As filed with the Securities and Exchange Commission on January 30, 1997.
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
NGC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-3248415
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) identification number)
NGC Corporation
13430 Northwest Freeway
Houston, Texas 77040
(Address, including Zip Code, of Principal Executive Offices)
NGC CORPORATION AMENDED AND RESTATED 1991 STOCK OPTION PLAN
(formerly known as the Trident NGL Holding, Inc.
Amended and Restated 1991 Stock Option Plan)
(Full title of Plan)
KENNETH E. RANDOLPH, ESQ.
13430 NORTHWEST FREEWAY, SUITE 1200
HOUSTON, TEXAS 77040
(713) 507-6400
(Name, Address, including Zip Code, and Telephone Number,
including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
==================================================================================================================
Proposed Proposed
Maximum Maximum
Amount Offering Aggregate
Title of Each Class of to be Price Per Offering Amount of
Securities to be Registered Registered(1) Share(2) Price(2) Registration Fee
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, $.01 par . . . . . . 7,700,000 $20.915 $161,045,500.00 $48,801.67
==================================================================================================================
</TABLE>
- --------
(1) Plus such indeterminate number of shares pursuant to Rule 416 as may be
issued in respect of stock splits, stock dividends and similar
transactions.
(2) Pursuant to Rule 457 under the Securities Act of 1933, as amended, the
proposed maximum aggregate offering price and the registration fee are
based upon the average of the high and low prices per share of the
Registrant's Common Stock reported on the New York Stock Exchange
Composite Tape on January 28, 1997.
Pursuant to Rule 429 under the Securities Act of 1933, the Prospectus contained
in this Registration Statement relates to Registration Statement No. 33-75044.
================================================================================
<PAGE>
EXPLANATORY NOTE
THE DOCUMENTS CONTAINING THE INFORMATION SPECIFIED IN PART I OF FORM S-8 AND
THE DOCUMENTS INCORPORATED BY REFERENCE IN THE REGISTRATION STATEMENT PURSUANT
TO ITEM 3 OF PART II OF FORM S-8, WHICH TOGETHER CONSTITUTE THE PROSPECTUS TO BE
USED FOR OFFERS OF UP TO 9,892,610 SHARES (THE "SHARES") OF THE COMMON STOCK OF
NGC CORPORATION (THE "COMPANY") PURSUANT TO THE NGC CORPORATION AMENDED AND
RESTATED 1991 STOCK OPTION PLAN (THE "PLAN"), HAVE NOT BEEN FILED AS PART OF
THIS REGISTRATION STATEMENT PURSUANT TO THE NOTE TO PART I OF FORM S-8, NOR ARE
SUCH DOCUMENTS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION EITHER AS A
PROSPECTUS OR A PROSPECTUS SUPPLEMENT PURSUANT TO RULE 424 UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). SUCH DOCUMENTS WILL BE SENT OR
GIVEN TO EMPLOYEES AS SPECIFIED BY RULE 428(B)(1) UNDER THE SECURITIES ACT. THE
REOFFER PROSPECTUS, WHICH IS FILED AS PART OF THIS REGISTRATION STATEMENT, HAS
BEEN PREPARED IN ACCORDANCE WITH THE REQUIREMENTS OF FORM S-3 AND PURSUANT TO
GENERAL INSTRUCTION C OF FORM S-8 AND MAY BE USED FOR REOFFERS OR RESALES OF THE
SHARES ACQUIRED BY PERSONS WHO MAY BE DEEMED "AFFILIATES" (AS DEFINED IN RULE
405 OF THE GENERAL RULES AND REGULATIONS UNDER THE SECURITIES ACT) OF THE
COMPANY PURSUANT TO THE EXERCISE OF OPTIONS UNDER THE PLAN.
<PAGE>
January 30, 1997
REOFFER PROSPECTUS
NGC CORPORATION
COMMON STOCK (PAR VALUE $0.01 PER SHARE)
9,892,610 SHARES OF COMMON STOCK UNDER THE NGC CORPORATION
AMENDED AND RESTATED 1991 STOCK OPTION PLAN
This Prospectus is being used in connection with the offering from time to
time by certain officers, directors and other employees or former employees
(collectively, the "Selling Stockholders") of NGC Corporation, a Delaware
corporation, and/or its subsidiaries (the "Company"), certain of whom may be
deemed "affiliates" (as defined in Section 405 of the General Rules and
Regulations under the Securities Act of 1933, as amended (the "Securities Act"))
of the Company, of up to 9,892,610 shares (the "Common Stock"), which have been
or may be acquired by them pursuant to the NGC Corporation Amended and Restated
1991 Stock Option Plan (the "Plan").
The Shares may be sold from time to time to purchasers directly by any of
the Selling Stockholders. Alternatively, the Selling Stockholders may sell the
Shares in one or more transactions (which may involve one or more block
transactions) on the New York Stock Exchange, in sales occurring in the public
market off such exchange, in separately negotiated transactions, or in a
combination of such transactions; each sale may be made either at market prices
prevailing at the time of such sale or at negotiated prices; some or all of the
Shares may be sold through brokers acting on behalf of the Selling Stockholders
or to dealers for resale by such dealers; and in connection with such sales,
such brokers or dealers may receive compensation in the form of discounts or
commissions from the Selling Stockholders and/or the purchasers of such Shares
for whom they may act as broker or agent (which discounts or commissions are not
anticipated to exceed those customary in the types of transactions involved).
The amount of Shares to be offered or sold by means of this Prospectus by any
Selling Stockholder, and any other person with whom he or she is acting in
concert for the purpose of selling securities of the Company, may be offered or
sold without any limitations. In addition, any securities covered by this
Prospectus which qualify for sale pursuant to Rule 144 under the Securities Act
may be sold under Rule 144 rather than pursuant to this Prospectus. The Company
will bear all expenses of registration incurred in connection with this
offering, but each individual Selling Stockholder will bear all brokerage
commissions and other expenses incurred by such Selling Stockholder. The Company
will not receive any of the proceeds from such sales.
The Selling Stockholders and any dealer participating in the distribution of
any of the Shares or any broker executing selling orders on behalf of the
Selling Stockholders may be deemed to be "underwriters" within the meaning of
the Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or concessions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act.
The Common Stock is traded on the New York Stock Exchange. On January 29,
1997, the closing price of the Common Stock as reported on the New York Stock
Exchange Composite Tape was $21.00 per share.
-------------------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY SUPPLEMENT HERETO. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------------------
<PAGE>
-------------------------------------
No dealer, salesman or any other person has been authorized to give any
information or to make any representations other than those contained or
incorporated by reference in this Prospectus and, if given or made, such
information or representations must not be relied upon as having been authorized
by the Company. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy securities by anyone in any jurisdiction in
which such offer or solicitation is not authorized or in which the person making
such offer or solicitation is not qualified to do so or to any person to whom it
is unlawful to make such offer or solicitation. Neither the delivery of this
Prospectus nor any sale made hereunder shall under any circumstances create any
implication that there has been no change in the affairs of the Company since
the date hereof.
-------------------------------------
TABLE OF CONTENTS
Page
Available Information.........................................................2
Incorporation of Certain Documents by Reference...............................2
Uncertainty of Forward-Looking Statements.....................................3
The Company...................................................................3
Selling Stockholders..........................................................4
Plan of Distribution..........................................................6
Experts .....................................................................6
-------------------------------------
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange 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 with the Commission can be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549 or at
the Regional Offices of the Commission located at Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511 and at 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such material may be
obtained from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates. The Commission
maintains an Internet web site that contains report, proxy and information
statements and other information regarding registrants that file electronically
with the Commission (http://www.sec.gov). Certain securities of the Company are
listed on the New York Stock Exchange.
This Prospectus constitutes a part of a Registration Statement on Form
S-8 filed by the Company with the Commission under the Securities Act. This
Prospectus omits certain of the information contained in the Registration
Statement in accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related exhibits for
further information with respect to the Company and the Shares. Statements
contained herein concerning the provisions of any document are not necessarily
complete and, in each instance, reference is made to the copy of such document
filed as an exhibit to the Registration Statement or otherwise filed with the
Commission. Each such statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K/A for the year ended
December 31, 1995, including the consolidated financial statements and schedule
of NGC and the report thereon by Arthur Andersen LLP and the financial
statements of Accord Energy Limited and the report thereon by Price Waterhouse,
as filed with the Commission on July 26, 1996, (ii) Quarterly Report on Form
10-Q/A for the three-month period ended March 31, 1996, as filed with the
Commission on July 29, 1996, (iii) Quarterly Report on Form 10-Q for the
six-month period ended June 30, 1996, as filed with the Commission on August 14,
1996, (iv) Quarterly Report on Form 10-Q for the nine-month period ended
September 30, 1996, as filed with the Commission on November 14, 1996, (v)
Current Reports on Form 8-K dated January 21, 1996, July 26, 1996, August 21,
1996, August 31, 1996, October 9, 1996, October 11, 1996 and October 16, 1996
and (vi) the description
2
<PAGE>
of the Common Stock contained in Item 1 of the Company's Form 8-A/A-1 for
Registration of Certain Classes of Securities pursuant to Section 12(b) or 12(g)
of the Exchange Act as filed with the Commission on March 13, 1995, are each
hereby incorporated by reference herein.
All reports and other documents filed by the Company pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date
of this Prospectus and prior to the filing of a post-effective amendment which
indicates that all securities offered have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated herein by
reference and to be a part hereof from their respective dates of filing. Any
statement contained herein or in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein 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 Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any and
all of the documents referred to above which have been incorporated in this
Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such copies should be directed to NGC Corporation, 13430 Northwest
Freeway, Suite 1200, Houston, Texas 77040, Attention: Investor Relations: (713)
507-6400.
UNCERTAINTY OF FORWARD-LOOKING STATEMENTS
This Prospectus, including any documents that are incorporated by
reference as set forth in "Incorporation of Certain Documents by Reference"
contains forward-looking statements. Such statements are typically indicated by
words or phrases such as "anticipate," "estimate," "projects," "management
believes," "the Company believes" and similar words or phrases. Such statements
are subject to certain risks, uncertainties or assumptions. Should one or more
of these risks or uncertainties materialize, or should underlying assumptions
prove incorrect, actual results may vary materially from those anticipated,
estimated or projected. While various factors will influence the outcome of
those forward-looking statements, among the key factors that may have a direct
bearing on the Company's results of operations and financial condition are: (i)
competitive practices in the industries in which the Company competes, (ii)
fluctuations in energy commodity prices which have not been properly hedged or
which are inconsistent with the Company's net open position in its energy
marketing activities, (iii) environmental liabilities to which the Company may
be subject in the future which are not covered by an indemnity or insurance,
(iv) the ability of the Company to successfully integrate the operations of the
Company and the businesses contributed to the Company by Chevron U.S.A. Inc. and
certain of its affiliates on August 31, 1996 and (v) the impact of current and
future laws and governmental regulations (particularly environmental
regulations) affecting the energy industry in general and the Company's
operations in particular. Additional factors to consider in assessing the risks
and uncertainties of such forward-looking statements are detailed in the
Company's other filings with the Commission.
-------------------------------------
THE COMPANY
The Company is a leading North American aggregator, processor,
transporter and marketer of energy products and services. NGC's integrated asset
base includes, among other things, interests in approximately 15,000 miles of
natural gas gathering and transmission pipelines, 56 gas processing plants,
three natural gas liquids ("NGLs") fractionation facilities, 60 million barrels
of NGL storage capacity, three NGL import/export marine terminals, ten other NGL
terminals and approximately 2,100 miles of NGL pipelines. NGC is also the
leading North American marketer of natural gas and NGLs and a leading U.S.
marketer of electric power.
NGC's business strategy, which it refers to as the "Energy Store"
concept, embraces a commercial approach to integrating commodity marketing, risk
management and production activities with the goal of maximizing value through a
unified operation. Acting in the role of a large scale aggregator, processor,
marketer and reliable supplier of multiple energy products and services, NGC is
able to customize or package products and services to meet individual client
specifications. NGC's management believes that the size and scope of NGC's
operations allow it to be cost-competitive and still provide the full complement
of services that energy customers demand while providing NGC cross-fuel and
interregional profit opportunities not readily available to smaller or single
commodity competitors.
3
<PAGE>
The Company is a holding company which operates through its
subsidiaries. On August 31, 1996, the Company completed a strategic combination
(the "Chevron Combination") with Chevron U.S.A. Inc. and certain Chevron
affiliates ("Chevron") pursuant to which Chevron contributed substantially all
of its midstream assets (the "Contribution"), including substantially all of the
assets comprising Warren Petroleum Company and Chevron's Natural Gas Business
Unit and an undivided 49% interest in those assets that constitute the West
Texas LPG Pipeline, into Midstream Combination Corp. ("Midstream"), a Delaware
corporation formed for purposes of the transaction. Immediately following the
Contribution, NGC, which was formed effective March 14, 1995, pursuant to a
strategic business combination between Natural Gas Clearinghouse
("Clearinghouse") and Trident NGL Holding, Inc., was merged with and into
Midstream and renamed NGC Corporation. In connection with the Chevron
Combination, NGC and Chevron and certain of their affiliates also entered into
certain ancillary supply, sales and service agreements with respect to natural
gas, NGLs and electricity, pursuant to which, among other things, NGC will have
the right to (i) purchase and/or market substantially all the natural gas and
NGLs produced or controlled by Chevron refineries and chemical plants in the
United States and (ii) participate in existing and future opportunities to
provide electricity to United States facilities of Chevron and its chemical
company affiliate, as well as to purchase or market excess electricity generated
by those facilities. The Company believes that its strategic alliances with
Chevron will further enhance NGC's position as a leading marketer of energy
products and its business strategy of being an "Energy Store" providing creative
energy solutions for its customers.
Following the Chevron Combination, British Gas plc ("British Gas"), NOVA
Corporation ("NOVA") and Chevron each directly or indirectly owns approximately
25.8% of the outstanding shares of Common Stock of the Company. In addition,
Chevron owns all of the outstanding shares of the Company's Series A
Participating Preferred Stock, which are convertible into shares of the
Company's Common Stock upon the occurrence of certain events. If all of the
shares of Series A Participating Preferred Stock were converted into shares of
the Company's Common Stock, British Gas and NOVA would each own approximately
24.5% of the Common Stock and Chevron would own approximately 29.6% of the
Common Stock outstanding as of the date of this Prospectus.
The principal executive offices of the Company are located at 13430
Northwest Freeway, Suite 1200, Houston, Texas 77040, and the telephone number of
that office is (713) 507-6400.
SELLING STOCKHOLDERS
This Prospectus relates to shares of Common Stock that are subject to
options granted under the Plan that may be acquired by certain directors,
officers and/or employees of the Company who may be deemed to be affiliates of
the Company. The address of each Selling Stockholder is c/o NGC Corporation,
13430 Northwest Freeway, Suite 1200, Houston, Texas 77040.
The following table sets forth the name and position over the past three
years with the Company of each Selling Stockholder and (a) the number of shares
of Common Stock which each Selling Stockholder beneficially owned as of January
29, 1997 (including shares obtainable under options exercisable within sixty
(60) days of January 29, 1997); (b) the number of shares of Common Stock which
each Selling Stockholder has acquired pursuant to the Plan or may acquire
pursuant to the exercise of options granted to such Selling Stockholder under
the Plan, some or all of which shares may be sold from time to time pursuant to
this Prospectus; (c) the number of shares obtainable under options exercisable
within sixty (60) days of January 29, 1997; and (d) the number of shares of
Common Stock and the percentage, if 1% or more, of the total class of Common
Stock outstanding to be beneficially owned by each Selling Stockholder following
this offering, assuming the exercise of all options (whether or not exercisable
within sixty days of the date hereof) heretofore granted to such Selling
Stockholder upon exercise of the options granted to the Selling Stockholder
pursuant to the Plan.
This table reflects all Selling Stockholders who are eligible to resell
and the number of Shares available to be resold after exercise of the options
granted to the Selling Stockholders pursuant to the Plan, whether or not they
have a present intent to do so. As of January 29,1997, no stock options granted
under the Plan to any Selling Stockholder had been exercised.
4
<PAGE>
<TABLE>
<CAPTION>
OPTIONS GRANTED
UNDER THE PLAN AMOUNT/PERCENTAGE
SELLING STOCKHOLDERS SHARES BENEFICIALLY SHARES COVERED EXERCISABLE WITHIN SHARES BENEFICIALLY
AND POSITION WITH THE OWNED AS OF BY THIS 60 DAYS OF OWNED AFTER
COMPANY JANUARY 29, 1997 PROSPECTUS JANUARY 29, 1997 THIS OFFERING
- -------------------------------------------- ------------------- --------------- ----------------- ------------------
<S> <C> <C> <C> <C>
Charles L. Watson .......................... 7,168,857 111,740 0 7,168,857
Chairman of the Board, Chief 4.8%
Executive Officer and Director
Thomas M. Matthews ......................... -- -- 0 0
President *
Stephen W. Bergstrom ....................... 2,300,231 50,280 0 2,300,231
Senior Vice President and Director 1.5%
James H. Current, Sr ....................... 1,500 14,450 0 1,500
Senior Vice President *
Stephen A. Furbacher ....................... -- 27,090 0 0
Senior Vice President *
H. Keith Kaelber ........................... 381,545 25,062(1) 8,354(1) 373,191
Senior Vice *
President and Chief
Financial Officer
Kenneth E. Randolph ........................ 1,166,101 53,710 8,874 1,157,227
Senior Vice *
President, General
Counsel and Secretary
Michael B. Barton .......................... 3,333 21,740 3,333 0
Vice President *
John J. Ogrizovich.......................... 100 10,840 0 100
Vice President and Chief *
Information Officer
</TABLE>
There is no assurance that any of the Selling Stockholders will sell any or
all of the Shares offered by them hereunder. This Prospectus may be amended or
supplemented from time to time to add or delete to or from the list of Selling
Stockholders affiliates of the Company who have acquired or will acquire shares
of Common Stock under the Plan, or who have disposed of such shares of Common
Stock, and to update information concerning the holdings of options under the
Plan by any of the Selling Stockholders.
- ------------
* Less than one (1%) percent.
(1) Mr. Kaelber's employment with the Company will terminate January 31, 1997,
pursuant to his voluntary retirement. The Company believes that Mr.
Kaelber will exercise the 8,354 options that are currently exercisable on
or prior to January 31, 1997. Pursuant to the terms of the Plan, the
options relating to the remaining 16,708 shares covered by this Prospectus
shall terminate on January 31, 1997.
5
<PAGE>
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the sale of any Shares sold by
the Selling Stockholders as part of this offering. The Shares may be sold from
time to time to purchasers directly by any of the Selling Stockholders.
Alternatively, the Selling Stockholders may sell the Shares in one or more
transactions (which may involve one or more block transactions) on the New York
Stock Exchange, in sales occurring in the public market off such exchange, in
separately negotiated transactions, or in a combination of such transactions;
each sale may be made either at market prices prevailing at the time of such
sale or at negotiated prices; some or all of the Shares may be sold through
brokers acting on behalf of the Selling Stockholders or to dealers for resale by
such dealers; and in connection with such sales, such brokers or dealers may
receive compensation in the form of discounts or commissions from the Selling
Stockholders and/or the purchasers of such Shares for whom they may act as
broker or agent (which discounts or commissions are not anticipated to exceed
those customary in the types of transactions involved). The amount of Shares to
be offered or sold by means of this Prospectus by any Selling Stockholder, and
any other person with whom he or she is acting in concert for the purpose of
selling securities of the Company, may be offered or sold without any
limitations. In addition, any securities covered by this Prospectus which
qualify for sale pursuant to Rule 144 under the Securities Act may be sold under
Rule 144 rather than pursuant to this Prospectus. The Company will bear all
expenses of registration incurred in connection with this offering, but each
individual Selling Stockholder will bear all brokerage commissions and other
expenses incurred by such Selling Stockholder.
The Selling Stockholders and any dealer participating in the distribution of
any of the Shares or any broker executing selling orders on behalf of the
Selling Stockholders may be deemed to be "underwriters" within the meaning of
the Securities Act, in which event any profit on the sale of any or all of the
Shares by them and any discounts or concessions received by any such brokers or
dealers may be deemed to be underwriting discounts and commissions under the
Securities Act.
Any broker or dealer participating in any distribution of Shares in
connection with this offering may be deemed to be an "underwriter" within the
meaning of the Securities Act and will be required to deliver a copy of this
Prospectus, including a Prospectus Supplement, if required, to any person who
purchases any of the Shares from or through such broker or dealer.
In order to comply with the securities law of certain states, if applicable,
the Shares will be sold only through registered or licensed brokers or dealers.
In addition, in certain states, the Shares may not be sold unless they have been
registered or qualified for sale in such state or an exemption from such
registration or qualification requirement is available and is compiled with.
EXPERTS
The consolidated financial statements and schedule of NGC Corporation and
subsidiaries, incorporated by reference in this Registration Statement, have
been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report with respect thereto, and are incorporated herein in
reliance upon the authority of said firm as experts in accounting and auditing
in giving said report. Reference is made to said report, which includes an
explanatory paragraph with respect to the change in the method of accounting for
fixed-price natural gas transactions to the mark-to-market method of accounting.
The financial statements of Accord Energy Limited as of December 31, 1995 and
1994 and for the year ended December 31, 1995 and the period from December 2,
1993 to December 31, 1994, incorporated in this Prospectus by reference to the
Annual Report on Form 10-K/A of NGC Corporation for the year ended December 31,
1995, have been so incorporated in reliance on the report of Price Waterhouse,
Chartered Accountants and Registered Auditors, given on the authority of said
firm as experts in auditing and accounting.
6
<PAGE>
PART II
Information Required in the Registration Statement
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE
The Company's (i) Annual Report on Form 10-K/A for the year ended December
31, 1995, including the consolidated financial statements and schedule of NGC
and the report thereon by Arthur Andersen LLP and the financial statements of
Accord Energy Limited and the report thereon by Price Waterhouse, as filed with
the Commission on July 26, 1996, (ii) Quarterly Report on Form 10-Q/A for the
three-month period ended March 31, 1996, as filed with the Commission on July
29, 1996, (iii) Quarterly Report on Form 10-Q for the six-month period ended
June 30, 1996, as filed with the Commission on August 14, 1996, (iv) Quarterly
Report on Form 10-Q for the nine-month period ended September 30, 1996, as filed
with the Commission on November 14, 1996, (v) Current Reports on Form 8-K dated
January 21, 1996, July 26, 1996, August 21, 1996, August 31, 1996, October 9,
1996, October 11, 1996 and October 16, 1996 and (vi) the description of the
Common Stock contained in Item 1 of the Company's Form 8-A/A-1 for Registration
of certain Classes of Securities pursuant to Section 12(b) or 12(g) of the
Exchange Act as filed with the Commission on March 13, 1995, are each hereby
incorporated by reference herein.
All reports and other documents filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act subsequent to the date of this
Prospectus and prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated herein by reference
and to be a part hereof from their respective dates of filing. Any statement
contained herein or in a document, all or a portion of which is incorporated or
deemed to be incorporated by reference herein, shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein 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 Company hereby undertakes to provide without charge to each person,
including any beneficial owner, to whom a copy of this Prospectus has been
delivered, on the written or oral request of any such person, a copy of any and
all of the documents referred to above which have been incorporated in this
Prospectus by reference, other than exhibits to such documents unless such
exhibits are specifically incorporated by reference into such documents.
Requests for such copies should be directed to NGC Corporation, 13430 Northwest
Freeway, Suite 1200, Houston, Texas 77040, Attention: Investor Relations: (713)
507-6400.
ITEM 4. DESCRIPTION OF SECURITIES.
Not Applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not Applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Restated Certificate of Incorporation of the Company (the "Restated
Certificate of Incorporation") provides for the indemnification of directors and
officers of the Company to the extent permitted by the General Corporation Law
of the State of Delaware ("Delaware Code"). Pursuant to Section 145 of the
Delaware Code, the Company generally has the power to indemnify its present and
former directors and officers against expenses incurred by them in connection
with any suit to which such directors and officers are, or are threatened to be
made, a party by reason of their serving in such positions, so long as they
acted in good faith and in a manner they reasonably believed to be in, or not
opposed to, the best interests of the Company, and with respect to any criminal
action, they had no reasonable cause to believe their conduct was unlawful.
Indemnification is not available if such person is adjudged to be liable to
the Company, unless and only to the extent
II-1
<PAGE>
the court in which such action is brought determines that, despite the
adjudication of liability, and in view of all the circumstances, the person is
reasonably and fairly entitled to indemnification for such expenses as the court
shall deem proper. The Company has the power to purchase and maintain insurance
for such persons. The statute also expressly provides that the power to
indemnify authorized thereby is not exclusive of any rights granted under any
bylaw, agreement, vote of stockholders or disinterested directors, or otherwise.
The above discussion of the Restated Certificate of Incorporation of the
Company and of Section 145 of the Delaware Code is not intended to be exhaustive
and is qualified in its entirety by such Restated Certificate of Incorporation
and the Delaware Code.
Pursuant to the Plan, no member or former member of the Board of Directors or
the options committee shall be liable for any action or determination made in
good faith with respect to the Plan or any stock option granted thereunder.
The Company has purchased liability insurance policies covering its directors
and officers to insure against losses that are not covered by the
indemnification of directors and officers by the Company, as discussed above.
Covered losses include those arising from any breach of duty, neglect, error,
misstatement, misleading statement, omission or other act done or wrongfully
attempted by the directors or officers in their respective capacities as such.
The Company is also insured against losses incurred as a result of indemnity
payments to any director or officer.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit Index
on page E-1 of this Registration Statement, which Index is incorporated herein
by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in the periodic reports filed by the registrant pursuant
to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-2
<PAGE>
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 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.
(h) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers
and controlling persons of the registrant pursuant to the
foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such
liabilities (other than the payment by the registrant of
expenses incurred or paid by a director, officer, or
controlling person of the registrant in the successful defense
of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the
securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it
is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that is 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 Houston, State of Texas, on January 29, 1997.
NGC CORPORATION
BY: /s/ C. L. WATSON
C. L. WATSON
CHAIRMAN OF THE BOARD, CHIEF EXECUTIVE
OFFICER AND DIRECTOR
Each person whose signature appears below hereby appoints C.L. Watson,
Kenneth R. Randolph and Lisa Q. Metts as his true and lawful attorneys-in-fact
and agents, with full power of substitution and resubstitution, for him and in
his name, place and stead, in any and all capacities, to sign any and all
amendments (including post-effective amendments) to this Registration Statement,
and to file the same, with all exhibits thereto and all other documents in
connection therewith, with the Securities and Exchange Commission, granting unto
said attorneys-in-fact and agents full power and authority to do and perform
each and every act and anything appropriate or necessary to be done, as fully
and for all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorneys-in-fact and agents or their
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
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>
NAME AND SIGNATURE TITLE DATE
- ------------------ ----- ----
<S> <C> <C>
/s/ C. L. WATSON Chairman of the Board, January 29, 1997
C.L. Watson Chief Executive Officer and
Director (Principal Executive
Officer)
/s/ H. KEITH KAELBER Senior Vice President and January 29, 1997
H. Keith Kaelber Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
Officer)
/s/ STEPHEN W. BERGSTROM Senior Vice President January 29, 1997
Stephen W. Bergstrom and Director
/s/ STEPHEN J. BRANDON Director January 29, 1997
Stephen J. Brandon
II-4
<PAGE>
/s/ P. NICHOLAS WOOLLACOTT Director January 29, 1997
P. Nicholas Woollacott
Director
David R. Varney
Director
C. Kent Jespersen
/s/ JEFFREY M. LIPTON Director January 29, 1997
Jeffery M. Lipton
Director
Albert Terence Poole
/s/ DARALD W. CALLAHAN Director January 29, 1997
Darald W. Callahan
/s/ DONALD L. PAUL Director January 29, 1997
Donald L. Paul
/s/ PETER J. ROBERTSON Director January 29, 1997
Peter J. Robertson
Director
Daniel L. Dienstbier
/s/ J. OTIS WINTERS Director January 29, 1997
J. Otis Winters
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
Exhibits:
The following instruments and documents are included as exhibits to this
Registration Statement.
EXHIBIT
NUMBER DESCRIPTION
- ------- ----------
+4.1 Restated Certificate of Incorporation of NGC
Corporation
4.2 Bylaws of NGC Corporation (1)
4.3 NGC Corporation Amended and Restated 1991 Stock
Option Plan (2)
4.4 Stockholders Agreement, dated
May 22, 1996, among BG Holdings, Inc.,
NOVA Gas Services (U.S.) Inc.
and Chevron U.S.A. Inc. (2)
+5.1 Opinion of Counsel
+23.1 Consent of Arthur Andersen LLP
+23.2 Consent of Price Waterhouse, Chartered Accountants
and Registered Auditors
23.3 Consent of Vinson & Elkins
L.L.P. (included in Exhibit 5.1)
24.1 Power of Attorney (included in the signature
page to the Registration Statement)
- ------------
+ Filed herewith.
(1) Incorporated by reference to exhibits to the Quarterly Report on
Form 10-Q of NGC Corporation for the quarterly period ended
September 30, 1996.
(2) Incorporated by reference to exhibits to the Registration Statement
of Midstream Combination Corp. on Form S-4, Registration No.
333-09419.
E-1
EXHIBIT 4.1
RESTATED CERTIFICATE OF INCORPORATION
OF
NGC CORPORATION
NGC Corporation hereby adopts a Restated Certificate of Incorporation and
states as follows:
1. The present name of the corporation is "NGC Corporation." The
corporation was originally incorporated under the name Midstream Combination
Corp. pursuant to its original Certificate of Incorporation, which was filed
with the Secretary of State of the State of Delaware on May 22, 1996;
2. The Restated Certificate of Incorporation (i) was duly adopted in
accordance with Section 245 of the Delaware General Corporation Law by the Board
of Directors without a vote of stockholders; (ii) only restates and integrates
and does not further amend the provisions of the Certificate of Incorporation of
the corporation as heretofore amended by that certain Certificate of Merger
merging NGC Corporation with and into Midstream Combination Corp., which filed
with the Secretary of State of the State of Delaware on August 30, 1996; and
(iii) there is no discrepancy between the provisions of the Certificate of
Incorporation as so amended and the provisions of the Restated Certificate of
Incorporation; and
3. The Restated Certificate of Incorporation restates and integrates the
Certificate of Incorporation as heretofore amended by the Certificate of Merger
as follows:
FIRST: The name of the corporation is NGC Corporation (the "Corporation").
SECOND: The registered office of the Corporation in the State of Delaware
is located at Corporation Service Company, 1013 Centre Road, in the City of
Wilmington, County of New Castle. The name of the registered agent of the
Corporation at such address is Corporation Service Company.
THIRD: The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of Delaware.
<PAGE>
FOURTH:
A. CAPITAL STOCK. The total number of shares of stock which the
Corporation shall have authority to issue is 450,000,000 shares, divided into
two classes as follows: (i) 50,000,000 shares of Preferred Stock, par value
$0.01 per share ("Preferred Stock"); and (ii) 400,000,000 shares of Common
Stock, par value $0.01 per share ("Common Stock").
The designations and the powers, preferences, rights, qualifications,
limitations, and restrictions of the Preferred Stock and the Common Stock of the
Corporation are as follows:
B. PROVISIONS RELATING TO THE PREFERRED STOCK.
1. The Preferred Stock may be issued from time to time in one or
more series, the shares of each series to have such designations and powers,
preferences, and rights, and qualifications, limitations, and restrictions
thereof as are stated and expressed herein and in the resolution or resolutions
providing for the issuance of such series adopted by the board of directors of
the Corporation as hereafter prescribed.
2. Authority is hereby expressly granted to and vested in the board
of directors of the Corporation to authorize the issuance of the Preferred Stock
from time to time in one or more series, and with respect to each such series of
the Preferred Stock, to fix and state by the resolution or resolutions from time
to time adopted providing for the issuance thereof the following:
(i) whether or not such series is to have voting rights, full,
special, or limited, or is to be without voting rights, and whether or not such
series is to be entitled to vote as a separate class either alone or together
with the holders of one or more other series or class of stock;
(ii) the number of shares to constitute such series and the
designations thereof;
(iii) the preferences, and relative, participating, optional, or
other special rights, if any, and the qualifications, limitations, or
restrictions thereof, if any, with respect to any such series;
(iv) whether or not the shares of any such series shall be
redeemable at the option of the Corporation or the holders thereof or upon
the happening of any specified event, and, if redeemable, the redemption
price or prices (which may be payable in the form of cash, notes,
securities, or other property), and the time or times at which, and the
terms and conditions upon which, such shares shall be redeemable and the
manner of redemption;
(v) whether or not the shares of such series shall be subject to the
operation of retirement or sinking funds to be applied to the purchase or
redemption
2
<PAGE>
of such shares for retirement, and, if such retirement or sinking fund or
funds are to be established, the annual amount thereof, and the terms and
provisions relative to the operation thereof;
(vi) the dividend rate, whether dividends are payable in cash, stock
of the Corporation, or other property, or a combination thereof, the
conditions upon which and the times when such dividends are payable, the
preference to or the relation to the payment of dividends payable on any
other class or classes or series of stock, whether such dividends shall be
cumulative or noncumulative, and if cumulative, the date or dates from
which such dividends shall accumulate;
(vii) the preferences, if any, and the amounts thereof which the
holders of any such series shall be entitled to receive upon the voluntary
and involuntary dissolution of, or upon any distribution of the assets of,
the Corporation;
(viii) whether or not the shares of any such series, at the option
of the Corporation or the holder thereof or upon the happening of any
specified event, shall be convertible into or exchangeable for the shares
of any other class or classes or of any other series of the same or any
other class or classes of stock, securities, or other property of the
Corporation and the conversion price or prices or ratio or ratios or the
rate or rates at which such exchange may be made, with such adjustments,
if any, as shall be stated and expressed or provided for in such
resolution or resolutions; and
(ix) such other special rights and provisions with respect to any
such series as may to the board of directors of the Corporation seem
advisable.
3. The shares of each series of the Preferred Stock may vary from the
shares of any other class or series thereof in any or all of the foregoing
respects. The board of directors of the Corporation may increase the number of
shares of the Preferred Stock designated for any existing series by a resolution
adding to such series authorized and unissued shares of the Preferred Stock not
designated for any other series. The board of directors of the Corporation may
decrease the number of shares of the Preferred Stock designated for any existing
series by a resolution, subtracting from such series unissued shares of the
Preferred Stock designated for such series, and the shares so subtracted shall
become authorized, unissued and undesignated shares of the Preferred Stock.
C. PROVISIONS RELATING TO THE SERIES A PARTICIPATING PREFERRED STOCK.
1. DESIGNATION AND AMOUNT. The shares of such series of Preferred Stock
shall be designated as "Series A Participating Preferred Stock" (the "Series A
Preferred"), $0.01 par value per share, and the number of shares of Preferred
Stock constituting such series shall be 8,000,000.
3
<PAGE>
2. DIVIDENDS AND DISTRIBUTION. Subject to the provision for adjustment
hereinafter set forth, the holders of the Series A Preferred shall be entitled
to receive dividends or distributions equal per share in amount and kind to any
dividend or distribution payable on shares of Common Stock, when and as the same
are declared by the Board of Directors out of any funds legally available
therefor and paid to the holders of Common Stock, and no dividend may be
declared and paid on Common Stock unless an identical dividend or distribution
is declared and paid concurrently on Series A Preferred. If, however, at any
time after the date of original issuance of Series A Preferred, the Corporation
shall subdivide or reclassify the outstanding shares of Common Stock into a
greater number of shares of Common Stock or combine or reclassify the
outstanding shares of Common Stock into a smaller number of shares of Common
Stock, then, and in each such case, the amount to which holders of the Series A
Preferred were entitled immediately prior to such event shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number of
shares of the Common Stock outstanding immediately after such event, and the
denominator of which is the number of shares of the Common Stock outstanding
immediately prior to such event. The Corporation will have the right to issue
shares of capital stock that are senior or junior to or on a parity with the
Series A Preferred with respect to dividends without the approval or consent of
the holders of Series A Preferred.
3. VOTING RIGHTS. Except as provided by law, the holders of the Series A
Preferred shall have no voting rights on any matter.
4. REDEMPTION. The shares of the Series A Preferred shall not be
redeemable.
5. LIQUIDATION PREFERENCE. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, no distribution
shall be made to the holders of Common Stock or any stock ranking junior (either
as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred unless, prior thereto, the holders of the Series A Preferred shall
have received $1.00 per share. All assets of the Corporation available for
distribution after the liquidation preferences are fully met of the Series A
Preferred and any shares senior to or on a parity with the Series A Preferred
with respect to liquidation preferences shall be distributed ratably among the
holders of the Series A Preferred and Common Stock in proportion to the number
of shares of Series A Preferred and Common Stock outstanding at the time of such
liquidation, dissolution or winding up of the Corporation. The Corporation will
have the right to issue shares of capital stock that are senior or junior to or
on a parity with the Series A Preferred with respect to the liquidation,
winding-up or dissolution of the Corporation without the approval or consent of
the holders of the Series A Preferred.
6. CONVERSION. The Series A Preferred may be converted at the option of
the holder thereof, or shall be converted automatically without any action on
the part of the holder thereof, into shares of Common Stock, on the terms and
conditions set forth in this Section 6. For purposes of this section 6, the term
"affiliate" shall mean any corporation, partnership or other entity that is an
"affiliate" within the meaning of the regulations
6
<PAGE>
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
as such regulations are in effect on the date hereof, and the term "Person"
shall mean any individual, firm, corporation, partnership, association, trust,
joint venture, legal entity, political subdivision or instrumentality or other
organization.
(A) RIGHT TO CONVERT. Subject to the provisions for adjustment
hereinafter set forth, each share of the Series A Preferred shall be
convertible, at the option of the holder, at any time after the date of issuance
of such share, into one share of Common Stock as follows:
(i) To the extent necessary (a) to avoid dilution of the
holder's percentage ownership of the issued Common Stock, provided that,
with respect to dilution resulting from the issuance of additional
compensatory options as approved by not less than eighty-five percent
(85%) of the entire Board of Directors, the holder would have no such
conversion right so long as its ownership of Common Stock would still be
greater than twenty percent (20%) of the issued Common Stock, assuming for
this purpose that all shares of Common Stock subject to currently
exercisable options and warrants were issued and outstanding, or (b) to
maintain a percentage ownership of the issued Common Stock at least equal
to that of the then largest other stockholder of the Corporation;
(ii) To the extent necessary, if any Person other than the
holder of Series A Preferred or an affiliate of such holder makes a tender
offer for Common Stock and such holder desires to tender the shares of the
Series A Preferred in the same proportion as it tenders Common Stock;
(iii) Upon approval by the stockholders of the Corporation of
any merger or recapitalization proposal in which the Series A Preferred
would be treated differently than Common Stock; and
(iv) Upon approval by the Corporation's stockholders of any
(a) sale of all or substantially all of the assets of the Corporation or
(b) liquidation, dissolution or winding up of the Corporation.
(B) AUTOMATIC CONVERSION. Subject to the provisions for adjustment
hereinafter set forth, each share of the Series A Preferred shall be
automatically converted into one share of Common Stock upon a sale or other
transfer (by operation of law, merger or otherwise) by the holder of such shares
to any Person other than an affiliate of the holder.
(C) CONVERSION RATE ADJUSTMENTS. The Conversion Rate of the Series A
Preferred shall be subject to adjustment as hereinafter set forth. If at any
time the Corporation shall subdivide or reclassify the outstanding shares
5
<PAGE>
of Common Stock into a greater number of shares of Common Stock or combine or
reclassify the outstanding shares of Common Stock into a smaller number of
shares of Common Stock, then, and in each such case, the number of shares of
Common Stock into which each share of the Series A Preferred is convertible
shall be adjusted so that the holder of each share thereof shall be entitled to
receive, upon the conversion thereof, the number of shares of Common Stock which
the holder of a share of the Series A Preferred would have been entitled to
receive after the happening of any and all of the events described above had
such share been converted into Common Stock immediately prior to the happening
of such event or the record date therefor, whichever is earlier.
(D) MECHANICS OF CONVERSION. The holder of any shares of the Series
A Preferred may exercise its option to convert such shares into shares of Common
Stock by surrendering for such purpose to the Corporation, at its principal
office or at such other office or agency maintained by the Corporation for that
purpose, a certificate or certificates representing the shares of the Series A
Preferred to be converted accompanied by a written notice stating that such
holder elects to convert all or a specified whole number of such shares in
accordance with the provisions of this Section 6 and specifying the name or
names in which such holder wishes the certificate or certificates for shares of
Common Stock to be issued. In case such notice shall specify a name or names
other than that of such holder, such notice shall be accompanied by payment of
all transfer taxes payable upon the issuance of shares of Common Stock in such
name or names. As promptly as practicable, and in any event within five business
days after the surrender of such certificates and the receipt of such notice
relating thereto and, if applicable, payment of all transfer taxes, the
Corporation shall deliver or cause to be delivered (i) certificates representing
the number of validly issued, fully paid and nonassessable shares of Common
Stock of the Corporation to which the holder of the Series A Preferred so
converted shall be entitled (and/or any other consideration to which the holders
of such shares of Common Stock would then be entitled) and (ii) if less than the
full number of shares of the Series A Preferred evidenced by the surrendered
certificate or certificates are being converted, a new certificate or
certificates, for the number of shares evidenced by such surrendered certificate
or certificates less the number of shares converted. Such conversions shall be
deemed to have been made upon receipt by the Corporation of such notice and such
surrendered certificate or certificates representing the shares of the Series A
Preferred to be converted, so that the rights of the holder thereof shall cease
except for the right to receive Common Stock of the Corporation in accordance
herewith (and/or any other consideration to which the holders of such shares of
Common Stock would then be entitled), and such holder shall be treated for all
purposes as having become the record holder of such Common Stock of the
Corporation at such time.
D. PROVISIONS RELATING TO THE COMMON STOCK.
1. Except as otherwise required by law, and subject to any special
voting rights which may be granted any series of Preferred Stock in the board of
directors resolution which creates such series, each holder of Common Stock
shall be entitled to one vote for each share of Common Stock standing in such
other holder's name on the records of the Corporation on each matter submitted
to a vote of the stockholders.
6
<PAGE>
2. Subject to the rights of the holders of the Preferred Stock, the
holders of the Common Stock shall be entitled to receive when, as, and if
declared by the board of directors of the Corporation, out of funds legally
available therefor, dividends payable in cash, stock, or otherwise.
3. Upon any liquidation, dissolution, or winding up of the
Corporation, whether voluntary or involuntary, and after the holders of the
Preferred Stock and the holders of any bonds, debentures, or other obligations
of the Corporation shall have been paid in full the amounts to which they shall
be entitled (if any), or a sum sufficient for such payment in full shall have
been set aside, the remaining net assets of the Corporation shall be distributed
pro rata to the holders of the Common Stock and the holders of Series A
Preferred in accordance with their respective rights and interest, to the
exclusion of the holders of any other series of the Preferred Stock and any
bonds, debentures, or other obligations of the Corporation.
4. Without the consent of the holders of eighty-five percent (85%)
of the outstanding Common Stock, the Corporation may (and may permit any
subsidiary of the Corporation over which it has control to) sell the following
products:
(i) crude oil;
(ii) other products usually and normally refined as petroleum
products from crude oils; and
(iii) natural gas liquids or liquefied petroleum gases;
irrespective of where such sales or products are made, only when the seller has
no actual knowledge that the sale is not for consumption or resale in one or
more of the following areas:
(i) the United States or any of its territories or possessions;
(ii) any country wholly located in the Western Hemisphere and/or
Europe or surrounded by the Mediterranean Sea;
(iii) any country all of the territory of which was formerly
contained within the Union of Soviet Socialist Republics;
(iv) any country whose territory is contained within the territories
constituting as of the date hereof the countries known as Algeria, Angola,
Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Congo, Cote
D'Ivoire, Equatorial Guinea, Gabon, Gambia, Ghana, Greenland, Guinea,
Guinea Bissau, Iceland, Liberia, Libya, Mali, Mauritania, Mongolia,
Morocco, Niger, Nigeria, Rio Muni, Senegal, Sierra Leone, Togo, Tunisia,
Turkey, Western Sahara and/or Zaire;
7
<PAGE>
(v) Antarctica; and
(vi) international waters;
unless (a) otherwise permitted by the terms of that certain Scope of Business
Agreement, dated May 22, 1996, between the Corporation and Chevron Corporation,
as the same may from time to time be amended in accordance with the terms
thereof, or (b) such Scope of Business Agreement is terminated pursuant to its
terms, upon which termination the provisions of this paragraph 4 shall be of no
further force and effect. A copy of such Scope of Business Agreement, as the
same may be amended, shall be available for inspection by any stockholder of the
Corporation at the principal offices of the Corporation. Except as indicated
above or as may otherwise be provided in this Certificate of Incorporation or by
Delaware law, stockholders shall have no right to approve specific business
activities of the Corporation, and the above provisions shall not otherwise
affect corporate powers and purposes as stated in Article III.
E. GENERAL.
1. Subject to the foregoing provisions of this Certificate of
Incorporation, the Corporation may issue shares of its Preferred Stock and
Common Stock from time to time for such consideration (in any form, but not less
in value than the par value thereof) as may be fixed by the board of directors
of the Corporation, which is expressly authorized to fix the same in its
absolute and uncontrolled discretion subject to the foregoing conditions. Shares
so issued for which the consideration shall have been paid or delivered to the
Corporation shall be deemed fully paid stock and shall not be liable to any
further call or assessment thereon, and the holders of such shares shall not be
liable for any further payments in respect of such shares.
2. The Corporation shall have authority to create and issue rights and
options entitling their holders to purchase or otherwise acquire shares of the
Corporation's capital stock of any class or series or other securities of the
Corporation, and such rights and options shall be evidenced by instrument(s)
approved by the board of directors of the Corporation. The board of directors of
the Corporation shall be empowered to set the exercise price, duration, times
for exercise, and other terms of such options or rights; PROVIDED, HOWEVER, that
the consideration to be received (which may be in any form) for any shares of
capital stock subject thereto shall have a value not less than the par value
thereof.
FIFTH: No contract or transaction between the Corporation and one or more
of its directors, officers, or stockholders or between the Corporation and any
person (as used herein "person" means any other corporation, partnership,
association, firm, trust, joint venture, other legal entity, political
subdivision, or instrumentality or other organization) in which one or more of
its directors, officers, or stockholders are directors, officers, or
stockholders, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the board
8
<PAGE>
or committee which authorizes the contract or transaction, or solely because
his, her, or their votes are counted for such purpose, if (i) the material facts
as to his or her relationship or interest and as to the contract or transaction
are disclosed or are known to the board of directors or the committee, and the
board of directors or committee in good faith authorizes the contract or
transaction by the affirmative votes of a majority of the disinterested
directors, even though the disinterested directors be less than a quorum; or
(ii) the material facts as to his or her relationship or interest and as to the
contract or transaction are disclosed or are known to the stockholders entitled
to vote thereon, and the contract or transaction is specifically approved in
good faith by vote of the stockholders; or (iii) the contract or transaction is
fair as to the Corporation as of the time it is authorized, approved, or
ratified by the board of directors, a committee thereof (to the extent permitted
by applicable law), or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the board of
directors or of a committee which authorizes the contract or transaction.
SIXTH: The Corporation shall indemnify any person who was, is, or is
threatened to be made a party to a proceeding (as hereinafter defined) by reason
of the fact that he (i) is or was a director or officer of the Corporation or
(ii) while a director or officer of the Corporation, is or was serving at the
request of the Corporation as a director, officer, partner, venturer,
proprietor, trustee, employee, agent, or similar functionary of another foreign
or domestic corporation, partnership, joint venture, sole proprietorship, trust,
employee benefit plan, or other enterprise, to the fullest extent permitted
under the General Corporation Law of Delaware, as the same exists or may
hereafter be amended. Such right shall be a contract right and shall include the
right to be paid by the Corporation expenses incurred in defending any such
proceeding in advance of its final disposition to the maximum extent permitted
under the General Corporation Law of Delaware, as the same exists or may
hereafter be amended. If a claim for indemnification or advancement of expenses
hereunder is not paid in full by the Corporation within 60 days after a written
claim has been received by the Corporation, the claimant may at any time
thereafter bring suit against the Corporation to recover the unpaid amount of
the claim, and if successful in whole or in part, the claimant shall also be
entitled to be paid the expenses of prosecuting such claim. It shall be a
defense to any such action that such indemnification or advancement of costs of
defense are not permitted under the General Corporation Law of Delaware, but the
burden of proving such defense shall be on the Corporation. Neither the failure
of the Corporation (including its board of directors or any committee or
directors thereof, independent legal counsel, or stockholders) to have made its
determination prior to the commencement of such action that indemnification of,
or advancement of costs of defense to, the claimant is permissible in the
circumstances nor an actual determination by the Corporation (including its
board of directors or any committee or directors thereof, independent legal
counsel or stockholders) that such indemnification or advancement is not
permissible shall be a defense to the action or create a presumption that such
indemnification or advancement is not permissible. In the event of the death of
any person having a right of indemnification under the foregoing provisions,
such right shall inure to the benefit of his heirs, executors, administrators,
and personal representatives. The rights conferred above shall not be exclusive
of any other right which any person may have or hereafter acquire under any
statute, bylaw, resolution of
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stockholders or directors, agreement, or otherwise. The Company shall be
required to indemnify an indemnitee in connection with a proceeding (or part
thereof) initiated by such indemnitee only if the initiation of such proceeding
(or part thereof) by the indemnitee was authorized by the board of directors of
the Company.
The Corporation's obligation, if any, to indemnify or advance expenses to
any person who was or is serving at the request of the Corporation as a
director, officer, partner, venturer, proprietor, trustee, employee, agent, or
similar functionary of another foreign or domestic corporation, partnership,
joint venture, sole proprietorship, trust, employee benefit plan, or other
enterprise shall be reduced by any amount such person may collect as
indemnification or advancement from such other foreign or domestic corporation,
partnership, joint venture, sole proprietorship, trust, employee benefit plan,
or other enterprise.
The Corporation may additionally indemnify any employee or agent of the
Corporation to the fullest extent permitted by law.
As used herein, the term "proceeding" means any threatened, pending, or
completed action suit, or proceeding, whether civil, criminal, administrative,
arbitrative, or investigative, any appeal in such an action, suit, or
proceeding, and any inquiry or investigation that could lead to such an action,
suit, or proceeding.
Any repeal or amendment of this Article SIXTH shall be prospective only
and shall not affect the rights of any such director or officer or the
obligations of the Corporation with respect to any claim arising from or related
to the services of such director or officer in any of the foregoing capacities
prior to any such repeal or amendment to this Article SIXTH.
SEVENTH: The board of directors shall have the power to make, adopt,
alter, amend, and repeal from time to time the Bylaws of the Corporation and to
make from time to time new Bylaws of the Corporation (subject to the right of
the stockholders entitled to vote thereon to adopt, alter, amend, and repeal
Bylaws made by the board of directors or to make new Bylaws) to the extent and
in the manner provided in the Bylaws; PROVIDED, HOWEVER, that the stockholders
of the Corporation shall be entitled to adopt, alter, amend, or repeal Bylaws
made by the board of directors or to make new Bylaws solely upon the affirmative
vote of the holders of a majority of the outstanding shares of the Common Stock.
EIGHTH: A director of the Corporation shall not be personally liable to
the Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability (i) for any breach of the director's
duty of loyalty to the Corporation or its stockholders, (ii) for acts or
omissions not in good faith or which involve
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intentional misconduct or knowing violation of law, (iii) under Section 174 of
the General Corporation Law of Delaware, or (iv) for any transaction from which
the director derived an improper personal benefit. Any repeal or amendment of
this Article EIGHTH by the stockholders of the Corporation shall be prospective
only, and shall not adversely affect any limitation on the personal liability of
a director of the Corporation arising from an act or omission occurring prior to
the time of such repeal or amendment. In addition to the circumstances in which
a director of the Corporation is not personally liable as set forth in the
foregoing provisions of this Article EIGHTH, a director shall not be liable to
the Corporation or its stockholders to such further extent as permitted by any
law hereafter enacted, including without limitation any subsequent amendment to
the General Corporation Law of Delaware.
NINTH: The number of directors constituting the board of directors shall
be fixed by, or in the manner provided in, the Bylaws of the Corporation. Each
director of the Corporation shall hold office until the next annual meeting of
stockholders or until his or her successor shall have been duly elected and
qualified. Directors need not be elected by written ballot.
EXECUTED this 21st day of November, 1996.
NGC CORPORATION
By: /s/ C. L. WATSON
C. L. Watson
Chairman of the Board and
Chief Executive Officer
EXHIBIT 5.1
(713) 758-2222 (713) 758-2346
January 30, 1997
NGC Corporation
13430 Northwest Freeway, Suite 1200
Houston, Texas 77040-6095
Ladies and Gentlemen:
We have acted as counsel to NGC Corporation, a Delaware corporation (the
"Company"), in connection with the preparation of the Company's Registration
Statement on Form S-8 (the "Registration Statement"), relating to the proposed
offer and sale by the Company of up to an aggregate of 7,700,000 shares of the
Company's common stock, $.01 par value (the "Shares"), pursuant to the NGC
Corporation Amended and Restated 1991 Stock Option Plan (the "Plan"). In such
capacity, we are passing on certain legal matters in connection with the
registration of the sale of the Shares. At your request, this opinion is being
furnished to you for filing as an exhibit to the Registration Statement.
In connection with rendering this opinion, we have examined such
certificates, instruments and documents and reviewed such questions of law as we
have considered necessary or appropriate for the purposes of this opinion. In
addition, we have relied as to factual matters on certificates of certain public
officials and officers of the Company.
Based upon the foregoing examination and review, we are of the opinion
that the Shares have been duly authorized for issuance and, when the
Registration Statement has been declared effective and the Shares are issued and
paid for in accordance with the provisions of the respective Plan, such Shares
will be validly issued, fully paid and non-assessable.
[The foregoing opinion is limited to the laws of the United States of
America and the State of Texas and to the General Corporation Law of the State
of Delaware. For purposes of this opinion, we assume that the Shares will be
issued in compliance with all applicable state securities or Blue Sky laws.]
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this consent, however, we do not hereby admit
that we are within the category of persons whose consent is required under
Section 7 of the Securities Act of 1933 and the rules and regulations of the
Securities and Exchange Commission thereunder.
Very truly yours,
VINSON & ELKINS L.L.P.
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated March 15, 1996,
included in NGC Corporation's Annual Report on Form 10-K/A for the year ended
December 31, 1995, and to all references to our Firm included in this
Registration Statement.
ARTHUR ANDERSEN LLP
Houston, Texas
January 30, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of NGC Corporation of our report on Accord Energy Limited
dated March 14, 1996, which appears on pages 1 - 18 of Item 8 of NGC
Corporation's 1995 Annual Report on Form 10-K/A. We also consent to the
reference to us under the heading "Experts" in such Prospectus.
PRICE WATERHOUSE
Chartered Accountants and
Registered Auditors
London, England
January 30, 1997
