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Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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EQUITABLE RESOURCES, INC.
(Exact name of issuer 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)
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1999 EQUITABLE RESOURCES, INC.
LONG-TERM INCENTIVE PLAN
(Full title of the plan)
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JOHANNA G. O'LOUGHLIN, VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ONE OXFORD CENTRE, SUITE 3300, 301 GRANT STREET
PITTSBURGH, PENNSYLVANIA 15219
(412) 553-7760
(Name, address and telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
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Title of Proposed Proposed
securities Amount maximum maximum Amount of
to be to be offering price aggregate registration
registered registered per share* offering price* fee
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Common Stock, no par value 5,000,000 shs. $27.765 $138,825,000 $34,706.25
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* Pursuant to Rules 457(h) and 457(c), the offering price of the shares covered
by the registration statement is estimated solely for purposes of calculating
the registration fee and is based on the average of the reported high and low
sale prices for the registrant's Common Stock in the NASDAQ National Market
System on September 27, 2001.
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PART II
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the registrant with the Securities and
Exchange Commission (File No. 001-03551) are incorporated by reference in this
Registration Statement:
(a) The registrant's latest annual report on Form 10-K filed
pursuant to Section 13(a) of the Securities Exchange Act of 1934 (the
"1934 Act");
(b) All other reports filed by the registrant pursuant to
Section 13(a) of the 1934 Act since the end of the fiscal year
covered by the annual report on Form 10-K referred to in paragraph
(a) above; and
(c) The description of the registrant's Common Stock, no par
value (the "Common Stock"), which is contained in the Prospectus
contained in the registrant'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 filed by the registrant pursuant to Sections 13(a),
13(c), 14 or 15(d) of the 1934 Act subsequent to the filing of the annual report
on Form 10-K referred to in paragraph (a) above and prior to the filing of a
post-effective amendment which indicates that all securities offered hereby 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, except that the
information included in any document in response to Item 306 or paragraphs (i),
(k) or (l) of Item 402 of Regulation S-K is not incorporated by reference in
this Registration Statement.
Any statement contained in a document incorporated or deemed to be
incorporated by reference in this Registration Statement shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained in this Registration Statement or in any other
contemporaneously or subsequently filed document which also is or is deemed to
be incorporated by reference in this Registration Statement 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 registrant by Johanna G.
O'Loughlin employed by the Company as its Vice President, General Counsel and
Secretary. On August 31, 2001, Ms. O'Loughlin beneficially owned 13,747 shares
of the registrant's Common Stock, held options to purchase an additional 206,000
shares of Common Stock, and held restricted Common Stock awards of 12,291
shares.
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ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
1. Pennsylvania Business Corporation Law. Sections 1741 and 1742 of the
Pennsylvania Business Corporation Law (the "BCL") 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 person is fairly and reasonably entitled to indemnity for
the expenses that the court deems proper.
BCL 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, BCL 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.
BCL Section 1745 provides that expenses (including attorneys' fees)
incurred by an officer, director, employee or agent of a business corporation in
defending any proceeding may be paid by the corporation in advance of the final
disposition of the proceeding upon receipt of an undertaking to repay the amount
advanced if it is ultimately determined that the indemnitee is not entitled to
be indemnified by the corporation.
BCL 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 directors or
otherwise, and that indemnification may be granted under any bylaw, agreement,
vote of shareholders or disinterested directors or otherwise for any action
taken or any failure to take any action whether or not
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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.
BCL 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.
2. Indemnification Bylaw. Article IV of the registrant's Bylaws
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.
Article IV of the registrant's Bylaws also 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.
As permitted by BCL Section 1713, the registrant's Articles and Bylaws
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 BCL 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. BCL Section 1715(d) creates a
presumption, subject to exceptions, that a director acted in the best interests
of the corporation. BCL 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.
3. Director and Officer Liability Insurance. The registrant maintains
directors' and officers' liability insurance covering its directors and officers
with respect to liability which they may incur in connection with their serving
as such, which liability could include liability under the Securities Act of
1933. Under the insurance, the registrant is entitled to reimbursement for
amounts as to which the directors and officers are indemnified under the Bylaw
indemnification provision. The insurance may also provide certain additional
coverage for the directors and officers against certain liability even though
such liability is not subject to foregoing Bylaw indemnification provision.
4. Indemnification Agreements. In May, 2000, the registrant entered
into a separate Indemnity Agreement with each of its then directors and
officers. The registrant then entered into separate
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Indemnity Agreements with each new director and officer who joined the Board of
Directors or the registrant after May, 2000. 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.
An Exhibit Index, containing a list of all exhibits filed with this
Registration Statement, is included on page II-8.
ITEM 9. UNDERTAKINGS.
(a) Rule 415 offering.
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 (the "1933
Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration
statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the
registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed by
the registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 (the "1934 Act") that are incorporated
by reference in the registration statement;
(2) That, for the purpose of determining any liability under
the 1933 Act, 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; and
(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.
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(b) Filings incorporating subsequent Exchange Act Documents by
Reference.
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the 1933 Act, each filing of the registrant's
annual report pursuant to section 13(a) or section 15(d) of the 1934 Act 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.
(h) Filing of Registration Statement on Form S-8.
Insofar as indemnification for liabilities arising under the 1933 Act
may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described under Item 6 above, or
otherwise, the registrant has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the 1933 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 1933 Act
and will be governed by the final adjudication of such issue.
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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-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 THE 3RD
DAY OF OCTOBER, 2001.
EQUITABLE RESOURCES, INC.
BY: /s/ JOHANNA G. O'LOUGHLIN
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JOHANNA G. O'LOUGHLIN, VICE PRESIDENT,
GENERAL COUNSEL AND SECRETARY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Murry S. Gerber, David L. Porges and
Johanna G. O'Loughlin, and each of them, the undersigned's true and lawful
attorneys-in-fact and agents, with full power of substitution and
resubstitution, for and in the undersigned's name, place and stead, in any and
all capacities, to sign any and all amendments (including post-effective
amendments) to this registration statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as the undersigned might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, or
their or his substitutes, may lawfully do or cause to be done by virtue thereof.
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
SIGNATURE CAPACITY DATE
/s/ Murry S. Gerber President, Chief Executive October 3, 2001
----------------------------------------- Officer and Director (Principal -------------------
Murry S. Gerber Executive Officer)
/s/ David L. Porges Executive Vice President and October 3, 2001
----------------------------------------- Chief Financial Officer -------------------
David L. Porges (Principal Financial Officer)
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SIGNATURE CAPACITY DATE
/s/ John A. Bergonzi Corporate Controller and October 3, 2001
----------------------------------------- Assistant Treasurer -------------------
John A. Bergonzi (Principal Accounting Officer)
/s/ Phyllis A. Domm Director October 3, 2001
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Phyllis A. Domm
/s/ E. Lawrence Keyes, Jr. Director October 3, 2001
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E. Lawrence Keyes, Jr.
/s/ Thomas A. McConomy Director October 3, 2001
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Thomas A. McConomy
/s/ George L. Miles, Jr. Director October 3, 2001
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George L. Miles, Jr.
/s/ Donald I. Moritz Director October 3, 2001
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Donald I. Moritz
/s/ Malcolm M. Prine Director October 3, 2001
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Malcolm M. Prine
/s/ James E. Rohr Director October 3, 2001
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James E. Rohr
/s/ David S. Shapira Director October 3, 2001
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David S. Shapira
/s/ J. Michael Talbert Director October 3, 2001
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J. Michael Talbert
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EQUITABLE RESOURCES, INC.
1999 EQUITABLE RESOURCES, INC. LONG-TERM INCENTIVE PLAN
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REGISTRATION STATEMENT
ON FORM S-8
EXHIBIT INDEX
(Pursuant to Item 601 of Regulation S-K)
EXHIBIT
NO. DESCRIPTION AND METHOD OF FILING
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4.1 Restated Articles of Incorporation of the registrant dated May
18, 1999 (incorporated herein by reference to Exhibit 3.01 to
the registrant's Annual Report on Form 10-K for the year ended
December 31, 1999).
4.2 Bylaws of the registrant, as amended through May 17, 2000
(incorporated herein by reference to Exhibit 3.02 to the
registrant's Quarterly Report on Form 10-Q for the quarter
ended June 30, 2000).
5.1 Opinion of Johanna G. O'Loughlin as to the legality of the
shares being registered (filed herewith).
23.1 Consent of Johanna G. O'Loughlin (contained in the opinion
filed herewith as Exhibit 5.1).
23.2 Consent of Ernst & Young LLP, independent auditors (filed
herewith).
24.1 Power of Attorney, contained on the signature page to this
Registration Statement.
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