File No. 70-9149
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C.
AMENDMENT NO. 1
TO
FORM U-1
APPLICATION OR DECLARATION
under
the
PUBLIC UTILITY HOLDING COMPANY ACT OF 1935
____________________________________________
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
(Registered Holding Company)
(Name of company filing this statement
and address of principal executive office)
_____________________________________________
Philip C. Ackerman James R. Peterson, Esq. Robert J. Reger, Jr., Esq.
Senior Vice President Assistant Secretary Reid & Priest LLP
National Fuel Gas Company National Fuel Gas Company 40 West 57th Street
10 Lafayette Square 10 Lafayette Square New York, New York 10019
Buffalo, New York 14203 Buffalo, New York 14203
(Names and addresses of agents for service)
<PAGE>
Item 1. Description of Proposed Transactions
The final paragraph of Item 1 is revised in its
entirety to read as follows:
"National requests an order pursuant to Rule 62(d)
authorizing it to solicit proxies from its shareholders for the
approval of the aforesaid proposed changes in the capital stock
provisions of its Certificate. Such proxies are being solicited
by National's Board of Directors. The cost of solicitation will
be paid by National. In addition to the use of the mails,
proxies may be solicited on behalf of the directors personally,
or by telephone or telecopy, by employees of National and its
subsidiaries with no special compensation to these employees.
Morrow & Co., Inc., has been retained to assist in the
solicitation of proxies for an estimated fee of $9,000."
Item 6. Exhibits and Financial Statements
The following exhibits are made a part of this
statement:
(a) Exhibits
--------
A-3 Draft Proposals to be included in
Proxy Statement proposed to be used
in connection with the Annual
Meeting of Shareholders.
F-1 Opinion of Reid & Priest LLP.
F-2 Opinion of Stryker, Tams & Dill LLP.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Public Utility Holding
Company Act of 1935, the undersigned company has duly caused this
Amendment No. 1 to be signed on its behalf by the undersigned
thereunto duly authorized.
NATIONAL FUEL GAS COMPANY
By: /s/ James R. Peterson
----------------------
James R. Peterson
Assistant Secretary
Date: December 17, 1997
-2-
<PAGE>
EXHIBIT INDEX
Exhibits Description
-------- -----------
A-3 Draft Proposals to be included in
Proxy Statement proposed to be used
in connection with the Annual
Meeting of Shareholders.
F-1 Opinion of Reid & Priest LLP.
F-2 Opinion of Stryker, Tams & Dill LLP.
Exhibit A-3
DRAFT PROPOSALS FOR PROXY STATEMENT
-----------------------------------
PROPOSAL __
AMENDMENT OF RESTATED CERTIFICATE OF INCORPORATION TO AUTHORIZE
ADDITIONAL SHARES OF COMMON STOCK
The Board of Directors has proposed and declared advisable
an amendment (the "Common Stock Amendment") to Article FOURTH of
the Company's Restated Certificate of Incorporation, as amended
(the "Certificate"), to increase the number of authorized shares
of common stock, par value $1.00 per share (the "Common Stock"),
from One Hundred Million (100,000,000) shares of Common Stock to
Two Hundred Million (200,000,000) shares of Common Stock (the
"Common Stock Proposal"). The Board of Directors recommends that
the Company's stockholders approve the Common Stock Amendment by
voting FOR Proposal __.
If the proposed Common Stock Amendment is adopted by the
affirmative vote of a majority of the votes cast by the holders
of the outstanding shares of the Company's Common Stock entitled
to vote at the Company's Annual Meeting, the proposed Common
Stock Amendment will become effective upon the filing of a
certificate of amendment with the Secretary of State of the State
of New Jersey, which is expected to occur shortly after such
stockholder approval. A copy of the proposed Common Stock
Amendment is attached as Appendix A hereto and the following
description is qualified in its entirety by reference thereto.
Appendix B hereto shows how the current Article FOURTH of the
Certificate would change if the Common Stock Amendment is
approved by the Company's stockholders.
As of December 29, 1997, ______ shares of Common Stock were
outstanding and additional shares of Common Stock in an aggregate
amount of approximately ______ were reserved for issuance and
remained unissued under the Company's Dividend Reinvestment Plan,
Customer Stock Purchase Plan and Shareholder Rights Plan and
under various long-term incentive and benefit plans, leaving
approximately _____ shares of authorized but unissued Common
Stock unreserved and available for issuance. If this Common
Stock Proposal is approved by the stockholders, the Company will
have 200,000,000 shares of authorized Common Stock.
Other than with respect to the shares of Common Stock
reserved for issuance as set forth above, the Board of Directors
has no present plans with respect to the issuance of any material
amount of additional shares of Common Stock. However, the
Company periodically reviews various transactions that could
result in the issuance of additional shares of Common Stock.
The adoption of this Proposal will not in itself result in
the immediate issuance of any additional shares of Common Stock.
The increase in the authorized number of shares is intended to
provide sufficient authorized but unissued shares for stock
dividends and stock splits, for use in connection with
acquisitions, for financing transactions and for other corporate
purposes.
Approval of Proposal __ will permit the Board of Directors
to issue such additional shares without further approval of
stockholders and upon such terms and at such times as it may
determine unless stockholder approval is required by applicable
law or stock exchange requirements. Holders of the Company's
securities have no preemptive rights to subscribe to the
Company's securities.
The additional shares of Common Stock proposed to be
authorized could be issued to a holder who might vote against a
proposed merger or sale of assets or other corporate transaction
and therefore would be available for use to impede or discourage
an attempted takeover of the Company.
Vote Needed for Approval of Additional Shares of Common Stock
-------------------------------------------------------------
Approval of this proposal requires the affirmative vote of a
majority of the votes cast by the holders of the shares
outstanding and entitled to vote on this proposal. An abstention
or failure to vote (including a broker non-vote) will have no
effect on the outcome of the vote.
Board of Directors Recommendation
---------------------------------
The Board of Directors believes that adoption of this
Proposal is in the best interests of the Company and its
stockholders and recommends that the stockholders vote FOR
Proposal __, and the accompanying proxy will be so voted, unless
a contrary specification is made.
PROPOSAL __
AMENDMENTS OF CERTIFICATE OF INCORPORATION TO AUTHORIZE A NEW
CLASS OF PREFERRED STOCK
The Board of Directors has proposed and declared advisable
amendments (the "Preferred Stock Amendments") to Article FOURTH,
Article FIFTH and Article SIXTH of the Company's Certificate to
authorize Ten Million (10,000,000) shares of a new class of
preferred stock, par value $1.00 per share (the "New Preferred
Stock"). The Preferred Stock Amendments would also eliminate the
Company's existing authorized Three Million Two Hundred Thousand
(3,200,000) shares of preferred stock, par value $25 per share
(the "Old Preferred Stock"), and all provisions related thereto.
There are currently no issued and outstanding shares of Old
Preferred Stock. In addition, the Preferred Stock Amendments
make certain changes to references to Article FOURTH in other
Articles in the Certificate. The Board of Directors recommends
that the Company's stockholders approve the Preferred Stock
Amendments by voting FOR Proposal __.
If the proposed Preferred Stock Amendments are adopted by
the affirmative vote of a majority of the votes cast by the
holders of the outstanding shares of the Company's Common Stock
entitled to vote at the Company's Annual Meeting, the proposed
Preferred Stock Amendments will become effective upon the filing
of a certificate of amendment with the Secretary of State of the
State of New Jersey, which is expected to occur shortly after
such stockholder approval. A copy of the Preferred Stock
Amendments is attached as Appendix A hereto and the following
description is qualified in its entirety by reference thereto.
Appendix B hereto shows how the current Article FOURTH, Article
FIFTH and Article SIXTH of the Certificate would change if the
Preferred Stock Amendments are approved by the Company's
stockholders.
This proposal would add to Article FOURTH of the Certificate
provisions authorizing the issuance of 10,000,000 shares of the
New Preferred Stock while eliminating provisions authorizing and
concerning the Old Preferred Stock. These new provisions would
provide that if any series of the New Preferred Stock is created
in the manner hereinafter described and the shares of such series
are given the right to vote, each holder of shares of such series
would be entitled to one vote for each outstanding share of such
series of New Preferred Stock held by such holder. Certain
provisions of the Certificate currently restrict dividends and
other distributions on Common Stock, the incurrence by the
Company of additional unsecured debt and certain other actions,
so long as any shares of the Old Preferred Stock are outstanding.
These provisions would be eliminated if Proposal ___ is adopted.
However, as described below, the Board of Directors would be
authorized, by the terms of the proposed Preferred Stock
Amendments, to impose similar restrictions in connection with any
series of the New Preferred Stock that the Board of Directors may
create.
In addition, the new provisions would permit the Board of
Directors to issue the New Preferred Stock from time to time
without the necessity of further action or authorization by the
Company's stockholders (unless otherwise required by applicable
law or stock exchange requirements) in one or more series and
with such powers, designations, preferences and relative,
participating, optional or other special rights and
qualifications as the Board of Directors may, in its discretion,
subject to such powers, designations, preferences, rights and
qualifications as are contained in the Certificate, determine,
including, but not limited to (a) the distinctive designation of
such series and the number of shares to constitute such series;
(b) the dividends, if any, for such series, and whether such
dividends, if any, shall be cumulative and/or participating; (c)
the circumstances and conditions, if any, under which holders of
the shares of such series would be entitled to exercise voting
rights including, for example, (i) whether the holders of the
shares of such series would be entitled to elect directors of the
Company (including whether such holders would be entitled, in the
event of a default in the payment of dividends to such holders,
to elect a majority of such directors), (ii) whether the holders
of the shares of such series would be entitled to vote upon any
amendments to provisions of the Certificate relating to such
series and (iii) whether any such voting rights would be
exercisable by such holders together with the voting rights of
the holders of shares of Common Stock or by a separate class
vote; (d) the terms and conditions, if any, upon which shares of
such stock may be converted into or exchanged for shares of stock
of any other class or any other series of the same class or any
other securities or assets (including the conversion or exchange
price and including whether such conversion or exchange shall be
at the election of the Company or the holders of such shares);
(e) the right or obligation, if any, of the Company to redeem
shares of such series and the terms and conditions of such
redemption (including whether such redemption shall be at the
election of the Company or the holders of such shares); (f) the
retirement or sinking fund provisions, if any, of shares of such
series and the terms and provisions relative to the operation
thereof; (g) the amount, if any, which the holders of the shares
of such series shall be entitled to receive in case of a
liquidation, dissolution, or winding-up of the Company; (h) the
limitations and restrictions, if any, upon the payment of
dividends or the making of other distributions on, and upon the
purchase, redemption, or other acquisition by the Company of, the
Company's Common Stock; and (i) the conditions or restrictions,
if any, upon the creation of indebtedness or upon the issuance of
any additional stock of the Company.
The Board of Directors believes that availability of the New
Preferred Stock will give the Company necessary flexibility with
respect to possible acquisitions, financing transactions and
other general corporate requirements. The Company anticipates
using New Preferred Stock when it is not opportune to issue
Common Stock or debt due to prevailing market conditions or as
may be needed to meet Company capital structure requirements.
The Company has not had preferred stock outstanding since 1986.
The New Preferred Stock would be available for issuance, on such
terms as the Board of Directors determines, without further
action by the stockholders unless such action is required by
applicable law or stock exchange requirements. The Company is
currently authorized to issue 3,200,000 shares of Old Preferred
Stock, none of which are issued and outstanding. If this Proposal
is approved by the stockholders, the Company will no longer be
authorized to issue Old Preferred Stock and will be authorized to
issue 10,000,000 shares of New Preferred Stock. The Company has
no present plans, agreements or commitments for the issuance of
the New Preferred Stock.
The actual effect of the authorization of the New Preferred
Stock upon the rights of the holders of Common Stock cannot be
stated until the Board of Directors determines the respective
rights of the holders of one or more series of the New Preferred
Stock. Such effects, however, might include (a) restrictions on
dividends on Common Stock if dividends on the New Preferred Stock
are in arrears; (b) dilution of the voting power of the Common
Stock; (c) restrictions on the rights of the holders of Common
Stock to share in the Company's assets upon liquidation due to
satisfaction of any liquidation preference granted to the New
Preferred Stock; and (d) dilution of rights of the holders of
Common Stock to share in the Company's assets upon liquidation if
the New Preferred Stock is participating with respect to
distributions upon such liquidation.
Under certain circumstances, the relative rights, powers,
preferences and limitations determined by the Board of Directors
in connection with the issuance of shares of the New Preferred
Stock could discourage third parties seeking to effect a takeover
or otherwise gain control of the Company. For example, the
shares of New Preferred Stock could be issued to purchasers who
might support the Board of Directors in opposing a hostile
takeover bid or could be used in connection with adopting another
shareholder rights plan. The issuance of shares of New Preferred
Stock could also have the effect of diluting the stock ownership
and voting power of a third party seeking to effect a merger,
sale of assets, or similar transaction. In the event and to the
extent the proposed amendment could facilitate such actions, it
could serve to perpetuate incumbent management and directors.
The Board of Directors is not aware, however, of any specific
effort or plan to accumulate the Company's securities or to
obtain control of the Company by means of a merger, tender offer,
solicitation in opposition to management, or otherwise.
The Company already has a number of defensive provisions in
its Certificate, including a classified Board of Directors,
certain fair price and supermajority Board of Directors voting
provisions for business combinations with a 5% or greater
stockholder, and a prohibition against taking stockholder action
in certain situations without the use of a mailed proxy
statement. The Company also currently has a shareholder rights
plan, the effect of which may be to discourage attempts to gain
control of the Company without the approval of the Board of
Directors. This rights plan would not be affected by the proposed
authorization of shares of New Preferred Stock.
Vote Needed for Approval of the New Class of Preferred Stock
------------------------------------------------------------
Approval of this proposal requires the affirmative vote of a
majority of the votes cast by the holders of the shares
outstanding and entitled to vote on this proposal. An abstention
or failure to vote (including a broker non-vote) will have no
effect on the outcome of the vote.
Board of Directors Recommendation
---------------------------------
The Board of Directors believes that adoption of this
Proposal is in the best interests of the Company and its
stockholders and recommends that the stockholders vote FOR
Proposal __, and the accompanying proxy will be so voted, unless
a contrary specification is made.
<PAGE>
Appendix A
I. Article Fourth of the Restated Certificate of
Incorporation of National Fuel Gas Company is hereby amended in
its entirety to read as follows: 1
FOURTH: The total authorized capital stock of this
corporation shall consist of Ten Million (10,000,000) shares of
Preferred Stock having the par value of One Dollar ($1.00) per
share and Two Hundred Million (200,000,000) shares of Common
Stock having the par value of One Dollar ($1.00) per share.
The designations and relative rights, powers,
preferences and limitations of the different classes of capital
stock of this corporation, are as follows:
1. Characteristics of Common Stock and Preferred
---------------------------------------------
Stock.
------
The Board of Directors shall have the authority to
amend this Certificate of Incorporation from time to time to
divide the shares of the Preferred Stock into one or more series
and to determine the designation, the number, and the special and
relative rights, powers, preferences and limitations of the
shares of each series so created. For illustrative purposes
only, the foregoing power of the Board of Directors shall
include, but shall not be limited to, the determination of the
following terms:
(a) the maximum number of shares to constitute
each such series, which may subsequently be increased or
decreased (but not below the number of shares of such series then
outstanding) by resolution of the Board of Directors, the
distinctive designation thereof and the stated value thereof if
different from the par value thereof;
---------------------
1. There are two separate proposals being presented to the
Company's stockholders for their approval. Appendix A sets forth
all of the provisions of Article FOURTH and the changes to
Article SIXTH of the Certificate assuming both Proposal ___ and
Proposal ___ are approved by the stockholders. If the
stockholders approve only Proposal ___, then the phrase "One
Hundred Million (100,000,000) shares of Common Stock" in the
first paragraph of Article FOURTH of the Certificate will be
deleted and replaced by the phrase "Two Hundred Million
(200,000,000) shares of Common Stock" and no other changes will
be made to Article FOURTH or Article SIXTH. If the stockholders
approve only Proposal ___, then the phrase "Three Million Two
Hundred Thousand (3,200,000) shares of Preferred Stock having the
par value of Twenty-Five Dollars ($25) per share" in the first
paragraph of Article FOURTH of the Certificate will be deleted
and replaced by the phrase "Ten Million (10,000,000) shares of
Preferred Stock having the par value of One Dollar ($1.00) per
share", no other changes will be made to the first paragraph of
Article FOURTH and all other changes to Article FOURTH and
Article SIXTH will be as set forth in Appendix A.
<PAGE>
(b) whether the shares of each such series shall
have voting rights and, if such shares are given voting rights,
the terms of such voting rights, subject to the provisions of
paragraph 7 hereof;
(c) the dividend rate or rates, if any, on the
shares of each such series or the manner in which such rate or
rates shall be determined, the conditions and dates upon which
such dividends shall be payable, the preference or relation that
such dividends shall bear to the dividends payable on any other
class or classes or any other series of capital stock (including
whether such dividends shall be participating or non-
participating with respect to any other class or classes or any
other series of capital stock), whether such dividends shall be
cumulative or noncumulative, and if cumulative, the date or dates
from which any such dividends shall be cumulative;
(d) whether the shares of each such series shall
be subject to redemption, and, if made subject to redemption, the
time or times, price or prices and other terms, limitations,
restrictions or conditions of such redemption, including whether
such redemption shall be made at the election of the corporation
or the holders of such shares;
(e) the relative amounts, and the relative rights
or preferences, if any, of payment in respect of shares of each
such series which the holders of shares of each such series shall
be entitled to receive upon the voluntary or involuntary
liquidation, dissolution or winding-up of the corporation,
including whether such rights shall be limited or participating
with respect to shares of any other class or classes or any other
series of capital stock upon the voluntary or involuntary
liquidation, dissolution or winding up of the corporation;
(f) whether or not the shares of each such series
shall be subject to the operation of a retirement or sinking fund
and, if so, the terms and provisions relative to the operation of
such retirement or sinking fund;
(g) whether or not the shares of each such series
shall be convertible into, or exchangeable for, shares of any
other class or classes or any other series of capital stock, or
other securities, whether or not issued by the corporation, and
if so convertible or exchangeable, the price or prices or the
rate or rates of conversion or exchange, the method, if any, of
adjusting any such price or prices or rate or rates and whether
such shares shall be convertible or exchangeable at the election
of the corporation or the holders of such shares;
(h) the limitations and restrictions, if any, to
be effective while any shares of each such series are
outstanding, upon the payment of dividends or the making of other
distributions on, and upon the purchase, redemption or other
acquisition by the corporation of, the Common Stock or any other
class or classes or any other series of capital stock of the
corporation ranking junior to the shares of such series either as
to dividends or upon liquidation, dissolution or winding-up of
the corporation;
(i) the conditions or restrictions, if any, to be
effective while any shares of each such series are outstanding,
upon the creation of indebtedness of the corporation or upon the
issuance of any additional stock (including additional shares of
such series or of any other class) ranking on a parity with or
prior to the shares of such series as to dividends or
distribution of assets upon liquidation, dissolution or winding-
up of the corporation; and
(j) any other preference, relative,
participating, optional or other special rights, and the
qualifications, limitations or restrictions thereof, as shall not
be inconsistent with law, this Article FOURTH or any amendment
creating such series.
Each share of Common Stock shall be equal in all
respects to every other share of the Common Stock. The Common
Stock shall be subject to the express terms of the Preferred
Stock and any series thereof.
2. Dividends on Preferred Stock.
----------------------------
No holder of outstanding shares of any series of the
Preferred Stock shall be entitled to receive any dividends
thereon other than the dividends provided therefor pursuant to
paragraph 1 hereof.
3. Redemption and Repurchase of Preferred Stock.
--------------------------------------------
If, on or before the redemption date with respect to
any shares of any series of Preferred Stock that are subject to
redemption, as fixed or determined pursuant to paragraph 1
hereof, this corporation shall deposit with a bank, trust company
or other financial institution monies necessary for the
redemption of such shares, then, notwithstanding that any
certificate for such shares so redeemed shall not have been
surrendered for cancellation, from and after such redemption
date, all rights and preferences with respect to such shares so
redeemed shall forthwith on such redemption date cease and
terminate, except only the right of the holders thereof to
receive, out of the monies so deposited, the amount payable upon
redemption of such shares, without interest. Any such monies so
deposited by this corporation and unclaimed at the end of six (6)
years from such redemption date shall be repaid to this
corporation upon its request, after which repayment the holders
of the shares so called for redemption shall look only to this
corporation for the payment thereof.
Nothing herein contained shall limit any legal right of
this corporation to purchase or otherwise acquire any shares of
the Preferred Stock to the extent permitted by law. All or any
shares of Preferred Stock at any time redeemed, purchased or
otherwise acquired by this corporation may thereafter, in the
discretion of the Board of Directors, be reissued or otherwise
disposed of at any time or from time to time, to the extent and
in the manner now or hereafter permitted by law.
4. Dividends on Common Stock.
-------------------------
Subject to the rights and preferences of each series of
Preferred Stock, as determined pursuant to paragraph 1 hereof,
such dividends (payable in cash, stock or otherwise) as may be
determined by the Board of Directors may be declared and paid on
the Common Stock, but only out of funds legally available for the
payment of such dividends.
5. Distributions on Common Stock.
-----------------------------
In the event of any liquidation, dissolution or winding
up of this corporation, and subject to the rights and preferences
of each series of Preferred Stock, as determined pursuant to
paragraph 1 hereof, all assets and funds of this corporation
remaining after paying or providing for the payment of all
creditors of this corporation shall be divided among and paid to
the holders of the Common Stock according to their respective
shares.
6. Preemptive Rights.
-----------------
No holder of shares of any stock of this corporation of
any class now or hereafter authorized shall have any right as
such holder to purchase, subscribe for or otherwise acquire any
shares of stock of this corporation of any class now or hereafter
authorized, or any securities convertible into or exchangeable
for any such shares, or any warrants or other instruments
evidencing rights or options to subscribe for, purchase or
otherwise acquire any such shares, whether such shares,
certificates, securities, warrants or other instruments be
unissued or issued and thereafter acquired by this corporation
and whether such shares and other instruments be issued for cash,
property, services, or by way of dividends or otherwise.
7. Voting Rights.
-------------
At all meetings of the stockholders of this
corporation, the holders of shares of Common Stock shall be
entitled to one vote for each share of Common Stock held by them
respectively except as otherwise expressly provided herein. The
holders of shares of Preferred Stock shall have no right to vote
and shall not be entitled to notice of any meeting of
stockholders of this corporation nor to participate in any such
meeting except as otherwise expressly provided herein or in any
amendment creating a series of Preferred Stock and except for
those purposes, if any, for which said rights cannot be denied or
waived under mandatory provisions of law that shall be
controlling. If, and to the extent that, the shares of any
series of Preferred Stock are provided voting rights in
accordance with the provisions hereof, including the provision of
such voting rights in any amendment creating such series, each
holder of shares of such series of Preferred Stock shall be
entitled to one vote for each outstanding share of such series of
Preferred Stock held by such holder.
8. Reclassification, etc.
----------------------
From time to time, and without limitation of other
rights and powers of this corporation as provided by law, this
corporation may reclassify its capital stock and may create or
authorize one or more classes or kinds of stock ranking prior to
or on a parity with or subordinate to the Preferred Stock or may
increase the authorized amount of the Preferred Stock or of the
Common Stock or of any other class of stock of this corporation
or may amend, alter, change or repeal any of the rights,
privileges, terms and conditions of shares of the Preferred Stock
or of any series thereof then outstanding or of shares of the
Common Stock or of any other class of stock of this corporation,
upon such vote, given at a meeting called for that purpose, of
its stockholders then entitled to vote thereon as may be provided
by law; provided that the consent of the holders of shares of the
Preferred Stock (or of any series thereof) required by the
provisions of any amendment creating any series of Preferred
Stock or by applicable law, if any such consent be so required,
shall have been obtained; and provided further that the rights,
privileges, terms and conditions of shares of Common Stock shall
not be subject to amendment, alteration, change or repeal without
such vote (given by written consent, or by vote at a meeting
called for that purpose), of the holders of Common Stock as may
be provided by law.
9. Consideration for Shares
------------------------
To the extent permitted by law, this corporation may,
at any time, and from time to time, issue and dispose of any of
the authorized and unissued shares of the Preferred Stock and
Common Stock for such consideration as may be fixed by the Board
of Directors, or as may be determined in accordance with a
general formula established by the Board of Directors, or at not
less than such minimum consideration as the Board of Directors
may authorize.
II. Paragraph 4(k) of Article FIFTH of the Restated
Certificate of Incorporation of the National Fuel Gas Company is
hereby amended in its entirety to read as follows:
(k) "Subsidiary" shall mean any corporation a majority
of the voting shares of which are at the time owned by this
corporation or by other subsidiaries of this corporation or by
this corporation and other subsidiaries of this corporation.
III. The phrase "voting separately as a class, pursuant
to paragraph 10 of Article FOURTH hereof" in the first paragraph
of Article SIXTH of the Restated Certificate of Incorporation of
National Fuel Gas Company is hereby deleted and replaced by the
words "voting separately from the Common Stock as provided in any
amendment creating any series of Preferred Stock".
IV. The last paragraph of Article SIXTH of the
Restated Certificate of Incorporation of National Fuel Gas
Company is hereby amended in its entirety to read as follows:
Notwithstanding the foregoing and except as otherwise
provided by law, whenever the holders of shares of Preferred
Stock shall have the right, voting separately from the Common
Stock, to elect directors of this corporation, the number,
election, term of office, filling of vacancies and other features
of such directorships shall be governed by the terms and
provisions of any amendment creating any series of Preferred
Stock; and such directors so elected shall not be divided into
classes pursuant to this Article SIXTH. During the prescribed
term of office of any such directors, the Board of Directors
shall consist of such directors in addition to the number of
directors determined as provided in the first paragraph of this
Article SIXTH.
<PAGE>
Appendix B
I. Changes to Article FOURTH of the Restated
Certificate of Incorporation of National Fuel Gas Company:
FOURTH: The total authorized capital stock of this
[Corporation] corporation shall consist of [Three] Ten Million
=========== ===
[Two Hundred Thousand (3,200,000)] (10,000,000) shares of
============
Preferred Stock having the par value of [Twenty-Five Dollars
($25)] One Dollar ($1.00) per share and [One] Two
================== ===
Hundred Million [(100,000,000)] (200,000,000) shares of Common
=============
Stock having the par value of One Dollar ($1.00) per share.
The designations and relative rights, powers,
=======
preferences and limitations of the different classes of
capital stock of this corporation, are as follows:
1. Characteristics of Common Stock and Preferred
---------------------------------------------
Stock.
-----
The Board of Directors shall have the authority to
==================================================
amend this Certificate of Incorporation from time to time to
============================================================
divide the shares of the Preferred Stock [may be divided into and
==========
issued in] into one or more series[, from time to time, as herein
================
provided. Each series shall be designated so as to distinguish
the shares thereof from] and to determine the designation, the
=====================================
number, and the special and relative rights, powers, preferences
================================================================
and limitations of the shares of [all other series. All shares of
==================
the Preferred Stock of all series shall be of equal rank and all
shares of any particular series of the Preferred Stock shall be
identical except as to] each series so created. For
============================
illustrative purposes only, the foregoing power of the Board of
===============================================================
Directors shall include, but shall not be limited to, the
=========================================================
determination of the following terms:
====================================
(a) the maximum number of shares to constitute
=== ==========================================
each such series, which may subsequently be increased or
========================================================
decreased (but not below the number of shares of such series then
=================================================================
outstanding) by resolution of the Board of Directors, the
=========================================================
distinctive designation thereof and the stated value thereof if
===============================================================
different from the par value thereof;
====================================
(b) whether the shares of each such series shall
=== ============================================
have voting rights and, if such shares are given voting rights,
===============================================================
the terms of such voting rights, subject to the provisions of
=============================================================
paragraph 7 hereof;
==================
(c) the dividend rate or rates, if any, on the
=== ==========================================
shares of each such series or the manner in which such rate or
==============================================================
rates shall be determined, the conditions and dates upon which
==============================================================
such dividends shall be payable, the preference or relation that
================================================================
such dividends shall bear to the dividends payable on any other
===============================================================
class or classes or any other series of capital stock (including
================================================================
whether such dividends shall be participating or non
====================================================
participating with respect to any other class or classes or any
===============================================================
other series of capital stock), whether such dividends shall be
===============================================================
cumulative or noncumulative, and if cumulative, the date or
===============================================
dates from which any such dividends [thereon] shall be cumulative
========
[as provided in paragraph 2 hereof. The];
=
(d) whether the shares of [the Preferred Stock of
=== ===========
different] each such series shall be subject to redemption, and,
========= ====================================
if made subject to redemption, the time or times, [may vary as to
================================================
the following terms, which shall be fixed in the case of each
series, at any time prior to the issuance of the shares thereof,
in the manner provided in paragraph 7 hereof;
(a) The annual dividend rate or rates for the particular series
and the date from which dividends shall be cumulative on all
shares of such series issued on or prior to the record date for
the first dividend for such series;
(b) The redemption] price or prices and other terms,
================
limitations, restrictions or conditions of such redemption,
===========================================================
including whether such redemption shall be made at the election
===============================================================
of the corporation or the [for the particular series;
=========================
(c) The terms and amount or amounts per share for the particular
series payable to the] holders [thereof upon any] of such
=======
shares;
=======
(e) the relative amounts, and the relative rights
=== =============================================
or preferences, if any, of payment in respect of shares of each
===============================================================
such series which the holders of shares of each such series shall
=================================================================
be entitled to receive upon the voluntary or involuntary
===============================
liquidation, dissolution or winding-up of [this] the corporation,
= ===
[which may be different for] including whether such rights shall
===================================
be limited or participating with respect to shares of any other
===============================================================
class or classes, or any other series, of capital stock upon the
================================================================
voluntary [and] or involuntary liquidation, dissolution or winding
==
up[, but the amount payable to the Holders or any particular] of
==
the corporation;
================
(f) whether or not the shares of each such
=== ======================================
series [upon any voluntary liquidation, dissolution or winding up
shall always be equal] shall be subject to the operation of a
================ ==============
retirement or sinking fund and, if so, [then current redemption
======================================
price for shares of that series;]
[(d) The terms and amount of any sinking fund provided for
the purchase or redemption of shares of the particular series
except to the extent fixed in paragraph 3 below; and] the
===
terms and provisions relative to the operation of such
======================================================
retirement or sinking fund;
===========================
[(e) The conversion, participating or] (g)
===
whether or not the shares of each such series shall be
======================================================
convertible into, or exchangeable for, shares of any other class
================================================================
or classes or any other series of capital stock, or other
=========================================================
securities, whether or not issued by the corporation, and if
============================================================
so convertible or exchangeable, the price or prices or the rate
===============================================================
or rates of conversion or exchange, the method, if any, of
==========================================================
adjusting any such price or prices or rate or rates and whether
===============================================================
such shares shall be convertible or exchangeable at the election
================================================================
of the corporation or the holders of such shares;
=================================================
(h) the limitations and restrictions, if any, to
=== ============================================
be effective while any shares of each such series are
=====================================================
outstanding, upon the payment of dividends or the making of other
=================================================================
distributions on, and upon the purchase, redemption or other
============================================================
acquisition by the corporation of, the Common Stock or any other
================================================================
class or classes or any other series of capital stock of the
============================================================
corporation ranking junior to the shares of such series either
==============================================================
as to dividends or upon liquidation, dissolution or winding-up
==============================================================
of the corporation;
===================
(i) the conditions or restrictions, if any, to be
=== =============================================
effective while any shares of each such series are outstanding,
===============================================================
upon the creation of indebtedness of the corporation or upon the
================================================================
issuance of any additional stock (including additional shares of
================================================================
such series or of any other class) ranking on a parity with or
==============================================================
prior to the shares of such series as to dividends or
=====================================================
distribution of assets upon liquidation, dissolution or winding
===============================================================
up of the corporation; and
==========================
(j) any other preference, relative,
=== ===============================
participating, optional or other special rights, and the
================================
qualifications, limitations [(including refunding limitations)]
or restrictions thereof, [if any, of the particular] as shall
========
not be inconsistent with law, this Article FOURTH or any
========================================================
amendment creating such series.
=======================
Each share of [the] Common Stock shall be equal in all
respects to every other share of the Common Stock. The Common
==========
Stock shall be subject to the express terms of the Preferred
============================================================
Stock and any series thereof.
=============================
2. Dividends on Preferred Stock.
----------------------------
[The holders] No holder of outstanding shares of [each]
=========
any series of the Preferred Stock shall be entitled [in
===
preference to the holders of the Common Stock to receive, but
only when and as declared by the Board of Directors, out of funds
legally available for the payment of dividends, dividends, at the
annual dividend rate for the particular series fixed therefor,
payable quarterly on January 15, April 15, July 15, and October
15 of each year. The dividends on all shares of all series of
Preferred Stock shall be cumulative. No dividends shall be
declared on any series of the Preferred Stock for any dividend
period unless there shall be declared on all shares of all series
of the Preferred Stock, at the time outstanding, dividends in the
same proportion to the sum which would be payable on said shares
if all dividends were paid in full. In case of all shares of each
particular series, the dividends on shares of such series shall
be cumulative,]
[(a) if issued on or prior to the record date for the first
dividend on the shares of such series, then from the date for the
particular series fixed therefor as herein provided;]
[(b) if issued during the period commencing after the record date
for a dividend on shares of such series and terminating at the
close of the payment date for such dividend, then from such
dividend payment date; or]
[(c) otherwise from the dividend payment date next preceding the
date of issue of such shares;]
[so that unless dividends on all outstanding shares of each series
of the Preferred Stock shall have been paid or declared and set
apart for payment for all past dividend periods, no dividends
shall be paid or declared and no other distribution shall be made
(other than dividends or distributions payable in Common Stock)
on the Common Stock, and no Common Stock shall be Purchased or
otherwise acquired for value by this corporation. Any
accumulation of dividends on the Preferred Stock shall not bear
interest. The holders of the Preferred Stock of any series shall
not be entitled] to receive any dividends thereon other than the
dividends [referred to in this] provided therefor pursuant to
=============================
paragraph [2] 1 hereof.
========
3. Redemption and Repurchase of Preferred Stock[.]
-------------------------------------------
[This corporation, by action of its Board of Directors,
may redeem the whole or any part of any series of the Preferred
Stock, at any tine or from time to time (subject to any terms of
a particular series restricting refunding or redemption thereof
at the redemption price of the shares of the particular series
fixed therefor as herein provided, which shall include unpaid
accumulated dividends, if any, to the date of such redemption.
Notice of every such redemption shall, at least thirty (30) days
and not more than ninety (90) days prior to the date fixed for
such redemption, be mailed to the holders of record of the shares
of the Preferred Stock so to be redeemed, at their respective
addresses as the same shall appear on the books of this
corporation; but, no failure to mail such notice or any defect
therein or in the mailing thereof shall affect the validity of
the proceedings for the redemption of any shares of the Preferred
Stock so to be redeemed. In case of the redemption of a part only
of any series of the Preferred Stock at the time outstanding,
this corporation shall select by lot or pro rata, in such manner
as the Board of Directors may determine, the shares so to be
redeemed. The Board of Directors shall have full power and
authority, subject to time limitations and provisions herein
contained, to prescribe the manner in which and the terms and
conditions upon which the] If, on or before the redemption date
====================================
with respect to any shares of any series of [the] Preferred Stock
===================
[shall be redeemed from time to time. If on or before the] that
====
are subject to redemption [date specified in such notice all
==============
funds necessary for such redemption shall have been set apart by]
, as fixed or determined pursuant to paragraph 1 hereof, this
========================================================
corporation[, separate and aside from its other funds,] shall
=====
deposit with a bank, trust company or other financial institution
=================================================================
monies necessary for the [account of the holders of the shares to
================
be redeemed, so as to De and continue to be available therefor]
redemption of such shares, then, notwithstanding that any
=========================
certificate for such shares so [called for redemption] redeemed
========
shall not have been surrendered for cancellation, from and after
[the date fixed for] such redemption[, the shares represented
====
thereby shall no longer be deemed outstanding, and] date, all
=====
rights and preferences with respect to such shares so [called for
redemption] redeemed shall forthwith on such redemption date
========
cease and terminate, except only the right of the holders thereof
to receive, out of the [funds] monies so [set apart]
======
deposited, the amount payable upon redemption [thereof, without
=========
interest, provided, however, that this corporation may, after
giving notice of any such redemption as hereinbefore provided or
after giving to the bank or trust company hereinafter referred to
irrevocable authorization to give such notice, and, at any time
prior to the reception date specified in such notice, deposit,
for the account of the holders of the shares to be redeemed,
funds necessary for such redemption with a bank or trust company
doing business in the Borough of Manhattan, City and State of New
York, designated in such notice of reception, and, upon such
deposit all shares with respect to which such deposit shall have
been made shall no longer be deemed to be outstanding, and all
rights and preferences with respect to such shares so called for
redemption shall forthwith cease and terminate, except only the
right of the holders thereof to receive, out of the funds so
deposited, from and after the date of such deposit, the amount
payable upon the redemption thereof, without interest, provided
further that notice of such right shall be included in the notice
of redemption hereinabove provided for. Any monies] of such
=======
shares, without interest. Any such monies so deposited by this
=============================================
corporation [pursuant to this paragraph 3] and unclaimed at the
end of six (6) years from [the date fixed for] such redemption
====
date shall be repaid to this corporation upon its request, after
====
which repayment the holders of the shares so called for
redemption shall look only to this corporation for the payment
thereof.
[If at any time this corporation shall have failed to
pay dividends in full on any outstanding shares of the Preferred
Stock, thereafter and until dividends in full on all shares of
the Preferred Stock outstanding shall have been paid, or declared
and set apart for payment, for all past quarterly dividend
periods, this corporation shall not redeem any shares of the
Preferred Stock (except by redemption of all of the shares of the
Preferred Stock outstanding) and shall not purchase or otherwise
acquire for value any shares of the Preferred Stock or make any
payment, or set aside any funds for payment, into a sinking fund,
if any, for the purchase or redemption of any shares of Preferred
Stock unless (1) approval for such purchase, partial redemption
or other acquisition is obtained from the Securities and Exchange
Commission under the provisions of the Public Utility Holding
Company Act of 1935 or by any successor commission or regulatory
authority of the United States of America having jurisdiction in
the premises (so long as this corporation is subject to said Act
or commission or regulatory authority), and (ii) such purchase,
partial reception or other acquisition is in accordance with an
offer (which may vary as to the terms offered with respect to
shares of different series of the Preferred Stock) made in
writing to all holders of shares of the Preferred Stock.] Nothing
herein contained[, except for time foregoing,] shall limit any
legal right of this corporation to purchase or otherwise acquire
any shares of the Preferred Stock to the extent permitted by law.
All or any shares of Preferred Stock at any time redeemed,
purchased or otherwise acquired by this corporation may thereafter,
=========
in the discretion of the Board of Directors, be reissued or
otherwise disposed of at any time or from time to time, to the
=
extent and in the manner now or hereafter permitted by law[,
subject, however, to the limitations herein imposed upon the
issue of shares of Preferred Stock.]
[4. Preference on Liquidation, etc. of Preferred Stock.]
[Before any amount shall be paid to, or any assets distributed
among, the holders of the Common Stock upon any liquidation,
dissolution or winding up of this corporation, and after paying
or providing for the payment of all creditors of this
corporation, the holders of all shares of each series of the
Preferred Stock at the time outstanding shall be entitled to be
paid in cash the amount for the shares of fee particular series
fixed therefor as provided in the resolutions creating such
series, which shall include unpaid accumulated dividends, if any,
to the date of such distribution. But no payments on account of
such distributive amounts shall be made to the holders of shares
of any series of the Preferred Stock unless there shall be paid
at the same time to the holders of shares of each other series of
the Preferred Stock at the time outstanding, distributive amounts
in the same proportion to the full distributive amounts to which
they are respectively entitled as herein provided. The holders of
the Preferred Stock of any series shall not be entitled to
receive any amounts with respect thereto upon any liquidation,
dissolution or winding up of this corporation other than amounts
referred to in this paragraph. Neither the consolidation or
merger of this corporation with or into any other corporation or
corporations, nor the sale or transfer by the corporation of all
or any part of its assets, shall be deemed to be a liquidation,
dissolution or winding up of this corporation for the purposes of
this paragraph].
[5] 4. Dividends on Common Stock[.]
= -------------------------
[Whenever the full dividends on the shares of all]
Subject to the rights and preferences of each series of [the]
=============================================
Preferred Stock [at the time outstanding for all past quarterly
dividend periods shall have been paid or declared and set apart
for payment and after all amounts then or theretofore required to
be set apart or applied in respect of any sinking fund, then],
=
as determined pursuant to paragraph 1 hereof, such dividends
=============================================
(payable in cash, stock or otherwise) as may be determined by the
Board of Directors may be declared and paid on the Common Stock,
but only out of funds legally available for the payment of such
dividends.
[6.] 5. Distributions on Common Stock.
== -----------------------------
In the event of any liquidation, dissolution or winding
up of this corporation, [all assets and funds of this corporation
remaining after paying or providing for the payment of all
creditors of this corporation and after paying or providing for
the payment to the holders or shares or all series of the
Preferred Stock of the fuel distributive amounts to which they
are respectively entitled, as herein provided, shall be divided
among and paid to the holders of the Common Stock according to
their respective shares.]
[7. Designation and Terms of Series.]
[The Board of Directors of this corporation may, at any time or
from time to time, within the then total authorized number of
shares of the Preferred Stock of all series, increase the
authorization number of shares of any series of the Preferred
Stock, establish or reestablish any unissued shares of Preferred
Stock as shares of the Preferred Stock of any series or as
Preferred Stock which is not part of a then existing series,
create one or more additional series of the Preferred Stock, fix
the authorization number of shares of any series (which number of
shares shall be subject to change from time to time by like
action except where the amendment creating the series otherwise
provides), and fix the designations and the terms of any series
of the Preferred Stock in the respects in which the shares of any
series may vary from the shares of other series of the Preferred
Stock, as provided in paragraph 1 hereof.]
[8. Restrictions on Certain Corporate Action.]
[(A) So long as any shares of the Preferred Stock are outstanding,
this corporation shall not, without the consent (given in writing
or by vote at a meeting called for that purpose) of the holders
of at least two-thirds of the total number of shares of the
Preferred Stock then outstanding]
[(a) create or authorize any shares of any class of stock ranking
prior to the Preferred Stock or create or authorize any security
convertible into shares of any such stock, or issue any shares of
any class of stock ranking prior to the Preferred Stock more than
twelve (12) months after the date as of which this corporation
was empowered to create or authorize such prior ranking stock.
(Whenever reference is made to shares "ranking prior to the
Preferred Stock", such reference shall mean all shares of this
corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions in
the event of a voluntary or involuntary liquidation, dissolution
or winding up of this corporation are given preference over the
rights of the holders of Preferred Stock; whenever reference is
made to shares "ranking on a parity with the Preferred Stock",
such reference shall mean and include all shares of this
corporation in respect of which the rights of the holders thereof
either as to the payment of dividends or as to distributions, is
in the event of a voluntary or involuntary liquidation,
dissolution or winding up of the corporation rank on parity
(except as to the amounts fixed therefor) with the rights of the
holders of Preferred Stock); or]
[(b) amend, alter or repeal any of the powers, preferences or
special rights of the Preferred Stock then outstanding so as to
affect adversely any such powers, preferences or special rights;
provided, however, that if any such amendment, alteration or
repeal affects adversely the powers, preferences or special
rights of one or more, but not all, series of the Preferred Stock
at the time outstanding, only the consent of the holders of at
least two-thirds of the total number of outstanding shares of all
series so affected shall be required; and provided, further, that
an amendment to increase or decrease the authorized number of
shares of Preferred Stock or to create or authorize, or increase
or decrease the authorized number of shares of, any class of
stock ranking on a parity with the outstanding shares of
Preferred Stock shall not be deemed to adversely affect the
powers, preferences or special rights of the holders of Preferred
Stock or of any series thereof.]
[This subparagraph (A) shall not apply to, and the class or series
vote herein specified shall not be required for approval of, any
action of the types described in clause (a) or (b) which is a
part of or effected in connection with a consolidation of merger
approved by the holders of Preferred Stock or which, under clause
(b) of subparagraph (B) of this paragraph 8, does not require
their approval.]
[(B) So long as any shares of the Preferred Stock are outstanding,
this corporation shall not, without the consent (given in writing
or by vote at a meeting called for that purpose) of the holders
of a majority of the total number of shares of the Preferred
Stock then outstanding:]
[(a) issue or assume, not permit any subsidiary to issue or
assume, any unsecured notes or other securities representing
unsecured debt (other than debt securities described in
subclauses (i) and (ii) of this clause (a), unsecured debt
securities issued for the purpose of refunding or renewing
outstanding unsecured debt securities resulting in equal or
longer maturities or for the purpose of redeeming or otherwise
retiring all outstanding shares of the Preferred Stock), if,
after giving effect to such issue or assumption, (i) the total
outstanding principal amount of all unsecured notes or other
securities representing unsecured debt of this corporation and
its subsidiaries consolidated would then thereby exceed 20% of
the aggregate of all existing secured debt of this corporation
and its subsidiaries consolidated and the capital stock, premiums
thereon, and surplus of this corporation and its subsidiaries
consolidated at the end of any calendar month within a period of
four (4) consecutive calendar months immediately preceding the
calendar month in which such issue or assumption would be made,
adjusted for any dividends or distributions declared by, and any
changes in capital or paid-in surplus of, this corporation and
its subsidiaries on a consolidated basis to and including the
date of the issue or assumption or (2) the total outstanding
principal amount of all unsecured notes or other securities
representing unsecured debt of this corporation and its
subsidiaries consolidated with maturities of less than 10 years
would then exceed 10% of such aggregate. For the purpose of this
clause (a), the payment due upon the maturity of unsecured debt
which had an original single maturity in excess of 10 years or
the payment due upon the final maturity of any unsecured serial
debt which had original maturities in excess of 10 years shall
not be regarded as unsecured debt of a maturity of less than 10
years until such payment shall be required to be made within 3
years.]
[(i) As used in clause (a), the term "unsecured debt" shall not
include (x) any debentures issued by this corporation under any
indentures heretofore or hereafter entered into by this
corporation with any trustee, including any amendments or
supplements thereto, (y) inventory loans having maturities of not
more than twelve (12) months, and (z) accounts receivable loans;
provided, however, that the issuance of any such debentures and
the incurrence of any such loan obligations shall have been
approved by the Securities and Exchange Commission under the
provisions of the Public Utility Holding Company Act of 1935 or
by any successor commission or regulatory authority of the United
States of America having jurisdiction in the premises (so long as
this corporation is subject to said Act or commission or
regulatory authority).]
[(ii) As used in clause (a), the term "secured debt" shall include
the debentures referred to in (i)(x) above, and all other forms
of debt of this corporation and its subsidiaries which are
secured by their terms but shall not include the loans specified
in (i)(y) above.]
[(iii) As used in subclause (i)(z) above, "accounts receivable
loans" shall mean an amount of unsecured debt having maturities
of not more than twelve (12) months equal to the difference
between (I) the highest amount of the aggregate of billed but
uncollected charges for delivered gas (net of reserves for bad
debts) and the charges for delivered but unbilled gas at the end
of any calendar month within the twelve (12) calendar months
immediately preceding the calendar month in which the issue or
assumption of unsecured debt would be made, and (II) the average
amount of the aggregate of billed but uncollected charges for
delivered gas (net of reserves for bad debts) and the charges for
delivered by unbilled gas at the end of each calendar month of
the six (6) consecutive calendar month period from June through
November in the immediately preceding calendar year.]
[(b) merge or consolidate with or into any other corporation or
corporations or sell or otherwise dispose of all or substantially
all of this corporation's assets, unless such merger,
consolidation, the issuance and assumption of all securities to
be issued or assumed in connection with any such merger or
consolidation, or such sale or other disposition of assets, shall
have been ordered, exempted, approved or permitted by the
Securities and Exchange Commission under the provisions of the
Public Utility Holding Company Act of 1935 or by any successor
commission or regulatory authority of the United States of
America having jurisdiction in the premises (so long as this
corporation is subject to said Act or commission or regulatory
authority); or]
[(c) issue any additional snares, or reissue any reacquired
shares, of Preferred Stock or of any other class of stock ranking
on a parity with the outstanding shares of the Preferred Stock as
to dividends or assets for any purpose other than to redeem or
otherwise retire an equal par amount or stated value of Preferred
Stock or of stock ranking prior to or on a parity with the
Preferred Stock as to dividends or assets at the time
outstanding, unless:]
[(i) the consolidated gross income of this corporation and its
subsidiaries for any twelve (12) consecutive calendar months
within a period of fifteen (15) consecutive calendar months
immediately preceding the calendar month of such issuance is
equal to at least one and one-half (1 1/2) times the aggregate of
the annual interest charges on the indebtedness of this
corporation and its subsidiaries consolidated (excluding interest
charges on indebtedness to be retired by the application of the
proceeds from the issuance of such shares) and the annual
dividend requirements on all Preferred Stock (including dividend
requirements on any class of stock ranking prior to or on a
parity with the shares to be issued, as to dividends or assets),
which will be outstanding immediately after the issuance of such
shares; and]
[(ii) the aggregate of the junior stock equity (as defined in
paragraph 13 hereof) is at least equal to the aggregate amount
payable upon any involuntary liquidation, dissolution or winding
up of this corporation with respect to all shares of the
Preferred Stock and all shares of stock, if any, ranking prior
thereto or.on parity therewith as to dividends or assets, which
will De outstanding immediately after the issuance of such shares
of Preferred Stock or Stock ranking on a parity therewith.]
[As used in subclause (i) of this clause (c), the term
"consolidated gross income of this corporation and its
subsidiaries" shall mean the sum of the consolidated net income
of the corporation and its subsidiaries as determined by this
corporation in accordance with sound accounting practice plus
amounts deducted in the computation of such consolidated net
income for interest charges on indebtedness and for dividends
paid or accrued on the Preferred Stock of this corporation, and
the term "indebtedness" shall mean all obligations, whether or
not represented by bonds, debentures or notes for the repayment
of money borrowed, all deferred obligations for the payment of
the purchase price of property purchased and all obligations
assumed, but shall not include any customers' deposits or
employees' deposit accounts or employees' pension or other
accounts.]
[If during the period as of which consolidated gross income is to
be determined for the purpose set forth in subclause (i) of this
clause (c), the amount required to be charged for depreciation,
depletion and amortization in the determination of "Consolidated
Income Available for Dividends" under the most restrictive
provisions of this corporation's indentures with trustees for
debentures (now outstanding or hereafter created) pursuant to
which debentures have been issued by this corporation, exceeds
the amounts so charged on the books of this corporation and its
consolidated subsidiaries as reported in the last annual
officers' Certificates filed with such trustees, such excess
shall also be deducted in determining consolidated gross income
of this corporation and its subsidiaries.]
[(C) So long as any shares of the Preferred Stock are outstanding,
this corporation shall not declare any dividends or make any
distributions, other than dividends or distributions payable in
Common Stock, to one holders of shares of its Common Stock if
after giving effect to such declaration or distribution the
capital of this corporation represented by its Common Stock as
would then be stated on its books of account, together with the
consolidated surplus of this corporation and its subsidiaries at
the end of any calendar month within a period of four (4)
consecutive calendar months immediately preceding the month in
which such dividends or distributions are declared, shall in the
aggregate be less than the involuntary liquidating value of all
shares of its then outstanding Preferred Stock. For the purpose
of this subparagraph, such consolidated surplus of this
corporation and its subsidiaries shall be adjusted for any other
dividends or distributions declared by, and changes in capital or
paid-in surplus of, this corporation and its subsidiaries on a
consolidated basis, to and including the date of such
declaration.]
[(D) As used in this Article FOURTH, the term "subsidiary" shall
mean any corporation a majority of the voting shares of which are
at the time owned by this corporation or by other subsidiaries of
this corporation or by this corporation and other subsidiaries of
this corporation.]
[(E) As used in this paragraph 8 and in paragraph 13, the term
"consolidated surplus of this corporation and its subsidiaries"
shall include capital surplus, earned surplus and any other
surplus of this corporation and its subsidiaries, consolidated as
determined by this corporation in accordance with sound
accounting practice.] and subject to the rights and preferences
=========================================
of each series of Preferred Stock, as determined pursuant to
============================================================
paragraph 1 hereof, all assets and funds of this corporation
============================================================
remaining after paying or providing for the payment of all
==========================================================
creditors of this corporation shall be divided among and paid to
================================================================
the holders of the Common Stock according to their respective
=============================================================
shares.
=======
[9] 6. Preemptive Rights.
= -----------------
No holder of shares of any stock of this corporation of
any class now or hereafter authorized shall have any right as
such holder to purchase, subscribe for or otherwise acquire any
shares of stock of this corporation of any class now or hereafter
authorized, or any securities convertible into or exchangeable
for any such shares, or any warrants or other instruments
evidencing rights or options to subscribe for, purchase or
otherwise acquire any such shares, whether such shares,
certificates, securities, warrants or other instruments be
unissued or issued and thereafter acquired by this corporation
and whether such shares and other instruments be issued for cash,
property, services, or by way of dividends or otherwise.
[10] 7. Voting Rights.
= -------------
[(A)] At all meetings of the stockholders of this
corporation, the holders of shares of Common Stock shall be
entitled to one vote for each share of Common Stock held by them
respectively except as otherwise expressly provided herein.
=============================================
The holders of shares of Preferred Stock shall have no right
to vote and shall not be entitled to notice of any meeting
of stockholders of this corporation nor to participate in any
such meeting except as [herein] otherwise expressly provided
herein or in any amendment creating a series of Preferred Stock
===============================================================
and except for those purposes, if any, for which said rights
cannot be denied or waived under some mandatory provisions of law
that shall be controlling.
[(B) If and when dividends payable on] If, and to the extent
=====================
that, the shares of any series of Preferred Stock [shall be in
========= =============
default in an amount equivalent to or exceeding four (4) full
quarterly dividends on all] are provided voting rights in
=============================
accordance with the provisions hereof, including the provision
==============================================================
of such voting rights in any amendment creating such series, each
=================================================================
holder of shares of [all] such series of [the] Preferred Stock
========= ====
[then outstanding, and until all dividends then in default shall
have been paid or declared and set apart for payment, the holders
of all shares of all series of the Preferred Stock, voting as one
class,] shall be entitled to [elect additional directors in the
smallest number necessary to constitute a majority of the full
Board of Directors, and the holders of shares of Common Stock,
voting separately as a class, shall continue to elect the remaining
directors of this corporation. While such default continues and
the majority of the Board of Directors is being elected by the
holders of shares] one vote for each outstanding share of such
===========================================
series of Preferred Stock[ , the remaining directors shall
======
continue in office for the duration of the respective terms for
which they were elected and until their successors are elected by
the holders of shares of Common Stock and shall qualify. Each
director elected by vote of the holders of shares of Preferred
Stock pursuant to the special right to vote as a class shall hold
office until the next succeeding annual meeting of stockholders
and until his or her successor shall be elected by the holders of
shares of Preferred Stock and shall qualify.]
[The division of directors into classes as provided in Article
SIXTH shall not apply to the directors elected by vote of the
holders of shares of Preferred Stock pursuant to the special
right to vote as a class provided in this subparagraph.]
[(C) If and when all dividends then in default on the shares of
Preferred Stock then outstanding shall be paid or declared and
set apart for payment (and such dividends shall be declared and
paid out of any funds legally available therefor as soon as
reasonably practicable), the Preferred Stock shall thereupon be
divested of any special right with respect to the election of
directors provided in subparagraph (B) hereof, and the voting
power of the holders of shares of Preferred Stock and the holders
of shares of Common Stock shall revert to the status existing
before the occurrence of such default, but always subject to the
same provisions for vesting such special rights in the Preferred
Stock in case of further like default or defaults in dividends
thereon. Upon the termination of any such special right upon the
payment or setting apart for payment of all accumulated and
defaulted dividends on such Preferred Stock, the terms of office
of all persons who may have been elected directors of this
corporation by vote of the holders of shares of Preferred Stock,
as a class, pursuant to such special rights, shall forthwith
terminate.]
[(D) In case of any vacancy in the office of a director occurring
among the directors elected by the holders of shares of Preferred
Stock, as a class, pursuant to the foregoing provisions of
subparagraph (B) hereof, the remaining directors elected by the
holders of shares of Preferred Stock may elect, by affirmative
vote of a Majority thereof, or the remaining director so elected
if there be but one, a successor or successors to hold office for
the unexpired term of the director or directors whose place or
places shall be vacant. This special right shall likewise be
divested if and when all dividends then in default on the shares
of Preferred Stock then outstanding shall be paid or declared and
set apart for payment (and such dividends shall be declared and
paid out of any funds legally available therefor as soon as
reasonably practicable); but always subject to the same
provisions for granting to directors elected by the holders of
shares of Preferred Stock the aforesaid right to elect directors
to fill vacancies in case of further like default or defaults in
dividends on the shares of Preferred Stock and the election of
directors by the holders of shares of Preferred Stock.]
[(E) Whenever under the provisions of subparagraph (B) hereof the
right shall have accrued to the holders of shares of Preferred
Stock to elect directors, the Board of Directors shall call a
special meeting of the holders of shares of Preferred Stock for
the election of such additional directors, such meeting to be
held not less than forty-five (45) days and not more than ninety
(90) days after the accrual of such right. At all meetings of
stockholders held for the purpose of electing directors during
such times as the holders of shares of Preferred Stock shall have
the special right, voting separately as one class, to elect
directors pursuant to subparagraph (B) hereof, the presence in
person or by proxy of the holders of a majority of the
outstanding shares of all series of the Preferred Stock shall be
required to constitute a quorum for the election of directors by
such class.]
[(F) Except when some mandatory provision of law shall be
controlling or except as otherwise provided in clause (b) of
paragraph 8(A) hereof or, except as regards the special rights of
any series of the Preferred Stock as provided in the amendment
creating such series, whenever shares of two or more series of
the Preferred Stock are outstanding no particular series of the
Preferred Stock shall be entitled to vote as a separate series on
any matter and all shares of the Preferred Stock of all series
shall be deemed to constitute but one class for any purpose for
which a vote of the stockholders of this corporation by classes
may now or hereafter be required.] held by such holder.
====================
[11] 8. Reclassification, etc.
= ----------------------
From time to time, and without limitation of other
rights and powers of this corporation as provided by law, this
corporation may reclassify its capital stock and may create or
authorize one or more classes or kinds of stock ranking prior to
or on a parity with or subordinate to the Preferred Stock or may
increase the authorized amount of the Preferred Stock or of the
Common Stock or of any other class of stock of this corporation
or may amend, alter, change or repeal any of the rights,
privileges, terms and conditions of shares of the Preferred Stock
or of any series thereof then outstanding or of shares of the
Common Stock or of any other class of stock of this corporation,
upon such vote, given at a meeting called for that purpose, of
its stockholders then entitled to vote thereon as may be provided
by law; provided that the consent of the holders of shares of the
Preferred Stock (or of any series thereof) required by the
provisions of [paragraph 8 hereof] any amendment creating any
==========================
series of Preferred Stock or by applicable law, if any such
==============================================
consent be so required, shall have been obtained; and provided
further that the rights, privileges, terms and conditions of
===========================================
shares of Common Stock shall not be subject to amendment,
================
alteration, change or repeal without such vote (given by written
consent, or by vote at a meeting called for that purpose), of the
=
holders of Common Stock as may be provided by law[)].
[12] 9. Consideration for Shares[.]
= ------------------------
To the extent permitted by law, this corporation may,
at any time, and from time to time, issue and dispose of any of
the authorized and unissued shares of the Preferred Stock and
Common Stock for such consideration as may be fixed by the Board
of Directors, or as may be determined in accordance with a
==============================================
general formula established by the Board of Directors, or at not
================================================================
less than such minimum consideration as the Board of Directors
==============================================================
may authorize.
==============
[13. Dividend Restriction.]
[So long as any shares of the Preferred Stock shall be
outstanding, this corporation shall not declare any dividends or
make any distributions in respect of outstanding shares of any
stock of this corporation ranking junior to the Preferred Stock
as to dividends or assets (in this paragraph called "junior
stock"), other than dividends in shares of junior stock, or
purchase or otherwise acquire for value any outstanding shares of
junior stock except in exchange for or with the proceeds of other
junior stock (each such dividend, distribution, purchase or
acquisition being in this paragraph called a "dividend") in
contravention of the following:]
[(a) If and so long as the junior stock equity (as defined herein)
as the result of a dividend on the junior stock would become less
than twenty percent (20%) of total consolidated capitalization
(as defined herein), this corporation shall not declare such
dividends in an amount which, together with all other dividends
on the junior stock declared within the year ending with and
including the date on which such dividend is declared, exceeds
fifty percent (50%) of the consolidated net income of this
corporation and its consolidated subsidiaries available for
dividends on the junior stock for any period of twelve (12)
consecutive calendar months within a period of fifteen (15)
consecutive calendar months immediately preceding the calendar
month in which such dividends are declared, except in an amount
not exceeding the aggregate of dividends on the junior stock
which under the restrictions set forth above in this subparagraph
(a) could have been, and have not been, declared; and]
[(b) If and so long as the junior stock equity as the result of a
dividend on the junior stock would become less than twenty-five
percent (25%) but not less than twenty percent (20%) of total
consolidated capitalization, this corporation shall not declare
dividends on the junior stock in an amount which, together with
all other dividends on the junior stock declared within the year
ending with and including the date on which such dividend is
declared, exceeds seventy-five percent (75%) of the consolidated
net income of this corporation and its consolidated subsidiaries
available for dividends on the junior stock for any period of
twelve (12) consecutive calendar months within a period of
fifteen (15) consecutive calendar months immediately preceding
the calendar months in which such dividends are declared, except
in an amount not exceeding the aggregate of dividends on the
junior stock which under the restrictions set forth above in
subparagraph (a) of this paragraph and in this subparagraph (b)
could have been, and have not been, declared.]
[For the purposes of this Article FOURTH, "junior stock equity"
shall mean the aggregate of the par value of, or stated capital
represented by, the outstanding shares of junior stock then
carried on the books of this corporation and consolidated surplus
of this corporation and it subsidiaries, less (i) the excess, if
any, of the aggregate amount payable on involuntary liquidation
of this corporation upon all outstanding shares of the Preferred
Stock of this corporation of all classes over the sum of (I) the
aggregate par value of such shares and (II) any premium thereon;
(ii) any amounts on the books of this corporation and its
consolidated subsidiaries known, or estimated if not known, to
represent the excess, if any, of recorded value over original
cost or other recorded basis required by regulatory authorities
of used or useful utility plant; and (iii) any intangible items
set forth on the asset side of the consolidated balance sheet of
this corporation and its consolidated subsidiaries in accordance
with generally accepted accounting principles, such as
unamortized debt discount and expense; provided, however, that no
deduction shall be required to be made in respect of items
referred to in clauses (ii) and (iii) of this paragraph in cases
in which such items are being amortized or are provided for, or
are being provided for, by reserves.]
[For the purposes of this Article FOURTH, "total consolidated
capitalization" shall mean the aggregate of (i) the principal
amount of all outstanding indebtedness of this corporation and
its consolidated subsidiaries maturing more than twelve (12)
months after the date of issue or assumption thereof; and (ii)
the par value of, or stated capital represented by, the
outstanding shares of all classes of the capital stock of this
corporation and its subsidiaries consolidated, plus premiums on
such stock and the consolidated surplus of this corporation and
its subsidiaries, less any amounts required to be deducted
pursuant to clause (ii) and (iii) the immediately preceding
paragraph of this paragraph in the determination of junior stock
equity.]
[For the purposes of this paragraph 13 and paragraph 8, "junior
stock equity" and "total consolidated capitalization" shall be as
of the date on which the dividend or distribution is declared on
or which the issue or reissue of capital stock (to which
paragraphs 13 and 8 relate) would occur, except, however,
consolidated surplus of this corporation and its subsidiaries
included therein shall be the amount thereof at the end of any
calendar month within a period of four (4) consecutive calendar
months immediately preceding the calendar month in which such
dividend or distribution is declared or such issue or reissue of
capital stock would occur, adjusted, as applicable, for all
dividends or distributions declared and issues or reissues of
capital stock by this corporation and its subsidiaries on a
consolidated basis subsequent to the date such consolidated
surplus of this corporation and its subsidiaries is determined.]
[Cumulative Preferred Stock, 9.205 Series]
[The shares of Preferred Stock are hereby divided to create a
series of Preferred Stock, and it is hereby determined that such
series shall consist of 1,200,000 shares, $25 par value, which
shall have the following designation, relative rights,
preferences and limitations:]
[(a) The distinctive serial designation of the series is
Cumulative Preferred Stock, 9.20% Series ("9.20% Series")]
[(b) The annual dividend rate for the 9.20% Series is $2.30 per
share per annum payable quarterly on July 15, October 15, January
15 and April 15 of each year, the first dividend date to be July
15, 1976, for the period commencing June 3, 1976, and such
dividends to be cumulative from June 3, 1976.]
[(c) The 9.20% Series shall be subject to redemption in the manner
provided in the Certificate of Incorporation at a redemption
price per share (i) of $27.30 if the date of redemption is on or
prior to April 14, 1981, (ii) of $26.73 if the date of redemption
is after that date but on or prior to april 14, 1986, (iii) of
$26.15 if the date of redemption is after the last mentioned date
but on or prior to April 14, 1991 and (iv) $25.58 thereafter, in
each case plus unpaid accumulated dividends to the date of
redemption; provided, however, that the 9.20% Series shall not be
redeemable on or prior to April 14, 1981, directly or indirectly,
as a part of, or in anticipation of, any refunding operation
involving the incurring of indebtedness or the issuance of
Preferred Stock ranking equally with or prior to the 9.20% Series
as to dividends or on liquidation, if the interest on such
indebtedness or the dividends on such Preferred Stock have an
effective annual interest or dividend cost to the corporation
(computed in accordance with generally accepted financial
practice) of less than 9.50413%, the effective dividend cost to
the corporation of the 9.20% Series.]
[(d) The 9.20% Series shall be entitled to receive, upon
involuntary liquidation, dissolution or winding up of this
corporation, $25 per share plus accumulated and unpaid dividends,
if any.]
[(e) The 9.20% Series shall be subject to redemption as and for a
sinking fund as follows:]
[On or before April 14 in each year, commencing with the twelve-
month period April 15, 1981 through April 14, 1982 and on or
before each April 14 thereafter (each such period being
hereinafter referred to as a "9.20% Series Sinking Fund
Redemption Period" and each such April 14 being hereinafter
referred to as a "9.20% Series Sinking Fund Redemption Date"),
for so long as any shares of the 9.20% Series shall remain
outstanding, the corporation shall redeem, out of funds legally
available therefor and otherwise in the manner provided with
respect to the corporation's Preferred Stock, cumulative, $25 par
value, in the Certificate of Incorporation 60,000 shares of the
9.20% Series (or the number of shares then outstanding if less
than 60,000) at the sinking fund redemption price of $25 per
share plus, as to each share so redeemed, an amount equivalent to
the accumulated and unpaid dividends thereon, if any, to the date
of redemption (the obligation of the corporation so to redeem the
shares of the 9.20% Series being hereinafter referred to as the
"9.20% Series Sinking Fund Obligation"). The 9.20% Series Sinking
Fund Obligation shall be cumulative. If on any 9.20% Series
Sinking Fund Redemption Date the corporation shall not have
redeemed 60,000 shares during the previous 9.20% Series Sinking
Fund Redemption Period and the corporation shall not have funds
legally available therefor sufficient to redeem the full number
of shares required to be redeemed on or before that date, the
9.20% Series Sinking Fund Redemption Period and each successive
9.20% Series Sinking Fund Redemption Date until such shares shall
have been redeemed. Whenever on any 9.20% Series Sinking Fund
Redemption Date the funds of the corporation legally available
for the satisfaction of the 9.20% Series Sinking Fund Obligation
and all other sinking fund and similar obligations then existing
with respect to any other class or series of its stock ranking on
a parity as to dividends or assets with the 9.20% Series (such
Obligation and obligations collectively being hereinafter
referred to as the "Total Sinking Fund Obligation") are
insufficient to permit the corporation to satisfy fully its Total
Sinking Fund Obligation on that date, the corporation shall apply
to the satisfaction of its 9.20% Series Sinking Fund Obligation
on that date that proportion of such legally available funds
which is equal to the ratio of such 9.20% Series Sinking Fund
Obligation to such Total Sinking Fund Obligation. In addition to
the 9.20% Series Sinking Fund Obligation, the corporation shall
have the option, which shall be non-cumulative, to redeem, upon
authorization of the Board of Directors and otherwise in the
manner provided with respect to the corporation's Preferred
Stock, cumulative, $25 par value, in the Certificate of
Incorporation on each 9.20% Series Sinking Fund Redemption Date,
at the aforesaid sinking fund redemption price, up to 60,000
additional shares of the 9.20% Series. The corporation shall be
entitled, at its election, to credit against its 9.20% Series
Sinking Fund Obligation for any 9.20% Series Sinking Fund
Redemption Period or on any 9./20% Series Sinking Fund Redemption
Date any shares of the 9.20% Series (including shares of the
9.20% Series optionally redeemed pursuant to this paragraph (e))
theretofore redeemed, other than shares of the 9.20% Series
redeemed pursuant to the 9.20% Series Sinking Fund Obligation,
purchased or otherwise acquired and not previously credited
against the 9.20% Series Sinking Fund Obligation; and]
[(f) The 9.20% Series shall have such other relative rights,
preferences and limitations as are set forth in the Certificate
of Incorporation.]
[(k) "Subsidiary" shall have the meaning given that term in
subparagraph (D) of paragraph 8 of this Article FOURTH hereof
SIXTH: The business and affairs of this corporation shall be
managed by a Board of Directors. The number of directors
(exclusive of directors, if any, to be elected by the holders of
paragraph 10 of Article FOURTH hereof) shall be not less than 7
nor more than 11, the exact number of directors to be determined
from time to time by a resolution adopted by the affirmative vote
of a majority of the entire Board of Directors.]
[The directors of this corporation shall be divided into three
classes, designated Class I, Class II and Class III,
respectively. Each class shall be as nearly equal in number as
may be possible. At the 1985 annual meeting of stockholders,
Class I directors shall be elected for a one-year term, Class II
directors for a two-year term and Class III directors for a
three-year term. At each succeeding annual meeting of
stockholders beginning in 1986, the successors to the class of
directors whose term expires at that annual meeting shall be
elected for a three-year term, and successors to directors of any
other class, including directors elected in any such class by the
Board of Directors to fill one or more vacancies or newly-created
directorships, shall be elected for the remaining term of that
class. If the number of directors is changed by resolution of the
Board of Directors pursuant to this Article SIXTH, any increase
or decrease shall be apportioned by the Board among the classes
so as to maintain the number of directors in each class as nearly
as possible, but in no case shall a decrease in the number of
directors shorten the term of any incumbent director.]
[Any newly-created directorship resulting from an increase in the
number of directors by resolution of the Board pursuant to this
Article SIXTH may be filled by a majority of the directors then
in office. Any vacancy on the Board of Directors occurring for
any reason, other than an increase in the number of directors as
aforesaid, may be filled by a majority of the directors then in
office, although less than a quorum, or by a sole remaining
director.]
[Directors of any class shall hold office until the annual meeting
of the year in which the term of such class expires or, in the
case of directors elected by the Board of Directors to fill
vacancies or newly-created directorships, until the next annual
meeting following their election, and until their respective
meeting following their election, and until their respective
successors shall be elected and shall qualify, subject to prior
death, resignation, retirement, disqualification or removal from
office.]
II. Changes to paragraph 4(k) of Article FIFTH of the
Restated Certificate of Incorporation of National Fuel Gas
Company:
(k) "Subsidiary" shall [have the meaning given that
term in subparagraph ()d) of paragraph 8 of this Article FOURTH
hereof] mean any corporation a majority of the voting shares of
=======================================================
which are at the time owned by this corporation or by other
===========================================================
subsidiaries of this corporation or by this corporation and other
=================================================================
subsidiaries of this corporation.
================================
III. Changes to the first paragraph of Article SIXTH of
the Restated Certificate of Incorporation of National Fuel Gas
Company:
The business and affairs of this corporation shall be
managed by a Board of Directors. The number of directors
(exclusive of directors, if any, to be elected by holders of
shares of Preferred Stock, [voting separately as a class,
pursuant to paragraph 10 of Article FOURTH hereof] voting
======
separately from the Common Stock as provided in any amendment
=============================================================
creating any series of Preferred Stock) shall be not less than 7
======================================
nor more than 11, the exact number of directors to be determined
from time to time by a resolution adopted by the affirmative vote
of a majority of the entire Board of Directors.
IV. Changes to the last paragraph of Article SIXTH of
the Restated Certificate of Incorporation of National Fuel Gas
Company:
Notwithstanding the foregoing and except as otherwise
provided by law, whenever the holders of shares of Preferred
Stock shall have the right, voting separately [as a class] from
====
the Common Stock, to elect directors of this corporation, the
================
number, election, term of office, filling of vacancies and other
features of such directorships shall be governed by the terms and
provisions of [this Certificate of Incorporation applicable
thereto, including paragraph 10 of Article FOURTH hereof] any
===
amendment creating any series of Preferred Stock; and such
================================================
directors so elected shall not be divided into classes pursuant
to this Article SIXTH. During the prescribed term of office of
any such directors, the Board of Directors shall consist of such
directors in addition to the number of directors determined as
provided in the first paragraph of this Article SIXTH.
EXHIBIT F-1
REID & PRIEST LLP
40 West 57th Street
New York, NY 10019-4097
Telephone 212 603-2000
Fax 212 603-2001
(212) 603-2000
New York, New York
December 17, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: National Fuel Gas Company
Form U-1 Application-Declaration
(File No. 70-9149)
---------------------------------
Ladies and Gentlemen:
This opinion relates to the Application-Declaration,
filed with the Securities and Exchange Commission (the
"Commission") on December 4, 1997 (the "Application-
Declaration"), by National Fuel Gas Company ("National"), under
the Public Utility Holding Company Act of 1935, as amended.
This Application-Declaration seeks authorization for
the following (the "Proposed Transactions"):
(a) The amendment of Article Fourth of National's
Restated Certificate of Incorporation, as amended ("Certificate),
to (i) increase the number of authorized shares of Common Stock,
$1.00 par value per share, from 100,000,000 shares to 200,000,000
shares, (ii) eliminate National's existing 3,200,000 shares of
authorized but unissued preferred stock, $25 par value per share,
and all provisions related thereto, and (iii) authorize
10,000,000 shares, par value $1.00 per share, of a new class of
preferred stock (together the "Proposed Amendments"); and
(b) The solicitation of proxies from the holders of
National's Common Stock, with respect to the Proposed Amendments.
Based upon the foregoing and subject to the
qualifications and assumptions hereinafter specified, we are of
the opinion that:
1. National is a corporation duly incorporated and
validly existing under the laws of the State of New Jersey.
2. If (i) the Proposed Transactions are consummated
as contemplated by the Application-Declaration and in accordance
with the terms of the order or orders of the Securities and
Exchange Commission with respect thereto, (ii) the Board of
Directors of National approves and authorizes the consummation of
Proposed Transactions, (iii) with respect to the Proposed
Amendments, (a) the stockholders of National duly adopt the
Proposed Amendments and (b) a certificate of amendment is filed
with the Secretary of State of the State of New Jersey with
respect to the Proposed Amendments, and (iv) no act or event
other than as described herein shall have occurred subsequent to
the date hereof which would change the opinions expressed herein:
(A) All state laws applicable to the Proposed
Transactions will have been complied with;
(B) The Certificate will have been legally and
validly amended, and the holders of National's capital stock
will be entitled to the rights and privileges appertaining
thereto set forth in the Certificate as so amended;
(C) The consummation of the Proposed Transactions
will not violate the legal rights of the holders of any
securities issued by National.
We are members of the New York Bar and do not hold
ourselves out as experts on the laws of any other state,
Accordingly, in giving this opinion, we have relied, as to all
matters governed by the law of the State of New Jersey, upon the
opinion of Stryker, Tams & Dill LLP. A copy of such opinion will be
filed as an exhibit to the Application-Declaration.
We hereby consent to the use of this opinion as an
exhibit to the Application-Declaration.
Very truly yours,
/s/ Reid & Priest LLP
REID & PRIEST LLP
EXHIBIT F-2
STRYKER, TAMS & DILL LLP
TWO PENN PLAZA EAST
NEWARK, N.J. 07105
________
(201) 491-9500
December 17, 1997
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Re: National Fuel Gas Company
Form U-1 Application-Declaration
(File No. 70-9149)
------------------
Ladies and Gentlemen:
This opinion relates to the Application-Declaration,
filed with the Securities and Exchange Commission (the
"Commission") on December 4, 1997 (the "Application-
Declaration"), by National Fuel Gas Company ("National"), under
the Public Utility Holding Company Act of 1935, as amended.
This Application-Declaration seeks authorization for
the following (the "Proposed Transactions"):
(a) The amendment of Article Fourth of National's
Restated Certificate of Incorporation, as amended ("Certificate),
to (i) increase the number of authorized shares of Common Stock,
$1.00 par value per share, from 100,000,000 shares to 200,000,000
shares, (ii) eliminate National's existing 3,200,000 shares of
authorized but unissued preferred stock, $25 par value per share,
and all provisions related thereto, and (iii) authorize
10,000,000 shares, par value $1.00 per share, of a new class of
preferred stock (together the "Proposed Amendments"); and
(b) The solicitation of proxies from the holders of
National's Common Stock, with respect to the Proposed Amendments.
Based upon the foregoing and subject to the
qualifications and assumptions hereinafter specified, we are of
the opinion that:
1. National is a corporation duly incorporated and
validly existing under the laws of the State of New Jersey.
2. If (i) the Proposed Transactions are consummated
as contemplated by the Application-Declaration and in accordance
with the terms of the order or orders of the Securities and
Exchange Commission with respect thereto, (ii) the Board of
Directors of National approves and authorizes the consummation of
Proposed Transactions, (iii) with respect to the Proposed
Amendments, (a) the stockholders of National duly adopt the
Proposed Amendments and (b) a certificate of amendment is filed
with the Secretary of State of the State of New Jersey with
respect to the Proposed Amendments, and (iv) no act or event
other than as described herein shall have occurred subsequent to
the date hereof which would change the opinions expressed herein:
(A) All laws of the State of New Jersey
applicable to the Proposed Transactions will have been
complied with;
(B) The Certificate will have been legally and
validly amended, and the holders of National's capital stock
will be entitled to the rights and privileges appertaining
thereto set forth in the Certificate as so amended;
(C) The consummation of the Proposed Transactions
will not violate the legal rights of the holders of any
securities issued by National.
A copy of this opinion is being delivered to Reid &
Priest LLP who, in rendering their opinion of even date herewith
to the Securities and Exchange Commission, are hereby authorized
to rely upon the opinions expressed herein to the same extent as
if this opinion had also been addressed directly to them.
We hereby consent to the use of this opinion as an
exhibit to the Application-Declaration.
Very truly yours,
/s/ Stryker, Tams & Dill LLP
STRYKER, TAMS & DILL LLP
cc: Reid & Priest LLP
