AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 2, 2004
REGISTRATION NO. 333-______
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------------------
NATIONAL FUEL GAS COMPANY
(Exact name of registrant as specified in its charter)
--------------------------------
New Jersey 13-1086010
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
6363 Main Street
Williamsvillle, New York 14221
(716) 857-7000
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------------------------
1997 AWARD AND OPTION PLAN
(Full title of the plan)
--------------------------------
PHILIP C. ACKERMAN RONALD J. TANSKI
Chairman of the Board, President Treasurer
and Chief Executive Officer 6363 Main Street
6363 Main Street Williamsvillle, New York 14221
Williamsvillle, New York 14221 (716) 857-7000
(716) 857-7000
ANNA MARIE CELLINO ROBERT J. REGER, JR., ESQ.
Secretary Thelen Reid & Priest LLP
6363 Main Street 875 Third Avenue
Williamsvillle, New York 14221 New York, New York 10022
(716) 857-7000 (212) 603-2000
(Names, addresses and telephone numbers, including area codes,
of agents for service)
--------------------------------
It is respectfully requested that the Commission send copies of all orders,
notices and communications to:
JAMES P. BAETZHOLD, ESQ.
6363 Main Street
Williamsvillle, New York 14221
(716) 857-7000
--------------------------------
CALCULATION OF REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------------
PROPOSED PROPOSED
TITLE OF SECURITIES AMOUNT TO BE MAXIMUM OFFERING MAXIMUM AGGREGATE AMOUNT OF
TO BE REGISTERED REGISTERED (1) PRICE PER SHARE (2) OFFERING PRICE (3) REGISTRATION FEE
-----------------------------------------------------------------------------------------------------------------
Common stock, one dollar ($1.00) par 4,909,100 $24.53 $120,420,223 $15,258
value, common stock purchase rights
-----------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(a) under the Securities Act of 1933, this registration
statement also covers such indeterminable number of additional securities
as may become deliverable as a result of stock splits, stock dividends or
similar transactions, in accordance with the provisions of the employee
benefit plan described herein.
(2) Since no separate consideration will be paid for the common stock purchase
rights, the registration fee for such securities is included in the fee for
the common stock. The value attributable to the common stock purchase
rights, if any, is reflected in the market price of the common stock.
(3) Estimated solely for purposes of calculating the registration fee pursuant
to Rule 457(h) under the Securities Act of 1933 on the basis of the average
of the high and low prices of the registrant's common stock on the New York
Stock Exchange composite tape on June 29, 2004.
EXPLANATORY NOTE
This Registration Statement on Form S-8 covers the registration of
4,909,100 shares of common stock, one dollar ($1.00) par value, of National Fuel
Gas Company (National) and associated common stock purchase rights that may be
delivered to certain employees of National and its subsidiaries pursuant to the
terms of the 1997 Award and Option Plan (Plan).
PART II. INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The Securities and Exchange Commission (SEC) allows National to
"incorporate by reference" the information that National files with the SEC,
which means that National may disclose important information to you by referring
you to those documents in this registration statement. The information
incorporated by reference is an important part of this registration statement.
National is incorporating by reference the documents listed below and any future
documents that are filed by National with the SEC under Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until National sells all of
these securities or deregisters all such securities remaining unsold. Any of
those future filings will update, supersede and replace the information
contained in any documents incorporated by reference in this registration
statement at the time of the future filings.
o National's Annual Report on Form 10-K for the fiscal year ended
September 30, 2003.
o National's Quarterly Reports on Form 10-Q for the quarterly periods
ended December 31, 2003 and March 31, 2004.
You may request a copy of these documents, at no cost to you, by writing or
calling Anna Marie Cellino, Secretary, National Fuel Gas Company, 6363 Main
Street, Williamsvillle, New York 14221, telephone (716) 857-7858.
ITEM 4. DESCRIPTION OF SECURITIES.
The following description of National's common stock is a summary and is
qualified by reference to the terms and provisions of National's Restated
Certificate of Incorporation, its By-Laws, and the Amended and Restated Rights
Agreement between National and HSBC Bank USA (Rights Agreement), which are filed
as exhibits to this registration statement and incorporated herein by reference.
Reference is also made to the indenture dated as of October 15, 1974, as
supplemented (1974 Indenture), between National and The Bank of New York, as
trustee.
No shares of preferred stock of National are currently outstanding.
However, the Board of Directors of National has the ability to issue one or more
series of preferred stock from time to time. The actual effect of the preferred
stock upon the rights of the holders of National's common stock will not be
known until National's Board of Directors determines the respective rights of
the holders of one or more series of preferred stock. Such effects, however,
might include: (a) restrictions on dividends on National's common stock if
dividends on the preferred stock are in arrears; (b) dilution of the voting
power of National's common stock; (c) restrictions on the rights of the holders
of National's common stock to share in National's assets upon liquidation due to
satisfaction of any liquidation preference granted to the preferred stock; and
(d) dilution of rights of holders of National's common stock to share in
National's assets upon liquidation if the preferred stock is participating with
respect to distributions upon such liquidation.
2
DIVIDEND RIGHTS
The holders of common stock are entitled to receive dividends as declared
by the Board of Directors, out of funds legally available for the purpose and
subject to a limitation in the 1974 Indenture. The 1974 Indenture prohibits the
payment of cash dividends on, and the purchase or redemption of, common stock if
the cumulative dividends on and amounts paid for purchase or redemption of
common or preferred stock since December 31, 1967 exceed or would exceed
consolidated net income available for dividends for that same period plus $10
million plus any additional amount authorized or approved, upon application of
National, by the SEC.
The Board of Directors' ability to declare dividends on common stock may
also be limited by the rights and preferences of certain series of preferred
stock, which may be issued from time to time, and by the terms of instruments
defining the rights of holders of outstanding indebtedness of National.
VOTING RIGHTS AND CLASSIFICATION OF THE BOARD OF DIRECTORS
The holders of common stock are entitled to one vote per share. The
affirmative vote of the majority of the votes cast by the holders of the common
stock is required for the merger or consolidation of National or for the sale of
substantially all of its assets. The Board of Directors is divided into three
classes, each with, as nearly as possible, an equal number of directors.
LIQUIDATION RIGHTS
Upon any dissolution, liquidation or winding up of National, the holders of
common stock are entitled to receive pro rata all of National's assets and funds
remaining after payment of or provision for creditors and subject to the rights
and preferences of each series of preferred stock.
PREEMPTIVE RIGHTS
Holders of common stock and any series of preferred stock that may be
issued have no preemptive right to purchase or subscribe for any shares of
capital stock of National.
COMMON STOCK PURCHASE RIGHTS
The holders of the common stock have one right for each of their shares.
Each right, which will initially be evidenced by the common stock certificates
representing the outstanding shares of common stock, entitles the holder to
purchase one-half of one share of common stock at a purchase price of $65.00 per
share, being $32.50 per half share, subject to adjustment (Purchase Price).
The rights become exercisable upon the occurrence of a distribution date.
At any time following a distribution date, each holder of a right may exercise
its right to receive common stock (or, under certain circumstances, other
property of National) having a value equal to two times the Purchase Price of
the right then in effect. However, the rights are subject to redemption or
exchange by National prior to their exercise as described below.
A distribution date would occur upon the earlier of:
o ten days after the public announcement that a person or group has
acquired, or obtained the right to acquire, beneficial ownership of
National's common stock or other voting stock having 10% or more of
the total voting power of National's common stock and other voting
stock; and
3
o ten days after the commencement or announcement by a person or group
of an intention to make a tender or exchange offer that would result
in that person acquiring, or obtaining the right to acquire,
beneficial ownership of National's common stock or other voting stock
having 10% or more of the total voting power of National's common
stock and other voting stock.
In certain situations after a person or group has acquired beneficial
ownership of 10% or more of the total voting power of National's stock as
described above, each holder of a right will have the right to exercise its
rights to receive common stock of the acquiring company having a value equal to
two times the Purchase Price of the right then in effect. These situations would
arise if National is acquired in a merger or other business combination or if
50% or more of National's assets or earning power are sold or transferred.
At any time prior to the end of the business day on the tenth day following
the announcement that a person or group has acquired, or obtained the right to
acquire, beneficial ownership of 10% or more of the total voting power of
National, National may redeem the rights in whole, but not in part, at a price
of $.005 per right, payable in cash or stock. A decision to redeem the rights
requires the vote of 75% of National's full Board of Directors. Also, at any
time following the announcement that a person or group has acquired, or obtained
the right to acquire, beneficial ownership of 10% or more of the total voting
power of National, 75% of National's full Board of Directors may vote to
exchange the rights, in whole or in part, at an exchange rate of one share of
common stock, or other property deemed to have the same value, per right,
subject to certain adjustments.
After a distribution date, rights that are owned by an acquiring person
will be null and void. Upon exercise of the rights, National may need additional
regulatory approvals to satisfy the requirements of the Rights Agreement. The
rights will expire on July 31, 2008, unless they are exchanged or redeemed
earlier than that date.
The rights have anti-takeover effects because they will cause substantial
dilution of the common stock if a person attempts to acquire National on terms
not approved by the Board of Directors.
BUSINESS COMBINATIONS
National's Restated Certificate of Incorporation provides that certain
conditions must be met before the consummation of any merger or other business
combination by National or any of its subsidiaries with any stockholder who is
directly or indirectly the beneficial owner of 5% or more of National's
outstanding common stock (substantial stockholder) or with an affiliate of any
substantial stockholder. The term substantial stockholder does not include
National, any of its subsidiaries, or any trustee holding common stock of
National for the benefit of the employees of National or any of its subsidiaries
pursuant to one or more employee benefit plans or arrangements. The conditions,
which are in addition to those otherwise required by law, prescribe the minimum
amount per share that must be paid to holders of common stock and the form of
consideration paid, and require that the holders of common stock be furnished
certain information about the business combination prior to voting on it. A
business combination, as defined in the Restated Certificate of Incorporation,
generally means any of the following transactions:
o a merger, consolidation or share exchange;
o a sale, lease, exchange or other disposition of any assets in exchange
for property having a fair market value of more than $10 million, if
determined to be a business combination by certain directors of
National in accordance with provisions of the Restated Certificate of
Incorporation;
4
o the issuance or transfer of securities in exchange for property having
a fair market value of more than $10 million, if determined to be a
business combination by certain directors of National in accordance
with provisions of the Restated Certificate of Incorporation;
o the adoption of a plan of liquidation or dissolution of National; or
o any reclassification of securities, recapitalization or reorganization
that has the effect of increasing the proportionate share of the
outstanding shares of any class of securities of National that is
owned by any substantial stockholder or by any affiliate of a
substantial stockholder.
The approval of at least three-fourths of the entire Board of Directors or,
in the event that the Board of Directors consists of directors elected by the
holders of preferred stock, the approval of a majority of the entire Board, is
required to amend or repeal the classified board or business combination
provisions contained in the Restated Certificate of Incorporation.
LISTING
The common stock is, and will be, listed on the New York Stock Exchange.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for the common stock is Computershare
Investor Services, LLC, Chicago, Illinois.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article Ninth of National's Restated Certificate of Incorporation, as
amended, provides as follows:
"No director or officer of this corporation shall be personally liable
to the corporation or any of its shareholders for monetary damages for
breach of any duty owed to the corporation or any of its shareholders,
except to the extent that such exemption from liability is not permitted
under the New Jersey Business Corporation Act, as the same exists or may
hereafter be amended, or under any revision thereof or successor statute
thereto."
Article II, Paragraph 8 of the By-Laws of National provides as follows:
"A. The Corporation shall indemnify any person who is or was a
director or officer of the Corporation, to the fullest extent permitted and
in the manner provided by the laws of the State of New Jersey, including,
without limitation, the indemnification permitted by N.J.S. 14A:3-5(8),
against all liabilities (including amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties) and expenses (including,
without limitation, attorneys' fees and disbursements) imposed upon or
incurred by such person in connection with any pending, threatened or
completed civil, criminal, administrative or arbitrative action, suit or
proceeding, and any appeal therein and any inquiry or investigation which
could lead to such action, suit or proceeding ("Proceeding") in which such
person may be made, or threatened to be made, a party, or in which such
person may become involved by reason of such person being or having been a
director or officer of the Corporation, or of serving or having served at
the request of the Corporation as a director, officer, trustee, employee or
agent of, or in any other capacity with, another foreign or domestic
corporation, or any partnership, joint venture, sole proprietorship,
employee benefit plan, trust or other enterprise, whether or not for
profit.
5
B. During the pendency of any such Proceeding, the Corporation shall,
to the fullest extent permitted by law, promptly advance expenses
(including, without limitation, attorneys' fees and disbursements) that are
incurred, from time to time, in connection therewith by any such current or
former director or officer of the Corporation, subject to the receipt by
the Corporation of an undertaking of such person as required by law.
C. Nothing in this paragraph 8 shall restrict or limit the power of
the Corporation to indemnify its employees, agents and other persons, to
advance expenses (including attorneys' fees) on their behalf and to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the Corporation in connection with
any Proceeding.
D. The indemnification provided by this paragraph 8 shall not exclude
any other rights to which a person seeking indemnification may be entitled
under the Certificate of Incorporation, By-Laws, agreement, vote of
shareholders or otherwise. The indemnification provided by this paragraph 8
shall continue as to a person who has ceased to be a director or officer,
and shall extend to the estate or personal representative of any deceased
director or officer."
Section 14A:3-5 of the New Jersey Statutes Annotated provides:
"INDEMNIFICATION OF DIRECTORS, OFFICERS AND EMPLOYEES.
(1) As used in this section,
(a) "Corporate agent" means any person who is or was a director,
officer, employee or agent of the indemnifying corporation or of any
constituent corporation absorbed by the indemnifying corporation in a
consolidation or merger and any person who is or was a director,
officer, trustee, employee or agent of any other enterprise, serving
as such at the request of the indemnifying corporation, or of any such
constituent corporation, or the legal representative of any such
director, officer, trustee, employee or agent;
(b) "Other enterprise" means any domestic or foreign corporation,
other than the indemnifying corporation, and any partnership, joint
venture, sole proprietorship, trust or other enterprise, whether or
not for profit, served by a corporate agent;
(c) "Expenses" means reasonable costs, disbursements and counsel
fees;
(d) "Liabilities" means amounts paid or incurred in satisfaction
of settlements, judgments, fines and penalties;
(e) "Proceeding" means any pending, threatened or completed
civil, criminal, administrative or arbitrative action, suit or
proceeding, and any appeal therein and any inquiry or investigation
which could lead to such action, suit or proceeding; and
(f) References to "other enterprises" include employee benefit
plans; references to "fines" include any excise taxes assessed on a
person with respect to an employee benefit plan; and references to
"serving at the request of the indemnifying corporation" include any
service as a corporate agent which imposes duties on, or involves
services by, the corporate agent with respect to an employee benefit
plan, its participants, or beneficiaries; and a person who acted in
good faith and in a manner the person reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit
plan shall be deemed to have acted in a manner "not opposed to the
best interests of the corporation" as referred to in this section.
6
(2) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses and liabilities in connection with any
proceeding involving the corporate agent by reason of his being or having
been such a corporate agent, other than a proceeding by or in the right of
the corporation, if
(a) such corporate agent acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of
the corporation; and
(b) with respect to any criminal proceeding, such corporate agent
had no reasonable cause to believe his conduct was unlawful. The
termination of any proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall
not of itself create a presumption that such corporate agent did not
meet the applicable standards of conduct set forth in paragraphs
14A:3-5(2)(a) and 14A:3-5(2)(b).
(3) Any corporation organized for any purpose under any general or
special law of this State shall have the power to indemnify a corporate
agent against his expenses in connection with any proceeding by or in the
right of the corporation to procure a judgment in its favor which involves
the corporate agent by reason of his being or having been such corporate
agent, if he acted in good faith and in a manner he reasonably believed to
be in or not opposed to the best interests of the corporation. However, in
such proceeding no indemnification shall be provided in respect of any
claim, issue or matter as to which such corporate agent shall have been
adjudged to be liable to the corporation, unless and only to the extent
that the Superior Court or the court in which such proceeding was brought
shall determine upon application that despite the adjudication of
liability, but in view of all circumstances of the case, such corporate
agent is fairly and reasonably entitled to indemnity for such expenses as
the Superior Court or such other court shall deem proper.
(4) Any corporation organized for any purpose under any general or
special law of this State shall indemnify a corporate agent against
expenses to the extent that such corporate agent has been successful on the
merits or otherwise in any proceeding referred to in subsections 14A:3-5(2)
and 14A:3-5(3) or in defense of any claim, issue or matter therein.
(5) Any indemnification under subsection 14A:3-5(2) and, unless
ordered by a court, under subsection 14A:3-5(3), may be made by the
corporation only as authorized in a specific case upon a determination that
indemnification is proper in the circumstances because the corporate agent
met the applicable standard of conduct set forth in subsection 14A:3-5(2)
or subsection 14A:3-5(3). Unless otherwise provided in the certificate of
incorporation or bylaws, such determination shall be made
(a) by the board of directors or a committee thereof, acting by a
majority vote of a quorum consisting of directors who were not parties
to or otherwise involved in the proceeding; or
(b) if such a quorum is not obtainable, or, even if obtainable
and such quorum of the board of directors or committee by a majority
vote of the disinterested directors so directs, by independent legal
counsel, in a written opinion, such counsel to be designated by the
board of directors; or
(c) by the shareholders if the certificate of incorporation or
bylaws or a resolution of the board of directors or of the
shareholders so directs.
(6) Expenses incurred by a corporate agent in connection with a
proceeding may be paid by the corporation in advance of the final
disposition of the proceeding as authorized by the board of directors upon
7
receipt of an undertaking by or on behalf of the corporate agent to repay
such amount if it shall ultimately be determined that he is not entitled to
be indemnified as provided in this section.
(7) (a) If a corporation upon application of a corporate agent has
failed or refused to provide indemnification as required under subsection
14A:3-5(4) or permitted under subsections 14A:3-5(2), 14A:3-5(3) and
14A:3-5(6), a corporate agent may apply to a court for an award of
indemnification by the corporation, and such court
(i) may award indemnification to the extent authorized under
subsections 14A:3-5(2) and 14A:3-5(3) and shall award
indemnification to the extent required under subsection
14A:3-5(4), notwithstanding any contrary determination which
may have been made under subsection 14A:3-5(5); and
(ii) may allow reasonable expenses to the extent authorized by,
and subject to the provisions of, subsection 14A:3-5(6), if
the court shall find that the corporate agent has by his
pleadings or during the course of the proceeding raised
genuine issues of fact or law.
(b) Application for such indemnification may be made
(i) in the civil action in which the expenses were or are to be
incurred or other amounts were or are to be paid; or
(ii) to the Superior Court in a separate proceeding. If the
application is for indemnification arising out of a civil
action, it shall set forth reasonable cause for the failure
to make application for such relief in the action or
proceeding in which the expenses were or are to be incurred
or other amounts were or are to be paid.
The application shall set forth the disposition of any previous application
for indemnification and shall be made in such manner and form as may be
required by the applicable rules of court or, in the absence thereof, by
direction of the court to which it is made. Such application shall be upon
notice to the corporation. The court may also direct that notice shall be
given at the expense of the corporation to the shareholders and such other
persons as it may designate in such manner as it may require.
(8) The indemnification and advancement of expenses provided by or
granted pursuant to the other subsections of this section shall not exclude
any other rights, including the right to be indemnified against liabilities
and expenses incurred in proceedings by or in the right of the corporation,
to which a corporate agent may be entitled under a certificate of
incorporation, bylaw, agreement, vote of shareholders, or otherwise;
provided that no indemnification shall be made to or on behalf of a
corporate agent if a judgment or other final adjudication adverse to the
corporate agent establishes that his acts or omissions (a) were in breach
of his duty of loyalty to the corporation or its shareholders, as defined
in subsection (3) of N.J.S. 14A:2-7, (b) were not in good faith or involved
a knowing violation of law or (c) resulted in receipt by the corporate
agent of an improper personal benefit.
(9) Any corporation organized for any purpose under any general or
special law of this State shall have the power to purchase and maintain
insurance on behalf of any corporate agent against any expenses incurred in
any proceeding and any liabilities asserted against him by reason of his
being or having been a corporate agent, whether or not the corporation
would have the power to indemnify him against such expenses and liabilities
under the provisions of this section. The corporation may purchase such
8
insurance from, or such insurance may be reinsured in whole or in part by,
an insurer owned by or otherwise affiliated with the corporation, whether
or not such insurer does business with other insureds.
(10) The powers granted by this section may be exercised by the
corporation, notwithstanding the absence of any provision in its
certificate of incorporation or bylaws authorizing the exercise of such
powers.
(11) Except as required by subsection 14A:3-5(4), no indemnification
shall be made or expenses advanced by a corporation under this section, and
none shall be ordered by a court, if such action would be inconsistent with
a provision of the certificate of incorporation, a bylaw, a resolution of
the board of directors or of the shareholders, an agreement or other proper
corporate action, in effect at the time of the accrual of the alleged cause
of action asserted in the proceeding, which prohibits, limits or otherwise
conditions the exercise of indemnification powers by the corporation or the
rights of indemnification to which a corporate agent may be entitled.
(12) This section does not limit a corporation's power to pay or
reimburse expenses incurred by a corporate agent in connection with the
corporate agent's appearance as a witness in a proceeding at a time when
the corporate agent has not been made a party to the proceeding."
ITEM 8. EXHIBITS.
Exhibit
Number Description of Exhibits
------ -----------------------
3(i) Articles of Incorporation:
* - Restated Certificate of Incorporation dated September 21, 1998
(Exhibit 3.1, Form 10-K for the fiscal year ended September 30, 1998
in File No. 1-3880).
3(ii) By-Laws:
* - By-Laws as amended on December 12, 2002 (Exhibit 3(ii), Form 10-Q for
the quarterly period ended December 31, 2002 in File No. 1-3880).
4 Instruments Defining the Rights of Security holders, including
Indentures:
* - Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 2(b), File No. 2-51796).
* - Third Supplemental Indenture dated as of December 1, 1982, to
Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4(a)(4) in File No. 33-49401).
* - Tenth Supplemental Indenture dated as of February 1, 1992, to
Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4(a), Form 8-K dated February 14, 1992 in File No. 1-3880).
* - Eleventh Supplemental Indenture dated as of May 1, 1992, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit 4(b),
Form 8-K dated February 14, 1992 in File No. 1-3880).
* - Twelfth Supplemental Indenture dated as of June 1, 1992, to Indenture
dated as of October 15, 1974, between National Fuel Gas Company and
The Bank of New York (formerly Irving Trust Company) (Exhibit 4(c),
Form 8-K dated June 18, 1992 in File No. 1-3880).
* - Thirteenth Supplemental Indenture dated as of March 1, 1993, to
Indenture dated as of October 15, 1974, between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4(a)(14) in File No. 33-49401).
9
* - Fourteenth Supplemental Indenture dated as of July 1, 1993 to
Indenture dated as of October 15, 1974 between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4.1, Form 10-K for fiscal year ended September 30, 1993 in
File No. 1-3880).
* - Fifteenth Supplemental Indenture dated as of September 1, 1996, to
Indenture dated as of October 15, 1974 between National Fuel Gas
Company and The Bank of New York (formerly Irving Trust Company)
(Exhibit 4.1, Form 10-K for fiscal year ended September 30, 1996 in
File No. 1-3880).
* - Indenture, dated as of October 1, 1999, between National Fuel Gas
Company and The Bank of New York (Exhibit 4.1, Form 10-K for fiscal
year ended September 30, 1999 in File No. 1-3880).
* - Officer's Certificate Establishing Medium-Term Notes, dated October
14, 1999 (Exhibit 4.2, Form 10-K for fiscal year ended September 30,
1999 in File No. 1-3880).
* - Officer's Certificate establishing 6.50% Notes due 2022, dated
September 18, 2002 (Exhibit 4, Form 8-K dated October 3, 2002 in File
No. 1-3880).
* - Officer's Certificate establishing 5.25% Notes due 2013, dated
February 18, 2003 (Exhibit 4, Form 10-Q for the quarterly period ended
March 31, 2003 in File No. 1-3880).
* - Rights Agreement amended and restated as of April 30, 1999 between
National Fuel Gas Company and HSBC Bank USA (Exhibit 10.2, Form 10-Q
for the quarterly period ended March 31, 1999 in File No. 1-3880).
* - Certificate of Adjustment, dated September 7, 2001, to the Amended and
Restated Rights Agreement dated as of April 30, 1999, between National
Fuel Gas Company and HSBC Bank USA (Exhibit 4, Form 8-K dated
September 7, 2001 in File No. 1-3880).
5 Opinion re legality:
5.1 - Opinion of Stryker, Tams & Dill LLP, Counsel for National Fuel Gas
Company.
23 Consents of experts and counsel:
23.1 - Consent of PricewaterhouseCoopers LLP.
23.2 - Consent of Stryker, Tams & Dill LLP is contained in its opinion filed
as Exhibit 5.1 to this registration statement.
23.3 - Consent of Ralph E. Davis Associates, Inc. regarding Seneca Resources
Corporation.
23.4 - Consent of Ralph E. Davis Associates, Inc. regarding Seneca Energy
Canada, Inc.
24 Power of attorney:
24.1 - The Power of Attorney is contained on the signature page of this
registration statement.
-------------------------
*Incorporated herein by reference as indicated.
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;
10
(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; and
(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
periodic reports filed with or furnished to the SEC by the
registrant pursuant to Section 13 or Section 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.
(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.
(4) 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 herein,
and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(b) 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 SEC 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.
11
POWER OF ATTORNEY
Each director and/or officer of the registrant whose signature appears
below hereby appoints the agents for service named in this registration
statement, and each of them severally, as his attorney-in-fact to sign in his
name and on his behalf, in any and all capacities stated below, and to file with
the SEC, any and all amendments, including post-effective amendments, to this
registration statement, and the registrant hereby also appoints each such agent
for service as its attorney-in-fact with the authority to sign and file any such
amendments in its name and behalf.
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 Town of Amherst, State of New York, on the 2nd day of
July, 2004.
NATIONAL FUEL GAS COMPANY
By: /s/ P. C. Ackerman
--------------------------------------
P. C. Ackerman
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated.
Signature Title Date
--------- ----- ----
/s/ P. C. Ackerman Chairman of the Board, July 2, 2004
----------------------------- President, Chief Executive
P. C. Ackerman Officer and Director
/s/ R. J. Tanski Treasurer and Principal July 2, 2004
----------------------------- Financial Officer
R. J. Tanski
/s/ K. M. Camiolo Controller and Principal July 2, 2004
----------------------------- Accounting Officer
K. M. Camiolo
/s/ R. T. Brady Director July 2, 2004
-----------------------------
R. T. Brady
/s/ R. D. Cash Director July 2, 2004
-----------------------------
R. D. Cash
/s/ R. E. Kidder Director July 2, 2004
-----------------------------
R. E. Kidder
/s/ B. S. Lee Director July 2, 2004
-----------------------------
B. S. Lee
/s/ G. L. Mazanec Director July 2, 2004
-----------------------------
G. L. Mazanec
/s/ J. F. Riordan Director July 2, 2004
-----------------------------
J. F. Riordan
EXHIBIT INDEX
-------------
Exhibit
Number Description of Exhibits
------ -----------------------
5.1 Opinion of Stryker, Tams & Dill LLP, Counsel for National Fuel Gas
Company.
23.1 Consent of PricewaterhouseCoopers LLP.
23.2 Consent of Stryker, Tams & Dill LLP is contained in its opinion filed
as Exhibit 5.1 to this registration statement.
23.3 Consent of Ralph E. Davis Associates, Inc. regarding Seneca Resources
Corporation.
23.4 Consent of Ralph E. Davis Associates, Inc. regarding Seneca Energy
Canada, Inc.
24.1 The Power of Attorney is contained on the signature page of this
registration statement.