As filed with the Securities and Exchange Commission
on May 1, 1998
Registration No. 333-_____
_________________________________________________________________
_________________________________________________________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
The Securities Act of 1933
NATIONAL FUEL GAS COMPANY
(Exact name of issuer as specified in its charter)
New Jersey 13-1086010
(State or other jurisdiction of (I.R.S. Employer)
incorporation or organization) Identification No.)
10 Lafayette Square
Buffalo, New York 14203
(Address of Principal Executive Office)
1997 AWARD AND OPTION PLAN
(Full title of the plan)
Curtis W. Lee, Esq.
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
(Name and address of agent for service)
716-857-7812
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Proposed Proposed Max.
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share(3) price fee
Common Stock
one dollar
($1.00) par
value 1,900,000
shares(1) $44.38 $84,322,000 $24,875
Common Stock
Purchase
Rights 1,900,000
rights(2) - - -
(1) The number of shares are subject to adjustment with the
anti-dilution provisions of the Plan. Accordingly, this
Registration Statement also covers an indeterminable number of
shares which may be issuable in connection with such provisions.
<PAGE>
(2) Since no separate consideration is paid for the Common
Stock Purchase Rights ("Rights"), the registration fee for such
securities is included in the fee for the Common Stock. The
value attributable to the Rights, if any, is reflected in the
market price of the Common Stock.
(3) Estimated solely for the purpose of determining the
registration fee computed pursuant to Rule 457(c); calculated on
the basis of the average of the high and low prices of the Common
Stock as reported on the New York Stock Exchange on April 27,
1998.
_________________________________________________________________
_________________________________________________________________
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Information specified in Part I of Form S-8 (Items 1
and 2) will be sent or given to Plan participants as specified by
Rule 428(b)(1) under the Securities Act of 1933, as amended, (the
"Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by the Company with the
Securities and Exchange Commission (the "Commission") pursuant to
the Exchange Act of 1934, as amended (the "Exchange Act") are
incorporated by reference into this Registration Statement:
(a) The Company's Annual Report on Form 10-K for the
fiscal year ended September 30, 1997;
(b) The Company's Quarterly Report on Form 10-Q for
the quarter ended December 31, 1997, as amended on
Form 10-Q/A dated March 2, 1998;
(c) The Company's Current Report on Form 8-K dated
April 29, 1998;
(d) The Company's Registration Statement on Form 8-A
dated June 14, 1996.
In addition, all documents subsequently filed by the Company
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Exchange
Act, prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in the Registration Statement and
to be part hereof from the date of filing of such documents.
Item 4. Description of Securities.
DESCRIPTION OF THE COMPANY'S COMMON STOCK
General
The following is a brief summary of certain of the
terms and provisions of the Company's Common Stock. This summary
does not purport to be complete and is qualified in its entirety
by reference to the terms and provisions of the Company's
Restated Certificate of Incorporation, as amended (Restated
Certificate of Incorporation), By-Laws, as amended, and the
Rights Agreement, dated as of June 12, 1996, between the Company
and Marine Midland Bank ("Rights Agreement"). Reference is also
made to the Company's Indenture, dated as of October 14, 1974
between the Company and the Bank of New York (formerly Irving
Trust Company) as supplemented.
<PAGE>
No shares of preferred stock ("Preferred Stock") of the
Company are currently outstanding. However, the Board of
Directors of the Company has the ability to issue one or more
series of Preferred Stock from time to time with such powers,
designations, preferences, rights and qualifications as the Board
of Directors may determine subject to such powers, designations,
preferences, rights and qualifications as are contained in the
Company's Restated Certificate of Incorporation. The actual
effect of the Preferred Stock upon the rights of the holders of
the Company's Common Stock can not be stated until the Company's
Board of Directors determines the respective rights of the
holders of one or more series of Preferred Stock. Such effects,
however, might include (a) restrictions on dividends on the
Company's Common Stock if dividends on the Preferred Stock are in
arrears; (b) dilution of the voting power of the Company's Common
Stock; (c) restrictions on the rights of the holders of the
Company's Common Stock to share in the Company's assets upon
liquidation due to satisfaction of any liquidation preference
granted to the Preferred Stock; and (d) dilution of rights of
holders of the Company's Common Stock to share in the Company's
assets upon liquidation if the Preferred Stock is participating
with respect to distributions upon such liquidation.
Dividend Rights
The holders of Common Stock are entitled to receive
such dividends as are declared by the Board of Directors out of
funds legally available for the payment of such dividends. The
Board of Directors' ability to declare dividends on Common Stock
may also be limited by the rights and preferences of certain
series of Preferred Stock which may be issued from time-to-time
and by the terms of instruments defining the rights of holders of
outstanding indebtedness of the Company.
Voting Rights and Classification of the Board of Directors
The holders of Common Stock are entitled to one vote
per share. The affirmative vote of the majority of the votes
cast by the holders of the Common Stock is required for the
merger or consolidation of the Company or for the sale of
substantially all of its assets. The Board of Directors is
divided into three classes, each with, as nearly as possible, an
equal number of directors.
Liquidation Rights
Upon any dissolution, liquidation or winding up of the
Company, the holders of Common Stock are entitled to receive pro
rata all of the Company's assets and funds remaining after
payment of or provision for creditors and subject to the rights
and preferences of each series of Preferred Stock.
Preemptive Rights
Holders of Common Stock and any series of Preferred
Stock that may be issued have no preemptive right to purchase or
subscribe for any shares of capital stock of the Company.
<PAGE>
Common Stock Purchase Rights
The holders of the Common Stock have one right
("Right") for each of their shares. Each Right, which will
initially be evidenced by the Common Stock certificates
representing the outstanding shares of Common Stock, entitles the
holder to purchase one-half of one share of Common Stock at a
purchase price of $130 per share, being $65 per half share,
subject to adjustment ("Purchase Price").
Until the earliest to occur of (i) ten days following
the date ("Shares Acquisition Date") of the public announcement
that a person or affiliated group ("Acquiring Person") has
acquired, or obtained the right to acquire, beneficial ownership
of Common Stock or other voting securities ("Voting Stock") that
have 10% or more of the voting power of the outstanding shares of
Voting Stock or (ii) ten days following the commencement or
announcement of an intention to make a tender offer, or exchange
offer, the consummation of which would result in such person
acquiring, or obtaining the right to acquire, beneficial
ownership of Voting Stock having 10% or more of the voting power
of the outstanding shares of Voting Stock (the earlier of such
dates being called the "Distribution Date"), the Rights will be
evidenced, with respect to any shares of Common Stock
outstanding, by the Common Stock certificates representing those
outstanding shares.
Subject to redemption or exchange of the Rights, at any
time following the Distribution Date, each holder of a Right will
have the right to receive, upon exercise, Common Stock (or, in
certain circumstances, cash, property or other securities of the
Company) having a value equal to two times the Purchase Price of
the Right then in effect. However, all Rights that are, or under
certain circumstances were, beneficially owned by any Acquiring
Person will be null and void.
In the event that, at any time following the Shares
Acquisition Date, (i) the Company is acquired in a merger or
other business combination transaction, or (ii) 50% or more of
the Company's assets or earning power are sold or transferred,
each holder of a Right (except Rights which previously have been
voided as set forth above) shall thereafter have the right to
receive, upon exercise, common stock of the acquiring company
having a value equal to two times the Purchase Price of the Right
then in effect.
At any time prior to the end of the business day on the
tenth day following the Shares Acquisition Date, the Company may
redeem the Rights in whole, but not in part, at a price of $.01
per Right ("Redemption Price"), payable in cash or stock. This
decision to redeem the Rights shall require, in certain
circumstances, the concurrence of a majority of the independent
directors. At any time after a person becomes an Acquiring
Person, the Board may exchange the Rights (other than Rights
owned by an Acquiring Person, which shall become void), in whole
or in part, at an exchange ratio of one share of Common Stock
and/or other securities, cash or other assets deemed to have the
same value as one share of Common Stock, per Right, subject to
adjustments.
<PAGE>
The Rights will expire on July 31, 2006, unless they
are exchanged or redeemed (as described above) earlier than that
date.
Upon exercise of the Rights, the Company may require
additional regulatory approvals.
The Rights have anti-takeover effects because they will
cause substantial dilution of the Common Stock if a person
attempts to acquire the Company on terms not approved by the
Board of Directors.
Business Combinations
The Company's Restated Certificate of Incorporation
provides that certain conditions must be met before the
consummation of any merger or other "Business Combination" by the
Company or any of its subsidiaries with any stockholder who is
directly or indirectly the beneficial owner of 5% or more of the
Company's outstanding Common Stock ("Substantial Stockholder") or
with an affiliate of any such stockholder ("Affiliate"). The
term Substantial Stockholder does not include the Company, any of
its subsidiaries, or any Trustee holding Common Stock of the
Company for the benefit of the employees of the Company or any of
its subsidiaries pursuant to one or more employee benefit plans
or arrangements. The conditions, which are in addition to those
otherwise required by law, prescribe the minimum amount per share
that must be paid to holders of Common Stock and the form of
consideration paid, and require that the holders of Common Stock
be furnished certain information about the Business Combination
prior to voting on it. Business Combination, as defined in the
Restated Certificate of Incorporation, generally means any of the
following transactions: a merger, consolidation or share
exchange; a sale, lease, exchange or other disposition of any
assets in exchange for property having a fair market value of
more than $10 million, if determined to be a Business Combination
by certain directors of the Company in accordance with provisions
of the Restated Certificate of Incorporation; the issuance or
transfer of securities in exchange for property having a fair
market value of more than $10 million, if determined to be a
Business Combination by certain directors of the Company in
accordance with provisions of the Restated Certificate of
Incorporation; the adoption of a plan of liquidation or
dissolution of the Company; or any reclassification of
securities, recapitalization or reorganization that has the
effect of increasing the proportionate share of the outstanding
shares of any class of securities of the Company that is owned by
any substantial stockholder or by any affiliate of a substantial
stockholder.
The approval of at least three-fourths of the entire
Board of Directors or, in the event that the Board of Directors
consists of directors elected by the holders of Preferred Stock,
the approval of a majority of the entire Board, is required to
amend or repeal the classified board or business combination
provisions contained in the Restated Certificate of
Incorporation.
<PAGE>
Listing
The Company's Common Stock is listed on the New York
Stock Exchange.
Transfer Agent and Registrar
The transfer agent and registrar for the Common Stock
is ChaseMellon Shareholder Services, L.L.C., South Hackensack,
New Jersey.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The New Jersey Business Corporation Act (the "Act")
permits the indemnification of, among others, its directors and
officers and requires the indemnification of such persons against
expenses where they have been successful on the merits or
otherwise in certain types of actions. The indemnification
provided by the Act does not exclude any other right of
indemnification which the director or officer may have under a
certificate of incorporation, by-law, agreement, vote of
shareholders or otherwise.
Article II, Section 8 of the Company's by-laws provides
for indemnification of officers and directors who have met
certain standards of conduct.
The Company maintains an insurance policy to cover,
after the deductible amount, its indemnification payments to its
officers and directors up to a stated limit.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the Exhibit Index following the Signature page in
this Registration Statement, which Exhibit Index is incorporated
herein by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment
to this registration statement;
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts
or events arising after the effective date of the
<PAGE>
registration statement (or the most recent post-
effective amendment thereof) which, individually
or in the aggregate, represent a fundamental
change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any
material change to such information in the
registration statement;
provided, however, that paragraphs (a)(1)(i) and (ii) do not
apply if the registration statement is on Form S-3 or Form S-8,
and the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or 15(d) of the
Exchange Act that are incorporated by reference in the
registration statement.
(2) That, for the purpose of determining any
liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to
be a new registration statement relating to the
securities offered therein, and the offering of
such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities
being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that,
for purposes of determining any liability under
the Securities Act of 1933, each filing of the
registrant's annual report pursuant to
Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee
benefit plan's annual report pursuant to
Section 15(d) of the Exchange Act) that is
incorporated by reference in the registration
statement shall be deemed to be a new registration
statement relating to the securities offered
therein, and the offering of such securities at
that time shall be deemed to be the initial bona
fide offering thereof.
(h) Insofar as indemnification for liabilities arising
under the Securities Act of 1933 may be permitted
to directors, officers and controlling persons of
the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and
Exchange Commission such indemnification is
against public policy as expressed in the Act and
<PAGE>
is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities
(other than the payment by the registrant of
expenses incurred or paid by a director, officer
or controlling person of the registrant in the
successful defense of any action, suit or
proceeding) is asserted by such director, officer
or controlling person in connection with the
securities being registered, the registrant will,
unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the
question whether such indemnification by it is
against public policy as expressed in the Act and
will be governed by the final adjudication of such
issue.
<PAGE>
SIGNATURES
The Registrant. Pursuant to the requirements of the
Securities Act of 1933, the registrant certifies that it has
reasonable grounds to believe that it meets all the requirements
for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Buffalo, State of New
York on May 1, 1998.
National Fuel Gas Company
By: /s/ B.J. Kennedy
B.J. Kennedy
Chairman of the Board,
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act of
1933, this registration statement has been signed by the
following persons in the capacities and on the date above.
Signature Title
/s/ B.J. Kennedy Chairman of the Board, May 1, 1998
B.J. Kennedy President, Chief
Executive Officer and
Director
/s/ P.C. Ackerman Senior Vice President May 1, 1998
P.C. Ackerman (Principal Financial
Officer and Director)
/s/ R.T. Brady Director May 1, 1998
R.T. Brady
/s/ H.V. Glynn Director May 1, 1998
J.V. Glynn
/s/ W.J. Hill Director May 1, 1998
W.J. Hill
/s/ B.S. Lee Director May 1, 1998
B.S. Lee
/s/ E.T. Mann Director May 1, 1998
E.T. Mann
<PAGE>
/s/ G.L. Mazanec Director May 1, 1998
G.L. Mazanec
/s/ G.H. Schofield Director May 1, 1998
G.H. Schofield
/s/ J.P. Pawlowski Treasurer and May 1, 1998
J.P. Pawlowski Principal Accounting
Officer
<PAGE>
EXHIBIT INDEX
Exhibit No. Page No.
4-1 Restated Certificate of
Incorporation of National Fuel
Gas Company, dated March 15, 1985
(Incorporated by Reference to
Exhibit 4-4 in File No. 70-6667).
4-2 Certificate of Amendment of
Restated Certificate of
Incorporation of National Fuel
Gas Company, dated March 9, 1987
(Incorporated by Reference to
Exhibit 3-3 in File No. 70-734).
4-3 Certificate of Amendment of
Restated Certificate of
Incorporation of National Fuel
Gas Company, dated February 22,
1988 (Incorporated by Reference
to Exhibits B-5 in File
No. 70-7478).
4-4 Certificate of Amendment of
Restated Certificate of
Incorporation, dated March 17,
1992. (Incorporated by Reference
to Exhibit 4-4 in File
No. 70-811).
4-5 Certificate of Amendment of Restated
Certificate of Incorporation dated
April 3, 1998.
4-6 Bylaws of the Company, as amended.
through September 18, 1997
(Incorporated by Reference to
Exhibit A-2, in File No. 70-9149).
4-7 Indenture dated as of October 15, 1974,
between the Company and The Bank of
New York (formerly Irving Trust Company)
(Exhibit 2(b) in File No. 2-51796).
4-8 Third Supplemental Indenture dated as
of December 1, 1982, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4(a)(4) in File No. 33-49401).
<PAGE>
4-9 Tenth Supplemental Indenture dated as
of February 1, 1992, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4(a), Form 8-K dated
February 14, 1992 in File No. 1-3880).
4-10 Eleventh Supplemental Indenture dated
as of May 1, 1992, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4(b), Form 8-K dated
February 14, 1992 in File No. 1-3880).
4-11 Twelfth Supplemental Indenture dated
as of June 1, 1992, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4(c), Form 8-K dated
June 18, 1992 in File No. 1-3880).
4-12 Thirteenth Supplemental Indenture dated
as of March 1, 1993, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4(a)(14) in File No. 33-49401).
4-13 Fourteenth Supplemental Indenture dated
as of July 1, 1993, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4.1, Form 10-K for fiscal year
ended September 30, 1996 in File No. 1-3880).
4-14 Fifteenth Supplemental Indenture dated
as of September 1, 1996, to Indenture dated
as of October 15, 1974, between the
Company and The Bank of New York
(formerly Irving Trust Company)
(Exhibit 4.1, Form 10-K for fiscal year ended
September 30, 1996 in File No. 1-3880).
4-15 Rights Agreement, dated as of June 12, 1996,
between the Company and Marine Midland Bank,
which includes as Exhibit A thereto the
form of a Right Certificate and as Exhibit B
thereto the Summary of Rights to Purchase
Common Stock (filed as Exhibit 99.1 to
Form 8-A dated June 14, 1996, in File
No. 1-3880).
<PAGE>
5 Opinion of Phillips, Lytle,
Hitchcock, Blaine & Huber as to
the legality of the securities
registered.
24(a) Consent of Independent Accountants
24(b) Consent of Phillips, Lytle,
Hitchcock, Blaine & Huber
(included in Exhibit 5)
24(c) Consent of Ralph E. Davis and
Associates, Inc.
<PAGE>
EXHIBIT 4-5
STATE OF NEW JERSEY
DEPARTMENT OF STATE
FILING CERTIFICATION (CERTIFIED COPY)
NATIONAL FUEL GAS COMPANY
I, the Secretary of State of the State of New Jersey, do
hereby certify, that the above named business did file and record
in this department the below listed document(s) and that the
foregoing is a true copy of the Certificate of Amendment Filed in
this office April 3, 1998 as the same is taken from and compared
with the original(s) filed in this office on the date set forth
on each instrument and now remaining on file and of record in my
office.
IN TESTIMONY WHEREOF, I have hereunto set my hand and
affixed my Official Seal at Trenton, this 6th day of April, 1998
/s/LONNA R. HOOKS
_________________________
LONNA R. HOOKS
Secretary of State
<PAGE>
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
NATIONAL FUEL GAS COMPANY
DATED: April 2, 1998
The undersigned corporation, National Fuel Gas Company,
having adopted amendments to its certificate of incorporation, as
heretofore restated and amended (the "Restated and Amended
Certificate"), pursuant to Section 14A:9-4(3) of the New Jersey
Business Corporation Act, hereby certifies as follows:
1. Name. The name of the corporation is NATIONAL FUEL GAS
COMPANY (the "Corporation").
2. Amendments. The Restated and Amended Certificate is
further amended in the following two respects: (i) Article
FOURTH thereof is amended to increase the number of authorized
shares of common stock, par value $1.00 per share, from
100,000,000 to 200,000,000 (the "Common Stock Amendment"); and
(ii) Article FOURTH thereof is further amended by deleting the
provisions therein for the former 3,200,000 shares of preferred
stock, par value $25 per share, and substituting therefor
provisions establishing a new class of preferred stock,
consisting of 10,000,000 shares of preferred stock, par value
$1.00 per share, and correlative amendments are made to Articles
FIFTH and SIXTH thereof to reflect the newly created class of
preferred stock (the "Preferred Stock Amendment" and,
collectively with the Common Stock Amendment, the "Amendments").
The text of the Amendments, in combined form, is annexed hereto
as Appendix A.
3. Date of Shareholder Adoption. The date of adoption of
these Amendments by the shareholders of the Corporation was
February 26, 1998.
4. Shares Entitled to Vote. The number of shares of the
Corporation entitled to vote on the Amendments was 38,237,435
shares of common stock, par value $1.00 per share.
5. Vote on Amendments. (A) The number of shares voted
for and against the Common Stock Amendment were as follows:
FOR - 29,700,741 Common Shares
AGAINST - 2,265,428 Common Shares
(B) The number of shares voted for and against the
Preferred Stock Amendment and the number of abstentions were as
follows:
FOR - 18,323,995 Common Shares
AGAINST - 8,874,937 Common Shares
<PAGE>
6. Effective Date. The Amendments shall become effective
on the date of filing.
IT WITNESS WHEREOF, the undersigned corporation has caused
this Certificate to be executed on its behalf by its duly
authorized officer as of the date first above written.
NATIONAL FUEL GAS COMPANY
By: /s/ P.C. Ackerman
__________________________
P.C. Ackerman
Senior Vice President
<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:
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;
(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,
<PAGE>
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 volumtary 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.
<PAGE>
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
<PAGE>
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
<PAGE>
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 crating 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>
EXHIBIT 5
OPINION OF PHILLIPS, LYTLE, HITCHCOCK,
BLAINE & HUBER LLP AS TO THE LEGALITY
OF THE SECURITIES REGISTERED
May 1, 1998
National Fuel Gas Company
10 Lafayette Square
Buffalo, New York 14203
Re: National Fuel Gas Company - Registration Statement
on Form S-8
Gentlemen:
With respect to the Form S-8 Registration Statement of
the National Fuel Gas Company 1997 Award and Option Plan (the
"Plan"), covering the registration of 1,900,000 shares of Common
Stock of the National Fuel Gas Company (the "Company"), we have
examined and are familiar with the Company's Certificate of
Incorporation, By-laws, resolutions of its Directors, the Plan
and such other documents and corporate records and proceedings
relating to the proposed issuance of the Common Stock and the
adoption of the Plan by the Company. We have also examined such
other documents and proceedings that we have considered necessary
for the purpose of this opinion.
Based upon such examination, we are of the opinion
that:
1. The Company has been duly incorporated and is a
validly existing corporation under the laws of the
State of New Jersey.
2. The Common Stock has been duly authorized and,
when issued in accordance with the terms of the
Registration Statement and the Plan, will be
validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an
Exhibit to the Registration Statement.
Very truly yours,
/s/ PHILLIPS, LYTLE, HITCHCOCK, BLAINE & HUBER LLP
<PAGE>
EXHIBIT 24(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in
this Registration Statement on Form S-8 of our report dated
October 24, 1997, appearing on page 50 of National Fuel Gas
Company's Annual Report on Form 10-K for the year ended
September 30, 1997.
/s/ PRICE WATERHOUSE LLP
Buffalo, New York
May 1, 1998
<PAGE>
EXHIBIT 24(c)
RALPH E. DAVIS ASSOCIATES, INC.
Consultants - Petroleum and Natural Gas
3555 Timmons Lane - Suite 1105
Houston, Texas 77027
(713) 622-8955
CONSENT OF ENGINEER
We hereby consent to the incorporation by reference in
the Registration Statement on Form S-8, relating to the National
Fuel Gas Company 1997 Award and Option Plan, and in the related
Prospectus, of our audit report dated October 9, 1997 and to the
reference to our estimate dated October 1, 1997 appearing in the
National Fuel Gas Company Annual Report on Form 10-K for the
fiscal year ended September 30, 1997.
RALPH E. DAVIS ASSOCIATES, INC.
/s/ Larry A. Barnett
Larry A. Barnett, P.E.
Senior Vice President
Houston, Texas
April 29, 1998
<PAGE>
