SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
EQUITABLE RESOURCES, INC.
................................................................................
................................................................................
(Exact name of registrant as specified in its charter)
Pennsylvania 25-0464690
........................................... .................................
........................................... .................................
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
One Oxford Centre, Suite 3300
301 Grant Street
Pittsburgh, Pennsylvania 15219
........................................... .................................
(Address of Principal Executive Offices) (Zip Code)
1999 Equitable Resources, Inc.
Long-Term Incentive Plan
................................................................................
(Full title of the plan)
Johanna G. O'Loughlin, Vice President, General Counsel and Secretary
One Oxford Centre, Suite 3300, 301 Grant Street
Pittsburgh, Pennsylvania 15219
................................................................................
(Name and address of agent for service)
(412) 553-7760
................................................................................
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
- -------------- ---------- ---------- ------------ ------------
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be To be price offering Registration
registered Registered per share price Fee
- -------------- ---------- ---------- ------------ ------------
Common Stock 3,000,000 36 9/16* $109,687,500 $30,494
(No Par Value) shares
- -------------- ---------- ---------- ------------ ------------
* Estimated solely for the purpose of calculating the registration fee;
computed on the basis of the average of the high and low price per share of
common stock sold on June 25, 1999, pursuant to Rule 457(h).
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated in this Registration Statement by reference:
(1) The Annual Report on Form 10-K for the year ended December 31, 1998.
(2) Amendment Number 1 filed March 30, 1999 to the Annual Report on Form 10-K
for the year ended December 31, 1998.
(3) Proxy Statement for the Company's Annual Meeting of Shareholders held May
26, 1999.
(4) Quarterly Report on Form 10-Q for the first quarter ended March 31, 1999.
(5) Current Report on Form 8-K dated January 4, 1999.
(6) Current Report on Form 8-K dated June 1, 1999.
(7) Description of the Company's Common Stock set forth in
the Prospectus contained in the Company's Registration Statement on Form
S-3, Registration No. 33-49905, filed August 4, 1993, and Pre-Effective
Amendment to said Registration Statement filed August 25, 1993.
All documents subsequently filed by Equitable Resources, Inc.
pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of
1934, prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration
Statement.
Item 4. DESCRIPTION OF SECURITIES.
Not Applicable.
Item 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Certain legal matters in connection with the sale of the shares of
Common Stock offered hereby will be passed upon for the Company by Johanna G.
O'Loughlin employed by the Company as its Vice President, General Counsel and
Secretary. On June 25, 1999, Ms. O'Loughlin beneficially owned 2,066 shares of
the Company's Common Stock, held options to purchase an additional 43,000 shares
of Common Stock, and held restricted Common Stock awards of 3,998 shares.
Item 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Sections 1741 and 1742 of the Pennsylvania Business Corporation Law
(the "PBCL") provide that a business corporation shall have the power to
indemnify any person who was or is a party, or is threatened to be made a party,
to any proceeding, whether civil, criminal, administrative or investigative, by
reason of the fact that such person is or was a director, officer, employee or
agent of the corporation, or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by such person in
connection with such proceeding, if such person acted in, good faith and in a
manner he reasonably believed to be in, or not opposed to, the best interests of
the corporation, and, with respect to any criminal proceeding, had no reasonable
cause to believe his conduct was unlawful. In the case of an action by or in the
right of the corporation, such indemnification is limited to expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
with the defense or settlement of such action, except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
has been adjudged to be liable to the corporation unless, and only to the extent
that, a court determines upon application that, despite the adjudication of
liability but in view of all the circumstances, such persons is fairly and
reasonably entitled to indemnity for the expenses that the court deems proper.
PBCL Section 1744 provides that, unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct. Such determination shall be made:
(1) by the Board of Directors by a majority vote of a quorum consisting
of directors who were not parties to the proceeding; or
(2) if such a quorum is not obtainable, or if obtainable and a majority
vote of a quorum of disinterested directors so directs, by independentlegal
counsel in a written opinion; or
(3) by the shareholders.
Notwithstanding the above, PBCL Section 1743 provides that to the
extent that a director, officer, employee or agent of a business corporation is
successful on the merits or otherwise in defense of any proceeding referred to
above, or in defense of any claim, issue or matter therein, such person shall be
indemnified against expenses (including attorneys' fees) actually and reasonably
incurred by such person in connection therewith.
PBCL Section 1745 provides that expenses (including attorneys' fees)
incurred by an officer, director, employee or agent of a business corporation in
defending any such proceeding may be paid by the corporation in advance of the
final disposition of the proceeding upon receipt of any undertaking to repay the
amount advanced if it is ultimately determined that the indemnitee is not
entitled to be indemnified by the corporation.
PBCL Section 1746 provides that the indemnification and advancement
of expenses provided by, or granted pursuant to, the foregoing provisions is not
exclusive of any other rights to which a person seeking indemnification may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, and that indemnification may be granted under any bylaw,
agreement, vote of shareholders or directors or otherwise by any action taken or
any failure to take any action whether or not the corporation would have the
power to indemnify the person under any other provision of law and whether or
not the indemnified liability arises or arose from any action by or in the right
of the corporation, provided, however, that no indemnification may be made in
any case where the act or failure to act giving rise to the claim for
indemnification is determined by a court to have constituted willful misconduct
or recklessness.
Article IV of the By-Laws of the Registrant provides that the
directors, officers, agents and employees of the Registrant shall be indemnified
as of right to the fullest extent now or hereafter not prohibited by law in
connection with any actual or threatened action, suit or proceeding, civil,
criminal, administrative, investigative or other (whether brought by or in the
right of the Registrant or otherwise) arising out of their service to the
Registrant or to another enterprise at the request of the Registrant.
PBCL Section 1747 permits a Pennsylvania business corporation to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving at
the request of the corporation as a director, officer, employee or agent of
another corporation or other enterprise, against any liability asserted against
such person and incurred by him in any such capacity, or arising out of his
status as such, whether or not the corporation would have the power to indemnify
the person against such liability under the provisions described above.
Article IV of the By-Laws of the Registrant provides that the
Registrant may purchase and maintain insurance to protect itself and any
director, officer, agent or employee entitled to indemnification under Article
IV against any liability asserted against such person and incurred by such
person in respect of the service of such person to the Registrant whether or not
the Registrant would have the power to indemnify such person against such
liability by law or under the provisions of Article IV.
The Registrant maintains directors' and officers' liability
insurance covering its directors and officers with respect to liabilities,
including liabilities under the Securities Act of 1933, as amended, which they
may incur in connection with their serving as such. Under this insurance, the
Registrant may receive reimbursement for amounts as to which the directors and
officers are indemnified by the Registrant under the foregoing By-Law
indemnification provision. Such insurance also provides certain additional
coverage for the directors and officers against certain liabilities even though
such liabilities may not be covered by the foregoing By-Law indemnification
provision.
As permitted by PBCL Section 1713, the Articles and the By-Laws of
the Registrant provide that no director shall be personally liable for monetary
damages for any action taken, or failure to take any action, unless such
director's breach of duty or failure to perform constituted self-dealing,
willful misconduct or recklessness. The PBCL states that this exculpation from
liability does not apply to the responsibility or liability of a director
pursuant to any criminal statute or the liability of a director for the payment
of taxes pursuant to federal, state or local law. It may also not apply to
liabilities imposed upon directors by the Federal securities laws. PBCL Section
1715(d) creates a presumption, subject to exceptions, that a director acted in
the best interests of the corporation. PBCL Section 1712, in defining the
standard of care a director owes to the corporation, provides that a Director
stands in a fiduciary relation to the corporation and must perform his duties as
a director or as a member of any committee of the Board in good faith, in a
manner he reasonably believes to be in the best interests of the corporation and
with such care, including reasonable inquiry, skill and diligence, as a person
of ordinary prudence would use under similar circumstances.
In June 1987, the Registrant entered into a separate Indemnity
Agreement with each of its then irectors and officers. The Registrant then
entered into separate Indemnity Agreements with each new director and officer
who joined the Board of Directors or the registrant after June 1987. These
Indemnity Agreements provide a contractual right to indemnification against
expenses and liabilities (subject to certain limitations and exceptions) and a
contractual right to advancement of expenses, and contain additional provisions
regarding the determination of entitlement, settlement of proceedings,
insurance, rights of contribution, and other matters.
Item 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not Applicable.
Item 8. EXHIBITS.
Number Description
4.1 Restated Articles of Incorporation of
Equitable Resources, Inc., filed herewith.
5.1 Opinion of Johanna G. O'Loughlin as to the
legality of the Equitable Resources, Inc.
Common Stock covered by this Registration
Statement, filed herewith.
23.1 Consent of Ernst & Young LLP, independent
auditors, filed herewith.
23.2 Consent of Johanna G. O'Loughlin to the use
of the Opinion referred to under 5.1 above
(such consent to be contained in such
Opinion).
24.1 Power of Attorney.
99.1 Copy of 1999 Long-Term Incentive Plan.
Item 9. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or
events arising after the effective date of
the registration statement (or the most
recent post-effective amendment thereof)
which, individually or in the aggregate,
represents a fundamental change in the
information set forth in the registration
statement;
(iii) to include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to
be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed 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.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer
or controlling person of the registrant in the successful defense of
any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its
counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the
Act and will be governed by the final adjudication of such issue.
SIGNATURES
The Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Pittsburgh, Commonwealth of Pennsylvania, on
................................., 1999 (Registrant)EQUITABLE RESOURCES, INC. By
(Signature and Title) /s/Johanna G. O'Loughlin
-----------------------------------------------------------
Vice President, General Counsel and Secretary
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
/s/MURRY S. GERBER President, Chief Executive Officer
- -------------------------------- Officer and Director
Murry S. Gerber
/s/DAVID L. PORGES Chief Financial Officer
- --------------------------------
David L. Porges
/s/JOHN BERGONZI Controller and Chief Accounting
- -------------------------------- Officer
John Bergonzi
/s/PAUL CHRISTIANO
- -------------------------------- Director
Paul Christiano
/s/PHYLLIS A.DOMM
- -------------------------------- Director
Phyllis A. Domm
/s/E. LAWRENCE KEYES, JR, Director
- --------------------------------
E. Lawrence Keyes, Jr.
/s/THOMAS A. MCCONOMY Director
- --------------------------------
Thomas A. McConomy
/s/DONALD I. MORITZ Director
- --------------------------------
Donald I Moritz
/s/GUY W. NICHOLS Director
- --------------------------------
Guy W. Nichols
/s/MALCOLM M. PRINE Director
- --------------------------------
Malcolm M. Prine
/s/JAMES E. ROHR Director
- --------------------------------
James E. Rohr
/s/DAVID S. SHAPIRA Director
- --------------------------------
David S. Shapira
/s/J. MICHAEL TALBERT Director
- --------------------------------
J. Michael Talbert