[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Notices]
[Pages 1925-1926]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E5-59]


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SECURITIES AND EXCHANGE COMMISSION

[Release No. 35-27935]


Filings Under the Public Utility Holding Company Act of 1935, as 
Amended (``Act''); National Fuel Gas Company (70-10273)

January 5, 2005.
    Notice is hereby given that the following filing(s) has/have been 
made with the Commission pursuant to provisions of the Act and rules 
promulgated under the Act. All interested persons are referred to the 
application(s) and/or declaration(s) for complete statements of the 
proposed transaction(s) summarized below. The application(s) and/or 
declaration(s) and any amendment(s) is/are available for public 
inspection through the Commission's Branch of Public Reference.
    Interested persons wishing to comment or request a hearing on the 
application(s) and/or declaration(s) should submit their views in 
writing by January 31, 2005, to the Secretary, Securities and Exchange 
Commission, Washington, DC 20549-0609, and serve a copy on the relevant 
applicant(s) and/or declarant(s) at the address(es) specified below. 
Proof of service (by affidavit or, in the case of an attorney at law, 
by certificate) should be filed with the request. Any request for 
hearing should identify specifically the issues of facts or law that 
are disputed. A person who so requests will be notified of any hearing, 
if ordered, and will receive a copy of any notice or order issued in 
the matter. After January 31, 2005, the application(s) and/or 
declaration(s), as filed or as amended, may be granted and/or permitted 
to become effective.

Notice of Proposal To Amend Restated Certificate of Incorporation; 
Order Authorizing the Solicitation of Proxies

    National Fuel Gas Company (``National Fuel Gas''), 6363 Main 
Street, Williamsville, NY 14221, a registered holding company, has 
filed with the Commission a declaration (``Declaration'') under 
sections 6(a)(2), 7 and 12(e) of the Act and rules 54, 62(d) and 65 
under the Act.

I. Description of National Fuel Gas

    National Fuel Gas, a New Jersey corporation, through its direct and 
indirect subsidiaries is engaged in the exploration, production, 
purchasing, gathering, processing, transportation, storage, retail 
distribution, and wholesale and retail marketing of natural gas. It 
owns all of the issued and outstanding common stock of National Fuel 
Gas Distribution Corporation, a gas-utility company that distributes 
natural gas at retail to approximately 732,000 residential, commercial 
and industrial customers (including transportation-only customers) in 
portions of western New York and northwestern Pennsylvania. National 
Fuel Gas' principal non-utility subsidiaries include National Fuel Gas 
Supply Corporation, Empire State Pipeline, Seneca Resources 
Corporation, National Fuel Resources, Inc., Highland Forest Resources, 
Inc., Horizon Energy Development, Inc., and Horizon LFG, Inc. (formerly 
Upstate Energy Inc.).
    For the twelve months that ended September 30, 2004, National Fuel 
Gas reported operating revenues of approximately $2.0 billion, of which 
$1.1 billion (56%) were attributable to regulated utility gas sales. As 
of September 30, 2004, National and its subsidiaries owned total assets 
worth approximately $3.7 billion, including approximately $3.0 billion 
in net property, plant and equipment.

II. Requests for Authority

    National Fuel Gas requests authority to amend its Restated 
Certificate of Incorporation (``Certificate of Incorporation''), as 
described below, and to solicit proxies from its shareholders in 
connection with the proposed amendment. The annual meeting of National 
Fuel Gas shareholders (``Annual Meeting'') is scheduled for February 
17, 2005. To change the Certificate of Incorporation, the proposed 
amendment must be approved by the affirmative vote of a majority of the 
votes cast by the holders of the outstanding shares of Common Stock 
entitled to vote at the Annual Meeting. Proxies may be solicited on 
behalf of the directors personally, and by mail, telephone, telecopy, 
and employees of National Fuel Gas and its subsidiaries (with no 
special compensation to these employees). In addition, National Fuel 
Gas has retained Morrow & Co., Inc., to assist in the solicitation of 
proxies.
    The board of directors of National Fuel Gas proposes to amend 
Article EIGHTH of the Certificate of Incorporation to revise the 
provisions relating to shareholder votes on certain actions. National 
Fuel Gas states that, under the New Jersey Business Corporation Act 
(``BCA''), certain exceptions are available to the general rule that 
shareholder approval is required for certain actions (collectively, 
``Actions''): (1) Amendments to the Certificate of Incorporation; (2) 
plans of merger or consolidation; (3) sales, leases, exchanges or other 
dispositions

[[Page 1926]]

of all, or substantially all, of the assets of National Fuel Gas, 
otherwise than in the usual and regular course of business; and (4) 
dissolution of National Fuel Gas. Currently, the Certificate of 
Incorporation does not provide for those exceptions and therefore the 
approval of National Fuel Gas shareholders is required for Actions even 
where approval would not be required under the BCA. As discussed below, 
the proposed amendment would make all of the exceptions allowed under 
the BCA applicable to National Fuel Gas.
    Currently, Article EIGHTH of the Certificate of Incorporation 
requires shareholder approval for ``amendments to the Certificate of 
Incorporation, including restatements, where shareholder approval is 
required or requested.'' The BCA generally requires shareholder 
approval of amendments to a company's certificate of incorporation, but 
provides that such shareholder approval is not required for certain 
types of non-critical amendments, including (but not limited to) 
amendments which would change a company's registered office or 
registered agent and amendments which would change a company's 
authorized shares in connection with transactions such as share 
dividends, divisions (i.e., stock splits) or combinations (i.e., 
reverse stock splits). The proposed amendment would delete from Article 
EIGHTH the term ``or requested.'' National Fuel Gas states that it is 
not clear whether the term refers to requests made by the board of 
directors, management, or shareholders, and that no procedures are 
specified in the Certificate of Incorporation regarding the form or 
timing of requests.
    Currently, Article EIGHTH of the Certificate of Incorporation 
provides that ``a plan of merger or consolidation'' approved by the 
Board of Directors must be approved by shareholders. National Fuel Gas 
states that the BCA is narrower, requiring shareholder approval of: (1) 
Consolidations in which two or more companies consolidate to form a new 
company; and (2) mergers that change the rights of shareholders or 
materially affect shareholder voting power. The company states that the 
BCA permits certain other merger transactions to proceed without the 
approval of shareholders of the surviving corporation. Specifically, 
National Fuel Gas states that the BCA provides that the approval of the 
shareholders of the surviving corporation in a merger is not required 
to authorize the merger (unless the corporation's certificate of 
incorporation otherwise provides) if the following four conditions are 
met: (1) The plan of merger does not make an amendment of the 
certificate of incorporation of the surviving corporation which is 
required by the provisions of the BCA to be approved by the 
shareholders; (2) each shareholder of the surviving corporation whose 
shares were outstanding immediately before the effective date of the 
merger will hold the same number of shares, with identical 
designations, preferences, limitations, and rights, immediately after; 
(3) the number of voting shares outstanding immediately after merger, 
plus the number of voting shares issuable on conversion of other 
securities or on exercise of rights and warrants issued pursuant to the 
merger, will not exceed by more than 40% the total number of voting 
shares of the surviving corporation outstanding immediately before the 
merger; and (4) the number of participating shares outstanding 
immediately after the merger, plus the number of participating shares 
issuable on conversion of other securities or on exercise of rights and 
warrants issued pursuant to the merger, will not exceed by more than 
40% the total number of participating shares of the surviving 
corporation outstanding immediately before merger. The proposed 
amendment to Article EIGHTH of the Certificate of Incorporation would 
make these statutory exceptions applicable to National Fuel Gas.
    Currently, under Article EIGHTH of the Certificate of 
Incorporation, National Fuel Gas shareholders must approve ``a sale, 
lease, exchange or other disposition of all, or substantially all, the 
assets of the corporation otherwise than in the usual and regular 
course of business.'' The BCA provides that a parent corporation may 
transfer, without shareholder approval, any or all of its assets to any 
corporation all of the outstanding shares of which are owned, directly 
or indirectly, by the parent corporation, unless the parent 
corporation's certificate of incorporation otherwise requires. The 
proposed amendment would permit National Fuel Gas to transfer all or 
substantially all of its assets to any wholly owned subsidiary without 
shareholder approval;\1\ shareholders would continue to have the right 
to vote on the sale of substantially all of National Fuel Gas' assets 
to a third party.
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    \1\ National Fuel Gas states that it has no present plans, 
agreements or commitments to transfer any significant portion of its 
assets to any other corporation (affiliated or unaffiliated) and 
that, by the Declaration, it is not requesting authority to engage 
in any such transaction.
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    Currently, under Article EIGHTH of the Certificate of Incorporation 
shareholder approval is required for dissolution of National Fuel Gas. 
Under the BCA, a corporate officer may dissolve a corporation without 
shareholder approval where: (1) The corporation has no assets; (2) the 
corporation has ceased doing business and does not intend to recommence 
doing business; (3) the corporation has not made any distributions of 
cash or property to its shareholders within the last 24 months and does 
not intend to make any distribution following its dissolution; and (4) 
the officer has given 30 days prior written notice of his intention to 
dissolve the corporation by mail or personal service to all known 
directors and shareholders at their last known address and no director 
or shareholder has objected to the proposed dissolution. The proposed 
amendment would permit an officer of the Company to dissolve National 
Fuel Gas without shareholder approval in these limited 
circumstances.\2\
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    \2\ National Fuel Gas is not requesting authority to engage in 
any transaction that would constitute or result in its dissolution.
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    The company estimates that the fees, commissions and expenses to be 
incurred in connection with the proposed transactions will be $165,500, 
consisting mostly of expenses associated with the printing, processing 
and mailing the proxy materials and costs associated with the Annual 
Meeting.
    National Fuel Gas has filed its proxy solicitation materials and 
requests that its proposal to solicit proxies be permitted to become 
effective immediately, as provided in rule 62(d) under the Act. It 
appears to the Commission that the Declaration, with respect to the 
proposed solicitation of proxies, should be permitted to become 
effective immediately under rule 62(d).
    It is Ordered, under rule 62 under the Act, that the Declaration 
regarding the proposed solicitation of proxies from National Fuel Gas 
shareholders become effective immediately, subject to the terms and 
conditions contained in rule 24 under the Act.

    For the Commission, by the Division of Investment Management, 
pursuant to delegated authority.
Jill M. Peterson,
Assistant Secretary.
[FR Doc. E5-59 Filed 1-10-05; 8:45 am]
BILLING CODE 8010-01-P