As filed with the Securities and Exchange Commissionon May 1, 2024
Registration No. 333-228337
Registration No. 333-239228
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
POST-EFFECTIVEAMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-
228337
POST-EFFECTIVEAMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT NO. 333-
239228
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
EQUITRANSMIDSTREAM CORPORATION
(Exact name of registrant as specified in itscharter)
Pennsylvania 83-0516635
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2200 Energy Drive 15317
Canonsburg, Pennsylvania (Zip Code)
(Address of principal executive offices)
Equitrans Midstream Corporation 2018 Long-TermIncentive Plan
Equitrans Midstream Corporation 2024 Long-TermIncentive Plan
(Full title of the plan)
Stephen M. Moore
Executive Vice Presidentand Chief Legal Officer
2200 Energy Drive
Canonsburg, Pennsylvania15317
(Name and address of agent for service)
(724) 271-7600
(Telephonenumber, including area code, of agent for service)
Indicate by check mark whether the Registrant is a large acceleratedfiler, an
accelerated filer, a non-accelerated filer, or a smaller reporting company.
See the definitions of "large acceleratedfiler," "accelerated filer" and
"smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer x Accelerated filer ..
Non-accelerated filer .. Smaller reporting company ..
(Do not check if a smaller reporting company)
Emerging growth company ..
If an emerging growth company, indicateby check mark if the registrant has
elected not to use the extended transition period for complying with any new
or revised financialaccounting standards provided pursuant to Section
7(a)(2)(B) of the Securities Act.
EXPLANATORY NOTE
Equitrans Midstream Corporation (the Company) haspreviously registered shares
of the Company's common stock, no par value (the Common Stock), issuable under
the Company's2018 Long-Term Incentive Plan (as amended, the 2018 Plan) on the
Company's Registration Statements on Form S-8 (collectively,the Registration
Statements) filed with the Securities and Exchange Commission (the Commission)
as set forth below:
File No
. 333-228337, filed on November 9, 2018, registering 35,000,000 shares of
Common Stock under the 2018 Plan
; and
File No. 333-239228
, filed on June 17, 2020, registering 3,592,386 shares of Common Stock under
the 2018 Plan
.
OnApril 23, 2024 (the Effective Date), the Company's shareholders approved the
Company's 2024 Long-Term Incentive Plan(the 2024 Plan). Following the
Effective Date, no further awards may be made under the 2018 Plan. The maximum
number of shares that maybe issued under the 2024 Plan is (i) 22,500,000
shares plus (ii) one share for every one share that remained available for
grantunder the 2018 Plan as of immediately prior to the effective date of the
2024 Plan, which was
2,376,187 shares of Common Stock(the 2018 Remaining Share Reserve). In
addition, after April 23, 2024 if any outstanding award granted under the 2018
Plan is forfeited,payment is made in the form of cash, cash equivalents, or
other property other than shares, or otherwise terminates without payment
beingmade in the form of shares, any shares of Common Stock subject to such
award shall be added to the 2018 Remaining Share Reserve (togetherwith the
2018 Remaining Share Reserve, the Carryover Shares).
TheCompany is filing this Post-Effective Amendment No. 1 to Form S-8
(Registration No. 333-228337) and Form S-8(Registration No. 333-239228) (the
Post-Effective Amendment) pursuant to Item 512(a)(1)(iii) of Regulation S-K
and Complianceand Disclosure Interpretation 126.43 to amend the Registration
Statements to register the offer of the Carryover Shares under the 2024Plan.
For avoidance of doubt, the Registrant is not registering any additional
shares of Common Stock pursuant to this Post-EffectiveAmendment.
Contemporaneously with the filing of this Post-EffectiveAmendment, the Company
is filing a new Registration Statement on Form S-8 to register 22,500,000
shares of Common Stock that arenewly authorized for issuance under the 2024
Plan.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Company hereby incorporatesby reference into this Post-Effective Amendment
the following documents previously filed by the Company with the Commission
pursuant tothe Securities and Exchange Act of 1934, as amended (the Exchange
Act):
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2023, filed with the Commission on February 20, 2024
;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2024, filed with the Commission on April 30, 2024
;
(c) The Company's Current Reports on Form
8-K filed with the Commission on
January 3, 2024
,
February 22, 2024
,
February 26, 2024
,
March 11, 2024
, and
April 24, 2024
(in each case, other than any document or information that is
furnished and deemednot to have been filed as indicated therein); and
(d) The description of the Company common stock contained in the Company's Registration Statement on Form 10, filed with the
Commission on August 10, 2018, including any amendments and reports filed for the purpose of updating such description.
All documents filed (other than the portions ofthose documents furnished or
otherwise not deemed to be filed) by the Company with the Commission pursuant
to Sections 13(a), 13(c), 14and 15(d) of the Exchange Act subsequent to the
date of this Post-Effective Amendment and prior to the filing of a
post-effectiveamendment to this Post-Effective Amendment which indicates that
all securities offered hereby have been sold or which deregisters
allsecurities then remaining unsold, shall be deemed to be incorporated by
reference in this Post-Effective Amendment and to be a part hereoffrom the
date of filing of such documents.
2
Anystatement contained herein or in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modifiedor superseded
for purposes of this
Post-Effective Amendment to the extent that a statement contained herein or in
any other subsequentlyfiled document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such earlier
statement. Any suchstatement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this
Post-EffectiveAmendment.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Set forth below is a description of certain provisionsof (i) the Pennsylvania
Business Corporation Law (the PBCL), (ii) the Company's Second Amended and
Restated Articles ofIncorporation (the Company Articles), (iii) the Company's
Sixth Amended and Restated Bylaws (the Company Bylaws) and (iv) indemnificationa
greements the Company has entered into with its directors and all of its
executive officers (the Indemnification Agreements). This descriptionis
intended as a summary only and is qualified in its entirety by reference to
the PBCL, the Company Articles, the Company Bylaws andthe Indemnification
Agreements.
Under Sections 1741 and 1742 of the PBCL, a businesscorporation has the power
to indemnify any person who was or is a party, or is threatened to be made a
party, to any threatened, pendingor completed action or proceeding, whether
civil, criminal, administrative or investigative, by reason of the fact that
such person isor was a director, officer or representative of the corporation,
or is or was serving at the request of the corporation as a director,officer
or representative of another corporation or other enterprise, against expenses
(including attorneys' fees), judgments, finesand amounts paid in settlement
actually and reasonably incurred by such person in connection with such action
or proceeding, if such personacted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to, the best interests of the
corporation,and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. In the case of a
threatened,pending or completed action or proceeding by or in the right of the
corporation, such indemnification only covers expenses and excludesjudgments
and amounts paid in settlement with respect to such action or proceeding, and
no indemnification can be made for expenses ifsuch person has been adjudged to
be liable to the corporation unless, and only to the extent that, a court
determines upon applicationthat, despite the adjudication of liability but in
view of all the circumstances, such person is fairly and reasonably entitled
to indemnityfor the expenses that the court deems proper.
In addition, PBCL Section 1744 provides that,unless ordered by a court, any
indemnification referred to above shall be made by the corporation only as
authorized in the specific caseupon a determination that indemnification is
proper in the circumstances because the indemnitee has met the applicable
standard of conduct.Such determination shall be made:
(1) bythe Company's board of directors by a majority vote of a
quorum consisting of directors who were not parties to the action or
proceeding~
(2) ifsuch a quorum is not obtainable, or if obtainable and a
majority vote of a quorum of disinterested directors so directs, by
independentlegal counsel in a written opinion~ or
(3) bythe shareholders.
3
Notwithstanding the above, PBCL Section 1743 provides that tothe extent that a
present or former director or officer of a business corporation is successful
on the merits or otherwise in defenseof any action or proceeding referred to
above, or in defense of any claim, issue or matter therein, the director or
officer shall be indemnifiedagainst expenses (including attorneys' fees)
actually and reasonably incurred by the director of officer in connection
therewith.
Further, PBCL Section 1745 provides that expenses(including attorneys' fees)
incurred by an officer, director or representative of a business corporation
in defending any such actionor proceeding may be paid by the corporation in
advance of the final disposition of the action or proceeding upon receipt of
an undertakingby or on behalf of such officer, director or representative to
repay the amount advanced if it is ultimately determined that the indemniteeis
not entitled to be indemnified by the corporation.
Also, PBCL Section 1746 provides that theindemnification and advancement of
expenses provided by, or granted pursuant to, the foregoing provisions is not
exclusive of any otherrights to which a person seeking indemnification or
advancement of expenses may be entitled under any bylaw, agreement, vote of
shareholdersor disinterested directors or otherwise, and that indemnification
may be granted under any bylaw, agreement, vote of shareholders or directorsor
otherwise for any action taken or any failure to take any action and may be
made whether or not the corporation would have the powerto indemnify the
person under any other provision of law and whether or not the indemnified
liability arises or arose from any threatened,pending or completed action by
or in the right of the corporation~ provided, however, that no indemnification
may be made in anycase where the act or failure to act giving rise to the
claim for indemnification is determined by a court to have constituted
willfulmisconduct or recklessness.
Article IV of the Company Bylaws providesthat the Company's directors or
officers shall be indemnified as of right to the fullest extent not prohibited
by law in connectionwith any actual or threatened action, suit or proceeding,
civil, criminal, administrative, investigative or other (whether brought byor
in the right of the corporation or otherwise) arising out of their service to
the Company or to another corporation or other enterpriseat the Company's
request; provided, however, that the Company shall not indemnify any director
or officer in connection with a proceeding(or part thereof) initiated by such
director or officer (other than a proceeding to enforce such person's rights
to indemnificationunder the provisions of Article IV) unless such proceeding
(or part thereof) was authorized by the Company's board of directors.
PBCL Section 1747 permits a business corporationto purchase and maintain
insurance on behalf of any person who is or was a director, officer or
representative of the corporation, oris or was serving at the request of the
corporation as a director, officer or representative of another corporation or
other enterprise,against any liability asserted against such person and
incurred by him or her in any such capacity, or arising out of his or her
statusas such, whether or not the corporation would have the power to
indemnify the person against such liability under the provisions describedabove.
Article IVof the Company Bylaws provides that the Company may purchase and
maintain insurance to protect the Company and any
director, officer,agent or employee against any liability asserted against
such person and incurred by such person in respect of the service of such
person,whether or not the Company would have the power to indemnify such
person against such liability by law or under the provisions of Article
IV.Article IV is applicable to persons who have ceased to be directors,
officers, agents, and employees and shall inure to the benefitof the heirs,
executors and administrators of persons entitled to indemnity.
The Company maintains directors' and officers'liability insurance covering its
directors and officers with respect to liabilities, including liabilities
under the Securities Act, whichthey may incur in connection with their serving
as such. Under this insurance, the Company may receive reimbursement for
amounts as towhich the directors and officers are indemnified by the Company
under the bylaw indemnification provisions described above. Such insurancealso
provides certain additional coverage for the directors and officers against
certain liabilities even though such liabilities maynot be covered by the
bylaw indemnification provisions described above.
Aspermitted by PBCL Section 1713, the Company Articles and the Company Bylaws
provide that no director shall be personally liable formonetary damages as such
(except to the extent otherwise provided by law) for any action taken, or
failure to take any action,unless the director has breached or failed to
perform the duties of his or her office under Subchapter B-"Fiduciary Duty"of
Chapter 17 of the PBCL (or any successor statute relating to directors'
standard of care and justifiable reliance), and suchdirector's breach of duty
or failure to perform constituted self-dealing, willful misconduct or
recklessness. The PBCL states thatthis exculpation from liability does not
apply to the responsibility or liability of a director pursuant to any
criminal statute or theliability of a director for the payment of taxes
pursuant to federal, state or local law. It is uncertain whether this
provision willcontrol with respect to liabilities imposed upon directors by
federal law, including federal securities laws.
4
Aspermitted by PBCL Section 1735, the Company's Bylaws provide that no
officer shallbe personally liable, as such, for monetary damages (except to
the extent otherwise provided by law) for any action taken, or any failureto
take any action, unless such officer has breached or failed to perform the
duties of his or her office under Title 15, Chapter 17,Subchapter C of the
Pennsylvania Consolidated Statutes (or any successor statute relating to
officers' standard of care and justifiablereliance), and the breach or failure
to perform constitutes self-dealing, willful misconduct or recklessness. The
PBCL states that thisexculpation from liability does not apply to the
responsibility or liability of an officer pursuant to any criminal statute or
the liabilityof an officer for the payment of taxes pursuant to federal, state
or local law. It is uncertain whether this provision will control withrespect
to liabilities imposed upon directors by federal law, including federal
securities laws.
The Company has Indemnification Agreements withall of its executive officers
and directors (collectively, indemnitees). These Indemnification Agreements
provide that the indemniteeswill be protected as promised in the Company
Bylaws (regardless of, among other things, any amendment to or revocation of
the CompanyBylaws or any change in the composition of the Company's board of
directors or an acquisition transaction relating to the Company)and advanced
expenses to the fullest extent of the law and as set forth in the
Indemnification Agreements. These Indemnification Agreementsalso provide, to
the extent insurance is maintained, for the continued coverage of the
indemnitees under the Company's directorand officer insurance policies. The
Indemnification Agreements, among other things and subject to certain
limitations, indemnify and holdharmless the indemnitees against any and all
reasonable expenses, including fees and expenses of counsel, and any and all
liability andloss, including judgments, fines, ERISA, excise taxes or
penalties and amounts paid or to be paid in settlement, incurred or paid by
theindemnitees in connection with any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrativeor investigative
and whether or not by or in the right of the corporation or otherwise, in
which the indemnitees are, were or at any timebecome parties, or are
threatened to be made parties or are involved by reason of the fact that the
indemnitees are or were the Company'sdirectors or officers or are or were
serving at the Company's request as directors, officers, employees, trustees
or representativesof another corporation or enterprise.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
Exhibit Description
Number
4.1 Second Amended and Restated Articles of Incorporation of Equitrans Midstream Corporation (incorporated herein by
reference to Exhibit 3.1 to Equitrans Midstream Corporation's Current Report on Form 8-K filed on April 28, 2021).
4.2 Sixth Amended and Restated Bylaws of Equitrans Midstream Corporation (incorporated herein by reference
to Exhibit 3.1 to Equitrans Midstream Corporation's Current Report on Form 8-K filed on April 24, 2024).
4.3 Equitrans Midstream Corporation 2024 Long-Term Incentive Plan (incorporated herein by reference to
Exhibit 10.1 to Equitrans Midstream Corporation's Current Report on Form 8-K filed on April 24, 2024).
4.4 Equitrans Midstream Corporation 2018 Long-Term Incentive Plan (incorporated herein by reference to
Exhibit 4.3 to Registration Statement on Form S-8 (File No. 333-228337) filed on November 9, 2018.
23.1* Consent of Ernst & Young LLP, independent registered
public accounting firm (Equitrans Midstream Corporation).
23.2* Consent of Ernst & Young LLP, independent auditors (Equitrans
Midstream Corporation-Mountain Valley Pipeline, LLC-Series A).
24.1* Powers of Attorney (included
on the signature page hereof).
* Filed herewith.
5
Item 9. Undertakings.
(a) Theundersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statements:
(i) Toinclude any prospectus required by Section 10(a)(3) of the
Securities Act~
(ii) Toreflect in the prospectus any facts or events arising after
the effective date of the Registration Statements (or the most recent
post-effectiveamendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
RegistrationStatements. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securitiesoffered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering rangemay
be reflected in the form of a prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changesin volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in
the "Calculation ofRegistration Fee" table in the effective registration
statement; and
(iii) Toinclude any material information with respect to the plan of
distribution not previously disclosed in the Registration Statements or
anymaterial change to such information in the Registration Statements~
provided
,
however
, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the
information required to be included in apost-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission
by the registrant pursuantto Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference in the Registration Statements.
(2) That,for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
newregistration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed tobe the initial
bona fide
offering thereof.
(3) Toremove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
terminationof the offering.
(b) Theundersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act, each filing of
theregistrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable,each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporatedby reference in the Registration Statements shall be deemed to be
a new registration statement relating to the securities offered therein,and
the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofaras indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
ofthe registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Commissionsuch
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that aclaim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director,officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by
such director,officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counselthe
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnificationby it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
6
SIGNATURES
Pursuant to the requirements of the SecuritiesAct of 1933, as amended, the
Company certifies that it has reasonable grounds to believe that it meets all
of the requirements for filingon Form S-8 and has duly caused this
Post-Effective Amendment to be signed on its behalf by the undersigned,
thereunto duly authorized,in the Borough of Canonsburg, Commonwealth of
Pennsylvania, on May 1, 2024.
EQUITRANS MIDSTREAM CORPORATION
By: /s/ Kirk R. Oliver
Kirk R. Oliver
Executive Vice President and Chief Financial Officer
POWER OF ATTORNEY
KNOWALL MEN BY THESE PRESENTS
, that each person whose signature appears below hereby appoints
DianaM. Charletta
, Kirk R. Oliver and Stephen M. Moore, and each of them, severally, as his or
her true and lawful attorney or attorneys-in-fact andagent, with full power of
substitution and resubstitution, for him or her and in his or her name, place
and stead, in any and all capacities,to sign any and all amendments to the
Registration Statements (including all pre-effective and post-effective
amendments theretoand registration statements filed pursuant to Rule 462 under
the Securities Act), and to file the same with all exhibits thereto,and other
documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power andauthority to do and perform each act
and thing requisite and necessary to be done, as fully to all intents and
purposes as he or she mightor could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent, or his or her substitute
orsubstitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the SecuritiesAct of 1933, as amended, this
Post-Effective Amendment has been signed below by the following persons in the
capacities indicated on May 1,2024.
Name Title
/s/ Diana M. Charletta President and Chief Executive Officer
Diana M. Charletta (Principal Executive Officer)
/s/ Kirk R. Oliver Executive Vice President and Chief Financial Officer
Kirk R. Oliver (Principal Financial Officer)
/s/ Brian P. Pietrandrea Vice President and Chief Accounting Officer
Brian P. Pietrandrea (Principal Accounting Officer)
Director
/s/ Vicky A. Bailey
Vicky A. Bailey
/s/ Sarah M. Barpoulis Director
Sarah M. Barpoulis
/s/ Kenneth M. Burke Director
Kenneth M. Burke
/s/ Thomas F. Karam Executive Chairman
Thomas F. Karam
/s/ D. Mark Leland Director
D. Mark Leland
/s/ Norman J. Szydlowski Director
Norman J. Szydlowski
/s/ Robert F. Vagt Director
Robert F. Vagt
7
Exhibit 23.1
Consent of Independent RegisteredPublic Accounting Firm
We consent to the incorporation by reference in thePost-Effective Amendment
No. 1 to the Registration Statement (Form S-8 No. 333-228337) pertaining to
the Equitrans MidstreamCorporation 2018 Long-Term Incentive Plan, as amended,
and the Post-Effective Amendment No. 1 to the Registration Statement (Form
S-8No. 333-239228) pertaining to the Equitrans Midstream Corporation 2018
Long-Term Incentive Plan, as amended, of our reports datedFebruary 20, 2024,
with respect to the consolidated financial statements of Equitrans Midstream
Corporation and the effectivenessof internal control over financial reporting
of Equitrans Midstream Corporation included in its Annual Report (Form 10-K)
for theyear ended December 31, 2023, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
May 1, 2024
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporationby reference in the Post-Effective Amendment
No. 1 to the Registration Statement (Form S-8 No. 333-228337) pertaining tothe
Equitrans Midstream Corporation 2018 Long-Term Incentive Plan, as amended, and
the Post-Effective Amendment No. 1 to the RegistrationStatement (Form S-8 No.
333-239228) pertaining to the Equitrans Midstream Corporation 2018 Long-Term
Incentive Plan, as amended,of our report dated February 20, 2024, with respect
to the financial statements of Mountain Valley Pipeline, LLC - Series
A,included in Equitrans Midstream Corporation's Annual Report (Form 10-K) for
the year ended December 31, 2023, filed withthe Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Pittsburgh, Pennsylvania
May 1, 2024