deemed to have
breached its obligations under the change of control offer provisions of the
notes by virtue of any such conflict.
For
purposes of the change of control offer provisions of the notes, the following
terms will be applicable:
change of control
means the occurrence
of
any of the following: (1) the direct or indirect sale, lease, transfer,
conveyance or other disposition (other than by way of merger or consolidation),
in one or more series of related transactions, of all or substantially all of
Nationals assets and the assets of Nationals subsidiaries, taken as a whole,
to any person, other than National or one of Nationals subsidiaries; (2) the
consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any person becomes the beneficial
owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of more than 50% of Nationals outstanding voting stock or other
voting stock into which Nationals voting stock is reclassified, consolidated,
exchanged or changed, measured by voting power rather than number of shares;
(3) National consolidates with, or merges with or into, any person, or any
person consolidates with, or merges with or into, National, in any such event
pursuant to a transaction in which any of Nationals outstanding voting stock
or the voting stock of such other person is converted into or exchanged for
cash, securities or other property, other than any such transaction where the
shares of Nationals voting stock outstanding immediately prior to such
transaction constitute, or are converted into or exchanged for, a majority of
the voting stock of the surviving person or any direct or indirect parent
company of the surviving person, measured by voting power rather than number of
shares, immediately after giving effect to such transaction; (4) the first day
on which a majority of the members of Nationals Board of Directors are not
continuing directors; or (5) the adoption of a plan relating to Nationals
liquidation or dissolution.
The
term
person
, as used in this
definition, has the meaning given thereto in Section 13(d)(3) of the Exchange
Act.
change of control triggering event
means
the occurrence of both a change of control and a rating event.
continuing directors
means, as of any
date of determination, any member of Nationals Board of Directors who (1) was
a member of such Board of Directors on the date the notes were issued or (2)
was nominated for election, elected or appointed to such Board of Directors
with the approval of a majority of the continuing directors who were members of
such Board of Directors at the time of such nomination, election or appointment
(either by a specific vote or by approval of Nationals proxy statement in which
such member was named as a nominee for election as a director).
Fitch
means Fitch Ratings and its
successors.
investment grade rating
means a rating
equal to or higher than BBB- (or the equivalent) by Fitch, Baa3 (or the equivalent)
by Moodys and BBB- (or the equivalent) by S&P, and the equivalent
investment grade credit rating from any replacement rating agency or rating
agencies selected by National.
Moodys
means Moodys
Investors Service,
Inc. and its successors.
rating agencies
means (1) each of
Fitch,
Moodys and S&P and (2) if any of Fitch, Moodys or S&P ceases to rate
the notes or fails to make a rating of the notes publicly available for reasons
outside of Nationals control, a nationally recognized statistical rating
organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act selected by National (as certified by a resolution of Nationals Board of
Directors) as a replacement agency for Fitch, Moodys or S&P, or all of
them, as the case may be.
rating event
means the rating on the
notes is lowered by at least two of the three rating agencies and the notes are
rated below an investment grade rating by at least two of the three rating
agencies, in any case on any day during the period (which period will be
extended so long as the rating of the notes is under
S-15
publicly
announced consideration for a possible downgrade by any of the rating agencies)
commencing 60 days prior to the first public notice of the occurrence of a
change of control or Nationals intention to effect a change of control and
ending 60 days following consummation of such change of control.
S&P
means Standard &
Poors
Ratings Services, a division of The McGraw-Hill Companies, Inc., and its
successors.
voting stock
means, with respect to any
specified person (as that term is used in Section 13(d)(3) of the Exchange
Act) as of any date, the capital stock of such person that is at the time
entitled to vote generally in the election of the board of directors of such
person.
Unless
we default in the change of control payment, on and after the change of control
payment date, interest will cease to accrue on the notes or portions of the
notes tendered for repurchase pursuant to the change of control offer.
The
definition of change of control includes a phrase relating to the direct or
indirect sale, lease, transfer, conveyance or other disposition of all or
substantially all of Nationals assets and the assets of Nationals
subsidiaries taken as a whole. Although there is a limited body of case law
interpreting the phrase substantially all there is no precise established
definition of the phrase under applicable law. Accordingly, the ability of a
holder of notes to require National to repurchase its notes as a result of a
sale, lease, transfer, conveyance or other disposition of less than all of
Nationals assets and those of Nationals subsidiaries taken as a whole to
another person or group may be uncertain.
Book-Entry Only Issuance--The Depository
Trust Company
DTC
will act as the initial securities depository for the notes. The notes will be
issued only as fully registered securities registered in the name of Cede &
Co., DTCs partnership nominee, or such other name as may be requested by an
authorized representative of DTC. One or more fully registered global note
certificates will be issued, representing in the aggregate the total principal
amount of the notes, and will be deposited with the trustee on behalf of DTC.
The
following is based upon information furnished by DTC:
DTC
is a limited-purpose trust company organized under the New York Banking Law, a
banking organization within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a clearing corporation within the meaning of
the New York Uniform Commercial Code and a clearing agency registered
pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934,
as amended (the 1934 Act). DTC holds and provides asset servicing for over
3.5 million issues of U.S. and non-U.S. equity issues, corporate and municipal
debt issues and money market instruments from over 100 countries that DTCs
participants (Direct Participants) deposit with DTC. DTC also facilitates the
post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities, through electronic computerized
book-entry transfers and pledges between Direct Participants accounts. This
eliminates the need for physical movement of securities certificates. Direct
Participants include both U.S. and non-U.S. securities brokers and dealers,
banks, trust companies, clearing corporations and certain other organizations.
DTC is a wholly-owned subsidiary of The Depository Trust & Clearing
Corporation (DTCC). DTCC is the holding company for DTC, National Securities
Clearing Corporation and Fixed Income Clearing Corporation, all of which are
registered clearing agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others such as both
U.S. and non-U.S. securities brokers and dealers, banks, trust companies and
clearing corporations that clear through or maintain a custodial relationship
with a Direct Participant, either directly or indirectly (Indirect
Participants). DTC has Standard & Poors, a division of The McGraw Hill
Companies, Inc., highest rating: AAA. The DTC rules applicable to its Direct
and Indirect Participants are on file with the Securities and Exchange
Commission. More information about DTC can be found at www.dtcc.com and
www.dtc.org. The contents of such websites do not constitute part of this
Prospectus Supplement.
S-16
Purchases
of notes under the DTC system must be made by or through Direct Participants,
which will receive a credit for the notes on DTCs records. The ownership
interest of each actual purchaser of notes (Beneficial Owner) is in turn to
be recorded on the Direct and Indirect Participants records. Beneficial Owners
will not receive written confirmation from DTC of their purchases. Beneficial
Owners are, however, expected to receive written confirmations providing
details of the transactions, as well as periodic statements of their holdings,
from the Direct or Indirect Participants through which the Beneficial Owners
purchased notes. Transfers of ownership interests in the notes are to be
accomplished by entries made on the books of Direct and Indirect Participants
acting on behalf of Beneficial Owners. Beneficial Owners will not receive
certificates representing their ownership interests in notes, except in the
event that use of the book-entry system for the notes is discontinued.
To
facilitate subsequent transfers, all notes deposited by Direct Participants
with DTC are registered in the name of DTCs partnership nominee, Cede &
Co., or such other name as may be requested by an authorized representative of
DTC. The deposit of notes with DTC and their registration in the name of Cede
& Co. or such other DTC nominee do not effect any changes in beneficial
ownership. DTC has no knowledge of the actual Beneficial Owners of the notes.
DTCs records reflect only the identity of the Direct Participants to whose
accounts such notes are credited, which may or may not be the Beneficial
Owners. The Direct and Indirect Participants will remain responsible for
keeping account of their holdings on behalf of their customers.
Conveyance
of notices and other communications by DTC to Direct Participants, by Direct
Participants to Indirect Participants, and by Direct Participants and Indirect
Participants to Beneficial Owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Redemption
notices shall be sent to DTC. If less than all of the notes are being redeemed,
DTCs practice is to determine by lot the amount of interest of each Direct
Participant in such notes to be redeemed.
Although
voting with respect to the notes is limited, in those cases where a vote is
required, neither DTC nor Cede & Co. (nor any other DTC nominee) will
consent or vote with respect to the notes unless authorized by a Direct
Participant in accordance with DTCs procedures. Under its usual procedures,
DTC mails an Omnibus Proxy to National as soon as possible after the record
date. The Omnibus Proxy assigns Cede & Co.s consenting or voting rights to
those Direct Participants to whose accounts notes are credited on the record
date (identified in a listing attached to the Omnibus Proxy).
Payments
on the notes will be made to Cede & Co., or such other nominee as may be
requested by an authorized representative of DTC. DTCs practice is to credit
Direct Participants accounts upon DTCs receipt of funds and corresponding
detail information from National or the trustee on the relevant payment date in
accordance with their respective holdings shown on DTCs records. Payments by
Direct or Indirect Participants to Beneficial Owners will be governed by
standing instructions and customary practices, as is the case with securities
held for the account of customers registered in street name, and will be the
responsibility of such Direct or Indirect Participant and not of DTC or the
Company, subject to any statutory or regulatory requirements as may be in
effect from time to time. Payment to Cede & Co. (or such other nominee as
may be requested by an authorized representative of DTC) is the responsibility
of the Company, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
Except
as provided herein, a Beneficial Owner of a global note will not be entitled to
receive physical delivery of notes. Accordingly, each Beneficial Owner must
rely on the procedures of DTC to exercise any rights under the notes. The laws
of some jurisdictions require that certain purchasers of securities take
physical delivery of securities in definitive form. Such laws may impair the
ability to transfer beneficial interests in a global note.
S-17
DTC
may discontinue providing its services as securities depository with respect to
the notes at any time by giving reasonable notice to the Company. Under such
circumstances, in the event that a successor securities depository is not
obtained, certificates for the notes will be required to be printed and
delivered to the holders of record. Additionally, the Company may decide to
discontinue use of the system of book-entry transfers through DTC (or a
successor securities depository) with respect to the notes. The Company
understands, however, that under current industry practices, DTC would notify
its Direct and Indirect Participants of the Companys decision, but will only
withdraw beneficial interests from a global note at the request of each Direct
or Indirect Participant. In that event, certificates for the notes will be
printed and delivered to the applicable Direct or Indirect Participant.
The
information in this section concerning DTC and DTCs book-entry system has been
obtained from sources that National believes to be reliable, but neither
National nor any underwriter takes any responsibility for the accuracy thereof.
National has no responsibility for the performance by DTC or its Direct or
Indirect Participants of their respective obligations as described herein or
under the rules and procedures governing their respective operations.
CERTAIN U.S. FEDERAL TAX CONSIDERATIONS FOR
U.S. HOLDERS
The
following discussion summarizes certain material U.S. federal income tax
consequences to U.S. Holders (as defined below) of the purchase, ownership and
disposition of the notes. It is included herein for general information only
and does not address all tax considerations that may be relevant to investors
in the notes in light of their personal investment circumstances or that may be
relevant to certain types of investors subject to special treatment under U.S.
income tax laws (for example, financial institutions, tax-exempt organizations,
insurance companies, real estate investment trusts, regulated investment
companies, persons that are broker-dealers, traders in securities who elect the
mark-to-market method of accounting for their securities, U.S. Holders (as
defined below) that have a functional currency other than the U.S. dollar,
foreign persons and entities, corporations that accumulate earnings to avoid
U.S. federal income tax, investors in partnerships or other pass-through
entities or persons holding the Notes as part of a straddle, hedge,
conversion transaction or other integrated transaction). The discussion set
forth below is limited to U.S. Holders (as defined below) who purchase the
notes for cash at the initial issue price (i.e., the first price to the
public, excluding bond houses, brokers or similar persons or organizations
acting in the capacity of underwriters, placement agents or wholesalers, at
which a substantial amount of the notes is sold for money) and who hold the
notes as capital assets within the meaning of Section 1221 of the Internal
Revenue Code of 1986, as amended (the Code).
In
addition, this discussion does not address the tax consequences to non-U.S.
persons, or the effect of federal alternative minimum tax, gift or estate tax
laws, or any state, local or foreign tax laws. Persons considering the purchase,
ownership or disposition of the notes should consult their own tax advisors
concerning the U.S. federal income tax consequences in light of their
particular situations as well as any consequences arising under the laws of any
other taxing jurisdiction. Furthermore, the discussion below is based upon
provisions of the Code, the legislative history thereof, U.S. Treasury
regulations promulgated thereunder and administrative rulings and judicial
decisions in effect as of the date hereof. Such authorities may be repealed, revoked
or modified (including changes in effective dates, and possibly with
retroactive effect) so as to result in U.S. federal income tax consequences
different from those discussed below.
For
purposes of the following discussion, the term U.S. Holder means a
beneficial owner of a note that is for U.S. federal income tax purposes:
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an
individual citizen or resident of the United States;
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a
corporation (or other entity treated as a corporation for U.S. federal income
tax purposes) created or organized in or under the laws of the United States,
any state thereof or the District of Columbia;
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S-18
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an estate,
the income of which is subject to U.S. federal income tax regardless of
source; or
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a trust, if
(a) a court within the United States is able to exercise primary supervision
over administration of the trust and one or more United States persons have
authority to control all substantial decisions of the trust or (b) it has a
valid election in effect under applicable U.S. Treasury regulations to be
treated as a domestic trust.
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If
a partnership or an entity treated as a partnership for U.S. federal income tax
purposes owns any of the notes, the tax treatment of a partner or an equity
interest owner of such other entity will generally depend upon the status of
the person and the activities of the partnership or other entity treated as a
partnership. Partnerships and other entities treated as partnerships for U.S.
federal income tax purposes, and partners or other equity interest owners in
such entities, should consult their own tax advisors.
Payments of Interest
Subject
to the discussion below under Additional Payments, payments of stated
interest on the notes generally will be taxable to a U.S. Holder as ordinary
interest income at the time such payments are received or accrued in accordance
with the U.S. Holders method of accounting for U.S. federal income tax
purposes.
Additional Payments
In
certain circumstances (see Description of the Notes Optional Redemption and
Description of the Notes Change of Control Offer), National may be
obligated to pay amounts in excess of stated interest or principal on the
notes. The obligation to make such payments may implicate the provisions of
U.S. Treasury regulations relating to contingent payment debt instruments. If
the notes were deemed to be contingent payment debt instruments, a U.S. Holder
might be required to accrue income on the holders notes in excess of stated
interest, and to treat as ordinary income, rather than capital gain, any income
realized on the taxable disposition of a note before the resolution of the
contingencies. According to current U.S. Treasury regulations, the possibility
that any such payments in excess of stated interest or principal will be made
will not cause the notes to be treated as contingent payment debt instruments
if, as of the date the notes were issued, there is only a remote chance that
such payments will be made, the amount of such payments is incidental or
certain other exceptions apply. National believes that the potential or actual
payment of these amounts will not cause the notes to be treated as contingent
payment debt instruments. Nationals determination is binding on a U.S. Holder
unless such holder discloses its contrary position in the manner required by
applicable U.S. Treasury regulations. Nationals determination is not, however,
binding on the Internal Revenue Service (the IRS), and if the IRS were to
challenge this determination, the tax consequences to a holder could differ
materially and adversely from those discussed herein. The remainder of this
discussion assumes that the notes will not be treated as contingent payment
debt instruments. Purchasers of notes are advised to consult their own advisors
regarding the possible application of the contingent payment debt instrument
rules to the notes.
Sale, Redemption or
Other Taxable Disposition of Notes
Upon
the sale, redemption or other taxable disposition of a note, a U.S. Holder
generally will recognize gain or loss equal to the difference between (1) the
amount realized on such disposition and (2) such holders adjusted tax basis in
the note. A holders adjusted tax basis in the note generally will equal the
amount paid for the note less any principal payments received by such holder.
Gain or loss recognized by a U.S. Holder in respect of the disposition
generally will be capital gain or loss, and will be long-term capital gain or
loss if the U.S. Holder has held the note for more than one year at the time of
such disposition. A U.S. Holder that is not a corporation may be entitled to
preferential treatment for net long-term capital gains. The ability of a U.S.
Holder to offset capital losses against ordinary income is limited.
Notwithstanding the foregoing, any amounts realized in connection with any
sale, redemption or other
S-19
taxable
disposition with respect to accrued interest not previously includible in
income will be treated as ordinary interest income.
Information
Reporting and Backup Withholding
Payments
of interest made by National on, or the proceeds of the sale or other
disposition of, the notes will be subject to information reporting to the IRS
unless the U.S. Holder is an exempt recipient (such as a corporation) and may
be subject to U.S. federal backup withholding, currently at a rate of 28%, if
the recipient of the payment fails to supply an accurate taxpayer
identification number or otherwise fails to comply with applicable U.S. information
reporting or certification requirements. Backup withholding does not represent
an additional income tax. Any amount withheld under the backup withholding
rules is allowable as a credit against the holders U.S. federal income tax and
may entitle the U.S. Holder to a refund, provided that the required information
is timely furnished to the IRS.
THIS DISCUSSION OF U.S. FEDERAL INCOME TAX
CONSIDERATIONS IS NOT INTENDED, AND SHOULD NOT BE CONSTRUED, TO BE TAX OR OTHER
LEGAL ADVICE TO ANY PARTICULAR INVESTOR IN OR HOLDERS OF NOTES. PROSPECTIVE
INVESTORS ARE ADVISED TO CONSULT THEIR OWN TAX ADVISORS CONCERNING THE
APPLICATION OF THE U.S. FEDERAL TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL
AS ANY TAX CONSEQUENCES ARISING UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN
TAXING JURISDICTION AND THE POTENTIAL EFFECT OF CHANGES IN APPLICABLE TAX LAW.
S-20
UNDERWRITING
Subject
to the terms and conditions set forth in the underwriting agreement dated the
date of this prospectus supplement between National and the underwriters, for
whom Banc of America Securities LLC and J.P. Morgan Securities Inc. are acting
as representatives, National has agreed to sell to the underwriters, and each
of the underwriters has severally agreed to purchase from National the
principal amount of the notes offered hereby set forth opposite its name below:
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Underwriter
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Principal Amount
of Notes
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Banc of
America Securities LLC
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$
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J.P. Morgan
Securities Inc
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HSBC
Securities (USA) Inc
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Mitsubishi
UFJ Securities (USA), Inc
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PNC Capital
Markets LLC
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BNY Mellon
Capital Markets, LLC
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RBS
Securities Inc.
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Total
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$
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The
underwriting agreement provides that the obligations of the underwriters to pay
for and accept delivery of the notes are subject to, among other things, the
approval of certain legal matters by their counsel and certain other
conditions. The underwriters reserve the right to withdraw, cancel or modify offers
to the public and to reject orders in whole or in part. The underwriters are
obligated to take and pay for all the notes if any are taken.
National
and the underwriters have agreed to indemnify each other against certain
liabilities, including liabilities under the Securities Act of 1933, or to
contribute to payments National or the underwriters may be required to make in
respect of those liabilities.
Commissions and Discounts
Notes
sold by the underwriters to the public will initially be offered at the public
offering price set forth on the cover of this prospectus supplement, and to
dealers at that price less a concession not in excess of % of the principal
amount of the notes. The underwriters may allow, and the dealers may reallow, a
discount not in excess of % of the principal amount of the notes to other
dealers. If all the notes are not sold at the public offering price, the
underwriters may change the public offering price and the other selling terms.
Nationals
expenses in connection with the offer and sale of the notes, other than the
underwriting discount, are estimated to be $ .
New Issue of Securities
The
notes are a new issue of securities with no established trading market.
National does not intend to apply for listing of the notes on any national
securities exchange or for quotation of the notes on any automated dealer
quotation system. National has been advised by the underwriters that the
underwriters intend to make a market in the notes but are not obligated to do
so and may discontinue market-making at any time without notice. National
cannot assure the liquidity of the trading market for the notes or that an
active public market for the notes will develop. If an active trading market
for the notes does not develop, the market price and liquidity of the notes may
be adversely affected.
S-21
Price Stabilization and Short Positions
In
connection with the offering, the underwriters may purchase and sell notes in
the open market. These transactions may include short sales, stabilizing
transactions and purchases to cover positions created by short sales. Short
sales involve the sale by the underwriters of a greater number of notes than
the underwriters are required to purchase in the offering. Stabilizing
transactions consist of certain bids or purchases to peg, fix or maintain the
price of the notes.
These
activities by the underwriters may stabilize, maintain or otherwise affect the
market price of the notes. As a result, the price of the notes may be higher
than the price that otherwise might exist in the open market. If these
activities are commenced, they may be discontinued by the underwriters at any
time without notice. These transactions may be effected in the over-the-counter
market or otherwise.
Neither
National nor the underwriters make any representation or prediction as to the
direction or magnitude of any effect that the transactions described above may
have on the price of the notes. In addition, neither National nor the
underwriters make any representation that the underwriters will engage in these
transactions or that these transactions, once commenced, will not be
discontinued without notice.
The
underwriters have in the past engaged, and the underwriters and their
respective affiliates expect in the future to engage, in transactions with, and
have provided, and may in the future provide, various financial advisory,
commercial banking and investment banking services for, National and Nationals
affiliates, for which they have in the past received, and will in the future
receive, customary fees. The Bank of New York Mellon, an affiliate of BNY
Mellon Capital Markets, LLC, is the trustee under the indenture.
S-22
EXPERTS
The
financial statements and financial statement schedule incorporated in the
accompanying prospectus by reference to Nationals Current Report on Form 8-K
dated March 17, 2009 and managements assessment of the effectiveness of
internal control over financial reporting (which is included in Managements
Report on Internal Control over Financial Reporting) incorporated in the
accompanying prospectus by reference to Nationals Annual Report on Form 10-K
for the year ended September 30, 2008 have been so incorporated in reliance on
the report of PricewaterhouseCoopers LLP, an independent registered public
accounting firm, given on the authority of said firm as experts in auditing and
accounting.
The
information incorporated in this prospectus supplement and the accompanying
prospectus by reference to Nationals Annual Report on Form 10-K for the year
ended September 30, 2008, relating to the oil and gas reserves of Seneca
Resources Corporation, has been so incorporated in reliance on the audit report
of Netherland, Sewell & Associates, Inc., an independent petroleum
engineering firm, given on the authority of said firm as experts in petroleum
engineering.
LEGAL MATTERS
The
validity of the notes and certain other matters will be passed upon for us by
Dewey & LeBoeuf LLP, New York, New York and for the underwriters by
Pillsbury Winthrop Shaw Pittman LLP, New York, New York. However, all matters
of New Jersey law, including the incorporation of National, will be passed upon
only by Lowenstein Sandler PC, Roseland, New Jersey.
S-23
PROSPECTUS
National
Fuel Gas Company
DEBT
SECURITIES
COMMON STOCK
STOCK PURCHASE CONTRACTS
and
STOCK PURCHASE UNITS
National Fuel
Gas Company may periodically sell any or all of the following securities to the
public:
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debt
securities;
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common
stock;
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stock
purchase contracts; and
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stock
purchase units.
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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 Companys common stock is listed on the New York Stock Exchange and
trades under the symbol NFG.
Investing in the securities involves risks. See
Risk
Factors on page 4 for information on certain risks related to the purchase of
securities
.
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 22 of this prospectus
also provides more information on this topic.
National
Fuel Gas Companys principal executive offices are located at 6363 Main St.,
Williamsville, New York 14221 and its telephone number is (716) 857-7000.
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 March 17,
2009.
No person is
authorized to give any information or to make any representations other than
those contained or incorporated by reference in this prospectus or the
accompanying prospectus supplement and, if given or made, such information or
representations must not be relied upon as having been authorized. This
prospectus and the accompanying prospectus supplement do not constitute an
offer to sell or the solicitation of an offer to buy any securities other than
the securities described in this prospectus and the accompanying prospectus
supplement or an offer to sell or the solicitation of an offer to buy such
securities in any circumstance in which such offer or solicitation is unlawful.
Neither the delivery of this prospectus or the accompanying prospectus
supplement, nor any sale made under this prospectus or the accompanying prospectus
supplement shall, under any circumstances, create any implication that there
has been no change in the affairs of National Fuel Gas Company since the date
of this prospectus or the accompanying prospectus supplement or that the
information contained or incorporated by reference in this prospectus or the
accompanying prospectus supplement is correct as of any time subsequent to the
date of such information.
A
BOUT THIS
P
ROSPECTUS
This
prospectus is part of a registration statement that National Fuel Gas Company
(National) has filed with the Securities and Exchange Commission (the 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. 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.
References
in this prospectus and the prospectus supplement to National are to National
Fuel Gas Company, National Fuel Gas Company and its subsidiaries or National
Fuel Gas Companys subsidiaries as appropriate in the context of the
disclosure.
3
R
ISK
F
ACTORS
In
considering whether or not to purchase securities of National, you should
carefully consider the risks described under Risk Factors in the prospectus
supplement and in the documents National incorporates by reference in this
prospectus and the prospectus supplement, as well as the other information
included or incorporated by reference in this prospectus and the prospectus
supplement.
4
N
ATIONAL
F
UEL
G
AS
C
OMPANY
National,
incorporated in 1902, is a holding company organized under the laws of New
Jersey. National is engaged in the business of owning and holding securities
issued by its subsidiaries.
National
and its subsidiaries comprise a diversified energy company consisting of four
reportable business segments:
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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;
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the Pipeline and Storage
segment, which provides interstate natural gas transportation and storage
services;
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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, Louisiana and Alabama; and
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the Energy Marketing
segment, which markets natural gas to industrial, wholesale, commercial,
public authority and residential customers primarily in western and central
New York and northwestern Pennsylvania.
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Nationals
other businesses are engaged in the marketing of timber, the operation of
sawmills and the processing of timber, in the purchase, sale and transportation
of landfill gas, and in the development or operation of mid-range independent
power production facilities and landfill gas electric generation facilities.
Nationals
principal executive offices are located at 6363 Main Street, Williamsville, New
York 14221 and its telephone number is (716) 857-7000.
5
W
HERE
C
AN
Y
OU
F
IND
M
ORE
I
NFORMATION
National
files annual, quarterly and other reports, proxy statements and other
information with the SEC. These SEC filings are available to the public over
the Internet at the SECs website at http://www.sec.gov. You may also read and
copy any of these SEC filings at the SECs Public Reference Room at 100 F
Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the Public Reference Room. Information about National is
also available on Nationals website, www.natfuel.com. Other than any SEC
filings incorporated by reference in this prospectus, the information available
on Nationals website is not part of this prospectus or any prospectus
supplement thereto.
I
NCORPORATION BY
R
EFERENCE
National
discloses important information to you by referring you to documents that it
has filed with the SEC that are incorporated by reference in this prospectus.
The information incorporated by reference is an important part of this
prospectus. Information that National files in the future with the SEC will
automatically update and supersede the information included in this prospectus
and will also automatically update and supersede any information previously
incorporated by reference. National incorporates by reference the documents
listed below and any future filings it makes with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act),
excluding information deemed furnished and not filed, until this offering is
terminated:
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Annual Report on Form 10-K
for the year ended September 30, 2008 (filing date of November 26, 2008);
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Amended Annual Report on
Form 10-K/A for the year ended September 30, 2008 (filing date of January 6,
2009);
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Quarterly Report on Form
10-Q for the quarter ended December 31, 2008 (filing date of February 6, 2009);
and
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Current Reports on Form
8-K filed with the SEC on December 4, 2008, December 29, 2008, January 2,
2009, January 20, 2009 (to the extent filed under Item 8.01 thereof) and
March 17, 2009.
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You may request a copy of these filings, at no cost, by writing or
calling Paula M. Ciprich, Secretary,
National Fuel Gas Company, 6363 Main Street, Williamsville, New York 14221;
telephone number (716)
857-7548.
6
R
ATIO OF
E
ARNINGS TO
F
IXED
C
HARGES
The
following table shows the ratio of Nationals earnings to fixed charges for the
periods indicated:
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Three Months
Ended
December 31,
2008
1
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Fiscal Years Ended September 30,
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2008
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2007
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2006
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2005
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2004
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6.68
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5.31
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4.64
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3.66
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3.50
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For
the purpose of calculating the ratio of earnings to fixed charges, Fixed
Charges represent the sum of interest expense, excluding any amounts recorded
in interest expense as allowance for borrowed funds used in construction or
amortization of loss on reacquired debt, and an estimate of the interest within
rental expense. Earnings represents the amount resulting from adding the
following items: pretax income from continuing operations before adjustment for
income or loss from equity investees (unconsolidated subsidiaries), fixed
charges (as defined in the previous sentence), and distributed income of equity
investees (unconsolidated subsidiaries).
1
Nationals earnings were insufficient to cover fixed charges by $75.3
million for the three months ended December 31, 2008.
U
SE OF
P
ROCEEDS
Except
as may otherwise be set forth in an applicable prospectus supplement, the
proceeds from the sale of these securities may be used to reduce short-term
indebtedness, to redeem or discharge indebtedness, to finance a portion of
Nationals 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.
7
D
ESCRIPTION OF
D
EBT
S
ECURITIES
General
The
following description sets forth certain general terms and provisions of
Nationals 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 Nationals 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 Mellon
(formerly The Bank of New York), as trustee (the 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 officers 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 Nationals 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.
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:
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the title of the debt
securities;
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the total principal amount
of the debt securities;
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the date or dates on which
the principal of the debt securities will be payable and how it will be paid;
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the rate or rates at which
the debt securities will bear interest, or how such rate or rates will be
determined;
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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;
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any right to extend the
interest payment periods for the debt securities and the duration of the
extension;
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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;
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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;
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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;
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any changes or additions
to the events of default under the Indenture or changes or additions to the
covenants under the Indenture;
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if the debt securities
will be issued in denominations other than $1,000;
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if payments on the debt
securities may be made in a currency or currencies other than United States
dollars;
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any convertible feature or
options regarding the debt securities;
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any rights or duties of
another person to assume the obligations of National with respect to the debt
securities;
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any collateral, security,
assurance or guarantee for the debt securities; and
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any other terms of the
debt securities not inconsistent with the terms of the Indenture.
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(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 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
9
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. 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.)
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 Nationals 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:
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(1)
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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;
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(2)
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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
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(3)
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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,
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(a)
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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
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(b)
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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
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(4)
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any judgment, levy,
execution, attachment or other similar lien arising in connection with court
proceedings, provided that:
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(a)
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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
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(b)
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the payment of the lien is
covered in full by insurance and the insurance company has not denied or
contested coverage thereof; or
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(c)
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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.
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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 Nationals Consolidated
Capitalization. (See Section 608.)
For
this purpose, Consolidated Capitalization means the sum of:
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(1)
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Consolidated Common
Shareholders Equity;
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(2)
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Consolidated Indebtedness,
exclusive of any that is due and payable within one year of the date the sum
is determined; and, without duplication
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(3)
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any preference or
preferred stock of National or any Consolidated Subsidiary, as defined below,
which is subject to mandatory redemption or sinking fund provisions.
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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
11
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:
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(1)
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all
indebtedness created or assumed by National for the repayment of money
borrowed;
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(2)
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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
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(3)
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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.
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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 Mellon, as trustee, in an aggregate
principal amount in excess of 5% of Nationals 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 Nationals Consolidated
Capitalization, the outstanding debt securities will no longer be secured. (See
Section 608.)
As
of December 31, 2008, the Consolidated Capitalization of National was
approximately $2,593,467,000.
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:
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the
surviving or successor entity is organized and validly existing under the
laws of any domestic jurisdiction and it expressly assumes Nationals
obligations on all debt securities and under the Indenture;
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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
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National
shall have delivered to the Trustee an officers certificate and an opinion
of counsel as to compliance with the foregoing.
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The
terms of the Indenture do not restrict National in a merger in which National
is the surviving entity. (See Section 1101.)
Events Of Default
Event of
default when used in the Indenture with respect to any series of debt
securities, means any of the following:
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failure
to pay interest, if any, on any debt security of the applicable series for 30
days after it is due;
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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);
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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;
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certain
events in bankruptcy, insolvency or reorganization of National; or
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any other event
of default included in any supplemental indenture or officers certificate
for a specific series of debt securities.
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(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
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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:
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National has
paid or deposited with the Trustee a sum sufficient to pay:
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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;
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interest, if
any, on overdue interest; and
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all amounts
due to the Trustee under the Indenture; and
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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.
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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:
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the holder
has previously given to the Trustee written notice of a continuing event of
default;
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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
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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.
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(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.)
14
Annual Notice to Trustee
National
will provide to the Trustee an annual statement by an appropriate officer as to
Nationals 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:
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to evidence
the assumption by any permitted successor of the covenants of National in the
Indenture and in the debt securities;
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to add
additional covenants of National or to surrender any right or power of
National under the Indenture;
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to add
additional events of default;
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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:
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when the
consent of the holders of debt securities of such series has been obtained in
accordance with the Indenture; or
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when no debt
securities of the affected series remain outstanding under the Indenture;
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to provide
collateral security for all but not part of the debt securities;
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to establish
the form or terms of debt securities of any other series as permitted by the
Indenture;
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to provide
for the authentication and delivery of bearer securities and coupons attached
thereto;
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to evidence
and provide for the acceptance of appointment of a successor trustee;
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to provide
for the procedures required for use of a noncertificated system of
registration for the debt securities of all or any series;
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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
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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.
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(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.
15
(See Section
607.) The holders of not less than a majority in principal amount of the
outstanding debt 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:
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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;
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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
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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.
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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,
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
16
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 Mellon. In addition to acting as Trustee,
The Bank of New York Mellon acts, and may act, as trustee under various
indentures and trusts of National and its affiliates.
D
ESCRIPTION OF
C
OMMON
S
TOCK
The
following description of Nationals common stock is a summary and is qualified
by reference to the terms and provisions of Nationals Restated Certificate of
Incorporation, as amended (Restated Certificate of Incorporation), its By-Laws,
and the Amended and Restated Rights Agreement, dated as of December 4, 2008,
between National and The Bank of New York Mellon, as rights agent (Rights
Agreement), which are filed as exhibits to the registration statement to which
this prospectus relates and incorporated herein by reference. Reference is also
made to the indenture dated as of October 15, 1974, as supplemented (1974 Indenture),
between National Fuel and The Bank of New York Mellon, as trustee. (The 1974
Indenture includes a limitation on the payment of dividends, as described below
under Dividend Rights. The Companys other indenture, dated as of October 1,
1999, between National and The Bank of New York Mellon, contains no such
limitation.)
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 Nationals common stock will not be
17
known until Nationals 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 Nationals common stock if dividends on the preferred stock are in
arrears; (b) dilution of the voting power of Nationals common stock; (c)
restrictions on the rights of the holders of Nationals common stock to share
in Nationals assets upon liquidation due to satisfaction of any liquidation
preference granted to the preferred stock; and (d) dilution of rights of
holders of Nationals common stock to share in Nationals 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
Nationals 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 Nationals 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, including the common stock sold pursuant to this
prospectus, 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 of National, entitles the holder to purchase
one-half of one share of common stock at a purchase price of $75.00 per half
share, being $150.00 per full share, subject to adjustment (Purchase Price).
The
rights become exercisable upon the occurrence of a distribution date. Subject
to redemption or exchange of the rights, at any time following a distribution
date, each holder of a right will be entitled to receive, upon exercise of the
right, common stock of National (or, under certain circumstances, other
securities or assets of National) having a value equal to two times the amount
paid to exercise the right.
18
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:
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ten days
after the public announcement that a person or group has acquired, or
obtained the right to acquire, beneficial ownership of Nationals common
stock or other voting stock having 10% or more of the aggregate voting power
of Nationals common stock and other voting stock, except in circumstances
described below; and
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ten business
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
Nationals common stock or other voting stock having 10% or more of the total
voting power of Nationals common stock and other voting stock.
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Beneficial
ownership of Nationals common stock includes, among other things, certain
derivative or synthetic arrangements having characteristics of a long position
in Nationals common stock. In addition, the phrase then outstanding, when
used with reference to a persons beneficial ownership of securities of
National, means the number of securities then issued and outstanding together with
the number of such securities not then actually issued and outstanding which
such person would be deemed to own beneficially under the Rights Agreement.
A
distribution date would not occur where the acquisition described in the first
bullet point above results from a reduction in the number of Nationals shares
of voting stock outstanding due to the repurchase of shares by National, unless
and until the acquiring person or group, after becoming aware of its 10% stake,
acquires any additional shares of Nationals then outstanding voting stock.
Similarly, a distribution date would not occur if Nationals Board of Directors
determines that the person or group that acquired the 10% stake did so
inadvertently and without any intention of changing or influencing control of
National, and if that person or group, after being advised of the Board of
Directors determination, reduces its stake below 10% within a period of time
set by the Board of Directors.
In
certain situations after a person or group has acquired beneficial ownership of
10% or more of the total voting power of Nationals stock as described above,
each holder of a right will be entitled to receive, upon exercise of the right,
common stock of the acquiring company having a value equal to two times the
amount paid to exercise the right. These situations would arise if National is
acquired in a merger or other business combination or if 50% or more of
Nationals assets or earning power are sold or transferred.
At
any time prior to the end of business 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 (except in the circumstances described above in which a distribution
date would not occur), National may redeem the rights in whole, but not in
part, at a price of $.005 per right, payable in shares of common stock, other
securities, cash or other assets. A decision to redeem the rights requires the
vote of 75% of Nationals 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 Nationals 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
per right, subject to certain adjustments. Notwithstanding the foregoing, the
Board of Directors may not effect an exchange after a person or group has
acquired, or obtained the right to acquire, beneficial ownership of 50% or more
of the common stock then outstanding.
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
19
Rights
Agreement. The rights will expire on July 31, 2018, 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
Nationals
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 Nationals outstanding common
stock (substantial stockholder) or with an affiliate of any substantial
stockholder. The term substantial stockholder does not include National, any of
its subsidiaries, or any trustee holding common stock of National for the
benefit of the employees of National or any of its subsidiaries pursuant to one
or more employee benefit plans or arrangements. The conditions, which are in
addition to those otherwise required by law, prescribe the minimum amount per
share that must be paid to holders of common stock and the form of
consideration paid, and require that the holders of common stock be furnished
certain information about the business combination prior to voting on it. A
business combination, as defined in the Restated Certificate of Incorporation,
generally means any of the following transactions:
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a merger,
consolidation or share exchange;
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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;
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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;
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the adoption
of a plan of liquidation or dissolution of National; or
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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.
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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 BNY Mellon Shareowner
Services.
D
ESCRIPTION
OF
S
TOCK
P
URCHASE
C
ONTRACTS
AND
S
TOCK
P
URCHASE
U
NITS
20
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) a stock
purchase contract under which the holder, upon settlement, will purchase an
indeterminate number of shares of common stock and (b) a beneficial interest in
debt securities, trust preferred securities, preferred stock or debt
obligations from either National or third parties, including U.S. Treasury
securities purchased with the proceeds from the sale of the stock purchase
units. Each beneficial interest will be pledged to secure the obligation of
such holder to purchase such shares of 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.
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.
21
P
LAN
OF
D
ISTRIBUTION
National
may periodically sell its securities in one or more of the following ways:
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to
underwriters or dealers for resale to the public or to institutional
investors;
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directly to
the public or institutional investors; or
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through
agents to the public or to institutional investors.
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The
prospectus supplement will state the terms of the offering of the securities,
including:
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the name or
names of any underwriters, dealers or agents;
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the purchase
price of such securities and the proceeds to be received by National;
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any
underwriting discounts, commissions or agency fees and other items
constituting underwriters or agents compensation;
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any initial
public offering price;
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any
discounts or concessions allowed or reallowed or paid to dealers; and
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any
securities exchanges on which the securities may be listed.
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If
National uses underwriters in the sale, the underwriters will acquire the securities
for their own account and may resell them in one or more transactions,
including:
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negotiated
transactions;
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at a fixed
public offering price or prices; or
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at varying
prices determined at the time of sale.
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Unless
otherwise stated in a prospectus supplement, the obligations of the
underwriters to purchase any securities will be conditioned on customary
closing conditions and the underwriters will be obligated to purchase all of
such series of securities, if any are purchased.
If
National uses dealers in the sale, the dealers will acquire the securities as
principals and may resell them to the public at varying prices to be determined
by the dealers at the time of resale.
Unless
otherwise stated in a prospectus supplement, any agent selling securities on
Nationals behalf will be acting on a best efforts basis for the period of its
appointment.
This
prospectus may be delivered by underwriters and dealers in connection with
short sales undertaken to hedge exposures under commitments to acquire the
securities described in this prospectus that may be issued on a delayed or
contingent basis.
Underwriters,
agents and dealers may be entitled under agreements entered into with National
to indemnification by National against certain civil liabilities, including
liabilities under the Securities Act of 1933, or to contribution with respect
to payments that the underwriters, agents or dealers may be required to make.
Underwriters, agents and dealers may be customers of, engage in transactions
with, or perform services for National and its affiliates in the ordinary
course of business.
Any
securities offered by this prospectus, other than Nationals common stock, will
be a new issue of securities and will have no established trading market.
Nationals common stock is listed on the New York Stock Exchange, and any
shares of Nationals common stock sold will also be listed on the New York
Stock Exchange, upon official notice of issuance. Any underwriters to whom
securities are sold by National for public offering and sale may make a market
in the securities, but such underwriters will not be obligated to do so and may
discontinue any market making at any time without notice. Any of these
22
securities,
other than Nationals common stock, may or may not be listed on a national
securities exchange. National gives no assurance as to the liquidity of or the
existence of any trading market for any of these securities, other than Nationals
common stock.
23
E
XPERTS
The
financial statements and financial statement schedule incorporated in this
prospectus by reference to Nationals Current Report on Form 8-K dated March
17, 2009 and managements assessment of the effectiveness of internal control
over financial reporting (which is included in Managements Report on Internal
Control over Financial Reporting) incorporated in this prospectus by reference
to the Annual Report on Form 10-K of National for the year ended September 30,
2008 have been so incorporated in reliance on the report of
PricewaterhouseCoopers LLP, an independent registered public accounting firm,
given on the authority of said firm as experts in auditing and accounting.
The
information incorporated in this prospectus by reference to Nationals Annual
Report on Form 10-K for the year ended September 30, 2008, relating to the oil
and gas reserves of Seneca Resources Corporation, has been so incorporated in
reliance on the audit report of Netherland, Sewell & Associates, Inc., an
independent petroleum engineering firm, given on the authority of said firm as
experts in petroleum engineering.
L
EGAL
O
PINIONS
The
validity of the securities offered by this prospectus will be passed upon for
National by Dewey & LeBoeuf LLP, New York, New York, and for the
underwriters, dealers, or agents by Pillsbury Winthrop Shaw Pittman LLP, New
York, New York. However, all matters of New Jersey law, including the
incorporation of National, will be passed upon by Lowenstein Sandler PC,
Roseland, New Jersey.
24
$
National Fuel Gas Company
% Notes due 20
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PROSPECTUS
SUPPLEMENT
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April
, 2009
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Joint Book-Running Managers
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Banc of America Securities LLC
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J.P.
Morgan
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Co-Managers
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HSBC
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Mitsubishi UFJ Securities
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PNC Capital Markets LLC
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BNY Mellon Capital Markets, LLC
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RBS
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