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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 9, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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PIEDMONT NATURAL GAS COMPANY, INC.
(Exact name of registrant as specified in its charter)
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<S> <C>
NORTH CAROLINA 56-0556998
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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1915 REXFORD ROAD
POST OFFICE BOX 33068
CHARLOTTE, NC 28233
(704) 364-3120
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
JOHN H. MAXHEIM
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
PIEDMONT NATURAL GAS COMPANY, INC.
1915 REXFORD ROAD
CHARLOTTE, NORTH CAROLINA 28211
(704) 364-3120
(Name, address, including zip code, and telephone numbers,
including area code, of agent for service)
---------------------
WITH COPIES TO:
JERRY W. AMOS, ESQ.
AMOS & JEFFRIES, L.L.P.
230 NORTH ELM STREET, SUITE 1230
GREENSBORO, NORTH CAROLINA 27401
(910) 273-5569
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after the effective date of this Registration Statement as determined by
market conditions and other factors.
If the only securities being registered on this Form S-3 are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form S-3 are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, please check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
TITLE OF EACH AMOUNT MAXIMUM MAXIMUM AMOUNT OF
CLASS OF SECURITIES TO BE OFFERING PRICE AGGREGATE REGISTRATION
TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) FEE
- ------------------------------------------------------------------------------------------------------------------------------
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Common Stock no par value............... 1,725,000 shares $27.56 $47,545,312 $14,408
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee, on the
basis of the average of the high and low sale prices on the New York Stock
Exchange on September 8, 1997, pursuant to Rule 457(c).
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR
MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE
SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE
UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS
OF ANY SUCH STATE.
SUBJECT TO COMPLETION
[SEPTEMBER 9, 1997]
PROSPECTUS
- ----------
PIEDMONT NATURAL GAS COMPANY, INC.
1,725,000 SHARES
COMMON STOCK
(NO PAR VALUE)
---------------------
Piedmont Natural Gas Company, Inc. (the "Company"), intends to offer and
issue from time to time up to 1,725,000 shares of its common stock, no par value
("Common Stock"). The Common Stock may be offered at prices and on terms to be
determined when an agreement to sell is made or at the time or times of sale, as
the case may be, and set forth in one or more supplements to this Prospectus
(each, a "Prospectus Supplement"). The number of shares, initial public offering
price and any other terms in connection with the offering and sale of the Common
Stock will be set forth in an applicable Prospectus Supplement accompanying this
Prospectus.
The Company's Common Stock is listed on the New York Stock Exchange under
the symbol "PNY."
The Common Stock may be offered and sold to or through underwriters,
dealers or agents as designated from time to time, or through a combination of
such methods, and also may be offered and sold directly by the Company. See
"Plan of Distribution." The names of any underwriters, dealers or agents
involved in the offering and sale of the Common Stock and any applicable fees,
commissions or discounts will be set forth in the corresponding Prospectus
Supplement. The net proceeds to the Company from such sale also will be set
forth in such Prospectus Supplement.
This Prospectus may not be used to consummate sales of Common Stock unless
accompanied by a Prospectus Supplement.
---------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is , 1997.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "1934 Act") and in accordance therewith files reports,
proxy statements and other information with the Securities and Exchange
Commission (the "Commission"). Such reports, proxy statements and other
information filed by the Company can be inspected and copied at the following
public reference facilities maintained by the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549, and at the following Regional Offices of the
Commission: Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511; and 7 World Trade Center, Suite 1300, New York, New York
10048. Copies of this material may also be obtained by mail from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. Such material may also be accessed electronically by
means of the Commission's home page on the Internet at http://www.sec.gov. The
Company's Common Stock is listed on the New York Stock Exchange ("NYSE"), and
reports, proxy statements and other information concerning the Company may be
inspected and copied at the offices of the NYSE at 20 Broad Street, New York,
New York 10005.
This Prospectus does not contain all of the information set forth in the
Registration Statement on Form S-3, of which this Prospectus is a part, and
exhibits relating thereto which the Company has filed with the Commission under
the Securities Act of 1933, as amended (the "1933 Act"). Reference is made to
such Registration Statement and to the exhibits relating thereto for further
information with respect to the Company and the Common Stock offered hereby.
Statements contained herein concerning the provisions of documents are
necessarily summaries of such documents, and each statement is qualified in its
entirety by reference to the copy of the applicable document filed with the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, previously filed by the Company with the
Commission pursuant to Section 13 of the 1934 Act, are incorporated herein by
reference:
(a) Annual Report on Form 10-K for the year ended October 31, 1996; and
(b) Quarterly Reports on Form 10-Q for the quarters ended January 31,
1997, April 30, 1997 and July 31, 1997; Form 10-Q/A Amendment to
Quarterly Report on Form 10-Q dated July 3, 1997.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Stock hereby offered shall be deemed
to be incorporated by reference in this Prospectus and to be a part hereof from
the date of the filing of such documents. The documents incorporated or deemed
to be incorporated herein by reference are sometimes hereinafter called the
"Incorporated Documents." Any statement contained herein or in the Incorporated
Documents shall be deemed to be modified or superseded for purposes of this
Prospectus to the extent that a statement contained herein, in the accompanying
Prospectus Supplement or in any subsequently filed Incorporated Document
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The information relating to the Company contained in this Prospectus does
not purport to be comprehensive and is based upon information contained in the
Incorporated Documents. Accordingly, the information contained herein should be
read together with the information contained in the Incorporated Documents.
THE COMPANY WILL PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING ANY
BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS IS DELIVERED, UPON THE
WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL OF THE
INCORPORATED DOCUMENTS (OTHER THAN CERTAIN EXHIBITS TO SUCH DOCUMENTS WHICH ARE
NOT SPECIFICALLY INCORPORATED BY REFERENCE IN SUCH DOCUMENTS). REQUESTS FOR SUCH
COPIES SHOULD BE DIRECTED TO THE OFFICE OF THE SECRETARY, PIEDMONT NATURAL GAS
COMPANY, INC., 1915 REXFORD ROAD, POST OFFICE BOX 33068, CHARLOTTE, NORTH
CAROLINA 28233; TELEPHONE NUMBER (704) 364-3120.
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<PAGE> 4
THE COMPANY
The Company is an energy and services company primarily engaged in the
transportation and sale of natural gas and the sale of propane to over 623,500
residential, commercial and industrial natural gas and propane customers in
North Carolina, South Carolina and Tennessee. The Company was incorporated in
1993 under the laws of the State of North Carolina under the name "PNG
Acquisition Company" for the purpose of changing the state of incorporation of
Piedmont Natural Gas Company, Inc., a New York corporation incorporated in 1951
("Old Piedmont"), from New York to North Carolina, and has succeeded to all
assets, rights, liabilities and obligations of Old Piedmont as a result of the
merger of Old Piedmont with and into the Company effective as of March 1, 1994.
The Company, as the surviving corporation in the merger, changed its name
immediately following the effective time of the merger to "Piedmont Natural Gas
Company, Inc."
The principal executive offices of the Company are maintained at 1915
Rexford Road, Post Office Box 33068, Charlotte, North Carolina 28233; telephone
number (704) 364-3120.
The Company's utility operations serve over 575,000 natural gas customers.
The Company and its non-utility subsidiaries and divisions are also engaged in
acquiring, marketing and arranging for the transportation of natural gas to
large-volume purchasers and in the sale of propane and propane appliances to
over 48,500 customers in the Company's three-state service area. The Company is
also engaged in Tennessee in the retailing of residential and commercial gas
appliances.
In the Carolinas, the Company's service area is comprised of numerous
cities, towns and communities including Anderson, Greenville and Spartanburg in
South Carolina and Charlotte, Salisbury, Greensboro, Winston-Salem, High Point,
Burlington and the Hickory area in North Carolina. In Tennessee, the service
area is the Nashville metropolitan area, including portions of eight adjoining
counties. The Company's propane market principally is in and adjacent to its
natural gas markets in all three states. The Company is principally engaged in
the gas distribution industry and has no other reportable industry segments.
The Company's utility operations are subject to regulation by the North
Carolina Utilities Commission ("NCUC") and the Tennessee Regulatory Authority
("TRA") as to the issuance of securities, and by those commissions and by the
Public Service Commission of South Carolina as to rates, service area, adequacy
of service, safety standards, extensions and abandonment of facilities,
accounting and depreciation. The Company is also subject to or affected by
various federal regulations.
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, the net
proceeds from the sale of the Common Stock will be used for general corporate
purposes, including construction of additional facilities, the repayment of
short-term debt and working capital needs. Pending such use, the Company may
temporarily invest the net proceeds in investment grade securities. The Company
may, from time to time, engage in additional capital financing of a character
and in amounts to be determined by the Company in light of its needs at such
time or times and in light of prevailing market conditions. If the Company
elects at the time of an issuance of the Common Stock to make different or more
specific use of proceeds other than that set forth herein, such use will be
described in the Prospectus Supplement.
DESCRIPTION OF COMMON STOCK
The information set forth below is qualified in its entirety by reference
to the Articles of Incorporation of the Company which are incorporated by
reference as an exhibit to the Registration Statement of which this Prospectus
is a part.
The Articles of Incorporation, as amended, authorize 100,000,000 shares of
Common Stock without par value and 175,000 shares of Preferred Stock without par
value. The Board of Directors has authority to establish one or more series of
Preferred Stock and has broad authority to fix and determine the designations,
preferences, limitations and relative rights (including conversion rights) of
each such series and to determine all variations between series. No shares of
Preferred Stock are presently outstanding.
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Holders of Common Stock are entitled to one vote for each share held of
record on all matters submitted to a vote of shareholders, including election of
directors. Under North Carolina law, the election of directors requires a
plurality of votes cast in such election. Shareholders do not have cumulative
voting rights with respect to election of directors. The Company's Article of
Incorporation requires the affirmative vote of a super majority of the
outstanding shares of the Company's voting stock to approve certain transactions
and to take certain other action. See "Special Charter Provisions Relating to
Voting Rights" below.
Subject to any preferences that may be applicable to any shares of
Preferred Stock hereafter issued from time to time, holders of Common Stock are
entitled to receive ratably such dividends as may be declared from time to time
by the Company's Board of Directors out of funds legally available therefor.
Some of the agreements under which the Company's long-term debt was issued
contain provisions which restrict the amount of cash dividends that may be paid
on Common Stock. Under the most restrictive of these provisions, all of the
Company's retained earnings were free of such restrictions as of July 31, 1997.
The holders of Common Stock are entitled, after satisfaction of the
preferential rights of Preferred Stock, to share pro rata in the net assets of
the Company available for distribution to shareholders in the event of the
voluntary or involuntary liquidation, distribution or sale of assets,
dissolution or winding up of the Company. Holders of Common Stock have no
preemptive rights to subscribe to any securities of the Company and have no
rights to convert their Common Stock into any other securities. There are no
redemption provisions with respect to any shares of Common Stock. All of the
outstanding shares of Common Stock are, and the Common Stock offered hereby will
be, upon issuance against full payment of the purchase price therefor, fully
paid and nonassessable.
SPECIAL CHARTER PROVISIONS RELATING TO VOTING RIGHTS
The Articles of Incorporation and By-Laws contain certain provisions which
could have the effect of delaying, deferring or preventing a change in control
of the Company. These provisions (1) classify the Board of Directors into three
classes, as nearly equal in number as possible, each of which serves for three
years, with one class elected each year, (2) authorize the Board of Directors to
fix the number of Directors and provide that the number may be changed only by
(a) the affirmative vote of 80% of the outstanding shares entitled to vote in
the election of Directors or (b) a majority of the entire Board of Directors,
(3) with certain exceptions, require that nominations for Directors for election
at a shareholders' meeting be made at least 60 days prior to the date fixed for
the meeting, (4) permit the Board of Directors to fill vacancies in the Board of
Directors, (5) provide that Directors may be removed for cause only by the
affirmative vote of 80% of the outstanding shares entitled to vote in the
election of Directors, (6) provide that the By-Laws of the Company may be
amended only by (a) the affirmative vote of 80% of the outstanding shares
entitled to vote in the election of Directors or (b) by the Board of Directors,
(7) provide that the affirmative vote of 80% of the outstanding shares entitled
to vote in the election of Directors is required to amend, alter, change or
repeal Article 6 of the Company's Articles of Incorporation (relating to the
classified Board of Directors) or to adopt provisions inconsistent therewith,
and (8) provide that special meetings of shareholders may be called by the
Directors or by the Company's Secretary upon the request of the holders of 80%
of the outstanding shares entitled to vote in the election of Directors.
The Company's Articles of Incorporation also contain certain provisions
applicable to any "Business Combination," defined to include any merger,
consolidation, lease, sale or disposition of assets or certain other business
transactions by the Company or any subsidiary of the Company involving an
"interested shareholder" (defined in the Articles of Incorporation as any person
that is or has announced an intention to become the beneficial owner of ten
percent or more of the Company's voting stock and certain defined affiliates) or
an affiliate or associate of an interested shareholder and that, together with
all such other arrangements, has an aggregate fair market value and/or involves
aggregate commitments of $10,000,000 or more or more than five percent of the
Company's total assets or shareholders' equity as reflected on the Company's
most recent fiscal year-end consolidated balance sheet. The Articles of
Incorporation require the affirmative vote of not less than 66 2/3% of the
voting stock of the Company, voting together as a single class, excluding any
voting stock held by an interested shareholder, with respect to all Business
Combinations involving the interested shareholder unless (1) the transaction is
approved by the Company's Board of Directors prior to the date on which
directors not affiliated with the interested shareholder and who were directors
prior to the time the interested shareholder
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acquired such status ("Continuing Directors") comprise less than a majority of
the Board of Directors, and (2) if the Business Combination involves payment of
consideration to shareholders, certain minimum price and disclosure requirements
are satisfied as to all shareholders, and there has been no major change in the
business or equity capital structure of the Company or any change or reduction
in the payment of dividends since the date the interested shareholder acquired
such status.
To meet the minimum price criteria, the shareholders must receive
consideration or retain value per share after the transaction which is not less
than the highest price per share paid by the interested shareholder in the
transaction or within two years preceding the announcement date of the
transaction, or the fair market value per share of Common Stock on the date the
transaction is announced or the date on which the interested shareholder
acquired such status, whichever is higher. The minimum price provisions must be
met with respect to every class or series of the Company's outstanding capital
stock, whether or not the interested shareholder has previously acquired shares
of any particular class or series.
The Company's Articles of Incorporation require the same 66 2/3%
shareholder approval to amend or repeal the foregoing provisions or to adopt any
provision inconsistent with such provisions unless the change is proposed by the
Board of Directors prior to the date on which Continuing Directors comprise less
than a majority of the Board.
North Carolina Anti-Takeover Statutes. The Company's Articles of
Incorporation contain language to "opt out" of the provisions of two North
Carolina anti-takeover statutes which, under the North Carolina Business
Corporation Act, would otherwise apply to the Company. The first of these
statutes, called the "North Carolina Shareholder Protection Act," requires that
any business combination (as defined therein) between a corporation and any 20%
shareholder be approved by 95% percent of the corporation's voting shares. Under
the second statute, called the "North Carolina Control Share Acquisition Act,"
control shares of a corporation that are acquired in a "control share
acquisition" (as defined in the statute) have no voting rights unless such
rights are granted by resolution adopted by a majority of the corporation's
shareholders, and in the event such voting rights were to be granted, all other
shareholders would have the right to have their shares in the corporation
redeemed at their fair value, subject to certain restrictions. Because
application of these statutes to the Company would create material conflicts
with its existing charter provisions regarding Business Combinations, the
Company's charter includes provisions stating that neither of these statutes
will apply to the Company.
TRANSFER AGENT AND REGISTRAR
The Transfer Agent and Registrar for the Common Stock is Wachovia Bank of
North Carolina, N.A., Winston-Salem, North Carolina.
PLAN OF DISTRIBUTION
The Common Stock offered hereby may be sold from time to time in one or
more transactions (i) to or through underwriters, underwriting syndicates or
dealers, to be designated at the time of sale; (ii) through agents designated
from time to time; or (iii) directly by the Company. The applicable Prospectus
Supplement will set forth the terms of the offering of the Common Stock,
including the name or names of any underwriters, agents or dealers, the initial
public offering price of such Common Stock and the proceeds to the Company from
such sales, any underwriting discounts, commissions, agency fees and other items
constituting underwriters' or agents' compensation, and any discounts or
concessions to be allowed or reallowed or paid to dealers.
If underwriters are used in the sale, the Common Stock will be acquired by
the underwriters for their own account and may be resold from time to time in
one or more transactions, including negotiated transactions, at a fixed public
offering price or at varying prices determined at the time of sale. Such Common
Stock may be offered to the public either through underwriting syndicates
represented by managing underwriters or by underwriters without a syndicate, all
of which underwriters in either case will be designated in the Prospectus
Supplement corresponding to such offering. Unless otherwise set forth in the
applicable Prospectus Supplement, under the terms of the underwriting agreement,
the obligations of the underwriters to purchase such Common
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Stock will be subject to certain conditions precedent, and the underwriters will
be obligated to purchase all of such Common Stock if any are purchased.
The Common Stock may be offered and sold directly by the Company or through
agents designated by the Company from time to time. Any agent participating in
the offer or sale of the Common Stock may be deemed to be an "underwriter," as
that term is defined in the 1933 Act of the Common Stock so offered and sold.
The Common Stock also may be sold to dealers at the applicable price to the
public set forth in the Prospectus Supplement relating to such Common Stock.
Such dealers may be deemed to be "underwriters" within the meaning of the 1933
Act. Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
Underwriters, dealers and agents may be entitled, under agreements which
may be entered into with the Company, to indemnification by the Company against
certain civil liabilities, including liabilities under the 1933 Act, or
contribution from the Company to payments which the underwriters, dealers or
agents may be required to make in respect thereof. Underwriters, dealers and
agents may engage in transactions with, or perform services for, or be customers
of, the Company in the ordinary course of business.
Any Common Stock sold pursuant to a Prospectus Supplement will be listed on
the New York Stock Exchange, subject to notice of issuance.
LEGAL MATTERS
The legality of the Common Stock will be passed upon for the Company by
Amos & Jeffries, L.L.P. Jerry W. Amos, a partner in that firm, is General
Counsel to and a Director of the Company. As of August 31, 1997, Mr. Amos
beneficially owned 58,432 shares of the Company's Common Stock.
EXPERTS
The consolidated financial statements and the related financial statement
schedule of the Company incorporated in this Prospectus by reference to the
Company's Annual Report on Form 10-K for the year ended October 31, 1996, have
been audited by Deloitte & Touche LLP, independent auditors, as stated in their
report, which is incorporated herein by reference, and have been so incorporated
in reliance upon the report of such firm given upon their authority as experts
in accounting and auditing.
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PART II. INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the various expenses to be paid by the
Registrant in connection with the sale and distribution of the Securities being
registered hereby, other than underwriting or broker dealer fees, discounts and
commissions. All amounts are estimated except for the Securities Act
registration fee.
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Securities Act registration fee............................. $ 14,408
New York Stock Exchange listing fee......................... 1,500
Printing and engraving...................................... 35,000
Legal fees and expenses..................................... 35,000
Accounting fees and expenses................................ 15,600
Blue Sky fees and expenses.................................. 5,000
Transfer agent Fees and Expenses............................ 1,500
Miscellaneous expenses...................................... 5,000
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Total.................................................. $113,008
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The following provisions of the North Carolina Business Corporation Act
govern indemnification of officers and directors of the Company:
SECTION 55-8-50. POLICY STATEMENT AND DEFINITIONS. (a) It is the
public policy of this State to enable corporations organized under this
Chapter to attract and maintain responsible, qualified directors, officers,
employees and agents, and, to that end, to permit corporations organized
under this Chapter to allocate the risk of personal liability of directors,
officers, employees and agents through indemnification and insurance as
authorized in this Part.
(b) Definitions in this Part:
(1) "Corporation" includes any domestic or foreign corporation
absorbed in a merger which, if its separate existence had continued,
would have had the obligation or power to indemnify its directors,
officers, employees, or agents, so that a person who would have been
entitled to receive or request indemnification from such corporation if
its separate existence had continued shall stand in the same position
under this Part with respect to the surviving corporation.
(2) "Director" means an individual who is or was a director of a
corporation or an individual who, while a director of a corporation, is
or was serving at the corporation's request as a director, officer,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, employee benefit plan,
or other enterprise. A director is considered to be serving an employee
benefit plan at the corporation's request if his duties to the
corporation also impose duties on, or otherwise involve services by, him
to the plan or to participants in or beneficiaries of the plan.
"Director" includes, unless the context requires otherwise, the estate
or personal representative of a director.
(3) "Expenses" means expenses of every kind incurred in defending a
proceeding, including counsel fees.
(4) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an
employee benefit plan), or reasonable expenses incurred with respect to
a proceeding.
(5) "Officer," "employee," or "agent" includes, unless the context
requires otherwise, the estate or personal representative of a person
who acted in that capacity.
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(6) "Official capacity" means (i) when used with respect to a
director, the office of director in a corporation; and (ii) when used
with respect to an individual other than a director, as contemplated in
G.S. 55-8-56, the office in a corporation held by the officer or the
employment or agency relationship undertaken by the employee or agent on
behalf of the corporation. "Official capacity" does not include service
for any other foreign or domestic corporation or any partnership, joint
venture, trust, employee benefit plan, or other enterprise.
(7) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(8) "Proceeding" means any threatened, pending, or completed
action, suit, or proceeding, whether civil, criminal, administrative, or
investigative and whether formal or informal.
SECTION 55-8-51. AUTHORITY TO INDEMNIFY. (a) Except as provided in
subsection (d), a corporation may indemnify an individual made a party to a
proceeding because he is or was a director against liability incurred in
the proceeding if:
(1) He conducted himself in good faith; and
(2) He reasonably believed (i) in the case of conduct in his
official capacity with the corporation, that his conduct was in its best
interests; and (ii) in all other cases, that his conduct was at least
not opposed to its best interests; and
(3) In the case of any criminal proceeding, he had no reasonable
cause to believe his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose he reasonably believed to be in the interests of the participants
in and beneficiaries of the plan is conduct that satisfies the requirement
of subsection (a)(2)(ii).
(c) The termination of a proceeding by judgment, order, settlement,
conviction, or upon a plea of no contest or its equivalent is not, of
itself, determinative that the director did not meet the standard of
conduct described in this section.
(d) A corporation may not indemnify a director under this section:
(1) In connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the
corporation; or
(2) In connection with any other proceeding charging improper
personal benefit to him, whether or not involving action in his official
capacity, in which he was adjudged liable on the basis that personal
benefit was improperly received by him.
(e) Indemnification permitted under this section in connection with a
proceeding by or in the right of the corporation that is concluded without
a final adjudication on the issue of liability is limited to reasonable
expenses incurred in connection with the proceeding.
(f) The authorization, approval or favorable recommendation by the
board of directors of a corporation of indemnification, as permitted by
this section, shall not be deemed an act or corporate transaction in which
a director has a conflict of interest, and no such indemnification shall be
void or voidable on such ground.
SECTION 55-8-52. MANDATORY INDEMNIFICATION. Unless limited by its
articles of incorporation, a corporation shall indemnify a director who was
wholly successful, on the merits or otherwise, in the defense of any
proceeding to which he was a party because he is or was a director of the
corporation against reasonable expenses incurred by him in connection with
the proceeding.
SECTION 55-8-53. ADVANCE FOR EXPENSES. Expenses incurred by a director
in defending a proceeding may be paid by the corporation in advance of the
final disposition of such proceeding as authorized by the board of
directors in the specific case or as authorized or required under any
provision in the articles of incorporation or bylaws or by any applicable
resolution or contract upon receipt of an
II-2
<PAGE> 10
undertaking by or on behalf of the director to repay such amount unless it
shall ultimately be determined that he is entitled to be indemnified by the
corporation against such expenses.
SECTION 55-8-54. COURT-ORDERED INDEMNIFICATION. Unless a corporation's
articles of incorporation provide otherwise, a director of the corporation
who is a party to a proceeding may apply for indemnification to the court
conducting the proceeding or to another court of competent jurisdiction. On
receipt of an application, the court after giving any notice the court
considers necessary may order indemnification if it determines:
(1) The director is entitled to mandatory indemnification under
G.S. 55-8-52, in which case the court shall also order the corporation
to pay the director's reasonable expenses incurred to obtain court-
ordered indemnification; or
(2) The director is fairly and reasonably entitled to
indemnification in view of all the relevant circumstances, whether or
not he met the standard of conduct set forth in G.S. 55-8-51 or was
adjudged liable as described in G.S. 55-8-51(d), but if he was adjudged
so liable his indemnification is limited to reasonable expenses
incurred.
SECTION 55-8-55. DETERMINATION AND AUTHORIZATION OF INDEMNIFICATION.
(a) A corporation may not indemnify a director under G.S. 55-8-51 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because
he has met the standard of conduct set forth in G.S. 55-8-51.
(b) The determination shall be made:
(1) By the board of directors by majority vote of a quorum
consisting of directors not at the time parties to the proceeding;
(2) If a quorum cannot be obtained under subdivision (1), by
majority vote of a committee duly designated by the board of directors
(in which designation directors who are parties may participate),
consisting solely of two or more directors not at the time parties to
the proceeding;
(3) By special legal counsel (i) selected by the board of directors
or its committee in the manner prescribed in subdivision (1) or (2); or
(ii) if a quorum of the board of directors cannot be obtained under
subdivision (1) and a committee cannot be designated under subdivision
(2), selected by majority vote of the full board of directors (in which
selection directors who are parties may participate); or
(4) By the shareholders, but shares owned by or voted under the
control of directors who are at the time parties to the proceeding may
not be voted on the determination.
(c) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the
determination that indemnification is permissible, except that if the
determination is made by special legal counsel, authorization of
indemnification and evaluation as to reasonableness of expenses shall be
made by those entitled under subsection (b)(3) to select counsel.
SECTION 55-8-56. INDEMNIFICATION OF OFFICERS, EMPLOYEES, AND AGENTS.
Unless a corporation's articles of incorporation provide otherwise:
(1) An officer of the corporation is entitled to mandatory
indemnification under G.S. 55-8-52, and is entitled to apply for the
court-ordered indemnification under G.S. 55-8-54, in each case to the
same extent as a director;
(2) The corporation may indemnify and advance expenses under this
Part to an officer, employee, or agent of the corporation to the same
extent as to a director; and
(3) A corporation may also indemnify and advance expenses to an
officer, employee, or agent who is not a director to the extent,
consistent with public policy, that may be provided by its articles of
incorporation, bylaws, general or specific action of its board of
directors, or contract.
II-3
<PAGE> 11
SECTION 55-8-57. ADDITIONAL INDEMNIFICATION AND INSURANCE. (a) In
addition to and separate and apart from the indemnification provided for in
G.S. 55-8-51, 55-8-52, 55-8-54, 55-8-55 and 55-8-56, a corporation may in
its articles of incorporation or bylaws or by contract or resolution
indemnify or agree to indemnify any one or more of its directors, officers,
employees, or agents against liability and expenses in any proceeding
(including without limitation a proceeding brought by or on behalf of the
corporation itself) arising out of their status as such or their activities
in any of the foregoing capacities; provided, however, that a corporation
may not indemnify or agree to indemnify a person against liability or
expenses he may incur on account of his activities which were at the time
taken known or believed by him to be clearly in conflict with the best
interests of the corporation. A corporation may likewise and to the same
extent indemnify or agree to indemnify any person who, at the request of
the corporation, is or was serving as a director, officer, partner,
trustee, employee, or agent of another foreign or domestic corporation,
partnership, joint venture, trust or other enterprise or as a trustee or
administrator under an employee benefit plan. Any provision in any articles
of incorporation, bylaw, contract, or resolution permitted under this
section may include provisions for recovery from the corporation of
reasonable costs, expenses, and attorneys' fees in connection with the
enforcement of rights to indemnification granted therein and may further
include provisions establishing reasonable procedures for determining and
enforcing the rights granted therein.
(b) The authorization, adoption, approval, or favorable recommendation
by the board of directors of a public corporation of any provision in any
articles of incorporation, bylaw, contract or resolution, as permitted in
this section, shall not be deemed an act of corporate transaction in which
a director has a conflict of interest, and no such articles of
incorporation or bylaw provision or contract or resolution shall be void or
voidable on such grounds. The authorization, adoption, approval, or
favorable recommendation by the board of directors of a nonpublic
corporation of any provision in any articles of incorporation, bylaw,
contract or resolution, as permitted on this section, which occurred prior
to July 1, 1990, shall not be deemed an act or corporate transaction in
which a director has a conflict of interest, and no such articles of
incorporation, bylaws provision, contract or resolution shall be void or
voidable on such grounds. Except as permitted in G.S. 55-8-31, no such
bylaw, contract, or resolution not adopted, authorized, approved or
ratified by shareholders shall be effective as to claims made or
liabilities asserted against any director prior to its adoption,
authorization, or approval by the board of directors.
(c) A corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, or agent of the
corporation, or who, while a director, officer, employee, or agent of the
corporation, is or was serving at the request of the corporation as a
director, officer, partner, trustee, employee, or agent of another foreign
or domestic corporation, partnership, joint venture, trust, employee
benefit plan, or other enterprise, against liability asserted against or
incurred by him in that capacity or arising from his status as a director,
officer, employee, or agent, whether or not the corporation would have
power to indemnify him against the same liability under any provision of
this Chapter.
SECTION 55-8-58. APPLICATION OF PART. (a) If articles of incorporation
limit indemnification or advance for expenses, indemnification and advance
for expenses are valid only to the extent consistent with the articles.
(b) This Part does not limit a corporation's power to pay or reimburse
expenses incurred by a director in connection with his appearance as a
witness in a proceeding at a time when he has not been made a named
defendant or respondent to the proceeding.
(c) This Part shall not affect rights or liabilities arising out of
acts or omissions occurring before July 1, 1990.
The Company's By-Laws provide that the Company shall indemnify and hold
harmless its directors, and officers of the Company who are also directors or
who are designated by the Board of Directors from time to time as indemnified
officers ("indemnified officers") against any obligation to pay any judgment,
settlement, penalty, fine (including any excise tax assessed with respect to an
employee benefit plan) and reasonable expenses, including but not limited to
attorneys' fees of opposing parties ("Liabilities") and for any expenses
incurred with respect to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative
II-4
<PAGE> 12
or investigative, whether formal or informal, and any appeal therein (and any
inquiry or investigation that could lead to such a proceeding) (a "Proceeding"),
including any Proceeding brought by or on behalf of the Company itself, arising
out of their status as directors or officers of the Company. The Company shall
also indemnify its directors and indemnified officers for their service at the
Company's request as a director, officer, partner, trustee, employee or agent or
another corporation, partnership, joint venture, trust, employee benefit plan or
other enterprise. The Company shall not, however, indemnify a director or
indemnified officer against Liabilities or expenses incurred on account of
activities of such person that at the time taken were known or believed by him
or her, or a reasonable person would have or should have known, to be clearly in
conflict with the best interests of the Company, The By-Laws further provide
that the Company shall indemnify each director and indemnified officer for his
or her reasonable costs, expenses and attorneys' fees incurred in connection
with the enforcement of the rights to indemnification granted therein, if it is
determined that such director or indemnified officer is entitled to
indemnification thereunder.
The Company's Articles of Incorporation, as amended, contain the following
provisions:
ARTICLE 8: A director of the Corporation shall not be personally
liable to the Corporation or any of its shareholders for monetary damages
for any breach of duty as a director, except for liability with respect to
(i) acts or omissions not made in good faith that the director at the time
of such breach knew or believed were in conflict with the best interests of
the Corporation, (ii) any liability under N.C.G.S. sec. 55-8-33 (liability
for unlawful distributions), (iii) any transaction from which such director
derived an improper personal benefit, or (iv) acts or omissions occurring
prior to the date on which this Article 8 became effective. As used herein,
the term, "improper personal benefit" does not include a director's
compensation or other incidental benefit for or on account of service as a
director, officer, employee, independent contractor, attorney or consultant
of the Corporation. If the North Carolina General Statutes are amended
after approval by the Corporation's shareholders of this Article 8 to
authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the North
Carolina General Statutes, as so amended. No amendment or repeal of the
provisions of this Article 8 shall apply to or have an effect on the
liability or alleged liability of any director of the Corporation for or
with respect to any act or failure to act on the part of such director
occurring prior to such amendment or repeal. The provisions of this Article
8 shall not be deemed to limit or preclude indemnification of a director by
the Corporation for any liability which has not been eliminated by the
provisions of this Article 8.
The Company has obtained and maintains a policy for directors' and
officers' liability insurance. The policy is designed to protect the Company in
the event it is required to pay any amounts to its directors and officers as
indemnification against loss arising from certain civil claims, including
certain claims under the 1933 Act, which might be made against its directors and
officers by reason of any alleged "breach of duty," neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted, while acting in their respective capacities as directors or officers
of the Company.
II-5
<PAGE> 13
ITEM 16. LIST OF EXHIBITS.
<TABLE>
<S> <C> <S>
3.1 -- Articles of Incorporation of the Company, as amended.
3.2 -- By-Laws of the Company, as amended (incorporated by
reference to Exhibit C to the Proxy Statement included as
Exhibit No. 2 of the Company's Registration Statement on
Form 8-B, dated March 2, 1994, No. 1-6196).
4.1 -- Specimen of certificate of the Company's Common Stock
(incorporated by reference to Exhibit No. 3.3 of the
Company's Registration Statement on Form 8-B, dated March 2,
1994, No. 1-6196).
5.1 -- Opinion of Amos & Jeffries, L.L.P., regarding legality of
the shares of Common Stock being registered.
23.1 -- Consent of Amos & Jeffries, L.L.P. (included in Exhibit
5.1).
23.2 -- Independent Auditors' Consent.
24.1 -- Powers of Attorney.
</TABLE>
ITEM 17. UNDERTAKINGS.
A. Post-Effective Amendments
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a posteffective amendment to this
Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement; notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement;
(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 the undertakings set forth in
paragraphs (1)(i) and (1)(ii) above do not apply if the Registration
Statement is on Form S-3, Form S-8 or F-3, and the information required
to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission
by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in
this Registration Statement.
(2) That for the purpose of determining any liability under the
Securities Act of 1933, each 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
of any of the securities being registered which remain unsold at the
termination of the offering.
B. Filings Incorporating Subsequent 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
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<PAGE> 14
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. Indemnification
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 15 above or
otherwise, the Registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act of 1933 and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-7
<PAGE> 15
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Charlotte, State of North Carolina, on the 9th day of
September, 1997.
PIEDMONT NATURAL GAS COMPANY, INC.
By: /s/ JOHN H. MAXHEIM
------------------------------------
John H. Maxheim
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 dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ JOHN H. MAXHEIM Director, Chairman of September 9, 1997
- ----------------------------------------------------- the Board, President
John H. Maxheim and Chief Executive
Officer
/s/ DAVID J. DZURICKY Senior Vice President- September 9, 1997
- ----------------------------------------------------- Finance (Principal
David J. Dzuricky Financial Officer)
/s/ BARRY L. GUY Vice President and September 9, 1997
- ----------------------------------------------------- Controller (Principal
Barry L. Guy Accounting Officer)
JERRY W. AMOS* Director September 9, 1997
- -----------------------------------------------------
Jerry W. Amos
Director September , 1997
- -----------------------------------------------------
C.M. Butler III
SAM J. DIGIOVANNI* Director September 9, 1997
- -----------------------------------------------------
Sam J. DiGiovanni
JOHN W. HARRIS* Director September 9, 1997
- -----------------------------------------------------
John W. Harris
MURIEL W. HELMS* Director September 9, 1997
- -----------------------------------------------------
Muriel W. Helms
</TABLE>
II-8
<PAGE> 16
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
JOHN F. MCNAIR III* Director September 9, 1997
- -----------------------------------------------------
John F. McNair III
NED R. MCWHERTER* Director September 9, 1997
- -----------------------------------------------------
Ned R. McWherter
WALTER S. MONTGOMERY, JR.* Director September 9, 1997
- -----------------------------------------------------
Walter S. Montgomery, Jr.
DONALD S. RUSSELL, JR.* Director September 9, 1997
- -----------------------------------------------------
Donald S. Russell, Jr.
JOHN E. SIMKINS, JR.* Director September 9, 1997
- -----------------------------------------------------
John E. Simkins, Jr.
*By: /s/ DAVID J. DZURICKY
-----------------------------------------------
David J. Dzuricky
(Attorney-in-Fact)
</TABLE>
II-9
<PAGE> 17
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NUMBER PAGE
- ------- ------------
<C> <C> <S> <C>
3.1 -- Articles of Incorporation of the Company, as amended.
3.2 -- By-Laws of the Company, as amended (incorporated by
reference to Exhibit C to the Proxy Statement included as
Exhibit No. 2 of the Company's Registration Statement on
Form 8-B, dated March 2, 1994, No. 1-6196).
4.1 -- Specimen of certificate of the Company's Common Stock
(incorporated by reference to Exhibit No. 3.3 of the
Company's Registration Statement on Form 8-B, dated March 2,
1994, No. 1-6196).
5.1 -- Opinion of Amos & Jeffries, L.L.P., regarding legality of
the shares of Common Stock being registered.
23.1 -- Consent of Amos & Jeffries, L.L.P. (included in Exhibit
5.1).
23.2 -- Independent Auditors' Consent.
24.1 -- Powers of Attorney.
</TABLE>
<PAGE> 1
EXHIBIT 3.1
ARTICLES OF INCORPORATION
OF
PNG ACQUISITION COMPANY
The undersigned, for the purpose of forming a business corporation
under the laws of the State of North Carolina, does hereby make and acknowledge
these Articles of Incorporation.
ARTICLE 1: The name of the Corporation is "PNG ACQUISITION COMPANY".
ARTICLE 2: The purposes for which the Corporation are organized are: (1) to
transport, store, buy, manufacture, produce or in any manner acquire, sell,
exchange, deliver, distribute, dispose of, trade and deal in natural or
manufactured gas or a mixture of both or their by-products and residual
products; to construct, build, purchase, lease, equip or otherwise acquire and
to hold, own operate, improve, develop, manage and maintain pipe lines or
systems of pipe lines for the transmission of natural gas; to purchase, build,
construct, develop, improve, acquire, own, hold, lease, operate, manage and
maintain works or facilities for the manufacture, production, accumulation and
distribution of natural or manufactured gas or a mixture of both or their
by-products and residual products, together with all such buildings, pipe
lines, mains, machinery, including compressor units and compressor stations,
apparatus, appliances, facilities, rights of way, easements, rights,
privileges, and all such real and personal property as may be necessary, useful
or convenient to the production, acquisition, storage and distribution of the
aforesaid products; and (2) to engage in any other lawful act or business for
which a corporation may be organized under Chapter 55 of the General Statutes
of North Carolina, as amended from time to time.
ARTICLE 3: The aggregate number of shares of capital stock which the
Corporation shall have authority to issue is fifty million one hundred
seventy-five thousand (50,175,000), fifty million (50,000,000) of which shall
be common stock, without par value, and one hundred seventy-five thousand
(175,000) of which shall be preferred stock, also without par value. The shares
of common stock shall have unlimited voting rights and, after satisfaction of
claims, if any, of the holders of shares of preferred stock, shall be entitled
to receive pro rata the net assets of the Corporation upon distribution. The
Board of Directors of the Corporation shall have full power and authority to
establish one or more series within the class of preferred stock, to define the
designations, preferences, limitations and relative rights (including
conversion rights) of shares within such class and to determine all variations
between series.
ARTICLE 4: The name of the initial registered agent is: Martin C. Ruegsegger.
The street address and county of the initial registered office of the
Corporation is: 1915 Rexford Road, Charlotte, Mecklenburg County, North
Carolina. The mailing address is: P.O. Box 33068, Charlotte, North Carolina
28233.
ARTICLE 5: The duration of the Corporation is to be perpetual.
ARTICLE 6: The business and affairs of the Corporation shall be managed by or
under the direction of a Board of Directors. The number of directors (exclusive
of directors, if any, elected
<PAGE> 2
by the holders of one or more classes of preferred stock, voting as a class
pursuant to provisions as may be determined by the Board of Directors) which
shall constitute the entire Board of Directors of the Corporation shall be the
number from time to time fixed by or in accordance with the By-Laws of the
Corporation (which number shall not be less than nine), and such number of
directors so fixed may be changed only by the affirmative vote of (i) at least
eighty per cent of the outstanding shares entitled to vote in the election of
the directors or (ii) a majority of the entire Board of Directors.
The directors of the Corporation shall be divided into three classes,
as nearly equal as possible in number as may be, to serve in the first instance
for terms of one, two and three years, respectively, or until their earlier
death, resignation, retirement, removal or disqualification or until their
successors shall be elected and shall qualify, and thereafter the successors in
each class of directors shall be elected to serve for terms of three years or
until their earlier death, resignation, retirement, removal or disqualification
or until their successors shall be elected and shall qualify. In the event of
an increase or decrease in the number of directors, the additional or
eliminated directorships shall be so classified that all classes of directors
remain or become as nearly equal in number as may be.
Subject to the rights of the holders of any series of preferred stock,
if any, then outstanding, newly-created directorships resulting from an
increase in the authorized number of directors may be filled by vote of the
Board of Directors. If the number of the directors then in office is less than
a quorum, such newly-created directorships and any then existing vacancies may
be filled by a majority of the directors then in office. Any director elected
to fill a vacancy shall hold office until the next annual meeting of
shareholders. In no case shall a decrease in the number of directors shorten
the term of any incumbent director.
Subject to the rights of the holders of any series of preferred stock,
if any, then outstanding, any director, or the entire Board of Directors, may
be removed from office at any time for cause by the affirmative vote of at
least eighty per cent of the outstanding shares entitled to vote in the
election of directors.
Notwithstanding any other provisions of these Articles of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, the Articles of Incorporation
or the By-Laws of the Corporation), the affirmative vote of at least eighty per
cent of the outstanding shares entitled to vote in the election of directors
shall be required for the shareholders of the Corporation to amend, repeal or
adopt any By-Law of the Corporation or to adopt any amendment to these Articles
of Incorporation inconsistent with the By-Laws of the Corporation.
Notwithstanding any other provisions of law, these Articles of
Incorporation or the By-Laws of the Corporation (and notwithstanding the fact
that a lesser percentage may be specified by law, the Articles of Incorporation
or the By-Laws of the Corporation), the affirmative vote of at least eighty per
cent of the outstanding shares entitled to vote in the election of directors
shall be required to amend, alter, change or repeal this Article 6 or to adopt
any provision inconsistent with this Article 6.
2
<PAGE> 3
A special meeting of the shareholders may be called at any time and
for any purpose or purposes by the Board of Directors and shall be called by
the Secretary upon the written request of the holders of at least eighty per
cent of the outstanding shares entitled to vote in the election of directors.
Each such request shall state the purpose or purposes of each meeting.
ARTICLE 7: The vote of shareholders of the Corporation required to approve any
Business Combination (as hereinafter defined) shall be as set forth in this
Article 7.
(a) In addition to any affirmative vote required by law, these Articles
of Incorporation or the By-Laws of the Corporation, and except as otherwise
expressly provided in Section (b) of this Article 7, a Business Combination (as
hereinafter defined) with, or proposed by or on behalf of, any Interested
Shareholder (as hereinafter defined) or any Affiliate or Associate (as
hereinafter defined) of any Interested Shareholder or any person who thereafter
would be an Affiliate or Associate of such Interested Shareholder shall require
the affirmative vote of not less than sixty-six and two-thirds per cent of the
votes entitled to be cast by the holders of all of the then outstanding Voting
Stock (as hereinafter defined), voting together as a single class, excluding
Voting Stock beneficially owned by any Interested Shareholder or any Affiliate
or Associate of such Interested Shareholder. Such affirmative vote shall be
required notwithstanding the fact that no vote may be required, or that a lesser
percentage or separate class vote may be specified, by law or in any agreement
with any national securities exchange or otherwise.
(b) The provisions of Section (a) of this Article 7 shall not be
applicable to a Business Combination, and such Business Combination shall
require only such affirmative vote, if any, as is required by law or any other
provision of these Articles of Incorporation or the By-Laws of the Corporation,
or any agreement with any national securities exchange, which meets all of the
conditions specified in either of the following Paragraphs (1) and (2), or, in
the case of a Business Combination not involving the payment of consideration to
the holders of the Corporation's outstanding Capital Stock (as hereinafter
defined), which meets the conditions specified in the following Paragraph (1):
(1) The Business Combination shall have been approved (whether
such approval is made prior to or subsequent to the acquisition of, or
announcement or public disclosure of the intention to acquire,
beneficial ownership of the Voting Stock that caused the Interested
Shareholder to become an Interested Shareholder), either specifically
or as a transaction which is within an approved category of
transactions, by the Board of Directors prior to the date on which the
Continuing Directors (as hereinafter defined) comprise less than a
majority of the entire Board of Directors.
(2) All of the following conditions shall have been met:
(A) The aggregate amount of cash and the Fair Market
Value (as hereinafter defined), as of the date of the
consummation of the Business Combination, of consideration
other than cash to be received per share by holders of Common
Stock in such Business Combination shall be at least equal to
the higher of the following:
3
<PAGE> 4
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the Interested Shareholder for any share of
Common Stock in connection with the acquisition by
the Interested Shareholder of beneficial ownership of
shares of Common Stock (x) within the two-year period
immediately prior to the first public announcement of
the proposed Business Combination (the "Announcement
Date") or (y) in the transaction in which it became
an Interested Shareholder, whichever is higher, in
either case as adjusted for any subsequent stock
split, stock dividend, subdivision or
reclassification with respect to Common Stock;
(ii) the Fair Market Value per share of
Common Stock on the Announcement Date or on the date
on which the Interested Shareholder became an
Interested Shareholder (such latter date is referred
to in this Article 7 as the "Determination Date"),
whichever is higher, as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to Common Stock; and
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of Common
Stock determined pursuant to the immediately
preceding clause (ii), multiplied by the ratio of (x)
the highest per share price (including any brokerage
commissions, transfer taxes and soliciting dealers'
fees) paid by or on behalf of the Interested
Shareholder for any share of Common Stock in
connection with the acquisition by the Interested
Shareholder of beneficial ownership of shares of
Common Stock within the two-year period immediately
prior to the Announcement Date, as adjusted for any
subsequent stock split, stock dividend, subdivision
or reclassification with respect to Common Stock, to
(y) the Fair Market Value per share of Common Stock,
on the first day in such two-year period on which the
Interested Shareholder acquired beneficial ownership
of any share of Common Stock, as adjusted for any
subsequent stock split, stock dividend, subdivision
or reclassification with respect to Common Stock.
(B) The aggregate amount of cash and the Fair Market
Value, as of the date of the consummation of the Business
Combination, of consideration other than cash to be received
per share by holders of shares of any class or series of
outstanding Capital Stock, other than Common Stock, shall be
at least equal to the higher of the following:
(i) (if applicable) the highest per share
price (including any brokerage commissions, transfer
taxes and soliciting dealers' fees) paid by or on
behalf of the Interested Shareholder for any shares
of such class or series of Capital Stock in
connection with the acquisition by the Interested
Shareholder of beneficial ownership of shares of such
class or series of Capital Stock (x) within the
two-year period
4
<PAGE> 5
immediately prior to the Announcement Date or (y) in
the transaction in which it became an Interested
Shareholder, whichever is higher, in either case as
adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with
respect to such class or series of Capital Stock;
(ii) the Fair Market Value per share of
such class or series of Capital Stock on the
Announcement Date or on the Determination Date,
whichever is higher, as adjusted for any subsequent
stock split, stock dividend, subdivision or
reclassification with respect to such class or series
of Capital Stock;
(iii) (if applicable) the price per share
equal to the Fair Market Value per share of such
class or series of Capital Stock determined pursuant
to the immediately preceding clause (ii), multiplied
by the ratio of (x) the highest per share price
(including any brokerage commissions, transfer taxes
and soliciting dealers' fees) paid by or on behalf of
the Interested Shareholder for any share of such
class or series of Capital Stock in connection with
the acquisition by the Interested Shareholder of
beneficial ownership of shares of such class or
series of Capital Stock within the two-year period
immediately prior to the Announcement Date, as
adjusted for any subsequent stock split, stock
dividend, subdivision or reclassification with
respect to such class or series of Capital Stock, to
(y) the Fair Market Value per share of such class or
series of Capital Stock on the first day in such
two-year period on which the Interested Shareholder
acquired beneficial ownership of any share of such
class or series of Capital Stock, as adjusted for any
subsequent stock split, stock dividend, subdivision
or reclassification with respect to such class or
series of Capital Stock; and
(iv) (if applicable) the highest
preferential amount per share to which the holders of
shares of such class or series of Capital Stock would
be entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of
the affairs of the Corporation regardless of whether
the Business Combination to be consummated
constitutes such an event.
The provisions of this Paragraph (2) shall be required to be
met with respect to every class or series of outstanding
Capital Stock, whether or not the Interested Shareholder has
previously acquired beneficial ownership of any shares of a
particular class or series of Capital Stock.
(C) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall
be in cash or in the same form as previously has been paid by
or on behalf of the Interested Shareholder in connection with
its direct or indirect acquisition of beneficial ownership of
shares of such class or series of Capital Stock. If the
consideration so paid for
5
<PAGE> 6
shares of any class or series of Capital Stock varied as to
form, the form of consideration for such class or series of
Capital Stock shall be either cash or the form used to acquire
beneficial ownership of the largest number of shares of such
class or series of Capital Stock previously acquired by the
Interested Shareholder.
(D) After the Determination Date and prior to the
consummation of such Business Combination: (i) there shall
have been no failure to declare and pay at the regular date
therefor any full quarterly dividends (whether or not
cumulative) payable in accordance with the terms of any
outstanding Capital Stock; (ii) there shall have been no
reduction in the annual rate of dividends paid on the Common
Stock (except as necessary to reflect any stock split, stock
dividend or subdivision of the Common Stock); (iii) there
shall have been an increase in the annual rate of dividends
paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split,
recapitalization, reorganization or any similar transaction
that has the effect of reducing the number of outstanding
shares of the Common Stock); and (iv) such Interested
Shareholder shall have not become the beneficial owner of any
additional shares of Capital Stock except as part of the
transaction which results in such Interested Shareholder being
an Interested Shareholder and except in a transaction that,
after giving effect thereto, would not result in any increase
in the Interested Shareholder's percentage beneficial
ownership of any class or series of Capital Stock.
(E) A proxy or information statement describing the
proposed Business Combination and complying with the
requirements of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (the "Act")
(or any subsequent provisions replacing the Act, rules or
regulations) shall be mailed to all shareholders of the
Corporation at least thirty days prior to the consummation of
such Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant to the
Act or subsequent provisions). The proxy or information
statement shall contain on the first page thereof, in a
prominent place, any statement as to the advisability (or
inadvisability) of the Business Combination that the
Continuing Directors, or any of them, may choose to make and,
if deemed advisable by a majority of the Continuing Directors,
the opinion of an investment banking firm selected by a
majority of the Continuing Directors as to the fairness (or
not) of the terms of the Business Combination from a financial
point of view to the holders of the outstanding shares of
Capital Stock other than the Interested Shareholder and its
Affiliates or Associates, such investment banking firm to be
paid a reasonable fee for its services by the Corporation.
(F) Such Interested Shareholder shall not have made
any major change in the Corporation's business or equity
capital structure.
(c) The following definitions shall apply with respect to this
Article 7:
6
<PAGE> 7
(1) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the General
Rules and Regulations under the Securities Exchange Act of 1934, as in
effect on January 1, 1993 (the term "registrant" in said Rule 12b-2
meaning in this case the Corporation).
(2) A person shall be a "beneficial owner" of any Capital
Stock:
(A) which such person or any of its Affiliates or
Associates beneficially owns, directly or indirectly; or
(B) which such person or any of its Affiliates or
Associates has, directly or indirectly, (i) the right to
acquire (whether such right is exercisable immediately or only
after the passage of time), pursuant to any agreement,
arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise, or (ii) the right to vote pursuant to any
agreement, arrangement or understanding; or
(C) which is beneficially owned, directly or
indirectly, by any other person with which such person or any
of its Affiliates or Associates has any agreement, arrangement
or understanding for the purpose of acquiring, holding, voting
or disposing of any shares of Capital Stock.
(3) The term "Business Combination" shall mean:
(A) any merger or consolidation of the Corporation
or any Subsidiary (as hereinafter defined) with (i) any
Interested Shareholder or (ii) any other corporation (whether
or not itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate or
Associate of an Interested Shareholder; or
(B) any sale, lease, exchange, mortgage, pledge,
transfer or other disposition or security arrangement,
investment, loan, advance, guarantee, agreement to purchase,
agreement to pay, extension of credit, joint venture
participation or other arrangement (in one transaction or a
series of transactions) with or for the benefit of any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder involving any assets, securities or
commitments of the Corporation, any Subsidiary or any
Interested Shareholder or any Affiliate or Associate of any
Interested Shareholder which (except for any arrangement,
whether as employee, consultant or otherwise, other than as a
director, pursuant to which any Interested Shareholder or any
Affiliate or Associate thereof shall directly or indirectly,
have any control over or responsibility for management of any
aspect of the business or affairs of the Corporation, with
respect to which arrangements the value tests set forth below
shall not apply), together with all such other arrangements
(including all contemplated future events), has an aggregate
Fair Market Value and/or involves aggregate commitments of
$10,000,000 or more or constitutes five per cent of the book
value of the total assets (in the case of transactions
involving assets or commitments other than Capital Stock) or
five per cent of the shareholders' equity (in the case of
transactions in Capital Stock) of the entity in question (the
"Substantial Part"), as reflected in the most recent fiscal
year-end consolidated balance sheet of such entity
7
<PAGE> 8
existing at the time the shareholders of the Corporation would
be required to approve or authorize the Business Combination
involving the assets, securities and/or commitments
constituting any Substantial Part, except for transactions
made in the ordinary course of the Corporation's business,
consistent with past practices; or
(C) the adoption of any plan or proposal for the
liquidation or dissolution of the Corporation; or
(D) any reclassification of securities (including
any reverse stock split), or recapitalization of the
Corporation, or any merger or consolidation of the Corporation
with any of its Subsidiaries or any other transaction (whether
or not with or into or otherwise involving an Interested
Shareholder) that has the effect, directly or indirectly, of
increasing the proportionate share of the outstanding shares
of any class or series of Capital Stock, or any securities
convertible into Capital Stock or into equity securities of
any Subsidiary, that is beneficially owned by any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder; or
(E) any agreement, contract or other arrangement
providing for any one or more of the actions specified in the
foregoing clauses (A) to (D).
(4) The term "Capital Stock" shall mean all capital stock of
the Corporation authorized to be issued from time to time under Article
3 of these Articles of Incorporation.
(5) In the event of any Business Combination in which the
Corporation survives, the phrase "consideration other than cash to be
received" as used in Paragraphs (2)(A) and (2)(B) of Section (b) of
this Article 7 shall include the shares of Common Stock and/or the
shares of any other class of Capital Stock retained by the holders of
such shares.
(6) The term "Continuing Director" means any member of the
Board of Directors, while such person is a member of the Board of
Directors, who is not an Affiliate or Associate or representative of
the Interested Shareholder and was a member of the Board of Directors
prior to the time that the Interested Shareholder became an Interested
Shareholder, and any successor of a Continuing Director, while such
successor is a member of the Board of Directors, who is not an
Affiliate or Associate or representative of the Interested Shareholders
and is recommended or elected to succeed the Continuing Director by the
majority of Continuing Directors.
(7) The term "Fair Market Value" means: (i) in the case of
cash, the amount of such cash; (ii) in the case of stock, the highest
closing sale price during the thirty-day period immediately preceding
the date in question of a share of such stock on the Composite Tape on
the New York Stock Exchange for listed stocks, or if such stock is not
quoted on the Composite Tape on the New York Stock Exchange or if such
stock is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of
1934 on which such stock is listed, or if such stock is not listed on
any such exchange, the highest closing bid quotation with respect to a
share of such stock during the thirty-day period preceding the date in
question on the National Market System of the National Association of
Securities Dealers Automated Quotations System or any similar system
then in use, or if no such quotations are available, the fair market
value on the date
8
<PAGE> 9
in question of a share of such stock as determined by a nationally
recognized investment banking firm selected by a majority of the
Continuing Directors; and (iii) in the case of property other than cash
or stock, the fair market value of such property on the date in
question as determined by a nationally recognized investment banking
firm selected by a majority of the Continuing Directors.
(8) The term "Interested Shareholder" shall mean any person
(other than the Corporation or any Subsidiary and other than any
profit-sharing, employee stock ownership or other employee benefit plan
of the Corporation or any Subsidiary or any trustee or fiduciary with
respect to any such plan when acting in such capacity) who or which:
(A) is, or has announced or publicly disclosed a
plan or intention to become, the beneficial owner of Voting
Stock representing ten per cent or more of the votes entitled
to be cast by the holders of all then outstanding shares of
Voting Stock; or
(B) is an Affiliate or Associate of the Corporation
and at any time within the two-year period immediately prior
to the date in question was the beneficial owner of Voting
Stock representing ten per cent or more of the votes entitled
to be cast by the holders of all then outstanding shares of
Voting Stock.
For the purpose of determining whether a person is an Interested
Shareholder, the number of shares of Capital Stock deemed to be
outstanding shall include shares beneficially owned by such person
through application of Paragraph (2) of this Section (c), but shall not
include any other shares of Capital Stock which may be issuable
pursuant to any agreement, arrangement or understanding, or upon
exercise of conversion rights, warrants or options, or otherwise.
(9) The term "person" shall mean any individual, firm,
corporation or other entity and shall include any group comprised of
any person and any other person with whom such person or any Affiliate
or Associate of such person has any agreement, arrangement or
understanding, directly or indirectly, for the purpose of acquiring,
holding, voting or disposing of Capital Stock.
(10) The term "Subsidiary" means any corporation of which a
majority of any class of equity security is beneficially owned by the
Corporation; provided, however, that for the purposes of the definition
of Interested Shareholder set forth in Paragraph (8) of this Section
(c), the term "Subsidiary" shall mean only a corporation of which a
majority of each class of equity security is beneficially owned by the
Corporation.
(11) The term "Voting Stock" shall mean all Capital Stock
which by its terms may be voted on matters submitted to shareholders of
the Corporation generally.
(d) The Board of Directors shall have the power and duty to determine
for the purpose of this Article 7, on the basis of information known to them
after reasonable inquiry, all questions arising under this Article 7, including,
without limitation, (1) whether a person is an Interested Shareholder, (2) the
number of shares of Capital Stock or other securities beneficially owned by any
person, (3) whether a person is an Affiliate or Associate of another, (4)
whether a Proposed Action (as defined in Section (g) of this Article 7) is with,
or proposed by, or on behalf of, an Interested
9
<PAGE> 10
Shareholder or an Affiliate or Associate of an Interested Shareholder, (5)
whether the assets that are the subject of any Business Combination have, or the
consideration to be received for the issuance or transfer of securities by the
Corporation or any Subsidiary in any Business Combination has, an aggregate
Fair Market Value of $10,000,000 or more, and (6) whether the assets or
securities that are the subject of any Business Combination constitute a
Substantial Part. Any such determination made in good faith shall be binding
and conclusive on all parties.
(e) Nothing contained in this Article 7 shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
(f) The fact that any Business Combination complies with the provisions
of Section (b) of this Article 7 shall not be construed to impose any fiduciary
duty, obligation or responsibility on the Board of Directors, or any member
thereof, to approve such Business Combination or recommend its adoption or
approval to the shareholders of the Corporation, nor shall such compliance
limit, prohibit or otherwise restrict in any manner the Board of Directors, or
any member thereof, with respect to evaluations of or actions and responses
taken with respect to such Business Combination.
(g) For the purposes of this Article 7, a (i) Business Combination, (ii)
any proposal to amend or repeal any provision of this Article 7, or (iii) any
proposal to amend or repeal any provision of these Articles of Incorporation, or
to add any provision to these Articles of Incorporation, which is inconsistent
with this Article 7 (collectively "Proposed Action") is presumed to have been
proposed by, or on behalf of, an Interested Shareholder or an Affiliate or
Associate of an Interested Shareholder or a person who thereafter would become
such if (1) after the Interested Shareholder became such, the Proposed Action is
proposed following the election of any director of the Corporation who, with
respect to such Interested Shareholder, would not qualify to serve as a
Continuing Director or (2) such Interested Shareholder, Affiliate, Associate or
person votes for or consents to the adoption of any such Proposed Action,
unless as to such Interested Shareholder, Affiliate, Associate or person a
majority of the Continuing Directors make a good faith determination that such
Proposed Action is not proposed by or on behalf of such Interested Shareholder,
Affiliate, Associate or person, based on information known to them after
reasonable inquiry.
(h) Notwithstanding any other provisions of these Articles of
Incorporation or the Bylaws of the Corporation (and notwithstanding the fact
that a lesser percentage or a separate class vote may be specified by law, these
Articles of Incorporation or the Bylaws of the Corporation), any proposal to
amend or repeal this Article 7 or to add any provision to these Articles of
Incorporation inconsistent with this Article 7 which is proposed by or on behalf
of an Interested Shareholder or an Affiliate or Associate of an Interested
Shareholder shall require the affirmative vote of the holders of not less than
sixty-six and two-thirds per cent of the votes entitled to be cast by the
holders of all of the outstanding shares of Voting Stock, voting together as a
single class, excluding Voting Stock beneficially owned by any Interested
Shareholder and any Affiliate or Associate of such Interested Shareholder;
provided, however, that prior to the time such number of persons constituting a
quorum of the Board of Directors are nominated by or on behalf of the Interested
Shareholder and elected to the Board of Directors, this Section (h) shall not
apply to, and such sixty-six and two-thirds per cent vote shall not be required
for, any such amendment, repeal or addition recommended by the Board of
Directors prior to the date on which the Continuing Directors comprise less than
a majority of the Board of Directors.
10
<PAGE> 11
(i) The provision of the North Carolina Business Corporation Act
entitled "The North Carolina Shareholder Protection Act" and "The North Carolina
Control Share Acquisition Act" shall not be applicable to the Corporation.
ARTICLE 8: A director of the Corporation shall not be personally liable to the
Corporation or any of its shareholders for monetary damages for any breach of
duty as a director, except for liability with respect to (i) acts or omissions
not made in good faith that the director at the time of such breach knew or
believed were in conflict with the best interests of the Corporation, (ii) any
liability under N.C.G.S. Sec. 55-8-33 (liability for unlawful distributions),
(iii) any transaction from which such director derived an improper personal
benefit, or (iv) acts or omissions occurring prior to the date on which this
Article 8 became effective. As used herein, the term "improper personal
benefit" does not include a director's compensation or other incidental benefit
for or on account of service as a director, officer, employee, independent
contractor, attorney or consultant of the Corporation. If the North Carolina
General Statutes are amended after approval by the Corporation's shareholders of
this Article 8 to authorize corporate action further eliminating or limiting
the personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted by
the North Carolina General Statutes, as so amended. No amendment or repeal of
the provisions of this Article 8 shall apply to or have any effect on the
liability or alleged liability of any director of the Corporation for or with
respect to any act or failure to act on the part of such director occurring
prior to such amendment or repeal. The provisions of this Article 8 shall not
be deemed to limit or preclude indemnification of a director by the Corporation
for any liability which has not been eliminated by the provisions of this
Article 8.
ARTICLE 9: The name and address of each incorporator is as follows:
Jerry W. Amos
BROOKS PIERCE McLENDON
HUMPHREY & LEONARD, L.L.P.
P.O. Box 26000
Greensboro, NC 27420
ARTICLE 10: The number of directors constituting the initial Board of Directors
shall be one, and the name of the person who is to serve as the initial director
is as follows:
John H. Maxheim
1915 Rexford Road
Charlotte, NC 28211
These Articles of Incorporation shall be effective upon filing.
Dated: Dec. 13, 1993
/s/ Jerry W. Amos
----------------------------------
Jerry W. Amos
Incorporator
11
<PAGE> 12
ARTICLES OF AMENDMENT
OF
PIEDMONT NATURAL GAS COMPANY, INC.
(as filed with the Secretary of State of North Carolina on March 7, 1997)
The undersigned, a North Carolina corporation, hereby submits these
Articles of Amendment for the purpose of amending its Articles of
Incorporation:
1. The name of the corporation is Piedmont Natural Gas Company, Inc.
2. The following amendment to the Articles of Incorporation of the
corporation was duly adopted by its shareholders on the 28th day of
February, 1997 in the manner prescribed by law:
The first sentence of Articles 3 of the Articles of Incorporation
of the corporation is hereby deleted and the following new sentence
is inserted in lieu thereof:
Article 3. The aggregate number of shares of capital stock which
the corporation shall have authority to issue is one hundred
million one hundred seventy-five thousand (100,175,000), one
hundred million (100,000,000) of which shall be common stock,
without par value, and one hundred seventy-five thousand (175,000)
of which shall be preferred stock, without par value.
3. These articles will be effective upon filing.
This the 5th day of March, 1997.
PIEDMONT NATURAL GAS COMPANY, INC.
By: /s/ Martin C. Ruegsegger
---------------------------------------------
Martin C. Ruegsegger
Vice President, Corporate Counsel & Secretary
<PAGE> 1
EXHIBIT 5.1
AMOS & JEFFRIES, L.L.P.
ATTORNEYS AND COUNSELLORS AT LAW
TELEPHONE: (910) 273-5569 1230 RENAISSANCE PLAZA FACSIMILE: (910) 273-2435
230 NORTH ELM STREET
POST OFFICE BOX 787
GREENSBORO, NORTH CAROLINA 27402
September 9, 1997
Piedmont Natural Gas Company, Inc.
Post Office Box 33068
Charlotte, North Carolina 28233
Gentlemen:
We have acted as your counsel in connection with the preparation of a
registration statement on Form S-3 (the "Registration Statement") to be filed
today with the Securities and Exchange Commission ("Commission"). The
Registration Statement relates to the public offering of up to 1,725,000
additional shares of the Company's Common Stock, no par value (the "New Common
Stock"). The New Common Stock is to be offered to the public from time to time
in one or more transactions (i) to or through underwriters, underwriting
syndicates or dealers designated at the time of sale, (ii) through agents
designated from time to time, or (iii) directly by the Company.
We are generally familiar with the corporate proceedings taken by the
Company in connection with the proposed offering of the New Common Stock, and we
have examined such corporate records of the Company and other documents as we
have deemed necessary to form a basis for the opinion hereinafter expressed.
In our opinion, when the action hereinbelow set forth shall have been
taken, the New Common Stock will have been duly and legally authorized and
issued and will be fully paid and nonassessable:
(1) The Commission shall have entered an appropriate order declaring
effective the Registration Statement,
(2) An appropriate supplement to the Prospectus contained in the
Registration Statement shall have been duly filed with the Commission,
and
(3) The New Common Stock shall have been appropriately issued and
delivered to the purchasers thereof and the consideration therefor
shall have been received by the Company.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to this firm contained under the
caption "Legal Matters" in the prospectus which is a part of the Registration
Statement. In giving the foregoing consent, we do not admit that we are in the
category of persons whose consent is required by Section 7 of the Securities Act
of 1933.
Yours very truly,
/s/ JERRY W. AMOS
Jerry W. Amos
<PAGE> 1
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Piedmont Natural Gas Company, Inc. on Form S-3 of our report dated
December 20, 1996, appearing in the Annual Report on Form 10-K of Piedmont
Natural Gas Company, Inc. for the year ended October 31, 1996, and to the
reference to us under the heading "Experts" in the Prospectus, which is part of
the Registration Statement.
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
September 9, 1997
<PAGE> 1
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 24th
day of July, 1997.
/s/ JERRY W. AMOS
--------------------------
Director
STATE OF North Carolina
COUNTY OF Mecklenburg
This is to certify that before me personally came Jerry W. Amos known to me
to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 24th day of July, 1997.
/s/ Debra L. Brucki
------------------------------
Notary Public
My commission expires: December 18, 2000
<PAGE> 2
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 24th
day of July, 1997.
/s/ Sam J. DiGiovanni
--------------------------
Director
STATE OF Illinois
COUNTY OF Cook
This is to certify that before me personally came Sam J. DiGiovanni known
to me to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 24th day of July, 1997.
/s/ Carol Ann Raymond
------------------------------
Notary Public
My commission expires: November 20, 1998
<PAGE> 3
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 17th
day of July, 1997.
/s/ J. W. Harris
--------------------------
Director
STATE OF North Carolina
COUNTY OF Mecklenburg
This is to certify that before me personally came J. W. Harris known to me
to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 17th day of July, 1997.
/s/ Theresa M. Dick
------------------------------
Notary Public
My commission expires: April 24, 2001
<PAGE> 4
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 28th
day of July, 1997.
/s/ Muriel W. Helms
--------------------------
Director
STATE OF North Carolina
COUNTY OF Mecklenburg
This is to certify that before me personally came Muriel W. Helms known to
me to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 28th day of July, 1997.
/s/ Patricia Cox Viser
------------------------------
Notary Public
My commission expires: September 1, 1998
<PAGE> 5
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 21st
day of July, 1997.
/s/ John F. McNair III
--------------------------
Director
STATE OF North Carolina
COUNTY OF Forsyth
This is to certify that before me personally came John F. McNair III known
to me to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 21st day of July, 1997.
/s/ Jill B. Tesh
------------------------------
Notary Public
My commission expires: April 6, 2000
<PAGE> 6
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 17th
day of July, 1997.
/s/ Ned R. McWherter
--------------------------
Director
STATE OF Tennessee
COUNTY OF Weakley
This is to certify that before me personally came Ned R. McWherter known to
me to be the individual described in and who executed the foregoing Power of
Attorney, and the undersigned Notary Public duly acknowledged that this person
executed this document, this 17th day of July, 1997.
/s/ Madelyn B. Pritchett
------------------------------
Notary Public
My commission expires: March 19, 2001
<PAGE> 7
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 16th
day of July, 1997.
/s/ W. S. Montgomery, Jr.
--------------------------
Director
STATE OF South Carolina
COUNTY OF Spartanburg
This is to certify that before me personally came W. S. Montgomery, Jr.
known to me to be the individual described in and who executed the foregoing
Power of Attorney, and the undersigned Notary Public duly acknowledged that this
person executed this document, this 16th day of July, 1997.
/s/ Patricia J. Tate
------------------------------
Notary Public
My commission expires: March 31, 2002
<PAGE> 8
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 25th
day of July, 1997.
/s/ Donald S. Russell, Jr.
--------------------------
Director
STATE OF South Carolina
COUNTY OF Richland
This is to certify that before me personally came Donald S. Russell, Jr.
known to me to be the individual described in and who executed the foregoing
Power of Attorney, and the undersigned Notary Public duly acknowledged that this
person executed this document, this 8th day of August, 1997.
/s/ Jack W. Cloer
------------------------------
Notary Public
My commission expires: April 26, 2003
<PAGE> 9
PIEDMONT NATURAL GAS COMPANY, INC.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned director and/or
executive officer of PIEDMONT NATURAL GAS COMPANY, INC., a corporation organized
under the laws of the State of North Carolina, does hereby make, constitute and
appoint David J. Dzuricky, their true and lawful attorney-in-fact, with full
power of substitution, to (i) execute, deliver and file, on their behalf and in
their name and in their capacity as set forth below, a Registration Statement on
Form S-3 with the Securities and Exchange Commission under the Securities Act of
1933, as amended, together with any and all exhibits thereto and any and all
other documents in support thereof or supplemental thereto, with respect to the
registration of and continuous offering of the Corporation's Common Stock under
the Registration Statement on Form S-3, and any and all further amendments to
such Registration Statement, and (ii) execute any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with applicable state securities and blue sky laws and regulations, and
to file the same together with all other exhibits and documents in connection
therewith, with the appropriate state securities and blue sky authorities; and
does hereby grant to said attorney-in-fact power and authority to do and perform
each and every act and thing whatsoever as said attorney-in-fact may deem
necessary or advisable to carry out fully the intent of this instrument, to the
same extent and with the same effect as the undersigned might or could do
personally, or in their capacity as set forth below; and the undersigned does
hereby ratify and confirm all acts and things which said attorney-in-fact may do
or cause to be done by virtue of this instrument.
IN WITNESS WHEREOF, the undersigned has hereunto set their hand this 21st
day of July, 1997.
/s/ John E. Simkins, Jr.
--------------------------
Director
STATE OF Maryland
COUNTY OF Harford
This is to certify that before me personally came John E. Simkins, Jr.
known to me to be the individual described in and who executed the foregoing
Power of Attorney, and the undersigned Notary Public duly acknowledged that this
person executed this document, this 21st day of July, 1997.
/s/ Nancy Barnett
------------------------------
Notary Public
My commission expires: February 15, 1998
