS WITH RESPECT TO STOCK OF SUBSIDIARIES. The
Indenture defines a subsidiary as a corporation a majority of
whose voting stock is owned by the Company directly or through
other subsidiaries, and a restricted subsidiary as a corporation
all of whose common stock and at least 75% of whose voting stock
is owned by the Company directly or through other restricted
subsidiaries. (Indenture, Secs. 1.18 and 1.20.)
The Company covenants that, so long as any of the Debentures
are outstanding, it will not itself sell or permit a restricted
subsidiary to sell, other than to the Company or another
restricted subsidiary, any common shares or voting shares of a
restricted subsidiary, unless (i) all of the common shares and
voting shares of such restricted subsidiary are sold, or (ii) the
corporation whose shares are being sold will remain a restricted
subsidiary after such sale, or (iii) after giving effect to such
issue or sale, the total book value of securities other than
United States Government securities and other than securities of
the Company and its restricted subsidiaries, owned by the Company
and its restricted subsidiaries, does not exceed 25% of the
consolidated assets of the Company and its subsidiaries. The
Company also covenants that it will not permit a subsidiary to
issue or sell any voting shares unless, after giving effect
thereto, such subsidiary shall remain a subsidiary. (Indenture,
Sec. 6.04.)
RESTRICTIONS WITH RESPECT TO FUNDED DEBT AND SUBSIDIARY
PREFERRED STOCK. The Indenture, as amended, contains provisions
designed to prohibit any increase in the amount of funded debt of
the Company and its subsidiaries, and its subsidiary preferred
stock, in each case outstanding other than in the hands of the
Company or its subsidiaries, unless after giving effect to such
increase (a) the sum of the funded debt of the Company and its
subsidiaries, and of the subsidiary preferred stock, so
outstanding, shall not exceed 60% of the consolidated assets of
the Company and its subsidiaries, and (b) income available for
interest and subsidiary preferred stock dividends (which includes
operating revenues subject to refund at a future date) of the
Company and its subsidiaries for any 12 consecutive months within
the preceding 15 months has been at least two times the sum of
the annual interest charges and dividend requirements on the
consolidated debt of the Company and its subsidiaries and
subsidiary preferred stock (at March 31, 1996 this coverage ratio
was 4.66) (Indenture, Sec. 6.05, Third Supplemental, Sec. 7 and
Sec. 8.); in addition, in the case of subsidiary funded debt or
preferred stock, after giving effect to the transaction, the
amount of funded debt and preferred stock of such subsidiary
outstanding other than in the hands of the Company and its
subsidiaries shall not exceed 60% of the total capitalization of
such subsidiary, and the amount of funded debt and preferred
stock of all subsidiaries so outstanding shall not exceed 15% of
the consolidated assets of the Company and its subsidiaries.
(Indenture, Sec. 6.06.) There is no restriction on incurrence or
sale of additional funded debt which (i) is acquired by the
Company or a subsidiary, (ii) subordinate to the Debentures as to
payment of principal and interest on default or (iii) issued to
refund other funded debt. (Indenture, Sec. 6.05.) The terms
"consolidated debt", "funded debt" (generally indebtedness
maturing more than one year from the date incurred) and
"consolidated assets" are defined in the Indenture. (Indenture,
Secs. 1.03, 1.08, and 1.04.) Provisions are contained in the
Indenture requiring certain minimum depreciation and depletion
charges. (Indenture, Sec. 1.10, Thirteenth Supplemental, Sec.
1.)
MERGER, CONSOLIDATION, ETC. The Indenture , as amended,
permits the Company to merge or consolidate with or transfer all
or substantially all its assets to another corporation which
assumes the obligations of the Company under the Debentures and
the Indenture. (Indenture, Article XIII, Thirteenth
Supplemental, Sec. 2.)
MODIFICATION OF INDENTURE. The rights and obligations of
the Company and of the holders of the Debentures are subject to
modification at the request of the Company by supplemental
indenture with the consent in writing of the holders of at least
66 2/3% in principal amount of outstanding Debentures, but if
less than all series are directly affected by such modification,
then only holders of at least 66 2/3% in principal amount of
Debentures of all series directly affected shall be required to
consent thereto, provided that no such modification shall extend
the maturity of or reduce the principal of or the rate of
interest or redemption premium on or otherwise modify the terms
of payment of the principal of or interest or redemption premium
on any Debenture or reduce the percentage of Debentures required
to consent to any such modification without the express consent
of the holders thereof. (Indenture, Articles VIII and XIV.)
REDEMPTION. Reference is made to the Prospectus Supplement
for the redemption terms of the Offered Debt Securities.
DEFAULTS AND ACTION BY TRUSTEE. Defaults are defined as
being: default in payment of principal; default for 60 days in
payment of interest or of installments of funds for retirement of
Debentures; certain defaults with respect to other agreements to
which the Company is a party; certain events in bankruptcy,
insolvency or reorganization; and default for 90 days after
notice with respect to other covenants in the Indenture.
(Indenture, Sec. 7.01.) The Trustee may withhold notice of
default (except in payment of principal, interest or funds for
retirement of Debentures) if it determines it is in the interests
of the holders of the Debentures. (Indenture, Sec. 7.11.)
Upon the occurrence of a default, the Trustee or holders of
25% of the Debentures may accelerate the maturity of the
Debentures, but holders of 66 2/3% of the Debentures may, in any
such case, annul such declaration and destroy its effect if such
default has been cured. (Indenture, Sec. 7.02.)
The Trustee has no obligation to advance its own funds or
otherwise incur personal liability if there is reasonable ground
for believing that repayment is not reasonably assured.
(Indenture, Sec. 10.04.)
Holders of a majority in principal amount of the Debentures
have the right to direct the time, method, and place of
conducting all proceedings for any remedy available to the
Trustee. (Indenture, Sec. 7.07.)
No holder may institute any suit, action or proceeding for
the execution of any trust under the Indenture, or for the
appointment of a receiver, or any other remedy under the
Indenture, unless (1) such holder shall have given the Trustee
written notice of a default, (2) the holders of 25% of the
Debentures have requested the Trustee in writing to act and have
offered the Trustee reasonable opportunity to act and the Trustee
shall have declined or failed to act, and (3) in the event that
the Trustee is entitled under the Indenture to security and
indemnity against the costs, expenses, and liabilities to be
incurred, they shall have offered such security and indemnity to
the Trustee. The foregoing is not to impair the right of a
holder of any Debenture to enforce payment of the principal of
and interest on such Debenture on the respective due dates.
(Indenture, Sec. 7.08 and 10.04.)
The Company is required to furnish the Trustee an annual
certificate as to the absence of default and compliance with the
terms of the Indenture. (Indenture, Sec. 6.13.)
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the Company's most recent Annual Report on Form 10-K
have been so incorporated in reliance on the report of Price
Waterhouse LLP, independent accountants, given on the authority
of said firm as experts in auditing and accounting.
The information incorporated in this Prospectus by reference
to the Company's most recent Annual Report on Form 10-K relating
to the oil and gas reserves of Seneca, which has been
specifically attributed to Ralph E. Davis Associates, Inc., has
been reviewed and verified by said firm and has been included
herein in reliance upon the authority of said firm as an expert.
LEGALITY
The legality of the New Debt Securities will be passed upon
for the Company by Reid & Priest LLP, 40 West 57th Street, New
York, N.Y. 10019, and for the underwriters, dealers and/or agents
by Winthrop, Stimson, Putnam & Roberts, One Battery Park Plaza,
New York, N.Y. 10004. However, all matters of New Jersey law,
including the incorporation of the Company, will be passed upon
only by Stryker, Tams & Dill, Two Penn Plaza East, Newark, N.J.
07105.
PLAN OF DISTRIBUTION
The Company may sell the New Debt Securities in one or more
series in any of three ways: (i) through underwriters or
dealers; (ii) directly to a limited number of purchasers or to a
single purchaser; or (iii) through agents. The Prospectus
Supplement with respect to Offered Debt Securities will set forth
the terms of the offering of such Offered Debt Securities,
including the name or names of any underwriters, dealers or
agents, the purchase price of such Offered Debt Securities and
the proceeds to the Company from such sale, any underwriting
discounts, agents' commissions and other items constituting
underwriting compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to
dealers. Any initial public offering price and any discounts or
concessions allowed or reallowed or paid to dealers may be
changed from time to time.
If underwriters are used in the sale, the New Debt
Securities will be acquired by the underwriters for their own
account and may be resold from time to time in one or more
transactions, including negotiated transactions, at the initial
public offering price or at varying prices determined at the time
of the sale. The New Debt Securities may be offered to the
public either through underwriting syndicates represented by one
or more managing underwriters or directly by one or more managing
underwriters. The underwriter or underwriters with respect to
Offered Debt Securities will be named in the Prospectus
Supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will
be set forth on the cover page of such Prospectus Supplement.
Unless otherwise set forth in such Prospectus Supplement, the
obligations of the underwriters to purchase such Offered Debt
Securities will be subject to certain conditions precedent, and
the underwriters will be obligated to purchase all such Offered
Debt Securities if any are purchased.
Offered Debt Securities may be sold directly by the Company
or through agents designated by the Company from time to time.
The Prospectus Supplement will set forth the name of any agent
involved in the offer or sale of the Offered Debt Securities in
respect of which such Prospectus Supplement is delivered as well
as any commissions payable by the Company to such agent. Unless
otherwise indicated in such Prospectus Supplement, any such agent
will be acting on a reasonable best efforts basis for the period
of its appointment.
If so indicated in the Prospectus Supplement with respect to
Offered Debt Securities, the Company will authorize agents,
underwriters or dealers to solicit offers by certain specified
institutions to purchase such Offered Debt Securities from the
Company at the initial public offering price set forth in such
Prospectus Supplement pursuant to delayed delivery contracts
providing for payment and delivery on a specified date in the
future. Such contracts will be subject to those conditions set
forth in such Prospectus Supplement, and such Prospectus
Supplement will set forth the commission payable for solicitation
of such contracts.
Agents, underwriters and dealers may be entitled under
agreements entered into with the Company to indemnification by
the Company against certain civil liabilities, including certain
liabilities under the Securities Act of 1933, as amended, or to
contribution by the Company with respect to payments which such
agents, underwriters and dealers may be required to make in
respect thereof.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
S.E.C. Filing Fees............................ $165,518
Printing and Engraving Expenses*.............. 55,000
Accounting Fees and Expenses*................. 60,000
Legal Fees and Expenses*
Reid & Priest, LLP....................... 205,000
Stryker, Tams & Dill (N.J. Counsel)...... 15,000
Winthrop, Stimson, Putnam & Roberts...... 143,500**
Blue Sky Fees and Expenses*................... 7,500
Fees and Expenses of Trustee*................. 35,000
Rating Agency Fees*........................... 105,000
Miscellaneous*................................ 10,000
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Total Expenses*.......................... $801,518
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* Estimated.
** In the case of certain underwritten offerings of a new series
of Debentures, fees and expenses are to be paid by the
underwriters.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
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 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. The 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 14A:3-5(2)(a) and 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 14A:3-5(2) and 14A:3-5(3) or in
defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and,
unless ordered by a court, under subsection 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 14A:3-5(2) or
subsection 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 14A:3-5(4) or permitted under
subsections 14A:3-5(2), 14A:3-5(3) and 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 14A:3-5(2) and 14A:3-5(3) and shall award
indemnification to the extent required under
subsection 14A:3-5(4), notwithstanding any contrary
determination which may have been made under
subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent
authorized by, and subject to the provisions of,
subsection 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 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 16. Exhibits.
Exhibit
Number Description of Exhibits
------ -----------------------
1(a) - Form of Proposal and Purchase Agreement.
1(b) - Form of Sales Agency and/or Distribution
Agreement.
*4(a)(1) - Indenture dated as October 15, 1974, between the
Company and The Bank of New York (formerly Irving
Trust Company) (Exhibit 2(b), File No. 2-51796).
*4(a)(2) - Third Supplemental Indenture dated as of December
1, 1982 to Indenture dated as of October 15, 1974,
between the Company and The Bank of New York
(formerly Irving Trust Company) (Exhibit 4(a)(4)
in File No. 33-49401).
*4(a)(3) - 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)(11)
in File No. 33-49401).
*4(a)(4) - 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(a)(12)
in File No. 33-49401).
*4(a)(5) - 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(a)(13)
in File No. 33-49401).
*4(a)(6) - 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(a)(7) - 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).
4(b) - Form of Supplemental Indenture.
4(c) - Forms of New Debt Securities.
5(a) - Opinion of Reid & Priest LLP, Counsel for the
Company.
5(b) - Opinion of Stryker, Tams & Dill, New Jersey
Counsel for the Company.
12 - Computation of Ratio of Earnings to Fixed Charges.
23(a) - The consent of Price Waterhouse LLP.
23(b) - The consents of Reid & Priest LLP and
Stryker, Tams & Dill are contained in their
opinions filed as Exhibit 5(a) and
Exhibit 5(b), respectively, to this
Registration Statement.
23(c) - Consent of Ralph E. Davis Associates, Inc.
24 - The Power of Attorney is contained on the
signature page of this Registration Statement.
25 - Form T-1 Statement of Eligibility under the Trust
Indenture Act of 1939, as amended, of The Bank of
New York.
-----------------------------
* Incorporated herein by reference as indicated.
ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease
in volume of securities offered (if the total dollar
value of securities offered would not exceed that which
was registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement; and
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii)
do not apply if the registration statement is on Form S-3,
Form S-8 or Form F-3, and the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed with or furnished to
the Commission by the registrant pursuant to Section 13 or
15(d) of the Exchange Act that are incorporated by reference
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 Exchange Act that is incorporated by
reference in the registration statement shall be deemed to
be a new registration statement relating to the securities
offered herein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering
thereof.
(b) 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, or otherwise, the
registrant has been advised that in the opinion of the Commission
such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Securities Act of 1933, and will be governed by the final
adjudication of such issue.
<PAGE>
POWER OF ATTORNEY
EACH DIRECTOR AND/OR OFFICER OF THE REGISTRANT WHOSE
SIGNATURE APPEARS BELOW HEREBY APPOINTS THE AGENTS FOR SERVICE
NAMED IN THIS REGISTRATION STATEMENT, 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
COMMISSION, ANY AND ALL AMENDMENTS, INCLUDING POST-EFFECTIVE
AMENDMENTS, TO THIS REGISTRATION STATEMENT, AND THE REGISTRANT
HEREBY ALSO APPOINTS EACH SUCH AGENT FOR SERVICE AS ITS ATTORNEY-
IN-FACT WITH THE AUTHORITY TO SIGN AND FILE ANY SUCH AMENDMENTS
IN ITS NAME AND BEHALF.
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 BUFFALO, STATE OF NEW YORK, ON THE 15th DAY OF MAY.
NATIONAL FUEL GAS COMPANY
By: /s/ B.J. Kennedy
------------------------------------
B.J. Kennedy
(Chairman of the Board,
President and Chief Executive Officer)
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 DATE INDICATED.
Signature Title Date
--------- ---- ----
/s/ B.J. Kennedy Chairman of the Board, May 15, 1996
------------------------- President and Chief
B.J. KENNEDY Executive Officer and
(CHAIRMAN OF THE BOARD, Director
PRESIDENT AND
CHIEF EXECUTIVE OFFICER)
/s/ P.C. Ackerman Senior Vice President, May 15, 1996
------------------------ Principal Financial
P.C. ACKERMAN Officer and Director
(SENIOR VICE PRESIDENT)
/s/ J.P. Pawlowski Treasurer and Principal May 15, 1996
------------------------ Accounting Officer
J.P. PAWLOWSKI
(TREASURER)
/s/ R.T. Brady
------------------------ Director May 15, 1996
R.T. BRADY
/s/ D.N. Campbell
----------------------- Director May 15, 1996
D.N. CAMPBELL
/s/ W.J. Hill Director May 15, 1996
-----------------------
W.J. HILL
/s/ L.F. Kahl Director May 15, 1996
-----------------------
L.F. KAHL
/s/ B.S. Lee Director May 15, 1996
-----------------------
B.S. LEE
/s/ E.T. Mann Director May 15, 1996
-----------------------
E.T. MANN
/s/ L. Rochwarger Director May 15, 1996
-----------------------
L. ROCHWARGER
/s/ G.H. SCHOFIELD Director May 15, 1996
-----------------------
G.H. SCHOFIELD
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
--------
1(a) - Form of Proposal and Purchase Agreement.
1(b) - Form of Sales Agency and/or Distribution Agreement.
*4(a)(1) - Indenture dated as October 15, 1974, between the
Company and The Bank of New York (formerly Irving
Trust Company) (Exhibit 2(b), File No. 2-51796).
*4(a)(2) - Third Supplemental Indenture dated as of December
1, 1982 to Indenture dated as of October 15, 1974,
between the Company and The Bank of New York
(formerly Irving Trust Company) (Exhibit 4(a)(4)
in File No. 33-49401).
*4(a)(3) - 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(a)(4) - 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(a)(5) - 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(a)(6) - 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(a)(7) - 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).
4(b) - Form of Supplemental Indenture.
4(c) - Forms of New Debt Securities.
5(a) - Opinion of Reid & Priest LLP, Counsel for the Company.
5(b) - Opinion of Stryker, Tams & Dill, New Jersey Counsel
for the Company.
12 - Computation of Ratio of Earnings to Fixed Charges.
23(a) - The consent of Price Waterhouse LLP.
23(b) - The consents of Reid & Priest LLP and Stryker, Tams
& Dill are contained in their opinions filed as
Exhibit 5(a) and Exhibit 5(b), respectively,
to this Registration Statement.
23(c) - Consent of Ralph E. Davis Associates, Inc.
24 - The Power of Attorney is contained on the
signature page of this Registration Statement.
25 - Form T-1 Statement of Eligibility under the
Trust Indenture Act of 1939, as amended, of
The Bank of New York.
-----------------------------------
* Incorporated by reference as indicated.
Exhibit 1(a)
NATIONAL FUEL GAS COMPANY
________________
FORM OF PROPOSAL
For the Purchase of Debentures
Amount of Debentures: $__________________________ *
Price per Debenture: _______
Stated Interest Rate: _____
*Insert principal amount of New Debentures designated by the
Company.
NATIONAL FUEL GAS COMPANY
c/o Reid & Priest LLP
40 West 57th Street
New York, New York 10019
Dear Sirs:
In response to the invitation for proposals for the
purchase of the aggregate principal amount of debentures set
forth above (New Debentures) of National Fuel Gas Company
(Company), the several persons, firms or corporations (or the
person, firm or corporation) hereinafter named (Prospective
Purchasers or the Prospective Purchaser) submit the following
proposal for the purchase of the New Debentures;
1. The stated interest rate to be borne by the New
Debentures and the price (stated as a percentage of the principal
amount thereof), exclusive of accrued interest, if any, from
_________________ to the date of delivery of and payment for the
New Debentures, to be paid to the Company shall be as set forth
above. Each of the Prospective Purchasers, severally and not
jointly, or the Prospective Purchaser, if only one, hereby offers
to purchase from the Company at such price upon the terms and
conditions set forth in the form of the attached Purchase
Agreement (Purchase Agreement) the aggregate principal amount of
New Debentures set forth opposite its name in Schedule A attached
hereto.
2. Each of the Prospective Purchasers, or the
Prospective Purchaser if only one, agrees that (a) its offer
included in this proposal shall be irrevocable until
_____________ hour[s] after the time designated by the Company as
the deadline for the receipt of proposals, on the date fixed for
the presentation hereof, unless such proposal is sooner returned
or rejected by the Company, (b) if this proposal shall be
accepted by the Company in writing, the accepted proposal and the
attached Purchase Agreement shall together thereupon become
effective without any separate execution thereof and shall
constitute the agreement between the Company and the Prospective
Purchasers, or the Prospective Purchaser if only one, and all
rights of the Company and the Prospective Purchasers, or the
Prospective Purchaser if only one, shall be determined solely in
accordance with the terms thereof, subject, however, to such
modifications therein as may be necessary as agreed upon by the
Company and the Prospective Purchasers, or the Prospective
Purchaser if only one, and (c) if this proposal shall be
accepted, it (acting, if there is more than one Prospective
Purchaser, through the Representative referred to in the
questionnaire submitted by such Prospective Purchaser) will
forthwith furnish to the Company in writing the information with
respect to any public offering of the New Debentures which is (i)
required to complete the Registration Statement (as defined in
the Purchase Agreement), (ii) required to be filed by the Company
with the Securities and Exchange Commission under the Public
Utility Holding Company Act of 1935, as amended, and (iii)
required to file the Prospectus Supplement (as defined in the
Purchase Agreement), and will furnish its written consent to the
filing of an amendment, if necessary, to the Registration
Statement reflecting the information with respect to the public
offering and related matters.
3. This proposal shall be deemed rejected by the
Company unless it shall have been accepted by the Company by
_____________ hour[s] after the time designated by the Company as
the deadline for the receipt of proposals, on the date fixed for
presentation and opening of proposals.
4. The validity and interpretation of this proposal
shall be governed by the laws of the State of New York.
5. Each of the Prospective Purchasers, or the
Prospective Purchaser if only one, acknowledges receipt of a copy
of the Prospectus, as defined in the invitation for proposals, in
respect of the New Debentures.
6. The undersigned hereby represent[s] that it or they
have been authorized by the Prospective Purchasers named in
Schedule A hereto to sign this proposal on their behalf, and to
act for them in the manner provided herein and in the attached
Purchase Agreement.
Very truly yours,
__________________________________
__________________________________
__________________________________
__________________________________
__________________________________
On behalf of and as Representative of the persons,
firms and corporations listed in Schedule A hereto.
By:_______________________________
By:
Address:
The foregoing proposal is accepted as of the date set
forth below.
NATIONAL FUEL GAS COMPANY
By:
Dated:
THIS FORM OF PROPOSAL MUST BE SIGNED AND SUBMITTED WITH SCHEDULE
A FILLED IN.
SCHEDULE A
Principal
Name of Prospective Purchaser(s) Amount
Total . . . . $
NATIONAL FUEL GAS COMPANY
PURCHASE AGREEMENT
For the Purchase of Debentures
AGREEMENT between NATIONAL FUEL GAS COMPANY (the
"Company"), a corporation organized and existing under the laws
of New Jersey, and the several Purchasers, or the Purchaser, as
the case may be, named in Schedule A to the Form of Proposal (the
"Proposal") to which this purchase agreement is attached (this
purchase agreement, together with the Proposal, are referred to
jointly herein as "this agreement" or the "Purchase Agreement").
1. Purchasers and Representative. The Company
proposes to issue and sell from time to time one or more series
of the Debentures registered under the Registration Statement
referred to in subparagraph (a) of paragraph 3 hereof (the
"Debentures"). Particular issues of the Debentures will be sold
to purchasers for resale in accordance with the terms set forth
herein and in the Proposal, and the Debentures involved in any
such offering are hereinafter referred to as the "New
Debentures". If there shall be two or more persons, firms or
corporations named in Schedule A attached to the Proposal, the
term "Purchasers" as used herein shall be deemed to mean the
several persons, firms or corporations so named (including any
substituted Purchasers under the provisions of Section 5 hereof),
and the term "Representative" as used herein shall be deemed to
mean the representative or representatives named in the
questionnaire heretofore submitted to the Company by each of the
Purchasers, who by signing the Proposal represent that it or they
have been authorized by the Purchasers to sign such Proposal on
their behalf and to act for them in the manner herein provided.
All obligations of the Purchasers hereunder are several and not
joint. If there shall be only one person, firm or corporation
named in Schedule A attached to the Proposal, the term
"Purchasers" and the term "Representative", as used herein, shall
mean such person, firm or corporation.
2. Description of New Debentures and the Indenture.
The New Debentures will be issued under an Indenture dated as of
October 15, 1974, from the Company to The Bank of New York
(formerly Irving Trust Company), as Trustee, as heretofore
supplemented and as it will be further supplemented by a
supplemental indenture relating to the New Debentures (the
Indenture, as it has been and will be so supplemented, being
herein referred to as the "Indenture" and the Supplemental
Indenture relating to the New Debentures being herein referred to
as the "Supplemental Indenture"). The aggregate principal
amount, the purchase price to be paid and certain terms of the
New Debentures are specified in the Proposal.
3. Representations and Warranties of the Company. The
Company represents and warrants to the several Purchasers that:
(a) The Company has filed [on ___________,] 1993
with the Securities and Exchange Commission
(Commission) a registration statement on Form S-3
(Registration Statement No. 333-_____), including a
prospectus, for the registration of $____________
principal amount of its Debentures under the Securities
Act of 1933, as amended (the "Securities Act"), and
such registration statement has become effective. Such
registration statement, as amended to the date hereof,
including all documents incorporated by reference into
it pursuant to Item 12 of Form S-3 is hereinafter
referred to as the "Registration Statement". The
prospectus forming a part of such Registration
Statement, as it heretofore initially became effective,
including all documents incorporated therein by
reference at that time pursuant to Item 12 of Form S-3,
is hereinafter referred to as the "Basic Prospectus".
In the event that the Basic Prospectus shall have been
amended, revised or supplemented prior to the time of
acceptance of the Proposal, or if the Company files
with the Commission any documents pursuant to Sections
13, 14 or 15 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), after the time the
Registration Statement initially became effective and
up to the time of acceptance of the Proposal, which
documents are deemed to be incorporated by reference in
the Basic Prospectus, the term "Basic Prospectus" as
used herein shall also mean such prospectus as so
amended, revised or supplemented. The Basic
Prospectus, as it shall be supplemented to reflect the
terms of offering and sale of the New Debentures by a
prospectus supplement (the "Prospectus Supplement") to
be filed with the Commission pursuant to Rule 424 under
the Securities Act ("Rule 424"), is hereinafter
referred to as the "Prospectus". The Company will not
at any time after the effectiveness of the Purchase
Agreement file any amendment to the Registration
Statement or supplement to the Prospectus of which the
Representative and Winthrop, Stimson, Putnam & Roberts,
who are acting as counsel on behalf of the several
Purchasers, shall not previously have been advised or
to which the Representative shall reasonably object in
writing, or which shall be unsatisfactory in form to
Winthrop, Stimson, Putnam & Roberts. For purposes of
the Purchase Agreement, any document which is filed
with the Commission after the effectiveness of the
Purchase Agreement and is incorporated by reference in
the Prospectus shall be deemed an amendment or a
supplement to the Prospectus and the Registration
Statement.
(b) When the Prospectus is filed with the
Commission pursuant to Rule 424 and at the closing date
(hereinafter defined), the Registration Statement and
the Prospectus, as each may then be amended or
supplemented, and the Indenture, will fully comply with
the applicable provisions of the Securities Act, the
Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the
Commission with respect thereto, or pursuant to said
rules and regulations will be deemed to comply
therewith; on the date it became effective the
Registration Statement did 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; at the time the Prospectus is filed with
the Commission pursuant to Rule 424 and on the closing
date (hereinafter defined), the Prospectus, as it may
be amended or supplemented, will not include 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, in the light
of the circumstances under which they were made, not
misleading; and on said dates the documents filed with
the Commission pursuant to the Exchange Act and
incorporated by reference in the Prospectus pursuant to
Item 12 of Form S-3 will fully comply in all material
respects with the applicable provisions of the Exchange
Act and the applicable rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus, or the Prospectus as it may be amended or
supplemented, will not contain an 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, in the light of the circumstances
under which they were made, not misleading; provided
that the foregoing representations and warranties in
this subparagraph (b) shall not apply to statements or
omissions made in reliance upon, and in accordance
with, information furnished in writing to the Company
by or through the Representative on behalf of any
Purchaser for use in connection with the preparation of
the Registration Statement or the Prospectus, as they
may be amended or supplemented, or to any statements in
or omissions from the statement of eligibility on Form
T-1, or amendments or supplements thereto, of the
Trustee under the Indenture.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof
will not result in a breach of any of the terms or
provisions of, or constitute a default under, any
agreement or instrument to which the Company or any of
its subsidiaries is now a party.
4. Purchase and Sale; Public Offering. On the basis
of the representations and warranties herein contained, but
subject to the terms and conditions in this agreement set forth,
the Company agrees to sell to each of the several Purchasers
named in Schedule A attached to the Proposal, severally and not
jointly, and each such Purchaser agrees, severally and not
jointly, to purchase from the Company, the principal amount of
the New Debentures set forth in said Schedule A opposite the name
of such Purchaser, at the price shown in the Proposal plus
accrued interest thereon, if any, from ____________ to the date
of payment therefor.
Forthwith upon the effectiveness of the Purchase
Agreement, the Representative, acting on behalf of the
Purchasers, shall advise the Company whether a public offering of
the New Debentures is to be made, and, if so, shall furnish to
the Company in writing (a) the information with respect to the
proposed offering of the New Debentures and related matters which
is required to complete the Prospectus Supplement or any post-
effective amendment to the Registration Statement which may be
required and a copy of any "agreement among purchasers"; (b) a
consent to the filing of any such post-effective amendment; and
(c) such further information, if any, as may be required to be
furnished by the Company under the Public Utility Holding Company
Act of 1935, as amended (the "Holding Company Act").
5. Time and Place of Closing. Delivery of the New
Debentures and payment therefor by certified or official bank
check or checks, in New York Clearing House Funds, shall be made
at the offices of Reid & Priest LLP, 40 West 57th Street, New
York, New York, in each case at 10 A.M., New York Time, on a date
which is three business days after the date on which the Proposal
is accepted by the Company, or at such other time as shall be
agreed upon in writing by the Company and the Representative (in
each case subject to postponement as provided below in this
paragraph 5). The hour and date of such delivery and payment are
herein called the "closing date". Certificates for the New
Debentures shall be delivered to the Representative for the
respective accounts of the Purchasers in fully registered form in
such names and authorized denominations as may be specified in
writing by the Representative to the Company at least one
business day prior to the closing date. For the purpose of
expediting the checking of the certificates for the New
Debentures by the Representative, the Company agrees to make the
certificates for the New Debentures available to the
Representative for such purpose, at least by 12 Noon, New York
Time, on the last business day preceding the closing date, at the
offices of The Bank of New York, 101 Barclay Street, 21 West, New
York, New York, or such other place as may be agreed upon by the
Company and the Representative.
If one or more Purchasers shall default in its or their
obligation to purchase and pay for the principal amount of New
Debentures which such Purchasers have agreed to purchase under
this agreement and if the principal amount of New Debentures
which all Purchasers so defaulting shall have agreed to purchase
does not exceed 10% of the aggregate principal amount of New
Debentures to be purchased, the non-defaulting Purchasers shall
have the right and are obligated severally to take up and pay for
(in addition to the principal amount of New Debentures set forth
opposite their respective names in Schedule A attached to the
Proposal) the principal amount of New Debentures agreed to be
purchased by all such defaulting Purchasers in the respective
proportions which the principal amount set forth opposite the
names of such non-defaulting Purchasers in said Schedule A bears
to the aggregate principal amount as set forth opposite the names
of all such non-defaulting Purchasers. In such event, the
Representative for the accounts of the several non-defaulting
Purchasers may also take up and pay for all or any part of such
additional principal amount of New Debentures to be purchased by
each Purchaser under this paragraph 5 and may postpone the
closing date for a period of time not exceeding two (2) full
business days.
If one or more Purchasers shall for any reason
permitted hereunder cancel its or their obligation to purchase
hereunder, or if one or more Purchasers shall fail to take up and
pay for the principal amount of New Debentures which such
Purchasers have agreed to purchase under this agreement and if
the principal amount of New Debentures which all such Purchasers
shall have agreed to purchase exceeds 10% of the aggregate
principal amount of New Debentures to be purchased, the remaining
Purchasers shall have the right, but not the obligation, either
to take up and pay for (in such proportions as may be agreed upon
among them), or to substitute another Purchaser or Purchasers
satisfactory to the Company to take up and pay for, the principal
amount of New Debentures which the canceling or defaulting
Purchaser or Purchasers agreed but failed to purchase. In the
event that said remaining Purchasers shall not take up and pay
for all said principal amount of New Debentures or substitute
another Purchaser or Purchasers as aforesaid within 24 hours
after such cancellation or failure, the Company shall have the
right during an additional period of 24 hours to find another
Purchaser or Purchasers for said principal amount of New
Debentures, who shall be satisfactory to the Representative. In
any such case, either the Representative or the Company shall
have the right to postpone the closing date not more than two (2)
full business days beyond the expiration of the respective
prescribed periods in order that the necessary changes in the
Registration Statement and Prospectus and any other documents and
arrangements may be effected. If the remaining Purchasers shall
not agree to purchase and shall not procure a satisfactory party
or parties to agree to purchase such New Debentures, and if the
Company also shall not procure another party or parties to agree
to purchase such New Debentures, within the aforesaid periods,
then this Agreement shall terminate without any liability on the
part of the Company or any Purchaser (other than a Purchaser
which shall have failed or refused, otherwise than for some
reason sufficient to justify in accordance with the terms hereof
the cancellation or termination of its obligation hereunder, to
purchase and pay for the New Debentures, which such Purchaser has
agreed to purchase as provided in paragraph 4 hereof) except as
otherwise provided in paragraph 7 and subparagraph (g) of
paragraph 6 hereof.
6. Covenants of the Company. The Company agrees that:
(a) It will promptly deliver to the
Representative a sufficient number of copies of the
Registration Statement as originally filed and of all
amendments thereto so that each Purchaser may have a
copy. The Company will also deliver to the Purchasers,
through the Representative, as many copies of the
Prospectus as the Representative may reasonably request
for the purposes contemplated by the Securities Act.
(b) It will cause the Prospectus to be filed with
the Commission pursuant to Rule 424; the Company will
promptly advise the Representative of the issuance of
any stop order under the Securities Act with respect to
the Registration Statement or the institution of any
proceedings therefor of which the Company shall have
received notice, and the Company will use its best
efforts to prevent the issuance of any such stop order
and to secure the prompt removal thereof, if issued.
(c) During a period of nine months after the
Prospectus has been filed with the Commission pursuant
to Rule 424 and for as long as the Purchasers are
required by law to deliver a prospectus relating to the
New Debentures, if any event relating to or affecting
the Company or its subsidiaries or of which the Company
shall be advised in writing by the Representative shall
occur which in the Company's opinion should be set
forth in a supplement to or an amendment of the
Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing
when it is delivered to a purchaser, or if it shall be
necessary, in the Company's opinion, to amend or
supplement the Registration Statement or the Prospectus
to comply with the Securities Act, the Exchange Act or
the Trust Indenture Act, or in each case the rules and
regulations of the Commission thereunder, then it will
amend or supplement the Prospectus by either (i)
preparing and filing with the Commission and furnishing
to the Representative a reasonable number of copies of
a supplement or supplements or an amendment or
amendments to the Prospectus which will supplement or
amend the Prospectus or (ii) making an appropriate
filing pursuant to Section 13 or 14 of the Exchange
Act, which will supplement or amend the Prospectus so
that, in each case, as supplemented or amended it will
not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to
make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a
purchaser, not misleading or it will so comply;
provided that should such event relate solely to
activities of any of the Purchasers, then the
Purchasers shall assume the expense of preparing and
furnishing copies of any such amendment or supplement.
In case any Purchaser is required to deliver a
prospectus after the expiration of nine months from the
date the Prospectus was filed with the Commission
pursuant to Rule 424, the Company, upon the request of
the Representative, will furnish to the Representative,
at the expense of such Purchaser, a reasonable quantity
of a supplemented or amended prospectus or supplements
or amendments to the Prospectus complying with Section
10 of the Securities Act.
(d) It will make generally available to its
security holders, as soon as practicable, an earning
statement (which need not be audited) in reasonable
detail, covering a period of at least twelve months
beginning on the first day of the month next succeeding
the date the Prospectus is filed with the Commission
pursuant to Rule 424, which earning statement shall be
in such form, and be made generally available to
security holders in such a manner, so as to comply with
the requirements of Section 11(a) of the Securities
Act.
(e) During such period of time after the date the
Prospectus has been filed with the Commission pursuant
to Rule 424 and so long as a prospectus relating to the
New Debentures is required to be delivered under the
Securities Act, the Company will file all documents
required to be filed with the Commission pursuant to
Section 13, 14 or 15 of the Exchange Act.
(f) At any time within six months of the date
hereof, it will furnish such proper information as may
be lawfully required and otherwise cooperate in
qualifying the New Debentures for offer and sale under
the securities or blue sky laws of such jurisdictions
as the Representative may designate, provided that the
Company shall not be required to qualify as a foreign
corporation or dealer in securities or to file any
consents to service of process under the laws of any
jurisdiction or to meet other requirements deemed by
the Company to be unduly burdensome.
(g) It will, except as hereinabove and
hereinafter provided, pay all expenses in connection
with (i) the preparation and filing by it of the
Registration Statement, (ii) the issue and delivery of
the New Debentures as contemplated by the Purchase
Agreement, (iii) the qualification of the New
Debentures under the securities or blue sky laws as
aforesaid up to a maximum qualification cost to it of
$7,500, (iv) the furnishing of the opinions and
certificates referred to in paragraph 7 hereof, and (v)
the printing and delivery to the Purchasers, through
the Representative, in reasonable quantities, of copies
of the Registration Statement and the Prospectus and
any amendment or supplement thereto and of the blue sky
survey prepared by counsel for the Purchasers; and will
pay all Federal and other taxes, if any (but not
including any transfer taxes), on the issue of the New
Debentures. The Company shall not, however, be
required to pay any amount for any expenses of the
Representative or any of the Purchasers, except that,
if this agreement shall be terminated in accordance
with the provisions of paragraph 5, 7, 8 or 10 hereof,
the Company will pay the fee and disbursements of
Winthrop, Stimson, Putnam & Roberts, whose fee and
disbursements the Purchasers agree to pay in any other
event, and will reimburse the Purchasers for their
reasonable out-of-pocket expenses, in an amount not in
excess of $10,000, incurred in contemplation of the
performance of this agreement. The Company shall not
in any event be liable to any of the several Purchasers
for damages on account of loss of anticipated profits.
7. Conditions of Purchasers' Obligations. The several
obligations of the Purchasers to purchase and pay for the New
Debentures shall be subject to the performance by the Company of
its obligations to be performed hereunder prior to the closing
date and to the following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 6 P.M., New
York Time, on the first business day after the
effective date of the Purchase Agreement, or such other
time and date (no later than 6 P.M., New York Time, on
the second business day after the effective date of the
Purchase Agreement), as may be approved by the
Representative, and no stop order suspending the
effectiveness of the Registration Statement shall be in
effect at the closing date, and no proceedings for that
purpose shall be pending before, or to the knowledge of
the Company threatened by, the Commission and the
Representative shall have received prior to payment for
the New Debentures a certificate to that effect dated
the closing date and signed by the President or a Vice
President of the Company.
(b) At the closing date there shall be in full
force and effect an order of the Commission under the
Holding Company Act authorizing the issuance and sale
of the New Debentures on the terms herein set forth or
contemplated.
(c) At the closing date the Representative shall
have received from Reid & Priest LLP, counsel for the
Company, a favorable opinion (with a copy thereof for
each of the Purchasers) in form and substance
substantially as prescribed in Exhibit A hereto. If
the Prospectus relating to the New Debentures shall be
supplemented after the Prospectus shall have been filed
with the Commission pursuant to Rule 424, such opinion
shall contain changes to reflect such supplementation.
(d) At the closing date the Representative shall
have received from Stryker, Tams & Dill, New Jersey
counsel for the Company, a favorable opinion (with a
copy thereof for each of the Purchasers) in form and
substance substantially as prescribed in Exhibit B
hereto. If the Prospectus relating to the New
Debentures shall be supplemented after the Prospectus
shall have been filed with the Commission pursuant to
Rule 424, such opinion shall contain changes to reflect
such supplementation.
(e) At the closing date the Representative shall
have received from [Anna Marie Cellino], Esq., counsel
for certain of the Company's subsidiaries: National
Fuel Gas Distribution Corporation, National Fuel Gas
Supply Corporation, Seneca Resources Corporation and
__________________, a favorable opinion (with a copy
thereof for each of the Purchasers) in form and
substance substantially as prescribed in Exhibit C
hereto. If the Prospectus relating to the New
Debentures shall be supplemented after the Prospectus
shall have been filed with the Commission pursuant to
Rule 424, such opinion shall contain changes to reflect
such supplementation.
(f) At the closing date the Representative shall
have received from Winthrop, Stimson, Putnam & Roberts,
counsel for the Purchasers, a favorable opinion (with a
copy thereof for each of the Purchasers) in form and
substance substantially as prescribed in Exhibit D
hereto. If the Prospectus relating to the New
Debentures shall be supplemented after the Prospectus
shall have been filed with the Commission pursuant to
Rule 424, such opinion shall contain changes to reflect
such supplementation.
(g) At the closing date the Representative shall
have received from Price Waterhouse LLP a letter (with
a conformed copy thereof for each of the Purchasers),
dated the closing date, to the effect that (i) they are
independent accountants with respect to the Company and
its subsidiaries within the meaning of the Securities
Act and the applicable published rules and regulations
thereunder, (ii) in their opinion, the financial
statements of the Company and its subsidiaries audited
by them and included or incorporated by reference in
the Prospectus comply as to form in all material
respects with the applicable accounting requirements of
the Exchange Act and the published rules and
regulations thereunder, (iii) on the basis of (1)
performing procedures as specified by the American
Institute of Certified Public Accountants for a review
of interim financial information as described in
Statement on Auditing Standard No. 71, Interim
Financial Information, on the unaudited consolidated
balance sheets and the unaudited consolidated
statements of income and earnings reinvested in the
business and of cash flows of the Company incorporated
by reference in the Registration Statement and included
in the Company's quarterly reports on Form 10-Q filed
by the Company with the Commission under the Exchange
Act, (2) a reading of the minutes of meetings of the
Board of Directors, the pro-tempore committee thereof
and shareholders of the Company and its subsidiaries
since the close of the most recent audited fiscal year
as set forth in the minute books through a specified
date, and (3) making inquiries of certain officials of
the Company and its subsidiaries who have
responsibility for financial and accounting matters (it
being understood that the foregoing procedures do not
constitute an audit made in accordance with generally
accepted auditing standards and they would not
necessarily reveal matters of significance with respect
to the comments made in such letter, and accordingly
that Price Waterhouse LLP make no representation as to
the sufficiency of such procedures for the Agents'
purposes), nothing has come to their attention that
caused them to believe that (A) the unaudited financial
statements of the Company included in or incorporated
by reference in the Registration Statement and the
Prospectus do not comply as to form in all material
respects with the accounting requirements of the
Securities Act or the Exchange Act and the published
rules and regulations thereunder or that any material
modifications should be made to said unaudited
consolidated financial statements included in or
incorporated by reference in the Registration Statement
and the Prospectus for them to be in conformity with
generally accepted accounting principles, or (B) at the
date of the latest available financial statements of
the Company, if any, and at a subsequent date not more
than five days prior to the date of such letter, there
was any change in the common stock or long-term debt of
the Company and its subsidiaries, or any decrease in
total common stock equity or net assets of the Company
and its subsidiaries (other than as occasioned by the
declaration of regular dividends), as compared with
amounts shown in the most recent consolidated balance
sheet included in or incorporated by reference in the
Registration Statement and the Prospectus, except in
all instances for such changes or decreases that the
Registration Statement and the Prospectus disclose have
occurred or may occur, or that are described in such
letter and (iv) such other matters as the
Representative may reasonably request.
(h) Except as reflected in or contemplated by the
Registration Statement and Prospectus, as they may be
amended or supplemented (in accordance with paragraph
3(a) hereof), since the respective dates as of which
information is given in the Registration Statement and
Prospectus, as they may be amended or supplemented (in
accordance with paragraph 3(a) hereof), there shall
have been no material adverse change in the business,
property or financial condition of the Company and its
subsidiaries and since such dates there shall have been
no material transaction entered into by the Company or
its subsidiaries, other than transactions contemplated
by the Registration Statement and Prospectus, as they
may be amended or supplemented (in accordance with
paragraph 3(a) hereof), and transactions in the
ordinary course of business, and the Representative
shall have received prior to payment for the New
Debentures a certificate to that effect dated the
closing date and signed by the President or a Vice
President of the Company.
(i) All legal proceedings taken or to be taken in
connection with the issuance and sale of the New
Debentures shall have been satisfactory in form and
substance to Winthrop, Stimson, Putnam & Roberts.
(j) At the closing date, the Representative shall
have received a certificate of the President or a Vice
President of the Company, dated the closing date, to
the effect that the representations and warranties of
the Company in this Purchase Agreement are true and
correct in all material respects as of the closing
date.
In case any of the conditions specified above in this
paragraph 7 shall not have been fulfilled, this agreement may be
terminated by the Representative or by the Purchasers (which may
include the Representative) which have agreed to purchase in the
aggregate fifty percent or more of the principal amount of the
New Debentures upon delivery of written notice thereof to the
Company. Any such termination shall be without liability of any
party to any other party except as otherwise provided in
subparagraph (g) of paragraph 6 hereof.
8. Conditions of Company's Obligations. The
obligations of the Company hereunder shall be subject to the
following conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424 prior to 6 P.M., New
York Time, on the first business day after the
effective date of the Purchase Agreement, or such other
time and date (no later than 6 P.M. New York Time, on
the second business day after the effective date of the
Purchase Agreement) as may be approved by the Company,
and no stop order suspending the effectiveness of the
Registration Statement shall be in effect at the
closing date, and no proceeding for that purpose shall
be pending before, or threatened by, the Commission on
such date.
(b) On the closing date there shall be in full
force and effect an order or orders of the Commission
under the Holding Company Act authorizing the issuance
and sale of the New Debentures on the terms herein set
forth or contemplated, and containing no provision
unacceptable to the Company by reason of the fact that
it is materially adverse to the Company (it being
understood that no order in effect as of the date of
the acceptance of the Proposal contains any such
unacceptable provision).
In case any of the conditions specified above in this
paragraph 8 shall not have been fulfilled, this agreement may be
terminated by the Company upon delivery of written notice thereof
to the Representative. Any such termination shall be without
liability of any party to any other party except as otherwise
provided in subparagraph (g) of paragraph 6 hereof.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and
hold harmless each Purchaser, its officers, directors,
employees, agents and each person who controls any
Purchaser within the meaning of Section 15 of the
Securities Act from and against any and all losses,
claims, damages or liabilities, joint or several, to
which they or any of them may become subject under the
Securities Act or any other statute or common law and
to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter
provided, reasonable counsel fees) incurred by them in
connection with investigating any such losses, claims,
damages or liabilities or in connection with defending
any actions, insofar as such losses, claims, damages,
liabilities, expenses or actions arise out of or are
based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the
Registration Statement, as amended or supplemented (if
any amendments or supplements thereto shall have been
furnished), or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any
preliminary prospectus (if such preliminary prospectus
is used prior to the effective date of the Registration
Statement), in the Basic Prospectus (if used prior to
the date that the Prospectus is filed with the
Commission pursuant to Rule 424), or the Prospectus, or
the omission or alleged omission to state therein a
material fact necessary in order to make the statements
therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that
the indemnity agreement contained in this paragraph
shall not apply to any such losses, claims, damages,
liabilities, expenses or actions arising out of, or
based upon, any such untrue statement or alleged untrue
statement, or any such omission or alleged omission, if
such statement or omission was made in reliance upon,
and in accordance with information furnished in writing
to the Company by or through the Representative on
behalf of any Purchaser for use in connection with the
Registration Statement or the Prospectus or any
amendment or supplement to either thereof; and provided
further, that the indemnity agreement contained in this
paragraph shall not inure to the benefit of any
Purchaser (or of any person controlling such Purchaser)
on account of any such losses, claims, damages,
liabilities, expenses or actions arising from the sale
of New Debentures to any person if such Purchaser
failed to send or give to such person (i) with or prior
to the written confirmation of the sale involved, a
copy of the Prospectus (exclusive of any document
incorporated by reference) as amended or supplemented
at the time of such confirmation (exclusive for this
purpose of any amendment or supplement relating to a
subsequent offering of the Company's Debentures that
are not included in the New Debentures), and (ii) with
or prior to the delivery of such New Debentures to such
person, a copy of any amendment or supplement to the
Prospectus (exclusive of any document incorporated by
reference) which shall have been furnished subsequent
to such written confirmation and prior to the delivery
of such New Debentures to such person and, in either
case, the alleged omission or alleged untrue statement
was corrected in the Prospectus as amended or
supplemented or the amendment or supplement to the
Prospectus which shall have been so furnished. The
indemnity agreement of the Company contained in this
subparagraph (a) and the representations and warranties
of the Company contained in paragraph 3 hereof shall
remain operative and in full force and effect,
regardless of any investigation made by or on behalf of
any Purchaser or any such controlling person, and shall
survive the delivery of the New Debentures.
(b) Each Purchaser agrees to indemnify, defend
and hold harmless the Company, its officers, directors,
employees, agents, each other Purchaser, and each
person who controls any thereof within the meaning of
Section 15 of the Securities Act from and against any
and all losses, claims, damages, or liabilities, joint
or several, to which they or any of them may become
subject under the Securities Act or any other statute
or common law and to reimburse each of them for any
legal or other expenses (including, to the extent
hereinafter provided, reasonable counsel fees) incurred
by them in connection with investigating any such
losses, claims, damages or liabilities or in connection
with defending any actions, insofar as such losses,
claims, damages, liabilities, expenses or actions arise
out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained
in the Registration Statement or the Prospectus, as
amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the
omission or alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading, if such statement or omission was made in
reliance upon, and in accordance with, information
furnished in writing to the Company by or through the
Representative on behalf of such Purchaser for use in
connection with the Registration Statement or the
Prospectus or any amendment or supplement to either
thereof. The indemnity agreement of the respective
Purchasers contained in this subparagraph (b) shall
remain operative and in full force and effect,
regardless of any investigation made by or on behalf of
the Company, its officers or directors, or any such
Purchaser or any such controlling person, and shall
survive the delivery of the New Debentures.
(c) The Company and the several Purchasers each
agree that upon the receipt of notice of the
commencement of any action and upon receipt of a
complaint or other first legal process giving
information as to the nature and basis of the claim in
any action against it or any person controlling it as
aforesaid or, in the case of the Company, against any
of its officers or directors in respect of which
indemnity may be sought on account of any indemnity
agreement contained herein, it will promptly give
written notice thereof to the party or parties against
whom indemnity shall be sought hereunder, but the
omission so to notify such indemnifying party or
parties of any such action shall not relieve such
indemnifying party or parties from any liability on
account of such indemnity agreement except to the
extent that it has been prejudiced in any material
respect by such omission or from any liability it or
they may have to the indemnified party otherwise than
on account of such indemnity agreement. In case such
notice of any such action shall be so given, such
indemnifying party shall be entitled to participate at
its own expense in the defense or, if it so elects, to
assume (in conjunction with any other indemnifying
parties) the defense of such action, in which event
such defense shall be conducted by counsel chosen by
such indemnifying party (or parties) and satisfactory
to the indemnified party or parties who shall be
defendant or defendants in such action, and such
defendant or defendants shall bear the fees and
expenses of any additional counsel retained by them;
but if the indemnifying party shall elect not to assume
the defense of such action, such indemnifying party
will reimburse each indemnified party or parties for
the reasonable fees and expenses of any counsel
retained by them; provided, however, if the defendants
in any such action include both the indemnified party
and the indemnifying party and counsel for the
indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying
party and the indemnified party or parties, the
indemnified party or parties shall have the right to
select separate counsel, satisfactory to the
indemnifying party, to participate in the defense of
such action on behalf of such indemnified party or
parties (it being understood, however, that the
indemnifying party shall not be liable for the expenses
of more than one separate counsel, including any local
counsel, representing the indemnified party or parties
who are parties to such action).
(d) If the indemnification provided for in
subsection (a) or (b) of this Section 9 is unavailable
to an indemnified party in respect of any loss,
liability, claim, damage or expense referred to
therein, then each indemnifying party under such
subsection, 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 loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect (i) the
relative benefits received by the Company and the
Purchasers from the sale of the New Debentures, (ii)
the relative fault of the Company and of the Purchasers
in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or
expense and (iii) any other relevant equitable
considerations. The relative benefits received by the
Company and the Purchasers shall be determined by
reference to the respective proportions that the net
proceeds from the sale (before deducting expenses)
received by the Company and the total discounts
received by the Purchasers, in each case as set forth
in the table on the cover of the Prospectus, bear to
the aggregate public offering price of the New
Debentures. The relative fault of the Company and the
Purchasers 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 the
Purchasers and the parties' relative intent, knowledge,
access to information and opportunity to correct or
prevent such statement or omission.
(e) The Company and the Purchasers agree that it
would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata
allocation (even if the Purchasers were treated as one
entity for such purpose) or by any other method of
allocation that does not take account of the equitable
considerations referred to in subsection (d) of this
Section 9. The amount paid or payable by an
indemnified party as a result of the loss, liability,
claim, damage and expense referred to in subsection (d)
of this Section 9 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 9, no Purchaser shall be required to
contribute any amount in excess of the amount by which
the total price at which the New Debentures purchased
by it and distributed to the public were offered to the
public exceeds the amount of any damages that such
Purchaser 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 obligation of each
Purchaser, acting severally and not jointly, to
contribute pursuant to this Section 9 shall be in the
proportion that its purchase obligation hereunder bears
to the purchase obligations of all other Purchasers.
(f) The indemnity and contribution agreements
contained in this Section 9 and the representations and
warranties of the Company contained in this Agreement
shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement,
(ii) any investigation made by or on behalf of any
Purchaser or any person controlling any Purchaser or
the Company, its officers or directors or any other
person controlling the Company and (iii) acceptance of
and payment for any of the New Debentures.
10. Termination. This agreement may be terminated at
any time prior to the expiration of 48 hours after the Prospectus
shall have been filed with the Commission pursuant to Rule 424
(but not after the initial public offering of the New Debentures
purchased hereunder by the Purchasers), by the Representative
with the consent of the Purchasers, including the Representative,
which have agreed to purchase in the aggregate 50% or more of the
principal amount of New Debentures, if, prior to such time, (i)
trading in securities on the New York Stock Exchange shall have
been generally suspended, (ii) minimum or maximum ranges for
prices shall have been generally established on the New York
Stock Exchange by the New York Stock Exchange, the Commission or
other governmental authority, or (iii) a general banking
moratorium shall have been declared by federal or New York State
authorities. This agreement also may be terminated at any time
prior to the closing date, by the Representative with the consent
of the Purchasers, including the Representative, which have
agreed to purchase in the aggregate 50% or more of the principal
amount of New Debentures, if, prior to such time, any amendment
or supplement to the Registration Statement or Prospectus shall
have been filed to which the Representative has reasonably
objected in writing in accordance with subparagraph (a) of
paragraph 3 hereof.
Any termination of this agreement pursuant to this
paragraph 10 shall be without liability of any party to any other
party except as otherwise provided in subparagraph (g) of
paragraph 6 hereof.
11. Miscellaneous. THE VALIDITY AND INTERPRETATION OF
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK. This Agreement may be
executed in counterparts and the executed counterparts shall
together constitute a single instrument. This agreement shall
inure to the benefit of the Company, the several Purchasers and,
with respect to the provisions of paragraph 9 hereof, each person
referred to in such paragraph 9, and their respective successors
and personal representatives. Nothing in this agreement is
intended or shall be construed to give any other person, firm or
corporation any legal or equitable right, remedy or claim under
or in respect of this agreement or any provision herein
contained. The term "successor" as used in this agreement shall
not include any purchaser, as such purchaser, of any of the New
Debentures from any of the several Purchasers.
12. Notices. All communications hereunder shall be in
writing and if to the Purchasers shall be mailed or delivered to
the Representative at the appropriate address set forth in the
Proposal, or, if to the Company, shall be mailed or delivered to
it for the attention of Mr. Philip C. Ackerman, Senior Vice
President, 10 Lafayette Square, Buffalo, N.Y. 14203, with a copy
thereof to Robert J. Reger, Jr., Esq., Reid & Priest LLP, 40 West
57th Street, New York, N.Y. 10019.
Exhibit A
[LETTERHEAD OF REID & PRIEST LLP]
_____________
As the several Purchasers named in the Purchase Agreement
effective ____________ among such Purchasers and National Fuel
Gas Company ("Purchase Agreement").
Ladies and Gentlemen:
We have acted as counsel for National Fuel Gas Company
("Company") in connection with the issuance and sale on the date
hereof of $___________ in aggregate principal amount of its
_______% Debentures, Series due ______________ ("Debentures"),
issued under the Company's Indenture, dated as of October 15,
1974, to The Bank of New York (formerly Irving Trust Company)
("Trustee"), as Trustee, as amended and supplemented, the latest
such supplement being the _________ Supplemental Indenture, dated
as of __________ (said Indenture, as so amended and supplemented,
being hereinafter called the "Indenture").
We have examined the Registration Statement on Form S-3
(File No. 333-[_____]) filed by the Company under the Securities
Act of 1933, as amended (the "Act"), as it became effective under
the Act ("Registration Statement"); the Company's Prospectus
dated [______________], as supplemented by the Prospectus
Supplement dated [________________] (such Prospectus, as so
supplemented, the "Prospectus"), filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and
Exchange Commission ("Commission") under the Act, which pursuant
to Form S-3 incorporates or is deemed to incorporate by reference
the Annual Report on Form 10-K of the Company for the fiscal year
ended September 30, 199[_] (the "Annual Report"), the Quarterly
Report[s] for Form 10-Q of the Company for the quarterly period
ended [______________] and the Current Reports on Form 8-K of the
Company dated [_________________] (collectively, the "Exchange
Act Documents"), each as filed under the Securities Exchange Act
of 1934, as amended (the "Exchange Act"); and the Indenture. In
addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the
Debentures, of which we have examined a specimen), and upon
originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents
and other instruments and such certificates or comparable
documents of public officials and of officers and representatives
of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a
basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
With respect to legal matters governed by the laws of
the State of New Jersey, including matters relating to the due
incorporation of the Company, we understand that you are relying
upon the opinion of Stryker, Tams & Dill, New Jersey counsel for
the Company, dated the date hereof and addressed to you, which is
being furnished to you in connection with your purchase of the
Debentures. We do not pass upon the incorporation of the
Company. With respect to certain other legal matters relating to
the Company and to the due incorporation of, and various other
matters relating to, certain subsidiaries of the Company, we
understand that you are relying upon the opinion of [Anna Marie
Cellino], Esq., counsel for the Company and such subsidiaries,
dated the date hereof and addressed to you, which is being
furnished to you in connection with your purchase of the
Debentures.
Based upon the foregoing and subject to the
qualifications and limitations stated herein, we hereby advise
you that in our opinion:
1. The Company has full power and authority to execute
the Indenture and the Indenture has been duly authorized,
executed and delivered by the Company, has been duly
qualified under the Trust Indenture Act of 1939, as amended
("Trust Indenture Act"), and assuming due authorization,
execution and delivery thereof by the Trustee, constitutes a
valid and legally binding instrument enforceable against the
Company in accordance with its terms, subject as to
enforceability to (i) bankruptcy, insolvency,
reorganization, fraudulent transfer, fraudulent conveyance,
moratorium or other similar laws affecting the enforcement
of creditors' rights and remedies, and (ii) the application
of general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), including, without limitation (x) the possible
unavailability of specific performance, injunctive relief or
any other remedy, and (y) concepts of materiality,
reasonableness, good faith, fair dealing and equitable
subordination.
2. The Debentures have been duly authorized, executed
and issued by the Company and, assuming due authentication
thereof by the Trustee and upon payment and delivery in
accordance with the Purchase Agreement and subject to the
qualifications in paragraph 1 above, will constitute valid
and legal binding obligations of the Company enforceable
against the Company in accordance with their terms and
entitled to the benefits of the Indenture.
3. The Registration Statement has become and is
effective under the Act; and to the best of our knowledge,
no proceedings for a stop order with respect thereto are
pending or threatened under Section 8 of the Act.
4. The statements made in the Prospectus under
"Description of the New Debt Securities and the Indenture"
and "Description of the Offered Debentures and the
Indenture," insofar as they purport to constitute summaries
of the terms of the documents referred to therein that have
been executed and delivered on or before the date hereof,
constitute accurate summaries of the terms of such documents
in all material respects.
5. An appropriate order of the Commission under the
Public Utility Holding Company Act of 1935, which is
required for the valid issuance and sale of Debentures under
the Purchase Agreement, has been obtained; to the best of
our knowledge, said order is in full force and effect; and
no authorization of any other public authority is required
(other than in connection or compliance with the provisions
of the "blue sky" laws of any jurisdiction) for the valid
issuance and sale of the Debentures by the Company under the
Purchase Agreement.
6. The Purchase Agreement has been duly authorized,
executed and delivered by the Company.
7. The Company is in good standing under the laws of
the State of New York.
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph 4 above. In the course of the
preparation by the Company of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and
employees, with other counsel for the Company, with
representatives of Price Waterhouse LLP, the Company's
independent accountants, and with your representatives. We did
not prepare the Exchange Act Documents; however, we did review
the Annual Report prior to its filing with the Commission. Based
on our examination of the Registration Statement, the Prospectus
and the Exchange Act Documents, our investigations made in
connection with the preparation of the Registration Statement and
the Prospectus (excluding the Exchange Act Documents) and our
participation in the conferences referred to above, (i) we are of
the opinion that the Registration Statement, as of its effective
date, and the Prospectus, as of the date it was filed under Rule
424(b) of the rules and regulations of the Commission under the
Act, complied as to form in all material respects with the
requirements of the Act and the Trust Indenture Act and the
applicable rules and regulations of the Commission thereunder and
that the Exchange Act Documents complied as to form when filed in
all material respects with the requirements of the Exchange Act
and the applicable rules and regulations of the Commission
thereunder, except that in each case we express no opinion with
respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the
Registration Statement, the Prospectus or the Exchange Act
Documents, and (ii) we have no reason to believe that the
Registration Statement, as of its effective date [(including the
Exchange Act Documents on file with the Commission on such
effective date)], contained any untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus [(including the Exchange Act
Documents)], as of the date hereof, includes any untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to
the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and
we do not express any opinion herein concerning any law other
than the law of the State of New York, the Federal law of the
United States and, to the extent set forth herein, the laws of
the State of New Jersey. Insofar as the opinions expressed
herein relate to or are dependent upon matters governed by the
laws of the State of New Jersey, we have relied upon the opinion
of Stryker, Tams & Dill referred to above.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written
consent.
Very truly yours,
REID & PRIEST LLP
Exhibit B
[LETTERHEAD OF STRYKER, TAMS & DILL]
_______________
As Purchasers of $_________
aggregate principal amount of ___%
Debentures, Series due _____ under
the Purchase Agreement dated _____
between National Fuel Gas Company and
the Purchasers
Ladies and Gentlemen:
Referring to the issuance by National Fuel Gas Company
("National") of $____________ aggregate principal amount
of______% Debentures, Series due ___________ (the "Debentures")
issued under the Indenture dated as of October 15, 1974, between
National and The Bank of New York (formerly "Irving Trust
Company"), as Trustee (the "Trustee"), as amended and
supplemented, the latest such supplement being the _________
Supplemental Indenture dated as of __________ (as so
supplemented, the "Indenture") and the sale of the Debentures to
you, we advise you as follows:
We have been New Jersey counsel for National for many
years and have examined certified copies of its Restated
Certificate of Incorporation and each amendment and supplement
thereof to date (as amended and supplemented, the "Restated
Charter"), together with the original corporate records in
connection with the incorporation of National. We have also
examined a certified copy of its By-Laws, as amended to date (as
amended, the "By-Laws"). We have reviewed the minutes of (i) the
meeting of the Board of Directors of National held on ________,
199 , and (ii) the meeting of the pro-tempore committee of the
Board of Directors of National held on ____________, 199 , and
have examined certified copies of the resolutions adopted at
those meetings.
We have examined the Registration Statement of National
on Form S-3 relating to the Debentures (No. 333- ______) and the
Prospectus (including the Prospectus Supplement dated _________
which forms a part of such Registration Statement), each as
amended and supplemented to date, and either a signed or a
certified copy of the order of the Securities and Exchange
Commission with respect to such Registration Statement. Said
Registration Statement is hereinafter referred to as the
"Registration Statement," and such Prospectus is hereinafter
called the "Prospectus."
We have also examined the offering documents used in
connection with the sale of the Debentures, including the Form of
Proposal and the form of Purchase Agreement attached thereto (the
"Purchase Agreement").
In addition, we have examined and, as to matters of
fact, have relied upon the documents delivered to you at the
closing (including, without limitation, the Certificate of
Officers of National evidencing compliance with Sections 6.05 and
15.03 of the Indenture; BUT EXCLUDING the Debentures, of which we
have examined a specimen) and upon originals or copies, certified
or otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of National, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter expressed.
Based upon the foregoing and upon such examination of
law as we have deemed necessary in order to give this opinion, it
is our opinion that:
1. National was duly incorporated and is validly
existing as a corporation under the laws of the State of New
Jersey, and is authorized by such laws and its Restated
Charter to carry on its current business.
2. The Indenture has been duly authorized, executed
and delivered by National and, insofar as New Jersey law
applies and assuming due authorization, execution and
delivery thereof by the Trustee, is legally valid and
binding upon National in accordance with its terms, except
as limited by (x) bankruptcy, insolvency, reorganization,
fraudulent transfer, fraudulent conveyance, moratorium, or
other similar laws of general application relating to or
affecting creditors' rights and remedies and (y) general
principles of equity (whether such enforceability is
considered in a proceeding in equity or at law), including,
without limitation, the possible unavailability of specific
performance, injunctive relief or any other equitable remedy
and the concepts of materiality, commercial reasonableness,
good faith, fair dealing and equitable subordination.
3. The Debentures have been duly authorized and are in
proper form and, insofar as New Jersey law applies, when
duly authenticated and delivered by the Trustee in
accordance with the provisions of the Indenture and paid for
by the purchasers thereof as contemplated by the Purchase
Agreement and subject to the qualifications in paragraph 2
above, will be duly issued by, and will constitute legal,
valid and binding obligations of, National and will be
entitled to the benefits provided by the Indenture.
4. The use of facsimile signatures of officers of
National upon the Debentures has been duly authorized and is
valid under the laws of the State of New Jersey (assuming
that the Debentures have been authenticated by the Trustee,
which fact we have not verified by an inspection of the
Debentures).
5. The Purchase Agreement has been duly authorized,
executed and delivered by National, and does not contravene
the Restated Charter or By-Laws of National.
We have read the opinions of even date herewith,
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and we concur in the legal conclusions
expressed therein insofar as those conclusions involve questions
of New Jersey law.
A copy of this opinion is being delivered to each of
Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts who, in
their respective opinions to you of even date herewith, are
entitled to rely upon the opinions expressed herein concerning
matters of New Jersey law to the same extent as if this opinion
had been addressed to each of them.
Very truly yours,
STRYKER, TAMS & DILL
Exhibit C
[Letterhead of Anna Marie Cellino]
_______________________
The Purchasers named in the Purchase
Agreement effective ________________
among such Purchasers and
National Fuel Gas Company
(the "Purchase Agreement").
Ladies and Gentlemen:
Please refer to the prospectus dated __________, as
supplemented by the prospectus supplement dated _________ of
National Fuel Gas Company ("Company"), relating to $____________
principal amount of ______% Debentures, Series due ___________
("Debentures"), of the Company ("Prospectus"). I have served as
counsel for the Company and National Fuel Gas Distribution
Corporation ("Distribution"), National Fuel Gas Supply
Corporation ("Supply") and Seneca Resources Corporation
("Seneca"), all of which (the "Subsidiaries") are wholly-owned
subsidiaries of the Company. I am familiar with the legal
aspects of real property acquisitions in the State of New York
and the Commonwealth of Pennsylvania by the Subsidiaries. I am
also familiar with the litigation to which the Subsidiaries are
parties, with their respective corporate records and with the
minutes of their respective Boards of Directors.
Based upon the foregoing, I am of the opinion that:
1. Supply and Seneca have been duly incorporated and
are now validly existing as corporations in good standing
under the laws of the Commonwealth of Pennsylvania.
2. Distribution has been duly incorporated and is now
validly existing as a corporation in good standing under the
laws of the State of New York.
3. Each of the Subsidiaries has full corporate power
to conduct the business now being conducted by it as set
forth in or incorporated by reference into the Prospectus
and is duly qualified to do business as a foreign
corporation in and is in good standing under the laws of
each other state in which such qualification is legally
required.
4. Methods used in connection with investigating title
to properties, or interests therein, owned by each of the
Subsidiaries in the State of New York and the Commonwealth
of Pennsylvania are consistent with good practice and
established methods used by prudent companies engaged in
similar businesses and are adequately designed to provide
for the acquisition of such titles or interests.
Substantially all of the properties now owned by the
Subsidiaries in the State of New York and the Commonwealth
of Pennsylvania have been held by Subsidiaries of the
Company for a number of years without any unfavorable
adjudicated claim.
5. Except as set forth in or incorporated by reference
into the Prospectus, the only litigation to which any of the
Subsidiaries is a party is of a character incidental to its
business and does not involve an amount not covered by
insurance which is material in relation to the business of
the Company and its Subsidiaries as a whole.
6. Of the Company and the Subsidiaries, only
Distribution carries on a public utility business in the
State of New York or the Commonwealth of Pennsylvania.
Distribution holds franchises which I consider to be
adequate and sufficient to permit it to engage in the
business which it presently conducts, and there is no
pending litigation concerning its rights to render services
under any such franchise.
7. The consummation of the transactions contemplated
by the Purchase Agreement and the fulfillment of the terms
thereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company
pursuant to, (i) the Restated Certificate of Incorporation
and each amendment and supplement thereof to date or the By-
Laws, as amended to date, or any contract, agreement or
other instrument to which the Company is a party or by which
it may be bound or (ii) any laws, order, rule or regulation
applicable to the Company of any court or any federal or
state governmental body having jurisdiction over the Company
or its properties.
Very truly yours,
Anna Marie Cellino
Exhibit D
[LETTERHEAD OF WINTHROP, STIMSON, PUTNAM & ROBERTS]
_____________
[Purchasers]
As the several Purchasers named in the Purchase Agreement
effective [ ] among such Purchasers and National Fuel Gas
Company (the "Purchase Agreement")
Ladies and Gentlemen:
We have acted as your counsel in connection with the
issuance and sale on the date hereof by National Fuel Gas Company
(the "Company") of $___________ aggregate principal amount
of______% Debentures, Series due __________ (the "Debentures"),
issued under the Company's Indenture, dated as of October 15,
1974, to The Bank of New York (formerly Irving Trust Company)
(the "Trustee"), as amended and supplemented, the latest such
supplement being the _________ Supplemental Indenture dated as of
________ (said Indenture, as so amended and supplemented, the
"Indenture").
We have examined the Company's Registration Statement
on Form S-3 (File No. 333-[_______]) filed by the Company under
the Securities Act of 1933, as amended (the "Act"), as it became
effective under the Act (the "Registration Statement"); the
Company's Prospectus dated [_______], as supplemented by the
Prospectus Supplement dated ___________________ (such Prospectus,
as so supplemented, the "Prospectus"), filed by the Company
pursuant to Rule 424(b) of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the
Act, which pursuant to Form S-3 under the Act incorporates or is
deemed to incorporate by reference the Annual Report on Form 10-K
of the Company for the fiscal year ended September 30, 199[ ]
(the "Annual Report"), the Quarterly Report[s] on Form 10-Q of
the Company for the quarterly period[s] ended
[____________________] and the Current Reports on Form 8-K of the
Company dated [__________] (collectively, the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); and the Indenture. In
addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the
Debentures, of which we have examined a specimen), and upon
originals or copies, certified or otherwise identified to our
satisfaction, of such corporate records, agreements, documents
and other instruments and such certificates or comparable
documents of public officials and of officers and representatives
of the Company, and have made such other and further
investigations, as we have deemed relevant and necessary as a
basis for this opinion.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
With respect to legal matters governed by the laws of
the State of New Jersey, including matters relating to the due
incorporation of the Company, we understand that you are relying
upon the opinion of Stryker, Tams & Dill, New Jersey counsel for
the Company, dated the date hereof and addressed to you, which is
being furnished to you in connection with your purchase of the
Debentures. We do not pass upon the incorporation and
qualification to do business of the Company. With respect to
certain other legal matters relating to the Company and to the
due incorporation of, and various other matters relating to,
certain subsidiaries of the Company, we understand that you are
relying upon the opinion of [Anna Marie Cellino], Esq., counsel
for the Company and such subsidiaries, dated the date hereof and
addressed to you, which is being furnished to you in connection
with your purchase of the Debentures.
Based upon the foregoing and subject to the
qualifications and limitations stated herein, we hereby advise
you that in our opinion:
(a) The Company has full power and authority to
execute the Indenture and the Indenture has been duly
authorized, executed and delivered by the Company, has
been duly qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and,
assuming due authorization, execution and delivery
thereof by the Trustee, constitutes a valid and legally
binding instrument enforceable against the Company in
accordance with its terms, except as the same may be
limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other laws
relating to or affecting creditors' rights generally,
by general equity principles (regardless of whether
such enforceability is considered in a proceeding in
equity or at law), or by an implied covenant of good
faith and fair dealing.
(b) The statements made in the Prospectus under
"Description of the New Debt Securities and the
Indenture" and "Description of the Offered Debentures
and the Indenture," insofar as they purport to
constitute summaries of the terms of the documents
referred to therein, constitute accurate summaries of
the terms of such documents in all material respects.
(c) The Debentures have been duly authorized,
executed and issued by the Company and, assuming due
authentication thereof by the Trustee and upon payment
and delivery in accordance with the Purchase Agreement
and subject to the qualifications in paragraph (a)
above, will constitute valid and legally binding
obligations of the Company enforceable against the
Company in accordance with their terms and entitled to
the benefit of the Indenture.
(d) The Purchase Agreement has been duly
authorized, executed and delivered by the Company.
(e) The Commission has issued an appropriate
order under the Public Utility Holding Company Act of
1935, as amended, with respect to the issuance and sale
of the Debentures; such order is sufficient for the
issuance and sale of the Debentures; the issuance and
sale of the Debentures are in conformity with the terms
of such order; and no other approval or consent of any
Federal or New Jersey governmental body is required for
the issuance and sale of the Debentures to you or the
carrying out by the Company of the provisions of the
Purchase Agreement.
We have not independently verified the accuracy,
completeness of fairness of the statements made or included in
the Registration Statement, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph (b) above. In the course of
the preparation by the Company of the Registration Statement and
the Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and
employees, with counsel for the Company, with representatives of
Price Waterhouse LLP, the Company's independent accountants, and
with your representatives. We did not prepare the Exchange Act
Documents; however, we did review a draft of the Annual Report
prior to its filing with the Commission. Based on our
examination of the Registration Statement, the Prospectus and the
Exchange Act Documents, our investigations made in connection
with the preparation of the Registration Statement and the
Prospectus (excluding the Exchange Act Documents) and our
participation in the conferences referred to above, (i) we are of
the opinion that the Registration Statement, as of the date it
was declared effective by the Commission, and the Prospectus, as
of the date it was filed under Rule 424(b) of the rules and
regulations of the Commission under the Act, complied as to form
in all material respects with the requirements of the Act and the
Trust Indenture Act and the applicable rules and regulations of
the Commission under such Acts and that the Exchange Act
Documents complied as to form when filed in all material respects
with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except that
in each case we express no opinion with respect to the financial
statements or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the
Prospectus or the Exchange Act Documents, and (ii) we have no
reason to believe that the Registration Statement, as of the date
it was declared effective by the Commission [(including the
Exchange Act Documents on file with the Commission on such
effective date)], contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading or that the Prospectus [(including the Exchange Act
Documents)], as of the date hereof, includes an untrue statement
of a material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, except
that in each case we express no opinion or belief with respect to
the financial statements or other financial or statistical data
contained or incorporated by reference in the Registration
Statement, the Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and
we do not express any opinion herein concerning any law other
than the law of the State of New York, the Federal law of the
United States of America and, to the extent set forth herein, the
laws of the State of New Jersey. Insofar as the opinions
expressed herein relate to or are dependent upon matters governed
by the laws of the State of New Jersey, we have relied upon the
opinion of Stryker, Tams & Dill referred to above.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation, without our prior written
consent.
Very truly yours,
WINTHROP, STIMSON, PUTNAM & ROBERTS
Exhibit 1(b)
NATIONAL FUEL GAS COMPANY
Medium-Term Notes, Series -----------
Due from Nine Months to 40 Years
from Date of Issue
Distribution Agreement
---------------, 199-
Ladies and Gentlemen:
The undersigned, National Fuel Gas Company, a New
Jersey corporation (the "Company"), hereby confirms its agreement
with each of you acting directly (individually, an "Agent" and,
collectively, the "Agents"), as follows:
1. Appointment of Agents.
(a) The Company has authorized by appropriate
corporate action and proposes to issue and sell in the manner
contemplated by this Agreement not to exceed the amount of
Registered Securities (as defined in Section 3(a) hereof)
registered pursuant to the Registration Statement (as defined in
Section 3(a) hereof) reduced by the aggregate amount of any
Registered Securities sold otherwise than pursuant to this
Agreement (the "Securities").
(b) Subject to the terms and conditions stated in
this Agreement, the Company hereby appoints each of you as its
agent for the purpose of offering and selling the Securities.
The Company reserves the right to sell the Securities on its own
behalf directly to investors and, from time to time, to appoint
additional agents to sell the Securities, provided that (i) the
Company shall furnish the Agents with reasonable advance
notification of the addition of any agent to sell the Securities,
(ii) each such additional agent shall be required to execute an
agreement in form and substance substantially similar to this
Agreement and (iii) the commission paid to any additional agent
does not exceed that percentage specified in Exhibit B hereto of
the aggregate principal amount of such Securities sold by the
Company. This Agreement also provides, as may from time to time
be agreed to by the Company and any Agent or Agents, for the sale
of Securities by the Company directly to such Agent or Agents as
principal for resale to investors pursuant to a Terms Agreement
(as defined in Section 11 hereof) in accordance with the
provisions of Section 11 hereof. The foregoing shall not be
construed to prevent the Company from selling at any time any
Registered Securities in a firm commitment underwriting pursuant
to an underwriting agreement that does not provide for a
continuous offering of such Registered Securities.
(c) On the basis of the representations,
warranties, covenants and agreements of the Company contained
herein, and on the terms and conditions herein set forth, each
Agent agrees, as agent of the Company, to use its reasonable best
efforts when requested by the Company to solicit offers to
purchase the Securities upon the terms and conditions set forth
in the Prospectus (as defined in Section 3(a) hereof) and the
Administrative Procedures attached hereto as Exhibit A, as they
may be amended from time to time (the "Procedures"), it being
understood that the Company shall not approve the solicitation of
purchases of Securities in excess of the amount that shall be
authorized by the Company from time to time; provided, however,
that each Agent in its sole discretion can suspend from time to
time its efforts in offering for sale, and soliciting purchases
of, the Securities. In any transaction where an Agent has acted
as agent of the Company and has not purchased as principal, the
Agent will make reasonable efforts to obtain performance by each
purchaser of Securities from the Company, but the Agent will not
have any liability to the Company in the event any such purchase
is not consummated for any reason. Such Agent will communicate
to the Company, orally or in writing, each offer to purchase
Securities, other than those offers rejected by such Agent. Each
Agent shall have the right, in its discretion reasonably
exercised, to reject any proposed purchase of Securities, in
whole or in part, and any such rejection shall not be deemed a
breach of such Agent's agreement contained herein; provided,
however, that each Agent shall not reject any proposed purchase
of Securities that would provide at that time the lowest cost of
funds during any period when the Company has requested
solicitations of Securities with terms comparable to those of the
Securities proposed to be purchased. The Company may accept or
reject any proposed purchase of the Securities, in whole or in
part.
(d) Administrative procedures relating to the
offer and sale of the Securities, the issue and delivery of
certificates representing the Securities and payment for the
Securities are set forth in the Procedures. Each Agent and the
Company agree to perform the respective duties and obligations to
be performed by each of them as provided in the Procedures. The
Procedures may be amended only by a written agreement of the
Company and the Agents. The Agents agree that the principal
amount of Securities to be offered and sold from time to time,
the prices, the interest rates or the method, if any, of
determining such interest rates, the maturities, redemption
provisions, if any, and other terms at which the Securities are
to be offered and sold will be in compliance with limitations
established by the Company with the Agents in accordance with the
Procedures.
(e) Promptly upon each Settlement Date (as
defined in Section 4 hereof), the Company will pay the applicable
Agent a commission, in the form of a discount, equal to the
applicable percentage of the principal amount of the Securities
sold by the Company as a result of such Agent's services in
acting as agent of the Company in the sale of such Securities in
accordance with the schedule set forth in Exhibit B hereto. The
Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Securities through the Agents,
as agents, commencing at any time for any period of time or
permanently. Upon receipt of instructions from the Company, the
Agents will forthwith suspend solicitation of purchases of the
Securities from the Company until such time as the Company has
advised the Agents that such solicitation may be resumed.
2. Description of Securities.
The Securities will be a series of debt securities
issued by the Company under an Indenture, dated as of October 15,
1974, to The Bank of New York (formerly Irving Trust Company), as
Trustee (the "Trustee"), as heretofore supplemented and as
supplemented by a supplemental indenture or indentures relating
to the Securities (the "Supplemental Indenture") in substantially
the form heretofore delivered to the Agents. The Indenture as it
has been and will be so supplemented is hereinafter called the
"Indenture."
The Securities shall have the series designation,
maturities, interest rates or the method, if any, of determining
such interest rates, redemption provisions, if any, and other
terms set forth in the Prospectus. The Securities will be
issued, and the terms thereof established, from time to time by
the Company in accordance with the Indenture and the Procedures.
Except as may be otherwise provided in the Prospectus, the
Securities will be issued in denominations of $1,000 or any
amount in excess thereof that is an integral multiple of $1,000.
3. Representations and Warranties of the Company.
The Company represents and warrants to each Agent that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") (i) a registration
statement on Form S-3 (No. 33-49401) for the registration of
$350,000,000 principal amount of its debt securities (of which
$330,000,000 principal amount have been previously issued) and
(ii) a registration statement on Form S-3 (No. 333- ), the
latter registration statement including a combined prospectus,
for the registration of $480,000,000 principal amount of its debt
securities, in each case including the Securities (the
"Registered Securities") under the Securities Act of 1933, as
amended (the "Securities Act"), and such registration statements
have been declared effective by the Commission. Such
registration statements, as each initially became effective and
as each may have been further amended at the particular time
referred to, including the documents incorporated or deemed to be
incorporated by reference therein pursuant to Item 12 of Form S-3
under the Securities Act (the "Incorporated Documents"), are
hereinafter referred to as the "Registration Statement" and the
latter registration statement (No. 333----------) is hereinafter
referred to as the "1996 Registration Statement". For purposes
of this Agreement, references to the "effective date" shall be
deemed to mean the respective effective date of each such
registration statement. The Company has filed or will file with
the Commission pursuant to the applicable paragraph of Rule 424
under the Securities Act a supplement to the form of combined
prospectus included in the 1996 Registration Statement relating
to the Securities and the plan of distribution thereof (the
"Prospectus Supplement"). In connection with the sale of the
Securities, the Company proposes to file with the Commission
pursuant to the applicable paragraph of Rule 424 under the
Securities Act further supplements to any such Prospectus
Supplement specifying the purchase prices, interest rates or the
method, if any, of determining such interest rates, maturity
dates and, if appropriate, other terms of the Securities agreed
upon by the Company and the applicable Agent sold pursuant hereto
or the offering thereof (each, a "Pricing Supplement").
References to the "Prospectus" at a particular time shall mean
the prospectus which is part of the Registration Statement at the
time it was originally declared effective and as it may have been
amended or supplemented at the particular time referred to,
including all Incorporated Documents. For purposes of this
Agreement, any document that is filed with the Commission and
incorporated or deemed to be incorporated by reference pursuant
to Item 12 of Form S-3 after the Registration Statement has
become effective shall be deemed an amendment or supplement to
the Registration Statement and the Prospectus.
(b) (i) At the date of this Agreement, the
Registration Statement, the Prospectus and the Indenture comply
in all material respects with the applicable provisions of the
Securities Act, the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and in each case the rules and
regulations of the Commission thereunder, or pursuant to said
rules and regulations have been or will be deemed to comply
therewith; (ii) at the time the Registration Statement became
effective, at the date of this Agreement and at each time
thereafter that the Registration Statement or the Prospectus
shall be amended or supplemented, neither the Registration
Statement nor the Prospectus contained, contains or will contain
an untrue statement of a material fact, or omitted, omits or will
omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
(iii) the Incorporated Documents, when filed, complied, comply or
will comply in all material respects with the applicable
provisions of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and the rules and regulations of the
Commission thereunder, and, when read together with the
Prospectus, did not contain, do not contain and will not contain
an 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, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
foregoing representations and warranties in this subsection (b)
shall not apply to statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by any Agent for use in connection with the preparation
of the Registration Statement or the Prospectus, or to any
statements in or omissions from the Statement of Eligibility on
Form T-1, or amendments or supplements thereto, of the Trustee
under the Trust Indenture Act.
(c) The consummation of the transactions herein
contemplated and the fulfillment of the terms hereof will not
result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property
or assets of the Company pursuant to, (i) the Company's Restated
Certificate of Incorporation or By-Laws, each as amended, or any
indenture, mortgage, deed of trust or other agreement or
instrument to which the Company or any of its Subsidiaries (as
defined in Section 3(g) hereof) is now a party and (ii) any
order, rule or regulation applicable to the Company of any court
or any federal or state governmental body having jurisdiction
over the Company or its properties.
(d) The summary of the terms of the Securities
contained in the Registration Statement and the Prospectus fairly
and accurately summarizes the provisions thereof required to be
summarized by the registration statement form.
(e) The financial statements incorporated by
reference in the Registration Statement and the Prospectus
present fairly the financial position of the Company and its
consolidated subsidiaries as at the dates indicated and the
results of their operations for the periods specified; except as
otherwise stated in the Registration Statement and the
Prospectus, such financial statements have been prepared in
conformity with generally accepted accounting principles applied
on a consistent basis; and the supporting schedules incorporated
by reference in the Registration Statement and the Prospectus
present fairly the information required to be stated therein.
(f) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws
of New Jersey with corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus; and the Company is duly qualified as
a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to
so qualify would not have a material adverse effect on the
condition, financial or otherwise, the earnings, or business
affairs of the Company and its subsidiaries considered as one
enterprise.
(g) Each of National Fuel Gas Distribution
Corporation, National Fuel Gas Supply Corporation and Seneca
Resources Corporation is a subsidiary of the Company (each, a
"Subsidiary" and together the "Subsidiaries"), has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not have a material
adverse effect on the condition, financial and otherwise, the
earnings, or business affairs of the Company and its subsidiaries
considered as one enterprise; all of the issued and outstanding
capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned
by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance or
claim.
(h) No authorization, approval or consent of any
court or governmental authority or agency (including the Federal
Energy Regulatory Commission) is necessary in connection with the
sale of the Securities hereunder, except such as may be required
under the Securities Act, the rules and regulations of the
Commission thereunder, the Trust Indenture Act, the Public
Utility Holding Company Act of 1935, as amended (the "Holding
Company Act"), or state securities or Blue Sky laws.
(i) Any certificate signed by any officer of the
Company and delivered to any Agent or to Counsel for the Agents
in connection with an offering of or the sale of Securities to
any Agent as principal shall be deemed a representation and
warranty by the Company to such Agent as to the matters covered
thereby on the date of such certificate and at each date referred
to in Section 8(a) hereof subsequent thereto.
(j) Since the most recent date as of which
information is given in the Registration Statement or the
Prospectus, there has not been any material adverse change in the
business, properties or financial condition of the Company,
except as reflected in or contemplated by the Registration
Statement and Prospectus, as they may be amended or supplemented,
and since such dates, there has not been any material transaction
entered into by the Company other than transactions disclosed by
the Registration Statement and the Prospectus, as they may be
amended or supplemented, and transactions in the ordinary course
of business.
4. Settlement.
Delivery of Securities in fully registered form shall
be made (a) in the case of Securities sold through any Agent as
agent, in accordance with the Procedures and by the Company to
such Agent for the account of any purchaser only against payment
therefor in immediately available funds and (b) in the case of
Securities sold to an Agent or Agents as principal pursuant to a
Terms Agreement, as agreed to between the Company and such Agent
or Agents as set forth in such Terms Agreement against payment of
funds to the Company of the net amount due to the Company in
respect of such Securities by the method and in the form set
forth in such Terms Agreement; provided, however, that if such
Terms Agreement does not contain such settlement details, the
settlement details specified in the Procedures shall apply with
such Agent or Agents filling the roles specified therein of both
the Agent and the purchaser. In the event that a purchaser shall
fail either to accept delivery of or to make payment for any
Securities on the date fixed for settlement, the applicable Agent
shall promptly notify the Company and deliver such Securities to
the Company and, if such Agent has theretofore paid the Company
for such Securities, the Company will promptly return such funds
to such Agent. If such failure occurred for any reason other
than default by such Agent in the performance of its obligations
hereunder, the Company will reimburse such Agent for its loss of
the use of the funds for the period such funds were credited to
the Company's account. The date of each delivery of Securities
(whether through any Agent as agent or to any Agent as principal)
sold against delivery to the Company of funds in payment therefor
is herein called the "Settlement Date."
5. Obligations of Agents.
Each Agent agrees that in carrying out the transactions
contemplated by this Agreement, it will observe and comply with
all securities or Blue Sky laws, regulations, rules and
ordinances in any jurisdiction in which the Securities may be
offered, sold or delivered applicable to it as Agent hereunder.
Each Agent agrees not to cause any advertisement of the
Securities to be published in any newspaper or periodical or
posted in any public place and not to publicly issue any circular
relating to the Securities other than the Prospectus, except in
any such case with the express consent of the Company.
6. Covenants of the Company.
The Company agrees:
(a) So long as this Agreement remains in effect,
(i) not to file any amendment to the Registration Statement or
supplement to the Prospectus (other than amendments and
supplements relating to the issuance and sale by the Company of
Registered Securities other than the Securities or Pricing
Supplements) unless the Company has furnished the Agents through
Winthrop, Stimson, Putnam & Roberts, or such other firm as shall
be designated by the Company and reasonably satisfactory to the
Agents, who is acting as counsel for the Agents ("Counsel for the
Agents"), copies of such proposed amendment or supplement for its
review prior to such filing and Counsel for the Agents shall not
reasonably object thereto; (ii) to cause each amendment or
supplement to the Prospectus (including each Pricing Supplement,
but other than any Incorporated Document) to be filed with the
Commission pursuant to the applicable paragraph of Rule 424 under
the Securities Act within the time period required thereby and
will provide evidence satisfactory to Counsel for the Agents of
such filing; (iii) to advise the Agents (A) when any amendment to
the Registration Statement, other than any Incorporated Document,
has become effective or any supplement to the Prospectus has been
filed, (B) of any request by the Commission for any amendment of
the Registration Statement or the Prospectus or for any
additional information with respect to the Registration Statement
or the Prospectus, (C) of the issuance by the Commission of any
"stop order" suspending the effectiveness of the Registration
Statement or the institution, or advice from the Commission that
it is considering the institution, of any proceeding for that
purpose, and (D) of the receipt by the Company of any
notification with respect to the suspension of the qualification
of the Securities for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose; and (iv) to
use its best efforts to prevent the issuance of any such "stop
order" or notification and, if issued or any such action is
commenced, to obtain as soon as possible the withdrawal thereof.
(b) To furnish such proper information as may be
lawfully required and otherwise cooperate in qualifying the
Securities for offer and sale under the Blue Sky laws of such
jurisdictions as the Agents may designate, provided that the
Company shall not be required to qualify as a foreign corporation
or dealer in securities, or to file any general consents to
service of process, under the laws of any jurisdictions.
(c) To furnish to each of the Agents and Counsel
for the Agents one signed copy of the Registration Statement and
of each amendment to the Registration Statement (including all
exhibits except those incorporated by reference), or if such
signed copy is not available, one conformed copy of the
Registration Statement and of each amendment to the Registration
Statement, and, so long as this Agreement remains in effect, as
soon as practicable after the Registration Statement and each
amendment thereto becomes effective, and as soon as practicable
after each supplement to the Prospectus has been filed, as many
copies of the Prospectus as then amended or supplemented as the
Agents may reasonably request for the purposes contemplated by
the Securities Act.
(d) To file all reports, and amendments thereto,
required to be filed by the Company with the Commission pursuant
to Section 13, 14 or 15(d) of the Exchange Act subsequent to the
effective date of the Registration Statement and during the
period the Prospectus is required to be delivered by the
Securities Act and to deliver to the Agents without charge
promptly after the filing thereof as many copies of each such
report and amendment (excluding exhibits) as the Agents may
reasonably request.
(e) To deliver to the Agents, so long as this
Agreement shall remain in effect, as promptly as possible copies
of any published reports of the Company to its security holders,
including any annual report and quarterly reports of the Company,
and any other financial reports made generally available to its
security holders.
(f) If such a statement is not included in a
quarterly report of the Company to its security holders, to make
generally available to its security holders once in each calendar
quarter, commencing with the quarter beginning after the date of
this Agreement and ending with the first calendar quarter after
the quarter which ends twelve consecutive months after the end of
the calendar quarter in which the last sale of Securities
effected pursuant hereto occurs, an earnings statement (which
need not be audited) covering a period of twelve consecutive
months ending at the close of the next preceding calendar
quarter, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act.
(g) If, during the period that this Agreement
remains in effect and at any time thereafter when delivery of the
Prospectus shall, in the opinion of Counsel for the Agents, be
required by the Securities Act in connection with the sale of any
of the Securities, any event relating to or affecting the Company
or any of its subsidiaries, or of which the Company shall be
advised in writing by any Agent, occurs as a result of which, in
the Company's opinion, the Prospectus as then amended and
supplemented would include an untrue statement of material fact
or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary, in the
Company's opinion, to amend or supplement the Registration
Statement or the Prospectus to comply with the Securities Act,
the Exchange Act or the Trust Indenture Act, or in each case the
rules and regulations of the Commission thereunder, then the
Company will forthwith (i) instruct each Agent promptly to
suspend offers for sale and solicitations of purchases of the
Securities in such Agent's capacity as agent and, subject to
Section 7 hereof, to suspend sales of any Securities such Agent
may then own as principal pursuant to a Terms Agreement, and
promptly after the receipt of such notice the Agents will suspend
offers for sale and solicitations of purchases of the Securities
and cease using the Prospectus, (ii) prepare and file with the
Commission, subject to Section 6(a) hereof, an amendment or
supplement to the Registration Statement or the Prospectus that
will correct such statement or omission or effect such
compliance, (iii) supply, at the Company's expense, any
supplemented Prospectus to each of the Agents in such quantities
as reasonably requested and (iv) advise the Agents when they may
resume offers for sale, and solicitations of purchases, of the
Securities; provided, however, that the Company shall not be
required to comply with the provisions of this Section 6(g) if at
any time (A) each Agent shall have suspended at such time
solicitation of purchases of the Securities in its capacity as
agent pursuant to instructions from the Company, (B) each Agent
shall not at such time hold any Securities as principal purchased
pursuant to a Terms Agreement with the intention of reselling
them and (C) no offer to purchase any of the Securities shall
have been accepted by the Company at such time without the
delivery to the purchaser or such purchaser's agent of the
Securities relating thereto having occurred; and provided
further, however, that should such event relate solely to the
activities of any of the Agents, then such Agent shall assume the
expense of preparing and furnishing copies of any such amendment
or supplement.
(h) To pay all expenses, fees and taxes (but not
including any transfer taxes) in connection with (i) except as
provided in Section 6(g) hereof, the preparation, filing,
printing and delivery of copies of the Registration Statement and
the Prospectus and in each case amendments and supplements
thereto, including in each case all documents incorporated by
reference therein, and this Agreement, (ii) the preparation,
printing, issue and delivery of the Securities, including any
fees and expenses relating to the use of Securities issued in
book-entry form, (iii) the qualification for offer and sale of
the Securities under state securities laws as provided in Section
6(b) hereof, including filing fees and the reasonable fees and
disbursements of Counsel for the Agents (such counsel fees not to
exceed $7,500) in connection therewith and in connection with the
preparation of any Blue Sky survey, (iv) the preparation,
execution and delivery of the Supplemental Indenture, (v) the
furnishing of the opinions of counsel for the Company and its
subsidiaries and certificates of the Company, (vi) the delivery
by the Agents of the Prospectus and any amendments or supplements
thereto in connection with the solicitations or confirmations of
sales of the Securities, (vii) any fees charged by rating
agencies for the rating of the Securities, (viii) any advertising
and other out-of-pocket expenses of the Agents incurred with the
approval of the Company and (ix) the fees and disbursements of
the Company's counsel and accountants and of the Trustee and its
counsel. The Company also agrees to pay or reimburse the Agents
for the reasonable fees and expenses of Counsel for the Agents
for their continuing advice and services in connection with the
transactions contemplated hereby.
(i) Promptly after the execution of this
Agreement, to reimburse Counsel for the Agents for their
reasonable fees and expenses in connection with the
implementation of the program for the offer and sale of the
Securities as contemplated hereby.
(j) The Company shall not use or authorize the
use of any Prospectus containing the name of any Agent in
connection with sales of Registered Securities through any agent
of the Company other than an Agent, unless the name of such agent
is contained in the Prospectus (including any Pricing
Supplement).
7. Conditions of Agents' Obligations
The obligations of each Agent to act and continue to
act as agent hereunder and any obligation of any Agent to
purchase Securities pursuant to a Terms Agreement shall be
subject to the accuracy of the representations and warranties
made herein on the part of the Company at the date of this
Agreement, when any amendment or supplement to the Prospectus is
filed with the Commission and any Settlement Date (in each case
with the same effect as though made at such time), to the
performance by the Company of all of its obligations to be
performed hereunder, and to the following additional conditions:
(a) If filing of the Prospectus, or any
supplement thereto, is required pursuant to Rule 424 under the
Securities Act, the Prospectus and any such supplement shall have
been filed in the manner and within the time period required by
such Rule; no stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
that purpose shall be pending or threatened by the Commission;
and at the date of this Agreement an appropriate order or orders
of the Commission under the Holding Company Act relating to the
issue and sale of the Securities shall be in full force and
effect.
(b) At the date of this Agreement, the Agents
shall have received from Reid & Priest LLP, counsel for the
Company, Stryker, Tams & Dill, New Jersey counsel for the
Company, [Anna Marie Cellino], counsel for the Subsidiaries, and
Winthrop, Stimson, Putnam & Roberts, Counsel for the Agents,
opinions in substantially the form and substance prescribed in
Annexes A, B, C and D, respectively, hereto, with such changes
therein as may be agreed upon by the Company and the Agents, with
the approval of Counsel for the Agents.
(c) At the date of this Agreement, the Agents
shall have received from Price Waterhouse LLP a letter to the
effect that (i) they are independent accountants with respect to
the Company and its subsidiaries within the meaning of the
Securities Act and the applicable published rules and regulations
thereunder; (ii) in their opinion, the consolidated financial
statements of the Company and its subsidiaries audited by them
and incorporated by reference in the Registration Statement and
the Prospectus comply as to form in all material respects with
the applicable accounting requirements of the Securities Act and
the Exchange Act and in each case the published rules and
regulations thereunder; (iii) on the basis of (1) performing
procedures as specified by the American Institute of Certified
Public Accountants for a review of interim financial information
as described in Statement on Auditing Standard No. 71, Interim
Financial Information, on the unaudited consolidated balance
sheets and the unaudited consolidated statements of income and
earnings reinvested in the business and of cash flows of the
Company incorporated by reference in the Registration Statement
and included in the Company's quarterly reports on Form 10-Q
filed by the Company with the Commission under Section 13 of the
Exchange Act, (2) a reading of the minutes of meetings of the
Board of Directors, the pro-tempore committee thereof and
shareholders of the Company and its subsidiaries since the close
of the most recent audited fiscal year as set forth in the minute
books through a specified date, and (3) making inquiries of
certain officials of the Company and its subsidiaries who have
responsibility for financial and accounting matters (it being
understood that the foregoing procedures do not constitute an
audit made in accordance with generally accepted auditing
standards and they would not necessarily reveal matters of
significance with respect to the comments made in such letter,
and accordingly that Price Waterhouse LLP makes no representation
as to the sufficiency of such procedures for the Agents'
purposes), nothing has come to their attention that caused them
to believe that (A) the unaudited consolidated financial
statements of the Company included in or incorporated by
reference in the Registration Statement and the Prospectus do not
comply as to form in all material respects with the accounting
requirements of the Exchange Act and the published rules and
regulations thereunder or that any material modifications should
be made to said unaudited consolidated financial statements
included in or incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles, or (B) at the date of
the latest available financial statements of the Company, if any,
and at a subsequent date not more than five days prior to the
date of such letter, there was any change in the common stock or
long-term debt of the Company and its subsidiaries, or any
decrease in total common stock equity or net assets of the
Company and its subsidiaries (other than as occasioned by the
declaration of regular dividends), as compared with amounts shown
in the most recent consolidated balance sheet included in or
incorporated by reference in the Registration Statement and the
Prospectus, except in all instances for such changes or decreases
that the Registration Statement and the Prospectus disclose have
occurred or may occur, or that are described in such letter and
(iv) they have carried out certain procedures and made certain
findings, as specified in such letter, with respect to certain
amounts included in the Prospectus and Exhibit 12 to the 1996
Registration Statement and such other items as the Agents may
reasonably request.
(d) At the date of this Agreement, the Agents
shall have received from the Company a certificate of the
Company, signed by the Chairman of the Board or the Senior Vice
President stating that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all material
respects on and as of the date hereof with the same effect as if
made on the date hereof and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of the
Agents to solicit offers to purchase the Securities or to
purchase Securities as principal, as the case may be;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose have been instituted or, to the Company's knowledge,
threatened by the Commission; and
(iii) such signer of such certificate has
examined the Registration Statement and the Prospectus and, to
the best of such signer's knowledge, (A) the Registration
Statement does not contain any untrue statement of a material
fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, (B) the Prospectus does not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading and (C) since the effective date
of the Registration Statement, there has not occurred any event
required to be set forth in the Prospectus that has not been so
set forth.
(e) All legal proceedings to be taken in
connection with the issuance and sale of the Securities shall
have been satisfactory in form and substance to Counsel for the
Agents.
In case any of the conditions specified above in this
Section 7 shall not have been fulfilled when and as required to
be fulfilled, this Agreement (or, at the option of any Agent,
acting as principal, any applicable Terms Agreement) may be
terminated by any Agent, insofar as this Agreement relates to
such Agent, by notice to the Company at any time and any such
termination shall be without liability of any party to any other
party, except that the covenant regarding provision of an
earnings statement set forth in Section 6(f) hereof, the
provisions set forth in Section 6(g) hereof, the provisions
concerning payment of expenses under Section 6(h) hereof, the
indemnity and contribution agreement set forth in Section 9
hereof, the provisions set forth in Section 12 hereof and the
provisions of Section 14 hereof concerning the representations,
warranties and agreements to survive delivery shall remain in
effect.
8. Further Representations, Warranties and Covenants
by the Company.
The Company represents, warrants, and covenants with
the Agents, that:
(a) Each authorization by the Company to the
Agents to offer for sale, or solicit purchases of, the Securities
as provided in the Procedures, and each delivery of Securities to
any Agent pursuant to a Terms Agreement, shall be deemed to be an
affirmation that the representations and warranties of the
Company contained in this Agreement are true and correct at the
time of such authorization, or such delivery, as the case may be,
and an undertaking that such representations and warranties will
be true and correct at the time of delivery of and payment for
Securities sold pursuant to such authorization, in each case as
though made at and as of each such time (except that such
representations and warranties shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to each such time).
(b) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented (except (i)
Pricing Supplements and supplements or amendments relating solely
to the sale of Registered Securities other than the Securities,
(ii) supplements or amendments relating to a change in the
principal amount of Securities remaining to be sold or similar
changes and (iii) Current Reports on Form 8-K (unless otherwise
requested in writing by any Agent)), the Company shall furnish or
cause to be furnished forthwith to the Agents a certificate in
form and substance satisfactory to the Agents in their reasonable
judgment to the effect that the statements contained in the
certificate referred to in Section 7(d) hereof that was last
furnished to the Agents are true and correct at the time of such
amendment or supplement or filing as though made at and as of
such time (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such time) or, in lieu of such certificate, a
certificate, in form and substance satisfactory to the Agents in
their reasonable judgment, of the same general tenor as the
certificate referred to in said Section 7(d) but modified to
relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such
certificate.
(c) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented (except (i)
Pricing Supplements, and supplements or amendments relating
solely to the sale of Registered Securities other than the
Securities, (ii) supplements or amendments relating to a change
in the principal amount of Securities remaining to be sold or
similar changes and (iii) Current Reports on Form 8-K (unless
otherwise requested in writing by the Agents)), the Company shall
furnish or cause to be furnished forthwith to the Agents written
opinions of Reid & Priest LLP, counsel for the Company, Stryker,
Tams & Dill, New Jersey counsel for the Company, or in each case
such other firm or firms as shall be designated by the Company
and reasonably satisfactory to the Agents, and counsel for the
Company's subsidiaries, dated the date of delivery thereof and in
form and substance satisfactory to Counsel for the Agents, of the
same tenor as the opinions required by paragraphs 2, 3 and 5 and
the third to last paragraph of Annex A, paragraph 3 of Annex B
and paragraph 5 of Annex C hereof but modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the date of such opinions, or, in lieu of such
opinions, each such counsel may furnish to the Agents a letter to
the effect that the Agents may rely on the last opinion delivered
by such counsel to the same extent as though it were dated the
date of such letter authorizing reliance (except that statements
in such most recent opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing
reliance).
(d) Each time that the Registration Statement or
the Prospectus shall be amended or supplemented to set forth
financial information included in or derived from the Company's
financial statements, the Company shall cause its independent
accountants to furnish to the Agents a letter, dated the date of
filing such amendment or supplement or document with the
Commission, in form and substance satisfactory to the Agents in
their reasonable judgment, of the same general tenor as the
letter referred to in Section 7(c) hereof but with appropriate
modifications to relate to the Registration Statement and the
Prospectus as amended and supplemented to the date of such letter
and as may be necessary to reflect changes in the financial
information included or incorporated by reference in the
Registration Statement and the Prospectus as then amended or
supplemented since the date of the last previous such letter
furnished to the Agents; provided, however, that no letter need
be furnished with respect to year-end audited financial
statements of the Company if copies of such audited financial
statements are delivered to the Agents.
(e) Notwithstanding the foregoing, it is agreed
that if, at any time and from time to time during the term of
this Agreement, (i) the Company should deliver to the Agents
notification of its decision to suspend any sale of Securities
hereunder and each Agent shall have suspended solicitations at
such time, (ii) each Agent shall not at such time hold any
Securities as principal pursuant to a Terms Agreement with the
intention of reselling them and (iii) no offer to purchase any of
the Securities shall have been accepted by the Company at such
time without the delivery to the purchaser or such purchaser's
agent of the Securities relating thereto having occurred, then
during the period of any such suspension or suspensions the
Company shall be relieved of its obligation to provide to the
Agents the certificates, opinions and letters required pursuant
to Sections 8(b), 8(c) and 8(d). However, whenever such a
suspension is lifted, the Company shall be required to deliver to
the Agents, prior to the resumption of any sale of Securities
hereunder, the most recent certificate, opinions and letter that
would have been required except for such suspension.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify, defend and
hold harmless each Agent, its officers, directors, employees and
agents and each person, if any, who controls such Agent within
the meaning of Section 15 of the Securities Act from and against
any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under
the Securities Act or any other statute or common law, as
incurred, and to reimburse each of them for any legal or other
expenses (including, to the extent hereinafter provided,
reasonable counsel fees) incurred by them in connection with
investigating any such losses, claims, damages or liabilities or
in connection with defending any actions, as incurred, insofar as
such losses, claims, damages, liabilities, expenses or actions
arise out of or are based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, as amended or
supplemented (if any amendments or supplements thereto shall have
been furnished), or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii)
any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus (if used prior to
the effective date of the Registration Statement), or the
omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
provided, however, that the indemnity agreement with respect to
such Agent (and its officers, directors, employees and agents and
each person, if any, who controls such Agent within the meaning
of Section 15 of the Securities Act) contained in this Section 9
shall not apply to any such losses, claims, damages, liabilities,
expenses or actions arising out of, or based upon, any such
untrue statement or alleged untrue statement, or any such
omission or alleged omission, if such statement or omission was
made in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of such
Agent, for use in connection with the preparation of the
Registration Statement or the Prospectus or any amendment or
supplement to either thereof, or arising out of, or based upon,
statements in or omissions from Exhibit 25 to the Registration
Statement which shall constitute the Statement of Eligibility on
Form T-1 of the Trustee under the Trust Indenture Act; and
provided further, that the indemnity agreement contained in this
Section 9 shall not inure to the benefit of such Agent (or of any
person controlling such Agent) on account of any such losses,
claims, damages, liabilities, expenses or actions arising from
the sale of the Securities to any person if such Agent shall have
failed to send or give to such person (unless such failure
resulted from the Company's failure to comply with clause (iii)
of Section 6(g) hereof) (i) with or prior to the written
confirmation of such sale, a copy of the Prospectus or the
Prospectus as amended or supplemented, if any amendments or
supplements thereto shall have been furnished to such Agent prior
to the time of written confirmation of the sale involved, but
exclusive of any documents incorporated or deemed to be
incorporated by reference pursuant to Item 12 of Form S-3, and
the alleged omission or alleged untrue statement was corrected in
the Prospectus as so amended or supplemented at the time of such
confirmation or (ii) with or prior to the delivery of such
Securities to such person, a copy of any amendment or supplement
to the Prospectus that shall have been furnished to such Agent
subsequent to such written confirmation and prior to the delivery
of such Securities to such person, but exclusive of any documents
incorporated by reference pursuant to Item 12 of Form S-3, and
the alleged omission or alleged untrue statement was corrected in
the Prospectus as so amended or supplemented at the time of such
delivery. The indemnity agreement of the Company contained in
this Section 9 and the representations and warranties of the
Company contained herein shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf
of the Agents or any such indemnified person, and shall survive
the delivery of, and payment for, the Securities. Each Agent
agrees promptly to notify the Company of the commencement of any
litigation or proceedings against it or any such indemnified
person in connection with the issuance and sale of the
Securities.
(b) Each Agent agrees to indemnify, defend and
hold harmless the Company, its officers, directors, employees and
agents and each person, if any, who controls the Company within
the meaning of Section 15 of the Securities Act from and against
any and all losses, claims, damages or liabilities, joint or
several, to which they or any of them may become subject under
the Securities Act or other statute or common law, as incurred,
and to reimburse each of them for any legal or other expenses
(including, to the extent hereinafter provided, reasonable
counsel fees) incurred by them in connection with investigating
any such losses, claims, damages or liabilities, or in connection
with defending any actions, as incurred, insofar as such losses,
claims, damages, liabilities, expenses or actions arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the 1996 Registration Statement
or Prospectus, as amended or supplemented (if any amendments or
supplements thereto shall have been furnished), or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, but only if such statement or omission was made in
reliance upon and in conformity with information furnished to the
Company in writing by or on behalf of such Agent, for use in
connection with the preparation of the 1996 Registration
Statement or the Prospectus or any amendment or supplement to
either thereof. The Company acknowledges that the statements set
forth in [THE AGENT'S INFORMATION LETTER LANGUAGE TO BE AGREED
UPON] constitute the only information furnished in writing by or
on behalf of the Agents for use in connection with the
preparation of the documents referred to in the foregoing
indemnity and the Agents confirm that such statements are and
will be correct. The indemnity agreement of each Agent contained
in this Section 9 shall remain operative and in full force and
effect, regardless of any investigation made by or on behalf of
the Company or any of its officers or directors or any such
controlling person, and shall survive the delivery of the
Securities. The Company agrees promptly to notify each Agent of
the commencement of any litigation or proceedings against the
Company (or any controlling person thereof) or any of its
officers or directors in connection with the issuance and sale of
the Securities.
(c) Each of the Company and the Agents shall,
upon the receipt of notice of the commencement of any action
against it, its officers, directors, employees or agents or any
person controlling the Company or any such Agent as aforesaid, in
respect of which indemnity may be sought on account of any
indemnity agreement contained herein, promptly give written
notice of the commencement thereof to the party or parties
against whom indemnity shall be sought hereunder, but the
omission so to notify such indemnifying party or parties of any
such action shall not relieve such indemnifying party or parties
from any liability on account of such indemnity agreement except
to the extent that it has been prejudiced in any material respect
by such omission or from any liability it or they may have to the
indemnified party otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so
given, such indemnifying party shall be entitled to participate
at its own expense in the defense or, if it so elects, to assume
(in conjunction with any other indemnifying parties) the defense
of such action, in which event such defense shall be conducted by
counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or
defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party shall
elect not to assume the defense of such action, such indemnifying
party will reimburse such indemnified party or parties for the
reasonable fees and expenses of any counsel retained by them;
provided, however, if the defendants in any such action include
both the indemnified party and the indemnifying party and counsel
for the indemnifying party shall have reasonably concluded that
there may be a conflict of interest involved in the
representation by such counsel of both the indemnifying party and
the indemnified party or parties, the indemnified party or
parties shall have the right to select separate counsel,
satisfactory to the indemnifying party, to participate in the
defense of such action on behalf of such indemnified party or
parties (it being understood, however, that the indemnifying
party shall not be liable for the expenses of more than one
separate counsel, including any local counsel, representing the
indemnified party or parties who are parties to such action).
(d) If the indemnification provided for in
subsection (a) or (b) of this Section 9 is unavailable to an
indemnified party in respect of any loss, liability, claim,
damage, expense or action referred to therein, then each
indemnifying party under such subsection, 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
loss, liability, claim, damage, expense or action in such
proportion as is appropriate to reflect (i) the relative benefits
received by the Company and each Agent from the offering of the
Securities, (ii) the relative fault of the Company and of each
Agent in connection with the statements or omissions that
resulted in such loss, liability, claim, damage, expense or
action, and (iii) any other relevant equitable considerations.
The relative benefits received by the Company and each Agent
shall be determined by reference to the respective proportions
that the net proceeds from the offering (before deducting
expenses) received by the Company and the total commissions
received by each Agent bear to the aggregate public offering
price of the Securities. The relative fault of the Company and
the Agent 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 the Agent and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such
statement or omission.
(e) The Company and each Agent agree that it
would not be just and equitable if contribution pursuant to this
Section 9 were determined by pro rata allocation or by any other
method of allocation that does not take account of the equitable
considerations referred to in subsection (d) of this Section 9.
The amount paid or payable by an indemnified party as a result of
the loss, liability, claim, damage, expense or action referred to
in subsection (d) of this Section 9 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. 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.
10. Termination.
(a) This Agreement (excluding any Terms
Agreement) may be terminated for any reason, at any time by
either the Company as to any Agent or by any Agent, insofar as
this Agreement relates to such Agent, upon the giving of one
business day's written notice of such termination to such Agent
or the Company, as applicable.
(b) Any Agent may terminate any Terms Agreement,
immediately upon notice to the Company, at any time since the
date of such Terms Agreement and prior to the Settlement Date
relating thereto (i) if there shall have occurred any new
outbreak of hostilities, including, but not limited to, an
escalation of hostilities that existed prior to the date of such
Terms Agreement, or other national or international calamity or
crisis the effect of which is such as to make it, in the
reasonable judgment of such Agent, impracticable to market the
Securities or enforce contracts for the sale of the Securities,
or (ii) if trading in any securities of the Company has been
suspended by the Commission or a national securities exchange, or
if trading generally on either the American Stock Exchange or the
New York Stock Exchange shall have been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by either of such
exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium shall have been declared by
either Federal or New York authorities, or (iii) if the rating
assigned by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 15c3-1 under the
Exchange Act) to any debt securities of the Company as of the
date of such Terms Agreement shall have been lowered, the effect
of which is to make it impracticable or inadvisable, in the
reasonable judgment of such Agent after discussions with the
Company, to market the Securities or (iv) if any nationally
recognized statistical rating organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities, the effect of which is to make it impracticable or
inadvisable, in the reasonable judgment of such Agent after
discussions with the Company, to market the Securities.
(c) In the event of any such termination pursuant
to subsection (a) or (b) of this Section 10, neither party will
have any liability to the other party hereto, except that (i)
each Agent shall be entitled to any commissions earned in
accordance with Section l(e) hereof, (ii) if at the time of
termination (A) such Agent shall own any Securities purchased
pursuant to a Terms Agreement with the intention of reselling
them or (B) an offer to purchase any of the Securities has been
accepted by the Company but the time of delivery to the purchaser
or such purchaser's agent of the Securities relating thereto has
not occurred, the covenants set forth in Sections 6 and 8 hereof
shall remain in effect until such Securities are so resold or
delivered, as the case may be, and (iii) the covenants set forth
in Sections 6(f), 6(g) and 6(h) hereof, the provisions of Section
7 hereof, the indemnity and contribution agreements set forth in
Section 9 hereof, and the provisions of Sections 12 and 14 hereof
shall remain in effect.
11. Purchases as Principal.
Each sale of Securities to any Agent or Agents as
principal shall be made in accordance with the terms contained
herein and pursuant to a separate agreement that will provide for
the sale of such Securities to, and the purchase and reoffering
thereof by, such Agent or Agents. Each such separate agreement
(which may be an oral agreement and confirmed in writing as
described below between such Agent or Agents and the Company) is
herein referred to as a "Terms Agreement." Unless the context
otherwise requires, each reference contained herein to "this
Agreement" shall be deemed to include any applicable Terms
Agreement between the Company and such Agent or Agents. Each
such Terms Agreement, whether oral (and confirmed in writing,
which may be by facsimile transmission) or in writing, shall be
with respect to such information (as applicable) as is specified
in Exhibit C hereto. Such Agent's or Agents' commitment to
purchase Securities pursuant to any Terms Agreement shall be
deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject
to the terms and conditions herein set forth and, in the case of
a sale of Securities pursuant to a Terms Agreement to more than
one Agent, such Agents' commitment to purchase shall be several
and not joint. Each Terms Agreement shall specify the principal
amount of Securities to be purchased by such Agent or Agents
pursuant thereto, the price to be paid to the Company for such
Securities, the time and place of delivery of and payment for
such Securities and such other provisions (including further
terms of the Securities) as may be mutually agreed upon. In
connection with the resale of Securities purchased by an Agent or
Agents under a Terms Agreement, such Agent or Agents may utilize
a selling or dealer group. Such Terms Agreement may also specify
the requirements for the opinions of counsel, accountant's letter
and officer's certificate pursuant to Sections 7(b), 7(c) and
7(d) hereof, which opinions of counsel, accountant's letter and
officer's certificate shall be modified to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of delivery thereof, except that
references to the Securities in such opinions of counsel shall
mean the Securities sold pursuant to such Terms Agreement and the
matters set forth therein relating to the enforceability of such
Securities and this Agreement shall be modified to reflect the
issuance and sale thereof in accordance with this Agreement
pursuant to such Terms Agreement.
12. Miscellaneous.
THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE
STATE OF NEW YORK. This Agreement may be executed in
counterparts and the executed counterparts shall together
constitute a single instrument. This Agreement shall inure to
the benefit of the Company and the Agents, and, with respect to
the provisions of Section 9 hereof, each person referred to in
such Section 9, and their respective successors. Nothing in this
Agreement is intended or shall be construed to give to any other
person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision
herein contained. The term "successors" as used in this
Agreement shall not include any purchaser, as such purchaser, of
any Securities from the Company or from any Agent as principal.
13. Notices.
Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either
delivered by hand, by mail or by telex, telecopier or telegram,
and any such notice shall be effective when received at the
address specified below.
If to the Company:
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Attention: Mr. Philip C. Ackerman
Senior Vice President
Telephone No.: (716) 857-7000
Telecopier No.: (716) 857-7206
With a copy to:
Reid & Priest LLP
40 West 57th Street
New York, New York 10019
Attention: Robert J. Reger, Jr., Esq.
Telephone No.: 212-603-2000
Telecopier No.: 212-603-2001
If to ---------------------------:
Attention:
Telephone No.:
Telecopier No.:
or at such other addresses as such parties may designate from
time to time by notice duly given in accordance with the terms of
this Section 13.
14. Representations, Warranties and Agreements to
Survive Delivery.
All representations, warranties and agreements
contained in this Agreement, or contained in certificates of
officers of the Company submitted pursuant hereto, shall remain
operative and in full force and effect, and shall survive each
delivery of and payment for any of the Securities.
If the foregoing correctly sets forth our
understanding, please indicate your acceptance thereof in the
space provided below for that purpose, whereupon this letter and
your acceptance shall constitute a binding agreement between us
and each of you.
Very truly yours,
NATIONAL FUEL GAS COMPANY
By --------------------------
Accepted and delivered as of
the date first above written:
By ------------------------------------
ANNEX A
[REID & PRIEST LLP LETTERHEAD]
--------------------, 199-
As the Agents named in the Distribution
Agreement effective ------------, 199-
between each of you and National
Fuel Gas Company (the "Agreement")
Ladies and Gentlemen:
We have acted as counsel for National Fuel Gas Company
("Company") in connection with the proposed issuance and sale of
up to $----------- in aggregate principal amount of its
Debentures designated as Medium-Term Notes ("Notes"), to be
issued under the Company's Indenture, dated as of October 15,
1974, to The Bank of New York (formerly Irving Trust Company)
("Trustee"), as Trustee, as amended and supplemented, the latest
such supplement being the -------- Supplemental Indenture, dated
as of -----, 199- (such Indenture, as so amended and
supplemented, being hereinafter called the "Indenture").
We have examined the Registration Statements on Form
S-3 (File Nos. 33-49401 and 333------) filed by the Company under
the Securities Act of 1933, as amended (the "Act"), as each
became effective under the Act (collectively, the "Registration
Statements"); the Company's combined Prospectus dated -----------
-----, 199- as supplemented by the Prospectus Supplement dated --
----------, 199- (such combined Prospectus, as so supplemented,
the "Prospectus"), filed by the Company pursuant to Rule 424(b)
of the rules and regulations of the Securities and Exchange
Commission ("Commission") under the Act, which pursuant to Form
S-3 incorporates or is deemed to incorporate by reference the
Annual Report on Form 10-K of the Company for the fiscal year
ended September 30, 1995 (the "Annual Report"), the Quarterly
Reports on Form 10-Q of the Company for the quarterly periods
ended December 31, 1995 and March 31, 1996 and the Current
Reports on Form 8-K of the Company dated ---------------- and ---
------------- (collectively, the "Exchange Act Documents"), each
as filed under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"); and the Indenture. In addition, we have
examined, and have relied as to matters of fact upon, the
documents delivered to you at the closing (except the Notes, of
which we have examined a specimen), and upon originals or copies,
certified or otherwise identified to our satisfaction, of such
corporate records, agreements, documents and other instruments
and such certificates or comparable documents of public officials
and of officers and representatives of the Company, and have made
such other and further investigations, as we have deemed relevant
and necessary as a basis for the opinions hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
With respect to legal matters governed by the laws of
the State of New Jersey, including matters relating to the due
incorporation of the Company, we understand that you are relying
upon the opinion of Stryker, Tams & Dill, New Jersey counsel for
the Company, dated the date hereof and addressed to you, which is
being furnished to you pursuant to the Agreement. We do not pass
upon the incorporation of the Company. With respect to certain
other legal matters relating to the Company and to the due
incorporation of, and various other matters relating to, certain
subsidiaries of the Company, we understand that you are relying
upon the opinion of [Anna Marie Cellino], Esq., counsel for the
Company and such subsidiaries, dated the date hereof and
addressed to you, which is being furnished to you pursuant to the
Agreement.
Based upon the foregoing and subject to the
qualifications and limitations stated therein, we hereby advise
you that in our opinion:
1. The Company had full power and authority to execute
the Indenture and the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act of 1939, as amended ("Trust
Indenture Act"), and assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding instrument enforceable against the Company in accordance
with its terms, subject as to enforceability to (i) bankruptcy,
insolvency, reorganization, fraudulent transfer, fraudulent
conveyance, moratorium or other similar laws affecting the
enforcement of creditors' rights and remedies, and (ii) the
application of general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law), including, without limitation (x) the possible
unavailability of specific performance, injunctive relief or any
other remedy, and (y) concepts of materiality, reasonableness,
good faith, fair dealing and equitable subordination.
2. The Notes have been duly authorized by the Company
and, when the terms of the Notes and of their issue and sale have
been duly established in accordance with the Indenture, the
Resolutions (as defined in the Indenture), the Agreement and the
aforesaid authorization (so as not to violate any applicable law,
regulation or order of any regulatory body or agreement or
instrument then binding on the Company) and when such Notes have
been duly executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and
the aforesaid authorization and upon payment and delivery in
accordance with the Agreement, such Notes, subject to the
qualifications in paragraph 1 above, will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefits of the Indenture.
3. The Registration Statements have become and are
effective under the Act; and to the best of our knowledge, no
proceedings for a stop order with respect thereto are pending or
threatened under Section 8 of the Act.
4. The statements made in the Prospectus under
"Description of the New Debt Securities and the Indenture" and
"Description of the Offered Notes and Indenture," insofar as they
purport to constitute summaries of the terms of the documents
referred to therein that have been executed and delivered on or
before the date hereof, constitute accurate summaries of the
terms of such documents in all material respects.
5. [Appropriate orders of the Commission under the
Public Utility Holding Company Act of 1935, which are required
for the valid issuance and sale of up to -------------------
aggregate principal amount of Notes under the Agreement, have
been obtained;] to the best of our knowledge, said orders are in
full force and effect; and no authorization of any other public
authority is required (other than in connection or compliance
with the provisions of the "blue sky" laws of any jurisdiction)
for the valid issuance and sale of the Notes by the Company under
the Agreement.
6. The Agreement has been duly authorized, executed
and delivered by the Company.
7. The Company is in good standing under the laws of
the State of New York.
In rendering the opinion set forth in paragraph 2
above, we have necessarily assumed that, at the time of any
issuance and sale of any of the Notes, (i) the Board of Directors
of the Company (or any committee thereof acting pursuant to
authority properly delegated to such committee by the Board of
Directors) has not taken any action to rescind or otherwise
reduce its prior authorization of the issuance of the Notes and
an officer of the Company, as stated in the resolutions of the
Board of Directors (or any such committee) relating to the Notes,
has executed and delivered such Notes and [(ii) the orders of the
Commission with respect to the Notes, dated April 20, 1995,
October 19, 1995, March 6, 1996 and ----------------, are in full
force and effect and have not been modified or amended by the
Commission, and the Company is in compliance therewith].
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statements, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph 4 above or as they relate to
us. In the course of the preparation by the Company of the
Registration Statements and the Prospectus (excluding the
Exchange Act Documents), we participated in conferences with
certain of its officers and employees, with other counsel for the
Company, with representatives of Price Waterhouse LLP, the
Company's independent accountants, and with your representatives
and your counsel. We did not prepare the Exchange Act Documents;
however, we did review the Annual Report prior to its filing with
the Commission. Based on our examination of the Registration
Statements, the Prospectus and the Exchange Act Documents, our
investigations made in connection with the preparation of the
Registration Statements and the Prospectus (excluding the
Exchange Act Documents) and our participation in the conferences
referred to above, (i) we are of the opinion that each of the
Registration Statements, as of the date it was declared effective
by the Commission, and the Prospectus, as of the date it was
filed under Rule 424(b) of the rules and regulations of the
Commission under the Act, complied as to form in all material
respects with the requirements of the Act and the Trust Indenture
Act and the applicable rules and regulations of the Commission
under such Acts and that the Exchange Act Documents complied as
to form when filed in all material respects with the requirements
of the Exchange Act and the applicable rules and regulations of
the Commission thereunder, except that in each case we express no
opinion with respect to the financial statements or other
financial or statistical data contained or incorporated by
reference in the Registration Statements, the Prospectus or the
Exchange Act Documents, and (ii) we have no reason to believe
that either of the Registration Statements, as of the date it was
declared effective by the Commission (including the Exchange Act
Documents on file with the Commission on such date), contained an
untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order
to make the statements therein not misleading or that the
Prospectus, as of the date hereof (including the Exchange Act
Documents), contains an untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading, except that in each case we
express no opinion or belief with respect to the financial
statement or other financial or statistical data contained or
incorporated by reference in the Registration Statements, the
Prospectus or the Exchange Act Documents.
We are members of the Bar of the State of New York and
we do not express any opinion herein concerning any law other
than the law of the State of New York, the Federal law of the
United States and, to the extent set forth herein, the laws of
the State of New Jersey. Insofar as the opinions expressed
herein relate to or are dependent upon matters governed by the
laws of the State of New Jersey, we have relied upon the opinion
of Stryker, Tams & Dill referred to above.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation without our prior written
consent.
Very truly yours,
REID & PRIEST LLP
ANNEX B
[LETTERHEAD OF STRYKER, TAMS & DILL]
-------------, 199-
As the Agents named in the Distribution
Agreement effective ---------, 199-
between each of you and National
Fuel Gas Company (the "Distribution Agreement")
Ladies and Gentlemen:
Referring to the proposed issuance by National Fuel Gas
Company ("National") of up to $----------- aggregate principal
amount of its Debentures designated as Medium-Term Notes, Series
------------- ("Notes"), to be issued under the Indenture dated
as of October 15, 1974, between National and The Bank of New York
(formerly Irving Trust Company), as Trustee (the "Trustee"), as
amended and supplemented, the latest such supplement being the --
------ Supplemental Indenture dated as of ----------, 199- (as so
supplemented, the "Indenture"), we advise you as follows:
We have been New Jersey counsel for National for many
years and have examined certified copies of its Restated
Certificate of Incorporation and each amendment and supplement
thereof to date (as amended and supplemented, the "Restated
Charter"), together with the original corporate records in
connection with the incorporation of National. We have also
examined a certified copy of its By-Laws, as amended to date (as
amended, the "By-Laws"). We have reviewed the minutes of (i) the
meetings of the Board of Directors of National held on September
16, 1994 and March 19, 1996, and (ii) meeting of the pro tempore
committee of the Board of Directors of National held on ---------
---------, and have examined certified copies of the resolutions
adopted at each of those meetings.
We have examined the Registration Statements of
National on Form S-3 relating to the Notes (Nos. 33-49401 and
333------) and the combined Prospectus (including the Prospectus
Supplement dated ---------- which forms a part of such
Registration Statement No. 333------), each as amended and
supplemented to date, and either signed or certified copies of
the orders of the Securities and Exchange Commission with respect
to such Registration Statements. Such Registration Statements are
hereinafter referred to as the "Registration Statement" and the
combined Prospectus included in the Registration Statement, as
amended and supplemented, is hereinafter called the "Prospectus."
We have also examined the offering documents used in
connection with the sale of the Notes, including the form of
Distribution Agreement between the Company and each of you dated
as of --------------, 1996 (the "Distribution Agreement").
In addition, we have examined and, as to matters of
fact, have relied upon the documents delivered to you at the
closing (including, without limitation, the Certificate of
Officers of National evidencing compliance with Sections 6.05 and
15.03 of the Indenture; but excluding the Notes, of which we have
--- ---------
examined a specimen) and upon originals or copies, certified or
otherwise identified to our satisfaction, of such corporate
records, agreements, documents and other instruments and such
certificates or comparable documents of public officials and of
officers and representatives of National, and have made such
other and further investigations, as we have deemed relevant and
necessary as a basis for the opinions hereinafter expressed.
In rendering the opinion set forth in paragraph 3
below, we have necessarily assumed that, at the time of any
issuance and sale of any of the Notes, the Board of Directors of
the Company (or any committee thereof acting pursuant to
authority properly delegated to such committee by the Board of
Directors) has not taken any action to rescind or otherwise
reduce its prior authorization of the issuance of the Notes and
an officer of the Company, as stated in the resolutions of the
Board of Directors (or any such committee) relating to the Notes,
has executed and delivered such Notes.
Based upon the foregoing and upon such examination of
law as we have deemed necessary in order to give this opinion, it
is our opinion that:
1. National was duly incorporated and is validly
existing as a corporation under the laws of the State of New
Jersey, and is authorized by such laws and its Restated Charter
to carry on its current business.
2. National had full power and authority to execute
the Indenture and the Indenture has been duly authorized,
executed and delivered by and, insofar as New Jersey law applies
and assuming due authorization, execution and delivery by the
Trustee, is legally valid and binding upon National, except as
limited by (x) bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium, or other similar
laws of general application relating to or affecting creditors'
rights and remedies and (y) general principles of equity (whether
such enforceability is considered in a proceeding in equity or at
law), including, without limitation, the possible unavailability
of specific performance, injunctive relief or any other equitable
remedy and the concepts of materiality, commercial
reasonableness, good faith, fair dealing and equitable
subordination.
3. The Notes have been duly authorized by National
and, insofar as New Jersey law applies, when the terms of any of
the Notes and of their issuance and sale have been duly
established in accordance with the Indenture, the Resolutions (as
defined in the Indenture), the Distribution Agreement and the
aforesaid authorizations (so as not to violate any applicable
law, regulation or order of any regulatory body, or any agreement
or instrument then binding on National) and when such Notes have
been duly executed by National and authenticated by the Trustee
in accordance with the provisions of the Indenture and the
aforesaid authorization and upon payment and delivery in
accordance with the Distribution Agreement, such Notes will be in
due legal form and will be duly issued by, and will constitute
legal, valid and binding obligations of National and will be
entitled to the benefits provided by the Indenture, except as
limited by (x) bankruptcy, insolvency, reorganization, fraudulent
transfer, fraudulent conveyance, moratorium, or other similar
laws of general application relating to or affecting creditors'
rights and remedies and (y) general principles of equity (whether
such enforceability is considered in a proceeding in equity or at
law), including, without limitation, the possible unavailability
of specific performance, injunctive relief or any other equitable
remedy and the concepts of materiality, commercial
reasonableness, good faith, fair dealing and equitable
subordination.
4. The use of facsimile signatures of officers of
National upon the Notes has been duly authorized and is valid
under the laws of the State of New Jersey.
5. The Distribution Agreement has been duly
authorized, executed and delivered by National, and does not
contravene the Restated Charter or By-Laws of National.
We express no opinion herein concerning the
applicability of state securities or "blue sky" laws, including,
without limitation, the New Jersey Uniform Securities Law, as
amended, to the proposed issuance and sale of the Notes by
National or to the distribution thereof by each of you.
We have read the opinions of even date herewith,
rendered to you by Reid & Priest LLP and Winthrop, Stimson,
Putnam & Roberts, and we concur in the legal conclusions
expressed therein insofar as such conclusions involve questions
of New Jersey law.
A copy of this opinion is being delivered to each of
Reid & Priest LLP and Winthrop, Stimson, Putnam & Roberts who, in
their respective opinions to you of even date herewith, are
entitled to rely upon the opinions expressed herein concerning
matters of New Jersey law to the same extent as if this opinion
had been addressed to each of them.
Very truly yours,
STRYKER, TAMS & DILL
ANNEX C
[LETTERHEAD OF ANNA MARIE CELLINO]
----------, 199-
As the Agents named in the Distribution
Agreement effective ----------, 199-
between each of you and National
Fuel Gas Company (the "Distribution
Agreement")
Ladies and Gentlemen:
Please refer to the proposed sale and issuance by
National Fuel Gas Company ("Company") of up to $-----------
principal amount of its Debentures designated as Medium-Term
Notes, Series -------. I have served as counsel for the Company
and National Fuel Gas Distribution Corporation ("Distribution"),
National Fuel Gas Supply Corporation ("Supply") and Seneca
Resources Corporation ("Seneca"), all of which (the
"Subsidiaries") are wholly-owned subsidiaries of the Company. I
am familiar with the legal aspects of real property acquisitions
in the State of New York and the Commonwealth of Pennsylvania by
the Subsidiaries. I am also familiar with the litigation to
which the Subsidiaries are parties, with their respective
corporate records and with the minutes of their respective Boards
of Directors.
Based upon the foregoing, I am of the opinion that:
1. Supply and Seneca have been duly incorporated and
are now validly existing as corporations in good standing under
the laws of the Commonwealth of Pennsylvania.
2. Distribution has been duly incorporated and is now
validly existing as a corporation in good standing under the laws
of the State of New York.
3. Each of the Subsidiaries has full corporate power to
conduct the business now being conducted by it as set forth in or
incorporated by reference into the Prospectus (as defined in the
Distribution Agreement) and is duly qualified to do business as a
foreign corporation in and is in good standing under the laws of
each other state in which such qualification is legally required.
4. Methods used in connection with investigating title
to properties, or interests therein, owned by each of the
Subsidiaries in the State of New York and the Commonwealth of
Pennsylvania are consistent with good practice and established
methods used by prudent companies engaged in similar businesses
and are adequately designed to provide for the acquisition of
such titles or interests. Substantially all of the properties
now owned by the Subsidiaries in the State of New York and the
Commonwealth of Pennsylvania have been held by subsidiaries of
the Company for a number of years without any unfavorable
adjudicated claim.
5. Except as set forth in or incorporated by reference
into the Prospectus, the only litigation to which any of the
Subsidiaries is a party is of a character incidental to its
business and does not involve an amount not covered by insurance
which is material in relation to the business of the Company and
its subsidiaries as a whole.
6. Of the Company and the Subsidiaries, only
Distribution carries on a public utility business in the State of
New York or the Commonwealth of Pennsylvania. Distribution holds
franchises which I consider to be adequate and sufficient to
permit it to engage in the business which it presently conducts,
and there is no pending litigation concerning its rights to
render services under any such franchise.
7. The consummation of the transactions contemplated
by the Distribution Agreement and the fulfillment of the terms
thereof will not result in a breach of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company pursuant to, (i) the
Restated Certificate of Incorporation and each amendment and
supplement thereof to date or the By-Laws, as amended to date, or
any contract, agreement or other instrument to which the Company
is a party or by which it may be bound or (ii) any laws, order,
rule or regulation applicable to the Company of any court or any
federal or state governmental body having jurisdiction over the
Company or its properties.
Very truly yours,
Anna Marie Cellino
ANNEX D
[WINTHROP, STIMSON, PUTNAM & ROBERTS LETTERHEAD]
----------------, 199-
As the Agents named in the Distribution
Agreement effective ------------, 199-
between each of you and National
Fuel Gas Company (the "Agreement")
Ladies and Gentlemen:
We have acted as your counsel in connection with the
proposed issuance and sale by National Fuel Gas Company (the
"Company") of up to $----------- aggregate principal amount of
Debentures designated as Medium-Term Notes, Series -------
("Notes") to be issued under the Company's Indenture, dated as of
October 15, 1974, to The Bank of New York (formerly Irving Trust
Company) (the "Trustee"), as amended and supplemented, the latest
such supplement being the -------- Supplemental Indenture dated
as of ----------, 199- (such Indenture, as so amended and
supplemented, the "Indenture").
We have examined the Company's Registration Statements
on Form S-3 (File Nos. 33-49401 and 333------) filed by the
Company under the Securities Act of 1933, as amended (the "Act"),
as each became effective under the Act (collectively, the
"Registration Statements"); the Company's combined Prospectus
dated ----------------, 199- as supplemented by the Prospectus
Supplement dated ----------------, 199- (such Prospectus, as so
supplemented, the "Prospectus"), filed by the Company pursuant to
Rule 424(b) of the rules and regulations of the Securities and
Exchange Commission (the "Commission") under the Act, which
pursuant to Form S-3 under the Act incorporates or is deemed to
incorporate by reference the Annual Report on Form 10-K of the
Company for the fiscal year ended September 30, 1995 (the "Annual
Report"), the Quarterly Reports on Form 10-Q of the Company for
the quarterly periods ended December 31, 1995 and March 31, 1996
and the Current Reports on Form 8-K of the Company dated --------
-------- and ---------------- (collectively, the "Exchange Act
Documents"), each as filed under the Securities Exchange Act of
1934, as amended (the "Exchange Act"); and the Indenture. In
addition, we have examined, and have relied as to matters of fact
upon, the documents delivered to you at the closing (except the
Notes, of which we have examined a specimen), and upon originals
or copies, certified or otherwise identified to our satisfaction,
of such corporate records, agreements, documents and other
instruments and such certificates or comparable documents of
public officials and of officers and representatives of the
Company, and have made such other and further investigations, as
we have deemed relevant and necessary as a basis for the opinions
hereinafter set forth.
In such examination, we have assumed the genuineness of
all signatures, the legal capacity of natural persons, the
authenticity of all documents submitted to us as originals, the
conformity to original documents of all documents submitted to us
as certified or photostatic copies, and the authenticity of such
latter documents.
With respect to legal matters governed by the laws of
the State of New Jersey, including matters relating to the due
incorporation of the Company, we understand that you are relying
upon the opinion of Stryker, Tams & Dill, New Jersey counsel for
the Company, dated the date hereof and addressed to you, which is
being furnished to you pursuant to the Agreement. We do not pass
upon the incorporation and qualification to do business of the
Company. With respect to certain other legal matters relating to
the Company and to the due incorporation of, and various other
matters relating to, certain subsidiaries of the Company, we
understand that you are relying upon the opinion of [Anna Marie
Cellino], Esq., counsel for the Company and such subsidiaries,
dated the date hereof and addressed to you, which is being
furnished to you pursuant to the Agreement.
Based upon the foregoing and subject to the
qualifications and limitations stated herein, we hereby advise
you that in our opinion:
(a) The Company had full power and authority to
execute the Indenture and the Indenture has been duly authorized,
executed and delivered by the Company, has been duly qualified
under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and, assuming due authorization, execution and
delivery thereof by the Trustee, constitutes a valid and legally
binding instrument enforceable against the Company in accordance
with its terms, except as the same may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally,
by general equity principles (regardless of whether such
enforceability is considered in a proceeding in equity or at
law), or by an implied covenant of good faith and fair dealing.
(b) The Notes have been duly authorized by the Company
and, when the terms of the Notes and of their issue and sale have
been duly established in accordance with the Indenture and the
Resolutions (as defined in the Indenture), the Agreement and the
aforesaid authorization so as not to violate any applicable law,
regulation or order of any regulatory body or agreement or
instrument then binding on the Company and when the Notes have
been duly executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and
the aforesaid authorization and upon payment and delivery in
accordance with the Agreement, the Notes, subject to the
qualifications in paragraph (a) above, will constitute valid and
legally binding obligations of the Company enforceable against
the Company in accordance with their terms and entitled to the
benefit of the Indenture.
(c) The statements made in the Prospectus under
"Description of the New Debt Securities and the Indenture" and
"Description of the Offered Notes and Indenture," insofar as they
purport to constitute summaries of the terms of the documents
referred to therein that have been executed and delivered on or
before the date hereof, constitute accurate summaries of the
terms of such documents in all material respects.
(d) The Commission has issued appropriate orders
authorizing, to the extent, in our opinion, such authorization is
necessary, the execution and delivery of the Agreement by the
Company and no other approval or consent of any other
governmental body is required for the execution and delivery of
the Agreement by the Company.
(e) The Agreement has been duly authorized, executed
and delivered by the Company.
In rendering the opinion set forth in paragraph (b)
above, we have necessarily assumed that, at the time of any
issuance and sale of any of the Notes, (i) the Board of Directors
of the Company (or any committee thereof acting pursuant to
authority properly delegated to such committee by the Board of
Directors) has not taken any action to rescind or otherwise
reduce its prior authorization of the issuance of the Notes and
an officer of the Company, as stated in the resolutions of the
Board of Directors (or any such committee) relating to the Notes,
has executed and delivered such Notes and [(ii) the orders of the
Commission with respect to the Notes, dated April 20, 1995,
October 19, 1995, March 6, 1996 and -------------------, are in
full force and effect and have not been modified or amended by
the Commission, and the Company is in compliance therewith.]
We have not independently verified the accuracy,
completeness or fairness of the statements made or included in
the Registration Statements, the Prospectus or the Exchange Act
Documents and take no responsibility therefor, except as and to
the extent set forth in paragraph (c) above. In the course of
the preparation by the Company of the Registration Statements and
the Prospectus (excluding the Exchange Act Documents), we
participated in conferences with certain of its officers and
employees, with counsel for the Company, with representatives of
Price Waterhouse LLP, the Company's independent accountants, and
with your representatives. We did not prepare the Exchange Act
Documents; however, we did review a draft of the Annual Report
prior to its filing with the Commission. Based on our examination
of the Registration Statements, the Prospectus and the Exchange
Act Documents, our investigations made in connection with the
preparation of the Registration Statements and the Prospectus
(excluding the Exchange Act Documents) and our participation in
the conferences referred to above, (i) we are of the opinion that
each of the Registration Statements, as of the date it was
declared effective by the Commission, and the Prospectus, as of
the date it was filed under Rule 424(b) of the rules and
regulations of the Commission under the Act, complied as to form
in all material respects with the requirements of the Act and the
Trust Indenture Act and the applicable rules and regulations of
the Commission under such Acts and that the Exchange Act
Documents complied as to form when filed in all material respects
with the requirements of the Exchange Act and the applicable
rules and regulations of the Commission thereunder, except that
in each case we express no opinion with respect to the financial
statements or other financial or statistical data contained or
incorporated by reference in the Registration Statements, the
Prospectus or the Exchange Act Documents, and (ii) we have no
reason to believe that either of the Registration Statements, as
of the date it was declared effective by the Commission
(including the Exchange Act Documents on file with the Commission
on such date), contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein
or necessary in order to make the statements therein not
misleading or that the Prospectus, as of the date hereof
(including the Exchange Act Documents), includes an untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that in each case we express no opinion or belief with
respect to the financial statements or other financial or
statistical data contained or incorporated by reference in the
Registration Statements, the Prospectus or the Exchange Act
Documents.
We are members of the Bar of the State of New York and
we do not express any opinion herein concerning any law other
than the law of the State of New York, the Federal law of the
United States of America and, to the extent set forth herein, the
laws of the State of New Jersey. Insofar as the opinions
expressed herein relate to or are dependent upon matters governed
by the laws of the State of New Jersey, we have relied upon the
opinion of Stryker, Tams & Dill referenced to above.
This opinion is rendered to you in connection with the
above-described transaction. This opinion may not be relied upon
by you for any other purpose, or relied upon by, or furnished to,
any other person, firm or corporation, without our prior written
consent.
Very truly yours,
Winthrop, Stimson, Putnam
& Roberts
Exhibit A
MEDIUM-TERM NOTES, SERIES ----
ADMINISTRATIVE PROCEDURES
Medium-Term Notes, Series ------- (the "Notes") in the
aggregate principal amount of up to $500,000,000 are to be
offered on a continuing basis by National Fuel Gas Company (the
"Company") through ---------------------------------------- who,
as agents (each an "Agent", and, collectively, the "Agents"),
have agreed to use their reasonable best efforts to solicit
offers to purchase the Notes from the Company. The Agents may
also purchase Notes as principal for resale.
The Notes are being sold pursuant to a Distribution
Agreement between the Company and each of the Agents, dated -----
- --, 199- (the "Distribution Agreement"). The Notes will be
issued under an Indenture (the "Indenture"), dated as of October
15, 1974, as amended and supplemented, between the Company and
The Bank of New York (formerly Irving Trust Company), as Trustee
(the "Trustee"). Two Registration Statements (collectively, the
"Registration Statements") with respect to the Notes have been
filed with the Securities and Exchange Commission (the
"Commission"). The most recent combined prospectus included in
the most recently filed Registration Statement ("Prospectus"), as
supplemented with respect to the Notes, is herein referred to as
the "Prospectus Supplement." The most recent supplement to the
Prospectus with respect to the specific terms of the Notes is
herein referred to as the "Pricing Supplement."
The Notes will be issued in book-entry form and
represented by one or more Global Notes (as defined under
"Issuance" in Part II below) delivered to the Trustee, as agent
for The Depository Trust Company ("DTC"), and recorded in the
book-entry system maintained by DTC (a "Book-Entry Note"). A
beneficial owner of a Book-Entry Note will not be entitled to
receive a certificate representing such a Note except under the
limited circumstances described in the Prospectus Supplement.
Administrative procedures and specific terms of the
offering are explained below.
General procedures relating to the issuance of the
Book-Entry Notes are set forth in Part I hereof. Additionally,
Book-Entry Notes will be issued in accordance with the
administrative procedures set forth in Part II hereof.
Capitalized terms used herein that are not otherwise defined
shall have the meanings ascribed thereto in the Indenture or the
Notes, as the case may be.
PART I: PROCEDURES OF GENERAL
APPLICABILITY
Date of Issuance/
Authentication: Each Note will be dated as of the date
of its authentication by the Trustee.
Each Note shall also bear an original
issue date (the "Issue Date"). The
Issue Date shall remain the same for all
Notes subsequently issued upon transfer,
exchange or substitution of an original
Note regardless of their dates of
authentication.
Maturities: Each Note will mature on a date selected
by the purchaser and agreed to by the
Company that is not less than nine
months nor more than forty years from
its Issue Date.
Registration: Notes will be issued only in fully
registered form.
Calculation of
Interest: Interest on the Notes (including
payments for partial periods) will be
calculated and paid on the basis of a
360-day year of twelve 30-day months.
Preparation of
Pricing Supplement: If any offer to purchase a Note is
accepted by the Company, the Company,
with the approval of the Agent which
presented such offer (the "Presenting
Agent"), will prepare a Pricing
Supplement reflecting the terms of such
Note and will arrange to have one copy
transmitted via Edgar to the Commission
in accordance with Rule 424 under the
Securities Act of 1933, as amended (the
"Act"), and will supply one copy to the
Presenting Agent as soon as possible but
in no event later than 11:00 a.m. on the
Business Day (as defined below under
"Business Day") immediately after the
trade date for such Note at the
Presenting Agent's address determined in
accordance with Section 13 of the
Distribution Agreement and, if the
Presenting Agent is ------- ------------
--------------------------- ----------,
also at: ------------------ ------------
---------------------------
Attention: ---------------
Telephone No.: ----------
Telecopier No.: ----------;
and, if the Presenting Agent is --------
----------------------------------------
----------, also at: -------------------
----------------------------------------
Attn.: -------------------
Telephone No.: ----------
Telecopier No.: ----------.
The Presenting Agent will cause a Prospectus Supplement and
Pricing Supplement to be delivered to the purchaser of the Note.
In each instance that a Pricing Supplement is prepared, the
Agents will affix the Pricing Supplement to the Prospectus
Supplement prior to its use. Outdated Pricing Supplements, and
the Prospectus Supplement to which they are attached (other than
those retained for files) will be destroyed.
Settlement: The receipt of immediately available
funds by the Company in payment for a
Note and the authentication and delivery
of such Note shall, with respect to such
Note, constitute "settlement." Offers to
purchase a Note accepted by the Company
will be settled within three Business
Days after the trade date or at a time
as the purchaser and the Company shall
agree, pursuant to the timetable for
settlement set forth in Part II hereof
under "Settlement Procedures" (such
date, the "Settlement Date"). If
procedures A and B of the Settlement
Procedures with respect to a particular
offer are not completed on or before the
time set forth under the applicable
"Settlement Procedures Timetable," such
offer shall not be settled until the
Business Day following the completion of
settlement procedures A and B or such
later date as the purchaser and the
Company shall agree.
In the event of a purchase of Notes by any Agent as
principal, appropriate settlement details will be set forth in
the applicable Terms Agreement to be entered into between such
Agent and the Company pursuant to the Distribution Agreement.
Suspension of Solicitation;
Amendment or Supplement:
The Company may instruct the Agents to
suspend solicitation of purchases at any
time for any period of time or
permanently. Upon receipt of
instructions from the Company the Agents
will forthwith suspend solicitation of
purchases of the Notes from the Company
until such time as the Company has
advised the Agents that such
solicitation may be resumed.
In the event that at the time the
solicitation of offers to purchase from
the Company is suspended there shall be
any orders outstanding that have not
been settled, the Company will promptly
advise the Agents and the Trustee
whether such orders may be settled and
whether copies of the Prospectus as
theretofore amended and/or supplemented
as in effect at the time of the
suspension may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for
any arrangements that may be made in the
event that the Company determines that
such orders may not be settled or that
copies of such Prospectus may not be so
delivered.
Delivery of
Prospectus: A copy of the most recent Prospectus,
Prospectus Supplement and Pricing
Supplement must accompany or precede the
earliest of (a) the written confirmation
of a sale sent to a customer or its
agent, (b) the delivery of Notes to a
customer or its agent and (c) payment
for each Note by its purchaser.
Authenticity of
Signatures: The Agents will have no obligations or
liability to the Company or the Trustee
in respect of the authenticity of the
signature of any officer, employee or
agent of the Company or the Trustee on
any Note.
Documents Incorporated
by Reference: The Company shall supply the Agents with
an adequate supply of all documents
incorporated by reference in the
Registration Statement.
Business Day: "Business Day" means any day, other than
a Saturday or Sunday, on which banks in
The City of New York are not required or
authorized by law or regulation to
close.
PART II: ADMINISTRATIVE PROCEDURES
FOR BOOK-ENTRY NOTES
In connection with the qualification of the Book-Entry
Notes for eligibility in the book-entry system maintained by DTC,
the Trustee 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 the Trustee to DTC, dated ------- --, 199-, and a
Medium-Term Note Certificate Agreement, dated August 17, 1989, as
amended between the Trustee and DTC (the "Certificate
Agreement"), and its obligations as a participant in DTC,
including DTC's Same-Day Funds Settlement System ("SDFS").
Issuance: All Book-Entry Notes having the same
Issue Date, interest rate or method, if
any, of determining such interest rate,
Interest Payment Date (as defined below
under "Interest"), redemption
provisions, if any, and specified
maturity date ("Stated Maturity")
(collectively, the "Terms") will be
represented initially by a single global
security in fully registered form
without coupons representing up to
$200,000,000 principal amount of such
Notes (each, a "Global Note").
Each Global Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Global Note will bear interest from an
Interest Accrual Date, which will be (a)
with respect to an original Global Note
(or any portion thereof), its Original
Interest Accrual Date and (b) with
respect to any Global Note (or portion
thereof) issued subsequently upon
exchange of a Global Note or in lieu of
a destroyed, lost or stolen Global Note,
the most recent Interest Payment Date to
which interest has been paid or duly
provided for on the predecessor Global
Note or Notes (or if no such payment or
provision has been made, the Original
Interest Accrual Date of the predecessor
Global Note or Notes), regardless of the
date of authentication of such
subsequently issued Global Note. No
Global Note shall represent any Note
issued in certificated form.
Identification: The Company has arranged with the CUSIP
Service Bureau of Standard & Poor's
Corporation (the "CUSIP Service Bureau")
for the reservation of approximately 900
CUSIP numbers, which have been reserved
for future assignment to Global Notes
representing the Book-Entry Notes, and
the Trustee has delivered to the Company
and DTC an initial written list of 900
of such CUSIP numbers. The Company will
assign CUSIP numbers to Global Notes as
described below under Settlement
Procedure B. DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Company has assigned to
Global Notes. The Trustee will notify
the Company at any time when fewer than
100 of the reserved CUSIP numbers remain
unassigned to Global Notes, and, if it
deems necessary, the Company will
reserve additional CUSIP numbers for
assignment to Global Notes representing
Book-Entry Notes. Upon obtaining such
additional CUSIP numbers, the Company
will deliver a list of such additional
numbers to the Trustee and DTC.
Registration: Each Global Note will be registered in
the name of Cede & Co., as nominee for
DTC, on the register maintained by the
Trustee under the Indenture. The
beneficial owner of a Book-Entry Note
(i.e., an owner of a beneficial interest
in a Global Note) (or one or more
indirect participants in DTC designated
by such beneficial owner) will designate
one or more participants in DTC (with
respect to such Note, the
"Participants") to act as agent or
agents for such beneficial 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 Participants 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 and one or more indirect
participants in DTC.
Transfers: Transfers of a Global Note will be
accomplished 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 Global Note.
Consolidations: The Trustee may deliver to DTC's
Reorganization Department, Interactive
Data Corporation and the CUSIP Service
Bureau at any time a written notice
specifying (a) the CUSIP numbers of two
or more Global Notes Outstanding on such
date that represent Global Notes having
the same Terms, as the case may be
(other than Issue Dates), and for which
interest has been paid to the same date;
(b) a date, occurring at least 30 days
after such written notice is delivered
and at least 30 days before the next
Interest Payment Date for the related
Book-Entry Notes, on which such Global
Notes shall be exchanged for a single
replacement Global Note; and (c) a new
CUSIP number, obtained from the Company,
to be assigned to such replacement
Global Note. Upon receipt of such a
notice, DTC will send to its
participants (including the Trustee) a
written reorganization notice to the
effect that such exchange will occur on
such date. Prior to the specified
exchange date, the Trustee will deliver
to the CUSIP Service Bureau written
notice setting forth such exchange date
and the new CUSIP number to be assigned
and stating that, as of such exchange
date, the CUSIP numbers of the Global
Notes to be exchanged will no longer be
valid. On the specified exchange date,
the Trustee will exchange such Global
Notes for a single Global Note bearing
the new assigned CUSIP number and the
CUSIP numbers of the exchanged Global
Notes will, in accordance with CUSIP
Service Bureau procedures, be canceled
and not immediately reassigned.
Notwithstanding the foregoing, if the
Global Notes to be exchanged exceed
$200,000,000 in aggregate principal
amount, one replacement Global Note will
be authenticated and issued to represent
$200,000,000 of principal amount of the
exchanged Global Notes and an additional
Global Note will be authenticated and
issued to represent any remaining
principal amount of such Global Notes
(see "Denominations" below).
Denominations: All Book-Entry Notes will be denominated
in U.S. dollars and issued in
denominations of $1,000 and any larger
denomination which is an integral
multiple of $1,000. Global Notes will
be denominated in principal amounts not
in excess of $200,000,000. If one or
more Book-Entry Notes having an
aggregate principal amount in excess of
$200,000,000 would, but for the
preceding sentence, be represented by a
single Global Note, then one Global Note
will be issued to represent $200,000,000
principal amount of such Book Entry Note
or Notes and an additional Global Note
will be issued to represent any
remaining principal amount of such
Book-Entry Note or Notes. In such a
case, each of the Global Notes
representing such Book-Entry Note or
Notes shall be assigned the same CUSIP
number.
Interest: General. Interest on each Book-Entry
Note will accrue from the Original
Interest Accrual Date of the Global Note
representing such Note. Each payment of
interest on a Book-Entry Note will
include interest accrued through the day
preceding, as the case may be, the
Interest Payment Date, or Stated
Maturity or date of earlier redemption,
if any (Stated Maturity and date of
earlier redemption, if any, are referred
to herein collectively as "Maturity").
Interest payable at Maturity of a
Book-Entry Note will be payable to the
Person to whom the principal of such
Book Entry Note is payable. DTC will
arrange for each pending deposit message
described under Settlement Procedure C
below to be transmitted to Standard &
Poor's Corporation, which will use the
information in the message to include
certain terms of the related Global Note
in the appropriate daily bond report
published by Standard & Poor's
Corporation.
Record Dates. The Record Date with respect to any Interest
Payment Date for a Book-Entry Note shall be the fifteenth day of
the month preceding such Interest Payment Date.
Interest Payments Dates. Interest payments will be made on
each Interest Payment Date commencing with the first Interest
Payment Date following the Issue Date; provided, however, that
the first payment of interest on any Global Note originally
issued between a Record Date and an Interest Payment Date will
occur on the Interest Payment Date following the next Record
Date.
Interest payments on a Book-Entry Note will be made
semiannually on the first day of such months as shall be
specified in respect of such Note by the pro tempore
committee of the Company (each an "Interest Payment Date")
and at Maturity.
The Trustee will take all action necessary so that the
Interest Payment Dates, and the Record Dates with respect
thereto, for each Book-Entry Note, together with the amount of
interest payable on each of such Interest Payment Dates, shall be
listed in the appropriate daily bond report published by Standard
& Poor's Corporation.
Payments of Principal
and Interest: Payments of Interest Only. Promptly
after each Record Date, the Trustee will
deliver to the Company and DTC a written
notice specifying by CUSIP number the
amount of interest to be paid on each
Global Note 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
Global Note on such Interest Payment
Date by reference to the daily bond
reports published by Standard & Poor's
Corporation. On such Interest Payment
Date, the Company will pay to the
Trustee, and the Trustee in turn will
pay to DTC, such total amount of
interest due (other than at Maturity),
at the times and in the manner set forth
below under "Manner of Payment."
Payments at Maturity. On or about the first Business Day of
each month, the Trustee will deliver to the Company and DTC a
written list of principal, interest and premium, if any, to be
paid on the Maturity of each Global Note in the following month.
The Trustee, the Company and DTC will confirm the amounts of such
principal, interest and premium, if any, payments with respect to
a Global Note on or about the fifth Business Day preceding such
Maturity. At such Maturity, the Company will pay to the Trustee,
and the Trustee in turn will pay to DTC, the principal amount of
such Note, together with interest and premium, if any, due at
such Maturity, at the times and in the manner set forth below
under "Manner of Payment." If any date of Maturity of a Global
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 date of
Maturity. Promptly after payment to DTC of the principal,
interest and premium, if any, due at the Maturity of such Global
Note, the Trustee will cancel such Global Note and deliver it to
the Company with an appropriate debit advice. On the first
Business Day of each month, the Trustee will deliver to the
Company a written statement indicating the total principal amount
of Outstanding Global Notes as of the immediately preceding
Business Day.
Manner of Payment. The total amount of any principal,
premium, if any, and interest due on Global Notes on any Interest
Payment Date or at Maturity shall be paid by the Company to the
Trustee in funds available for use by the Trustee as of 9:30
a.m., New York City time, on such date. If an Interest Payment
Date falls on any day other than a Business Day, then interest
shall be paid on the next succeeding Business Day and such
extended time shall not be included in the computation of
interest. The Company will make such payment on such Global
Notes by instructing the Trustee to withdraw funds from an
account maintained by the Company at the Trustee. The Company
will confirm such instructions in writing to the Trustee. Prior
to 11:00 a.m., New York City time, on such date or as soon as
possible thereafter, the Trustee 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, principal and
premium, if any, due on a Global Note on such date. Thereafter
on 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 such
Global Notes are recorded in the book-entry system maintained by
DTC. Neither the Company nor the Trustee shall have the
responsibility or liability for the payment by DTC of the
principal of, or interest on, the Global Notes to such
Participants.
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 and materials directly to the
beneficial owner of such Note.
Acceptance and
Rejections of
Offers: The Company shall have the sole right to
accept offers to purchase Notes from the
Company and may reject any such offer in
whole or in part. Each Agent shall
promptly communicate to the Company,
orally or in writing, each reasonable
offer to purchase Notes from the Company
received by it, other than those
rejected by such Agent. Each Agent
shall have the right, in its discretion
reasonably exercised, without notice to
the Company, to reject any offer to
purchase Notes in whole or in part,
except as limited by the terms of
Section 1(c) of the Distribution
Agreement.
Settlement
Procedures: Settlement Procedures with regard to
each Book-Entry Note sold by the
Presenting Agent, as agent of the
Company, will be as follows:
A. The Presenting Agent will advise the
Company by telephone (confirmed by
facsimile if requested) of the following
settlement information:
1. Name, address and taxpayer
identification number of the purchaser.
2. Principal amount.
3. Interest rate.
4. Price to public.
5. Trade date.
6. Settlement Date (Issue Date).
7. Stated Maturity.
8. Redemption provisions, if any.
9. Net proceeds to the Company.
10. Presenting Agent's commission.
B. The pro tempore committee of the
Company will approve the terms of such
Note and its issuance and sale and select
the Interest Payment Dates of such Note.
The Company will assign a CUSIP number to
the Global Note representing such Note
and then advise the Trustee by
electronic transmission of the above
settlement information received from the
Presenting Agent, the Interest Payment
Date, such CUSIP number and the name of
the Presenting Agent. The Company will
transmit by telex or facsimile its
written request for the authentication
and delivery of such Global Note to the
Trustee (the executed original of such
request shall be delivered to the
Trustee prior to each Settlement Date).
C. The Trustee will communicate to DTC
through DTC's Participant Terminal
System, a pending deposit message
specifying the following settlement
information:
1. The information set forth in
Settlement Procedure A and the Interest
Payment Dates.
2. Identification numbers of the
participant accounts maintained by DTC
on behalf of the Trustee.
3. Initial Interest Payment Date for
such Note, number of days by which such
date succeeds the related Record Date
for DTC purposes and the amount of
interest payable on such Interest
Payment Date (which amount shall have
been confirmed by the Trustee).
4. CUSIP number of the Global Note
representing such Note.
5. Whether such Global Note represents
any other Book-Entry Notes issued or to
be issued.
D. The Company will complete and
deliver to the Trustee a Global Note
representing such Note in a form that
has been approved by the Company, the
Presenting Agent and the Trustee.
E. The Trustee will authenticate the
Global Note representing such Note.
F. DTC will credit such Note to the
participant account of the Trustee
maintained by DTC.
G. The Trustee will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Note to the Trustee's
participant account and credit such Note
to the participant account of the
Presenting Agent maintained by DTC and
(ii) to debit the settlement account of
the Presenting Agent and credit the
settlement account of the Trustee
maintained by DTC, in an amount equal to
the price of such Note less the
Presenting Agent's commission. Any
entry of such a deliver order shall be
deemed to constitute a representation
and warranty by the Trustee to DTC that
(i) the Global Note representing such
Note has been issued and authenticated
and (ii) the Trustee is holding such
Global Note pursuant to the Certificate
Agreement.
H. The Presenting Agent will enter an
SDFS deliver order through DTC's
Participant Terminal System instructing
DTC (i) to debit such Note to the
Presenting Agent's participant account
and credit such Note to the participant
account of the Participants maintained
by DTC and (ii) to debit the settlement
accounts of such Participants and credit
the settlement account of the Presenting
Agent maintained by DTC, in an amount
equal to the initial public offering
price of such Note.
I. Transfers of funds in accordance
with SDFS deliver orders described in
Settlement Procedures G and H will be
settled in accordance with SDFS
operating procedures in effect on the
Settlement Date.
J. The Trustee will credit to an
account of the Company maintained at the
Trustee funds available for immediate
use in the amount transferred to the
Trustee in accordance with Settlement
Procedure G.
K. The Trustee will send a copy of the
Global Note by first-class mail to the
Company together with a statement
setting forth the principal amount of
Notes Outstanding as of the related
Settlement Date after giving effect to
such transaction and all other offers to
purchase Notes of which the Company has
advised the Trustee but which have not
yet been settled.
L. The Presenting Agent will confirm
the purchase of such Note to the
purchaser either by transmitting to the
Participant with respect to such Note a
confirmation order through DTC's
Participant Terminal System or by
mailing a written confirmation to such
purchaser.
Settlement Procedures
Timetable: For orders of Book-Entry Notes accepted
by the Company, Settlement Procedures
"A" through "L" 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-B 11:00 a.m. on the trade date
C No later than 2:00 p.m. on the Business
Day before Settlement Date
D 3:00 p.m. on the Business Day before
Settlement Date
E 9:00 a.m. on Settlement Date
F 10:00 a.m. on Settlement Date
G-H No later than 2:00 p.m. on Settlement
Date
I-L 4:45 p.m. on Settlement Date
If a sale is to be settled more than one
Business Day after the trade date,
Settlement Procedures A, B and C may, if
necessary, be completed at any time
prior to the specified times on the
first Business Day after such trade
date. Settlement Procedure I 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, the Trustee
will deliver to DTC, through DTC's
Participant Terminal System, a
cancellation message to such effect by
no later than 2:00 p.m., New York City
time, on the Business Day immediately
preceding the scheduled Settlement Date.
Failure to Settle: If the Trustee fails to enter an SDFS
deliver order with respect to a
Book-Entry Note pursuant to Settlement
Procedure G, the Trustee may deliver to
DTC, through DTC's Participant Terminal
System, as soon as practicable a
withdrawal message instructing DTC to
debit such Note to the participant
account of the Trustee maintained at
DTC. DTC will process the withdrawal
message, provided that such participant
account contains a principal amount of
the Global Note representing such Note
that is at least equal to the principal
amount to be debited. If withdrawal
messages are processed with respect to
all the Book-Entry Notes represented by
a Global Note, the Trustee will mark
such Global Note "canceled," make
appropriate entries in its records and
send such canceled Global Note to the
Company. The CUSIP number assigned to
such Global Note shall, in accordance
with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned.
If withdrawal messages are processed
with respect to a portion of the
Book-Entry Notes represented by a Global
Note, but not all, the Trustee will
exchange such Global Note for two Global
Notes, one of which shall represent the
Global Notes for which withdrawal
messages are processed and shall be
canceled immediately after issuance, and
the other of which shall represent the
other Book-Entry Notes previously
represented by the surrendered Global
Note and shall bear the CUSIP number of
the surrendered Global Note.
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 Presenting Agent may enter
SDFS deliver orders through DTC's
Participant Terminal System reversing
the orders entered pursuant to
Settlement Procedures G and H,
respectively. Thereafter, the Trustee
will deliver the withdrawal message and
take the related actions described in
the preceding paragraph. If such
failure shall have occurred for any
reason other than default by the
Presenting Agent to perform its
obligations hereunder or under the
Distribution Agreement, the Company will
reimburse the Presenting Agent for its
loss of the use of funds during the
period when the funds were credited to
the account of the Company.
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 a Book-Entry Note that was to
have been represented by a Global Note
also representing other Book-Entry
Notes, the Trustee will provide, in
accordance with Settlement Procedures D
and E, for the authentication and
issuance of a Global Note representing
such remaining Book-Entry Notes and will
make appropriate entries in its records.
Exhibit B
The Company agrees to pay each Agent a commission equal to
the following percentage of the aggregate principal amount of
Securities sold to purchasers solicited by such Agent.
Commission Rate
(as a percentage of
aggregate principal amount
Term of Securities sold)
--------- ----------------------------
9 months to less than 12 months
12 months to less than 18 months
18 months to less than 24 months
2 years to less than 3 years
3 years to less than 4 years
4 years to less than 5 years
5 years to less than 6 years
6 years to less than 7 years
7 years to less than 10 years
10 years to less than 15 years
15 years to less than 20 years
20 years and more
Exhibit C
Terms Agreement Information
The following terms, if applicable, shall be agreed to
by the applicable Agent and the Company pursuant to each Terms
Agreement:
Principal Amount:
Interest Rate:
Interest Payment Date:
Price to Public:
If Redeemable:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Other Redemption Terms:
Proceeds to the Company:
Date of Maturity:
Purchase Price:
Settlement Date:
Underwriting Discounts and Commissions:
Issue Date:
Additional Terms:
Also, it shall be agreed to by such Agent and the Company
pursuant to such Terms Agreement whether the following will be
required:
Legal Opinions pursuant to Section 7(b) of the
Distribution Agreement;
Comfort Letter pursuant to Section 7(c) of the
Distribution Agreement; and
Officer's Certificate pursuant to Section 7(d) of the
Distribution Agreement.
Exhibit 4(b)
-----------------------------------------------------------------
NATIONAL FUEL GAS COMPANY
TO
THE BANK OF NEW YORK
(formerly Irving Trust Company)
TRUSTEE
_______________
_____________ SUPPLEMENTAL INDENTURE
Dated as of __________, _____
TO
INDENTURE
Dated as of October 15, 1974
_______________
[A Series of Debentures designated
MEDIUM-TERM NOTES, SERIES ___
due from nine months to 40 years from date of issue]
[or]
[_____% Debentures, Series due _____]
-----------------------------------------------------------------
<PAGE>
_____________ SUPPLEMENTAL INDENTURE dated as of
________________, ____, made and entered into by and between
NATIONAL FUEL GAS COMPANY, a corporation of the State of New
Jersey, with its Post Office address at 10 Lafayette Square,
Buffalo, New York 14203 (hereinafter sometimes called the
Company), party of the first part, and THE BANK OF NEW YORK
(formerly Irving Trust Company), a corporation of the State of
New York, whose Post Office address is 101 Barclay Street, New
York, New York 10286 (hereinafter sometimes called the Trustee),
party of the second part, as Trustee under the Indenture dated as
of October 15, 1974 executed and delivered by the Company:
WHEREAS the aforesaid Indenture dated as of October 15,
1974 (herein with all indentures supplemental thereto called the
Indenture) provides for the issuance of fully registered
debentures in one or more series (hereinafter called the
Debentures), unlimited in aggregate principal amount; and
WHEREAS the Indenture provides that the Company and the
Trustee may enter into indentures supplemental thereto for the
purpose of setting forth the terms and provisions of each series
of Debentures from time to time issued; and
WHEREAS the Company has determined to create the
________ series of Debentures, and all things necessary to make
this ________ Supplemental Indenture a valid, binding and legal
instrument supplemental to the Indenture have been performed and
the issuance of said _____ series of Debentures, subject to the
terms of the Indenture, has been in all respects duly authorized;
NOW, THEREFORE, THIS INDENTURE WITNESSETH: that in
order to set forth the terms and provisions of said _____ series
of Debentures and in consideration of the premises and of the
purchase and acceptance of said Debentures by the Holders
thereof, and in consideration of the sum of One Dollar by the
Trustee to the Company paid, receipt whereof is hereby
acknowledged, the Company hereby agrees and provides, for the
equal and proportionate benefit of the respective holders from
time to time of the Debentures, as follows:
ARTICLE ONE
_____ SERIES OF DEBENTURES
SECTION 1. There shall be a series of Debentures
designated as "_____% Debentures, Series due ________, _____"
(herein sometimes referred to as the "_____ Series"), limited to
an aggregate principal amount of ________ Dollars ($________)
except as otherwise provided in the Indenture.
The form of the Debentures of the _____________ Series,
which shall be established by Resolution of the Board of
Directors, shall contain suitable provisions with respect to the
matters hereinafter specified.
SECTION 2. The Debentures of the _____ Series shall
mature on ________, ________; they shall bear interest at the
rate of _____________ per centum (_____%) per annum, payable
semi-annually on ________ and ________ of each year; the
principal of, and the premium, if any, and the interest on, each
said Debenture shall be paid at the office or agency of the
Company in the Borough of Manhattan, The City of New York, in
such coin or currency of the United States of America as at the
time of payment is legal tender for public and private debts;
provided, that, at the option of the Company, interest may be
payable by check mailed to the address of the person entitled
thereto as such address shall appear on the Debenture register or
by a federal wire transfer to such person [who at the time of such
payment holds in excess of $__________ principal amount of
Debentures of the ________ Series] in accordance with written
instructions received by the Company from such person.
Debentures of the ________ Series authenticated for original
issue shall be dated the date of authentication and shall bear
interest from ________, ________. Each Debenture of the
________ Series, other than a Debenture authenticated for
original issue, shall be dated and bear interest as in Section
2.02 of the Indenture provided.
Notwithstanding the foregoing, so long as there is no
existing default in the payment of interest on the Debentures,
all Debentures of the ________ Series authenticated by the
Trustee after the Record Date hereinafter specified for any
interest payment date and prior to such interest payment date
shall be dated the date of authentication but shall bear interest
from such interest payment date, subject to the provisos and
exceptions of said Section 2.02, and the person in whose name any
Debenture is registered at the close of business on any Record
Date with respect to any interest payment date shall be entitled
to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debenture upon any
transfer or exchange thereof subsequent to such Record Date and
on or prior to such interest payment date, subject to the
provisos and exceptions of said Section 2.02 and all as provided
in said Section 2.02 [, provided that interest payable on the
maturity date will be payable to the person to whom the principal
of the Debenture shall be payable]. The Record Date for the
interest payable ________ on the Debentures of the ________
Series is ________ and the Record Date for the interest payable
________ on the Debentures of the ____________ Series is
________.
*SECTION 3. The Debentures of the ________ Series are
redeemable at the option of the Company in whole at any time, or
in part from time to time, prior to maturity, at the prices set
forth in the tabulation below under the heading "Redemption
Prices" and expressed in percentages of the principal amount of
the Debentures to be redeemed, together, in each case, with
accrued interest to the date fixed for redemption, provided that
none of the Debentures of the ________ Series shall be redeemed
at the Redemption Prices prior to the [first] [fifteenth] day of
________, ________, if such redemption is for the purpose or in
anticipation of their refunding through the use, directly or
indirectly, of funds borrowed by the Company at an effective
interest cost to the Company (calculated in accordance with
acceptable financial practice) of less than ________% per annum.
If Redeemed If Redeemed
During 12 During 12
Months Months
Period Redemption Period Redemption
Ending Price Ending Price
___________ ____________ ___________ __________
Redemption of Debentures of the _____________ Series
shall be made in accordance with the provisions of Sections 5.02,
5.03 and 5.04 of the Indenture.
*This Section will be omitted or changed if the
Debentures to which this Supplemental Indenture relates shall not
be subject to redemption or shall be subject to redemption on
terms different from those described herein.
**[SECTION 1. There shall be a series of Debentures
designated "Medium-Term Notes, Series _____" (herein sometimes
referred to as the "_____________ Series"), due from nine months
to 40 years from the date of issue, limited to an aggregate
principal amount of ________ Dollars ($________) except as
otherwise provided in the Indenture.
The form of the Debentures of the ________ Series,
which shall be established by Resolution of the Board of
Directors, shall contain suitable provisions with respect to the
matters hereinafter specified.
SECTION 2. Each Debenture of the __________________
Series shall mature on such date not less than nine months nor
more than 40 years from the date of issue; shall bear interest at
such rate or rates (which may be either fixed or variable),
payable semi-annually on the first day of such months in each year
(each an interest payment date) and at maturity and shall have
such other terms and provisions not inconsistent with the
Indenture as the Board of Directors may determine in accordance
with a Resolution filed with the Trustee referring to this
________ Supplemental Indenture; and the principal of, and the
premium, if any, and the interest on, each said Debenture shall
be paid at the office or agency of the Company in the Borough of
Manhattan, The City of New York, in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts; provided, that, at the
option of the Company, interest may be payable by check mailed to
the address of the person entitled thereto as such address shall
appear on the Debenture register or by a federal wire transfer to
such person [who at the time of such payment holds in excess of
$__________ principal amount of Debentures of the ________ Series]
in accordance with written instructions received by the Company from
such person. Debentures of the _____________ Series of a designated
interest rate, interest payment dates and maturity authenticated for
original issue shall be dated the date of authentication and shall
bear interest from the Original Interest Accrual Date hereinafter
specified.
Notwithstanding the foregoing, so long as there is no
existing default in the payment of interest on the Debentures,
all Debentures of the ________ Series authenticated by the
Trustee after the Record Date hereinafter specified for any
interest payment date and prior to such interest payment date
(unless the Issue Date is after such Record Date) shall be dated
the date of authentication but shall bear interest from such
interest payment date, subject to the provisos and exceptions of
Section 2.02 of the Indenture, and the person in whose name any
Debenture is registered at the close of business on any Record
Date with respect to any interest payment date shall be entitled
to receive the interest payable on such interest payment date
notwithstanding the cancellation of such Debenture upon any
transfer or exchange thereof subsequent to such Record Date and
on or prior to such interest payment date, subject to the
provisos and exceptions of Section 2.02 and all as provided in
Section 2.02, provided that interest payable on the maturity date
will be payable to the person to whom the principal of the
Debenture shall be payable. If the Issue Date of the Debentures
of the _____________ Series of a designated interest rate,
interest payment dates and maturity is after such Record Date and
prior to the next succeeding interest payment date, such
Debentures shall bear interest from the Original Interest Accrual
Date but payment of interest shall commence on the second
interest payment date succeeding the Issue Date. The Record Date
for the interest payable on an interest payment date on the
Debentures of the ________ Series is the fifteenth day of the month
next preceding such interest payment date. "Original Interest
Accrual Date" with respect to Debentures of the ________ Series
of a designated interest rate, interest payment dates and maturity
shall mean the date of the first authentication of Debentures
of such designated interest rate, interest payment dates and
maturity unless the Board of Directors shall determine another
date from which interest shall accrue in accordance with a
Resolution filed with the Trustee referring to this ____
Supplemental Indenture, then such other date for Debentures
of such designated interest rate, interest payment dates and
maturity. "Issue Date" with respect to Debentures of the
_____ Series of a designated interest rate, interest payment
dates and maturity shall mean the date of the first authentication
of Debentures of such designated interest rate, interest payment
dates and maturity.
SECTION 3. Each Debenture of the _________________
Series may be redeemable at the option of the Company in whole at
any time, or in part from time to time, prior to maturity, as the
Board of Directors may determine in accordance with a Resolution
filed with the Trustee referring to this ________ Supplemental
Indenture.
Redemption of any Debentures of the ___________ Series
shall be made in accordance with the provisions of Sections 5.02,
5.03 and 5.04 of the Indenture.]
**These provisions will be inserted in lieu of Sections
1, 2 and 3 above in any Supplemental Indenture relating to the
issuance of Debentures which are designated "Medium-Term Notes,
Series____".
ARTICLE TWO
MISCELLANEOUS PROVISIONS
***[SECTION 4. The holders of Debentures of the
________ Series consent that the Company may, but shall not be
obligated to, fix a record date for the purpose of determining
the holders of Debentures of the ________ Series entitled to
consent to any amendment, supplement or waiver to or under the
Indenture. If a record date is fixed, those persons who were
holders at such record date (or their duly designated proxies),
and only those persons, shall be entitled to consent to such
amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be
holders after such record date. No such consent shall be valid
or effective for more than 90 days after such record date.]
***This provision may be inserted in any Supplemental
Indenture relating to the issuance of Debentures or the
Debentures which are designated "Medium-Term Notes, Series___",
which will be issued to The Depository Trust Company, and the
subsequent sections will be renumbered accordingly.
SECTION 4. The recitals of fact contained in this
_____________ Supplemental Indenture and in the Debentures of the
________ Series (other than the certificate of authentication)
shall be taken as the statements of the Company and the Trustee
assumes no responsibility for the correctness of the same. The
Trustee makes no representations as to the validity of
this_____________ Supplemental Indenture or of the Debentures of
the ________ Series.
SECTION 5. The titles of the several Articles of this
_____________ Supplemental Indenture shall not be deemed to be
any part hereof.
SECTION 6. This _____________ Supplemental Indenture
may be executed in any number of counterparts, each of which so
executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS WHEREOF, said NATIONAL FUEL GAS COMPANY has
caused this instrument to be executed in its corporate name by
its [Title], and its corporate seal to be hereunto affixed and to
be attested by its [Title], and said THE BANK OF NEW YORK
(formerly Irving Trust Company) has caused this instrument to be
executed in its corporate name by one of its [Title] or one of
its [Title], and its corporate seal to be hereunto affixed and to
be attested by one of its [Title], all as of ________, _____.
NATIONAL FUEL GAS COMPANY
BY ______________________
[Title]
Attest:
_____________________
[Title]
THE BANK OF NEW YORK
BY ______________________
[Title]
Attest:
_____________________
[Title]
<PAGE>
STATE OF NEW YORK )
COUNTY OF ) ss:
On the ___ day of ________, in the year _____,
before me personally came ________________, to me known, who,
being by me duly sworn, did depose and say that he resides at
_____________, ________, ____; that he is the [Title] of NATIONAL
FUEL GAS COMPANY, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument bearing the
corporate name of said corporation is such corporate seal; that
it was so affixed by order of the Board of Directors of said
corporation; and that he signed his name thereto by like order.
____________________________
______________
NOTARY PUBLIC, State of New York
(No. ________)
Qualified in ___________ County
Commission Expires _______ ___, 19__
<PAGE>
STATE OF NEW YORK )
COUNTY OF NEW YORK ) ss:
On the ___ day of ________, in the year _____,
before me personally came ________________, to me known, who,
being by me duly sworn, did depose and say that he resides at
_____________, ________, ____; that he is a [Title] of THE BANK
OF NEW YORK (formerly Irving Trust Company), one of the
corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the
seal affixed to said instrument bearing the corporate name of
said corporation is such corporate seal; that it was so affixed
by order of the Board of Directors of said corporation; and that
he signed his name thereto by like order.
____________________________
______________
NOTARY PUBLIC, State of New York
(No. _________)
Qualified in ___________ County
Certificate Filed in ____________ County
Commission Expires _______ ___, 19__
EXHIBIT 4(C)
REGISTERED REGISTERED
R__________ $_______
FORM OF
NATIONAL FUEL GAS COMPANY
__% DEBENTURE, SERIES DUE
CUSIP --------
National Fuel Gas Company, a corporation of the State of New
Jersey (hereinafter called the Company), for value received,
hereby promises to pay to _____ or registered assigns, at the
office or agency of the Company in the Borough of Manhattan, The
City of New York, Dollars, on , in such coin or currency of the
United States of America as at the time of payment is legal
tender for public and private debts, and to pay interest thereon
from the or next preceding the date of this Debenture to which
interest has been paid, at the rate of per centum per annum in
like coin or currency at such office or agency on and
(hereinafter called "interest payment dates") in each year, until
the Company's obligation with respect to the payment of such
principal shall have been discharged; provided, however, that (a)
if the date hereof is an interest payment date to which interest
has been paid, then interest shall be payable only from the date
of this Debenture, (b) if the date hereof is prior to, then
interest shall be payable only from , and (c) if the date hereof
is after any record date, as hereinafter provided, with respect
to any interest payment date and prior to such interest payment
date, then interest shall be payable only from such interest
payment date, unless the Company shall default in the payment of
the interest due on such interest payment date, in which case
interest shall be payable from the next preceding interest
payment date to which interest has been paid, or, if no interest
has been paid on the Debentures, from ---------------------.
ADDITIONAL PROVISIONS OF THIS DEBENTURE ARE SET FORTH ON THE
REVERSE HEREOF AND SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE
THE SAME EFFECT AS THOUGH FULLY SET FORTH AT THIS PLACE.
This Debenture shall not become obligatory until THE BANK OF
NEW YORK (formerly Irving Trust Company), the Trustee under the
Indenture, or its successor thereunder, shall have signed the
form of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, NATIONAL FUEL GAS COMPANY has caused this
instrument to be signed in its corporate name by its Chairman of
the Board, President or a Vice- President by his signature or a
facsimile thereof, and its corporate seal to be impressed or
imprinted hereon and attested by its Secretary or an Assistant
Secretary by his signature or a facsimile thereof.
Date: NATIONAL FUEL GAS COMPANY
Attest:
By:---------------------
Secretary:
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Debenture is one of the Debentures, of the series
designated therein, described in the within-mentioned Indenture
and Supplemental Indenture.
THE BANK OF NEW YORK
As Trustee
By:-----------------------------
Authorized Signatory
[FORM OF REVERSE OF DEBENTURE]
The interest so payable on any interest payment date
will, subject to certain exceptions provided in the Indenture
referred to below, be paid to the person in whose name this
Debenture is registered at the close of business (whether or not
a business day) on the or (herein called "record dates"), as the
case may be, next preceding such interest payment date. At the
option of the Company, interest may be payable by check mailed to
the address of the person entitled thereto as such address shall
appear on the register of the Company or by federal wire transfer
to such person [who at the time of such payment holds in excess of
$_______ principal amount of Debentures] in accordance with written
instructions received by the Company from such person.
This Debenture is one of a duly authorized issue of
Debentures of the Company (herein called the Debentures), of the
series hereinafter specified, all issued and to be issued under
an Indenture, dated as of October 15, 1974, executed by the
Company to THE BANK OF NEW YORK (formerly Irving Trust Company)
(herein called the Trustee), to which Indenture and all
Indentures supplemental thereto (herein collectively called the
Indenture) reference is hereby made for a statement of the
rights, duties and immunities of the Trustee, of the covenants of
the Company therein contained and of the rights thereunder of the
registered owners of the Debentures. The Debentures are issuable
in series, which may mature at different times, bear interest at
different rates and otherwise vary as in the Indenture provided.
This Debenture is one of a series designated as the --%
Debentures, Series due ---------limited to the aggregate
principal amount of $ issued under the Indenture and described in
the Supplemental Indenture thereto dated as of between the
Company and the Trustee.
The principal hereof may be declared due prior to the
maturity date hereinbefore named on the conditions, in the manner
and at the time set forth in the Indenture, upon the occurrence
of a default as in the Indenture provided.
The rights and obligations of the Company and of the holders
of Debentures may be changed and modified at the request of the
Company by an indenture or indentures supplemental to the
Indenture, executed pursuant to the consent in writing of the
holders of a least 66 2/3% in principal amount of all Debentures
then outstanding, all in the manner and subject to the
limitations set forth in the Indenture, provided that no change
or modification may be made which would extend the maturity of,
or reduce the principal of or the rate of interest on or the
premium, if any, payable on redemption of, this Debenture or
otherwise modify the terms of payment of principal or interest or
premium or reduce the above percentage without the express
consent of the holder hereof, and provided, further, that any
such change or modification directly affecting the rights of
holders of one or more but not all series of Debentures shall
require such consent only from holders of at least 66 2/3% in
aggregate principal amount of outstanding Debentures of all
series so affected. Any consent by the holder of this Debenture
to the execution of a supplemental indenture (unless effectively
revoked as provided in the Indenture) shall be conclusive and
binding upon such holder and upon all future holders and owners
of this Debenture, irrespective of whether or not any notation of
such consent is made upon this Debenture.
This Debenture is transferable as prescribed in the Indenture
by the registered owner hereof in person, or by his duly
authorized attorney, at the office or agency of the Company in
the Borough of Manhattan, The City of New York, upon surrender
for cancellation of this Debenture, together with a written
instrument of transfer if required by the Company or the Trustee,
duly executed by the registered owner, or by his duly authorized
attorney, and upon payment of the charges prescribed in the
Indenture and, thereupon, a new Debenture for a like principal
amount will be issued to the transferee in exchange herefor as
provided in the Indenture. Subject to the foregoing provisions as
to the person entitled to receive payment of interest hereon, the
Company and the Trustee may deem and treat the person in whose
name this Debenture is registered as the absolute owner hereof
for the purpose of receiving payment and for all other purposes.
In the manner and upon payment of the charges prescribed in
the Indenture, Debentures, upon surrender thereof at the office
or agency of the Company in the Borough of Manhattan, The City of
New York, are exchangeable for a like aggregate principal amount
of Debentures of authorized denominations of the same series.
[The Company shall not be required (i) to register transfers
or make exchanges or substitutions of Debentures for a period of
fifteen days next preceding any mailing of notice of redemption
or (ii) to register transfers or make exchanges or substitutions
of Debentures theretofore selected for redemption in whole or
in part, except, in the case of any Debenture to be redeemed in
part, the portion thereof not so to be redeemed.
The Debentures of this series are redeemable at the option of
the Company in whole at any time, or in part from time to time,
prior to maturity, upon notice (which may be subject to receipt
of the redemption moneys by the Trustee prior to the date fixed
for redemption) to holders of Debentures mailed not less than 30
nor more than 60 days prior to the date fixed for redemption, at
the prices set forth in the tabulation below under the heading
"Redemption Price" and expressed in percentages of the principal
amount of the Debentures to be redeemed, together, in each case,
with accrued interest to the date fixed for redemption, all as
more fully provided in the Indenture, provided, that none of the
Debentures of this series shall be redeemed at the Redemption
Prices prior to the day of, if such redemption is for the purpose
or in anticipation of their refunding through the use, directly
or indirectly, of funds borrowed by the Company at an effective
interest cost to the Company (calculated in accordance with
acceptable financial practice) of less than the effective
interest cost of the Debentures of this series. If at the time of
mailing of any notice of redemption the Trustee shall not have
received for the purpose an amount in cash sufficient to redeem
all of the Debentures called for redemption, including accrued
interest to such date fixed for redemption, such notice shall
state that it is subject to the receipt of the redemption moneys
by the Trustee prior to the date fixed for redemption, and such
notice shall be of no effect unless such moneys are received
prior to such date.
If Redeemed If Redeemed
During 12 Months' Redemption During 12 Months' Redemption
Period Ending Price Period Ending Price
-------------- ----------- ---------------- -----------
------------ ------------
------------ ------------
------------ ------------
------------ ------------
------------ ------------
------------ ------------
------------ ------------
------------ ------------]*
This Debenture shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be
construed in accordance with the laws of such State.
No recourse shall be had for the payment of the principal of,
or interest on, this Debenture, or any part thereof, or for any
claim based hereon or otherwise in respect hereof, or of the
indebtedness represented hereby, or upon any obligation, covenant
or agreement of the Indenture or any indenture supplemental
thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or of
any predecessor or successor corporation (either directly or
through the Company or any predecessor or successor corporation),
whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all liability, if any, of that character against
every such incorporator, stockholder, officer and director being
by the acceptance hereof, and as part of the consideration for
the issue hereof, expressly waived and released.
-----------------
* These provisions shall be modified if the Debentures are
not redeemable or are redeemable upon different terms.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were
written out in full according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ---- Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right under Uniform Gift to Minors
of survivorship and not Act-------------------------
as tenants in common (State)
Additional abbreviations may also be used though not
in the above list.
-------------------------
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 typewrite name and address including postal
zip code of assignee
---------------------------------------------------------------------------
the within Debenture and all rights thereunder, hereby irrevocably
constituting and appointing
----------------------------------------------------------------attorney
to transfer said Debenture on the books of the Company, with full power
of substitution in the premises.
Dated:------------------- -------------------------------
NOTICE: The signature to this assignment must correspond with the
name as written upon the face of the within Instrument in every
particular, without alteration or enlargement or any change whatever.
[GENERAL FORM OF FIXED RATE/REDEEMABLE NOTE]
[(See legend at the end of this Debenture for
Restrictions on Transfer and Change of Form)]
NATIONAL FUEL GAS COMPANY
MEDIUM-TERM NOTE, SERIES
(being a Series of Debentures)
NO.: R--
ISSUE DATE: PRINCIPAL AMOUNT: CUSIP:
ORIGINAL INTEREST INTEREST RATE: MATURITY DATE:
ACCRUAL DATE:
LIMITATION DATE: INITIAL PERCENTAGE: PAR DATE:
INITIAL REDEMPTION DATE: REDUCTION PERCENTAGE:
INTEREST PAYMENT DATES:
The Optional Redemption Price shall initially be the Initial
Percentage specified above of the principal amount of this Debenture to be
redeemed and, unless otherwise provided in the space below, shall decline
by equal amounts at each anniversary of the Initial Redemption Date by
the Reduction Percentage specified above of the principal amount to be
redeemed, until the Par Date specified above. On and after the Par Date,
the Optional Redemption Price shall be 100% of such principal amount. This
Debenture shall not be redeemed prior to the Limitation Date specified
above, if such redemption is for the purpose or in anticipation of
refunding such Debenture through the use, directly or indirectly, of funds
borrowed by the Company at an effective interest cost to the Company
(computed in accordance with generally accepted financial practice) of
less than the effective interest cost of this Debenture.
(SEE ATTACHED SCHEDULE A FOR
OPTIONAL REDEMPTION PRICES)
Additional Redemption Prices, if any:
NATIONAL FUEL GAS COMPANY, a corporation of the State of New
Jersey (herein called the Company), for value received, hereby promises to
pay to
or registered assigns, at the office or agency of the Company in the
Borough of Manhattan, The City of New York,
Dollars,
on the Maturity Date specified above, in such coin or currency of the
United States of America as at the time of payment is legal tender for
public and private debts, and to pay interest thereon at the Interest Rate
specified above, semi-annually on the Interest Payment Dates specified
above of each year (each an interest payment date) and on the Maturity
Date, from the Original Interest Accrual Date specified above or from
the most recent interest payment date to which interest has been paid,
commencing on the interest payment date next succeeding the Original
Interest Accrual Date, in like coin or currency at such office or
agency on the interest payment date, in each year, until the
Company's obligation with respect to the payment of such principal
shall have been discharged, provided, however, that if the date
-------- -------
hereof is after a record date specified below with respect to any
interest payment date and prior to such interest payment date, then
interest shall be payable only from such interest payment date (unless the
Issue Date is after such record date). If the Issue Date specified above
is after such record date and prior to the next succeeding interest payment
date, then payment of interest shall commence on the second interest
payment date succeeding the Issue Date, unless the Company shall default in
the payment of interest due on such interest payment date, in which case
interest shall be payable from the next preceding interest payment date to
which interest has been paid, or, if no interest has been paid on the
Debentures, from the Original Interest Accrual Date.
The interest so payable on any interest payment date will,
subject to certain exceptions provided in the Indenture referred to below,
be paid to the person in whose name this Debenture is registered at the
close of business (whether or not a business day) on the fifteenth day
of the month (herein called record dates), as the case may be, next
preceding such interest payment date. At the option of the Company,
interest may be payable by check mailed to the address of the person
entitled thereto as such address shall appear on the register of the
Company or by federal wire transfer to such person [who at the time
of such payment holds in excess of $________ principal amount of
Debentures] in accordance with written instructions received by the
Company from such person.
This Debenture is one of a duly authorized issue of Debentures
of the Company (herein called the Debentures), of the series hereinafter
specified, all issued and to be issued under an Indenture dated as of
October 15, 1974, executed by the Company to THE BANK OF NEW YORK (formerly
Irving Trust Company) (herein called the Trustee), to which Indenture and
all indentures supplemental thereto (herein collectively called the
Indenture) reference is hereby made for a statement of the rights, duties
and immunities of the Trustee, of the covenants of the Company therein
contained and of the rights thereunder of the registered owners of the
Debentures. The Debentures are issuable in series, which may mature at
different times, bear interest at different rates and otherwise vary as in
the Indenture provided. This Debenture is one of a series designated
Medium-Term Notes, Series , limited to the aggregate principal amount of
, issued under the Indenture and described in the
Supplemental Indenture thereto dated as of (herein called
the Supplemental Indenture) between the Company and the Trustee.
The holder of this Debenture hereby consents that the Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the holders of Debentures of this series entitled to consent to
any amendment, supplement or waiver to or under the Indenture. If a record
date is fixed, those persons who were holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
The principal hereof may be declared due prior to the Maturity
Date hereinbefore named on the conditions, in the manner and at the time
set forth in the Indenture, upon the occurrence of a default as in the
Indenture provided.
With the consent of the Company and to the extent permitted by
and as provided in the Indenture, the rights and obligations of the Company
and/or the rights of the holders of Debentures and/or the terms and
provisions of the Indenture may be modified or altered by such affirmative
vote or votes of the holders of Debentures then Outstanding as are
specified in the Indenture. Any consent by the holder of this Debenture to
the execution of a supplemental indenture (unless effectively revoked as
provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Debenture, irrespective of
whether or not any notation of such consent is made upon this Debenture.
This Debenture is transferable as prescribed in the Indenture by
the registered owner hereof in person, or by his duly authorized attorney,
at the office or agency of the Company in the Borough of Manhattan, The
City of New York, upon surrender for cancellation of this Debenture,
together with a written instrument of transfer if required by the Company
or the Trustee, duly executed by the registered owner, or by his duly
authorized attorney, and upon payment of the charges prescribed in the
Indenture and, thereupon, a new Debenture for a like principal amount and
in such authorized denominations with the same Issue Date, Original
Interest Accrual Date, Maturity Date, Interest Rate, redemption
provisions and interest payment dates as may be requested will be
issued to the transferee in exchange herefor as provided in the
Indenture. Subject to the foregoing provisions as to the person
entitled to receive payment of interest hereon, the Company and the
Trustee may deem and treat the person in whose name this Debenture is
registered as the absolute owner hereof for the purpose of receiving
payment and for all other purposes.
In the manner and upon payment of the charges prescribed in the
Indenture, Debentures, upon surrender thereof at the office or agency of
the Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of Debentures of
authorized denominations of the same designated interest rate and maturity.
The Company shall not be required (i) to register transfers or
make exchanges or substitutions of Debentures for a period of fifteen days
next preceding any mailing of notice of redemption or (ii) to register
transfers or make exchanges or substitutions of Debentures theretofore
selected for redemption in whole or in part, except, in the case of any
Debenture to be redeemed in part, the portion thereof not so to be
redeemed.
This Debenture is redeemable at the option of the Company in
whole at any time, or in part from time to time, on any date after the
Initial Redemption Date specified on the face hereof and prior to the
Maturity Date, upon notice (which may be subject to receipt of the
redemption moneys by the Trustee prior to date fixed for redemption) to the
holder hereof mailed not less than 30 nor more than 60 days prior to the
date fixed for redemption, at the Optional Redemption Prices specified on
the face hereof, expressed in percentages of the principal amount of this
Debenture to be redeemed, together, in each case, with accrued interest to
the date fixed for redemption, provided, that redemption of this Debenture
prior to the Limitation Date, for the purpose or in anticipation of certain
refundings is restricted, all as more fully provided on the face hereof.
If at the time of mailing of any notice of redemption the Trustee shall not
have received for the purpose an amount in cash sufficient to redeem all of
the Debentures called for redemption, including accrued interest to such
date fixed for redemption, such notice shall state that it is subject to
the receipt of the redemption moneys by the Trustee prior to the date fixed
for redemption, and such notice shall be of no effect unless such moneys
are received prior to such date.
This Debenture shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Debenture, or any part thereof, or
for any claim based hereon or otherwise in respect hereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or
agreement of the Indenture or any indenture supplemental thereto, against
any incorporator, stockholder, officer or director, as such, past, present
or future, of the Company or of any predecessor or successor corporation
(either directly or through the Company or any predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all liability, if any, of that character against every such
incorporator, stockholder, officer and director being by the acceptance
hereof, and as part of the consideration for the issue hereof, expressly
waived and released.
This Debenture shall not become obligatory until THE BANK OF NEW
YORK, the Trustee under the Indenture, or its successor thereunder, shall
have signed the form of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, NATIONAL FUEL GAS COMPANY has caused this
instrument to be signed in its corporate name by its Chairman of the Board,
President or a Vice-President by his signature or a facsimile thereof, and
its corporate seal to be impressed or imprinted hereon and attested by its
Secretary or an Assistant Secretary by his signature or a facsimile
thereof.
NATIONAL FUEL GAS COMPANY
By ------------------------
Attest:
----------------------------------
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Debenture is one of the Debentures, of the series designated
therein, described in the within-mentioned Indenture and Supplemental
Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By ----------------------
Authorized Officer
-----------------------------------------
[Unless and until this Debenture is exchanged in whole or in part
for certificated Debentures registered in the names of the various
beneficial holders hereof as then certified to the Trustee by The
Depository Trust Company or its successor (the Depositary), this Debenture
may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of the
Depositary to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of the Depositary and any amount payable thereunder is made
payable to Cede & Co. or such other name, 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.
This Debenture may be exchanged for certificated Debentures
registered in the names of the various beneficial owners hereof only if (a)
the Depositary is at any time unwilling or unable to continue as depositary
and a successor depositary is not appointed by the issuer within 90 days,
or (b) the issuer, the Trustee and the Depositary consent to such
exchange.]
--------------------------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
-----------------------------------------------------------------------
(please insert social security or other identifying number of assignee)
-----------------------------------------------------------------
(please print or typewrite name and address of assignee)
the within Debenture of NATIONAL FUEL GAS COMPANY and does hereby
irrevocably constitute and appoint
-----------------------------------------------------------------
as Attorney, to transfer said Debenture on the books of the within-
mentioned Company, with full power of substitution in the premises.
Dated: --------------------------
----------------------------------
Notice: The signature to this assignment must correspond with the name as
written upon the face of the Debenture in every particular without
alteration or enlargement or any change whatsoever.
[GENERAL FORM OF FIXED RATE/NON-REDEEMABLE NOTE]
[(See legend at the end of this Debenture for
Restrictions on Transfer and Change of Form)]
NATIONAL FUEL GAS COMPANY
MEDIUM-TERM NOTE, SERIES
(being a Series of Debentures)
NO.: --
ISSUE DATE: PRINCIPAL AMOUNT: CUSIP:
ORIGINAL INTEREST INTEREST RATE: MATURITY DATE:
ACCRUAL DATE:
INTEREST PAYMENT DATES:
NATIONAL FUEL GAS COMPANY, a corporation of the State of New
Jersey (hereinafter called the Company), for value received, hereby
promises to pay to
or registered assigns, at the office or agency of the Company in the
Borough of Manhattan, The City of New York,
Dollars, on the
Maturity Date specified above, in such coin or currency of the United
States of America as at the time of payment is legal tender for public and
private debts, and to pay interest thereon at the Interest Rate specified
above, semi-annually on the Interest Payment Dates specified above of each
year (each an interest payment date) and on the Maturity Date, from the
Original Interest Accrual Date specified above or from the most recent
interest payment date to which interest has been paid, commencing on the
interest payment date next succeeding the Original Interest Accrual Date,
in like coin or currency at such office or agency on the interest payment
date, in each year, until the Company's obligation with respect to the
payment of such principal shall have been discharged, provided, however,
-------- -------
that if the date hereof is after a record date specified below with
respect to any interest payment date and prior to such interest payment
date, then interest shall be payable only from such interest payment
date (unless the Issue Date is after such record date). If the Issue
Date specified above is after such record date and prior to the next
succeeding interest payment date, then payment of interest shall commence
on the second interest payment date succeeding the Issue Date, unless the
Company shall default in the payment of interest due on such interest
payment date, in which case interest shall be payable from the next
preceding interest payment date to which interest has been paid, or,
if no interest has been paid on the Debentures, from the Original
Interest Accrual Date.
The interest so payable on any interest payment date will,
subject to certain exceptions provided in the Indenture referred to below,
be paid to the person in whose name this Debenture is registered at the
close of business (whether or not a business day) on the fifteenth day of
the month (herein called record dates), as the case may be, next preceding
such interest payment date. At the option of the Company, interest may be
payable by check mailed to the address of the person entitled thereto as
such address shall appear on the register of the Compnay or by federal
wire transfer to such person [who at the time of such payment holds in
excess of $_______ principal amount of Debentures] in accordance with
written instructions received by the Company from such person.
This Debenture is one of a duly authorized issue of Debentures of
the Company (herein called the Debentures), of the series hereinafter
specified, all issued and to be issued under an Indenture dated as of
October 15, 1974, executed by the Company to THE BANK OF NEW YORK (formerly
Irving Trust Company) (herein called the Trustee), to which Indenture and
all indentures supplemental thereto (herein collectively called the
Indenture) reference is hereby made for a statement of the rights, duties
and immunities of the Trustee, of the covenants of the Company therein
contained and of the rights thereunder of the registered owners of the
Debentures. The Debentures are issuable in series, which may mature at
different times, bear interest at different rates and otherwise vary as in
the Indenture provided. This Debenture is one of a series designated
Medium-Term Notes, Series , limited to the aggregate principal amount
of , issued under the Indenture and described in
the Supplemental Indenture thereto dated as of
(herein called the Supplemental Indenture) between the Company and the
Trustee.
The holder of this Debenture hereby consents that the Company
may, but shall not be obligated to, fix a record date for the purpose of
determining the holders of Debentures of this series entitled to consent to
any amendment, supplement or waiver to or under the Indenture. If a record
date is fixed, those persons who were holders at such record date (or their
duly designated proxies), and only those persons, shall be entitled to
consent to such amendment, supplement or waiver or to revoke any consent
previously given, whether or not such persons continue to be holders after
such record date. No such consent shall be valid or effective for more
than 90 days after such record date.
The principal hereof may be declared due prior to the Maturity
Date hereinbefore named on the conditions, in the manner and at the time
set forth in the Indenture, upon the occurrence of a default as in the
Indenture provided.
With the consent of the Company and to the extent permitted by
and as provided in the Indenture, the rights and obligations of the Company
and/or the rights of the holders of Debentures and/or the terms and
provisions of the Indenture may be modified or altered by such affirmative
vote or votes of the holders of Debentures then Outstanding as are
specified in the Indenture. Any consent by the holder of this Debenture to
the execution of a supplemental indenture (unless effectively revoked as
provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Debenture, irrespective of
whether or not any notation of such consent is made upon this Debenture.
This Debenture is transferable as prescribed in the Indenture by
the registered owner hereof in person, or by his duly authorized attorney,
at the office or agency of the Company in the Borough of Manhattan, The
City of New York, upon surrender for cancellation of this Debenture,
together with a written instrument of transfer if required by the Company
or the Trustee, duly executed by the registered owner, or by his duly
authorized attorney, and upon payment of the charges prescribed in the
Indenture and, thereupon, a new Debenture for a like principal amount and
in such authorized denominations with the same Issue Date, Original
Interest Accrual Date, Maturity Date, Interest Rate and interest payment
dates as may be requested will be issued to the transferee in exchange
herefor as provided in the Indenture. Subject to the foregoing provisions
as to the person entitled to receive payment of interest hereon, the
Company and the Trustee may deem and treat the person in whose name
this Debenture is registered as the absolute owner hereof for the purpose
of receiving payment and for all other purposes.
This Debenture shall not be redeemable prior to the Maturity
Date.
In the manner and upon payment of the charges prescribed in the
Indenture, Debentures, upon surrender thereof at the office or agency of
the Company in the Borough of Manhattan, The City of New York, are
exchangeable for a like aggregate principal amount of Debentures of
authorized denominations of the same designated interest rate and maturity.
This Debenture shall be deemed to be a contract made under the
laws of the State of New York and for all purposes shall be construed in
accordance with the laws of such State.
No recourse shall be had for the payment of the principal of, or
premium, if any, or interest on, this Debenture, or any part thereof, or
for any claim based hereon or otherwise in respect hereof, or of the
indebtedness represented hereby, or upon any obligation, covenant or
agreement of the Indenture or any indenture supplemental thereto, against
any incorporator, stockholder, officer or director, as such, past, present
or future, of the Company or of any predecessor or successor corporation
(either directly or through the Company or any predecessor or successor
corporation), whether by virtue of any constitutional provision, statute or
rule of law, or by the enforcement of any assessment or penalty or
otherwise, all liability, if any, of that character against every such
incorporator, stockholder, officer and director being by the acceptance
hereof, and as part of the consideration for the issue hereof, expressly
waived and released.
This Debenture shall not become obligatory until THE BANK OF NEW
YORK, the Trustee under the Indenture, or its successor thereunder, shall
have signed the form of authentication certificate endorsed hereon.
IN WITNESS WHEREOF, NATIONAL FUEL GAS COMPANY has caused this
instrument to be signed in its corporate name by its Chairman of the Board,
President or a Vice-President by his signature or a facsimile thereof, and
its corporate seal to be impressed or imprinted hereon and attested by its
Secretary or an Assistant Secretary by his signature or a facsimile
thereof.
NATIONAL FUEL GAS COMPANY
By----------------------------------------
Attest:
------------------------------
TRUSTEE'S AUTHENTICATION CERTIFICATE
This Debenture is one of the Debentures, of the series designated
therein, described in the within-mentioned Indenture and Supplemental
Indenture.
Dated:
THE BANK OF NEW YORK,
as Trustee
By------------------------------
Authorized Officer
---------------
[Unless and until this Debenture is exchanged in whole or in part
for certificated Debentures registered in the names of the various
beneficial holders hereof as then certified to the Trustee by The
Depository Trust Company or its successor (the Depositary), this Debenture
may not be transferred except as a whole by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or
another nominee of the Depositary or by the Depositary or any such nominee
to a successor Depositary or a nominee of such successor Depositary.
Unless this certificate is presented by an authorized representative of the
Depositary to the issuer or its agent for registration of transfer,
exchange or payment, and any certificate to be issued is registered in the
name of Cede & Co. or such other name as requested by an authorized
representative of the Depositary and any amount payable thereunder is made
payable to Cede & Co. or such other name, 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.
This Debenture may be exchanged for certificated Debentures
registered in the names of the various beneficial owners hereof only if (a)
the Depositary is at any time unwilling or unable to continue as depositary
and a successor depositary is not appointed by the issuer within 90 days,
or (b) the issuer, the Trustee and the Depositary consent to such
exchange.]
---------------
FOR VALUE RECEIVED the undersigned hereby sells, assigns and
transfers unto
------------------------------------------------------------------
(please insert social security or other identifying number of assignee)
-----------------------------------------------------------------
(please print or typewrite name and address of assignee)
the within Debenture of NATIONAL FUEL GAS COMPANY and does hereby
irrevocably constitute and appoint
-----------------------------------------------------------------
as Attorney, to transfer said Debenture on the books of the within-
mentioned Company, with full power of substitution in the premises.
Dated: --------------------------
----------------------------------
Notice: The signature to this assignment must correspond with the name as
written upon the face of the Debenture in every particular without
alteration or enlargement or any change whatsoever.
Exhibit 5(a)
REID & PRIEST LLP
40 West 57th Street
New York, New York 10019
(212) 603-2230
New York, New York
May 15, 1996
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Dear Sirs:
In connection with the proposed issuance and sale
from time to time by National Fuel Gas Company (the
"Company") of one or more series of Debentures (the "New
Debentures") and/or Medium Term Notes ("New MTNs")
(collectively, the New MTNs and New Debentures are referred
to as the "New Debt Securities") aggregating up to
$480,000,000 in principal amount, as contemplated by the
registration statement on Form S-3 (the "Registration
Statement") with respect to such New Debt Securities to be
filed with the Securities and Exchange Commission under the
Securities Act of 1933, as amended (the "Act"), on or about
the date hereof, we advise the Company as follows:
All action necessary to make the New Debt
Securities valid, legal and binding obligations of the
Company will have been taken when:
(a) The Securities and Exchange Commission shall
have issued pursuant to the Public Utility Holding
Company Act of 1935, as amended, an appropriate
supplemental order authorizing the issuance of the New
Debt Securities;
(b) A meeting or meetings of the Company's Board
of Directors or a duly authorized committee thereof
shall have been held and favorable action taken at
such meeting or meetings to approve and authorize
(i) the proposed issuance and sale of the New Debt
Securities (including the terms and provisions
thereof), (ii) substantially the final forms of the
proposed Supplemental Indentures (collectively, the
"Supplemental Indentures") to the Indenture, dated
October 15, 1974, between the Company and The Bank of
New York (formerly Irving Trust Company), as
heretofore supplemented (as supplemented, the
"Indenture") pursuant to which the New Debt Securities
are to be issued, and (iii) such other final action as
may be necessary to consummate the authorization and
the proposed issuance and sale of the New Debt
Securities;
(c) The Supplemental Indentures and any and all
other documents to be used in connection with the
proposed issuance and sale of the New Debt Securities
shall have been duly executed and delivered and shall
have become effective as therein provided;
(d) The New Debt Securities shall have been duly
executed, authenticated, issued and delivered for the
consideration contemplated; and
(e) Except to the extent that the proceeds of
the New Debt Securities are used to refund outstanding
Debentures heretofore issued under the Indenture or
Funded Debt, as defined in Section 1.08 of the
Indenture, the Company shall have complied with the
restrictions on Funded Debt set forth in Section 6.05
of the Indenture.
We are members of the New York Bar and do not
hold ourselves out as experts on the laws of New Jersey.
Accordingly, in rendering this opinion, we have relied, as
to all matters governed by the laws of New Jersey, upon the
opinion of even date herewith of Stryker, Tams & Dill,
New Jersey counsel for the Company, which is being filed as
an exhibit to the Registration Statement.
We hereby consent to the use of our name in such
registration statement and to the use of this opinion as an
exhibit thereto.
Very truly yours,
/s/ REID & PRIEST LLP
REID & PRIEST LLP
Exhibit 5(b)
STRYKER, TAMS & DILL
Two Penn Plaza East
Newark, New Jersey 07105
May 15, 1996
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Ladies and Gentlemen:
Referring to the proposed issuance and sale by
National Fuel Gas Company (the "Company") from time to time
of one or more series of debentures (the "New Debentures")
and/or Medium-Term Notes ("New MTNs") (collectively, the
"New Debt Securities") aggregating up to $480,000,000 in
principal amount, as contemplated in the registration
statement on Form S-3 (the "Registration Statement") with
respect to such New Debt Securities to be filed by the
Company with the Securities and Exchange Commission, under
the Securities Act of 1933, as amended (the "Act"), on or
about the date hereof, 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 New Debt
Securities legal, valid and binding obligations of the
Company will have been taken when:
A. The Securities and Exchange Commission
shall have issued pursuant to the Public Utility
Holding Company Act of 1935, as amended, an
appropriate supplemental order authorizing the
issuance of the New Debt Securities;
B. A meeting or meetings of the Company's
Board of Directors or a duly authorized committee
thereof shall have been held and favorable action
taken at such meeting or meetings to approve and
authorize (i) the proposed issuance and sale of the
New Debt Securities (including the terms and
provisions thereof), (ii) substantially the final
forms of the proposed Supplemental Indentures
(collectively, the "Supplemental Indentures") to the
Indenture, dated October 15, 1974, between the Company
and The Bank of New York (formerly, "Irving Trust
Company"), as heretofore supplemented (as
supplemented, the "Indenture") pursuant to which the
New Debt Securities are to be issued, and (iii) such
other final action as may be necessary to consummate
the authorization and the proposed issuance and sale
of the New Debt Securities;
C. The Supplemental Indentures and any and
all other documents to be used in connection with the
proposed issuance and sale of the New Debt Securities
shall have been duly executed and delivered and shall
have become effective as therein provided;
D. The New Debt Securities shall have been
duly executed, authenticated, issued and delivered for
the consideration contemplated; and
E. Except to the extent that the proceeds
of the New Debt Securities are used to refund
outstanding debentures heretofore issued under the
Indenture or other Funded Debt (as defined in
Section 1.08 of the Indenture), the Company shall have
complied with the restrictions on Funded Debt set
forth in section 6.05 of the Indenture.
We are members of the New Jersey Bar and do not
hold ourselves out as experts on the laws of any other
jurisdiction. Accordingly, in rendering this opinion, we
have relied, as to all matters governed by the laws of
New York, upon the opinion of even date herewith of Reid &
Priest LLP, New York counsel for the Company, which is
being filed as an exhibit to the Company's Registration
Statement.
We hereby consent to the use of our name in the
Registration Statement and to the use of this opinion as an
exhibit thereto.
Very truly yours,
/s/ STRYKER, TAMS & DILL
STRYKER, TAMS & DILL
EXHIBIT 12
COMPUTATION OF RATIO OF
EARNINGS TO FIXED CHARGES
(UNAUDITED)
Twelve
Months Year Ended September 30
Ended -----------------------
3/31/96 1995 1994 1993 1992 1991
------- ---- ---- ---- ---- ----
EARNINGS:
Income Before
Interest
Charges(2) $144,621 $128,061 $127,885 $125,742 $118,222 $110,240
Allowance for
Borrowed
Funds Used
in
Construction 149 195 209 174 1,088 2,278
Federal Income
Tax . . . . 40,748 30,522 36,630 21,148 17,680 (3,929)
State Income
Tax . . . . . 4,347 4,905 6,309 2,979 3,426 341
Deferred
Income Taxes -
Net(3). . . 6,256 8,452 4,853 16,919 14,125 26,873
Investment Tax
Credit - Net (670) (672) (682) (693) (706) (738)
Rentals(1) 5,650 5,422 5,730 5,621 5,857 4,915
------- ------- ------- ------- ------- -------
201,101 176,485 180,934 171,890 159,692 139,980
======= ======= ======= ======= ======= =======
FIXED CHARGES:
Interest and
Amortization
of Premium
and Discount
on Funded
Debt . . . 40,001 40,896 36,699 38,507 39,949 41,916
Interest on
Commercial
Paper and
Short-Term
Notes
Payable . . 8,541 6,745 5,599 7,465 12,093 11,933
Other
Interest(2). 6,128 4,721 3,361 4,727 6,958 9,679
Rentals(1) . 5,650 5,422 5,730 5,621 5,857 4,915
------- ------- ------- ------- ------- -------
60,320 57,784 51,389 56,320 64,857 68,443
======= ======= ======= ======= ======= =======
Ratio of
Earnings to
Fixed
Charges . . 3.33 3.06 3.52 3.05 2.46 2.05
_____________________
Notes:
(1) Rentals shown above represent the portion of all rentals (other than
delay rentals) deemed representative of the interest factor.
(2) The twelve month period ended March 31, 1996, and the fiscal years
1995, 1994, 1993 and 1992 reflect the reclassification of $1,716,
$1,716, $1,674, $1,374 and $1,129 respectively, representing the loss
on reacquired debt amortized during each period, from Other Interest
Charges to Operation Expense.
(3) Deferred Income Taxes-Net for fiscal 1994 excludes the cumulative
effective of changes in accounting.
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the
Prospectus constituting part of this Registration Statement on
Form S-3 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. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
/s/ PRICE WATERHOUSE LLP
Buffalo, New York
May 15, 1996
Exhibit 23(c)
RALPH E. DAVIS ASSOCIATES, INC.
Consultants-Petroleum and Natural Gas
3555 Timmons Lane-Suite 1105
Houston, Texas 77027
(713) 622-8955
CONSENT OF ENGINEER
-------------------
NATIONAL FUEL GAS COMPANY:
We consent to the reference to our firm under the heading
"Experts" and to the incorporation by reference of the
reproduction of our report dated October 17, 1995, and of the
reference to our reserve audit dated October 1, 1995, for use in
this Registration Statement on Form S-3 and in the related
Prospectus which is a part of such Registration Statement.
RALPH E. DAVIS ASSOCIATES, INC.
/s/ Allen C. Barron, P.E.
--------------------------------
Allen C. Barron, P.E.
Vice President
Houston, Texas
May 15, 1996
Exhibit 25
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________
FORM T-1
STATEMENT OF ELIGIBILITY 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) ____________
_________________
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(Jurisdiction of incorporation (I.R.S. Employer
if not a U.S. national bank) Identification No.)
48 Wall Street, New York, New York 10286
(Address of principal executive offices) (Zip code)
_________________
NATIONAL FUEL GAS COMPANY
(Exact name of obligor as specified in its charter)
New Jersey 13-1086010
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
10 Lafayette Square
Buffalo, New York 14203
(Address of principal executive offices) (Zip code)
_________________
Debt Securities*
(Title of the indenture securities)
------------------
* Specific title(s) to be determined in connection with sale(s)
of Debt Securities.
<PAGE>
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.
Superintendent of Banks of the 2 Rector Street, New York, N.Y.
State of New York 10006 and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
10045
Federal Deposit Insurance
Corporation 550 17th Street, N.W., Washington,
D.C. 20429
New York Clearing House New York, N.Y.
Association
(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. (See Note on page 2.)
ITEM 16. LIST OF EXHIBITS.
Exhibits identified in parentheses below, on file
with the Commission, are incorporated herein by reference as an
exhibit hereto, pursuant to Rule 7a-29 under the Trust Indenture
Act of 1939 (the "Act") and Rule 24 of the Commission's Rules of
Practice.
1. - A copy of the Organization Certificate of The
Bank of New York (formerly Irving Trust
Company) as now in effect, which contains the
authority to commence business and a grant of
powers to exercise corporate trust powers.
(Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-
6215, Exhibits 1a and 1b to Form T-1 filed
with Registration Statement No. 33-21672 and
Exhibit 1 to Form T-1 filed with Registration
Statement No. 33-29637.)
4. - A copy of the existing By-laws of the
Trustee. (Exhibit 4 to Form T-1 filed with
Registration Statement No. 33-31019.)
6. - The consent of the Trustee required by
Section 321(b) of the Act. (Exhibit 6 to
Form T-1 filed with Registration Statement
No. 33-44051.)
7. - A copy of the latest report of condition of
the Trustee published pursuant to law or to
the requirements of its supervising or
examining authority.
-----------
*Pursuant to General Instruction B, the Trustee has responded
only to Items 1, 2 and 16 of this form since to the best of the
knowledge of the Trustee the obligor is not in default under any
indenture under which the Trustee is a trustee.
<PAGE>
NOTE
Inasmuch as this Form T-1 is being filed prior to the
ascertainment by the Trustee of all facts on which to base a
responsive answer to Item 2, the answer to said Item is based on
incomplete information.
Item 2 may, however, be considered as correct unless
amended by an amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Act, the Trustee,
The Bank of New York, 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 13th day of May, 1996.
THE BANK OF NEW YORK
By: /s/ ROBERT F.McINTYRE
----------------------------
Robert F. McIntyre
Vice President
<PAGE>
EXHIBIT 7
(Page 1 of 3)
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries, a member of the Federal
Reserve System, at the close of business December 31, 1995,
published in accordance with a call made by the Federal Reserve
Bank of this District pursuant to the provisions of the Federal
Reserve Act.
Dollar Amounts
ASSETS in Thousands
------ --------------
Cash and balances due from
depository institutions:
Noninterest-bearing balances
and currency and coin . . . . . . . . . . . . . $ 4,500,312
Interest-bearing balances . . . . . . . . . . . . 643,938
Securities:
Held-to-maturity securities . . . . . . . . . . . 806,221
Available-for-sale securities . . . . . . . . . . 2,036,768
Federal funds sold and securities
purchased under agreements to resell
in domestic offices of the bank:
Federal funds sold . . . . . . . . . . . . . . . 4,166,720
Securities purchased under
agreements to resell . . . . . . . . . . . . . 50,413
Loans and lease financing
receivables:
Loans and leases, net of unearned
income . . . . . . . . . . . . . . 27,068,535
LESS: Allowance for loan and
lease losses . . . . . . . . . . . 520,024
LESS: Allocated transfer risk
reserve . . . . . . . . . . . . . . 1,000
Loans and leases, net of unearned
income and allowance and reserve . . . . . . . 26,547,511
Assets held in trading accounts . . . . . . . . . . 758,462
Premises and fixed assets (including
capitalized leases) . . . . . . . . . . . . . . . 615,330
Other real estate owned . . . . . . . . . . . . . . 63,769
Investments in unconsolidated subsid-
iaries and associated companies . . . . . . . . . 223,174
Customers' liability to this bank on
acceptances outstanding . . . . . . . . . . . . . 900,795
Intangible assets . . . . . . . . . . . . . . . . . 212,220
Other assets . . . . . . . . . . . . . . . . . . . 1,186,274
---------
Total assets . . . . . . . . . . . . . . . . . . . $42,711,907
===========
<PAGE>
EXHIBIT 7
(Page 2 of 3)
LIABILITIES
-----------
Deposits:
In domestic offices . . . . . . . . . . . . . . . $21,248,127
Noninterest-bearing . . . . . . . . . 9,172,079
Interest-bearing . . . . . . . . . . 12,076,048
In foreign offices, Edge and
Agreement subsidiaries, and IBFs . . . . . . . . 9,535,088
Noninterest-bearing . . . . . . . . . 64,417
Interest-bearing . . . . . . . . . . 9,470,671
Federal funds purchased and securities
sold under agreements to repurchase
in domestic offices of the bank and
of its Edge and Agreement subsid-
iaries, and in IBFs:
Federal funds purchased . . . . . . . . . . . . . 2,095,668
Securities sold under agreements
to repurchase . . . . . . . . . . . . . . . . . 69,212
Demand notes issued to the U.S.
Treasury . . . . . . . . . . . . . . . . . . . . 107,340
Trading liabilities . . . . . . . . . . . . . . . . 615,718
Other borrowed money:
With original maturity of one year or less . . . 1,638,744
With original maturity of more than
one year . . . . . . . . . . . . . . . . . . . 120,863
Bank's liability on acceptances
executed and outstanding . . . . . . . . . . . 909,527
Subordinated notes and debentures . . . . . . . . . 1,047,860
Other liabilities . . . . . . . . . . . . . . . . . 1,836,573
----------
Total liabilities . . . . . . . . . . . . . . . . . 39,224,720
----------
EQUITY CAPITAL
--------------
Common stock . . . . . . . . . . . . . . . . . . . 942,284
Surplus . . . . . . . . . . . . . . . . . . . . . . 525,666
Undivided profits and capital
reserves . . . . . . . . . . . . . . . . . . . . 1,995,316
Net unrealized holding gains (losses)
on available-for-sale securities . . . . . . . . 29,668
Cumulative foreign currency
translation adjustments . . . . . . . . . . . . . ( 5,747)
-----------
Total equity capital . . . . . . . . . . . . . . . 3,487,187
-----------
Total liabilities and equity capital . . . . . . . $42,711,907
===========
<PAGE>
EXHIBIT 7
(Page 3 of 3)
I, Robert E. Keilman, Senior Vice President and Comptroller of
the above-named bank do hereby declare that this Report of
Condition has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System
and is true to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the correctness of
this Report of Condition and declare that it has been examined by
us and to the best of our knowledge and belief has been prepared
in conformance with the instructions issued by the Board of
Governors of the Federal Reserve System and is true and correct.
J. Carter Bacot )
Thomas A. Renyi ) Directors
Alan R. Griffith )
