AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 24, 2002
REGISTRATION NO. 333-_____
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------------------
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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NATIONAL FUEL GAS COMPANY
(Exact name of registrant as specified in its charter)
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New Jersey 13-1086010
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
10 Lafayette Square
Buffalo, New York 14203
(716) 857-7000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
---------------------------------------
PHILIP C. ACKERMAN MICHAEL F. FITZPATRICK, JR., ESQ.
Chairman of the Board, President THELEN REID & PRIEST LLP
and Chief Executive Officer 875 Third Avenue
10 Lafayette Square New York, New York 10022
Buffalo, New York 14203 (212) 603-2000
(716) 857-7000
(Names, addresses, including zip codes, 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:
TODD W. ECKLAND, ESQ.
PILLSBURY WINTHROP LLP
One Battery Park Plaza
New York, New York 10004
(212) 858-1000
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Approximate date of commencement of proposed sale to the public: From
time to time after this registration statement becomes effective as determined
by market conditions and other factors.
---------------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [_]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, please check the
following box and list the Securities Act registration statement number of the
earlier effective registration statement for the same offering. [_]______
If this Form is a post-effective amendment filed pursuant to Rule
462(b) under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]_______
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [_]_______
CALCULATION OF REGISTRATION FEE
=============================================================================================================
Proposed maximum aggregate Amount of
Title of each class of securities to be registered offering price (1)(2) registration fee
-------------------------------------------------------------------------------------------------------------
Debt securities....................................
Common stock, one dollar ($1.00) par value.........
Common stock purchase rights.......................
Stock purchase contracts (3).......................
Stock purchase units (3)...........................
-------------------------------------------------------------------------------------------------------------
Total $800,000,000 $66,011
=============================================================================================================
(1) Includes an indeterminate number or amount of debt securities, shares of
common stock with common stock purchase rights, stock purchase contracts and
stock purchase units as may from time to time be issued at indeterminate prices
provided that in no event will the aggregate initial price of all debt
securities, common stock with common stock purchase rights, stock purchase
contracts and stock purchase units sold under this registration statement exceed
$800,000,000. 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.
(2) Estimated solely for the purpose of calculating the registration fee.
(3) There is being registered hereunder an indeterminate number of shares of
common stock issuable by National Fuel Gas Company, upon settlement of stock
purchase contracts or stock purchase units.
(4) Prior to the filing of this registration statement, $27,300,000 aggregate
principal amount of the registrant's securities remained registered and unsold
under Registration Statement No. 333-83497 filed with the SEC on July 22, 1999.
The registration fee of $7,589 associated with the unsold securities has been
offset from the registration fee of $73,600 associated with the securities to be
registered, and such unsold securities are hereby deemed deregistered.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SEC, ACTING PURSUANT TO SAID SECTION 8(A), MAY
DETERMINE.
SUBJECT TO COMPLETION, DATED DECEMBER 24, 2002
PROSPECTUS
$800,000,000
National Fuel Gas Company
DEBT SECURITIES
COMMON STOCK
STOCK PURCHASE CONTRACTS
and
STOCK PURCHASE UNITS
National Fuel Gas Company may offer from time to time up to an aggregate of
$800,000,000 of its securities. National Fuel Gas Company will provide specific
terms of its securities, including their offering prices, in supplements to this
prospectus. The supplements may also add, update or change information contained
in this prospectus. You should read this prospectus and any supplements
carefully before you invest.
National Fuel Gas Company's common stock is listed on the New York Stock
Exchange and trades under the symbol "NFG."
National Fuel Gas Company may offer these securities directly or through
underwriters, agents or dealers. The supplements to this prospectus will
describe the terms of any particular plan of distribution, including any
underwriting arrangements. The "Plan of Distribution" section on page 19 of this
prospectus also provides more information on this topic.
National Fuel Gas Company's principal executive offices are located at 10
Lafayette Square, Buffalo, New York 14203 and its telephone number is (716)
857-7000.
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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
----------
The date of this prospectus is , 200 .
RED HERRING
--------------------------------------------------------------------------------
The information in this prospectus is not complete and may be changed. National
Fuel Gas Company may not sell these securities until the registration statement
filed with the Securities and Exchange Commission is effective. This prospectus
is not an offer to sell these securities and it is not soliciting an offer to
buy these securities in any jurisdiction where the offer or sale is not
permitted.
--------------------------------------------------------------------------------
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS..........................................................3
NATIONAL FUEL GAS COMPANY......................................................3
WHERE YOU CAN FIND MORE INFORMATION............................................4
INCORPORATION BY REFERENCE.....................................................4
RATIO OF EARNINGS TO FIXED CHARGES.............................................5
USE OF PROCEEDS................................................................5
DESCRIPTION OF DEBT SECURITIES.................................................5
DESCRIPTION OF COMMON STOCK...................................................15
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS..............18
PLAN OF DISTRIBUTION..........................................................19
EXPERTS.......................................................................20
VALIDITY......................................................................20
2
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that National Fuel Gas
Company (National) has filed with the Securities and Exchange Commission (SEC)
using a "shelf" registration process. Under this shelf registration process,
National may sell the securities or combinations of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$800,000,000. This prospectus provides you with a general description of the
securities that National may offer. Each time National sells securities,
National will provide a prospectus supplement that will contain specific
information about the terms of that offering. The prospectus supplement may also
add, update or change information contained in this prospectus. You should read
both this prospectus and any prospectus supplement together with additional
information described under the heading "Where You Can Find More Information."
For more detailed information about the securities, you can read the
exhibits to the registration statement. Those exhibits have been either filed
with the registration statement or incorporated by reference to earlier SEC
filings listed in the registration statement.
NATIONAL FUEL GAS COMPANY
National, a holding company registered under the Public Utility Holding
Company Act of 1935, was organized under the laws of New Jersey in 1902.
National is engaged in the business of owning and holding securities issued by
its subsidiaries: National Fuel Gas Distribution Corporation, National Fuel Gas
Supply Corporation, Seneca Independence Pipeline Company, Seneca Resources
Corporation, Horizon Energy Development, Inc., National Fuel Resources, Inc.,
Highland Forest Resources, Inc., Upstate Energy Inc., Niagara Independence
Marketing Company, Leidy Hub, Inc., Data-Track Account Services, Inc. and
Horizon Power, Inc.
National and its subsidiaries comprise a diversified energy company
consisting of six major business segments:
o the Utility segment, which sells natural gas and provides natural gas
transportation services through a local distribution system located in
western New York and northwestern Pennsylvania;
o the Pipeline and Storage segment, which provides interstate natural
gas transportation and storage services;
o the Exploration and Production segment, which is engaged in the
exploration for, and the development and purchase of, natural gas and
oil reserves in California, the Appalachian region of the United
States, Wyoming and the Gulf Coast region of Texas and Louisiana, as
well as in the provinces of Manitoba, Alberta, Saskatchewan and
British Colombia in Canada;
o the International segment, which is engaged in foreign and domestic
energy projects through investments as a sole or substantial owner in
various business entities;
o the Energy Marketing segment, which is engaged in the marketing and
brokerage of natural gas and the performance of energy management
services for industrial, commercial, public authority and residential
end-users in the northeastern United States; and
o the Timber segment, which engages in the marketing of timber, the
operation of sawmills and the processing of timber.
3
National's other businesses are engaged in wholesale natural gas marketing and
other energy-related activities, the providing of various natural gas hub
services to customers, the providing of collection services for other
subsidiaries of National, and the development or operation of mid-range
independent power production facilities.
WHERE YOU CAN FIND MORE INFORMATION
National files annual, quarterly and other reports and other information
with the SEC. You can read and copy any information filed by National with the
SEC at the SEC's Public Reference Room at 450 Fifth Street, N.W., Washington,
D.C. 20549. You can obtain additional information about the Public Reference
Room by calling the SEC at 1-800-SEC-0330.
In addition, the SEC maintains an Internet site (http://www.sec.gov) that
contains reports, proxy and information statements, and other information
regarding issuers that file electronically with the SEC, including National.
National also maintains an Internet site (http://www.nationalfuelgas.com).
Information contained on National's Internet site does not constitute part of
this prospectus.
INCORPORATION BY REFERENCE
The 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 prospectus. The
information incorporated by reference is an important part of this prospectus.
National is incorporating by reference the document 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. Any of those future filings will update, supersede and replace
the information contained in any documents incorporated by reference in this
prospectus at the time of the future filings.
o National's Annual Report on Form 10-K for the fiscal year ended
September 30, 2002.
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, 10 Lafayette
Square, Buffalo, New York 14203, telephone (716) 857-7858.
You should rely only on the information contained in, or incorporated by
reference in, this prospectus and any prospectus supplement. National has not,
and any underwriters, agents or dealers have not, authorized anyone else to
provide you with different information. National is not, and any underwriters,
agents or dealers are not, making an offer of these securities or soliciting
offers to buy these securities in any state where the offer or solicitation is
not permitted. You should not assume that the information contained in this
prospectus and any prospectus supplement is accurate as of any date other than
the date on the front of such document or that the information incorporated by
reference in this prospectus is accurate as of any date other than the date of
the document incorporated by reference.
4
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows National's ratio of earnings to fixed charges for
the periods indicated:
Fiscal Years Ended September 30,
----------------------------------------------------------------------------
2002 2001 2000 1999 1998
2.74 1.94 2.98 3.02 1.66
USE OF PROCEEDS
Except as may otherwise be set forth in a prospectus supplement, the
proceeds from the sale of these securities may be used to reduce short-term
indebtedness, to redeem or discharge higher cost indebtedness, to finance a
portion of National's capital expenditures, for corporate development purposes,
including, without limitation, acquisitions made by or on behalf of National or
its subsidiaries, and for other general corporate purposes.
DESCRIPTION OF DEBT SECURITIES
GENERAL
The following description sets forth certain general terms and provisions
of National's unsecured debt securities, consisting of debentures and
medium-term notes, that National may offer by this prospectus. National will
describe the particular terms of the debt securities, and provisions that vary
from those described below, in one or more prospectus supplements.
The debt securities will be National's direct unsecured general
obligations. The debt securities will be senior debt securities. National may
issue the debt securities from time to time in one or more series, under an
indenture, dated as of October 1, 1999, between National and The Bank of New
York, as trustee (Trustee). This indenture, as it may be amended and
supplemented from time to time, is referred to in this prospectus as the
"Indenture."
The following descriptions of the debt securities and the Indenture are
summaries and are qualified by reference to the Indenture. This summary does not
contain a complete description of the debt securities. You should read this
summary together with the Indenture and the officer's certificates or other
documents establishing the debt securities for a complete understanding of the
provisions that may be important to you. References to certain sections of the
Indenture are included in parentheses. Whenever particular provisions or defined
terms in the Indenture are referred to under this "Description of Debt
Securities," such provisions or defined terms are incorporated by reference
herein. The Indenture is qualified under the Trust Indenture Act of 1939. You
should refer to the Trust Indenture Act of 1939 for provisions that apply to the
debt securities.
The debt securities will rank equally with all of National's other senior,
unsecured and unsubordinated debt.
Because National is a holding company that conducts all of its operations
through subsidiaries, holders of debt securities will generally have a position
junior to claims of creditors (including trade creditors of and holders of
indebtedness issued by any such subsidiary) and preferred stockholders of the
subsidiaries of National. No subsidiary currently has outstanding shares of
preferred stock.
5
The prospectus supplement relating to any series of debt securities being
offered will include specific terms relating to that offering. These terms will
include any of the following terms that apply to that series:
o the title of the debt securities;
o the total principal amount of the debt securities;
o the date or dates on which the principal of the debt securities will
be payable and how it will be paid;
o the rate or rates at which the debt securities will bear interest, or
how such rate or rates will be determined;
o the date or dates from which interest on the debt securities will
accrue, the interest payment dates on which interest will be paid, and
the record dates for interest payments;
o any right to extend the interest payment periods for the debt
securities and the duration of the extension;
o the percentage, if less than 100%, of the principal amount of the debt
securities that will be payable if the maturity of the debt securities
is accelerated;
o any date or dates on which, and the price or prices at which, the debt
securities may be redeemed at the option of National and any
restrictions on such redemptions;
o any sinking fund or other provisions or options held by holders of
debt securities that would obligate National to repurchase or
otherwise redeem the debt securities;
o any changes or additions to the events of default under the Indenture
or changes or additions to the covenants of National under the
Indenture;
o if the debt securities will be issued in denominations other than
$1,000;
o if payments on the debt securities may be made in a currency or
currencies other than United States dollars;
o any convertible feature or options regarding the debt securities;
o any rights or duties of another person to assume the obligations of
National with respect to the debt securities;
o any collateral, security, assurance or guarantee for the debt
securities; and
o any other terms of the debt securities not inconsistent with the terms
of the Indenture.
(See Section 301.)
The Indenture does not limit the principal amount of debt securities that
may be issued. The Indenture allows debt securities to be issued up to the
principal amount that may be authorized by National. Unless otherwise specified
in the prospectus supplement, any limit upon the aggregate principal amount of
6
the debt securities of any series may be increased without the consent of any
holders and additional debt securities of such series may be authenticated and
delivered up to the limit on the aggregate principal amount authorized with
respect to such series as so increased. Accordingly, the debt securities of any
series may be increased on the same terms and conditions, except for the issue
price and the issue date, and with the same CUSIP numbers as the debt securities
of such series initially offered.
Debt securities may be sold at a discount below their principal amount.
United States federal income tax considerations applicable to debt securities
sold at an original issue discount may be described in the prospectus
supplement. In addition, certain United States federal income tax or other
considerations applicable to any debt securities which are denominated or
payable in a currency or currency unit other than United States dollars may be
described in the prospectus supplement.
Except as may otherwise be described in a prospectus supplement, the
covenants contained in the Indenture will not afford holders of debt securities
protection in the event of a highly leveraged or similar transaction involving
National or in the event of a change in control.
PAYMENT AND PAYING AGENTS
Except as may be provided in the prospectus supplement, interest, if any,
on each debt security payable on each interest payment date will be paid to the
person in whose name such debt security is registered as of the close of
business on the regular record date for the interest payment date. However,
interest payable at maturity will be paid to the person to whom the principal is
paid. If there has been a default in the payment of interest on any debt
security, the defaulted interest may be paid to the holder of such debt security
as of the close of business on a date to be fixed by the Trustee, which will be
between 10 and 15 days prior to the date proposed by National for payment of
such defaulted interest or in any other manner permitted by any securities
exchange on which such debt security may be listed, if the Trustee finds it
practicable. (See Section 307.)
Unless otherwise specified in the prospectus supplement, principal of, and
premium, if any, and interest, if any, on the debt securities at maturity will
be payable upon presentation of the debt securities at the corporate trust
office of the Trustee, in The City of New York, as paying agent for National.
National may change the place of payment on the debt securities, may appoint one
or more additional paying agents (including National) and may remove any paying
agent, all at the discretion of National. (See Section 602.)
REGISTRATION AND TRANSFER
Unless otherwise specified in a prospectus supplement, the transfer of debt
securities may be registered, and debt securities may be exchanged for other
debt securities of the same series or tranche, of authorized denominations and
with the same terms and principal amount, at the corporate trust office of the
Trustee in The City of New York. National may change the place for registration
of transfer and exchange of the debt securities and may designate additional
places for such registration and exchange. Unless otherwise provided in the
prospectus supplement, no service charge will be made for any transfer or
exchange of the debt securities. However, National may require payment to cover
any tax or other governmental charge that may be imposed. National will not be
required to execute or to provide for the registration of transfer of, or the
exchange of, (a) any debt security during a period of 15 days prior to giving
any notice of redemption or (b) any debt security selected for redemption except
the unredeemed portion of any debt security being redeemed in part. (See Section
305.)
7
SATISFACTION AND DISCHARGE
National will be discharged from its obligations on the debt securities of
a particular series, or any portion of the principal amount of the debt
securities of such series, if it irrevocably deposits with the Trustee
sufficient cash or government securities to pay the principal, or portion of
principal, interest, any premium and any other sums when due on the debt
securities of such series at their maturity, stated maturity date, or
redemption. (See Section 701.)
The Indenture will be deemed satisfied and discharged when no debt
securities remain outstanding and when National has paid all other sums payable
by National under the Indenture. (See Section 702.)
All moneys National pays to the Trustee or any paying agent on debt
securities which remain unclaimed at the end of two years after payments have
become due will be paid to or upon the order of National. Thereafter, the holder
of such debt security may look only to National for payment thereof. (See
Section 603.)
LIMITATION ON LIENS ON SUBSIDIARY CAPITAL STOCK
The Indenture provides that, except as otherwise specified with respect to
a particular series of debt securities, National will not pledge, mortgage,
hypothecate or grant a security interest in, or permit any pledge, mortgage,
security interest or other lien upon, any capital stock of any of its
majority-owned subsidiaries, which capital stock National now or hereafter
directly owns, to secure any Indebtedness, as defined below, without also
securing the outstanding debt securities (so long as the other Indebtedness
shall be so secured) equally and ratably, with or, at National's option, prior
to, the other Indebtedness and any other Indebtedness similarly entitled to be
so secured.
This limitation does not apply to, or prevent the creation or existence of:
(1) any pledge, mortgage, security interest, lien or encumbrance upon any
such capital stock created at the time National acquires that capital
stock or within 270 days after that time to secure the purchase price
for that capital stock so acquired;
(2) any pledge, mortgage, security interest, lien or encumbrance upon any
such capital stock existing at the time National acquires that capital
stock, whether or not National assumes the secured obligations; or
(3) any extension, renewal, replacement or refunding of any pledge,
mortgage, security interest, lien or encumbrance permitted by (1) and
(2) above, or of any Indebtedness secured thereby; provided, that,
(a) the principal amount of Indebtedness so secured immediately after
the extension, renewal, replacement or refunding may not exceed
the principal amount of Indebtedness so secured immediately before
the extension, renewal, replacement or refunding, and
(b) the extension, renewal, replacement or refunding of such pledge,
mortgage, security interest, lien or encumbrance is limited to no
more than the same proportion of all shares of capital stock as
were covered by the pledge, mortgage, security interest, lien or
encumbrance that was extended, renewed, refunded or replaced; or
(4) any judgment, levy, execution, attachment or other similar lien arising
in connection with court proceedings, provided that:
8
(a) the execution or enforcement of the lien is effectively stayed
within 30 days after entry of the corresponding judgment, or the
corresponding judgment has been discharged within such 30 day
period, and the claims secured thereby are being contested in good
faith by appropriate proceedings timely commenced and diligently
prosecuted; or
(b) the payment of the lien is covered in full by insurance and the
insurance company has not denied or contested coverage thereof; or
(c) so long as the lien is adequately bonded, any appropriate legal
proceedings that may have been duly initiated for the review of
the corresponding judgment, decree or order shall not have been
fully terminated or the period within which these proceedings may
be initiated shall not have expired.
Any pledge, mortgage, security interest, lien or encumbrance on any shares
of the capital stock of any of the majority-owned subsidiaries of National,
which shares of capital stock National now or hereafter directly owns, to secure
any Indebtedness other than as described in (1) through (4) above, is referred
to in this prospectus as a "Restricted Lien." This limitation on liens does not
apply to the extent that National creates any Restricted Liens to secure
Indebtedness that, together with all other Indebtedness of National secured by
Restricted Liens, does not at the time exceed 5% of National's Consolidated
Capitalization. (See Section 608.)
For this purpose, "Consolidated Capitalization" means the sum of:
(1) Consolidated Common Shareholders' Equity;
(2) Consolidated Indebtedness, exclusive of any that is due and payable
within one year of the date the sum is determined; and, without
duplication
(3) any preference or preferred stock of National or any Consolidated
Subsidiary, as defined below, which is subject to mandatory redemption
or sinking fund provisions.
The term "Consolidated Common Shareholders' Equity," as used above, means
the total assets of National and its Consolidated Subsidiaries that would, in
accordance with generally accepted accounting principles in the United States,
be classified on a balance sheet as assets, less: (a) all liabilities of
National and its Consolidated Subsidiaries that would, in accordance with
generally accepted accounting principles in the United States, be classified on
a balance sheet as liabilities; (b) minority interests owned by third parties in
Consolidated Subsidiaries of National; and (c) preference or preferred stock of
National and its Consolidated Subsidiaries only to the extent any such
preference or preferred stock is subject to mandatory redemption or sinking fund
provisions.
The term "Consolidated Indebtedness," as used above, means total
indebtedness as shown on the consolidated balance sheet of National and its
Consolidated Subsidiaries.
The term "Consolidated Subsidiary," as used above, means at any date any
majority-owned subsidiary the financial statements of which under generally
accepted accounting principles in the United States would be consolidated with
those of National in its consolidated financial statements as of such date.
For purposes of the limitation described in the first paragraph under this
heading, "Indebtedness" means:
9
(1) all indebtedness created or assumed by National for the repayment of
money borrowed;
(2) all indebtedness for money borrowed secured by a lien upon capital
stock owned by National and upon which indebtedness for money borrowed
National customarily pays interest, although National has not assumed
or become liable for the payment of such indebtedness for money
borrowed; and
(3) all indebtedness of others for money borrowed which is guaranteed as to
payment of principal by National or in effect guaranteed by National
through a contingent agreement to purchase such indebtedness for money
borrowed, but excluding from this definition any other contingent
obligation of National in respect of indebtedness for money borrowed or
other obligations incurred by others.
The foregoing limitation does not limit in any manner the ability of: (1)
National to place liens on any of its assets other than the capital stock of
directly held, majority-owned subsidiaries; (2) National to cause the transfer
of its assets or those of its subsidiaries, including the capital stock covered
by the foregoing restrictions; or (3) any of the direct or indirect subsidiaries
of National to place liens on any of their assets.
In addition, the Indenture provides that if debentures issued by National
under the indenture dated as of October 15, 1974, as supplemented (1974
Indenture), between National and The Bank of New York, as trustee, in an
aggregate principal amount in excess of 5% of National's Consolidated
Capitalization become secured pursuant to the provisions of the 1974 Indenture,
National will secure any outstanding debt securities equally and ratably with
those debentures. If National secures the outstanding debt securities, as
provided in the prior sentence, then if and for so long as the aggregate
principal amount of the debentures secured pursuant to the 1974 Indenture at any
time decreases and as a result constitutes 5% or less of National's Consolidated
Capitalization, the outstanding debt securities will no longer be secured. (See
Section 608.)
As of September 30, 2002, the Consolidated Capitalization of National was
approximately $______.
CONSOLIDATION, MERGER, AND SALE OF ASSETS
Under the terms of the Indenture, National may not consolidate with or
merge into any other entity or convey, transfer or lease its properties and
assets substantially as an entirety to any entity, unless:
o the surviving or successor entity is organized and validly existing
under the laws of any domestic jurisdiction and it expressly assumes
National's obligations on all debt securities and under the Indenture;
o immediately after giving effect to the transaction, no event of
default and no event which, after notice or lapse of time or both,
would become an event of default shall have occurred and be
continuing; and
o National shall have delivered to the Trustee an officer's certificate
and an opinion of counsel as to compliance with the foregoing.
The terms of the Indenture do not restrict National in a merger in which
National is the surviving entity. (See Section 1101.)
10
EVENTS OF DEFAULT
"Event of default" when used in the Indenture with respect to any series of
debt securities, means any of the following:
o failure to pay interest, if any, on any debt security of the
applicable series for 30 days after it is due;
o failure to pay the principal of or premium, if any, on any debt
security of the applicable series when due (whether at maturity or
upon earlier redemption);
o failure to perform any other covenant in the Indenture, other than a
covenant that does not relate to that series of debt securities, that
continues for 90 days after National receives written notice from the
Trustee, or National and the Trustee receive a written notice from the
holders of at least 33% in principal amount of the debt securities of
such series; however, the Trustee or the Trustee and the holders of
such principal amount of debt securities of this series can agree to
an extension of the 90 day period and such an agreement to extend will
be automatically deemed to occur if National is diligently pursuing
action to correct the default;
o certain events in bankruptcy, insolvency or reorganization of
National; or
o any other event of default included in any supplemental indenture or
officer's certificate for a specific series of debt securities.
(See Section 801).
The Trustee may withhold notice to the holders of debt securities of any
default, except default in the payment of principal, premium or interest, if it
considers such withholding of notice to be in the interests of the holders. An
event of default for a particular series of debt securities does not necessarily
constitute an event of default for any other series of debt securities issued
under the Indenture.
REMEDIES
Acceleration of Maturity
If an event of default with respect to fewer than all the series of debt
securities occurs and continues, either the Trustee or the holders of at least
33% in principal amount of the debt securities of such series may declare the
entire principal amount of all the debt securities of such series, together with
accrued interest, to be due and payable immediately. However, if the event of
default is applicable to all outstanding debt securities under the Indenture,
only the Trustee or holders of at least 33% in principal amount of all
outstanding debt securities of all series, voting as one class, and not the
holders of any one series, may make such a declaration of acceleration.
At any time after a declaration of acceleration with respect to the debt
securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained, the event of default giving rise to
such declaration of acceleration will be considered waived, and such declaration
and its consequences will be considered rescinded and annulled, if:
o National has paid or deposited with the Trustee a sum sufficient to
pay:
- all overdue interest, if any, on all debt securities of the
series;
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- the principal of and premium, if any, on any debt securities of
the series which have otherwise become due and interest, if any,
that is currently due;
- interest, if any, on overdue interest; and
- all amounts due to the Trustee under the Indenture; and
o any other event of default with respect to the debt securities of that
series shall have been cured or waived as provided in the Indenture.
There is no automatic acceleration, even in the event of bankruptcy,
insolvency or reorganization of National. (See Section 802.)
Right to Direct Proceedings
Other than its duties in case of an event of default, the Trustee is not
obligated to exercise any of its rights or powers under the Indenture at the
request, order or direction of any of the holders, unless the holders offer the
Trustee a reasonable indemnity. (See Section 903.) If they provide a reasonable
indemnity, the holders of a majority in principal amount of any series of debt
securities will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any power conferred upon the Trustee. However, if the event of default relates
to more than one series, only the holders of a majority in aggregate principal
amount of all affected series will have the right to give this direction. (See
Section 812). The Trustee is not obligated to comply with directions that
conflict with law or other provisions of the Indenture.
Limitation on Right to Institute Proceedings
No holder of debt securities of any series will have any right to institute
any proceeding under the Indenture, or to exercise any remedy under the
Indenture, unless:
o the holder has previously given to the Trustee written notice of a
continuing event of default;
o the holders of a majority in aggregate principal amount of the
outstanding debt securities of all series in respect of which an event
of default shall have occurred and be continuing have made a written
request to the Trustee, and have offered reasonable indemnity to the
Trustee to institute proceedings; and
o the Trustee has failed to institute any proceeding for 60 days after
notice and has not received any direction inconsistent with the
written request of holders during such period.
(See Section 807.)
No Impairment of Right to Receive Payment
However, such limitations do not apply to a suit by a holder of a debt
security for payment of the principal of or premium, if any, or interest, if
any, on such debt security on or after the applicable due date. (See Section
808.)
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Annual Notice to Trustee
National will provide to the Trustee an annual statement by an appropriate
officer as to National's compliance with all conditions and covenants under the
Indenture. (See Section 606.)
Modification and Waiver
National and the Trustee may enter into one or more supplemental indentures
without the consent of any holder of debt securities for any of the following
purposes:
o to evidence the assumption by any permitted successor of the covenants
of National in the Indenture and in the debt securities;
o to add additional covenants of National or to surrender any right or
power of National under the Indenture;
o to add additional events of default;
o to change, eliminate, or add any provision to the Indenture; provided,
however, if the change, elimination, or addition will adversely affect
the interests of the holders of debt securities of any series in any
material respect, such change, elimination, or addition will become
effective only:
- when the consent of the holders of debt securities of such series
has been obtained in accordance with the Indenture; or
- when no debt securities of the affected series remain outstanding
under the Indenture;
o to provide collateral security for all but not part of the debt
securities;
o to establish the form or terms of debt securities of any other series
as permitted by the Indenture;
o to provide for the authentication and delivery of bearer securities
and coupons attached thereto;
o to evidence and provide for the acceptance of appointment of a
successor trustee;
o to provide for the procedures required for use of a noncertificated
system of registration for the debt securities of all or any series;
o to change any place where principal, premium, if any, and interest
shall be payable, debt securities may be surrendered for registration
of transfer or exchange and notices to National may be served; or
o to cure any ambiguity or inconsistency or to make any other provisions
with respect to matters and questions arising under the Indenture;
provided that such action shall not adversely affect the interests of
the holders of debt securities of any series in any material respect.
(See Section 1201.)
The holders of at least a majority in aggregate principal amount of the
debt securities of all series then outstanding may waive compliance by National
with certain restrictive provisions of the Indenture. (See Section 607.) The
holders of not less than a majority in principal amount of the outstanding debt
13
securities of any series may waive any past default under the Indenture with
respect to that series, except a default in the payment of principal, premium,
if any, or interest and certain covenants and provisions of the Indenture that
cannot be modified or be amended without the consent of the holder of each
outstanding debt security of the series affected. (See Section 813.)
If the Trust Indenture Act of 1939 is amended after the date of the
Indenture in such a way as to require changes to the Indenture, the Indenture
will be deemed to be amended so as to conform to such amendment of the Trust
Indenture Act of 1939. National and the Trustee may, without the consent of any
holders, enter into one or more supplemental indentures to evidence such an
amendment. (See Section 1201.)
The consent of the holders of a majority in aggregate principal amount of
the debt securities of all series then outstanding is required for all other
modifications to the Indenture. However, if less than all of the series of debt
securities outstanding are directly affected by a proposed supplemental
indenture, then the consent only of the holders of a majority in aggregate
principal amount of all series that are directly affected will be required. No
such amendment or modification may:
o change the stated maturity of the principal of, or any installment of
principal of or interest on, any debt security, or reduce the
principal amount of any debt security or its rate of interest or
change the method of calculating such interest rate or reduce any
premium payable upon redemption, or change the currency in which
payments are made, or impair the right to institute suit for the
enforcement of any payment on or after the stated maturity of any debt
security, without the consent of the holder;
o reduce the percentage in principal amount of the outstanding debt
securities of any series which consent is required for any
supplemental indenture or any waiver of compliance with a provision of
the Indenture or any default thereunder and its consequences, or
reduce the requirements for quorum or voting, without the consent of
all the holders of the series; or
o modify certain of the provisions of the Indenture relating to
supplemental indentures, waivers of certain covenants and waivers of
past defaults with respect to the debt securities of any series,
without the consent of the holder of each outstanding debt security
affected thereby.
A supplemental indenture which changes the Indenture solely for the benefit
of one or more particular series of debt securities, or modifies the rights of
the holders of debt securities of one or more series, will not affect the rights
under the Indenture of the holders of the debt securities of any other series.
(See Section 1202.)
The Indenture provides that debt securities owned by National or anyone
else required to make payment on the debt securities shall be disregarded and
considered not to be outstanding in determining whether the required holders
have given a request or consent. (See Section 101.)
National may fix in advance a record date to determine the required number
of holders entitled to give any request, demand, authorization, direction,
notice, consent, waiver or other such act of the holders, but National shall
have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other act of the
holders may be given before or after such record date, but only the holders of
record at the close of business on that record date will be considered holders
for the purposes of determining whether holders of the required percentage of
the outstanding debt securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other act
of the holders. For that purpose, the outstanding debt securities shall be
computed as of the record date. Any request, demand, authorization, direction,
14
notice, consent, election, waiver or other act of a holder shall bind every
future holder of the same debt securities and the holder of every debt security
issued upon the registration of transfer of or in exchange of such debt
securities. A transferee will be bound by acts of the Trustee or National taken
in reliance thereon, whether or not notation of such action is made upon such
debt security. (See Section 104.)
RESIGNATION OF THE TRUSTEE
The Trustee may resign at any time by giving written notice to National or
may be removed at any time by act of the holders of a majority in principal
amount of all series of debt securities then outstanding delivered to the
Trustee and National. No resignation or removal of the Trustee and no
appointment of a successor trustee will be effective until the acceptance of
appointment by a successor trustee. So long as no event of default or event
which, after notice or lapse of time, or both, would become an event of default
has occurred and is continuing and except with respect to a Trustee appointed by
act of the holders, if National has delivered to the Trustee a resolution of its
Board of Directors appointing a successor trustee and such successor has
accepted such appointment in accordance with the terms of the Indenture, the
Trustee will be deemed to have resigned and the successor will be deemed to have
been appointed as trustee in accordance with the Indenture. (See Section 910.)
NOTICES
Notices to holders of debt securities will be given by mail to the
addresses of such holders as they may appear in the security register therefor.
(See Section 106.)
TITLE
National, the Trustee, and any agent of National or the Trustee, may treat
the person in whose name debt securities are registered as the absolute owner
thereof, whether or not such debt securities may be overdue, for the purpose of
making payments and for all other purposes irrespective of notice to the
contrary. (See Section 308.)
GOVERNING LAW
The Indenture and the debt securities will be governed by, and construed in
accordance with, the laws of the State of New York. (See Section 112.)
REGARDING THE TRUSTEE
The Trustee will be The Bank of New York. In addition to acting as Trustee,
The Bank of New York acts, and may act, as trustee under various indentures and
trusts of National and its affiliates.
DESCRIPTION OF COMMON STOCK
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 the registration statement and incorporated herein by reference.
Reference is also made to National's 1974 Indenture.
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
15
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.
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 amount available for the declaration and payment of
dividends on National's common stock pursuant to this restriction will be
described in the applicable prospectus supplement.
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).
16
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
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
17
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;
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.
DESCRIPTION OF STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
National may issue stock purchase contracts, including contracts that
obligate holders to purchase from National, and National to sell to these
holders, a specified number of shares of common stock at a future date or dates.
The consideration per share of common stock may be fixed at the time the stock
purchase contracts are issued or may be determined by reference to a specific
formula set forth in the stock purchase contracts. The stock purchase contracts
may be issued separately or as a part of stock purchase units consisting of a
stock purchase contract and either debt securities of National or U.S. Treasury
securities that are pledged to secure the holders' obligations to purchase the
common stock under the stock purchase contracts. The stock purchase contracts
may require National to make periodic payments to the holders of some or all of
the stock purchase units or vice versa, and such payments may be unsecured or
prefunded on some basis. The stock purchase contracts may require holders to
secure their obligations under these stock purchase contracts in a specified
manner.
18
A prospectus supplement will describe the terms of any stock purchase
contracts or stock purchase units being offered. The description in the
prospectus supplement will not necessarily be complete, and reference will be
made to the stock purchase contracts. Some of the important United States
federal income tax considerations applicable to the stock purchase units and
stock purchase contracts will be discussed in the related prospectus supplement.
PLAN OF DISTRIBUTION
National may sell the securities offered pursuant to this prospectus
(Offered Securities) in one or more series in any of three ways: (1) through
underwriters or dealers; (2) through agents; or (3) directly to a limited number
of purchasers or to a single purchaser.
THROUGH UNDERWRITERS OR DEALERS. If underwriters are used in the sale, the
Offered Securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, including
negotiated transactions, at the initial public offering price or at varying
prices determined at the time of the sale. The Offered Securities may be offered
to the public either through underwriting syndicates represented by one or more
managing underwriters or directly by one or more managing underwriters. The
underwriter or underwriters with respect to Offered Securities will be named in
the prospectus supplement relating to such offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on
the cover page of such prospectus supplement. Unless otherwise set forth in such
prospectus supplement, the obligations of the underwriters to purchase the
Offered Securities will be subject to certain conditions precedent, and the
underwriters will be obligated to purchase all of the Offered Securities if any
are purchased.
THROUGH AGENTS. Offered Securities may be sold through agents designated by
National from time to time. A prospectus supplement will set forth the name of
any agent involved in the offer or sale of the Offered Securities in respect of
which such prospectus supplement is delivered as well as any commissions payable
by National to such agent. Unless otherwise indicated in such prospectus
supplement, any such agent will be acting on a reasonable best efforts basis for
the period of its appointment.
DIRECTLY. National may sell the Offered Securities directly to one or more
purchasers. In this case, no underwriters or agents would be involved.
GENERAL INFORMATION. The prospectus supplement with respect to the Offered
Securities will set forth the terms of the offering of such Offered Securities,
including:
o the name or names of any underwriters, dealers or agents;
o the purchase price of such Offered Securities and the proceeds to
National from such sale;
o any underwriting discounts, agents' commissions and other items
constituting underwriting compensation;
o any initial public offering price; and
o any discounts or concessions allowed or reallowed or paid to dealers.
Any initial public offering price and any discounts or concessions allowed
or reallowed or paid to dealers may be changed from time to time.
19
If so indicated in the prospectus supplement with respect to the Offered
Securities, National may authorize agents, underwriters or dealers to solicit
offers by certain specified institutions to purchase the Offered Securities from
National at the initial public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject to
those conditions set forth in such prospectus supplement, and such prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
Agents, underwriters and dealers may be entitled under agreements entered
into with National to indemnification by National against certain civil
liabilities, including certain liabilities under the Securities Act of 1933 or
to contribution by National with respect to payments which such agents,
underwriters and dealers may be required to make in respect thereof.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to National's Annual Report on Form 10-K for the year ended September
30, 2002 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
The information incorporated in this prospectus by reference to National's
most recent Annual Report on Form 10-K relating to the oil and gas reserves of
Seneca Resources Corporation, National Fuel Exploration Corp. and Player
Resources, Ltd., which has been specifically attributed to Ralph E. Davis
Associates, Inc., has been reviewed and verified by said firm and has been
included herein in reliance upon the authority of said firm as an expert.
VALIDITY
The validity of the securities will be passed upon for National by Thelen
Reid & Priest LLP, New York, New York, and for the underwriters, dealers, or
agents by Pillsbury Winthrop LLP, New York, New York. However, all matters of
New Jersey law, including the incorporation of National, will be passed upon
only by Stryker, Tams & Dill LLP, Newark, New Jersey.
20
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
SEC Filing Fees................................................... $ 66,011
New York Stock Exchange Listing Fee*.............................. 33,200
Printing and Engraving Expenses*.................................. 70,000
Accounting Fees and Expenses*..................................... 240,000
Legal Fees and Expenses*.......................................... 500,000
Fees and Expenses of Trustee*..................................... 40,000
Transfer Agent and Registrar Fees*................................ 20,000
Rating Agency Fees*............................................... 75,000
Miscellaneous*.................................................... 15,789
----------
Total Expenses*............................................ $1,060,000
==========
----------------------
* Estimated.
ITEM 15. 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
satisfactions 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.
II-1
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.
II-2
(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 receipt of an
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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 bc 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 insurance from, or such insurance may
II-4
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."
II-5
ITEM 16. EXHIBITS.
Exhibit
Number Description of Exhibits
------ -----------------------
1 - Underwriting Agreements:
** - Form of Sales Agency and/or Distribution Agreement.
** - Form of Underwriting Agreement and/or Purchase Agreement.
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 through December 13, 2001 (Exhibit 3.1,
Form 10-K/A for the fiscal year ended September 30, 2001 in
File No. 1-3880 filed with the SEC on January 25, 2002).
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).
* - 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).
* - Officers 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).
II-6
* - 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).
4(a) - Form of Officer's Certificate relating to debt securities
establishing senior notes, with form of debt security
attached.
4(b) - Form of Officer's Certificate relating to debt securities
establishing medium-term notes, with form of debt security
attached.
4(c) - Form of Purchase Contract Agreement.
5(a) - Opinion of Thelen Reid & Priest LLP, Counsel for National
Fuel Gas Company. 5(b) - Opinion of Stryker, Tams & Dill LLP,
New Jersey Counsel for National Fuel Gas Company.
*12 - Computation of Ratio of Earnings to Fixed Charges (Exhibit
12, Form 10-K for the Annual Period ended September 30, 2002
in File No. 1-3880).
23(a) - Consent of PricewaterhouseCoopers LLP.
23(b) - Consents of Thelen Reid & Priest LLP and Stryker, Tams &
Dill LLP are contained in their opinions filed as Exhibit
5(a) and Exhibit 5(b), respectively, to this registration
statement.
23(c) - Consent of Ralph E. Davis Associates, Inc. regarding Seneca
Resources Corporation.
23(d) - Consent of Ralph E. Davis Associates, Inc. regarding National
Fuel Exploration Corp.
23(e) - Consent of Ralph E. Davis Associates, Inc. regarding Player
Resources Ltd.
24 - The Power of Attorney is contained on the signature page of
this registration statement.
25(a) - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as Trustee.
25(b) - Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of The Bank of New York, as purchase contract
agent.
----------------------
* Incorporated herein by reference as indicated.
**To be filed by an amendment or pursuant to a report to be filed pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, if applicable.
ITEM 17. 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; and
II-7
(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 15 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.
II-8
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
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Buffalo, State of New York, on the 24th day of
December, 2002.
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, President, December 24, 2002
-------------------------------------------- Chief Executive Officer
P.C. Ackerman and Director
/s/ J.P. Pawlowski Treasurer, Principal Financial December 24, 2002
-------------------------------------------- Officer and Principal Accounting
J.P. Pawlowski Officer
/s/ R.T. Brady Director December 24, 2002
--------------------------------------------
R.T. Brady
/s/ J.V. Glynn Director December 24, 2002
--------------------------------------------
J.V. Glynn
II-9
/s/ W.J. Hill Director December 24, 2002
--------------------------------------------
W.J. Hill
/s/ B.J. Kennedy Director December 24, 2002
--------------------------------------------
B.J. Kennedy
/s/ R.E. Kidder Director December 24, 2002
--------------------------------------------
R.E. Kidder
/s/ B.S. Lee Director December 24, 2002
--------------------------------------------
B.S. Lee
/s/ E.T. Mann Director December 24, 2002
--------------------------------------------
E.T. Mann
/s/ G.L. Mazanec Director December 24, 2002
------------------------------------
G.L. Mazanec
/s/ J. F. Riordan Director December 24, 2002
--------------------------------------------
J. F. Riordan
II-10
EXHIBIT INDEX
Exhibit
Number Description of Exhibits
------ -----------------------
4(a) Form of Officer's Certificate relating to debt securities
establishing senior notes, with form of debt security
attached.
4(b) Form of Officer's Certificate relating to debt securities
establishing medium-term notes, with form of debt security
attached.
4(c) Form of Purchase Contract Agreement
5(a) Opinion of Thelen Reid & Priest LLP, Counsel for National
Fuel Gas Company. 5(b) Opinion of Stryker, Tams & Dill LLP,
New Jersey Counsel for National Fuel Gas Company.
23(a) Consent of PricewaterhouseCoopers LLP.
23(b) Consents of Thelen Reid & Priest LLP and Stryker, Tams & Dill
LLP are contained in their opinions filed as Exhibit 5(a) and
Exhibit 5(b), respectively, to this registration statement.
23(c) Consent of Ralph E. Davis Associates, Inc. regarding Seneca
Resources Corporation.
23(d) Consent of Ralph E. Davis Associates, Inc. regarding National
Exploration Corp.
23(e) Consent of Ralph E. Davis Associates, Inc. regarding Player
Fuel Resources Ltd.
24 The Power of Attorney is contained on the signature page of this
registration statement.
25(a) Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Bank of New York, as Trustee.
25(b) Form T-1 Statement of Eligibility under the Trust Indenture Act
of 1939 of The Bank of New York, as purchase contract agent.