<page 1>
As filed with the Securities and Exchange Commission on July 18, 1997.
File No. ______________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
============================
NORTH CAROLINA NATURAL GAS CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 56-0646235
(State or Other Jurisdiction of (IRS Employer Identification No.)
Incorporation or organization)
150 Rowan Street, Fayetteville, North Carolina 28301
(Address and Zip Code of Registrant's Principal Executive Office)
NORTH CAROLINA NATURAL GAS CORPORATION LONG TERM INCENTIVE PLAN
NORTH CAROLINA NATURAL GAS CORPORATION DIRECTORS' DEFERRED COMPENSATION
STOCK PLAN
NORTH CAROLINA NATURAL GAS CORPORATION DIRECTORS' RETIREMENT COMPENSATION
STOCK PLAN
(Full Titles of the Plans)
CALVIN B. WELLS, President
North Carolina Natural Gas Corporation
150 Rowan Street
Fayetteville, NC 28301
(910) 483-0315
(Name, Address, Including Zip Code, and Telephone Number,
Including Area Code, of Agent For Service)
Copies to:
ALFRED E. CLEVELAND, Esq.
ANNE M. EVANS, Esq.
McCoy, Weaver, Wiggins, Cleveland & Raper, P.L.L.C.
202 Fairway Drive
Post Office Box 87009
Fayetteville, North Carolina 28304
==================================
CALCULATION OF REGISTRATION FEE
- -------------------------------------------------------------------------------
Title of Proposed Proposed
Each Class Amount Maximum Maximum Aggregate
Securities to to be Offering Price Offering Registration
be Registered Registered (2) Per Share (1) Price (1) Fee
- -------------------------------------------------------------------------------
Common Stock, 150,000 shares $34.03 $5,104,500 $1,547
$2.50 par value,
issuable under
the LTIP
- -------------------------------------------------------------------------------
Common Stock, 75,000 shares $34.03 $2,552,250 $ 773
$2.50 par value,
issuable under
the Directors'
Deferred
Compensation Stock Plan
- -------------------------------------------------------------------------------
Common Stock, 35,000 shares $34.03 $1,191,050 $ 361
$2.50 par value,
issuable under
the Directors'
Retirement Compensation Stock Plan
===============================================================================
(1)Determined in accordance with Rule 457(h) under the Securities Act of 1933
and based upon $34.03, the average of the high and low prices on July 14, 1997,
as published in the National Market Issue report of The Wall Street Journal.
(2)This Registration Statement registers securities offered pursuant to terms
which provide for an adjustment in the number of securities being offered to
prevent dilution resulting from stock splits, stock dividends or similar
transactions and will be deemed to cover the additional securities offered
or issued in connection with any such provision.
- -------------------------------------------------------------------------------
Total Number of Sequential Pages: 9
Exhibit Index Appears on Sequential Page 7
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PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents filed by Registrant with the Securities and
Exchange Commission (the "Commission") under the Securities Exchange Act of
1934 (the "Exchange Act") are incorporated herein by reference:
(1) Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1996, filed pursuant to Section 13 of the Exchange Act;
(2) Registrant's definitive proxy statement dated December 6, 1996, filed
pursuant to Section 14 of the Exchange Act in connection with its
Annual Meeting of Stockholders held on January 14, 1997;
(3) Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1996, filed pursuant to the Exchange Act;
(4) Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997, filed pursuant to the Exchange Act;
(5) Description of Registrant's Common Stock contained in Exhibit 4.4
of its Registration Statement filed on Form S-2 under the Exchange
Act (File No. 33-55864), including all amendments or reports filed
for the purpose of updating such description; and
(6) All other documents subsequently filed with the Commission by
Registrant pursuant to Sections 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 under this Registration
Statement have been sold or which deregisters all such securities
that remain unsold shall be deemed to be incorporated herein by
reference and to be a part hereof from the dates of filing of such
documents.
ITEM 4. DESCRIPTION OF SECURITIES
Not applicable.
ITEM 5. INTEREST OF NAMED EXPERTS AND COUNSEL
The opinion of the law firm of McCoy, Weaver, Wiggins, Cleveland &
Raper, P.L.L.C. addressing certain legal matters is attached hereto as Exhibits
5 and 23(a). Members of such law firm own beneficially an aggregate of less
than 250 shares of Registrant's Common Stock, $2.50 par value per Share.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Statutory Indemnification:
Mandatory. A Delaware corporation must indemnify a director or officer who
has been wholly successful, on the merits or otherwise, in the defense of any
actual, threatened or completed action, suit or proceeding to which he was, or
was threatened to be made, a party because he is or was a director or officer
of the corporation if: (1) the director or officer acted in good faith; and (2)
he acted in a manner which he reasonably believed to be in, or not opposed to,
the best interests of the corporation; and (3) in the case of any criminal
proceeding, he had no reasonable cause to believe his conduct was unlawful.
This statutory right of indemnification covers all reasonable expenses incurred
by the director or officer in connection with the proceeding, including
attorneys' fees.
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Advance for expenses. Expenses incurred by a director or officer in
defending an action, suit or proceeding may be paid by the corporation in
advance of the final disposition of the action, suit or proceeding upon receipt
of an undertaking by or on behalf of such person to repay amounts if it
ultimately is determined that such person is not entitled to be indemnified by
the corporation against such expenses.
In addition to and separate and apart from those forms of statutory
indemnification discussed above, the Delaware General Corporation Law provides
that a corporation shall have power to purchase and maintain insurance on
behalf of any person who is or was a director or officer of the corporation
against any liability asserted against him and incurred by him in any such
capacity, or arising out of his status as such, whether or not the corporation
would have the power to indemnify him against such liability under the Delaware
General Corporation Law.
Registrant's Certificate of Amendment of Certificate of Incorporation
includes the following provisions:
A director of this Corporation shall not have any personal liability to
the Corporation or its shareholders for monetary damages for breach of
fiduciary duty as a director to the fullest extent that such a limitation on
liability is now or may in the future be permitted by the General Corporation
Law of Delaware.
Registrant's By-Laws include the following provisions:
"The Corporation shall, to the extent legally permissible, indemnify each
of its directors and officers against all liabilities (including expenses)
imposed upon or reasonably incurred by him in connection with any action, suit
or other proceeding in which he may be involved or with which he may be
threatened, while in office or thereafter, by reason of his acts or omissions
as such director or officer, subsequent to the date of the adoption of this
By-Law, unless in such proceeding he shall be finally adjudged liable by reason
of dereliction in the performance of his duty as such director or officer;
provided, however, that such indemnification shall not cover liabilities in
connection with any matter which shall be disposed of through a compromise
payment by such director or officer, pursuant to a consent decree or otherwise,
unless such compromise shall be approved as in the best interest of the
Corporation, after notice that it involves such indemnification, (a) by a vote
of the Board of Directors in which no interested director participates, or (b)
by a vote or the written approval of the holders of a majority of the
outstanding stock at the time having the right to vote for directors, not
counting as outstanding any stock owned by any interested director or officer.
The rights of indemnification hereby provided shall not be exclusive of or
affect other rights to which any Director or officer may be entitled. As used
in this paragraph, the terms "director" and "officer" include their respective
heirs, executors and administrators, and an "interested" director or officer is
one against whom as such the proceeding in question or another proceeding on
the same or similar grounds is then pending.
In addition, Registrant maintains directors' and officers' liability and
corporation reimbursement insurance for the benefit of Registrant and its
directors and officers, which protects such persons against wrongful acts as
defined in the insurance policies issued for such purpose.
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Insofar as indemnification for liabilities arising under the Securities
Act of 1933 (the "Act") may be permitted to directors, officers or persons
controlling the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED
Not applicable.
ITEM 8. EXHIBITS
The exhibits included as part of this Registration Statement are as
follows:
Exhibit Number
- --------------
4 - Specimen of Registrant's Common Stock certificate (incorporated
herein by reference from Exhibit 4.4 of Registrant's Registration
Statement on Form S-2; File Number 33-55864)
5 and 23(a) - Opinion and Consent of McCoy, Weaver, Wiggins, Cleveland & Raper,
P.L.L.C., counsel for Registrant (filed herewith)
23(b) - Consent of Arthur Andersen, LLP, Independent Public Accountants
(filed herewith)
99(a) - North Carolina Natural Gas Corporation Long Term Incentive Plan
(incorporated herein by reference from Exhibit "A" of
Registrant's proxy statement for the Annual Meeting of
Stockholders held January 14, 1997)
99(b) - North Carolina Natural Gas Corporation Directors' Deferred
Compensation Stock Plan (incorporated herein by reference
from Exhibit "B" of Registrant's proxy statement for the Annual
Meeting of Stockholders held January 14, 1997)
99(c) - North Carolina Natural Gas Corporation Directors' Retirement
Compensation Stock Plan (incorporated herein by reference from
Exhibit "C" of Registrant's proxy statement for the Annual
Meeting of Stockholders held January 14, 1997
ITEM 9. UNDERTAKINGS.
(a) Rule 415 Offering: The undersigned Registrant hereby undertakes:
(l) to file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) to include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
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(iii)to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement, provided, however, that paragraphs (a)
(1)(i) and (a)(1)(ii) do not apply if the information required
to be included in a post-effective amendment by those
subparagraphs is contained in periodic reports filed with or
furnished to the commission by the Registrant pursuant to
section 13 or 15(d) of the Securities Act of 1934 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) Filings Incorporating Subsequent Exchange Act Documents by Reference:
The undersigned Registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13 (a) or Section 15 (d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Securities Exchange Act
of 1934) that is incorporated by reference in the registration statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Filing of Registration Statement on Form S-8: Insofar as
indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of Registrant pursuant
to the foregoing provisions, or otherwise, the Registrant has been advised that
in the opinion of the Securities and Exchange Commission, such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by 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, Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Fayetteville, and State of North Carolina, on the
16th day of July, 1997.
NORTH CAROLINA NATURAL GAS CORPORATION
BY: /s/ Calvin B. Wells
---------------------------------------
CALVIN B. WELLS
President and Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/ Calvin B. Wells Chairman, President & July 16, 1997
- ------------------------- Chief Executive Officer --------------
Calvin B. Wells (principal executive officer)
/s/ Gerald A. Teele Senior Vice President, July 16, 1997
- ------------------------- Treasurer & Chief --------------
Gerald A. Teele Financial Officer
(principal financial officer)
/s/ Ronald J. Josephson Vice President, Financial Services July 16, 1997
- ------------------------- (principal accounting officer) --------------
Ronald J. Josephson
/s/ John O. McNairy Director July 16, 1997
- ------------------------- --------------
John O. McNairy
/s/ Frank B. Holding, Jr. Director July 16, 1997
- ------------------------- --------------
Frank B. Holding, Jr.
/s/ Robert T. Johnson Director * July 16, 1997
- ------------------------- --------------
Robert T. Johnson
/s/ James E. S. Hynes Director * July 16, 1997
- ------------------------- --------------
James E. S. Hynes
/s/ Paul A. DelaCourt Director * July 16, 1997
- ------------------------- --------------
Paul A. DelaCourt
/s/ William H. Prestage Director July 16, 1997
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William H. Prestage
/s/ George T. Clark, Jr. Director * July 16, 1997
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George T. Clark, Jr.
/s/ Richard F. Waid Director July 16, 1997
- ------------------------- --------------
Richard F. Waid
* Member of the Personnel and Compensation Committee, administrator of the
North Carolina Natural Gas Corporation Long Term Incentive Plan.
The North Carolina Natural Gas Corporation Directors' Deferred Compensation
Stock Plan and North Carolina Natural Gas Corporation Directors' Retirement
Compensation Stock Plan are each administered by the Registrant's full Board of
Directors.
<PAGE> 7
EXHIBIT INDEX
TO
REGISTRATION STATEMENT ON FORM S-8
Exhibit Sequential
Number Description Page Number
- -------- -------------------------------- -----------
5 and 23(a) - Opinion and Consent of McCoy, Weaver,
Wiggins, Cleveland & Raper, P.L.L.C.,
counsel for Registrant 8
23(b) - Consent of Arthur Andersen, LLP,
Independent Public Accountants 9
<PAGE> 8
July 16, 1997
North Carolina Natural Gas Corporation
150 Rowan Street
Fayetteville, NC 28301
RE: Form S-8 Registration Statement
North Carolina Natural Gas Corporation
North Carolina Natural Gas Corporation Long Term Incentive Plan
North Carolina Natural Gas Corporation Directors' Deferred
Compensation Stock Plan
North Carolina Natural Gas Corporation Directors' Retirement
Compensation Stock Plan
Gentlemen:
The undersigned has acted as counsel for North Carolina Natural Gas
Corporation, a Delaware corporation (the "Company"), in the preparation of
the referenced Form S-8 Registration Statement relating to the North Carolina
Natural Gas Corporation Long Term Incentive Plan, North Carolina Natural Gas
Corporation Directors' Deferred Compensation Stock Plan and North Carolina
Natural Gas Corporation Directors' Retirement Compensation Stock Plan
(collectively referred to as the "Plans") and the proposed offer thereunder
of up to a total of 260,000 shares of the Company's common stock, $2.50 par
value per share ("Common Stock"). In connection with the preparation of the
Registration Statement, we have examined originals or copies of such corporate
records, documents and other instruments relating to the authorization and
issuance of such shares of Common Stock as we have deemed relevant under the
circumstances.
On the basis of the foregoing, it is our opinion that:
1. The Company is duly organized, incorporated and is validly existing
under the laws of the State of Delaware, with an authorized capitalization
consisting of 12,000,000 shares of Common Stock, par value $2.50 per share.
2. The Plans and the proposed offer thereunder of up to a total of
260,000 shares of Common Stock have been duly authorized by the Board of
Directors of the Company, and the 260,000 shares of Common Stock, when
issued pursuant to the terms of the Plans, will be legally issued, fully paid
and nonassessable.
The undersigned hereby consents to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
/s/ McCoy, Weaver, Wiggins, Cleveland & Raper, P.L.L.C.
<PAGE> 9
Exhibit 5 and 23(a)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated November 7,
1996 included in North Carolina Natural Gas Corporation's Form 10-K for the
year ended September 30, 1996 and to all references to our Firm included in
this registration statement.
/s/ Arthur Andersen LLP
Atlanta, Georgia
July 16, 1997
