<PAGE> 1
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
PIEDMONT NATURAL GAS COMPANY, INC.
(Exact name of registrant as specified in its charter)
NORTH CAROLINA 56-0556998
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
1915 REXFORD ROAD
CHARLOTTE, NORTH CAROLINA 28233
(704) 364-3120
(Address including zip code, and telephone number,
including area code, of registrant's principal executive offices)
PIEDMONT NATURAL GAS COMPANY
EXECUTIVE LONG-TERM INCENTIVE PLAN
(Full Title of Plan)
MARTIN C. RUEGSEGGER, ESQUIRE
PIEDMONT NATURAL GAS COMPANY, INC.
VICE PRESIDENT, CORPORATE COUNSEL & SECRETARY
1915 REXFORD ROAD
CHARLOTTE, NORTH CAROLINA 28211
(704) 364-3120
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
=======================================================================================================
TITLE OF AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
SECURITIES TO TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
BE REGISTERED REGISTERED PER SHARE* PRICE* FEE
- -------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
no par value 541,651 $25.375 $13,744,394 $4,165
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</TABLE>
* Estimated pursuant to Rule 457(h) solely for the purpose of calculating the
registration fee based on the average of the high and low prices of the
Common Stock as reported on the New York Stock Exchange on August 26, 1997.
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<PAGE> 2
This Form S-8 Registration Statement covers 541,651 shares of Common
Stock, no par value (the "Common Stock"), of Piedmont Natural Gas Company, Inc.
(The "Company") issuable pursuant to the Company's Executive Long-Term Incentive
Plan (the "Plan").
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents and information, which have heretofore been
filed by the Company with the Commission pursuant to the 1933 Act or the 1934
Act, are incorporated by reference in this Prospectus and shall be deemed to be
a part hereof:
1. The Annual Report of the Company on Form 1O-K for the year
ended October 31, 1996, filed pursuant to Section 13 of the
1934 Act.
2. The Company's Quarterly Report on Form 10-Q for the quarter
ended January 31, 1997, filed pursuant to Section 13 of the
1934 Act.
3. The Company's Quarterly Report on Form 1O-Q for the quarter
ended April 30, 1997, filed pursuant to Section 13 of the
1934 Act.
4. The Company's Form 10-Q/A Amendment to Quarterly Report on
Form 10-Q dated July 3, 1997.
5. The description of the Common Stock of the Company in the
Company's Registration Statement on Form S-3 (No. 33-56425)
filed November 10, 1994.
All documents filed by the Company with the Commission pursuant to
Section 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 filing of a post-effective
amendment which indicates that all securities offered have been granted or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Prospectus and to be made a part hereof from
their respective dates of filing.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters with respect to the Plan and in connection with
the issuance of Common Stock pursuant thereto have been passed upon by Martin C.
Ruegsegger, Esq., 1915 Rexford Road, Charlotte, North Carolina 28211. Mr.
Ruegsegger is Vice President, Corporate Counsel & Secretary of the Company and
is eligible to participate in the Incentive Plan. As of August 27, 1997, Mr.
Ruegsegger owned an aggregate of 196 shares of Common Stock of the Company.
<PAGE> 3
ITEM 6. 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.
(4a) "Officer," "employee," or "agent" includes,
unless the context requires otherwise, the estate or personal
representative of a person who acted in that capacity.
(5) "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.
(6) "Party" includes an individual who was, is, or is
threatened to be made a named defendant or respondent in a
proceeding.
(7) "Proceeding" means any threatened, pending, or
completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative and whether formal
or informal.
<PAGE> 4
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
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.
<PAGE> 5
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
<PAGE> 6
(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.
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
in 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.
<PAGE> 7
(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 who are also directors or who are designated
by the Board 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 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.
<PAGE> 8
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
INDEX TO EXHIBITS
The Exhibits to this Form S-8 are listed in the accompanying Index to
Exhibits.
<PAGE> 9
ITEM 9. UNDERTAKINGS.
The undersigned Registrant hereby undertakes:
A. Post-Effective Amendments
(1) To file, during any period in which offers or sales are being made
of the securities registered hereby, a post-effective amendment to this
Registration Statement;
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(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 or Form S-8, and the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed 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 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 6 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.
<PAGE> 10
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Charlotte, State of North Carolina, on the 27th
day of August, 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
---------- ----- ----
<S> <C> <C>
/s/ JOHN H. MAXHEIM Director, Chairman of the Board,
- ------------------------------------- President and Chief Executive Officer August 27, 1997
John H. Maxheim
/s/ DAVID J. DZURICKY Senior Vice President - Finance
- ------------------------------------- (Principal Financial Officer) August 27, 1997
David J. Dzuricky
/s/ BARRY L. GUY Vice President and Controller
- ------------------------------------- (Principal Accounting Officer) August 27, 1997
Barry L. Guy
</TABLE>
By their signature, each of the following persons authorizes David J.
Dzuricky with full power of substitution, to execute in their name and on their
behalf, and to file any amendments (including, without limitations,
post-effective amendments) to this Registration Statement necessary or advisable
in the opinion of any of them to enable the Company to comply with the
Securities Act, and any rules, regulations and requirements of the commission
thereunder, in connection with the registration of the additional securities
which are the subject of this Registration Statement.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
JERRY W. AMOS* Director August 27, 1997
- -------------------------------------
Jerry W. Amos
C. M. BUTLER III* Director August 27, 1997
- -------------------------------------
C.M. Butler III
SAM J. DIGIOVANNI* Director August 27, 1997
- -------------------------------------
Sam J. DiGiovanni
JOHN W. HARRIS* Director August 27, 1997
- -------------------------------------
John W. Harris
MURIEL W. HELMS* Director August 27, 1997
- -------------------------------------
Muriel W. Helms
JOHN F. MCNAIR III* Director August 27, 1997
- -------------------------------------
John F. McNair III
NED R. MCWHERTER* Director August 27, 1997
- -------------------------------------
Ned R. McWherter
WALTER S. MONTGOMERY, JR.* Director August 27, 1997
- -------------------------------------
Walter S. Montgomery, Jr.
DONALD S. RUSSELL, JR.* Director August 27, 1997
- -------------------------------------
Donald S. Russell, Jr.
JOHN E. SIMKINS, JR.* Director August 27, 1997
- -------------------------------------
John E. Simkins, Jr.
*By: /s/ DAVID J. DZURICKY
- -------------------------------------
David J. Dzuricky
(Attorney-in-Fact)
</TABLE>
<PAGE> 11
EXHIBIT NO. DESCRIPTION
- ----------- -----------
5 OPINION OF COUNSEL
23.1 CONSENT OF MARTIN C. RUEGSEGGER, ESQ. CONTAINED IN THE OPINION,
FILED AS EXHIBIT 5 HERETO
23.2 INDEPENDENT AUDITORS' CONSENT
24.1 POWERS OF ATTORNEY
99.1 PIEDMONT NATURAL GAS COMPANY EXECUTIVE LONG-TERM INCENTIVE PLAN
<PAGE> 1
5 Opinion of Counsel regarding legality of securities being registered.
EXHIBIT 5
August 27, 1997
Piedmont Natural Gas Company, Inc.
1915 Rexford Road
Charlotte, North Carolina 28211
Re: Registration Statement on Form S-8 filed on August 27,
1997 with respect to the Offering of 541,651 Shares
of Common Stock Pursuant to the Piedmont Natural Gas
Company Executive Long-Term Incentive Plan
-----------------------------------------------------
To the Company:
The undersigned attorney has acted as counsel to Piedmont Natural Gas
Company, Inc. (the "Company"), in connection with the registration by the
Company of 541,651 shares of Common Stock (the "Securities") for the Executive
Long-Term Incentive Plan (the "Incentive Plan") as set forth in the Registration
Statement on Form S-8 (the "Registration Statement") which is being filed on the
date hereof with the Securities and Exchange Commission ("SEC") pursuant to the
Securities Act of 1933, as amended. The Securities are to be issued pursuant to
the terms and conditions of the Incentive Plan.
The undersigned is generally familiar with the corporate proceedings
and actions undertaken by the Company in connection with the proposed offering
of the Securities, and the undersigned has examined such of the corporate
records and other documents as are deemed necessary to form a basis for the
opinion hereinafter expressed. For the purposes of this opinion, the undersigned
has assumed the authenticity of all documents submitted to the undersigned as
originals and the conformity to the originals of all documents submitted to the
undersigned as copies. The undersigned has also assumed the genuineness of the
signatures of persons signing all documents in connection with which this
opinion is rendered, the authority of such persons signing on behalf of the
parties thereto, and the due authorization, execution and delivery of all
documents by the parties thereto.
This opinion shall be limited to the laws of the State of North
Carolina and the federal laws of the United States of America.
In the opinion of the undersigned, when the securities are duly issued
in accordance with the Incentive Plan as contemplated by the Registration
Statement, the Securities will have been duly and legally authorized and issued,
and will be fully paid and nonassessable when the Registration Statement shall
have been filed and effective with the SEC.
The undersigned hereby consents to the use of this opinion as an
exhibit to the Registration Statement and in the Prospectus as the attorney who
passed upon the legality of the Securities and to the filing of a copy of this
opinion as Exhibit 23.1 to the Registration Statement. By giving the foregoing
consent, the undersigned does not admit that he is within the category of
persons required to give consents pursuant to Section 7 of the Securities Act of
1933, as amended.
Sincerely,
/s/ Martin C. Ruegsegger
---------------------------------------------
Martin C. Ruegsegger
Vice President, Corporate Counsel & Secretary
Piedmont Natural Gas Company, Inc.
1915 Rexford Road
Charlotte, North Carolina 28211
<PAGE> 1
23.2 Independent Auditors' Consent
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-8 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, which is part of
the Registration Statement.
DELOITTE & TOUCHE LLP
Charlotte, North Carolina
August 27, 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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/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 28th day of February, 1997.
/s/ DEBORAH 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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February,1997.
/s/ C. M. BUTLER III
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This is to certify that before me personally came C. M. BUTLER 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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February,1997.
/s/ SAM J. DIGIOVANNI
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/s/ JOHN W. HARRIS
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This is to certify that before me personally came JOHN 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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/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 February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February,1997.
/s/ NED R. MCWHERTER
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/s/ JOHN F. MCNAIR III
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/s/ WALTER S. MONTGOMERY, JR.
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
This is to certify that before me personally came WALTER 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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/s/ DONALD S. RUSSELL, JR.
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<PAGE> 10
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-8 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 541,651 shares of Common Stock of the Company for the Executive
Long-Term Incentive Plan, 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 February.
/s/ JOHN E. SIMKINS, JR.
------------------------------
Director
STATE OF NORTH CAROLINA
COUNTY OF MECKLENBURG
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 28th day of February, 1997.
/s/ DEBORAH L. BRUCKI
------------------------------
Notary Public
My commission expires: December 18, 2000
<PAGE> 1
EXHIBIT 99.1
PIEDMONT NATURAL GAS COMPANY
EXECUTIVE LONG TERM INCENTIVE PLAN
(Adopted by the Board of Directors December 6, 1996)
1.0 Purpose. The purpose of the Piedmont Natural Gas Company Executive
Long Term Incentive Plan (the "Plan") is to provide executives and other key
employees (the "Executives") of Piedmont Natural Gas Company, Inc. and its
subsidiaries (the "Company") with incentive compensation conditioned upon the
achievement of financial and other performance objectives, including controlling
costs, promoting energy efficiency, providing good customer service, and
promoting safety.
2.0 Awards.
2.1 The Board of Directors (the "Board") of the Company may
grant awards of units ("Units") each year in such amounts and to such of the
eligible Executives as it may determine in its sole discretion (subject to the
limitation in Section 4.0 below).
Except as otherwise provided herein, awards will be distributed
only after the end of a performance period ("Performance Period") of two or
more years beginning with the year in which the awards are granted. The
Performance Period is to be set by the Board for each year's awards.
The percentage of the Units awarded under this Section 2.1 or
credited pursuant to Section 6.0 that will be distributed to Executives shall
depend on the levels of financial performance and other performance objectives
achieved during each year of the Performance Period; provided that the Board may
adopt one or more performance categories or eliminate all performance categories
other than financial performance. Financial performance shall be based on the
consolidated results of the Company and its subsidiaries prepared on the same
basis as the financial statements published for financial reporting purposes and
determined in accordance with Section 10.1. Other performance categories adopted
by the Board shall be based on measurements of performance as the Board shall
deem appropriate; provided that the Board, if it determines in its sole
discretion that it is necessary or advisable under the circumstances, may
determine that distribution of awards to persons employed shall be based on
financial performance and other performance categories, if any.
Distributions of the Units awarded will be based on financial
performance with results from other performance categories applied as a factor,
not exceeding one, against financial results. The annual financial and other
performance results will be averaged over the Performance Period and translated
into percentage factors according to graduated criteria established by the Board
for the entire Performance Period. The resulting percentage factors shall
determine the percentage of Units to be distributed.
No distributions of Units, based on financial performance and
other performance, shall be made if a minimum average percentage of the
applicable measurement of performance, to be established by the Board, is not
achieved for the Performance Period. The performance levels achieved for each
Performance Period and percentage of Units to be distributed shall be
conclusively determined by the Board.
2.2 Persons granted awards under the Plan are called
"Participants". The percentage of Units awarded which Participants become
entitled to receive based on the levels of performance will be determined as
soon as practicable after each Performance Period and are called "Retained
Units".
<PAGE> 2
2.3 As soon as practical after determination of the number of
Retained Units, such Retained Units shall be distributed in the form of a
combination of shares and cash consisting of a number of the Company's common
shares (the "Shares") equal to fifty percent (50%) of the number of Retained
Units and cash equal in value to fifty percent (50%) of the number of Retained
Units (determined in accordance with Section 8.6), unless a Participant elects a
greater percent distribution in shares. The Units awarded but which Participants
do not become entitled to receive shall be canceled. Retained Units shall be
distributed over a three-year period following the successful completion of each
performance cycle, with one-third being distributed during each of the three
years, and with dividend equivalent payments continuing on any undistributed
units
2.4 Notwithstanding any other provision in the Plan, the Board,
if it determines in its sole discretion that it is necessary or advisable under
the circumstances, may adopt rules pursuant to which Executives by virtue of
hire, promotion or upgrade, or transfer from another company in which the
Company has or had a direct or indirect ownership interest, or special
individual circumstances, may be granted the total award of Units or any
portion thereof, with respect to one or more Performance Periods that began in
prior years and at the time of the awards have not yet been completed.
3.0 Eligibility.
3.1 Eligibility is extended to employees of the Company who are
in active service at the time awards are granted and who are determined by
the Board to be eligible for awards under the Plan. Employees are not rendered
ineligible by reason of being a member of the Board of the Company. The Board
may grant awards to employees on leave of absence and to employees absent on
account of disability and receiving Sickness or Accident Disability Benefits who
at the time such leave of absence or disability commenced would have been
eligible, subject to such conditions, if any, as the Board may establish.
4.0 Limitations.
4.1 The aggregate number of Units which may be awarded to all
Participants under this Plan in any year shall not exceed 1/2 of 1% of the total
number of Shares outstanding at the time the Units are awarded. No award of
Units to a Participant shall entitle the Participant to any right as a
stockholder of the Company.
5.0 Special Distribution Rules.
5.1 Death. In case of the death of a Participant prior to the
end of any Performance Period, whether before or after any event set forth in
5.2 below, the number of Units awarded to the Participant for such Performance
Period shall be reduced pro rata based on the number of months remaining in the
Performance Period after the month of death. The remaining Units, reduced in the
discretion of the Board to the percentage indicated by the levels of performance
achieved prior to the date of death, if any, shall be distributed within a
reasonable time after death. All other Units awarded to the Participant for such
Performance Period shall be canceled.
5.2 Retirement Disability. If a Participant terminates employment
prior to the end of any Performance Period under circumstances entitling the
Participant to a pension or benefit under any of the following plans, the Units
awarded under this Plan and not yet distributed shall be prorated to the end of
the Plan year in which such termination occurs and distributed at the end of
the Performance Period based upon the Company's performance for such period.
The plans referenced above include:
<PAGE> 3
5.21 Normal or Early Retirement Benefits as specified
in the Company's Defined Benefit Pension Plan; and
5.22 Pensions or benefits of a similar type
substituted under any such plan or a plan substituted for, or
supplementing, any such plan.
Absence of a Participant prior to the end of any Performance
Period under circumstances not outlined above and entitling the Participant to
Sickness Allowance and/or Long Term Disability Benefits under the Company's
plan, or to a benefit of a similar type substituted under or for or
supplementing any such plan, or a benefit under a plan which the Company
determines to be comparable, shall not affect Units previously granted under the
Plan.
5.3 Resignation, Leave of Absence, Other Termination. In case of
any other termination of employment or any leave of absence of a Participant,
prior to the end of any Performance Period, all Units awarded to the Participant
with respect to any such Performance Period shall be immediately forfeited and
canceled.
5.4 Dismissal. All Units awarded to a Participant and not
previously distributed shall be forfeited and canceled if the Participant is
discharged by the Company for cause or the Board determines that the Participant
engaged in misconduct in connection with the Participant's employment with the
Company. All Units awarded to a Participant and not previously distributed in
accordance with the Plan shall be forfeited and canceled in their entirety if
the Participant, without the consent of the Company, and while employed by the
Company or after termination of such employment and prior to distribution of all
such Units, becomes associated with, employed by, renders services to, consults
with, acquires ownership of more than five percent of any class of stock of, or
acquires beneficial ownership of more than five percent of the earnings or
profits of any corporation, partnership, proprietorship, trust, or other entity
which in the Board's judgment competes directly or through any affiliate with
the Company or any subsidiary in any of their lines of business. The provisions
of this subsection 5.4 shall be effective with respect to each Participant to
the extent not prohibited by applicable law.
5.5 Change of Control. In the event of involuntary termination
of a participant in connection with, or at any time following, any Change of
Control of the Company, the participant shall be entitled to the number of units
awarded for a performance period, reduced in proportion to the number of months
remaining in the performance period after the date of termination. In connection
with this Agreement, the term "Change in Control" shall mean (1) the adoption of
a plan of merger or consolidation of the Company with any other corporation or
business association of any type as a result of which the holders of the voting
capital stock of the Company as a group would receive less than 50% of the
voting capital stock of the surviving or resulting corporation; and (2) the
acquisition of more than 20% of the voting capital stock of the Company by any
Person within the meaning of Section 13(d)(3) of the Securities Exchange Act of
1934, as amended. The term "Person" means any individual or a corporation,
partnership, trust, limited liability company, association, joint venture, pool,
syndicate, sole proprietorship, unincorporated organization or any other form of
entity not specifically listed herein.
5.6 Promotion. Upon promotion to a position or between
positions deemed by the Board to be in the eligible group, the Board may award
to the Participant the total Units, or any portion thereof, which are associated
with the new position for the current Performance Period.
5.7 Demotion. Notwithstanding any other provision of the Plan,
the Board may reduce or eliminate awards to a Participant who has been demoted,
and where circumstances warrant, may permit continued participation, proration
or early distribution, or a combination thereof, of awards which would otherwise
be canceled.
<PAGE> 4
6.0 Dividend Equivalent Units. On each record date for dividends on
Common Stock, an amount equal to the dividend payable on one share of Common
Stock will be determined and disbursed to each participant (the "Dividend
Equivalent") on or near the payment date to each participant for each unit which
has been awarded to the participant and not distributed or canceled.
7.0 Adjustments.
7.1 In the event of any stock dividend or split, recapitalization,
merger, consolidation, combination or exchange of shares, distribution to
shareholders, spin-off to shareholders, significant disposition of assets or
other similar corporate change, the Board shall be authorized to make such
adjustments, if any, that it deems appropriate in the number or kind of Units
which may thereafter be awarded, and the performance levels established under
Section 2.0 for any Performance Period not then completed; any and all such
adjustments to be conclusive and binding upon all parties concerned.
7.2 If an extraordinary change occurs during a Performance
Period which significantly alters the basis upon which the performance levels
were established under Section 2.0 for that Performance Period, to avoid
distortion in the operation of the Plan, the Board may make adjustments in such
performance levels to preserve the incentive features of the Plan, whether
before or after the end of the Performance Period, to the extent it deems
appropriate in its sole discretion, which adjustments shall be conclusive and
binding upon all parties concerned. Such changes may include, without
limitation, adoption of, or changes in, accounting practices, tax laws and
regulatory or other laws or regulations; economic changes not in the ordinary
course of business cycles; weather conditions; or compliance with judicial
decrees or other legal authorities.
8.0 Other Conditions.
8.1 No person shall have any claim to be granted an award under
the Plan and there is no obligation for uniformity of treatment of eligible
employees or Participants under the Plan. Awards under the Plan may not be
assigned or alienated.
8.2 Neither the Plan nor any action taken hereunder shall be
construed as giving to any employee the right to be retained in the employ of
the Company.
8.3 The Company shall have the right to deduct from any
distribution or payment in cash under the Plan, and the Participant or other
person receiving Shares under the Plan shall be required to pay to the Company,
any federal, state or local taxes required by law to be withheld with respect to
such distribution or payment. The number of Shares to be distributed to any
individual Participant may be reduced by the number of Shares equivalent in
value to the cash necessary to pay any withholding tax where the cash to be
distributed is not sufficient to pay such tax or the Participant may deliver to
the corporation cash sufficient to pay such taxes.
8.4 Any distribution of Shares may be delayed until the
requirements of any applicable laws or regulations or any stock exchange
requirements are satisfied. The Shares distributed under the Plan shall be
subject to such restrictions and conditions on disposition as counsel for the
Company shall determine to be desirable or necessary under applicable law.
<PAGE> 5
8.5 Distribution of Units shall occur over a three-year period
following the successful completion of each performance cycle as determined by
the Board. One-third of the Units will be distributed during each of the three
years, provided that the remaining balance of any earned but undistributed Units
shall become payable in full upon retirement at age 65. Dividend equivalent
payments under subsection 6.0 above will continue on any undistributed Units.
8.6 The value of Units distributed, whether in the form of Shares
of Common Stock or in cash, shall be the closing sales price of the Shares on
the New York Stock Exchange on the date of distribution.
8.7 Notwithstanding any other provision of the Plan, no
distributions of Units shall be made if at the time a distribution would
otherwise have been made:
8.71 The regular quarterly dividend on any
outstanding common or preferred Shares of the Company has been omitted
and not subsequently paid or there exists any default in payment of
dividends on any such outstanding Shares,
8.72 Estimated consolidated net income of the Company
for the twelve-month period preceding the month the distribution would
otherwise have been made is less than the sum of the amount of the
awards eligible for distribution under the Plan in that month plus all
dividends applicable to such period on an accrual basis, either paid,
declared or accrued at the most recently paid rate, on all outstanding
preferred and common Shares of the Company, or
8.73 The distribution would result in a default in
any agreement by which the Company is bound.
9.0 Designation of Beneficiaries. A Participant may designate a
beneficiary or beneficiaries to receive all or part of the amounts to be
distributed to the Participant under the Plan in case of death. A designation of
beneficiary may be replaced by a new designation or may be revoked by the
Participant at any time. A designation or revocation shall be on a form to be
provided for that purpose and shall be signed by the Participant and delivered
to the Company prior to the Participant's death. In case of the Participant's
death, the amounts to be distributed to the Participant under the Plan with
respect to which a designation of beneficiary has been made (to the extent it is
valid and enforceable under applicable law) shall be distributed in accordance
with the Plan to the designated beneficiary or beneficiaries. The amount
distributable to a Participant upon death and not subject to such a designation
shall be distributed to the Participant's estate. If there shall be any question
as to the legal right of any beneficiary to receive a distribution under the
Plan, the amount in question may be paid to the estate of the Participant, in
which event the Company shall have no further liability to anyone with respect
to such amount.
10.0 Plan Administration.
10.1 The Board shall have full power to administer and
interpret the Plan and to establish rules for its administration. The
determination of financial performance achieved for any Performance Period may
but need not be adjusted to reflect extraordinary financial items and
adjustments or restatements of the financial statements, in the discretion of
the Board making such determination. Any such determination shall not be
affected by subsequent adjustments or restatements. The Board and any designated
Committee of the Board in making any determination under the Plan shall be
entitled to rely on opinions, reports or statements of officers or employees of
the Company and of counsel, public accountants and other professional or expert
persons.
<PAGE> 6
10.2 The selection of Participants and granting of awards to
eligible employees and all other determinations or actions required or permitted
to be made by the Board shall be made by such Board, provided that a majority of
the Board and a majority of the directors acting in the matter are
"disinterested persons" as defined in Rules 16b-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, or by a committee of three
or more directors who are such disinterested persons designated by the Board.
10.3 The Plan shall be governed by the laws of the State of
North Carolina and applicable federal law.
11.0 Claims and Appeals. Any claim under the Plan by a Participant or
anyone claiming through a Participant shall be presented to the Compensation
Committee of the Board in the case of Participants employed by the Company. Any
person whose claim under the Plan has been denied may, within sixty days after
receipt of notice of denial, submit to the Board a written request for review of
the decision denying the claim. The Board or the Compensation Committee of the
Board shall determine conclusively for all parties all questions arising in the
administration of the Plan.
12.0 Modification or Termination of Plan. The Board may modify or
terminate the Plan, provided that no modification shall adversely affect the
rights of Participants with respect to awards previously granted under the Plan
and upon termination, the Plan shall continue to apply with respect to awards
previously granted. Any such modification shall be effective at such date as the
Board may determine. Without the approval or ratification of the holders of the
Shares, no modification shall materially increase the benefits accruing to
Participants under the Plan, materially increase the number of Units which may
be issued under the Plan, or materially modify the requirements for eligibility
for participation in the Plan.
The Vice President - Human Resources of the Company (or any successor
to that Officer's responsibilities) with the approval of the Vice President,
Corporate Counsel & Secretary of the Company (or any successor to that officer's
responsibilities) shall be authorized to make minor or administrative changes to
the Plan or changes to comply with government regulations. A modification may
affect Participants in the Plan at the time as well as future Participants.
Notwithstanding any other provision in the Plan, the Board, if it determines in
its sole discretion that it is necessary or advisable under the circumstances,
may authorize the proration or early distribution, or a combination thereof, of
Units previously awarded at any time under the Plan to any Participant in the
case of termination of the Plan or withdrawal from the Plan.
13.0 Approval and Effective Date. The effective date of this Plan shall
be the first day of January, 1997, provided the shareholders of the Company
(acting at a duly called meeting of such shareholders) approve this Plan within
twelve months before or after such effective date. If such shareholder approval
comes after such effective date, any Units granted under this Plan before the
date of such approval automatically shall be deemed to be granted subject to
such approval.
