Registration No.
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.
Non-Employee Directors' Stock 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)
Telephone number, including area code,
of agent for service: (412) 553-7760
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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 300,000
(No Par Value) shares 36 9/16* $10,968,750 $3,050
- -------------- ----------- --------- ----------- -------------
* Estimated solely for the purpose of calculating the registration fee;
computed on the basis of the high and low prices 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 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 2066 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 independent legal 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 directors and officers. The Registrant
then entered into a separate Indemnity Agreement with each new director or
officer who joined the Board of Directors or 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 Non-Employee Directors' Stock 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
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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